Preventative Incarceration

Is it OK to lock someone up not for what they've done but for what you're pretty sure they're going to do? Is it sane not to do so?

In 1990 here in Washington State, the legislature passed the Community Protection Act. Among other things, this law set up a Special Commitment Center, where violent sex offenders could be committed for treatment after their prison terms were up. The act also increased prison sentences for sex offenses, but the longer sentences couldn't apply to those already in prison. The Special Commitment Center was a way to extend the sentences of those already convicted and sentenced. It hid this ex post facto resentencing behind the façade of treatment. Treatment didn't happen. No one was cured or released from the center.

In 1994, U.S. District Judge William Dwyer issued an injunction, ordering the center to get real and make the center actually offer treatment and a hope for release. In 1997, the US Supreme Court said that involuntary commitment was constitutional, provided it wasn't just an indefinite sentence in disguise. Slowly, under threat of fines, the Department of Social and Health Services has instituted treatment and even begun to release some sex offenders into monitored halfway houses.

The Special Commitment Center was set up not to deter sex offenders, rehabilitate them, or even punish them. Its goal was to quarantine them, to keep them from raping again. They were incarcerated not for what they had done but for what one could reasonably expect them to do in the future: rape again.

The perfectly legal, extended sentences that the Community Protection Act of 1990 instituted serve exactly the same purpose. While the threat of a longer sentence could theoretically deter someone from rape, the main purpose of the longer sentences is to keep these people away from the rest of us. The added prison time for these crimes amounts to imprisoning these people for what we expect they'll do if we let them out.

Theoretically, once the previously designated sentence is served, the convicted sex offender could move from a prison (a place of punishment) to a less punitive locale (a place of simple quarantine) for the extra time that the act tacked on. Such a scheme, however, would make clear that these people are being incarcerated because of what we suspect they'll do in the future. It's politically safer just to keep them in prison.

On some theoretical level, imprisoning citizens for what the state suspects they'll do in the future is a nightmare. On a practical level, releasing repeat, violent sex offenders back into the population is a nightmare.

June 2001

- - -

You can read more about the Special Commitment Center by searching the archives at the Seattle Times web site.