Prisons are an outsized business in California, and these days Californians have an outsized monument to their fear of something prisons cannot contain: sex crimes. At Coalinga State Hospital sex offenders who have served prison terms are serving more time, having been involuntarily committed as “sexually violent predators.” Californians appear determined to fill the place and then some, as a referendum last November expanded the commitment law to make virtually every sex offender in the prison system eligible for lifetime detention. And so the numbers at Coalinga, now about 670, will never stop growing.
Coalinga is preventive detention in perfect form. The inmates are confined for what they think, or what they might do if released or, more precisely, what a psychologist guesses they might do. If that seems unconstitutional in a 1970s kind of way, the courts are largely unmoved. And if people are locked up for years before a court asks too many questions, it is because of what some lawyers call “the pedophile exception to the due-process clause.”
Maybe it would be surprising if America, now accustomed to the terrorist exception to the Constitution, was not warm to a pedophile exception. But legal scholars and psychiatric experts have almost nothing good to say about using the mental health system to institutionalize offenders. The idea has proven an especially bad one in California, whose mental hospital system is under federal monitoring because of widespread civil rights violations. The costs of running Coalinga, already galloping, are compounded by the costs of processing thousands more offenders; under the new Jessica’s Law, the number referred for evaluation has risen from fifty to about 750 each month.
In its enthusiasm for preventive detention, California, as is its tendency, is like all America–only more so. The word “predator,” not so long ago a mere metaphor, has come to encompass flashers and peeping toms, and locking up the whole lot of them has become a legislative reflex across the country. Eric Janus, president and dean of the William Mitchell College of Law in St. Paul and the author of Failure to Protect, about the civil commitment laws, refers to a “third wave” in the last couple of years.
Around 1990 a handful of states rewrote their mental health laws to reel in sex offenders–most of whom were not mentally ill by any definition–as their prison terms expired. In the mid-’90s, especially after the Supreme Court upheld Kansas’s Sexually Violent Predator Act, a dozen others followed suit. The panic flared again in 2006 and ’07: New Hampshire and New York enacted commitment laws, and a change in Virginia’s law quickly tripled its detainee population. Congress approved the civil commitment of sex offenders in federal prisons, including the growing percentage who land there on pornography charges.
“I was thinking probably it was going to go away, with states scared off by the financial burden,” Janus said. “But what with New York jumping in, that’s a bellwether state in some ways. It would be a little surprising if it didn’t spread further.”