Civil Commitment

Through their inherent police power, states in the United States are permitted to civilly commit certain individuals, usually those who are deemed dangerous, in order to promote public security. Although the commitment process is purely civil, it often functions synchronously with the criminal justice system and effectively absolves local law enforcement of the burden of ongoing surveillance or monitoring of the individual. Arguably, society as a whole is safer when dangerous offenders are civilly committed because they are physically removed from society. Society may also be more secure when law enforcement resources are not taxed by having to monitor individual offenders.

Convicted Sex Offenders

Civil commitment for convicted sex offenders occurs postsentence after the resolution of a criminal matter. In the United States, the federal government and at least 20 states have enacted legislation permitting the involuntary civil commitment of sex offenders who have served their prison sentences. Most statutory schemes provide for the indefinite confinement of any person deemed to have a mental abnormality that will cause the individual to commit sex offenses in the future. In most jurisdictions, the state can establish a threat to safety and security by proving mental abnormality and future dangerousness with clear and convincing evidence. This burden is lower than the “beyond a reasonable doubt” standard required for criminal conviction, even though the hearing may result in indefinite confinement similar, if not identical, to prison. Courts generally balance the state’s need to protect and secure society against the offender’s privacy and right to be free after serving a prison term. In addition, the law is vague regarding the definitions of mental abnormality and future dangerousness. Finally, because it is a civil process, not a criminal process, the opportunity for meaningful review is significantly limited and the risk of unconstitutional confinement high.

In 1997, the U.S. Supreme Court considered the constitutionality of involuntary civil commitment in the context of sex offenders in Kansas v. Hendricks. It held that civil commitment of convicted sex offenders after they have served their prison sentences is constitutional when those offenders present a threat of future dangerousness to the community.

Not Guilty by Reason of Insanity

For individuals found not guilty by reason of insanity, civil commitment occurs on termination of a criminal case. A person who is found not guilty by reason of insanity, based on either a negotiated plea or a jury verdict, may be civilly committed (instead of sentenced to prison) in most jurisdictions. The decision to civilly commit must be supported by clear and convincing evidence that the individual has a mental illness or abnormality and presents a risk of future dangerousness to society. The purpose of civil confinement is to protect and secure society from the offender.

After commitment, periodic evaluations are mandated to determine whether the threat of dangerousness persists. This procedure protects the offender’s right to privacy and freedom from confinement if the threat of danger is eliminated. Once there is no longer a threat of danger, constitutional privacy protections demand that the individual be released.

One advantage of civil commitment of those found not guilty by reason of insanity is that individuals who have mental illnesses and disorders can receive treatment. Sometimes treatment can restore an individual, thereby facilitating societal reentry.


An individual who is not competent to stand trial may be civilly committed prior to trial in an attempt to restore competency. This type of involuntary civil commitment is not predicated on future dangerousness, and it occurs prior to resolving any pending criminal cases. In other words, the accused has not yet been afforded due process, and the risk of violating privacy rights is high. Confinement in this type of case is intended to facilitate due process and is premised on the likelihood that the individual can be restored and made competent to stand trial.

Generally, courts rely on the evaluations of expert psychiatric witnesses when determining whether a person is competent and whether civil commitment is likely to restore the individual’s competency. A person is not competent to stand trial if the individual cannot meaningfully assist in the preparation of the case for trial or if the individual does not understand the nature of the charges or the criminal process.

Mental Illness

The only type of civil commitment wholly divorced from the criminal justice system involves the commitment of individuals who are experiencing acute mental illness. The criteria for commitment are that the individual experiences an acute mental break and presents a danger to self or others. In these cases, the state’s interest in protecting and securing society outweighs the individual’s rights to privacy and freedom. Generally, this type of commitment is limited to no more than 3 days. If an ongoing danger persists, the individual is entitled to a hearing, at which time the state is required to prove by clear and convincing evidence that the individual presents a danger to self or the community. This process preserves the individual’s constitutional privacy rights while balancing the state’s interest in protecting and securing society. Continuing commitment may occur only if the court finds that the individual has a mental illness that poses a security threat to the individual or the community.

Future Dangerousness

Perhaps the most controversial aspect of civil commitment is the determination of future dangerousness. Generally, courts rely on testimony by psychiatric expert witnesses, but the measuring tools and criteria are imperfect. In addition, the recommendation is based in large part on one person’s opinion about what the measuring tools reveal. Currently, no truly objective way to determine future dangerousness exists, which makes it challenging for courts to accurately balance the state’s interest in protecting and securing society against the individual’s right to privacy and freedom.

Commitment standards vary from state to state, and recent studies indicate that psychiatrists in states with strict dangerousness standards are more likely to find clear and convincing evidence of danger than those in states with broader standards. The modern therapeutic jurisprudence movement tends to support early intervention for individuals with mental health issues. Proponents of therapeutic jurisprudence argue that the criminal justice system interferes with the individual’s ability to receive the necessary treatment in a timely manner, while failing to provide any long-term or tangible security protection to society. Although they are not necessarily advocates of involuntary civil commitment in all circumstances, proponents of therapeutic jurisprudence favor increased community resources for those with mental illness.

Elizabeth Berenguer

See also Mental Disability Laws ; Mental Health Inpatient Facilities ; Sex Offender Laws ; Specialty Courts for Mental Health

Further Readings

Kansas v. Hendricks, 521 U.S. 346 (1997).

McAllister, Stephen R. “Sex Offenders and Mental Illness: A Lesson in Federalism and the Separation of Powers.” Psychology, Public Policy, & Law, v.270 (1998).

Schopp, Robert F. “Mental Illness, Police Power Intervention, and the Expressive Functions of Punishment.” New England Journal on Criminal and Civil Confinement, v.39 (2013).

Stone, Donald H. “Confine Is Fine: Have the Non-Dangerous Mentally Ill Lost Their Right to Liberty? An Empirical Study to Unravel the Psychiatrist’s Crystal Ball.” Virginia Journal of Social Policy & the Law, v.20/2 (2012).

Yung, Corey Rayburn. “The Ticking Sex-Offender Bomb.” Journal of Gender, Race & Justice, v.15 (2012).