As mentioned in my previous post about The Guilt Project: Rape, Morality, and Law by Vanessa Place, I plan to spend several posts responding to chapters and issues in the book.
I will start with a section entitled “Sexually Violent Predators: The Parapsychology of Guilt,” which discusses involuntary commitments for sexually violent predators. Most Americans support civil commitment laws. After all, who wants a bogeyman man lurking by the middle-school bus stop?
However, from a correctional programming perspective, civil commitments raise serious questions.
First, some background: In several states, the law allows for the civil commitment of sex offenders who have been designated Sexually Violent Predators (SVP). In practice, this means commitment to a state mental hospital for an indefinite period of time – often, for life. The designation of SVP might seem simple enough on its face; after all, juries already found these scumbags guilty of sex crimes, right? Doesn’t that make them predators by definition? Not quite. The designation involves more than just a review of the offender’s prior acts. Otherwise, it would never pass constitutional muster. After all, civil commitment occurs after an offender does his time for the crime.
The Supreme Court has specified that offenders who are designated SVP must have “a mental abnormality or personality disorder predisposing the individual to sexual violence, and a likelihood of future sexually violent behavior” (Levenson, 2004, p. 357). Since the offender can lose his liberty as a result of the SVP designation, due process is in order. In California, where Place (2010) practices, SVP designation requires “two or more sexually violent offenses” and “a diagnosed mental disorder making him a present danger to others” + being “likely to engage in sexually violent criminal behavior in the near future” (p. 59).
Neat and Tidy Theories
My criminology studies placed a high premium on neat and tidy theories. Ideally, a theory about the roots of crime leads to a related correctional theory to address that root cause. In fact, a good portion of our studies were dedicated to the policy implications of theories about “born” vs. “made” criminals – nature vs. nurture.
We studied commitments primarily as an incapacitation theory phenomenon. Incapacitation is fairly simple: Lock up the bad guys for as long as possible, and they cannot re-offend (at least, not outside the prison walls – anything on the inside is apparently fair game). Mandatory life sentences, truth in sentencing, and three-strikes-you’re-out-laws: incapacitation, all of them (Lilly, Cullen, & Ball, 2002). Where such sentences do not exist, the law has found a way to incapacitate sex offenders all the same: through civil commitments.
Incapacitation theorists do not care one lick about rehabilitation. They aim solely to stop criminals from committing future crimes (Lilly, Cullen, & Ball, 2002). Note that this is entirely different from a “just desserts” approach, wherein society inflicts punishment as harshly as possible solely for retribution (although, there is obvious overlap here – incapacitation can be retributive & vice versa). Incapacitation theories, by their nature, believe criminals “are beyond reform” (Lilly, Cullen & Ball, 2002, p. 227).
The problem with civil-commitment-as-incapacitation – at least from a criminological perspective – is that it runs headlong into an entirely incompatible correctional and criminological theory: the medical model of crime and corrections. The medical model, predictably, sees crime as treatable. If you can cure the hormone imbalance or psychosis or whatever, then you can stop an offender from striking again. Rehabilitation, obviously, drives correctional programming under this theory.
Theory vs. Practice in a Procedural Context
The Guilt Project approaches the issue in a different context: procedural justice. While criminology & procedural justice/law do overlap, they are not always one and the same. Criminology certainly has direct policy implications (particularly where it concerns correctional programming or lack thereof), but it does not always (and I would contend, rarely) considers questions of constitutional rights. Place’s (2010) chapter challenges readers to consider several issues:
If the courts can qualify “crime as a mental disorder, then real treatment would be the protocol” (p.73) But are the state hospitals engaging in “real treatment” or just plain “warehousing” (p. 73)?
Can the current testing instruments and diagnostic procedures + expert testimony accurately (and beyond reasonable doubt) identify sexually violent predators?
Are the same instruments incapable of detecting genuine rehabilitation?
Is there any way to know that incapacitation policies even prevent further sex crimes in the first place?
That third question is the one that haunts me, and when you really think about it, it drags most of the others into its undertow. If the state cannot detect (or simply refuses to acknowledge) legitimate rehabilitation, it likewise has no yardstick by which to measure the effectiveness of its treatments. The implication: nobody had any intention of treating offenders in the first place.
So the question I have is this: Do intentions matter in a procedural context? Does the theory need to match the practice? And if it doesn’t, what are the consequences?
References
Levenson, J. (2004, August). Reliability of sexually violent predator civil commitment criteria in Florida.
Law and Human Behavior 28(4), 357-368. Retrieved on January 18, 2010, from ProQuest Criminal Justice.
Lilly R.J., Cullen, F. T., & Ball, R.A. (2002). Criminological theory: Context and consequences. London: Sage.
Place, V. (2010). The guilt project: rape, morality, and law. New York: Other Press.