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May 18, 2023

Prison Policy Initiative shines light on "shadowy form of incarceration" known as civil commitment

The folks at the Prison Policy Initiative have released yet another new effective and informative data report. This new report is titled "What is civil commitment? Recent report raises visibility of this shadowy form of incarceration" and is authored by Emma Peyton Williams.  Here is part of the starting text:

As if serving a prison sentence wasn’t punishment enough, 20 states and the federal Bureau of Prisons detain over 6,000 people, mostly men, who have been convicted of sex offenses in prison-like “civil commitment” facilities beyond the terms of their criminal sentence.  Around the turn of the millennium, 20 states, Washington D.C., and the federal government passed “Sexually Violent Persons” legislation that created a new way for these jurisdictions to keep people locked up — even indefinitely — who have already served a criminal sentence for a “sex offense.”  In some states, people are transferred directly from prison to a civil commitment facility at the end of their sentence.  In Texas, formerly incarcerated people who had already come home from prison were rounded up in the middle of the night and relocated to civil commitment facilities without prior notice.  This practice, though seldom reported on, made some news in 2017 when the U.S. Supreme Court declined to hear a case from Minnesota after a federal judge deemed the practice unconstitutional.  The Prison Policy Initiative has included civil commitment in our Whole Pie reports on U.S. systems of confinement, but here we offer a deeper dive, including recently-published data from a survey of individuals confined in an Illinois facility under these laws.

Some advocates call civil commitment facilities “shadow prisons,” in part because of how little news coverage they receive and how murky their practices are.  In Illinois, for example, the Department of Corrections (DOC) facilities are overseen by the John Howard Association, an independent prison watchdog organization.  But Rushville Treatment and Detention Facility, a civil commitment center that opened after Illinois enacted its own Sexually Violent Persons Commitment Act in 1998, is not subject to the same kind of oversight because it is housed under the Department of Human Services and is not technically classified as a prison.  This is true in many states that have “Sexually Violent Persons” laws on their books, and consequently, horrific medical neglect and abuse proliferate in these shadowy facilities. For instance, a New Jersey civil commitment facility was one of the deadliest facilities at the beginning of the COVID-19 pandemic....

A second critique of this system is reflected in another term advocates use to describe it: “pre-crime preventative detention.”  Civil commitment (unlike other involuntary commitment practices, such as for the treatment of serious mental illness) can be seen as “double jeopardy” repeat punishment for an initial crime, or preventative detention for a theoretical future crime that has not occurred.  Advocates rightly critique the fact that one of the primary justifications for civil commitment is the predicted risk that detained individuals will “re-offend,” even though people who have been convicted of sex offenses are less likely to be re-arrested than other people reentering society after incarceration.

Regardless, in many states, people who have been convicted of sex offenses are transferred from DOC facilities to civil commitment facilities at the end of their sentence and held pretrial, then re-sentenced by the civil courts.  The length of these sentences is often indeterminate, as release depends on progress through mandated “treatment.”  But neither “risk assessment” nor “progress through treatment” are objective measures.  In fact, advocates and people who have experienced these systems argue that risk assessment tools are used to rationalize the indefinite confinement of identity-specific groups, and that assessing progress through treatment is a highly subjective process determined by a rotating cast of “therapeutic” staff.

May 18, 2023 at 05:49 PM | Permalink


Wondering if the "tough on crime" mob, (which includes current and former prosecutors, college professors and even some defense attys.), endorse this evidently "legal" scheme of "shadow incarceration"?

One must assume that many if not all members of the legal profession have been aware of this scheme for quite some time now. Their noticeable silence on this subject, in my opinion, belies their incessant posturing on morality and ethics.

Posted by: SG | May 19, 2023 2:53:59 AM

I'm glad that these systems are getting more attention. One thing that has always struck me is that they are ready-made for scientists to evaluate their effectiveness because less than half the states have them. Presumably, if they were essential pieces of public safety infrastructure, then we would be able to see evidence of that.

But research that's been done looking at the question has determined that for as much as these systems cost us (financial, human, and constitutional costs), they produce no discernible benefit, no impact on rates of sexual violence. I mean it isn't exactly that there's blood running in the streets of states that don't have them, nor is it that "sexually violent predators" only exist in states that do have them.

But, once they get on the books, what legislator is going to move to repeal them? "Let's let these people, whom we have previously declared to be incorrigible threats to public safety such that we need to bend the law to indefinitely imprison them, back out into your communities" is a fantastic campaign promise. In the wake of Karsjens, the courts have also more or less placed them beyond the reach of meaningful judicial review.

They're probably here to stay, but given their expense, they don't appear to be spreading, so I suppose that's something.

Posted by: Guy Hamilton-Smith | May 19, 2023 8:24:41 AM

Doug, this has been an ongoing issue--take a look at guardianship abuse case. Enough to make your stomach turn.

Posted by: federalist | May 19, 2023 8:45:28 AM

I never did a civil commitment case, so my knowledge is limited. I will say that in the NYC subway choke-hold case, the guy who was acting erratically and got choked to death had a long, long history of behavior produced by mental illness, and very likely would have been better off in civil commitment than he was just wandering the streets and subways. At the minimum, at least he'd still be alive now. What happened to him or something like it was inevitable absent some kind of intervention.

Not happy-making, but these things seldom are.

Posted by: Bill Otis | May 19, 2023 9:55:12 AM

SG --

"One must assume that many if not all members of the legal profession have been aware of this scheme for quite some time now. Their noticeable silence on this subject, in my opinion, belies their incessant posturing on morality and ethics."

Of course the "soft-on-crime mob" has NEVER been known to posture on morality and ethics.


Posted by: Bill Otis | May 19, 2023 9:58:47 AM

I was a former employee of one of these programs for almost 2 years - are the men there because they are the worst of the worst as it relates to sex offenses - I can unequivocally attest to there criminal histories and convictions falling into that category. That being said, and I think where the problem lies is not with their civil commitment, but there release back into the community. Not many (very few) make it back into the community for a myraid of reasons, one of which is the ever changing treatment process and in some cases, the backlog of cases waiting to be reviewed for release.

Posted by: atomicfrog | May 19, 2023 4:23:32 PM

I’m not for civil commitment. I’m for longer sentences for those committing those crimes.

Posted by: TarlsQtr | May 22, 2023 12:04:07 AM

I first became aware of this shocking "involuntary civil commitment" process when I briefed and argued the then pending U.S. Supreme Court case of "Allen v. Illinois". 478 U.S. 364 (1986) in my appellate advocacy seminar at U.Va. Law School. The Supreme Court held that the defendants have no 5th Amendment privilege against self-incrimination, so their interviews and evaluations by court-appointed psychiatrists can be used against them in the civil case -- and they cannot refuse to cooperate. One particularly offensive part of the Illinois scheme is that the defendants are committed to the maximum security penitentiary at Menard, Illinois, next to convicts with serious felony convictions, so it is sheer hypocrisy to say that this is really a "civil commitment". But the Supreme went along with it. Also, in that case, criminal charges were filed against the defendant over the same incident, but there was insufficient evidence to convict criminally. Truly offensive to the U. S. Constitution.

Posted by: Jim Gormley | May 22, 2023 7:10:38 AM

Does PLRA cover civil commitment?

Posted by: federalist | May 22, 2023 9:18:44 AM

And I agree with Tarls.

Posted by: federalist | May 22, 2023 9:18:54 AM

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