Civilly Committing Criminals: an Analysis of the Expressive Function of Nebraska's "dangerous Sex Offender" Commitment Procedure

• Jurisdiction: United States,Federal,Nebraska
• Citation: Vol. 85
• Publication year: 2021

85 Nebraska L. Rev. 575. Civilly Committing Criminals: An Analysis of the Expressive Function of Nebraska's "Dangerous Sex Offender" Commitment Procedure

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Marc W. Pearce(fn*)

Civilly Committing Criminals: An Analysis of the Expressive Function of Nebraska's "Dangerous Sex Offender" Commitment Procedure

TABLE OF CONTENTS

I. Introduction .......................................... 576 R
II. Sexually Violent Predator Commitments ............... 578 R
A. A Brief Overview of the History of the Legal
Treatment of Sex Offenders ....................... 578 R
B. The Washington Sexually Violent Predator
Commitment Procedure ........................... 580 R
1. In re Young: The Washington Supreme Court
Considers the Constitutionality of Sexually
Violent Predator Commitments ................ 584 R
a. Ex Post Facto and Double Jeopardy
Challenges: The Washington Supreme Court
Determines that the Sexually Violent
Predator Commitment Statute is "Civil" in
Nature .................................... 586 R
b. The Washington Supreme Court Concludes
that Sexually Violent Predator Commitments
Comport with Principles of Substantive Due
Process .................................... 587 R
2. Young v. Weston: The United States District
Court for the Western District of Washington
Rejects the Washington Supreme Court's

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Analysis of the Constitutionality of the Sexually
Violent Predator Commitment Procedure ....... 590 R
a. Ex Post Facto and Double Jeopardy
Challenges: The District Court Determines
that the Sexually Violent Predator
Commitment Statute is "Criminal" in
Nature .................................... 590 R
b. The District Court Concludes that Sexually
Violent Predator Commitments Do Not
Comport with Principles of Substantive Due
Process .................................... 592 R
C. The Kansas Sexually Violent Predator Act ......... 594 R
D. The Aftermath of Hendricks ....................... 600 R
1. Andre Brigham Young and the Notion that a
Statute Might Be Punitive "As Applied" ........ 601 R
2. The Inability to Control One's Dangerousness . . 603 R
E. Conclusion ........................................ 605 R
III. The Nebraska Sex Offender Commitment Act .......... 606 R
A. Background ....................................... 607 R
B. The Sex Offender Commitment Act: A Brief
Overview .......................................... 609 R
C. A Comparison of the Sex Offender Commitment Act
and the Sexually Violent Predator Commitment
Procedures ........................................ 611 R
IV. Condemnation, Civil Commitment, and the Expressive
Function of Convicted Sex Offender Commitments ..... 616 R
A. The Ward Analysis and the Kennedy Factors:
Deferring to Legislative Intent Without an
Operational Definition of Punishment .............. 617 R
B. Condemnation: The Expressive Function of
Punishment ....................................... 618 R
C. Condemnation and the Capacity for Criminal
Responsibility ..................................... 621 R
D. Condemnation and Ordinary Police Power Civil
Commitments ..................................... 624 R
E. The Expressive Function of Convicted Sex Offender
Commitments ..................................... 631 R
V. Conclusion ............................................ 640 R

I. INTRODUCTION

In 2006, the State of Nebraska adopted legislation that authorizes the civil commitment of convicted sex offenders who are "substantially unable to control their criminal behavior" and who "suffer from a mental illness . . . or . . . a personality disorder which makes them

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likely to engage in repeat acts of sexual violence."(fn1) This legislation, which has its origins in the "sexually violent predator" commitment statutes of Washington(fn2) and Kansas,(fn3) authorizes the continuous, indefinite confinement of sex offenders who have completed their prison terms and who do not meet the state's traditional "mentally ill and dangerous civil commitment standard."(fn4) Courts reviewing the constitutionality of the Washington and Kansas statutes struggled to categorize these unique commitments as "civil" or "criminal" dispositions and could not agree whether the commitments were predicated upon psychological impairments that justify civil deprivations of liberty. The Supreme Court ultimately resolved these controversial questions in favor of the validity of the Washington and Kansas commitment procedures.(fn5)

