TN 2 (04-06)

PR 06805.037 North Dakota

A. PR 05-209 Region VIII States Authorizing Court-ordered Confinement of Sexual Predators

DATE: August 3, 2005

OPINION

Questions Presented

You requested that we identify the states in Region VIII with laws expressly providing for court-ordered confinement of sexually dangerous individuals, as it relates to POMS GN 02607.360, which allows suspension of Title II benefits for convicted sex offenders who are determined to be sexually dangerous and are confined to an institution under a civil commitment.

Short Answer

Out of the six states in Region VIII, only North Dakota has a statute specifically authorizing civil commitment of sexually dangerous individuals

Agency Policy

POMS GN 02607.360 provides as follows:

Section 402 of the Work Incentives Act of 1999 provides for the suspension of Title II benefits of those individuals who meet all of the following criteria (GN 02607.350):

  1. The individual had to have been confined in a jail, prison, or other state penal facility pursuant to a conviction of a criminal offense, and

  2. The criminal offense had to be related to sexual activity, and

  3. Upon completion of the conviction/sentence, the individual was immediately transferred and confined in an institution under a civil commitment (i.e., a court order) because the individual was determined to be a sexually dangerous person.

. . . .

SSA will only enforce the sexually dangerous nonpayment provisions in those states that have formal laws expressly providing for court-ordered confinement of sexually dangerous individuals. (Emphasis added).

Discussion

Pursuant to the passage of the Jacob W~ Crimes Against Children and Sexually Violent Offender Registration Act, enacted in 1994, and Megan's Law, enacted in 1996, all 50 states have laws requiring sex offender registration and community notification, and many states have more stringent laws relating to intensive supervision of sex offenders who are further classified as "sexually dangerous individuals" (also known as "sexual predators" or "sexually violent predators)." While the precise definitions vary from state to state, "sexually dangerous individuals" may be generally defined as sex offenders who are found likely to commit sexual crimes again if released from custody.

All 50 states also have laws providing for indefinite civil commitment of mentally ill individuals who are deemed to be a threat to themselves or the safety of others, including convicted criminals, individuals found not guilty by reason of insanity or mental defect, and individuals found not competent to stand trial. However, laws expressly providing for the civil commitment of sexually dangerous individuals as required under POMS GN 02607.360, are much less common. At this time, only 17 states in the country have statutes expressly authorizing civil commitment of sexually dangerous individuals.

Of the six states in Region VIII (Colorado, Utah, Wyoming, Montana, North Dakota, and South Dakota), only North Dakota has a statute expressly providing for the civil commitment of sexually dangerous individuals. See N.D. Cent. Code § 25-03-3.01 et. seq., as amended by 2005 N.D. Laws 249 (H.B. 1289).

North Dakota's law provides, in part:

An individual may not be committed unless evidence is admitted establishing that at least two experts have concluded the individual has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction that makes the individual likely to engage in further acts of sexually predatory conduct. The respondent has a right to be present, to testify, and to present and cross-examine witnesses. . . . If the respondent is found to be a sexually dangerous individual, the court shall commit the respondent to the care, custody, and control of the executive director [of the Department of Human Services]. The executive director shall place the respondent in an appropriate facility or program at which treatment is available. The appropriate treatment facility must be the least restrictive available . . . necessary to achieve the purposes of this chapter. . . . Unless the respondent has been committed to the legal and physical custody of the department of corrections and rehabilitation, the respondent may not be placed at and the treatment program for the respondent may not be provided at the state penitentiary or an affiliated penal facility. . . .

N.D. Cent. Code § 25-03.3-13.

Conclusion

In sum, of the six states in Region VIII, only North Dakota has a statute expressly authorizing civil commitment of sexually dangerous individuals for purposes of POMS GN 02607.360.

Deana R. E~
Regional Chief Counsel, Region VIII

By
Dorrelyn K. D~
Assistant Regional Counsel