Politics
Uncivil Commitment
A gulag of prisons posing as hospitals
The first modern sex offender registry was born in 1990 in Washington state, after the conviction (and before the execution) of a serial child kidnapper, rapist, and murderer of unparalleled psychopathy and cruelty.1 Washington legislators claimed — incorrectly — that people with convictions for sex offenses are highly likely to reoffend and that law enforcement was impeded in apprehending them by a lack of information. A registry would enhance public safety and protect children from predation, they said — two more claims that turned out to be false. State and federal laws followed, each named for the victim of a spectacularly gruesome crime, usually a child. The 1994 Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act required states to set up sex offender registries. Its 1996 amendment, called Megan’s Law, forced states to post those registries publicly and to notify neighbors when certain registrants move into a community. The 1996 Pam Lychner Sexual Offender Tracking and Identification Act, named after the adult victim of an attempted rape who spent the rest of her life lobbying for the law, created a federal database of sex offenders. Jessica’s Law, established in 2005 in Florida in the name of the 9-year-old victim of an abduction-murder by a convicted sex offender, significantly lengthened sentences and expanded the registry’s restrictions and surveillance.
The federal Adam Walsh Child Protection and Safety Act of 2006, Title I of which is known as the Sex Offender Registration and Notification Act (SORNA), is probably the most consequential sex offense law yet. SORNA significantly increased the number and scope of acts considered criminal, as well as mandatory minimum sentences. Thanks to ever-toughening sanctions, people convicted of sex crimes constitute “the fastest growing segment of state and federal prison populations,” according to the political scientist Marie Gottschalk. Thirteen percent of all people in state prisons are currently serving time for sex offenses; in some states the proportion is much higher. Under penalty of losing federal funds, SORNA required states to create public registries of people with sex-related convictions. Sex offenders must register in the jurisdictions where they live and report to the authorities regularly, and adults remain on the registry for a period ranging from ten years to life. Many states, however, do not fully comply with the federal laws, because it’s cheaper to forgo the federal funds than to enforce the regulations; some stipulate shorter registration for certain people.
Nevertheless, as of 2016, the National Center for Missing and Exploited Children estimated the number of registered sex offenders at 900,000. And with every passing year, state lawmakers have continued to draw from a seemingly inexhaustible store of ideas for policing sex and sex offenders. State and local ordinances throughout the US bar registered offenders from residing within a certain distance of schools, parks, bus stops, or other places children might congregate, often with the effect of banishing them from entire counties, and virtually whole states, as is the case in Florida. The restrictions are often as absurd as they are severe. Many jurisdictions don’t let registrants get a trucker’s license, monitor elections at a polling place, shop in malls, or open their doors on Halloween. Police departments can’t keep up with the lengthening rolls. Registrants have told us about going to their local department to check in, only to sit there all day and be sent home without reporting. Despite the registrants’ due diligence, not checking in can be considered a violation of parole.
Under the sex offense legal regime, sexual “deviance” confers guilt while “normality” equals innocence. The category of normal and innocent — white, heterosexual, cisgender, sexually ignorant, desireless, and not disabled — is so narrow that even many children cannot squeeze into it. Teens have a harder time, and adults of any gender can forget about it. On the other hand, the category of deviance — criminal deviance — is extensive. A “sex offender” can be a man who exposes his flaccid penis to a woman in the park, or a man who climbs through that woman’s bedroom window and holds a knife to her throat while he rapes her. A sex offender can be a habitual incest perpetrator, a teenager who texts a picture of her naked breasts to a lover, or a frail Alzheimer’s patient locked in indefinite postprison preventive detention in a prison-like psychiatric institution, also known as “civil commitment.”
Asked how she defined sexual deviance, the therapist in Dallas replied, “Deviance is anything that’s against the law.”
