Once again civil commitment is in the news, and it’s time to update an old article. The questions that need to be asked are SVP laws constitutional considering that they are aimed at a specific disfavored group of individuals within society. A group that has a proven reconviction record averaging out to less than 1% a year when the registry is looked at as a whole. Because of that the justification for these laws quickly evaporates.
Most states have a ban on legislative special laws and beyond that they have constitutional protections for every individual within their state and within the federal government these laws are based on lies and misrepresentation of information by people in pseudoscience. When the actual numbers are looked at there is no justification for locking these people up. Our system of justice requires that the government proved that a person is dangerous at the time of their hearing. They cannot simply assume that a person is dangerous because of a crime that happened years before. It is not the job of the defendant to prove that he is not a danger it is the job of the state to prove that he is and using pseudoscience to justify this is not acceptable under Daubert v. Merrell Dow Pharmaceutical s, Inc., 509 U.S. 579 (1993) courts have strictly applied the standards in Daubert, and it has generally been successful in excluding “junk science” or “pseudoscience”, as well as new or experimental techniques and research that the decision might have been expected to deem admissible. In plain terms that means that the opinions of psychiatrist and psychologist are not taken as a factual basis to lock someone away. The defendants most recent actions have to be taken into consideration before they can be considered dangerous enough to be considered mentally ill and need of civil commitment.
The way the SVP laws are written it requires assessment of people in pseudoscience the same type of pseudoscience that was used during the eugenics movement to unconstitutionally and illegally sterilize and subject people in mental institutions to clockwork or orange type treatments.
Any law that lowers the bar for a specific group of people in order to deny them liberty is an unconstitutional law in violation of the eighth amendment 14th amendment and Art. I §§ 9-10 cl which bans “bills of Attainder”
In Arlington, a judge must decide if a nonviolent sex offender should stay incarcerated after serving his sentence
On Monday, the Circuit Court in liberal Arlington County will be the scene of a heavy-handed morality play, with prosecutors seeking lifelong incarceration for a young gay man who has already paid an extraordinary price for youthful, nonviolent sexual indiscretions.
Virginia, like 19 other states and the federal government, has a Sexually Violent Predators Act (SVPA). Under these laws, people who have completed their criminal sentences under any of a large number of sex-related offenses can be indefinitely detained in a high-security facility until the state determines that they no longer present a risk, typically never.
Civil libertarians have always objected to such practices. They smack of double jeopardy, of ex post facto punishment and of a glaring form of Catch-22: The defendant is deemed mentally fit to stand trial but is mentally unfit for release. The Supreme Court has swatted aside such objections, ruling that civil commitment is not punitive as long as the state claims that the purpose of detention is psychiatric treatment. Read the rest of the story at https://beta.washingtonpost.com/opinions/2019/08/23/arlington-judge-must-decide-if-nonviolent-sex-offender-should-stay-incarcerated-after-serving-his-sentence/
This article came out in February 2018 in the Texas Observer about civil commitment it reminded me that in October of 2016 I had written an article about the legality and constitutionality of civil commitment. I think with the below article it is worth pointing out the legal aspects of this again.
by Michael Barajas
February 12, 2018
In early September 2015, guards fanned out across Texas with orders to round up about 200 men, rousing some from bed as early as 3 a.m. and demanding they stuff whatever they wanted to keep into black Hefty bags.
The men weren’t hard to find. They’d all completed lengthy prison sentences for sex crimes. The state calls them “sexually violent predators,” men required not only to publicly register their whereabouts but also to participate in a court-ordered monitoring and treatment program meant to cure them of “behavior abnormalities” and safely integrate them back into society after they’ve done their penance. At the time of the roundup, most were living in boarding homes and halfway houses.
Jason Schoenfeld, who was staying at a Fort Worth halfway house at the time, made a frantic phone call to his friend John, a fellow veteran. John, who’s retired and old enough to be Schoenfeld’s father, met the 46-year-old Gulf War veteran while volunteering at the Fort Worth VA hospital. John taught Schoenfeld breathing techniques to calm his nerves during an exercise class he’d volunteered to lead at the VA; records show the VA gave Schoenfeld a 30 percent disability rating for post-traumatic stress disorder after his combat service. John eventually grew fond of Schoenfeld and wanted to help him To read the rest of the article go to www.texasobserver.org/a-prison-by-any-other-name/
Now we have the Civil Commitment Threat!
Because of Our Constitution and Bill of Rights in this country you’re allowed to dislike, even outright hate a person or group, that is all well and good, you have that right under the Constitution. What you do not have is the right to force your ideas on other individuals because of your dislike or fear of a group of people, this does not give you the right to take away their constitutional protections. As soon as you start doing that you are destroying the very fabric that this country was built on and you become as un-American as somebody burning an American flag or flying a plane into the World Trade Center. The truth is if you want to retain your constitutional rights you have to fight to make sure that everyone keeps theirs, even the people that you dislike or hate.
