In the United States, civil confinement is a term for the formal legal process by which persons convicted of certain sexual offenses (generally violent sex offenders) may be subject to involuntary commitment upon completion of a prison sentence.
Although the exact details of the legal process may vary from state to state, the United States Supreme Court reviewed and upheld as constitutional a statutory process adopted in Kansas. See Kansas v. Hendricks, 521 U.S. 346 (1997). There, civil confinement proceedings could be initiated against "any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence." Many of those terms were themselves defined in the statute, including "mental abnormality," defined as "congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others." Id.
If a prison identified an inmate who was about to be released but potentially fit this definition, the prison authorities were required to notify the local prosecutor of the impending release. The prosecutor was then required to decide whether to petition for commitment. The court would then have to determine whether probable cause existed to support the inmate's status as a "sexually violent predator," and, upon such a determination, order the inmate to be psychologically evaluated. The psychological evaluation would then form the basis of a further trial to determine whether the inmate qualified as a violent sexual predator. Upon such a determination, the inmate would be subject to involuntary commitment at a medical facility until such time as his mental abnormality had changed and it was safe to release him. Id. at 353. The court would then be required to conduct an annual review of the determination, and the inmate would always be allowed to petition for freedom under the same standards. The Supreme Court concluded that this process met previously established standards of constitutional substantive due process governing voluntary confinement, did not constitute double jeopardy because the proceedings were civil rather than criminal, and was not an ex post facto law for the same reason. Id. at 353-371. In a following case, the United States Supreme Court clarified that the government must demonstrate that the inmate has at least a serious lack of ability to control his behavior. Kansas v. Crane 534 U.S. 407 (2002). The Supreme Court has also determined that Congress has the authority to pass a similar law affecting federal prisoners. United States v. Comstock, 560 U.S. 126 (2010).
As with civil commitment generally, civil confinement is a controversial implementation of state power. Detractors point to the prospect of indefinite detention without due process of law. Proponents cite public safety.
State legislatures who have decided to adopt civil confinement statutes have expressed the intent of the laws in their enactments. One example is the state of Washington, which explained:
- The legislature finds that a small but extremely dangerous group of sexually violent predators exist who do not have a mental disease or defect that renders them appropriate for the existing involuntary treatment act . . . which is intended to be a short-term civil commitment system that is primarily designed to provide short-term treatment to individuals with serious mental disorders and then return them to the community. In contrast to persons appropriate for civil commitment . . . sexually violent predators generally have personality disorders and/or mental abnormalities which are unamenable to existing mental illness treatment modalities and those conditions render them likely to engage in sexually violent behavior. The legislature further finds that sex offenders' likelihood of engaging in repeat acts of predatory sexual violence is high. The existing involuntary commitment act . . . is inadequate to address the risk to reoffend because during confinement these offenders do not have access to potential victims and therefore they will not engage in an overt act during confinement as required by the involuntary treatment act for continued confinement. The legislature further finds that the prognosis for curing sexually violent offenders is poor, the treatment needs of this population are very long term, and the treatment modalities for this population are very different than the traditional treatment modalities for people appropriate for commitment under the involuntary treatment act.
- E.g., David Rosen, "Sex Offenders, Civil Confinement and the Resurrection of Evil: The New Disappeared," May 10, 2007, Counterpunch ("Civil confinement permits the state to transform a criminal sentence with a specified duration into an indeterminate life sentence.") Accessed January 24, 2008; Mark K. Matthews, "Molesters confined even after jail time is up" State Line ("When the most dangerous sexual predators are due to leave prison ... officials can revoke their freedom and toss them into mental hospitals indefinitely.") Accessed January 24, 2008.
- E.g., Don Esmonde, "No mercy due 100-year-old pedophile," December 13, 2009, The Buffalo News. Accessed December 26, 2009.
- RCW 70.09.010.