Editorial: N.H. Civil Commitment; Process Used Rarely But Too Often

Given that New Hampshire’s civil commitment law aims to prevent the most violent sexual predators from obtaining the opportunity to commit new crimes, a recent article reporting that the procedure has been used only rarely will disappoint many. Not us; we think it speaks well of New Hampshire prosecutors, judges and legislators, at least to the extent that it reflects a desire to apply an extreme measure only when they believe extraordinary circumstances warrant. In fact, because civil commitment incarcerates people for crimes they haven’t committed, we think circumstances can never justify its use.

New Hampshire is one of 20 states that uses civil commitments to maintain custody of sex offenders who have served out their maximum sentence, have not completed treatment and, based on their criminal history, are believed to pose a high risk of reoffending. County attorneys are notified when such offenders are on the verge of release and can request a team of specialists to evaluate the offender and determine if he should be categorized as a “sexually violent predator.” If that is the determination, the county attorney can then go to court and seek to prove that the offender is afflicted with a condition that makes him likely to reoffend. If the court agrees, a sex offender can be held for five years, although there is no limit to the number of five-year commitments the state can seek.

The law has been used rarely in the six years since enactment, according a recent Concord Monitor story. County attorneys have asked for only 34 reviews, the multidiscplinary team has rendered a “sexually violent predator” diagnosis 11 times, and there are but two people now committed.

Several factors account for those low numbers, including the fact that the law’s authors intended that it be narrowly applied. Not surprisingly in New Hampshire, cost is also influential. County attorneys rightly say that the $30,000 average cost won’t deter them from pursuing whatever they consider the proper course, but there can be little doubt that an understaffed, underfunded local prosecutor would apply heightened scrutiny before launching an expensive, time-consuming case. County attorneys also say that state judges have been conservative in determining what evidence they’ll allow in commitment trials.

Whatever the reasons, the rate of civil commitment in New Hampshire is substantially below that of other states, at least based on population. Although the state’s sparing use of the procedure is encouraging, it hardly addresses the overriding flaw of civil commitment: the profound injustice of pre-emptively punishing people for crimes they haven’t committed.

The U.S. Supreme Court has sanctioned such commitments as civil, not criminal, procedures. Under this formulation, sexual predators are not being punished — they are being judged to be afflicted with conditions that pose dangers to others, much like the severely mentally ill who are involuntarily held. When a court determines that these people are “sexual predators,” the incarceration occurs in the name of public safety. A committed sexual predator will be released as soon as he is judged to pose no danger.

The process is deeply flawed. First, it presupposes that the psychiatric community can diagnose this abnormality in much the same way the medical community can identify cancer. In fact, many are skeptical about the reliability of the primary diagnostic tool — an actuarial-type test called the Static-99R. New Yorker writer Rachel Aviv, reporting on the civil commitment of a man who had possessed child pornography but whose pedophilia had never been proven to go beyond the fantasy stage, says the tests predict sexual crime no better than SATs forecast freshman grades: They “confer a stamp of scientific precision on a judgment that psychologists have proved ill-equipped to make.”

Moreover, the notion that civil commitments serve therapeutic ends is, at best, wishful and, at worst, little more than a fig leaf. Although treatment often costs more than $100,000 a year, only a small fraction of those committed are ever deemed ready for release. By 2007, only 10 percent of the 4,500 civilly committed sex offenders in the U.S. had been released, according to Aviv.

Nothing short of abolishing the procedure will address these concerns, and that, unfortunately, is not in the offing. We are pleased to learn, however, that another reason that New Hampshire county attorneys only rarely resort to civil commitments is out of caution: If they lose, offenders gain unsupervised release. As an alternative, some prosecutors have revived old criminal charges to not just seek extended incarceration for offenders about to be released, but also to pressure them to agree to supervision when discharged.

That seems vastly preferable to commitment because criminal proceedings are linked to accusations of actual crimes, not ones we pretend we’re able to foresee. Holding people accountable for what they’ve done, not what we fear they might do, was once a foundational component of American justice.