This Article attempts to explain the difficulty that inheres in classifying convicted sex offender commitments as civil or criminal dispositions and argues that the civil commitment of convicted sex offenders can, under certain circumstances, distort the interrelationship between criminal responsibility and psychological impairment that underlies the basic institutions of criminal justice and civil commitment in the United States. The Article is organized as follows: Part II describes the origins, terms, and controversial features of the Kansas and Washington sexual predator commitment statutes and summarizes key legal challenges that have been raised against those statutes. Part III describes the origins and terms of Nebraska's new sex offender commitment act and compares its terms to those of the Washington and Kansas statutes. It should be noted that this Article does not attempt to argue whether the cases addressing the controversial aspects of the Washington and Kansas statutes will apply with equal force to the Nebraska act; rather, it argues only that the Nebraska act, like the Washington and Kansas statutes, raises concerns about the proper functions of criminal punishment and civil commitment. Part IV briefly recounts the test employed by the Supreme Court to distinguish civil deprivations of liberty from criminal deprivations of liberty and outlines an alternate analytical framework that is consistent with the American institutions of civil commitment and criminal punishment. This framework, which is based upon the expressive function performed by criminal punishment, is then applied to convicted sex offender commitments, and the manner in which the

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most controversial of these commitments distort the distinction between criminal and civil sanctions is illustrated. Part V concludes the Article.

II. SEXUALLY VIOLENT PREDATOR COMMITMENTS

Historically, states have struggled to determine the appropriate legal institution for dealing with sex offenders.(fn6) A metaphorical pendulum swung from a preference for criminal punishment to one for civil commitment, and back again to punishment,(fn7) until the pendulum was, in a sense, thrust in both directions simultaneously with the adoption of the "sexually violent predator" commitment procedure in the State of Washington.(fn8) The new procedure redefined the sort of psychological impairment that would support a commitment and, in some cases, eliminated the standard commitment statute's requirement that an individual's dangerousness be proved by evidence of a recent overt act.(fn9) Courts were soon called upon to evaluate the constitutionality of this new procedure, as well as a similar procedure that was adopted in Kansas.(fn10) Two main areas of concern emerged. First, courts had difficulty determining whether sexually violent predator commitments were actually civil or criminal in nature. Second, the courts struggled to determine whether the statutes' commitment criterion of "mental abnormality or personality disorder" satisfied the substantive due process component of the Fourteenth Amendment. Courts reached different conclusions on each of these issues; indeed, the Supreme Court was required to analyze each issue twice in order to address adequately the lower courts' concerns about the civil or criminal status of the commitments and the substantive nature of psychological impairments that could justify a civil deprivation of liberty.

This Part presents a brief overview of the legal treatment of sex offenders during the past century before proceeding to describe the circumstances that led to the adoption of the sexually violent predator commitment statutes in Washington and Kansas, the terms of the statutes, and courts' analyses of their constitutionality.

A. A Brief Overview of the History of the Legal Treatment of Sex Offenders

Over the course of the last century in the United States, sex offenders have been alternately punished as criminals and committed as

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"psychopaths."(fn11) Before the 1930s, the criminal law generally treated sex offenders no differently than it treated other criminals, and "the assignation of blame and punishment, typically via criminal conviction and incarceration, was the chief goal" of the legal response.(fn12) Early in the twentieth century, however, "a new rehabilitation-fo-cused era" began.(fn13) "Treatment goals" and "indeterminate confinements," as opposed to punishment and offense-specific sentencing, were emphasized.(fn14) State legislatures, beginning with Michigan's in 1937, began to adopt involuntary civil commitment procedures specifically directed toward sex offenders.(fn15) Although the particular terms of the commitment statutes varied from state to state,(fn16) the goal of these statutes, on the whole, was to divert sex offenders from the criminal justice system so that they could be civilly committed instead.(fn17) These statutes reflected "the general optimism of the era about the ability to identify and treat" certain sex offenders.(fn18) However, this optimism began to fade in the wake of "practical experience and advancing scientific theory," as it became apparent that "sexual psychopaths" could not be reliably identified or effectively treated.(fn19) At the same time, public opinion turned against the rehabilitative model of criminal justice, and a shift toward a more punitive philosophy oc-curred.(fn20) As a result, the number...