Methodology for the analysis of civil commitment detention times and costs

The authors expand their methodology for quantifying and comparing civil commitment processes by developing new formulas for the determination of the average commitment detention time and cost. They also examine the effects of specific changes in commitment procedures on the average detention time and cost. Using data from Oregon's civil commitment process, the authors present several examples of the practical application of their methodology and conclude with a discussion of its major administrative and research implications.     

Outpatient civil commitment in Texas for management and treatment of sexually violent predators: a preliminary report

Texas established in 1999 outpatient civil commitment for sexually violent predators discharged from prison with or without parole. These individuals suffer from a behavioral abnormality, have been convicted of two or more sexually violent crimes and are deemed likely to reoffend. Civilly committed individuals are managed by a team composed of case manager (supervision), treatment provider, public safety officer (global positioning satellite monitoring), and other professionals. Treatment consists of individual and group therapy using a standard workbook. Out of 21 committed individuals, 7 are in the treatment, 1 died, 10 are in custody after breaking conditions of commitment that constitute a felony, and 3 await release from prison. Cost of outpatient civil commitment is less than $20,000/person/year compared with more than $100,000 for inpatient commitment in other states. Texas has found outpatient civil commitment to be an effective and relatively low-cost way to protect the public and treat the offender.     

The effects of statutory change on the civil commitment of the mentally ill

Several states have revised their civil commitment statutes in recent years. A majority of the recent revisions reflect judicial directives to provide more explicit commitment criteria, but in some instances, criteria have been broadened in reaction to the difficulty of getting some individuals hospitalized under strict criteria. Such statutory changes have impacted considerably on both process and outcome of the civil commitment system. Adoption of explicit commitment criteria has resulted most visibly in substantial reduction of hospital admissions and census. The present study examines the impact of explicit changes in commitment criteria in Florida following the 1982 enactment of amendments to the Baker Act. A total of 80 commitment hearings are reviewed before and after the law took effect to determine procedural effects of the law on degree of defense counsel advocacy, client dispositions, and on the court's adherence to more explicit criteria. State hospital admissions, discharge, and census information is examined in order to identify the larger impact of 1982 statutory changes on the commitment system. Evidence from hearings and state data suggests that changes in the Florida law impacted significantly on both process and outcome of the civil commitment system. Clients referred to commitment hearings are more dangerous, and may represent a new hard-core group remaining after more explicit eligibility criteria are applied by local intake, and emergency detention facilities. State hospital admissions and census in Florida declined significantly following enactment of the 1982 law, consistent with findings from other states enacting similar statutory reforms. Implications for deinstitutionalization policy and administration are discussed.     

Outpatient civil commitment: a dangerous charade or a component of a comprehensive institution of civil commitment?

This article examines three criticisms frequently directed toward preventive commitment as one form of outpatient commitment. These criticisms contend that preventive commitment (a) abandons the dangerousness criteria for civil commitmnet, (b) promotes unwarranted inpatient commitment of those who do not meet civil commitment criteria, and (c) undermines important individual liberties by diluting the right to refuse treatment. Understanding and evaluating these criticisms requires analysis of the intersection among empirical, conceptual, and justificatory claims. According to the analysis presented here, advocates of preventive commitment can defend a legitimate role for preventive commitment. This analysis applies to preventive commitment as a dispositional alternative within a comprehensive institution of civil commitment involving distinct parens patriae and police power components.     

Dangerousness of civil commitment candidates

This study followed a large, statewide sample of civil commitment candidates both in and out of the hospital for 6 months following their postcourt hearings to determine their postcourt dangerousness. It objectively measures dangerousness by dividing it into five legal components of behavior: (1) type, (2) object, (3) frequency, (4) weapon/means, and (5) severity of outcome. Using data from ward charts, readmission evaluations, recommitment affidavits, and arrest and community mental health center records, it describes candidates' dangerousness in terms of those, five components and compares that dangerousness with the alleged dangerous behavior that brought them into the civil commitment process. It finds that candidates do not tend to be dangerous in the 6 months following their court hearings.     

Sexual predator civil commitment: a comparison of selected and released offenders

This study compared two groups of sex offenders who were considered for civil commitment under Florida's Jimmy Ryce Act: Two hundred twenty-nine sex offenders who were recommended by forensic evaluators to be civilly committed and 221 sex offenders who were recommended for release. It was hypothesized that selected offenders would be more likely to display risk factors for sex offense recidivism than those who did not meet criteria. Data analyses revealed that selected offenders, as a group, scored significantly higher on actuarial risk assessment instruments. There were also significant differences between the groups on other risk factors that have been empirically correlated with sexual recidivism. Selected offenders had higher frequencies of paraphilia diagnoses and antisocial personality. These findings supported the hypotheses and suggested that evaluators are correctly selecting for civil commitment those sex offenders who have a mental abnormality predisposing them to sexual violence and who are at higher risk for reoffense.     

