Law & Psychiatry Allen v. Illinois: The Fifth Amendment and the Sexually Dangerous Person Hospital and Community Psychiatry January 1987 Vol. 38 No. 1 25 Paul S. Appelbaum, M.D. The U.S. Supreme Court’s 1985- 1986 term was crowded with cases relevant to mental health. Among other rulings, the court decided that incompetent prisoners could not be executed (1); that persons illegally denied Social Security dis- ability benefits did not have to exhaust administrative proceed- ings and comply with procedural rules to obtain redress (2); and that a defendant’s apparent understand- ing of his Miranda rights at the time of arrest could not be intro- duced to negate an insanity de- fense (3). One of the less noticed , cases, however, dealing with the relatively obscure subject of the commitment of sexually disor- dered offenders, may turn out to have been the court’s most signifi- cant contribution of the year to mental health law. Allen v. Illinois (4) raised the issue of whether a defendant in a sexually dangerous person pro- ceeding has the right under the Fifth Amendment to refuse to sub- mit to a psychiatric examination. Understanding the case’s signifi- cance requires some knowledge of the controversies sexual offender statutes in general have provoked Dr. Appelbaum is A. F. Zeleznik professor of psychiatry and di- rector of the Law and Psychiatry Program at the University of Massachusetts Medical School. Address correspondence to him at the Department of Psychia- try, University of Massachusetts Medical School, 55 Lake Avenue North, Worcester, Massachu- setts 01605. and of the Supreme Court’s previ- ous decisions in the area. Sexually disordered offender (SDO) laws-also known as sexual psychopath, mentally disordered sexual offender, and sexually dan- gerous persons acts-first ap- peared on the American scene in the late 1930s. They were based on the premises that a discrete group of persons could be identi- fled whose mental disorders pre- cipitated sexual offenses; that these persons were unusually dangerous to society and required prolonged detention; and that effective treat- ment was available for their condi- tions (5). Enthusiasm for this ap- proach, stimulated by popular fears and professional optimism about treatment, led more than half the states to adopt such stat- utes by mid-century (6). Despite variations among juris- dictions, several common elements of the laws can be identified. The statutes provided for psychiatric examinations of offenders thought to meet SDO criteria, either be- fore or after a criminal trial. Charges that rendered defendants eligible for evaluation under the laws ranged from forcible rape to exhibitionism. Many statutes re- quired evidence of repetitive devi- ant behavior. Defendants found to be sexually disordered offenders could be sentenced to confine- ment, often for an indeterminate period, in a special facility that provided treatment. Release in many states was conditioned on the conclusion of the treating psy- chiatrists that the offender no long- er represented a danger of com- mitiing sexual crimes (5). The appeal of SDO statutes has waned somewhat in recent years as legal and psychiatric scholars have rejected their theoretical bases. Among the issues that have been called into question are both the relationship between discrete mental illness and the types of behavior that could lead to a find- ing of sexually disordered offender and the susceptibility of sexually disordered offenders to involun- tary treatment (5,7,8). Yet al- though the clear trend has been for states to abandon or sharply limit the scope of their SDO statutes, in 1980 a total of 20 states still re- tamed some form of the laws (6). Not long after the first SDO statutes were enacted, challenges to their constitutionality began to reach the U.S. Supreme Court. In 1940 the court supported the con- cept of special provisions for this group of offenders (9). Four other cases, considered by the court from 1967 to 1972, dealt with procedural aspects of SDO laws (10-1 3). The most important of them, Specht v. Patterson (10), man- dated that SDO proceedings fol- low many of the procedural safe- guards of criminal trials, including an attorney for the defendant and the right to introduce evidence and cross-examine witnesses. Beyond their effect on SDO proceedings, the court’s rulings had their most significant impact on the development of commit- ment law for civil patients. In re- sisting the demand for additional procedures, the defendants in these cases argued that SDO stat- utes-like civil commitment stat- utes-were designed to offer treat- ment rather than to inflict punish- ment and thus should not be bur- dened with the procedural due process requirements of the crimi- nal law. Many of the court’s deci- sions, even when the court de- dined tO decide the issue at hand, rejected this analysis, suggesting that the reality of long-term or indefinite confinement, regardless of the prospect of therapy, called for criminal-style protections. In the years that followed, a time of widespread challenges to civil commitment codes ( 14), lower courts repeatedly seized on the Supreme Court’s holdings and nonbinding dicta in these cases and