Some states have used civil commitment proceedings to remove habitual sex offenders from society for extended, sometimes indefinite, periods of time. Civil commitment for sex offenders can happen after they've already served the sentence for their crime and without having violated any other laws.

Instead of punishment for past crimes, this form of involuntary confinement is based on the risk that an individual may commit offenses in the future. Civil commitment isn't limited to sex offenders, as it has been used for those who pose a high threat to themselves or others and can include people with:

• Mental illness;
• Developmental disabilities; or
• Chemical dependencies.

The U.S. Supreme Court upheld civil commitments in Kansas v. Hendricks, finding that such laws don't violate the U.S. Constitution's double jeopardy or ex post facto clauses. Civil commitment laws are therefore constitutionally permissive and, while they exist at the federal and state level, can vary depending on your jurisdiction.

How Does Civil Commitment Work?

The typical civil commitment process is guided by standards focusing on the level of danger that individuals pose, not just their need for treatment. There are usually two stages in the process: (1) the petition stage; and (2) the court stage.

Civil Commitment for Sex Offenders at the Federal Level

Under the Adam Walsh Act passed in 2006, which governs civil commitment by the federal government, the U.S. Attorney General or any authorized official in the Department of Justice or Bureau of Prisons can initiate a civil commitment process by certifying an individual as a "sexually dangerous person." This can happen with prisoners who are pending release or with criminal defendants found incompetent to stand trial. Federal inmates who have a recorded history of sexual violence or child molestation usually go through a process to determine risk factors associated with their release which may lead to initiation of a civil commitment.

Once the federal agency determines an individual to be sexually dangerous, a civil commitment proceeding is then set before a judge to make a judicial determination of whether the person is in fact "sexually dangerous" warranting involuntary confinement. Although technically a civil hearing, this process involves many legal protections including the rights to:

• Be represented by counsel;
• Testify and present evidence;
• Subpoena witnesses; and
• Confront and cross-examine witnesses who appear at the hearing.

These hearings can also involve a psychiatric or psychological examination and report. Once both sides present their evidence, the court then makes a determination which, because it's not a criminal trial, is based on evidence that is "clear and convincing" rather than evidence that is "beyond a reasonable doubt." If found to be sexually dangerous, the court will place an individual in the custody of the Attorney General who maintains custody until:

1. A state assumes responsibility for custody; or
2. The person's condition improves to the point where he or she is no longer sexually dangerous.

Civil Commitment for Sex Offenders at the State Level

Many state laws mirror the federal process, although they can include different conditions or definitions of conditions subject to civil commitment. Under Minnesota law, for example, sexually dangerous persons are defined as those who have "engaged in a course of harmful sexual conduct" which creates a "substantial likelihood" of harm to another. However, it also allows civil commitment for individuals with "sexual psychopathic" personalities which includes those who:

• Are irresponsible for personal conduct with respect to sexual matters due to emotional instability, impulsive behavior, lack of customary standards of good judgment, or failure to appreciate the consequences of personal acts;
• Have engaged in a "habitual course" of misconduct in sexual matters;
• Suffer from an "utter lack of power to control" sexual impulses; and
• Are dangerous to other persons.

Many state procedures mirror the federal process, with a judge making commitment determinations after considering evidence on both sides that shows, by clear and convincing evidence, the likelihood of future harm. One major difference, though, is that many states also allow petitions to be filed by family members or medical providers.

Have Questions About Civil Commitment for Sex Offenders? Ask an Attorney

The lifelong consequences and stigma associated with a sex crimes conviction can be devastating. If you or someone you love has been arrested and charged with a sex crime or are facing civil commitment proceedings, now is the time to seek out legal help. A skilled criminal defense attorney in your area can help protect your interests and explain your legal options.