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The typical sex offender in the movies, or on TV, is pasty and pale, which is accurate, in a way: sex offenders constitute the only criminal population of which white people represent roughly the same proportion as they do of the general population — about two-thirds. While six in ten people in prison are nonwhite, about one-third of convicted sex offenders are. Still, in the broader sex offense legal regime, African Americans are overrepresented, making up 22 percent of publicly listed registrants nationwide, but just 13 percent of the US population. Compared with their white counterparts, African Americans are subject to more punitive postprison restrictions for sex crimes. Data suggests that the same racial patterns pertain to juvenile sex offenders. Young men of color, in particular, receive harsher sentences, and African Americans are more likely to be falsely accused and/or convicted of sexual assault than their white counterparts. The regime has many ways of policing the boundary between normality and deviance, but it is no surprise that the “deviants” policed with the most zeal are the same people regularly policed and caged by the criminal legal system at large.
In a grubby clinic across from a trash-strewn lot on the edge of Dallas, about a dozen men and one woman sit in a circle of plastic chairs. The woman, a therapist who has invited Judith to observe, asks the group if Judith’s presence is OK with them. They have been compelled to attend and have great incentive to please the therapist — they can hardly say no.
The session begins. Each participant reports on the week or reads from a completed assignment; the other members and the therapist, who is white and middle-aged, comment. First up is James (not his real name), a Black man with dreadlocks, about 25 years old, who was a college football player when he was arrested for having sex with a high schooler he met at a game. He reads from folded-up pages he’s filled in.
James (reading): Outlets: One-night stands. Where and when did you start engaging in the behavior? Freshman year of college, at 19. How often? At least two to three times a week.
Therapist (in a sympathetic tone): How many people? Thirty, fifty? More than a hundred? You have to have an estimate that’s in a range.
James: Probably forty, forty-five.
Therapist: Write that down.
James: What did you get out of this behavior? Pleasure and self-satisfaction. Why did you continue? Because I enjoyed it . Was this behavior a substitute for something else? I put “no,” but the group might come up with something else.
Duane (thirtyish, white, a senior member of the group): I’d say it was a substitute for a stable relationship .
James: You’re probably right . I just thought it was the lifestyle of a football player.
Therapist: Did you feel you were part of a peer group? Did you get self-esteem?
James: Maybe.
Duane: Put “sexual gratification, peer acceptance.”
James: The substitute was not to get close to anyone.
Therapist: Now we’re getting close to it . You falsely assumed that sex equals intimacy. That felt pretty hollow, at the same time as feeling pressure from your peers. You saw women in general as having value only for what they could give you — money, sex, not as human beings or people with value all on their own. And now?
James: I definitely think different . (He pauses, waits for more comments, then goes back to the papers in his hand.) Feelings after engaging in the behavior? I felt good. I didn’t have no remorse.
Therapist: Temporarily good, then shallow again? Then there was that loneliness, that neediness?
James (dutifully): It became an addiction, a cycle.
Therapist: So write that down.
James: Yes, ma’am.
This is “sex offender treatment” (SOT), a main element of the so-called containment approach to sex offender management, introduced in the late 1990s by Kim English, the research director of the Colorado Division of Criminal Justice. SOT is a condition for sex offender probation across the country; some registrants shuttle in and out of treatment for the length of registration.
Containment and SOT are based on the same false notion that justifies decades-long registration: that “sexual offending” is a unique, incurable psychiatric disorder that must be kept perpetually under control, lest it compel the person to harm again. Registrants themselves report widely varying experiences of SOT. Some have told us that they found it soul-crushing, while others report that they gained a lot from it, which makes sense. It is almost axiomatic that people who do serious sexual harm have suffered harm and trauma themselves. SOT might be their first opportunity to talk about their childhoods, express their feelings, or try to understand their behavior.
Still, containment is typically described as “victim centered”: its priority is the safety and healing of the harmed person. In practice, this often means an aggressive disregard for the needs of the patient — the “offender” — most significantly, for the honesty, mutual trust, and confidentiality that most therapists believe are the prerequisites of a productive therapeutic relationship. Sex offenders are never taken at their word, because, in effect, they are considered too sneaky to trust. “Secrecy is the lifeblood of sexual offending,” is how the Texas Council on Sex Offender Treatment put it. Which explains why “treatment providers cannot guarantee confidentiality.” Providers share whatever information they choose with parole officers, who also receive the results of regular polygraph tests. Failure to make sufficient progress in treatment, as determined by the provider, is a violation of the conditions of the registry; in some states this is a felony punishable by incarceration.