One of the threats that people on the registry constantly live under is that if they make a mistake because of the vague or overbroad laws, or if they are charged with the new sex crime because of their status as a registered citizen, even if those charges are false, there is a high probability of them being reconvicted simply because of their registered citizen status. The second part of that fear is civil commitment and forced brainwashing by the state.
If a person is ordered into a mental health program without due process, to see if they are mentally Ill and in need of treatment or proof that treatment will help them, then their rights under the 8th and 14th Amendments have been violated. Under the 8th and 14th Amendments, state may not show “deliberate indifference” to inmates mental health needs.” It was not appropriate for a court to determine what treatment…. a patient should receive at treatment center…” Cameron v. Tomes 783 F Supp 1511 (point: If the person is mental Ill and the crime happened because of that illness how was he/she criminally prosecuted for it?) (At the present time people who commit sex related crimes are not considered to be mental Ill. Yet after they have served their sentence how can they suddenly have a mental illness?) A person convicted of crimes deserve to be punished but this dose not give the state license to make prisoners objects of unguided behavior control experiments. Canterino v. Wilson 546 F Supp 174. “the loss of liberty is more then a loss of freedom from confinement. While a conviction and sentence extinguish an individuals right to freedom from confinement…they do not authorize the state to classify them as mentally ill and subject them to involuntary psychiatric treatment without according them the additional due process protection”. Vitek v. Jones 100 SCt 1254. The principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions. Cruzan v. Director Missouri Dept of Health 110 Sct. When a person is intentionally subjected to harsh conditions in order to deter him from maintaining a course of conduct the fact that it is done in the name of Psychiatric treatment dose not keep it from being intentional punishment and a violation of the 8th Amendment (see Green v. Baron 662 F. Supp 1378) violating their First and 8th Amendment rights under the Federal Constitution. (if the state is forcing a person into an involuntary psychiatric treatment to change his thinking patterns, is this constitutionally correct?) the “State dose not have the right to control the moral content of a person’s thoughts” “This limitation on government is at the core of our constitutional values: “Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds” Staney v. Geogia 89 S.Ct. @1243. State v. Nance 735 P2d 1271 Conclusions based on conjecture about dangereness are insufficient. Mater of Lucas 571 P2d 571 Determination whether a person is dangerous beyond a reasonable doubt must focus on his or her condition at time of the. . . hearing State v. Daulton 566 P2d, 555 State v. Alexander 554 P2d 524, State v. G 552 P2d5 7 4.
KNECHT V. GILLMAN 488 F2d 1136 any “averse stimuli” constitutes cruel and unusual punishment unless written consent has been obtained from the inmate specifying the nature of treatment, purpose, risk and effects and advising the inmate of their right to terminate consent” “Behavior modification by averse stimuli is “a highly questionable technique” with only a 20%to 50% claimed success rate, and that its use is really punishment worse than a controlled beating. GREEN V. BARON 662 F Supp 1378 When a mental patient is intentionally subjected to harsh conditions in order to deter him from maintaining a course of conduct the fact that it is done in the name of Psychiatric treatment dose not keep it from being intentional punishment. When the legislative body creates a classification such as they have done with the registry the courts are required to look at that legislative action at a heightened scrutiny Lipconib by and through DeFehr v. Simmons 962 F2d 1364 /2/6/Legislative classifications require HEIGHTENED SCRUTINY. There is also the fact that when the legislators based their decisions on presumptions and not facts then that law can be called in to question for its constitutionality.this is something about the sexually violent predator laws that really need to be addressed. First of all there is no guaranteed way to predict future dangerousness. Secondly a disfavored group has had special legislation passed against them and lastly those laws are based on the false assumption of high recidivism. this makes his laws unconstitutional because they are bills of attainder. Procedure by presumption @1384 ^Stanley v. Illinois 92 SCt. 1208 note # 8 @ 1215 /3/9/ Presumption that distinguishes and burdens @ 1211 and if that law has a discriminatory purpose then we have these case sightings Roberts v. US Jaycees 104 SCt 3244 page 3253@ 625. Wayte v. US 105 SCt 1524 3/4 / 5 / 6 / 7 / 8 / 9 / massachusetts v. feeney 99SCt 2282 /10/ Discrminatory purpose. State v. Clark 630 P2d 8 105/6/7/8/9/ 10/ 11 / 12/note 12. Pinder v. commissioners of Cambridge 821 F supp 376 (1993) Discrminatory purpose.
