This is one interesting case winding its way possibly to the Supreme Court originating out of Missouri. The Eighth Circuit Court of Appeals has already sided with the state in this case and the only recourse now is before the United States Supreme Court. In 1999, the state passed the Sexually Violent Predator Act. Those deemed to be a predator were to be committed to an inpatient treatment center until such time it was deemed they were not a threat to society, especially children. They would receive annual evaluations to determine their progress, if any. Residents are not required to participate in the treatment program that consists of four phases of psychotherapy- individual and group. However, most opt for the treatment regimen since the goal is release.
The plaintiff here- Dennis Strutton- plead guilty to first degree child molestation and as part of that plea agreement, was designated a violent sexual predator and sentenced to five years in jail, which he served. He was then civilly committed to the treatment center for sexual predators. By all accounts, he was anything but a model “patient.” He was disruptive, contrary, and denied his guilt. In fact, most of his initial appeals centered around his alleged innocence. During the course of his stay, as so often happens, budget cuts necessitated staff reductions and it was during one of these periods he was transferred to another group with another therapist.
Strutton’s main claims revolve around his alleged Substantive Due Process rights to treatment. In 1982, the Supreme Court decision regarding civilly committed mental patients stated that they had an expectation of reasonable care and safety, nonrestrictive confinement to the greatest degree possible, and training towards those ends. Therefore, for those involuntarily committed, the state must provide “training as an appropriate means towards” making the person at least minimally functional should they be released. However, courts should defer to professionals regarding the correctness of the treatment. The Court in 1982 did not state that there was a constitutionally mandatory substantive Due Process right to mental health treatment that gives the person a realistic opportunity to be cured and released. Some Circuit Courts- mainly the Ninth- have found that such a right exists. The 8th Circuit hasn’t and since the Supreme Court has not weighed in, Eighth Circuit precedents apply in the Strutton case. In fact, they did rule that a state can civilly detain those for whom no treatment is possible and one such case involved pedophilia. The appeals court rejected all of Strutton’s claims (he remains in the treatment center) although they mildly rebuked the state for the budget cuts that, although they lessened professional standards, they did not rise to the level of a constitutional violation.
There are a few disturbing things about this case. In this case, I have little sympathy for Strutton. He pleaded guilty to first degree child molestation charges and it hard to muster sympathy for anyone who preys on children. Strutton appears to be a clear-cut case. But, not every case is clear cut. A spontaneous hug by a teacher today can be construed as “inappropriate contact.” Its disturbing in a sense that in cases not so clear cut that people could be civilly committed for indefinite periods beyond a jail sentence. But in all honesty, that is the least of the disturbing aspects of this case.
In his appeal in the 8th Circuit, Strutton argued that a new standard should be applied when evaluating this case- a lower standard of review. The court decided that an action or, in this case, inaction had to rise to the level of “shocking to the conscience” for it to be considered unconstitutional. Here, the actions and inactions by the unit failed to meet that test. Strutton argues that the action or inaction should simply fail to meet the reasonable professional standard test for it to be declared unconstitutional. Obviously, he would stand a greater chance of winning his case if that were so since the court actually did rebuke Missouri somewhat. Strutton’s next appeal will be to the US Supreme Court. Although it is doubtful that they would take his case since (1) his offense is so clear-cut and (2) the Eighth Circuit’s decision is well-reasoned, there is the possibility that somewhere along the line, a not so clear-cut case and offense will present itself and the commitment will lack any semblance of treatment. That would leave an opportunity for a future case to possibly establish this substantive Due Process right to treatment.
And lest anyone believe that the this is not necessarily a major issue and the Supreme Court would not take such a case, one of the major reasons the Court takes a case is because of differences of opinion between Circuits. It has already been noted that while the Eighth Circuit does not recognize such a right, the Ninth Circuit does. What if a case presents itself in another Circuit and the right to treatment for civilly committed “patients” is recognized? Eventually, the Supreme Court would have to step in and resolve the differences.
This type of case illustrates the pitfalls of the concept of substantive Due Process rights. When the Constitution was written, James Madison was opposed to listing rights in its text fearing that people had many rights and if some were omitted, then there would be an assumption they did not exist. The compromise was twofold: an agreed-upon Bill of Rights after ratification and the Ninth and Tenth Amendments which retained all other rights of the people not specifically mentioned in the previous eight to the people themselves, or to the states. Obviously, there is no “right to privacy” listed in the Constitution or the Bill of Rights. There are inferences to this general right such as Fifth Amendment protections. These are the rights located in the so-called “penumbras” (using language from Griswold) of the specifically listed rights.
The mentally ill were not generally well-treated in history. They regularly ended up in prisons or “asylums” for safe-keeping. Treatment of the mentally ill- and pedophilia and sexual predators are included here- is a relatively new construct in history. In many cases, mental facilities- especially in cases of civil commitment- have taken on the role of prisons and have kept potentially dangerous people off the streets indefinitely. Charles Manson is a perfect example of this. But lets assume that a fool-proof drug is created that eliminates urges to sexually molest children. Do pedophiles have a right to that drug? Likewise, should anyone, pedophiles in this case, have a right to treatment by virtue of their civil commitment to a mental health treatment center? Leaving aside all the other issues of the Strutton case, that is what this issue essentially boils down to here. The problem then becomes if so, then what level of treatment? Can a court dictate the allocation of state resources to enforce a minimal level of treatment?
As stated earlier, the Supreme Court in 1982 ruled that those civilly committed do not have a right to rehabilitation services. However, the details and background of that case and this case are worlds apart. Then, the family had the person committed, there was abuse and safety issues in the hospital and a host of issues presented. Here, the person was committed by the state after serving a prison sentence, there was no restraint or abuse or safety issues, and the rights of the individual thus committed have to be weighed against the rights of society in general to be free from sexual predators.
This case is actually scheduled for consideration by the Supreme Court within the next two weeks. The primary question is whether there exists a substantive Due Process right to treatment for those civilly committed to mental health institutes, specifically designated sexual predators in this case. It is ironic to note that Strutton now makes that claim, yet did everything in his power to thwart that treatment while he had the chance. Sexual predation and child exploitation cases are making their way to the Court from a variety of sources. Just this term, they denied an appeal from St. Louis against the Catholic Archdiocese there regarding sexual abuse by priests letting a lower court ruling stand that blocked a lawsuit against the church leaders. The lower court decided that it would intrude on church doctrine and business. Yet, a similar case in Pennsylvania was allowed to proceed. They also recently ruled that sexual predator registries cannot be enforced retroactively absent Justice Department notification.
Its doubtful the Court will take this case. The Roberts Court does not particularly strike me as one out to create new substantive Due Process rights, especially for sexual predators. Given the high rate of recidivism among sexual predators, that is a good thing. However, as long as there exists some disagreement among Circuits- as exists minimally here- that possibility of taking the case always exists. For the sake of society and society’s most vulnerable- our children- the Court should think long and think hard.