Sam Newman, Saint Louis University School of Law
Sam Newman, “Missouri’s SVP Law: Time for a change?”, 60 St. Louis U. L. J. 711 (Summer 2016)
Text excerpts:
Newman, 721: In Kansas v. Hendricks…. the Court added that the mental condition must cause the individual to have difficulty controlling his or her behavior
As a result of the Supreme Court’s decision in Hendricks, the clinical condition actually causing a loss of ‘volitional impairment’ is essential to SVP statutes”.
Newman, 722 : …[A]ccurately determin[ing] when… a ‘mental abnormality’ is actually causing volitional impairment… is such a difficult task that the American Bar Association (ABA) considers it nearly impossible. In fact…’ there is still no accurate scientific basis for measuring ones capacity for self-control or for calibrating the impairment of such capacity.”
Newman, 722-23: Documents generated during treatment can be used in court in an effort to lengthen the confinement of the participating patient. According to the SORTS website, their treatment practices mandate an offender, among other things, admit he or she is a sex offender in need of treatment, disclose prior offenses and discuss past unhealthy relationships. Moreover, the Missouri statute grants the court authority to order the offender be subject to certain conditions ‘as deemed necessary,’ including ‘ {submiting] to a polygraph, plethysmography or other electronic or behavioral monitoring assessment;’ and ‘[authorizing] the department of mental health to access and obtain copies of confidential records pertaining to evaluation, counseling, treatment, and other such records and provide the consent necessary for the release of any such records. Thus, anything that a patient admits to having done, during any and all phases of the treatment process, is discoverable.
Prosecutors are certainly aware of such statutory requirements, and, in fact, many prosecuting attorneys have a practice of obtaining treatment data that would otherwise be private as part of the pre-petition review to determine whether to continue confinement. As a result, defense attorneys have advices offenders that it may be better not to participate in treatment, as they may actually increase their chances of being released since nonparticipation may be viewed more favorably than ‘failing’ the treatment process. Offenders have even been quoted as saying they refused treatment because ‘their attorney advise[d] them not to,’ and ‘if they enroll, their written treatment assignments, assessments, and progress notes will be subpoenaed by courts and used to prove they continue to need inpatient detainment and treatment.’”
Originally appeared in “The Legal Pad” Volume 2, Issue 10 (October 20th, 2018) by Cyrus P. Gladden Ⅱ
