Abusing state power or controlling risk?: sex offender commitment and Sicherungverwahrung.

• Author: Demleitner, Nora V.

INTRODUCTION

This Article addresses a paradigmatic, risk-based collateral sanction--the so-called "civil commitment" for "sexually predatory" offenders. Even though the number of individuals covered by such statutes is relatively small, civil confinement for this group of individuals presents the starkest example of a collateral sanction. It deprives an offender of one of the most important aspects of life--liberty. Sex offender commitment statutes reflect the state's increasing acceptance of its crucial role in managing the risk criminal offenders pose to public safety, often at the expense of individual liberties. (1)

Sex offender commitment statutes constitute risk-based collateral sanctions that employ the power of the state to confine individuals based on a prediction of future dangerousness against the individual's right to liberty. (2) Ultimately, it clearly presents the issue as to what extent and how the community can protect itself against potentially dangerous offenders, and specifically what types of sanctions society can impose after an individual has served her criminal justice sentence. (3) Implicit are questions to what extent risk-based collateral sanctions are ever defensible, (4) and what substantive and procedural protections must exist to balance the state's coercive powers against the individual's liberty interests.

In Hendricks v. Kansas, the Supreme Court specifically upheld involuntary commitment following a criminal justice sentence for a violent sexual "predator." (5) The Kansas statute allowed for such detention following a criminal justice sentence upon a jury's or judge's determination of an offender's future dangerousness resulting from a mental abnormality. (6) Once the Court characterized the sanction as "civil," it concluded that procedural protections mandated in the criminal context, such as the prohibitions on ex post facto legislation or double jeopardy, do not apply. (7) Hendricks follows the Supreme Court's uneasy parsing of so-called "civil" and criminal sanctions (8) and fails to provide a coherent picture of how the two should be reconciled.

While not without its critics, the German Sicherungsverwahrung, at least as applied prior to a recent legislative change, may provide a more satisfying blueprint for accommodating goals of punishment and risk considerations. Sicherungsverwahrung--confinement based on security concerns--may be imposed at sentencing on select offenders who are found to constitute a high risk of recidivism. (9) During Sicherungsverwahrung, the offender is supposed to be treated and rehabilitated, (10) whereas imprisonment, which precedes it, fulfills retributive and deterrent sentencing goals.

The imposition of Sicherungsverwahrung at sentencing acknowledges the direct connection between the criminal offense and the confinement, which is downplayed in United States-style civil commitments for sex offenders. (11) Moreover, it accomplishes the goals of the criminal justice system without creating uncomfortable sentence dislocations. (12) While this Article will highlight the problems with Sicherungsverwahrung, it supports an approach that borrows heavily from it as a more honest and satisfying way to accommodate the functions of sentencing while protecting public safety. The proposal, which derives from the German model, would allow for a limitation on all risk-based collateral sanctions by integrating them into the sentencing process, and acknowledging the exercise of the state's coercive powers in that process.

Part I of this Article outlines the most prevalent United States approaches to the control of sexual offenders, focusing on civil commitment and the Supreme Court's decision in Hendricks. Part II details the German Sicherungsverwahrung, which is designed to guarantee greater state control over sex offenders considered dangerous to the public. It describes the origin of the sanction and its fit into the German sentencing scheme. Moreover, it provides a critique of this sanction and outlines recent changes to the practice. In Part III, this Article proposes the adoption of a scheme based on the concept of Sicherungsverwahrung. Instead of advocating that the United States borrow the concept in toto, the Article modifies it by accepting it as a separative criminal justice sanction that makes public safety its hallmark. The proposed model responds to both the German critics of Sicherungsverwahrung and the United States critics of current sex offender commitment legislation and practice. The ultimate goal is to create a more honest, less punitive sentencing structure that assures proportionality and public safety without sacrificing individual liberties.

