Treatment of Sex Offenders

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K.N. Daly
By contrast successful as-applied challenges strike down statutes only in narrow
circumstances. As-applied challenges may limit the application of a statute to only
certain circumstances or may allow the statute to be applied only under certain
conditions.
A Brief History of Constitutional Civil Commitment
Some form or another of civil commitments has long been recognized as socially
necessary and constitutionally permissible in this country almost since its inception
(“A History of Civil Commitment And Related Reforms In the United States:
Lessons For Today”, Developments in Mental Health Law , Paul S. Appelbaum, 25
Dev.MentalHealthL. 13, January 2006 ). Civil commitments are recognized as the
legitimate use of state and federal police power to protect society from dangerous
offenders. In order for civil commitment laws to be constitutionally valid, they must
have specific characteristics.
Civil commitment statutes cannot have a punitive intent. In Foucha v. Louisiana
a statute allowed for the civil commitment of an individual based on an individual’s
apparent antisocial personality when there was no other evidence of mental illness.
Foucha had been charged with a crime but found not guilty by reason of insanity. He
was detained in a forensic facility until doctors determined he could be released.
Doctors determined Foucha had previously suffered from a drug-induced psychosis
but had recovered from that temporary condition. There was evidence he suffered
from antisocial personality disorder for which there is no cure (Foucha v. Louisiana,
504 U.S. 71, 73—74 ( 1992 )).
The state sought to prolong Foucha’s detention based on his antisocial personality
disorder. The Court ruled the state failed in its burden to show by clear and
convincing evidence that the individual is both mentally ill and dangerous (Foucha
v. Louisiana, 504 U.S. 71, 80–81 ( 1992 )). Here, the court drew a clear line between
mental illness and someone suffering from a personality disorder.
Here, in contrast, the State asserts that because Foucha once committed a criminal
act and now has an antisocial personality that sometimes leads to aggressive conduct,
a disorder for which there is no effective treatment, he may be held indefinitely. This
rationale would permit the State to hold indefinitely any other insanity acquittee not
mentally ill who could be shown to have a personality disorder that may lead to
criminal conduct. The same would be true of any convicted criminal, even though
he has completed his prison term. It would also be only a step away from substituting
confinements for dangerousness for our present system which, with only narrow
exceptions and aside from permissible confinements for mental illness, incarcerates
only those who are proved beyond reasonable doubt to have violated a criminal law
(Foucha v. Louisiana, 504 U.S. 71, 82 ( 1992 )).
The statute at issue in Foucha was facially invalid because the statute was punitive
in its intent—the statute punished someone for having a particular personality
disorder.