A final form of criminal-system commitment that deserves a mention here are post-conviction commitments. These are also commitments that are based on criminal conduct, unlike the civil commitments discussed earlier in the chapter.

In a post-conviction commitment, however, a person has been charged with and convicted of a criminal offense. They were not excused based on insanity, and if they had competence issues, those were resolved. The person has also served their time in prison. The person has completed their criminal case in all respects.

Now, after the person has completed their criminal sentence, they become subject to an involuntary commitment based on their continuing dangerous status. In practice, this type of commitment is directed at convicted sex offenders who continue to pose a threat to the public upon their release from prison.

There are benefits and concerns associated with committing a person under these circumstances, where the person has already served time based on the criminal offense. Constitutional challenges have called this type of commitment fundamentally unfair, or a form of double jeopardy, that is, punishing a person twice for the same offense. However, the United States Supreme Court has upheld this practice. This type of commitment is not intended as punishment (which would be illegal) but rather it serves the purpose of treating and managing the mental disorder (specifically a sexual disorder such as pedophilia) which drove the person’s underlying offenses. Note that this type of mental disorder, specifically associated with a tendency to commit criminal offenses, cannot – as discussed in Chapter 6 – form the basis of an insanity defense.

Understandably, victims (or concerned observers) may believe that the confinement of this group of people is well worth any potential challenges to fairness, when an increase in community safety is achieved. The stigma against sex offenders is intense and many people have little interest in protecting the civil rights of this particular group. It’s important to note, though, that these laws are not applied in an entirely fair manner. Like many laws in our criminal justice system, the impact on people of color is excessive, and other marginalized groups may be more vulnerable to lengthy commitments than members of more privileged groups. According to one researcher considering the application of post-conviction commitments of sex offenders, “Black sex offenders were twice as likely as white sex offenders to be civilly committed. In addition, men with male victims were two to three times more likely to be civilly committed than men with only female victims” (The Williams Institute, 2020).

Oregon does not have a statute for this type of post-conviction commitment, but many other states do, including our neighbor state of Washington. In Washington, sex offenders who complete their criminal sentences, but are deemed by mental health evaluators to be a continuing threat, can be civilly committed based on that threat. These offenders are committed to a secure facility, called a Special Commitment Center, on Washington’s McNeil Island, which is dedicated to this purpose (figure 9.14).

Figure 9.14 is an 8-minute video offering views and discussion of Washington’s McNeil Island Special Commitment Center.

The McNeil Island facility houses 200 sex offenders who have already served their prison time and are now committed for treatment. Some may never leave the facility. As you watch the clip provided at figure 9.14, consider the issues at stake. How would you balance community safety and constitutional concerns about freedom and punishments? Is Washington striking the right balance?

9.6.1 Post-Conviction Commitments: Licenses and Attributions

“Post-Conviction Commitments” by Anne Nichol is licensed under CC BY 4.0.

Figure 9.14. McNeil Island [VICE news video] by VICE News is licensed under the standard YouTube license.