Criminals convicted of committing a sexual offense are among the most deviant classes of criminals in this country. But, these offenders should be imprisoned for the crimes they commit under a criminal proceeding, thus ensuring adequate due process protection for their rights during the trial, not under a civil proceeding where fewer due process protections exist and the chance for release is nonexistent.
Under the Illinois Sexually Dangerous Persons Act (“SDPA”),2 in lieu of a criminal proceeding, the State may seek an involuntary, indeterminate commitment of a person if the person is charged with a criminal offense3 and is deemed to be “sexually dangerous.”4 Once the petition is filed, the trial court must appoint two independent psychiatrists to examine the defendant to determine if the person is in fact sexually dangerous in accordance with the act.5 The defendant is entitled to a jury trial as well as the right to counsel in these proceedings.6 The proceedings under the act are “civil in nature,”7 but the State must prove, beyond a reasonable doubt, that the defendant is a sexually dangerous person.8
If the defendant is found to be a sexually dangerous person, the court appoints the Director of Corrections as guardian, and the defendant is committed to the custody of the Director of Corrections.9 The sexually dangerous person can petition for release through an application showing recovery at any time, whereupon a socio-psychiatric report should be compiled and sent to the court to determine if the person has recovered.10 If the court finds that the person is no longer sexually dangerous, the person is discharged from the custody of the Director of Corrections.11
Tremendous controversy exists over the constitutionality of these “civil proceedings,” as well as what is required to meet the due process requirements designed to ensure adequate protection to the defendant being charged as a sexually dangerous person.12 With the Illinois Supreme Court decision in People v. Burns,13 the requirements needed to ensure adequate due process protection for the defendant might have become a little clearer; however, the controversy surrounding these types of “civil” commitments may not become any less controversial.
The Illinois Supreme Court Decision of Illinois v. Burns
On April 15, 2004, the Illinois Supreme Court overturned the appellate court decision in Illinois v. Burns,14 and held that a respondent filing an application for recovery under the Illinois SDPA is not entitled to the right of an independent psychiatric exam.15 Robert Burns was found to be a sexually dangerous person beyond a reasonable doubt in 1985 after being charged with criminal sexual abuse for allegedly having sexual contact with children every day for the previous four years.16 On May 14, 2001, Burns filed a recovery petition under Section 9 of the SDPA.17 After the filing, Burns also filed several pro se motions seeking an independent psychiatric evaluation to determine if he had recovered from being a sexually dangerous person.18 The trial court denied the respondent’s motion for an independent psychiatric evaluation, holding Burns to still be sexually dangerous.19
Burns appealed and the appellate court overturned the trial court, holding that Burns did have a right to an independent psychiatric examination under the due process clause of the U.S. Constitution.20 The appellate court performed a Matthews v. Eldridge21 balancing test to determine whether the administrative and fiscal burdens on the state were justified because of the liberty interests at issue.22 The appellate court found that there was little question that Burns’ right to liberty was interfered with under the SDPA, and there was a serious risk that his liberty would be erroneously deprived at any stage under an SDPA proceeding.23 With respect to the second factor of the Matthews v. Eldridge balancing test, the appellate court concluded, “unless the respondent is provided an independent psychiatric expert, he is virtually incapable of rebutting the State’s evidence.”24 Lastly, in holding that due process requires an independent psychiatric examination under the SDPA, the appellate court determined that the appointment of an independent psychiatrist would not be “unduly burdensome” on the state.25
On appeal, the State argued that Section 9 of the SDPA did not entitle a sexually dangerous person seeking discharge to an independent psychiatric evaluation paid for by the state,26 relying on two past Illinois Supreme Court decisions reaching a similar conclusion.27 The 1967 Illinois Supreme Court decision of People v. Capoldi held that a person filing a recovery petition under Section 9 of the SDPA was not entitled to an independent psychiatric evaluation unless the petitioner could show that the experts employed by the State “will not give an honest and unprejudiced opinion of the defendant’s mental condition.”28 Burns argued that the holding in Capoldi was not binding on the court because Capoldi was decided before the United States Supreme Court decision in Ake v. Oklahoma,29 which held that when a defendant makes a “preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial,” the Constitution requires the state to provide an independent psychiatrist to determine the defendant’s sanity.30 The Illinois Supreme Court held Ake to be distinguishable because Ake’s holding only applied in criminal cases, and this was a civil proceeding.31