The SOT industry likes to argue that sex-targeted treatment methodologies reduce reoffense rates and improve clients’ mental health — claims for which there are no grounds and plenty of dissenting evidence. For instance, California’s twenty-year Sex Offender Treatment and Evaluation Project compared three groups of people in prison with rape and child abuse convictions, some of whom volunteered for treatment and got it; some who volunteered and did not; and some who qualified for treatment but chose not to participate. The study, published in 2005, stated that “no significant differences were found among the three groups in their rates of sexual or violent reoffending over an eight-year follow-up period.” Phil Taylor, a therapist who used to be a licensed sex offender treatment provider and still works with men who were abused, put it this way: “A lot of these guys might have been abused sexually or emotionally as children or are stuck in infantile perceptions of themselves.” For their own well-being and other people’s safety, he said, “they need therapy. What they don’t need is ‘sex-specific’ treatment.”
The overlap of treatment and punishment in the sex offense legal regime is a part of a process critics refer to as medicalization: the reconception of differences or problems as medical or psychiatric disorders — frequently constructed as biologically caused — that need to be prevented, diagnosed, or treated. Marginalized sexual desires or acts considered immoral at a given time, like homosexuality, are often subject to medicalization, turning “badness to sickness,” as sociologists Peter Conrad and Joseph Schneider write in their 1980 classic Deviance and Medicalization. But the slippage is not just between nature and culture; it is also between the moral and the legal. Asked how she defined sexual deviance, the therapist in Dallas replied, “Deviance is anything that’s against the law.”
When illness is justification for punishment, the sicker the sex offender, the longer the prison sentence, the more drawn out the registration, and the stricter its terms. And if the aim is longer punishment, an even more serious diagnosis is called for. In 1990, in the new Community Protection Act, Washington state legislators invented one: a “sexually violent predator” (SVP) is a person who suffers from a “mental abnormality” that results in a predisposition to commit sex crimes. The diagnosis, like the clinical designation “sex offender,” is circular: it is based on the fact that an individual has committed sex crimes before. Under the law, an SVP could be locked up in psychiatric civil commitment indefinitely after the completion of a prison sentence, even if they’d been declared sane enough to stand trial and be convicted.
In 1999 the American Psychiatric Association condemned the SVP diagnosis as “vague and circular” and a “misuse of psychiatry” designed to “effect nonmedical societal” — that is, punitive — “ends.” Three scholars who reviewed the lobbying, drafting, and passage of Washington’s SVP legislation concluded in 1992 that civil commitment had no therapeutic or criminological basis. Looking at data from California and other research on the negligible effect of sex offender treatment, they concluded: “It seems to follow, therefore, that the explanation for the Community Protection Act is political.”
Nevertheless, nineteen other states, Washington DC, and the federal government followed Washington’s lead and enacted SVP laws, creating a gulag of prisons posing as hospitals whose captives are invisible and forgotten by pretty much everyone but their loved ones. As of March 2020, there were 6,300 people in civil commitment, according to the Prison Policy Initiative; almost all are male. Some are the storied “worst of the worst,” like the man the Community Protection Act was passed to contend with. Others have spent their entire adulthood behind bars, like the now middle-aged man in Illinois who was incarcerated as a teen for repeated indecent exposure and then was civilly committed after serving time in an adult prison for what he says was consensual sex with a 15-year-old when he was 20. Some are in for child porn possession. Others remain in limbo, like Galen Baughman, who sits in a Virginia jail cell contemplating life in lockup while his lawyers appeal his conviction as an SVP. Civil commitment is prison, without the sentence or release date.
Almost every “sexually violent predator” got that label through the use of an actuarial risk assessment tool designed for adult males facing sex offense convictions: the Static-99R. This instrument assigns points for fixed, or “static,” attributes, such as the age of the person and his victim, to produce an algorithm that purports to determine the odds of reoffense. The factor given the most weight is prior convictions for both sexual and nonsexual crimes, as well as charges that did not necessarily end in conviction — all disadvantages for people of color, who are disproportionately arrested, charged, and convicted.
