Sexually violent predator laws

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In the United States, some jurisdictions may involuntary commitment certain types of dangerous sex offenders to state-run detention facilities following the completion of their sentence if that person has a "mental abnormality" or personality disorder that makes the person likely to engage in sexual offenses if not confined in a secure facility.[1][2] Twenty U.S. states, the federal government, and the District of Columbia have a version of these commitment laws, which are referred to as "Sexually Violent Predator" (SVP) or "Sexually Dangerous Persons" laws.[2]

Generally speaking, SVP laws have three elements:[3] (1) That the person has been convicted of a sexually violent offense (a term that is defined applicable statutes) (2) That the person suffers from a mental abnormality and/or personality disorder, which causes him/her serious difficulty controlling his/her sexually violent behavior. (3) That this mental abnormality and/or personality disorder makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.

A "mental abnormality" is a legal term of art that is not identical to a mental illness though experts generally refer to diagnoses contained in the Diagnostic and Statistical Manual of Mental Disorders (DSM) as evidence of a mental abnormality.[4]

In most cases, commitment as an SVP is indefinite however, once a person is committed, the confining agency is constitutionally required to conduct periodic reviews of that person's mental condition. If the committed person's condition changes so he/she no longer meets commitment criteria, he/she must be released. In some circumstances, committed persons can be released to court-monitored conditional releases to less restrictive alternative placements (LRAs).[5]

History[edit]

In 1990, the first SVP law was established in Washington following two high-profile sexual assaults and murders by Earl Kenneth Shriner and Gene Kane.[6] In response to the attacks, Helen Harlow - the mother of Gene Kane's victim - formed a group known as The Tennis Shoe Brigade in order to put pressure on state government to change the laws related to sex offenders. Washington Governor Booth Gardner formed the "Task Force on Community Protection" to consider possible solutions.

While the Task Force deliberated, serial killerWestley Allan Dodd kidnapped, raped, and murdered three young boys in Vancouver, Washington. The Task force provided its recommendations to the state legislature which then enacted the "Community Protection Act of 1990."

The United States Supreme Court declared the “civil commitment” of former sex offenders was “civil” and non-punitive as the High Court’s justices presumed as true the state’s empirical claim that it had a means of identifying a class of individuals, the state referred to as “sexually violent predators”, who were “extremely dangerous” due to their “likelihood of engaging in repeat acts of predatory sexual violence [being] high.” (Kansas v. Hendricks (1997) 521 U.S. 346, 351)

In order for the imprisoning of these individuals, without any criminal charges being laid or of crimes having been committed, the U.S. Supreme court indicated that states must be able to make a distinction, between (i) the class of sex offenders who must be released after having completed their prison sentences and (ii) those who could be “civilly” detained, as this later class (unlike to former) is made up of individuals who suffered from mental abnormalities which caused them to have “serious difficulty in controlling behavior”, thus making them distinguishable “from the dangerous but typical recidivist” that must be released. (Kansas v. Crane (2002) 534 U.S. 407, 413)

Data culled over the several years these schemes have been in place have systematically demonstrated that "Sexually Violent Predator" laws were imprisoning individuals who had not been rationally differentiated from typical recidivists or from individuals who were among the overwhelming majority of former sex offenders who would not ever reoffend. (“Do Sexually Violent Predator Laws Violate Double Jeopardy or Substantive Due Process? An Empirical Inquiry”, Prof. Tama Rice Lave, Brooklyn Law Review, 2013) One federal Court Judge surmised in 2015 that Minnesota's Sexually Violent Predator law seemed to be one not directed at any legitimat governmental purpose; rather it seemed to be designed to punish a politically unpopular class of individuals not constitutionally subject to punishment. (Karsjens, et al. v. Minnesota Department of Human Services, et al, United States District Court, District of Minnesota, Case No. 11-3659 (DFW/JJK))

As of 2015, 20 states and The District of Columbia have enacted laws similar to Washington's.[2] The Federal Government established its sex offender commitment process when it passed the Adam Walsh Child Protection and Safety Act.[7]

States with SVP Laws[edit]

Legal Challenges[edit]

In 1997, The US Supreme Court upheld the constitutionality of SVP laws in Kansas v. Hendricks. In doing so, the United States Supreme Court declared the “civil commitment” of former sex offenders was “civil” and non-punitive as the High Court’s justices presumed as true the state’s empirical claim that it had a means of identifying a class of individuals, the state referred to as “sexually violent predators”, who were “extremely dangerous” due to their “likelihood of engaging in repeat acts of predatory sexual violence [being] high.” (Kansas v. Hendricks (1997) 521 U.S. 346, 351) In the High Court’s analysis of whether the scheme served the traditionally punitive role of deterrence, the court further empirically assumed the targeted class of individuals could not be deterred – thus severe volitional impairment was required. (Hendricks, Ibid. at pages 362-363) The High Court was confident that “the confinement's duration [was] linked to the stated purposed of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others.” (Hendricks, Ibid. at pages 363) The distinction, between (i) the class of sex offenders who must be released after having completed their prison sentences and (ii) those who could be “civilly” detained, was believed to have been that the later class was made up of individuals who suffered from mental abnormalities which caused them to have “serious difficulty in controlling behavior”, thus making them distinguishable “from the dangerous but typical recidivist” that must be released. (Kansas v. Crane (2002) 534 U.S. 407, 413) In both Hendricks and Crane the state was given deferential preference in asserting its factual findings regarding this so called “sexually violent predator” class which it claimed was identifiable and distinguishable, as noted above, from recidivists who may be dangerous, but who were not subject to severe volitional impairment problems caused as a result of their mental abnormality. Recent data has indicated that the High Court's faith in the state's factual findings was misplaced. Data indicates that the states that have implemented sexually violent predator laws have failed to distinguish between those who truly suffer from mental abnormalities that cause them to suffer from severe volitional impairment likely to lead to reoffending from both the trypical recidivist as well as the overwhelming majority of former sex offenders who will never reoffend. (“Do Sexually Violent Predator Laws Violate Double Jeopardy or Substantive Due Process? An Empirical Inquiry”, Tmara Rice Lave, Brooklyn Law Review, 2013.)

See also[edit]

Literature[edit]

  • La Fond, John Q. und Winick, Bruce J. (eds.): Protecting society from sexually dangerous offenders: law, justice, and therapy. American Psychological Association, 2003.
  • “Do Sexually Violent Predator Laws Violate Double Jeopardy or Substantive Due Process? An Empirical Inquiry”, Prof. tamara Rice Lave, Brooklyn Law Review, 2013.
  • “Controlling Sexual Violent Predators: Continued Incarceration at What Costs?”, Prof. Tamara Rice Lave, New Criminal Law Review, Vol. 14 No. 2, 2011.
  • “High Risk Sex Offenders May Not Be High Risk Forever”, R. Karl Hanson, et al., Journal of Interpersonal Violence, November 3, 2013.

References[edit]

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