The State next relied upon People v. Trainor,32 in which the Illinois Supreme Court stated that the petitioner is not entitled to an independent psychiatrist under a SDPA Section 9 recovery proceeding.33 The court in Trainor also, however, held that the burden of proof in a recovery proceeding is on the state, not the defendant, to show beyond a reasonable doubt that the defendant is still a sexually dangerous person.34 Thereafter, Burns argued that since the burden of proof on the state is the same as the burden of proof at the initial determination of sexual dangerousness, “it follows that because independent psychiatric evidence is required to initially commit a respondent, independent psychiatric evidence is required at the recovery stage.”35 The court disagreed with Burns’ interpretation of Trainor and held that had the court in Trainor intended to require an independent psychiatrist at the recovery proceeding, it would have said so. Instead, the court in Trainor twice stated that the respondent in a recovery proceeding under Section 9 of the SDPA was not entitled to an independent psychiatric evaluation.36
Following the discussion of Capoldi and Trainor, the court engaged in its own Matthews v. Eldridge balancing test, thus rejecting the appellate court’s holding that the liberty interests of a respondent in a Section 9 proceeding outweighed the fiscal and administrative burdens on the state in providing an independent psychiatrist.37 Under the first Matthews factor, the supreme court agreed that “civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.”38
The Illinois Supreme Court, however, disagreed with the appellate court’s analysis under the second factor in Matthews39 and held that Burns would not be placed at an “extreme disadvantage” in the proceeding if he was not granted an independent psychiatric evaluation.40 The court refused to make the assumption, as it found the appellate court had done, that the mental health professionals at the institution where Burns was confined would prepare a biased socio-psychiatric report in order to keep Burns incarcerated at the institution.41 “The Department professionals treating respondent are most knowledgeable about respondent’s problems and progress toward recovery, and are in the best position to know if respondent has recovered.”42 The Department professionals “are untainted by their employment,”43 and do not always testify against a respondent in a recovery proceeding.44 The court also disagreed with the appellate court’s holding that the respondent would be virtually incapable of rebutting the State’s evidence because there are numerous safeguards to protect the respondent in a recovery proceeding.45 The respondent has the ability to move for an independent psychiatrist upon a showing of bias, the respondent has the right to counsel who can cross-examine the Department experts, and the respondent has the right to a jury trial, all which the court held ensure adequate protection for the respondent in a recovery proceeding.46
Lastly, under the third Matthews factor, the court held the fiscal and administrative burdens on the state in providing an independent psychiatrist would be serious because there is no limit to the number of petitions for recovery a respondent can file.47 This finding, along with the court’s finding under the second Matthews factor and the previous holdings of the court in Capoldi and Trainor, resulted in the court holding that the State did not have to provide an independent psychiatric evaluation to a respondent under a SDPA Section 9 recovery proceeding.48
Should an Independent Psychiatrist be Appointed to Respondents under the Illinois Sexually Dangerous Persons Act?
The Illinois Supreme Court holding in Burns, while clarifying that it regards appointing an independent psychiatrist to be unnecessary, is not without possible controversy. While a recovery proceeding under Section 9 of the SDPA merely requires that a socio-psychiatric report is prepared by a social worker and psychologist at the institution where the applicant is confined,49 the determination of whether a person is a “sexually dangerous person” is being made, not by psychiatrists who are independent, but by social workers and psychologists who are employed by the state and might not be as qualified as a psychiatrist.50 Social workers, not judges, juries, or even psychiatrists, are keeping people in prison for crimes that the defendants have not been convicted of, because the social worker has determined that someone remains a “sexually dangerous person” under the SDPA.