Our Constitution also “restricts governmental power by restraining arbitrary and potentily vindictive legislation” Weaver v. Graham 101 S.Ct. @ 960, 963- 964. The prohibitions on “bills of Attainder” in Art. I §§ 9-10 cl. prohibit legislatures from singling out disfavored persons and meting out summary punishment for past conduct Landgraf v. usi film products 114 S.Ct @1497. These laws act as Bills of Attainders in violation of both State and Federal Constitutions.
If treatment dose not give the person more chance for improvement then having no treatment, or if there is the possibility of the treatment doing mental or emotional harm or if it is likely to increase the chance of reoffence, then the patient has been deprived of his liberty without sufficient cause and without due process. The fact that the treatment involves changeling the thinking patterns of those in the treatment (people that are not mentally ill) it is a violation of their First Amendment rights Staney v. Geogia 394 US 557, 89 SCt 1243, Flanagan v. State 846 P2d 1053 as well as their associational ties Griswold V. Connecticut 85 SCt 1678. Healy v. James 92 SCt 2338
Ohlinger v. Watson 652 F.2d 775 Decided Nov. 12, 1980.
II. APPELLANTS HAVE A CONSTITUTIONAL RIGHT TO SUCH INDIVIDUAL TREATMENT AS WILL GIVE EACH OF THEM A REALISTIC OPPORTUNITY TO BE CURED OR TO IMPROVE HIS MENTAL CONDITION.
In holding that any treatment provided appellants is constitutionally adequate if that treatment is reasonable within the budget and time constraints imposed upon the prison, the trial court relied upon the standard articulated in Bowring v. Godwin, 551 F.2d 44 (4th Cir. 1977).
In Bowring, the petitioner had been convicted of robbery and attempted robbery and kidnapping. He was denied parole on the basis that, inter alia, results of his psychological evaluation indicated that he would not successfully complete a parole period. The basis of his complaint was that the State must provide him with a psychological diagnosis and treatment in the hope that he may ultimately qualify for parole.
The Bowring court held that a person incarcerated for the commission of a crime is entitled to that psychological or psychiatric treatment which may be provided upon a reasonable cost and time basis, the essential test being one of medical necessity and not simply that which may be considered desirable. Id. at 47-48.
Bowring may be appropriate as a standard for providing psychiatric treatment to inmates who are incarcerated for criminal offenses. Incarceration under those circumstances is primarily for punitive purposes. Although rehabilitation may be desirable, it is not necessarily the primary function of such incarceration. Appellants, however, were not given indeterminate life sentences merely because they committed criminal offenses, but also because they possessed “a mental disturbance, delinquency or condition predisposing” them to the commission of sex offenses. (again the faults scepter of future dangerousness rears its ugly head even though it is proven that people on the registry have a re-offense rate of less than 1%.)
The State’s interest in indeterminate incarceration under ORS 137.111 is to provide for the rehabilitation of a sex offender who has disclosed a tendency to be a menace to society. Barnett v. Gladden, 237 Or. 76, 390 P.2d 614 (1964). See also, Jensen v. Gladden, 231 Or. 141, 146-47, 372 P.2d 183 (1962). Such rehabilitation “may be regarded as comprising the quid pro quo for a longer confinement but under different terms and conditions than a defendant would undergo” if sentenced under ORS 167.040. See Carter v. United States, 306 F.2d 283, 285 (D.C. Cir. 1962). See also, Standley v. United States, 318 F.2d 700 (9th Cir. 1963); United States ex rel. Sero v. Preiser, 372 F.Supp. 663 (S.D.N.Y.1974). Having chosen to incarcerate appellants on the basis of their mental illness, the State has determined that it no longer has an interest in punishing appellants, but rather in attempting to rehabilitate them.
The rehabilitative rationale is not only desirable, but it is constitutionally required. Robinson v. California, 370 U.S. 660, 666, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758 (1961), strongly suggests that the State may not justify appellants’ extended sentence on the basis of mental illness without affording appropriate treatment. The Supreme Court of California has so interpreted Robinson. Indeed the State concedes that appellants are constitutionally entitled to treatment. The disagreement between the parties is solely over the level of treatment which is constitutionally required.
The district court held that “(a)ll that is required is that (appellants) be provided a reasonable level of treatment based upon a reasonable cost and time basis.” We do not agree.
Constitutionally adequate treatment is not that which must be provided to the general prison population, but that which must be provided to those committed for mental incapacity. “At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.” Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435 (1971).
