“Is civil commitment rehabilitating sex offenders — or punishing them?”

The question in the title of this post is the subtitle of this new Harper’s Magazine article titled “The Forever Cure.” Here is an excerpt:

As a wave of civil-commitment laws passed in the Nineties and Aughts, many critics questioned how effective they would be at curtailing sexual abuse. More recently, a growing body of research has borne out their concerns: as a 2013 Brooklyn Law Review article put it, “SVP laws have had no discernible deterrent or incapacitation effects.” Some opponents have argued that civil commitment diverts resources from more effective programs such as structured therapy and education and risk-management programs. In 2024, for instance, the SPTP’s budget was $33.7 million, which works out to nearly $130,000 per resident. Rather than spending billions on a “regime that has continued to fail to adequately protect children,” a 2023 Johns Hopkins University–led study concluded, states should invest in programs that can better “prevent child sexual abuse in the first place.”

Even some who oversee long-established civil-commitment programs have questioned their efficacy. Robin Wilson, the clinical director of Florida’s civil-commitment program from 2007 to 2011, believes that treatment should begin at the outset of a prison sentence, not after it has ended, and that most programs start treatment too late to be psychologically helpful. “You end up having people who potentially end up going to treatment long after the treatment would have been most effective, and ultimately for much longer and more intensively than their risk profile suggests,” he told me. “There are better, more efficient, more scientifically defensible, more ethical ways to do this.” In 2014, the research director of Minnesota’s Department of Corrections, Grant Duwe, called on states to consider more intermediate, community-based alternatives to civil commitment, such as intensive parole….

No state has adopted civil commitment since New York did so in 2007 — a sign, perhaps, that many have come to recognize the inefficacy and exorbitant cost of such programs.  But in states where such programs have long existed, few politicians, if any, have shown interest in dismantling them.  “It’s become a political third rail,” Eric Janus, the director of the Sex Offense Litigation and Policy Resource Center at the Mitchell Hamline School of Law, told me. That’s not only because of the bad optics of shuttering a program meant to protect the public, he explained, but also because the facilities provide jobs.  Larned State Hospital, for instance — where the SPTP is the largest program — is one of the biggest employers in town. “You’ve got a lot of people in the community who are just dependent on those jobs,” Rick Cagan, the former executive director of the Kansas chapter of the National Alliance on Mental Illness, told me. “It is a huge cash cow.”

Legal challenges to these programs have largely proved unsuccessful.  In 1997, the Supreme Court ruled 5–4 against a man in Kansas who argued that civil commitment constituted a form of double jeopardy. The process was civil, not criminal, the ruling explained, and therefore not a form of punishment.  In 2002, the court again upheld the practice, expanding the grounds on which states could commit someone, and leaving little hope for the roughly six thousand people currently held under civil commitment.

Many experts reject the Supreme Court’s reasoning. “The underlying idea of [civil commitment] is essentially . . . punitive,” Janus told me.  And in 2023, an unpublished internal survey of programs in seventeen states conducted by the Sex Offender Civil Commitment Programs Network, an association of facility employees, found that patients spend far more time in “recreational [and] vocational programming” than they do receiving treatment.  The survey also found that the vast majority of those who have entered civil commitment have never been released.  Under Missouri’s SVP law, unconditional release isn’t even an option.  In Kansas, only 16 of the 380 people ever committed have been discharged; 14 have received conditional release; and 65 have died in custody.  Virtually everyone else remains locked up.