In Burns, Dr. Mark Carich, an unlicensed psychologist made the determination that the respondent in the recovery proceeding was still a “sexually dangerous person.”51 In fact, Section 9 of the SDPA merely requires that the socio-psychiatric report determining whether the respondent remains a “sexually dangerous person” be prepared by “a social worker and psychologist under the supervision of a licensed psychiatrist” at the institution to which respondent is confined.52 While the court in Burns held Dr. Carich to be qualified to make this determination,53 as have several other courts,54 it should still be troubling that unlicensed social workers, who work for the state, can make the determination of whether a person should remain in prison as a “sexually dangerous person.”55 Robert Burns, has been incarcerated since 1985, without having been convicted of a crime, and a social worker is the person who is deemed qualified to determine if he should stay incarcerated,56 which is fundamentally unfair.
The court in Capoldi stated that the Illinois Supreme Court has held that proceedings under the SDPA require the defendant be afforded “the same procedural safeguards available to an accused in a criminal trial even though the proceedings are civil in nature.”57 While the court in Capoldi went on to state that a respondent in a recovery proceeding is not entitled to an independent psychiatrist unless a showing of bias is made,58 the United States Supreme Court in Ake v. Oklahoma59 held that where a defendant’s mental condition is relevant to his criminal culpability and the punishment he might suffer, the State must provide an indigent defendant an independent psychiatrist to be able to present his claims fairly.60 This argument was heard and rejected by the Illinois Supreme Court in Burns, but the similarity between the Illinois SDPA and a criminal proceeding might make this argument a little more viable.
The U.S. Supreme Court in a 5-4 decision in Allen v. Illinois61 held that the Illinois SDPA is not a criminal proceeding, but was a civil proceeding.62 The court so held because it found that the goal of the statute is treatment and not punishment,63 and that “the State has disavowed any interest in punishment, provided for the treatment of those it commits, and established a system under which committed persons may be released after the briefest time in commitment.”64 The Court did state, however, that if the person committed could show that the confinement was “essentially identical” to that imposed upon felons without the need for psychiatric care, then it might have found the SDPA to be a criminal statute, not a civil one.65
The dissent in Allen states that the commitment endured by a civil detainee under the SDPA is just that, “essentially identical” to that of a felon without the need for psychiatric care.66 The dissent so argues for several reasons: 1) a proceeding under the SDPA starts with a person being charged with a criminal offense; 2) the decision of whether to bring an SDPA charge, much like the decision to bring a criminal charge, rests with the Attorney General or State’s Attorney; 3) the burden of proof required to commit someone under the SDPA is beyond a reasonable doubt; 4) much like a criminal case, if the State meets this burden, the defendant is placed in the custody of the Director of Corrections; and 5) the SDPA defines a “sexually dangerous person” with respect to criminal law.67 This is not to mention that under the SDPA, the person charged is entitled to the right of counsel and a jury trial.68
Further showing the criminal nature of the SDPA, the dissent stated that a goal of treatment is not enough to prevent a characterization of the statute as criminal.69 If this were the case, then the State could create “an entire corpus of ‘dangerous person’ statutes to shadow its criminal code.”70 The program to treat these “civil detainees” is not even mandatory, as Robert Burns could attend or withdraw from the program at will.71 “Moreover, the stigma associated with an adjudication as a ‘sexually dangerous person’ is at least as great as that associated with most criminal convictions and ‘is certainly more damning than a finding of juvenile delinquency.”72
If the proceedings under the Illinois SDPA are given criminal status, as opposed to being a civil proceeding, then the U.S. Supreme Court decision in Ake would require independent psychiatrists be appointed for all proceedings under the SDPA because the mental state of the defendant is always at issue in determining if the defendant is sexually dangerous.73 The proceedings under the Illinois SDPA are almost inherently criminal, with all of the ill-effects that come with a criminal proceeding, but not all of the due process protections that the Constitution affords in a criminal proceeding.
