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Contents this page were published in the September/October, 1997 edition of the Washington Free Press.
WFP, 1463 E. Republican #178, Seattle, WA -USA, 98112. -- WAfreepress@gmail.com
Copyright © 1997 WFP Collective, Inc.
By a 5 to 4 reality, the Supreme Court has given states the go-ahead to hire architects and design "Special Commitment Centers," or whatever euphemism each state may use to describe its internment center for housing "dangerous sexual predators." The only remaining question is how many bed spaces they should include in their design. It's a question whose answer deserves no less scrutiny than the issue of civil commitment itself.
In 1990, Washington passed the Community Protection Act, the first law allowing for the indefinite civil commitment of sex offenders who suffer from a "mental abnormality" or "personality disorder" predisposing them to commit future sex crimes. At the time, I was involved in launching the inaugural issue of Prison Legal News, a monthly prisoner-edited law journal which has since achieved national recognition. I had also been imprisoned in Washington state since 1981 for first degree rape. For those reasons, I followed with both personal and professional interest the raging dispute over the constitutionality of civil commitment. This debate has been mooted by a Supreme Court which decided that citizens can be imprisoned for crimes they might commit.
How many will be civilly committed? Several aspects of the law's implementation warrant examination. The first question is: where do you draw the line on who is a "worst" sexual offender?
Examine the population of any state prison system and it's possible to identify the "worst" imprisoned sex offender. Pluck him out and commit him. Turn around, and the "worst" offender among those remaining can still be identified. Where does it end?
Of course, those civilly committed are afforded due process. There is a civil commitment trial wherein the state must prove "beyond a reasonable doubt" that the person indeed suffers from a "personality disorder" that may predispose him or her to commit future crimes. This may seem to be at least as fair as a criminal trial. But a judge or jury in a criminal trial must determine only if the defendant actually committed a criminal act in the past.
Since Washington implemented its civil commitment law in 1990, some three dozen defendants have thus been tried. Not one judge or jury determined the defendant to be not committable under the statute. What judge or jury would second-guess a state bureaucracy which has screened, selected, and evaluated a defendant, hauled him before the court, and said, "This is one of the worst, one of the few we predict will commit future sex crimes."? What concrete evidence can a judge or jury examine that would allow them to decide the state is wrong?
In Washington, there are two categories of imprisoned sex offenders considered likely candidates for civil commitment. First, there are those who have been in and out of prison two or more times for sex crimes. These offenders have demonstrated a past likelihood of committing new crimes. Then there a those first-time offenders whose crimes were so heinous or otherwise noteworthy that serious consideration must be given to civil commitment, even though they have yet to demonstrate a propensity for reoffending. But these may not be the only candidates.
The state Attorney General or the District Attorney of the county where a prisoner was convicted are the only ones who can file civil commitment papers, and they are not bound by the recommendations of the state panel and its meticulous selection and review process. They have absolute discretion.
So the third category of civil commitment candidate is whoever the District Attorney or Attorney General chooses. DAs, after all, are subject to human whims and emotions,. The decision of who to civilly commit could very well boil down to whatever ill feelings a particular county DA might harbor against a sex offender who rankled his or her sensibilities in a courtroom long ago.
So now that the Supreme Court has cleared the way, how many will be civilly committed? The arbitrariness of the selection process guarantees the number will vary widely from state to state and from county to county.
But before the designers and architects of the Special Commitment Centers lock themselves into a number of bed spaces, perhaps they should consider one more question: How long will it be before state legislators decide that arsonists suffer from a "mental abnormality," or that drug abusers have a "personality disorder?"
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