1. THE UNITED STATES' APPROACH TO SEX OFFENDERS

   In the wake of some highly publicized sexual offenses against children, many of which involved recidivists, the states and the federal government passed a myriad of statutes designed to control the risk sex offenders allegedly pose. (13) In a number of Western European countries and Canada, similar developments occurred. (14) While the term "sex offender" encompasses a large set of individuals ranging from the statutory or serial rapist to the individual downloading child pornography or a mere exhibitionist, the public's fear and disgust are generally centered on those violating children, and sometimes on violent rapists of adult women. (15) Nevertheless, current legislation often makes little distinction between sub-categories of sexual offenders. (16) Its focus has been on longer prison terms for all sex offenders, as well as new means to prevent the commission of future offenses upon release. (17) The baseless assumptions that all sex offenders are at a higher risk of recidivism and are uniquely unsuitable for rehabilitation have driven much of the legislation. (18)

   1. Extended Prison Terms, Notification, and Registration for Sex Offenders

      One set of statutes increased the sanctions imposed directly on sex offenders at sentencing, such as lengthened prison terms. (19) Other examples of increased sanctions are mandatory post-release supervision and strengthened supervision conditions imposed on sex offenders upon release. (20)

      The most dramatic change, though, occurred with regard to so-called collateral sanctions following release. Collateral sanctions as a whole can be grouped broadly into two categories--those which are risk-based and those which are not. The former are based on incapacitative and preventive reasoning, (21) while the latter might be defended on retributive or deterrent grounds. (22) Even though some of the sex offender-focused collateral sanctions include a risk component, disputes have arisen over their effectiveness in controlling such risk. (23)

      During the 1990s, Congressional legislation required the states to set up sex-offender registries for certain types of sex offenders in the community. (24) In 1996, through Megan's Law, named after seven-year-old Megan Kanka who was sexually abused and killed by a recidivist sex offender, Congress mandated states to release certain information about sex offenders to the public. (25) While these acts have been defended on grounds of risk control, many of them are counterproductive and drawn too broadly to be successful as preventive measures. (26) Notification statutes are misleading as the risk of re-offending is difficult, if not impossible, to assess. Many sex offender notification statutes are also drawn too broadly, as they include offenders, such as statutory rapists whose recidivism rates are very low. (27) Instead of being useful as preventive measures, these statutes divert public attention from offenders who may constitute an increased risk. Moreover, as notification is limited to specific geographic areas, ex-offenders may be able to escape heightened suspicion by leaving this area to commit further offenses. (28)

      Presumably, the only guaranteed method to prevent the further commission of sexual offenses by former sex offenders is to incapacitate them. (29) Longer prison sentences serve this purpose. Under current law, however, almost all sex offenders, barring those who commit murder in conjunction with a sex crime, will ultimately be released from prison. (30) For the most dangerous of them, a number of states have developed special legislation leading to what they term "civil commitment." (31) As the prison terms for sex offenders have been lengthened, interest in sex offender commitment statutes is likely to decline. (32)

   2. Civil Commitment for Sex Offenders

      Collateral sanctions vary in the way in which they can be imposed upon criminal offenders. (33) Some automatically follow a criminal conviction, while others must be imposed separately through an administrative process. (34) Where separate administrative action is required, the criminal conviction is a necessary, but not sufficient prerequisite for the imposition of the additional sanction. (35) Civil confinement for sex offenders falls into this category, as it must be imposed judicially or through a jury following a hearing that typically includes an array of procedural protections. (36) Statutorily, these civil commitment statutes do not require a criminal conviction. (37) A charge of a sex offense is sufficient for the institution of such proceedings, as would be an acquittal based on insanity. (38) Such civil commitment can no longer be considered a collateral sanction as it is not based on a conviction. A state, however, should not be in a position to evade limitations on collateral sanctions merely by adding triggers other than a conviction for instituting such proceedings. In addition, existing legislation has been applied largely against offenders who were about to be released from confinement after having served long sentences for sexual offenses. (39)

      Civil commitment statutes for sex offenders are arguably fashioned on civil commitment statutes for the mentally incompetent. (40) Those do not...