REPRESENTING RESPONDENTS UNDER NEW CIVIL COMMITMENT STATUTES: An Analysis of Counsel's Role In and Out of the Courtroom

Using quantifiable attorney behavior measures, instead of outcome measures, both before and during court hearings, this study attempts to evaluate legal representation under reform civil commitment procedures. Counsel representing involuntary commitment respondents full time were well prepared. Court appointed counsel, though better prepared than reported in studies done prior to reform, did not fully investigate their cases. Lack of adequate preparation was associated with a passive role and a non adversary position in court.     

The structure of civil commitment

The contents and provisions of civil commitment codes are shaped by a number of influences. This article examines those influences and categorizes them as either falling within the civil commitment system itself or as being external to that system. From an analysis of those internal and external influences, it is concluded that the structure of civil commitment is very much dependent upon the environment in which such laws operate and upon the intricate and integral relationship between civil commitment and other important forms of mental health legislation (incompetence to stand trial, the insanity defense, etc.).     

Employing the Mental Health System to Control Sex Offenders After Penal Incarceration*

In the 1930s, several states provided civil commitment in mental institutions for certain sex offenders. Civil commitment of these sex offenders abated after most states repealed their statutes in the 1960s. In the 1980s, however, these statutes returned, as outraged citizens deplored the offenses of repeated sex offenders. The author of this essay examines civil commitment statutes for sex offenders in Washington and Minnesota, two of the leading states in this area, as well as recent rulings from each state's Supreme Court upholding the constitutionality of these statutes. Particularly, the author focuses on the psychiatric or mental health discussions by the justices in the majority in both state rulings. Furthermore, the author criticizes the legislatively defined mental abnormality statutes that sanction these commitments, proposes use of the ordinary civil commitment statutes for individuals who are seriously mentally ill, and concludes that sex offenders who do not meet the criteria for traditional civil commitment should be handled by the criminal justice system.     

Factors predicting selection of sexually violent predators for civil commitment

This study investigated the degree to which independent variables predicted civil commitment selection in a sample of 450 sexual offenders evaluated for civil commitment as "sexually violent predators" under Florida's Jimmy Ryce Act. Using logistic regression, this study examined the relationship between the dependent variable, commitment recommendation, and several sets of independent variables. Results revealed that the statistically significant predictors of recommendations for sex offender civil commitment were diagnoses of pedophilia and paraphilia not otherwise specified (NOS), psychopathy, actuarial risk assessment scores, younger age of victim, and nonminority race (R2 = .88). Discriminant function analysis confirmed that these variables correctly predicted commitment recommendations in 90% of cases. Sex offenders recommended for commitment consistently met the criteria set forth by the U.S. Supreme Court in Kansas v. Hendricks (1997): They suffered from a mental abnormality predisposing them to sexual violence, and risk assessment determined that they were likely to reoffend.     

The Effect of Framing Actuarial Risk Probabilities on Involuntary Civil Commitment Decisions

Despite a proliferation of actuarial risk assessment instruments, empirical research on the communication of violence risk is scant and there is virtually no research on the consumption of actuarial risk assessment. Using a 2 × 3 Latin Square factorial design, this experiment tested whether decision-makers are sensitive to varying levels of risk expressed probabilistically and whether the framing of actuarial risk probabilities is consequential for commitment decisions. Consistent with research on attribute framing, in which describing an attribute in terms of its complement leads to different conclusions, this experiment found that the way actuarial risk estimates are framed leads to disparate commitment decisions. For example, risk framed as 26% probability of violence generally led decision-makers to authorize commitment, whereas the same risk framed in the complement, a 74% probability of no violence, generally led decision-makers to release. This result was most pronounced for moderate risk levels. Implications for the risk communication format debate, forensic practice and research are discussed.     

Civil commitment from a systems perspective

Responsibility for the civil commitment process currently is shared between the justice and mental health systems. Neither system, however, owes substantial loyalty to the goals of civil commitment. The result, as documented in numerous empirical studies, is that the ostensible goals of the process are routinely subverted in favor of other systemic interests. Most reform efforts to date, focused on altering legal rules to conform to doctrinal desiderata, have ignored this problem, leading to uneven and disappointing outcomes. A systems perspective on these problems suggests that one means of dealing with systems whose loyalty to a task is questionable is to create an independent system with the incentives to give primacy to the task in question. The implications of this analysis for civil commitment are explored.     

A population at risk: civil commitment of substance abusers after Kansas v. Hendricks

In its 1997 decision, Kansas v. Hendricks, the U.S. Supreme Court radically changed the face of civil commitment. In finding the Kansas Sexually Violent Predators Act constitutional, the Court liberalized the first constitutional requirement for involuntary commitment from "mental illness" to a much broader "mental abnormality" standard, without correspondingly restricting the second requirement of dangerousness. The decision essentially authorizes states to civilly commit a broad range of individuals without sufficient due process protections. This Comment explores the possibilities for expansion of civil commitment in the wake of Hendricks. It argues that the holding was unjustifiably broad, focusing in particular on the potential danger facing substance abusers. In conclusion, it offers several suggestions for mitigating the potential misuse of this dangerous precedent.     

