Some jurisdictions may
commit certain types of dangerous
sex offender
A sex offender (sexual offender, sex abuser, or sexual abuser) is a person who has committed a sex crime. What constitutes a sex crime differs by culture and legal jurisdiction. The majority of convicted sex offenders have convictions for crime ...
s to state-run detention facilities following the completion of their
sentence if that person has a "mental abnormality" or
personality disorder
Personality disorders (PD) are a class of mental disorders characterized by enduring maladaptive patterns of behavior, cognition, and inner experience, exhibited across many contexts and deviating from those accepted by the individual's culture ...
that makes the person likely to engage in sexual offenses if not confined in a secure facility.
In the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
, twenty states, the federal government, and the
District of Columbia
)
, image_skyline =
, image_caption = Clockwise from top left: the Washington Monument and Lincoln Memorial on the National Mall, United States Capitol, Logan Circle, Jefferson Memorial, White House, Adams Morgan, ...
have a version of these commitment laws, which are referred to as "Sexually Violent Predator" (SVP) or "Sexually Dangerous Persons" laws.
Generally speaking, SVP laws have three elements:
(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 that is not identical to a
mental disorder
A mental disorder, also referred to as a mental illness or psychiatric disorder, is a behavioral or mental pattern that causes significant distress or impairment of personal functioning. Such features may be persistent, relapsing and remitti ...
, though experts generally refer to diagnoses contained in the
Diagnostic and Statistical Manual of Mental Disorders
The ''Diagnostic and Statistical Manual of Mental Disorders'' (DSM; latest edition: DSM-5-TR, published in March 2022) is a publication by the American Psychiatric Association (APA) for the classification of mental disorders using a common langua ...
(DSM) as evidence of a mental abnormality.
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).
History
In 1990, the first SVP law was established in the state of
Washington
Washington commonly refers to:
* Washington (state), United States
* Washington, D.C., the capital of the United States
** A metonym for the federal government of the United States
** Washington metropolitan area, the metropolitan area centered on ...
, following two high-profile sexual assaults and murders by
Earl Kenneth Shriner
Earl Kenneth Shriner is an American criminal who in 1990 was convicted of first-degree attempted murder, first-degree rape and first-degree assault of seven-year-old Ryan Alan Hade and sentenced to 131 years' imprisonment.
Criminal career
Shrin ...
and Gene Kane. In response to the attacks, Helen Harlow—the mother of Earl Shriner's victim—formed a group known as
The Tennis Shoe Brigade in order to pressure the state government to change the laws related to sex offenders. Washington Governor
Booth Gardner
William Booth Gardner (August 21, 1936 – March 15, 2013) was an American politician who served as the 19th governor of Washington from 1985 to 1993. He also served as the ambassador of the GATT. A member of the Democratic Party, Gardner previ ...
formed the Task Force on Community Protection to consider possible solutions.
While the Task Force deliberated, serial killer
Westley Allan Dodd
Westley Allan Dodd (July 3, 1961 – January 5, 1993) was an American convicted serial killer and sex offender. In 1989, he sexually assaulted and murdered three young boys in Vancouver, Washington. He was arrested later that year after a failed ...
kidnapped, raped, and murdered three young boys in
Vancouver, Washington
Vancouver is a city on the north bank of the Columbia River in the U.S. state of Washington, located in Clark County. Incorporated in 1857, Vancouver has a population of 190,915 as of the 2020 census, making it the fourth-largest city in Was ...
, for which he was executed by hanging. The state legislature, following the recommendation of the Task Force, 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, labeled by the state "sexually violent predators", who were "extremely dangerous" due to their "likelihood of engaging in repeat acts of predatory sexual violence
einghigh" (Kansas v. Hendricks (1997) 521 U.S. 346, 351).
In order for the imprisoning of these individuals, without new 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 the 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
Some jurisdictions may commit 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 ...
seemed to be one not directed at any legitimate 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 2010, 20 states and the
District of Columbia
)
, image_skyline =
, image_caption = Clockwise from top left: the Washington Monument and Lincoln Memorial on the National Mall, United States Capitol, Logan Circle, Jefferson Memorial, White House, Adams Morgan, ...
have enacted laws similar to Washington's.
The Federal Government established its sex offender commitment process when it passed the
Adam Walsh Child Protection and Safety Act
The Adam Walsh Child Protection and Safety Act is a federal statute that was signed into law by U.S. President George W. Bush on July 27, 2006. The Walsh Act organizes sex offenders into three tiers according to the crime committed, and mand ...
.
[Jesse J. Holland]
Court: Sexually dangerous can be kept in prison
Associated Press
The Associated Press (AP) is an American non-profit news agency headquartered in New York City. Founded in 1846, it operates as a cooperative, unincorporated association. It produces news reports that are distributed to its members, U.S. newspa ...
