The Supreme Court ruled in May that Congress has the authority to extend civil commitment beyond the term of a prison sentence for sexual offenders who fall under federal jurisdiction.

In practical terms, the Court's decision in United States v. Comstock will affect a small number of people—as few as 100—who have committed sexual offenses that fall under federal jurisdiction; such crimes might include transportation of child pornography across state lines. But some 22 states have similar laws that have allowed state authorities to mandate psychiatric hospitalization for thousands of sexual offenders after they complete their prison sentences.

The Court's decision is symbolically significant in its support of several concepts that are highly problematic for psychiatry—conflation of sexual offenses with mental illness, civil commitment by authorities other than mental health professionals, and the use of psychiatric hospitalization for reasons that likely have more to do with public safety than with treatment.

The case involved five individuals convicted of sexual offenses that fell within federal jurisdiction and the imposition of civil commitment at the expiration of their prison sentences. Arguments in the Court's decision focused on the extent to which the Constitution grants Congress power to enact laws covering issues not specifically mentioned in the Constitution; of special importance was interpretation of the "necessary and proper" clause that grants to the federal government the power to enact necessary legislation to carry out its enumerated functions.

The majority opinion, written by Justice Stephen Breyer, held that civil commitment of federal sex offenders was within the federal government's scope—in part because the federal government already had a history of civil commitment of people with mental illness.

"Congress has long been involved in the delivery of mental health care to federal prisoners and has long provided for their civil commitment," Breyer wrote. He noted the establishment of St. Elizabeths Hospital in the 19th century and the use of the hospital for civil commitment by the government of people living in the District of Columbia or serving in the military. Before the century was over, Breyer wrote, that power was extended to cover broader categories of prisoners under federal jurisdiction.

"Thus, over the span of three decades, Congress created a national, federal civil-commitment program under which any person who was either charged with or convicted of any federal offense in any federal court could be confined in a federal mental institution," Breyer wrote.

The statute in question granting the government the power to extend civil commitment to sexual offenders is, Breyer reasoned, "a modest addition to a longstanding federal statutory framework, which has been in place since 1855."

In this way, said APA past President Paul Appelbaum, M.D., a forensic psychiatrist, "the Court has thoroughly bought into the notion that people who are sexually dangerous are mentally ill."

That equivalence "really reflects a battle lost by the psychiatric profession trying to differentiate traditional mental disorders from the disturbances associated with sexual offending that are usually much more volitional," he said.

The lone dissenting opinion, written by Justice Clarence Thomas, held that no such civil commitment authority was enumerated in the Constitution. "To be sure, protecting society from violent sexual offenders is certainly an important end," Thomas wrote. "But the Constitution does not vest in Congress the authority to protect society from every bad act that might befall it.... The fact that the Federal government has the authority to imprison a person for the purpose of punishing him for a federal crime—sexual-related or otherwise—does not provide the government with the additional power to exercise indefinite civil control over that person."

Appelbaum said the government's use of civil commitment of sexual offenders raises a host of questions, not the least of which involves the questionable efficacy of "therapy" for sexual offenders. "For psychosis, for instance, we know what to do as clinicians and have some reasonable prospect that conditions will be improved," he said. "For sexually dangerous offenders, the data are much weaker, and such treatments as exist haven't become part of the psychiatric mainstream."

More fundamentally, the ruling gives the Supreme Court's approval to a practice that very likely has little to do with treating people—mentally ill or not—and more to do with keeping people perceived to be a public menace off the streets.

"The traditional commitment process is predicated on the idea that the patient will benefit from the intervention," Appelbaum said. "With regard to the sexual offender, the primary goal of civil commitment is to protect the public, not to benefit the person.

"What makes that clear is that in both the federal case under question and in the state laws that allow civil commitment of sexual offenders, the government is creating the commitment process to begin when the individual's prison sentence expires," he said. "If the government were really interested in treating, they would start the treatment from day one in the prison."

In January 2006, Rhode Island psychiatrist Brandon Krupp, M.D., resigned his position as chief of psychiatry at Eleanor Slater Hospital in Cranston after Gov. Donald Carcieri sought continued hospitalization of a convicted sexual predator who had completed a 17-year prison sentence.

"I am as concerned as anyone about sexual offenders being in the community unsupervised, because I have treated their victims," Krupp told Psychiatric News at the time. "But it makes no sense to misuse the medical system for political ends" (Psychiatric News, January 20, 2006).

The Supreme Court's decision is posted at <www.supremecourt.gov/opinions/09pdf/08-1224.pdf>.