Jeslyn Miller, Sex Offender Civil Commitment: The Treatment Paradox, 98 Cal. L. Rev. 2093 (2010).
Twenty-one states and the federal government have civil commitment schemes that provide for the further confinement of sex offenders after they have completed their prison sentences. These schemes survive constitutional scrutiny on the grounds that they are not a second prison sentence, but rather serve the non-criminal ends of protecting society and helping treat violent sex offenders. The underlying legislation confirms the treatment objective by elaborating statutory guidelines for treatment programs.
This Comment argues that treatment–although guaranteed by statute, legislative findings, case law, and the constitution–is an empty promise. Indeed, participation in treatment harms the very offender that it purports to help. This treatment paradox arises because successful treatment and relapse prevention require that an offender discuss his sexual fantasies and past transgressions; yet, unprotected by privilege or confidentiality, these cathartic admissions are utilized in civil commitment proceedings to secure further confinement. Because the prosecution heavily relies on treatment records to show that the offender continues to suffer from a mental abnormality and because the completion of treatment does not favorably impact an offender’s chance of release, offenders often elect to forgo treatment. This treatment disincentive effectively denies offenders the opportunity to heal and to obtain release from commitment through treatment, an opportunity envisioned by statute and by the civil commitment scheme’s constitutional underpinnings.