Lastly, the Illinois Supreme Court in People v. Trainor74 held that in a recovery proceeding under Section 9 of the SDPA, the state has the burden of proof to show beyond a reasonable doubt that the respondent is still a “sexually dangerous person,”75 which is the same burden on the state in a Section 4 initial commitment proceeding.76 However, the court in Burns held that although the same burden is put on the state in a recovery proceeding as in an initial commitment proceeding, this does not entitle the respondent to be appointed two independent psychiatrists.77 Section 4 of the SDPA permits the court to appoint two psychiatrists to make an examination of the alleged sexually dangerous person,78 but the court in Burns held that nothing in Section 4 of the SDPA permitted the respondent to retain his own independent psychiatrists in a Section 9 proceeding.79
Although the court in Burns seems to resolve the argument that the respondent is not entitled to an independent psychiatric evaluation under a Section 9 proceeding merely because the burden of proof was put on the state per Trainor, it is still possible to make an argument that Section 9 at least requires psychiatrists to make the sexually dangerous determination, and not social workers and psychologists at the state institution. The burden of proof in both an initial commitment and a recovery proceeding is beyond a reasonable doubt that the person is a “sexually dangerous person.” Section 4 initial commitment proceedings require that “two qualified psychiatrists” make a personal evaluation of the person charged to meet this burden. 80 Arguably, therefore, two qualified psychiatrists must be making this determination in a Section 9 recovery proceeding to meet the burden of beyond a reasonable doubt. Section 9 merely requires that a socio-psychiatric report is compiled by a social worker and psychologist employed at the institution where the respondent is confined, but if this is not enough to meet the state’s burden in a Section 4 initial commitment proceeding,81 then it should not be enough to keep the respondent confined under a Section 9 proceeding since the state has the same burden in both cases.82 No due process protection is afforded the person committed as sexually dangerous in a recovery proceeding when Section 4 requires “two qualified psychiatrists” evaluate the person charged in order to initially confine a person under the SDPA,83 but only a report by a sociologist and psychologist, who might not be as qualified as the psychiatrists, to keep the person confined indeterminately.84
Sexually dangerous persons like Robert Burns are being sent to prison for an indeterminate time period by psychiatrists, kept there by social workers, and all without ever having been convicted of a crime.85 Sexually dangerous persons like Robert Burns do not deserve to be outside of a prison if the acts he committed can be proven, but this should be done under a criminal proceeding with all the due process protections the Constitution affords. Civil commitments under the Illinois SDPA are an easy way for the state to get what it wants, the sexually dangerous person off the streets, but without granting the due process protections that the person charged should be afforded, and this practice “ought to concern us greatly.”86
1 David J. Gottlieb, Preventative Detention of Sex Offenders, 50 U. Kan. L. Rev. 1031, 1032 (2002).
2 725 Ill. Comp. Stat. 205/0.01–12 (2002).
3 Id. at § 3.
4 The definition of a “sexually dangerous person” as used in the act is:
All persons suffering from a mental disorder, which mental disorder has existed for a period of not less than one year, immediately prior to the filing of the petition hereinafter provided for, coupled with criminal propensities to the commission of sex offenses, and who have demonstrated propensities toward acts of sexual assault or acts of sexual molestation of children. Id. at § 1.01.
5 Id. at § 4.
6 Id. at § 5.
7 Id. at § 3.01.
8 725 Ill. Comp. Stat. 205/3.01 (2002).
9 Id. at § 8.
10 “The report shall be prepared by a social worker and psychologist under the supervision of a licensed psychiatrist assigned to, the institution wherein such applicant is confined.” Id. at § 9.
12 See, e.g., Gottlieb, supra note 1 (discussing the criminal nature of the Kansas sexually violent predator statutes); Allen v. Illinois, 478 U.S. 364 (1986) (discussing whether the Illinois SDPA is a criminal or civil statute).