. Retrieved 5-16-2010.
Civil confinement
Civil confinement is the formal legal process by which persons convicted of certain sexual offenses (generally violent
sex offender
A sex offender (sexual offender, sex abuser, or sexual abuser) is a person who has committed a sex crime. What constitutes a sex crime differs by culture and legal jurisdiction. The majority of convicted sex offenders have convictions for crime ...
s) may be subject to
involuntary commitment
Involuntary commitment, civil commitment, or involuntary hospitalization/hospitalisation is a legal process through which an individual who is deemed by a qualified agent to have symptoms of severe mental disorder is detained in a psychiatric hos ...
upon completion of a prison sentence, and is a potential penalty of sexually violent predator laws.
Process
Although the exact details of the legal process may vary from state to state, the
United States Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
reviewed and upheld as constitutional a statutory process adopted in Kansas. See ''
Kansas v. Hendricks
''Kansas v. Hendricks'', 521 U.S. 346 (1997), was a Supreme Court of the United States, United States Supreme Court case in which the Court set forth procedures for the indefinite civil commitment of prisoners convicted of a sex offense whom the s ...
'', 521 U.S. 346 (1997). There, civil confinement proceedings could be initiated against "any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence." Many of those terms were themselves defined in the statute, including "mental abnormality," defined as "congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others." ''Id''.
If a prison identified an inmate who was about to be released but potentially fit this definition, the prison authorities were required to notify the local prosecutor of the impending release. The prosecutor was then required to decide whether to petition for commitment. The court would then have to determine whether probable cause existed to support the inmate's status as a "sexually violent predator," and, upon such a determination, order the inmate to be psychologically evaluated. The psychological evaluation would then form the basis of a further trial to determine whether the inmate qualified as a violent sexual predator. Upon such a determination, the inmate would be subject to involuntary commitment at a medical facility until such time as his mental abnormality had changed and it was safe to release him.'' Id''. at 353. The court would then be required to conduct an annual review of the determination, and the inmate would always be allowed to petition for freedom under the same standards. The Supreme Court concluded that this process met previously established standards of constitutional
substantive due process
Substantive due process is a principle in United States constitutional law that allows courts to establish and protect certain fundamental rights from government interference, even if only procedural protections are present or the rights are unen ...
governing voluntary confinement, did not constitute
double jeopardy
In jurisprudence, double jeopardy is a procedural defence (primarily in common law jurisdictions) that prevents an accused person from being tried again on the same (or similar) charges following an acquittal or conviction and in rare case ...
because the proceedings were civil rather than criminal, and was not an ex post facto law for the same reason. ''Id''. at 353–371. In a following case, the United States Supreme Court clarified that the government must demonstrate that the inmate has at least a serious lack of ability to control his behavior. ''
Kansas v. Crane
''Kansas v. Crane'', 534 U.S. 407 (2002), is a United States Supreme Court case in which the Court upheld the Kansas Sexually Violent Predator Act ( SVPA) as consistent with substantive due process. The Court clarified that its earlier holding in ...
'' 534 U.S. 407 (2002). The Supreme Court has also determined that Congress has the authority to pass a similar law affecting federal prisoners. ''
United States v. Comstock
United may refer to:
Places
* United, Pennsylvania, an unincorporated community
* United, West Virginia, an unincorporated community
Arts and entertainment Films
* United (2003 film), ''United'' (2003 film), a Norwegian film
* United (2011 film) ...
'', 560 U.S. 126 (2010).
Twenty states have civil commitment facilities, as of 2018.
Controversy
As with
civil commitment
Involuntary commitment, civil commitment, or involuntary hospitalization/hospitalisation is a legal process through which an individual who is deemed by a qualified agent to have symptoms of severe mental disorder is detained in a psychiatric hos ...
generally, civil confinement is a controversial implementation of state power. Detractors point to the prospect of indefinite detention without due process of law. Proponents cite public safety.
State legislatures who have decided to adopt civil confinement statutes have expressed the intent of the laws in their enactments. One example is the State of Washington, which explained:
:The legislature finds that a small but extremely dangerous group of sexually violent predators exist who do not have a mental disease or defect that renders them appropriate for the existing involuntary treatment act . . . which is intended to be a short-term civil commitment system that is primarily designed to provide short-term treatment to individuals with serious mental disorders and then return them to the community. In contrast to persons appropriate for civil commitment . . . sexually violent predators generally have personality disorders and/or mental abnormalities which are unamenable to existing mental illness treatment modalities and those conditions render them likely to engage in sexually violent behavior. The legislature further finds that sex offenders' likelihood of engaging in repeat acts of predatory sexual violence is high. The existing involuntary commitment act . . . is inadequate to address the risk to reoffend because during confinement these offenders do not have access to potential victims and therefore they will not engage in an overt act during confinement as required by the involuntary treatment act for continued confinement. The legislature further finds that the prognosis for curing sexually violent offenders is poor, the treatment needs of this population are very long term, and the treatment modalities for this population are very different than the traditional treatment modalities for people appropriate for commitment under the involuntary treatment act.