Jackson and McNeil v. Director, Patuxent Institutions, 407 U.S. 245, 92 S.Ct. 2083, 32 L.Ed.2d 719 (1972)7 indicate that a person committed solely on the basis of his mental incapacity has a constitutional right to receive “such individual treatment as will give each of them a realistic opportunity to be cured or to improve his or her mental condition.” Wyatt v. Stickney, 325 F.Supp. 781, 784 (M.D.Ala.1971) and 344 F.Supp. 373 (1972) aff’d. sub nom., Wyatt v. Aderbolt, 503 F.2d 1305 (5th Cir. 1974). See also Welsch v. Likins, 373 F.Supp. 487 (D.Minn.1974). Adequate and effective treatment is constitutionally required because, absent treatment, appellants could be held indefinitely as a result of their mental illness, while those convicted and sentenced under the State sodomy statute need only serve the fifteen-year maximum term. See Ragsdale v. Oberholser, 281 F.2d 943, 950 (D.C. Cir. 1960); Wyatt v. Stickney, supra, 325 F.Supp. at 784; People v. Feagley, 14 Cal.3d 338, 121 Cal.Rptr. 509, 535 P.2d 373.8
Appellants are not requesting the best possible treatment nor are they demanding a guarantee to be cured of their mental incapacity. They only request a treatment program that will address their particular needs with the reasonable objective of rehabilitation. Lack of funds, staff or facilities cannot justify the State’s failure to provide appellants with that treatment necessary for rehabilitation. Lora v. Bd. of Education, 456 F.Supp. 1211, 1292 (E.D.N.Y.1978); Wyatt v. Stickney, supra, 325 F.Supp. at 782-83, 344 F.Supp. at 377.
The standard adopted by the trial court is clearly erroneous. Nevertheless, the record must be examined to determine whether the treatment offered appellants at OSP will give each of them a realistic opportunity to be cured or to improve his mental condition.
III. THE RECORD OVERWHELMINGLY INDICATES THAT APPELLANTS ARE NOT RECEIVING CONSTITUTIONALLY ADEQUATE TREATMENT.
Extensive evidence was submitted at the trial pertaining to the effect of the OSP program on appellants’ mental condition and the degree and kind of treatment needed to provide them with an opportunity for rehabilitation. The parties stipulated that appellant Ohlinger received absolutely no treatment of any kind between 1961 and 1971.
The evidence indicates that appellants require intensive individual therapy which includes a program concentrating on development of social skills, a reconditioning process, work in sexual fantasies and dreams and community passes to gradually integrate them into the community.
These methods are not available at OSP. They are available at Oregon State Hospital (“OSH”). Dr. McGovern, the only witness recognized by the trial court as an expert in the treatment of sex offenders, testified that appellants would not be a security risk and that because appellants were not physically abusive sex offenders they would be very receptive to treatment in a hospital-residential facility.
Although appellants participated in group therapy, the sessions were for only one-and-a-half to two hours per week. Dr. Nance testified that while he was the prison psychologist he had only one group of eight to twelve members out of the approximately two hundred fifty sex offenders housed at OSP. Most of these inmates were not sentenced under ORS 137.111. Dr. Nance also provided six to eight hours a week of individual therapy to the entire prison population of 1700-1900. Less than 20% of the individual therapy was devoted to sex offenders.
The witnesses further testified that the current level of treatment, predominantly group therapy, was not only inadequate and ineffective, but possibly detrimental in some circumstances. Appellant Haddon had participated in the group sessions but withdrew because he feared that the information about his sex offense would eventually reach the rest of the prison population. The evidence indicates that Haddon’s fear was reasonable. Sex offenders are looked upon as falling somewhere in the lower echelon of the inmate population and are, therefore, most susceptible to physical attacks from other inmates. One witness testified that, “sex offenders find their very existence in prison one of moment to moment anxiety if not occasionally better described as terror.”
(I)nvoluntary confinement for the “status” of having a mental or physical illness or disorder constitutes a violation of the cruel and unusual punishment clauses of both the state and federal Constitutions … unless it is accompanied by adequate treatment. (Robinson v. California (1962) 370 U.S. 660, 665-667 (82 S.Ct. 1417, 1419-1420, 8 L.Ed.2d 758) …)
NOTE: after writing this I realized that there is another issue that needs to be addressed within this article. That is the ineffectiveness of behavior modification treatment programs. I and others have written about it in other articles that have appeared in SOSEN. To be quite blunt most behavior modification programs are not only ineffective but they increase the possibility of recidivism. I would suggest you see prior articles pertaining to treatment and risk assessment procedures. Remember we have a study called the Jack study done in the 1960s that was 15 years long and during that time. In any given year the re-offense rate was less than 2/10 of one percent. If a treatment program who wants to show their more effective than no treatment they need to have a re-offense rate of less than 2/10 of one percent — good luck with that.
Some of the articles that have looked into the reconviction rate on SOSEN are
And some of the articles that looked at the effectiveness of behavior modification treatment programs that are used in mental hospitals are