In their evaluations, sex-specific actuarial tools consistently show “moderate” accuracy in predicting recidivism; a recent meta-analysis found that the Static-99R gets it right about 60 percent of the time — “not much better than a coin toss,” in the words of one expert. Even R. Karl Hanson, one of the Static-99R’s authors, has published an analysis of statistical models of recidivism that casts doubt on his own creation, and on the wider assumption that a rap sheet is a predictive document. After ten years, the risk of reoffense for people with records of sexual or nonsexual offenses was about the same as for people with no criminal record. “People change,” Hanson averred. “Desistance” — ceasing to commit crimes — “is the norm.”
Much sex offense statute and policy is rationalized by the claim that sex offenders are highly likely to commit another sex crime. Research has firmly discredited this claim — it is in fact the opposite of the truth: people with sex convictions have the lowest rate of recidivism of any “violent” criminal population. Yet this belief has proven almost indestructible, the perfect factoid upon which to fix unnamable fears. It first appeared in the legal record in McKune v. Lile, a 2002 Supreme Court case upholding a Kansas sex offender restriction. Writing for the majority, Justice Anthony Kennedy reasoned that sex offenders pose “a frightening and high risk of recidivism” — up to “80 percent.” In fact, myriad studies calculate their conviction rates for new sex crimes at as low as 3.5 percent.
Where did the 80 percent figure come from? According to a much cited 2015 article by Ira Mark Ellman and Tara Ellman published by the University of Minnesota Law School, its origin was an unsubstantiated claim by a counselor writing in Psychology Today in 1986. The Ellmans found the words “frightening and high” in 91 judicial opinions, as well as in briefs in 102 cases — legitimizing countless draconian restrictions and penalties.
Of anything in the entire sex offense legal regime, the civil commitment edifice may be the hardest to demolish. In 1997, in Kansas v. Hendricks, the Supreme Court ruled that civil commitment of people convicted of sex offenses is not criminal but administrative, not punitive but therapeutic. This meant that continued detention without additional conviction could not be rejected as unconstitutional double jeopardy, or as cruel and unusual punishment. But that is exactly what it is.
In recent years, there has been mixed progress. Armed with a decades-long record of abuses and failures — as well as the evidence that civil commitment has “no discernible impact on the incidence of sex crimes” — longtime critics of SVP laws, along with newer allies including the ACLU, have brought legal challenges to civil commitment and gotten positive rulings. In 2015’s Karsjens v. Jesson, for instance, US district judge Donovan W. Frank issued a scathing opinion declaring Minnesota’s SVP law unconstitutional in practice: How could it claim to be therapeutic, when in two decades not a single resident had been unconditionally released? “The overwhelming evidence at trial established that Minnesota’s civil commitment scheme is a punitive system that segregates and indefinitely detains a class of potentially dangerous individuals without the safeguards of the criminal justice system,” Frank wrote. In September 2015, citing similar evidence, a Missouri judge banned the lifetime detention of individuals who had served their sentences “no matter how heinous their past conduct.” The following year, a North Dakota court came to the same conclusion.
But while litigation can hold the promise of progress for detainees in civil commitment, it may instead bring about the opposite. In January of 2017, the Eighth Circuit Court of Appeals reversed Frank’s ruling in Karsjens v. Piper, and that October the US Supreme Court denied a petition for review, leaving that opinion in place. The federal district court in Missouri reversed its own ruling on the unconstitutionality of that state’s law, citing Karsjens v. Piper. For detainees, a case that could have been liberating — in every respect — became another brick in the wall of precedent against them.
Fortunately, detainees have found other ways to resist the impositions and degradations of civil commitment. In 2007 residents of Coalinga State Hospital in California went on strike to protest the conditions of their life imprisonment by refusing to participate in their sham “treatment.” The protesters constituted three-quarters of the six hundred men locked up there. A smaller contingent also went on hunger strike.
