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Legislative Memo: Civil Commitment of Sexual Offenders

Last year, the Supreme Court of the United States upheld a Kansas law that permits the government to detain for indefinite periods of time persons who have completed criminal sentences for convictions of sex offenses but whom the state believes are likely to commit violent sex crimes in the future if they are released from custody. 

Indeed, the Kansas statute goes so far as to authorize the commitment of persons who have been only charged with — not even convicted of — an offense if they have “a condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses.” New York is now proposing to adopt a similar statute.

No one questions New York’s interest in protecting itself from criminal activity. At the same time, one of our most cherished principles is that of individual freedom and the concomitant restraint we have imposed on the government’s power to detain and imprison people. It is crucial that we not imperil these freedoms, even when attempting to protect children.  

Though one cannot fault Kansas for the motivation behind its law, we all should be profoundly troubled by the law’s implications for individual liberty. Perhaps the most significant feature that distinguishes American society from totalitarian regimes is that in our society the government can forcibly detain persons for extended periods of time in only the most limited of circumstances. 

First, the government can incarcerate persons who have been convicted by a jury of their peers of having committed a criminal offense.  Second, the government can commit to locked mental-health facilities persons who are mentally ill and who present an imminent danger to themselves or to others. 

Under the Kansas statute approved by the Supreme Court, however, you can be innocent and mentally competent and still be detained indefinitely simply because the government thinks you are likely to commit a crime at some point in the future.

The appeal of locking up violent sex offenders is obvious, but if the government can commit people because they have a “condition” that makes it more likely for them to commit a crime, who is next? Alcoholics who drive? Members of right-wing militias? Without in any way belittling the importance of crime prevention, this power should frighten anyone who values a free society.

It would be a grave mistake to allow revulsion at sex offenders to be used as a justification for expanding the government’s power to detain persons indefinitely. If states want to increase sentences for those convicted of sex offenses they are free to do so. If there is a continuing concern that certain sex offenders suffer from a “condition” that is treatable, then treatment should begin as soon after confinement as possible with qualified professionals experienced in the treatment of the offenders’ “condition.”

It is important to note however, that some criminologists have questioned the widespread notion that sex offenders are dangerously incurable and destined to repeat their crimes.  It may be more appropriate to consider tightening the conditions of parole and probation imposed upon certain classes of felons.

But if New York passes a law like the one from Kansas, one can only hope that the New York Courts will understand that our state constitution protects individual liberty more than the federal constitution. This bill has not received the level of deliberation and substantive review that is appropriate when civil liberties issues are concerned. The NYCLU strongly opposes its passage.

As bold as the spirit of New York, we are the NYCLU.
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