Civil Commitment and the Criminalization of Homelessness

In July, President Donald Trump issued an Executive Order titled “Ending Crime and Disorder on America’s Streets,” (the Order) to address homelessness — or what his administration called “endemic vagrancy,” disorderly behavior, and violent attacks. By encouraging states to expand civil commitment programs while dismantling initiatives such as “housing first” that provide more holistic support, the Order calls for a blunt solution to the incredibly complex issue of homelessness.

Perhaps equally concerning and less publicly discussed is the Order’s quiet reference to the Sexually Violent Predator (SVP) federal program. Established in 2006 under the Adam Walsh Child Protection and Safety Act and upheld as constitutional in 2010 by the Supreme Court, this program gives the federal government the authority to civilly commit individuals who are deemed sexually dangerous and likely to reoffend as a result of a mental abnormality. The Order calls for homeless individuals to be screened for admission into the SVP program. This post aims to start a conversation about the level of discretion granted to federal authorities, particularly with regard to individuals without previous history of or conviction for sexual offenses, and how that power might be abused.

A Primer on SVP Programs

Traditionally, inpatient civil commitment has been limited to individuals with severe, diagnosed mental illness, such as major depression or schizophrenia, who pose an imminent danger to themselves or others. These illnesses are considered medically treatable, and commitment is intended to stabilize individuals on a short-term basis. The SVP program, however, is a separate form of civil commitment that is indefinite in length and may follow the completion of an individual’s criminal sentence for a sexually violent offense. These laws require only a finding of “mental abnormality” or “personality disorder” to label an individual as an SVP who is likely to reoffend unless confined long-term in a secure facility.

Public outrage surrounding a high-profile sexual assault spurred a host of SVP legislation by 20 states and the District of Columbia in the 1990s, and the constitutionality of this legislation was first assessed by the Supreme Court in 1997. At the heart of Kansas v. Hendricks, 521 U.S. 346 (1997), was a state statute that included a definition of “mental abnormality” with an inherent future dangerousness component. Prior traditional civil commitment cases had demanded a separate showing of future dangerousness, apart from the formal mental illness diagnosis. But in Hendricks, the Court concluded that the statutory definition of “mental abnormality,” despite its conflation of certain diagnoses with a presumption of inherent dangerousness, satisfied substantive due processrequirements. Moreover, the Court rejected double jeopardy and ex post facto claims regarding this post-release civil commitment by emphasizing that the commitment was civil in nature, not criminal. 

The federal government followed in the states’ and Washington, D.C.’s footsteps when it enacted the Adam Walsh Child Protection and Safety Act of 2006 — which, in 2010, the Supreme Court found to pass constitutional muster in U.S. v. Comstock. It is important to note that, apart from the civil commitment of individuals in the federal criminal justice system, traditional civil commitment is reserved to the states. Yet despite this fact and the Court’s longstanding fear of a police power granted to the federal government, the Court held that the Necessary and Proper Clause granted the federal government the power to indefinitely confine an individual upon a finding of sexual dangerousness that need not be predicated upon a sex offense conviction or charge. That is, the Comstock Court appeared to not only grant the federal government a new power but also expand its scope beyond that of the States by removing the requirement of a prior related offense. In a prison system already marked by high rates of sexual violence, granting the federal government relatively broad discretion to label any inmate as sexually dangerous creates serious potential for abuse.

The Order

In the Executive Order, President Donald Trump has directed the Attorney General to “ensure that homeless individuals arrested for Federal crimes are evaluated … to determine whether they are sexually dangerous persons and certified accordingly for civil commitment.” While the Order focuses on encouraging state action in the civil commitment space — in important part because it typically falls within the purview of the states, given their parens patriae and police powers — the federal government appears poised to maximize its use of SVP commitments, especially because many homeless individuals have a history of sex offenses.

It is worth noting that, although civilly committing an individual under this statute often involves a diagnosed “mental abnormality or personality disorder,” this arguably limits the discretion inherent in SVP commitments to only a marginal extent. The diagnosis of antisocial personality disorder — defined as a “persistent pattern of disregard for and violation of others’ rights” — illustrates the circular logic that can arise when legal involvement itself becomes part of the diagnostic criteria. Although recognition of this fact may drive judges to reject federal civil commitment petitions during the civil commitment hearings, this might leave little objective, non-legal constraint on who may be deemed an SVP. By way of example, the United States Sentencing Commission highlighted that individuals are at most risk of civil commitment if:

• “(1) [the individual has] been convicted of a sexual contact offense; 
• (2) [the individual’s] presentence report contains any information suggesting a previous sexual offense or an inclination, however slight, toward sexual misconduct; 
• (3) [the individual has] a history of undetected misconduct that you may have discussed before or during custody or while on probation or supervised release;
• (4) [the individual has] a history of psychological treatment and/or diagnoses suggesting any form of sexual deviance and/or antisocial personality disorder; and 
• (5) [the individual is] likely to invent sex offense histories or interests to please someone, like a counselor or probation officer.”

Thus, an individual previously in federal custody who has spoken of  “an inclination, however slight” of sexual misconduct during their sentence and is diagnosed with antisocial personality disorder may be high risk of being civilly committed after the completion of their sentence.

Disproportionate Impacts

The consequences of this policy will likely not fall evenly. A 2020 Williams Institute study found that Black residents currently face a rate of SVP detention more than twice that of white residents, despite accounting for less than half as many sex offenses, and that men whose victims are male remain 2 to 3 times more likely to be civilly committed than those whose victims are female. The Order’s call to expand federal evaluations risks deepening those inequities while disguising them in the language of treatment. Allegations of sexual dangerousness have historically been and may continue to be used to justify violence against certain populations, so it is important to remain vigilant where, as now, such rhetoric is used by the federal government.