Posted: 04/04/07

The weight of civil commitment
Vt. Senate votes unanimously on sex offender proposal

Brad Cole | contributing writer
bcole@smcvt.edu

Sex offenders in Vermont may start to face stricter requirements upon release from prison. On March 20, the Vermont State Senate voted unanimously to approve a proposal giving the state more control over sex offenders deemed likely to repeat their crimes.

The proposal will increase sex offender registry requirements for non-compliant high-risk sex offenders. Vermont Gov. Jim Douglas says the bill is an important step forward in protecting the state and the public.

History of the proposal

Traditionally, civil commitment is the practice of keeping sex offenders past their release dates for mental health treatment. Douglas’ original civil commitment proposal was to hold violent offenders who show signs of recidivism in jail beyond their release dates. Had his proposal passed, it would have been the civil commitment bill in the nation not limited to sex offenders.

The Vermont House of Representatives rejected this civil commitment plan in March 2006 by a vote of 77-56.

A year later, the Senate approved Bill S. 123. This proprosal would release high-risk sex offenders, but impose stricter security measures, requiring them to enroll in the state’s sex offender registry and report in person to the Public Safety Department every 30 days.

Of the bill, Douglas says, "I'll take it. It's a step in the right direction, only not as aggressive as the one I proposed." (Photo courtesy of the media center, office of the Governor)

In addition, sex offenders would be required to report to the Public Safety Department whenever they move, change their place of employment, enroll in a post-secondary educational institution or change their name.

Failure to comply with these requirements could result in a lifetime prison sentence.

Of the bill, Douglas says, “I’ll take it. It’s a step in the right direction, only not as aggressive as the one I proposed.”

Civil commitment light…

Nineteen states have some sort of civil commitment law, and while similar, the Vermont State Senate’s proposal is not considered a civil commitment bill. Some have described it as “civil commitment light,” Douglas says.

Richard Sears, the Senate Judiciary Committee Chairman, agreed.

“This is not a civil commitment bill,” he says. “This is a bill that attempts to deal with 40 people considered to be dangerous individuals whose sentences are expiring in the near future.”

The proposal only applies to sex offenders who will be released in the future, not those who already completed their prison sentences. If it passes, the bill is expected to affect 20 to 21 sex offenders between now and 2011, as well as 25 after 2011.

“This is a group of dangerous individuals,” Sears says. “I think Vermonters would be well serviced if the house passes this bill.”

Twenty-eight of the 30 members of the Vermont Senate voted in favor of the proposal. Democratic senators James Condos and Mark A. MacDonald were absent and did not vote.

Bill S. 123 will take effect immediately upon passage by the House. On Friday, March 23, the Senate sent a message to the House of Representative requesting the passage of Bill S. 123. As of March 29, the bill has not been voted upon by the House.

…Or civil commitment heavy?

The proposal has strong support in the Senate, among state lawyers, and from the Vermont Department of Public Safety, but the Office of the Defender General and the American Civil Liberties Union of Vermont (ACLU) oppose it.

“The purpose of civil commitment cannot be punishment. It must be treatment. ” -Allen Gilbert

While advocates call the proposal “civil commitment light,” Allen Gilbert, the Director of the ACLU of Vermont, calls it “civil commitment heavy” because of how it affects constitutional rights, he says.

While Sears and Gilbert have agreed in the past, they disagree strongly on this proposal. Sears calls the proposal “fairly reasonable,” but Gilbert says “it’s an embarassingly awful bill.”

One of the problems Gilbert says the ACLU has is that the proposal punishes people based on their status as sex offenders. If an offender fails to comply with the requirements set by the state, they could face life in prison.

“When you think about it, this is a bill that can put you in prison for life for going to college,” Gilbert says. “You can go to jail for simply not reporting your activities.”

Unlike civil commitment, it does not offer treatment for these offenders, Gilbert says.

“The purpose of civil commitment cannot be punishment,” Gilbert says. “It must be treatment.”

Gilbert says he believes that if "civil commitment light" is challenged in court, it will be overturned. (Photo courtesy of ACLU, Vermont chapter)

The constituationality of civil commitment

The first civil commitment bill was passed in Washington in 1990. Since then, 18 other states have passed some form of civil commitment laws. The most recent was on March 14, when New York Gov. Eliot Spitzer (D-N.Y.) signed legislation allowing for the civil confinement of sex offenders who are still considered to be a threat.

While controversial, civil commitment was found to be constitutional in the 1997 Supreme Court case Kansas v. Hendricks. It was a five-to-four decision.

Justice Clarence Thomas wrote the majority opinion, in which he wrote, “We have never held that the Constitution prevents a state from civilly detaining those for whom no treatment is available, but who nevertheless pose a danger to others.”

In order for civil commitment to be constitutional based on the precedent set by Kansas v. Hendricks, the goal must be to provide treatment for an offender’s mental illness, not to simply extend an offender’s sentence.

Gilbert says he believes that if “civil commitment light” is challenged in court, it will be overturned.

Governor Douglas disagrees with this assessment.

“I believe we can fashion a statute that meets the Constitution,” he says.