How Can This Indefinite Incarceration Policy Be Constitutional?
By Donysha Smith
In the late 1980s, despite concerns, a few U.S. states began indefinitely detaining sex offenders, a practice known as civil commitment. Over the last 30 years, this model spread across the nation. Now, America’s system of sex offender management is being called into question in courtrooms around the country and the court of public opinion. As he discusses with us below, 2015 Soros Justice Fellow Galen Baughman is working to end this practice.
Tell us about the moment that moved you to advocacy.
At 19, I was arrested and sent to prison for having a sexual relationship with a younger teenager. I spent the next nine years of my life behind bars, including four-and-a-half years in solitary confinement. When I completed my sentence, the Commonwealth of Virginia would not release me. Instead, they petitioned the court to indefinitely detain me through what is known as a civil commitment, on the theory that I would reoffend if released.
I was held in solitary confinement for over two years past my release date without a trial. As I sat in solitary, the only way I was able survive was to focus on creating purpose in my life. The thought of what I was going through not having some sort of meaning was unbearable.
I finally had my day in court and became the first person in Virginia to win a jury trial and secure release from civil commitment. I decided to dedicate my life to advocating for the most marginalized people in our justice system and society.
Recently, federal judges in Minnesota and Missouri have ruled that indefinitely confining those deemed “sexually violent predators” violates the U.S. Constitution. What national impact do you see these rulings having? Is the needle moving?
Indefinite civil commitment is being examined in many states right now. Momentum is building to dismantle this unconstitutional practice. I flew to Minnesota to witness the federal trial on the constitutionality of civil commitment. I hoped it might signal the undoing of these systems. When I started this work three years ago, many people told me this was an impossible task. I’ve found an amazing level of support.
There is space to have this conversation and a growing sense that these laws aren’t keeping kids safe. There has been a shift in public opinion and movement in the courts toward justice. I see an end to the practice of civil commitment in the near future. Monumental change is coming.
What interventions do you recommend for children who are charged with sex offenses?
Prevention is the best intervention. A significant percentage of child sexual abuse is caused by other children. We need a system focused on preventing this from happening instead of only punishing people after harm has been done. The majority of resources earmarked to protect children from harm are being dedicated to punishing people after they have broken the law: tracking them, shaming them, and keeping them from opportunities to ever make a positive contribution to society again.
The Jacob Wetterling Act was the first federal law to establish a sex offender registry. Patty Wetterling, whose son that law was named for, is now a strong advocate that our sex offender laws are causing more harm than good.
Sex offenders are not a group that garners much sympathy. How do you move the conversation from behavior to consequences—and get people to focus on the pattern of excessive incarceration and punishment that plagues our entire criminal justice system?
With the term “sex offender” we have created a single label that we apply to everyone, and we imagine them all as equally dangerous. That’s how kids end up being imprisoned indefinitely or wind up on the public sex offender registry for 25 years for behavior that occurred when they were in middle school.
The public discussion right now around just how broken our system is has become impossible to ignore. We place people in prisons in the U.S. at an epidemic rate, to the point that we are no longer just breaking apart individual lives and families, but infecting entire communities with hopelessness and a kind of permanent marginalization. More and more of our young people are finding themselves on the wrong side of these laws for behavior that wasn’t motivated by malice.
Mass incarceration has moved center stage in our national dialogue. As the average person becomes more aware of ways the systems we have built serve neither safety nor justice, and comes to realize that these systems impact all of us—even if we never personally see the inside of a courtroom or prison—politicians have also taken notice. But the only way we can address the epidemic of imprisonment in America is if we begin to have a conversation about how we treat the most vilified people in our society.
What do you hope to accomplish by the end of your project, and what do you see yourself doing in the next five to ten years?
Through my work as a Soros Justice Fellow, I will build an initiative to end the indefinite detention of youth labeled as “sexually violent predators.” This work focuses on educating the public on what policies truly contribute to public safety, versus those that merely play well as sound bites. My generation isn’t willing to tolerate the permanent marginalization of an entire segment of our society, especially when so many of them realize that they could have very easily landed in my situation.
By the conclusion of my project, I will have built and tested a framework for change built on research, public education, policy advocacy, and grassroots organizing. The progress we make will establish a model that can be replicated in other states and expanded to encompass other forms of labeling by the criminal system.
Ultimately, I intend to galvanize Americans and call for an end to systems that permanently label and exclude people from our society. I want my work to contribute to a world where what happened to me will never be allowed to happen to anyone else.
Until December 2018, Donysha Smith was a communications associate for U.S. Programs.