Conformance to Attorney Performance Standards

Legal representation of clients facing involuntary commitment to a maximum security hospital was investigated. Eighty-nine hearings were observed during a 5-week period immediately following implementation of Attorney Performance Standards, which define minimally adequate representation. The 10 participating attorneys reported their preparation for each case, and a summary measure of advocacy was derived. Generally, attorneys engaged in all required activities that could be accomplished in a single preparatory visit to the hospital. The level of advocacy in cases where clients faced civil commitment was compared to cases where the client faced criminal commitment. The unexpected finding that the level of advocacy for civil clients was significantly lower than that for clients facing commitment under any other legal category, was discussed in light of the degree of dangerousness presented by civil clients, the effects of deinstitutionalization, and emerging social policy.     

The prediction of violent behavior during short-term civil commitment

The predictive validity of the clinical judgment of dangerousness in the context of short-term civil commitment was studied prospectively by comparing the behavioral scale ratings of both verbal and physical aggression between 37 persons committed on the basis of "danger to others" versus 31 persons committed on other grounds. No statistically significant difference was found between these two groups of detainees with regard to the levels of aggression measured during their approximately three-day detention. This finding is in agreement with abundant previous research which documents the inability of psychiatrists to accurately predict future dangerousness, prompting the author to suggest that the "dangerousness" criterion for civil commitment be rejected. Although society is unlikely to resurrect the broadly defined "in need of treatment" criterion because of its historically demonstrated ever present potential for abuse, the author suggests an alternative criterion for civil commitment which, in perhaps a more well-defined and more practical way, would allow the state to maintain its doctrine of parens patriae toward mental patients.     

Strategies for an empirical analysis of the prediction of violence in emergency civil commitment

Dix (1976) recently has proposed that a “true experiment” be conducted to assess the validity of predictions of imminent violence. A random sample of persons predicted to be iminently violent would be denied emergency civil commitment in order to test whether they do, in fact, commit a violent act. This article analyzes Dix's proposal and finds that it presents an unacceptable level of risk to the community. Four alternative methodologies by which preliminary data can be gathered on the validity of predictions of violence in emergency civil commitment are described.     

Sexually violent predator laws and the liberal state: an ominous threat to individual liberty

No other country has taken the idea of the liberal state - a government that relies on the rule of law to limit state power and maximize individual liberty - as seriously as the United States. But now many states are manipulating the government's civil commitment authority to indefinitely confine sex offenders who have served their criminal sentences and are entitled to their freedom in the community. This new system of preventive detention masquerading as civil commitment poses an ominous threat to individual liberty and to the continued vitality of the liberal state.     

The aged and the dangerousness criterion in involuntary civil commitment

Using data from official court records and observations in court hearings throughout one state with a typical reform statute, this study investigates the elderly against whom petitions are brought for involuntary civil commitment. In relation to their proportion in the population, the aged are only slightly more likely than younger persons to become respondents in commitment proceedings; but they are over three times more likely to remain involuntarily hospitalized and to be subjected to recommitment proceedings. Once brought into the process, they are more likely than younger respondents to be committed and are more likely to be successively recommitted. In analyzing court testimony, focus is on evidence of dangerousness since involuntary commitment is limited to the mentally ill who are dangerous. Almost half of the young old initial respondents with formal hearings have no testimony alleging dangerous behavior and more than half of the old old have no such testimony. The alleged dangerous acts of the aged tend to be unintentional harm rather than assault.     

Psychiatric expertise in civil commitment: Training attorneys to cope with expert testimony

The learned treatise approach to challenging the psychiatric expert witness in civil commitment proceedings was investigated in the present study. An Ad Litem's Handbook, modeled after Ziskin (1975), was written and distributed to a group of attorneys who also received workshop training in aggressively defending the proposed patients at civil commitment hearings. TheseTRAINED attorneys were compared with control groups of attorneys not receiving the training intervention in terms of trial tactics, cross-examination profiles, and other courtroom behaviors in order to assess the impact of such training and the impact of the learned treatise approach in civil commitment hearings. Results indicated that, in spite of explicit endorsement of such tactics by the court,TRAINED attorneys did not alter their courtroom behaviors significantly in directions suggested by the special training and, like their untrained counterparts, did not aggressively challenge the psychiatric expert whose testimony argued for commitment of their clients.The research reported here is based primarily on the author's doctoral dissertation, completed at the University of Texas at Austin, May 1977. The author would like to acknowledge the assistance of Joseph Horn, Ph.D., dissertation committee chairman and the other members of the committee for their guidance.