Legal challenges
In 1997, The
U.S. Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
upheld the constitutionality of SVP laws in
Kansas v. Hendricks
''Kansas v. Hendricks'', 521 U.S. 346 (1997), was a Supreme Court of the United States, United States Supreme Court case in which the Court set forth procedures for the indefinite civil commitment of prisoners convicted of a sex offense whom the s ...
. 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—those to whom the state referred as "sexually violent predators"—who were "extremely dangerous" due to their "likelihood of engaging in repeat acts of predatory sexual violence
einghigh." (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
aslinked 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
''Kansas v. Crane'', 534 U.S. 407 (2002), is a United States Supreme Court case in which the Court upheld the Kansas Sexually Violent Predator Act ( SVPA) as consistent with substantive due process. The Court clarified that its earlier holding in ...
(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 typical recidivist as well as the overwhelming majority of former sex offenders who will never reoffend.
See also
*
California Proposition 83 (2006)
Proposition 83 of 2006 (also known as the Sexual Predator Punishment and Control Act: Jessica's Law or simply, Jessica's Law) was a statute enacted by 70% of California voters on November 7, 2006, authored by State Senator George Runner ( R-Antelop ...
*
:Civil commitment of sex offenders
*
Imprisonment for public protection In England and Wales, the imprisonment for public protection (IPP; ) sentence was a form of indeterminate sentence introduced by section 225 of the Criminal Justice Act 2003 (with effect from 2005) by the Home Secretary, David Blunkett, and abolishe ...
(England and Wales)
*
Preventive detention
Preventive detention is an imprisonment that is putatively justified for non-punitive purposes, most often to prevent (further) criminal acts.
Types of preventive detention
There is no universally agreed definition of preventive detention, and mu ...
*
Recidivism
Recidivism (; from ''recidive'' and ''ism'', from Latin ''recidīvus'' "recurring", from ''re-'' "back" and ''cadō'' "I fall") is the act of a person repeating an undesirable behavior after they have experienced negative consequences of th ...
*
Sex offender
A sex offender (sexual offender, sex abuser, or sexual abuser) is a person who has committed a sex crime. What constitutes a sex crime differs by culture and legal jurisdiction. The majority of convicted sex offenders have convictions for crime ...
*
Sex offender registry
A sex offender registry is a system in various countries designed to allow government authorities to keep track of the activities of sex offenders, including those who have completed their criminal sentences. In some jurisdictions, registration i ...
**
Sex offender registries in the United States
Sex offender registries in the United States exist at both the federal and state levels. Registries contain information about persons convicted of sexual offenses for law enforcement and public notification purposes. All 50 states and the Distric ...
*
Sexual predator
A sexual predator is a person seen as obtaining or trying to obtain sexual contact with another person in a metaphorically "predatory" or abusive manner. Analogous to how a predator hunts down its prey, so the sexual predator is thought to "hunt" ...
*''
Smith v. Doe'', 538 U.S. 84 (
Supreme Court of the United States
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
, 2003)
*''
United States v. Comstock
United may refer to:
Places
* United, Pennsylvania, an unincorporated community
* United, West Virginia, an unincorporated community
Arts and entertainment Films
* United (2003 film), ''United'' (2003 film), a Norwegian film
* United (2011 film) ...
''
References
Further reading
* La Fond, John Q. und Winick, Bruce J. (eds.): ''Protecting society from sexually dangerous offenders: law, justice, and therapy.''
American Psychological Association
The American Psychological Association (APA) is the largest scientific and professional organization of psychologists in the United States, with over 133,000 members, including scientists, educators, clinicians, consultants, and students. It ha ...
, 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.
*
*
*
*
*
*
External links
Washington Department of Social and Health Services informational page on SVPsColorado Division of Criminal Justice SVP assessment screening guidelinesCalifornia SVP law ruled constitutionalCapcentral.orgGoogle BooksCivil Commitment of Sexually Dangerous PersonsCRS Report for Congress, July 2007
{{DEFAULTSORT:Sexually Violent Predator Laws
Sex crimes
Criminology
Sex laws
Civil commitment of sex offenders
Mental health law
Mental health law in the United States