There's no question that civil commitment under Illinois' Sexually Dangerous Persons Act is a "drastic impairment" of liberty and reputation, according to the Appellate Court of Illinois. But a sexually dangerous person does not have a right to be placed in a mental health or medical facility instead of prison, especially if the prison system can provide appropriate psychiatric care and maintenance.
After being charged with molesting a minor in 1975, McDougle was found to be a sexually dangerous person and committed to a prison facility run by the state's Department of Corrections (DOC). Except for a three-month conditional release in 1983, he has been behind bars ever since.
McDougle petitioned the court for a transfer to a state correctional facilities run by the Department of Mental Health, stating that the DOC was not meeting its obligations under the act to provide treatment "designed to effect recover." The trial court said it had no authority to review DOC's decision not to transfer McDougle to the Department of Mental Health. McDougle appealed.
Holding: In a case of first impression, the court ruled that circuit courts do have the power to review the treatment administered by the DOC to a sexually dangerous person.
Here, McDougle has not met the burden of proof necessary to show that he is receiving inadequate care. He has been found to have an undifferentiated schizophrenia-schizoaffective disorder, mild mental retardation, and personality disorder. He receives two antipsychotic medications and meets with a psychiatrist once a month. Since he hallucinates and talks to himself, he is unable to participate in a sex offender group therapy program, but does occasionally attend "socialization" events at the prison facility. The defendant, said the court, "is being afforded all the care and treatment reasonably possible considering his condition." There is no evidence the Department of Mental Health could provide additional, or better, care.
The Last Word: Illinois' Sexually Violent Persons Act, which went into effect on January 1, 1998, requires placement in "the least restrictive manner possible" in a Department of Human Service facility. But committed is in addition to criminal proceedings and since it was enacted, only 11 people have been committed, according to a study by the Chicago Tribune. At least 1,100 convicted sex offenders were not considered eligible.
| Robert Prentky, Ph.D. Director of Assessment and Modular Unit Director |
Robert Prentky, Ph.D comments: What is the nature and quality of sex offender-specific treatment provided at state correctional facilities? Although almost all of these programs employ the same cognitive-behavioral model with a focus on relapse prevention, the sites clearly differ in size (i.e., number of participants) and quality (e.g., number of qualified staff, amount of training and supervision, and number of hours per week of clinical programming). Some of the smaller programs today have fewer than 50 participants (e.g., New Hampshire and Vermont), with larger units being found in Texas, Washington, Massachusetts, and New Jersey. Although the staff: participant ratio in most facilities ranges from 1:8 to 1:12, in some states it is much larger (e.g., 1:29 in New Jersey and 1:40 in Ohio). In general, the low staff: participant ratios (e.g., 1:10) are found in intensive treatment settings. In Massachusetts for instance, although the overall staff: participant ratio is quite high (1:33), the ratio for the intensive treatment program alone is 1:10. Even here, however, "intensive" does not mean the same thing in all programs.
It does not appear, thus far at least, that the new era of "Sexual Predator" laws will have a salutary effect on rehabilitation of sexual offenders. The highly influential 1997 Hendricks decision by the U.S. Supreme Court arose from the Kansas sexual predator law Sex Offenders, [Kansas v. Hendricks, 117 S. Ct. 2072, (1997)]. Kansas invoked its new act for the first time to commit Leroy Hendricks, a 60-year-old pedophile who was scheduled for release from prison shortly after the act became law. In its ruling, the Supreme Court observed that the state may be obliged to provide treatment that is "available" for disorders that are "treatable." The Court essentially rejected the proposition that effective treatment is required to justify civil commitment. It is not clear at this point what long-term impact Hendricks will have on the provision of treatment services for sex offenders committed under the recent sexual predator statutes.
We do know that, of the first 14 sexual predator laws enacted, the treatment setting in seven states is a hospital, while the setting in the other seven states is a segregated unit within a correctional facility, or a correctional facility devoted exclusively to sexual predators. In all 14 cases, the agencies responsible for providing treatment are the state health services, mental health, or social services departments. The most critical (and ambiguous) issue, however, is whether the states must invest sufficient resources in treatment to reach a minimum standard of intervention that could be expected to effect change. That, in the wake of McDougle, has yet to be challenged.
