What is pre-crime preventative detention?
Pre-crime preventative detention laws are designed to continue to imprison someone after that person has completed their prison sentence. In theory, the person is no longer being punished for a past crime — instead, they are confined prospectively to prevent crimes they might commit in the future.
How do these systems work?
Persons in the traditional criminal legal system are selected by the government as targets for indefinite detention as they near the completion of their prison sentence. The prosecuting authority files a petition against the person under the state’s pre-crime preventative detention statute. The petition must assert that the person has “serious difficulty in controlling [their] behavior” as the result of a psychological condition that makes them “likely” to commit future crime. Instead of getting out of prison on their “release date” the person is held on a “civil hold order” issued by the trial court pending resolution of the government’s petition. A trial is scheduled to determine whether the person meets the legal criteria required to qualify for pre-crime preventative detention. If the person loses the trial — or waves his right to trial — he will be officially assigned a deliberately dehumanizing label by the state (e.g. “sexually violent predator”, “sexually dangerous person”, “sexual psychopathic personality”) and involuntarily committed to the care and control of the state’s department responsible for mental health services.
Some states hold a separate judicial hearing to determine whether (i.) the person requires commitment to a “secure facility for in-patient treatment” or whether (ii.) “less restrictive” alternative is possible to safely manage the person in the community. In theory, the person is supposed to be reviewed regularly (at least once per year) to determine whether they still meet the criteria for pre-crime preventative detention — and either graduated to less restrictive controls or released from the system entirely based on that assessment of their present mental condition. However, in practice, virtually no one is ever released, making these systems a de facto life sentence.
Who is targeted by these laws?
Persons in the criminal legal system with a sex-related conviction who have finished their sentence but whom the state believes “likely” to commit future crimes due to a “mental abnormality or personality disorder” that causes the person “difficulty controlling his predatory behavior”. In theory, the state claims to reserve application of these extraordinary systems to “the worst of the worst”. In reality, pre-crime preventative detention laws are regularly invoked to detain a broad spectrum of people, many of whom have crimes that were non-violent, non-contact, consensual, or that occured when the person was in their late teens. Many states even apply these draconian systems to people whose only criminal conduct occurred when they were juveniles themselves.1 These laws are not just for recidivists. None of these systems requires more than a single conviction to qualify someone for indefinite detention — consequently, the state does not need to demonstrate a pattern of behavior. By definition, pre-crime preventative detention systems almost never affect those who have been convicted of the most extremely harmful conduct, because in the United States such convictions routinely result in sentences that last the rest of their lives. Instead, many individuals ensnared by these systems are now elderly and infirm, having sometimes spent decades behind bars for now historical crimes and pose no threat to anyone, regardless of how objectionable their conduct might have been decades ago.
1 In Minnesota, 26-year-old Eric Terhaar was the first unconditional release from MSOP in the programs 22-year history after a Minnesota Supreme Court panel decision in August 2016. Terhaar had been civilly committed as a “sexually dangerous person” based on sexual choices he made between the ages of 10 and 14. (“First Unconditional Release From Minnesota’s Sex Offender Program,” Prison Legal News, October 2016. 49.)
Are those in pre-crime preventative detention mentally ill?
No. Unlike patients who have been involuntarily committed to a genuine psychiatric hospital, persons in so-called “sex offender civil commitment” facilities rarely suffer from a mental illness (such as schizophrenia) — and when they do, it was not the primary basis for their commitment. People normally do not commit sex-related crimes due to a mental illness; and people who are mentally ill do not normally commit crime of any kind. Pre-crime preventative detention systems must rely on the guise of psychiatric treatment to maintain the legal fiction that they are not merely a second prison sentence for the same original conduct — a fiction necessary for pre-crime preventative detention laws to avoid explicitly violating the constitutional protections against double jeopardy. To accomplish their goal of masquerading as a bona fide civil commitment system, pre-crime preventative detention statutes use an invented framework of “mental abnormality and personality disorder” as the statutory criteria for commitment. However, this legislative conceit is fundamentally fraudulent. The term “mental abnormality” is not recognized by the field of psychiatry and is not used by psychology outside the cottage industry that services systems of pre-crime preventative detention. The American Psychiatric Association recognizes a narrow category of “paraphilias” (or “sexual disorders”) as types of mental disorders. However, these conditions do not rise to the level of a “mental illness” and they do not cause volitional impairment, a requirement of any legitimate involuntary commitment scheme. This is one of the central reasons why the American Psychiatric Association opposes so-called “sex offender civil commitment” laws.