After eleven years of letters to the press, agency heads, and government officials; conference calls with legislative aides; and online posting of taped testimony from despondent residents raised no reaction, the people held at Coalinga took a different tactic: tax revolt. When the town of Coalinga put a sales tax increase to a local plebiscite, those incarcerated at the hospital saw an opportunity to trade their support for the tax for certain amenities, such as a van for visitors traveling from the bus station to the distant facility. The city officials ignored their entreaties, so the residents — who, unlike people in prison in most states, retain the right to vote — responded in kind. They built a vote-no campaign within the facility around the pennies the tax would add to the cost of a commissary hamburger and defeated the tax by a few dozen votes. In a move that was obviously not a coincidence, town officials subsequently claimed there was a pornography “epidemic” at the facility and locked it down. The facility’s staff then confiscated all electronic devices just after coercing residents into scanning and shredding their own legal and medical records. Janice Bellucci, executive director of the Alliance for Constitutional Sex Offense Laws, sued to get the residents’ belongings back, but at that point it was too late: most had already been destroyed.
In 2018, a resident of the Coalinga facility attempted to run for city council as a write-in candidate. The mayor and council chair arbitrarily declared his candidacy illegitimate, and in the end he declined to go forward with the election.
Outside the gates, friends and families of people in civil commitment have assumed roles that range from protesters to lobbyists to citizen participants in the governance of the facilities. For instance, since about 2013, Kansas’s Families and Friends of SPTP Residents — which advocates for people held in the state’s Sexual Predator Treatment Program (SPTP) — has built alliances with psychologists and disability rights advocates, particularly the local chapter of the National Alliance on Mental Illness. The chapter’s then director, Rick Cagan, was appalled that Kansas was pouring 60 percent of its shrinking mental health budget into the SPTP; by 2017, Kansas had spent almost $300 million on the program. “At the outset it may have some public purpose in terms of public safety, but from all of our analysis it is not a program that has any integrity,” Cagan said.
One of the leaders of Families and Friends also coordinates a national civil commitment network, including residents, which meets in a monthly conference call under the aegis of the prisoners’ rights organization Citizens United for Rehabilitation of Errants (CURE). But the Kansas group has not moved to shutter the SPTP facility. Instead, it submitted a long position paper to the legislature asking for “fixes to deficiencies” in the program, such as regularized and legible treatment levels and better staffing, and has worked with state agencies to implement them. For now, at least, it appears that the organization has chosen to oil the parts rather than smash the machine. This tension burst through the phone lines during one of the CURE-facilitated monthly civil commitment conference calls. Listening as resident representatives reported, one by one, the same conditions they’d reported the month before and the month before that, one woman — the mother of a young man with an intellectual disability who is civilly committed in Illinois — could no longer contain her exasperation. “I thought we were going to shut these fucking things down,” she shouted, “not just talk about how bad they are!”
People who commit sexual harm have commonly experienced trauma as children or adults. Like most of us at some point in our lives, they could use therapy. But civil commitment is prison, and incarceration is psychologically destructive; indefinite detention borders on psychological torture — the opposite of therapy. Furthermore, the “treatment” arm of the sex offense legal regime asks us all to collaborate, recruiting the public, helping professions, schools, religious institutions, and even families to police the state’s boundaries between sexual normalcy and deviance. The radical approach to civil commitment is to stop thinking of sexual violence as a sociopathology from which the community must be safeguarded, and to turn instead to social and environmental approaches that engage the community in helping people who have done harm to live nonviolent lives.
Around the country and the world, an increasing number of criminal legal systems facilitate nonmedical, community-based alternatives to SOT that have the potential to rebuild lives, rather than destroy them with blame and shame. A circle of support and accountability, or COSA, is one such restorative practice. The circle consists of a person with convictions for what the state calls moderate to serious sex offenses (and other “violent crimes”) who is recently released from prison, plus three or four community members, often including a paid coordinator. In weekly meetings and interim coffee, church, or basketball dates, the circle helps the “core member” with the basics of reentry, such as finding housing or applying for food stamps. By driving the core member to the supermarket or doing research online, they can ease the constraints of parole (e.g., no driving, no internet) and reduce the odds of its violation. The COSA assuages the isolation of people who are almost universally reviled. Starting with the nomenclature (core member, not perpetrator or offender), participants model relationships of trust and mutual accountability informed by humanistic values; they treat the core member as a person worthy of affection, respect, and forgiveness. Equally important, they expect the core member to be accountable to them as a peer and an adult.
