In its June, 1997 decision in Kansas v. Hendricks, the U.S. Supreme Court upheld the constitutionality of the use of a civil commitment process to continue the confinement of sexually violent criminal offenders who are found to have a "mental abnormality" that causes them to pose a danger to others, even if they are not found to have a "mental illness." In upholding the statute, the Court gave the states broad discretion to define mental abnormality and to determine whether a violent sex offender who has completed his or her prison sentence poses a continuing danger to others.

The Court's conclusion that the civil commitment of dangerous sex offenders who do not have a mental illness is constitutional does not necessarily mean that such laws represent good policy. The National Association of State Mental Health Program Directors (NASMHPD) believes that some statutes could have severe and negative consequences for people with mental illnesses and for the public mental health system.

Specifically, NASMHPD believes that legislation allowing for the civil commitment of dangerous sex offenders who do not have a mental illness to psychiatric hospitals following completion of their prison sentences creates the following significant risks:

Laws which provide for the civil commitment of dangerous sex offenders for purposes that are principally punitive or for the purpose of continuing confinement, rather than for the purpose of providing treatment or psychiatric services, disrupt the state's ability to provide services for people with treatable psychiatric illnesses and undermine the mission and integrity of the public mental health system.

The civil commitment of dangerous sex offenders who may or may not respond to existing treatment modalities and who will require enormous resources for very long lengths of stay diverts scarce resources away from people who have been diagnosed with a mental illness and who both need and desire treatment.

The commitment of dangerous sex offenders to psychiatric facilities could endanger the safety of others in those facilities who have treatable psychiatric illnesses.

NASMHPD recognizes concerns about the dangers that criminally violent sex offenders may pose upon release from prison. NASMHPD believes that these concerns should be addressed through sentencing or other alternatives within the criminal justice system. Nonetheless, if civil commitment processes are adopted to address these concerns, such statutes should adhere to the following principles:

• Statutes used to civilly commit dangerous sex offenders who do not have a mental illness should be distinct from existing statutes for the civil commitment of people with mental illnesses. Laws which do not clearly distinguish these procedures stigmatize the civil commitment process and people diagnosed with mental illnesses who receive services under a commitment process. Such stigma prevents people from seeking necessary and effective treatment for diagnosable mental illnesses.
• Facilities and treatment programs for dangerous sex offenders should be administered and funded outside the state mental health agency in order to maintain the mission and integrity of the public mental health system. Confinement and treatment of dangerous sex offenders or others who do not have a diagnosable mental illness are beyond the scope of that traditionally administered by state mental health agencies.
• Treatment programs for dangerous sex offenders should be administered under programmatic guidelines and philosophies that recognize the differences between these criminal offenders and people with diagnosable psychiatric illnesses.
• Facilities for the confinement of dangerous sex offenders should be separate from facilities for the treatment of people diagnosed with mental illnesses to ensure the safety of others and to maintain the distinct commitment status of the criminal offenders.
• If dangerous sex offenders are confined in facilities under the purview of the state mental health agency, it is imperative that the mental health agency play a significant role in determining commitability and diagnoses, treatment strategies, and lengths of stay for sex offenders civilly committed under the statute.
• Laws providing for the civil commitment of dangerous sex offenders should be narrowly drafted to ensure that they apply only to dangerous and violent sex offenders who pose a significant risk to society if released.
• Treatment for people determined to be dangerous sex offenders should be initiated during criminal incarceration. Treatment programs should be rigorously examined, both during incarceration and after, to determine effectiveness and to measure outcomes based on the reduction of recidivism rates.

NASMHPD joins the American Psychiatric Association in calling for an increased investment in research on paraphilic disorders and in the clinical training of mental health professionals regarding assessment and treatment of people with those disorders. In addition, NASMHPD believes that state mental health agencies should initiate and participate in broader early prevention and intervention efforts to facilitate development of skills and competencies that help all people to build healthy, meaningful, and socially responsible lives.

Adopted by the NASMHPD membership on 9/9/97.

The National Association of State Mental Health Program Directors (NASMHPD) represents the public mental health service delivery system serving 6.1 million people annually in all 50 states and 5 territories.