13 People v. Burns, No. 95987 (Ill. April 15, 2004), available at http://www.state.il.us/court/Opinions/SupremeCourt/2004/April/Opinions/Html/95987.htm, 2004 WL 804182 (Ill.) (hereinafter all pinpoint citations will be made to the Westlaw citation and star pagination).
14 The Illinois Appellate Court (Third District) held that a respondent in a recovery proceeding under the Illinois Sexually Dangerous Persons Act had a due process right to an independent psychiatric exam upon filing the petition. People v. Burns, 785 N.E.2d 1042 (Ill. App. Ct. 2003) [hereinafter Burns Appellate Court].
15 Burns, 2004 WL 804182, at *11.
16 Id. at *2.
17 Id. at *2. Section 9 of the SDPA provides that any person found to be a sexually dangerous person can file a petition showing recovery in order to seek discharge. 725 Ill. Comp. Stat 205/9 (2002).
18 Burns, 2004 WL 804182, at *2-3. Included in this motion was a motion that alleged that Dr. Ijaz Ahmad Jatala, a psychiatrist employed by the Department of Corrections, would not conduct an independent examination, and would instead prepare a socio-psychiatric report merely consisting of “boilerplate language and inserting respondent’s name.” Id. at *3.
19 Id. at *3. This finding was based mostly on the testimony of Dr. Jatala and Dr. Mark Carich who found that Burns would be a high risk to reoffend if released. Id. at *3.
20 Burns Appellate Court, 785 N.E.2d at 1046-47.
21 424 U.S. 319 (1976).
22 According to Matthews v. Eldridge, the three factors when considering a due process issue are: 1) the liberty or property interest with which the state has interfered; 2) the risk of erroneous deprivation of the interest through the procedures already in place and the probable value of additional or substitute procedural safeguards; and 3) the effect the administrative and fiscal burdens would have on the State. Burns Appellate Court, 785 N.E.2d at 1045. See also Matthews v. Eldridge, 424 U.S. at 335.
23 Burns Appellate Court, 785 N.E.2d at 1045. “Disallowing a request for an independent examination places the respondent at an extreme disadvantage. The jury is left only with the State’s expert opinion as to the respondent’s mental state.” Id. at 1045-46.
24 Id. at 1046. Although the respondent is allowed to petition the court for an independent psychiatrist after a showing of bias or prejudice, this safeguard is not adequate protection because the respondent, often, lacks the “means with which to prove such a theory.” Id.
26 Burns, 2004 WL 804182, at *5.
27 People v. Capoldi, 225 N.E.2d 634 (Ill. 1967); People v. Trainor, 752 N.E.2d 1055 (Ill. 2001).
28 Burns, 2004 WL 804182, at *6. See Capoldi, 225 N.E.2d at 638.
29 470 U.S. 68 (1985).
30 Ake, 470 U.S. at 74. See also Burns, 2004 WL 804182, at *6.
31 Burns, 2004 WL 804182, at *6. See Allen v. Illinois, 478 U.S. 364, 372 (1986) (holding the Illinois SDPA to be a civil proceeding, not a criminal proceeding).
32 752 N.E.2d 1055 (Ill. 2001).
33 Trainor, 752 N.E.2d at 1068.
34 Id. at 1065.
35 Burns, 2004 WL 804182, at *7.
36 Id. at *7.
37 Id. at *8.
38 Addington v. Texas, 441 U.S. 418, 425 (1979). See Burns, 2004 WL 804182, at *8.
39 Burns, 2004 WL 804182, at *8. The appellate court held that there was a serious risk of erroneous deprivation of Burns’ liberty by not granting a review by an independent psychiatrist because without one, Burns would be “virtually incapable of rebutting the State’s evidence.” Id. at *8.
44 The Department expert in this case, Dr. Carich, had testified as an expert at least 80 times and supported a respondent’s application for release 19 times. Id.
