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Civil Commitment

Through their inherent police power, states in the United States are permitted to civilly commit certain individuals, usually those who are deemed dangerous, in order to promote public security. Although the commitment process is purely civil, it often functions synchronously with the criminal justice system and effectively absolves local law enforcement of the burden of ongoing surveillance or monitoring of the individual. Arguably, society as a whole is safer when dangerous offenders are civilly committed because they are physically removed from society. Society may also be more secure when law enforcement resources are not taxed by having to monitor individual offenders.

Four types of civil commitment are the most common: (1) postsentence for sex offenders, (2) post–trial/plea for persons found not guilty by reason of insanity, (3) pretrial to restore competency, and (4) precrime for mentally ill persons who present a danger. For most types of civil commitment, the state must establish proof of future dangerousness by clear and convincing evidence. Often, this evidence comes in the form of expert psychiatric testimony coupled with evidence of past behavior.

Convicted Sex Offenders

Civil commitment for convicted sex offenders occurs postsentence after the resolution of a criminal matter. In the United States, the federal government and at least 20 states have enacted legislation permitting the involuntary civil commitment of sex offenders who have served their prison sentences. Most statutory schemes provide for the indefinite confinement of any person deemed to have a mental abnormality that will cause the individual to commit sex offenses in the future. In most jurisdictions, the state can establish a threat to safety and security by proving mental abnormality and future dangerousness with clear and convincing evidence. This burden is lower than the “beyond a reasonable doubt” standard required for criminal conviction, even though the hearing may result in indefinite confinement similar, if not identical, to prison. Courts generally balance the state’s need to protect and secure society against the offender’s privacy and right to be free after serving a prison term. In addition, the law is vague regarding the definitions of mental abnormality and future dangerousness. Finally, because it is a civil process, not a criminal process, the opportunity for meaningful review is significantly limited and the risk of unconstitutional confinement high.

In 1997, the U.S. Supreme Court considered the constitutionality of involuntary civil commitment in the context of sex offenders in Kansas v. Hendricks. It held that civil commitment of convicted sex offenders after they have served their prison sentences is constitutional when those offenders present a threat of future dangerousness to the community.

Not Guilty by Reason of Insanity

For individuals found not guilty by reason of insanity, civil commitment occurs on termination of a criminal case. A person who is found not guilty by reason of insanity, based on either a negotiated plea or a jury verdict, may be civilly committed (instead of sentenced to prison) in most jurisdictions. The decision to civilly commit must be supported by clear and convincing evidence that the individual has a mental illness or abnormality and presents a risk of future dangerousness to society. The purpose of civil confinement is to protect and secure society from the offender.

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