In Canada — where the program focuses on people who have been convicted of compulsive or violent sexual acts — COSAs have achieved a 70 percent reduction in recidivism. In a study of 260 Vermont men released from prison, half with sex offenses, half without, those who had COSAs were convicted of new felonies at one-third the rate of a closely matched population who did not have access to them. Minnesota’s COSAs lowered the “risk of rearrest for a new sex offense by 88 percent.”
In most places, COSAs are integrated into a criminal legal system, which, among other things, allows the program to be scaled up. But it also makes community members “employees” of the corrections department, which means they are expected to report the core member if they see him violating parole, say, by staying out after curfew or drinking a beer. This is contrary to the spirit of the COSA, which redefines accountability from “repaying your debt to society” by spending years inside a cage to showing up for other individuals and contributing to a community. For that matter, the framework of volunteerism that currently sustains COSAs — whose implication is that the core member is the beneficiary of altruism — is a source of concern. We need to support one another not because we have a cause, as the law professor and organizer Dean Spade writes, but because we are trying to live “a life focused on our commitments to radical transformation.”
The sex offense legal regime is a perfect example of what the German sociologist Ulrich Beck calls the risk society, in which people, through technology and capitalism — and, we would add, white supremacist policies — create catastrophic hazards like global warming and economic precarity, and then turn to technology, capitalism, and authoritarian government to manage the risk and “protect” us from the harms it has produced. Each costly technology purported to manage risk — a public registry, Amber Alerts — adds to the sense of an ever-present, uncontrolled, and uncontrollable menace: the “predator.” Rather than encouraging us to look after each other’s children, it recruits neighbors to inform on any adult who might enjoy hanging out with children, while the fear business, as Beck calls it — merchants of nanny cams and Tasers — rakes it in. Each year, the United States “spends over $100 billion on police and over $50 billion on the judiciary,” Gottschalk reminds us in Caught: The Prison State and the Lockdown of American Politics. “One in eight state employees works in corrections.” And that’s just the government.
What we need are paradigm shifts: from justice as retribution to justice as healing, from conviction to accountability, punishment to repair, and rehabilitation to transformation. Movements for transformative and restorative justice are not just for institutions, nonprofits, or, simply, someone else. All of us need to step away from the systems to which we have outsourced the responsibility to deal with harm and make us safer.
If we want to end violence, we have to divest from the industries of punishment and surveillance and invest in what allows people and communities to flourish. And to invest in economic, political, and social systems that put people — all people — before profit, we must never abandon children, or anyone else, to endure or defend themselves when they are subjected to sexual harm. But the United States abandons people in countless ways — leaving them without decent housing, health care, clean water, and so much else. The sex offense legal regime displaces real protection with a false sense of security at the same time as it incites terror to justify itself. Like the rest of the criminal legal system, it disproportionately targets people of color. It exiles a permanent class of sexual pariahs — now nearly a million — from the rights of residency, citizenship, and humanity itself. It is long past time to overthrow the regime.
Ubiquitous sexual and gender violence and the state’s brutal response to that violence are two huge and interlocking problems — both expressions of the same masculinist “might-makes-right” culture. In this essay we focus mostly on the latter, but it is, of course, impossible to overstate the constant presence and plague of the former. The Feminist and the Sex Offender: Confronting Sexual Harm, Ending State Violence, from which this text is adapted, asks: How do we have pleasure without danger and accountability without punishment? The book demonstrates how anticarceral feminist responses to sexual harm both benefit survivors and help to change harm-doers. It explores ways to reduce violence while critiquing the draconian laws and practices devised to punish and manage so-called sex offenders. ↩