45 Burns, 2004 WL 804182, at *9.
47 Id. at *8.
48 Id. at *11.
49 725 Ill. Comp. Stat. 205/9 (2002).
50 Id. See Burns, 2004 WL 804182, at *10-11.
51 Burns, 2004 WL 804182, at *10. See 725 Ill. Comp. Stat. 205/9 (2002) (stating that the socio-psychiatric report be prepared by a social worker and psychologist under a Section 9 recovery proceeding).
52 725 Ill. Comp. Stat. 205/9 (2002).
53 Burns, 2004 WL 804182, at *10-11.
54 See generally People v. Sizemore, 726 N.E.2d 2004 (Ill. App. Ct. 2000), overruled on other grounds, People v. Trainor, 752 N.E.2d 1055 (Ill. App. Ct. 2001); People v. Burns, 785 N.E.2d 1042 (Ill. App. Ct. 2003).
55 See People v. Burns, 785 N.E.2d at 1048 (McDade, J., concurs in part and dissents in part).
“Carich is not and has never been a “psychologist” and has never had his psychological competence tested. I would find that he does not satisfy the plain language of the statute [725 Ill. Comp. Stat. 205/9 (2002)] and that he is not trained or demonstrably competent to perform the evaluations and draw the conclusions called for in the socio-psychiatric report. Id. (McDade, J., concurs in part and dissents in part).
56 Burns, 2004 WL 804182, at *1.
57 People v. Capoldi, 225 N.E.2d 634.
58 Id. at 638.
59 470 U.S. 68 (1985).
60 Id. at 82.
61 478 U.S. 364 (1986).
62 Id. at 375.
63 Id. at 367.
64 Id. at 370.
65 Id. at 373.
66 Id. at 376 (Stevens, J., dissenting). “When the criminal law casts so long a shadow on a putatively civil proceeding, I think it is clear that the procedure must be deemed a “criminal case” within the meaning of the Fifth Amendment.” Id. (Stevens, J., dissenting).
67478 U.S. 364, 377-78 (Stevens, J., dissenting).
68 725 Ill. Comp. Stat. 205/5 (2002).
69 Allen, 478 U.S. at 380 (Stevens, J., dissenting).
70 Id. (Stevens, J., dissenting).
71 Burns, 2004 WL 804182, at *3. “Plaintiffs are free to turn down the treatment Illinois offers. This may make it harder to show that their problems are behind them, that release is in order, and that the criminal charges should be dismissed, but this does not make the choice any less willing or intelligent.” Allison v. Snyder, 332 F.3d 1076, 1080 (7th Cir. 2003).
72 Allen, 478 U.S. at 377 (Stevens, J., dissenting).
73 See Ake v. Oklahoma, 470 U.S. 68, 74 (1985).
74 752 N.E.2d 1055 (Ill. 2001).
75 Id. at 1063-65.
76 725 Ill. Comp. Stat. 205/4 (2002).
77 Burns, 2004 WL 804182, at *7.
78 725 Ill. Comp. Stat. 205/4 (2002).
79 Burns, 2004 WL 804182, at *7.
80 725 Ill. Comp. Stat. 205/4 (2002).
81 Id. at § 4. To meet the burden under Section 4, two qualified psychiatrists must make a personal evaluation of the person charged as being sexually dangerous.
82 Id. at §§ 4-5.
83 Id. at § 4.
84 Id. at § 9.
85 “Many of the approximately 140 adjudicated sexually dangerous persons in custody have never actually been convicted of the crimes that led to their commitments, since the state’s goal of getting them off the street has been met. Helen W. Gunnarsson, Illinois Bar Journal Practice News, 90 Ill. B.J. 12 (2002).
86 Gottlieb, supra note 1, at 1032.
Matt Keegan is entering his third year as a law student at Northern Illinois University. He is a member of the Northern Illinois University Law Review, and this year will be a Notes a Comments Editor. He would like to thank his friends and family for the love and support they show him throughout his entire law school experience.