What’s the problem with discretion?
Discretionary laws invite abuse. Whenever there is discretion it creates openings for the expression of bias. Pre-crime preventative detention laws have disporportionatly impacted the LGBTQ community, people of color, and people living with HIV.
Persons who have been labeled “sex offenders” already constitute an extremely marginalized population. A constellation of law and policy expressed at all levels of government has been developed to track and control persons living with an historical sex-related conviction, creating a new American pariah class unparalleled in the western world. Pre-crime preventative detention systems begin as an exceptional approach to crime – there is no other category of crime where the person is not released on their release date. That exceptionalism reflects a pervasive societal bias, not any objective recidivism data or scientific understanding of sexual behavior. Nearly every other area of crime reflects a dramatically higher rate of recidivism but those crimes are not subject to pre-crime preventative detention. This approach is not being used even in cases where criminal behavior is directly linked to a recognized medical condition such as a substance use disorder (e.g. Opioid addiction) where there is a significant risk of harm to self (e.g. overdose) or to others (e.g. crimes that fuel addiction such as selling narcotics or theft)
Pre-crime preventative detention laws are inherently speculative. We can not accurately predict future human behavior. Expert witnesses for the prosecution do not have a crystal ball. They’re just guessing. (And they’re paid to guess in favor of the prosecution.) The decision making in these questions of potential lifetime imprisonment is inherently arbitrary, prone to bias, and unscientific. In a profoundly disturbing way so-called “sexually violent predator” trials are designed to be built around bias: The prosecution focuses on prior criminal behavior “for which the person has already completed his punishment” to …
How many states have pre-crime preventative detention laws?
Twenty states have systems of pre-crime preventative detention designed to indefinitely confine persons labeled “likely” to commit future crime that is sex-related. There is also a federal program created in 2006 by Title III of the Adam Walsh Child Protection and Safety Act (AWA), housed at FCI Butner in North Carolina. No new state has created a so-called “sex offender civil commitment” system since 2007. Three out of five states do not use pre-crime preventative detention legislative schemes. There has never been any research demonstrating that states with pre-crime preventative detention laws have lower rates of sexual violence than the 30 states that have rejected this approach.
Where do these laws exist?
- New Hampshire2
- New Jersey
- New York
- North Dakota
- South Carolina
- Federal Bureau of Prisons (BOP)
2New Hampshire has only ever subjected a single person to their pre-crime preventative detention law. Pennsylvania’s law only applies to persons ageing out of the juvenile system. Subtracting those two exceptional systems, the other eighteen state laws are very similar to one another.
Where did these laws come from?
The first so-called “sex offender civil commitment” law was created in 1990 by Washington State. The motivation for these laws was never genuinely “civil.” Lawmakers sought to create a mechanism to indefinitely detain persons considered “dangerous” even after the completion of their prison sentences. To avoid overtly violating the constitutional protection against double jeopardy, lawmakers invoked the guise of involuntary psychiatric commitment as a device to confine individuals outside of the normal criminal legal system.
What is the difference between so-called “sex offender civil commitment” and the traditional (medical) model of involuntary psychiatric commitment?
In short, the difference between the civil commitment of a person labeled a “sex offender” and bona fide system of involuntary psychiatric commitment is: (1) mental illness, and (2) volitional impairment. Involuntary psychiatric commitment is only legitimate under the medical model when a person suffers from a severe mental illness that causes volitional impairment and renders the person dangerous to themselves or others. Traditional systems of civil commitment are fundamentally paternalistic — their aim is to provide care and treatment for psychiatric patients in extreme need when their mental illness makes them unable to care for themselves. Deprivation of liberty is only permissible in the clearest, most volatile cases. The duration principle requires that the individual’s freedom be restored at the earliest possible point when the need for involuntary psychiatric care ceases.
Conversely, none of the features of a bona fide civil commitment system are present in so-called “sex offender civil commitment” schemes. There is no serious mental illness. There is no legitimate volitional impairment (although the system must assert one). While “dangerousness” is claimed, it is not credible. The intent of these legislative schemes is transparently punitive, rather than paternalistic. Meaningful treatment is not possible. The guise of treatment is nearly a pretext to excuse indefinite detention and continue to generate information that can be used to justify the person’s continuing need for “treatment” — and, thus, confinement.
Can we reform so-called “sex offender civil commitment” laws?
No. the fundamental premise of these systems is a lie. They are a “misuse of psychiatry” designed to invoke a false medical rationale to indefinitely imprison persons who have completed their prison sentences. It is not possible to create a genuine civil commitment regime that target persons with a previous sex-related conviction because these persons are not mentally ill and they are not unable to control their behavior. These laws are thinly veiled systems of pre-crime preventative detention that violate bedrock principles of American justice. They must be abolished, not reformed. History will not look back on these laws, or their proponents, kindly.
How many people are directly impacted by these laws?
Our best guess is between 7,000 and 10,000 — specific, reliable data on shadow prisons is difficult to obtain. States rarely publish information on their use of pre-crime preventative detention systems. These facilities have been compared to “black sites” where people are effectively disappeared. States have refused to answer inquiries in the name of HIPAA, citing “patient privacy”.
A number that has frequently been cited is 5,400 persons. This number, however, is old and originally came from an incomplete and unreliable source. Problems with that particular survey include:
- States not participating at all or only partially reporting information
- Missing data on those detained under the pre-crime preventative detention statutes but not yet formally committed
- Missing data on those persons placed on “conditional release”
- Failure to report persons returned to prison for a new criminal offense who remain subject to commitment orders
- Failure to indicate the date the data was provided (so we cannot know how old the numbers are)
- Absences of information on recent projected rates of new persons subjected to the state pre-crime preventative detention system as a pretrial detainee, new admission to the shadow prison, or placed on “conditional release”.
Just Future Project has specific data for some facilities, including up-to-date facility rosters. Eventually we hope to be able to perform this watchdog function for all twenty one pre-crime preventative detention systems.
The population directly impacted by these systems continues to expand as more people are committed than are released — many states have released no one (or virtually no one) from their “treatment centers.” In Kansas a person who is civilly confined for “ treatment” is twenty times more likely to die in the facility than to be released. Other states, like Virginia, have placed hundreds of persons into the community on “conditional release”, but routinely return them to the shadow prisons for minor technical rule infractions. Thus, even when you are “released” (conditionally) SVP status is a de facto life sentence creating a perpetual revolving door between imprisonment and supervised release.
How often are persons released from these systems?
Rarely. Release rates vary by state. Minnesota has only ever fully (unconditionally) released 2 persons in the twenty-five-year history of their pre-crime preventative detention system. Virgina has only fully released 11 persons in the past sixteen years. Most if not all were court ordered through judicial proceedings where the finding compelled the state to release such persons. In Kansas, someone who has been civilly committed as a so-called “sexually violent predator” has a 95 percent chance of dying in custody at the “treatment” program.
To be civilly committed — confined to a “secure facility for in-patient treatment” — the person must first be assigned a label that designates them as “likely to commit future acts of sexual violence” as the result of a “serious difficulty in controlling behavior” caused by a “mental abnormality or personal disorder.” Legislatures have deliberately employed dehumanizing language when creating these labels: “sexually violent predator”, “sexually dangerous person”, “sexually psychopathic personality.” This reflects the true criminal justice intent of these legislative schemes. Once such a label has been invoked, it has proved exceptionally difficult to persuade a judge to remove that label and restore the individual’s freedom.
How often persons are released from pre-crime preventative detention systems also depends on how one defines “released”. The term “release” should be reserved for unconditional freedom from the system of pre-crime preventative detention — customarily achieved when a court formally removes the label that designates the person as subject to the authority of the system. Many states consider “conditional releases” (CR) in their “release” numbers. However, persons on “conditional release” are still subject to the pre-crime preventative detention system because their label has not been removed.
“Conditional release” (CR) was originally envisioned as a tool to help persons transition back into the community. CR mirrors the restrictions of ultra-supervised probation. In many states, persons on CR are subject to control, supervision, and management by probation officers. States are using “conditional release” as a shadow probation system where persons are perpetually controlled by law enforcement outside the normal protections of the criminal justice system.