Commitment of Sexually Violent Predators: The Search for a Limiting Principle

AuthorAman Ahluwalia

    Advocate, Supreme Court of India. This article was originally written as an L.L.M. paper at Harvard Law School in 2003-04. I wish to acknowledge the helpful comments of Prof. Carol Steiker, to whom I am also grateful for motivating me to continue working on this difficult, challenging and occasionally frustrating issue. In addition, I thank Dr. Lucia Zedner, Hengameh Saberi and Tariq Baloch for their comments and suggestions on various drafts. Finally, I am extremely indebted to the team of Harvard Law School Reference Librarians-particularly Michael Jimenez and Josh Kantor-and the editors at the Cardozo Public Law, Policy, and Ethics Journal.

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Sexually violent predator statutes are the most recent manifestation of an enduring effort to combat the problems of sexual violence and crime. While the modern laws are of relatively recent vintage, the first generation of sex offender commitment laws can be traced back to the 1930s.1 These "sexual psychopath" laws authorized the involuntary commitment of those charged with, or convicted of, sex offenses, and found to be mentally disordered or dangerous, and consigned them to psychiatric institutions (or, in some cases, to prison) for treatment. They were intended to divert sex offenders from the criminal justice system to the mental health system, and were representative of the prevailing therapeutic optimism of the time. By 1960, more than half of the states passed some kind of sexual psychopath law.2In the 1970s, however, the collapse of the rehabilitative ideal, the shift towards determinate sentencing, and the rights revolution in criminal and mental health law paved the way for the decline of sexual psychopath laws.3Page 490

Interestingly, while the shift to determinate sentencing was to some extent responsible for the demise of the first generation of sex offender commitment laws, it was also largely responsible for the birth of the next generation. The contemporary Western tenet that the state should be obliged to protect its citizens, coupled with an instinct of public punitiveness in the 1980s, have resulted in the principle of incapacitation moving slowly to the center-stage of the American criminal justice landscape.4Many states adopted determinate sentencing schemes and presumptive sentencing guidelines, which fixed the punishment for sexually violent offenders and removed the flexibility of incarcerating sex offenders until they were no longer considered dangerous5(which, very often, was never). Simultaneously, feminist-inspired views of sexual violence began to reshape judgments about the appropriate punishment for sex offenders.6Sentences under the new schemes were viewed as drastically insufficient for violent, recidivist sex offenders. This resulted in an "incapacitation gap"7which somehow needed to be filled. Constitutional constraints prevented states from retroactively increasing sentences, and a rhetorical commitment to the principle of desert precluded a return to indeterminate sentences.8These constraints on the criminal law led states to resort to civil commitment for sexually violent predators. Unlike earlier laws-which provided for treatment in lieu of punishment- sexually violent predator statutes provided for post-incarceration civil commitment.Page 491

The hybrid nature of civil commitment laws is not solely the result of hurried political expediency, however. It is also reflective of a particular legal and intellectual culture that formed the necessary breeding ground for such a development. An analysis of sex offender commitment laws is most appropriately made against the backdrop of two important trends in criminal justice in America: the blurring of the civil-criminal distinction, and the rise of actuarialism (i.e., actuarial justice) and risk assessment. While the civil-criminal distinction has always escaped definition, its conceptual foundations came under strong attack in the last few decades of the twentieth century. The collapse of the civil-criminal distinction has been fueled by the predominance of the economic analysis of the law, and developments in cognitive and behavioral sciences.9The economic analysis of law unifies the purpose of both civil and criminal law as being the achievement of optimal deterrence, thus bringing to the forefront the issue of social control and protection. At the same time, developments in cognitive and behavioral sciences led to an increased skepticism about the root causes of deviance and the effectiveness of different forms of treatment. As a result, the goal of incapacitation replaced rehabilitation as the primary purpose of intervention. Thus, the blurring of the civil-criminal distinction brought about a reconfiguration of the modern penal system in a manner in which dangerousness laws occupy a far more central place than previously. With social protection and incapacitation of the dangerous firmly established as legitimate goals of the modern criminal justice system, actuarialism- risk assessment based on statistical probability-became the new method of identifying the dangerous. Actuarial justice10facilitates and represents a shift of the object of criminal justice from the individualPage 492 offender to aggregate groups of offenders, and thus, is in discord with our traditional notions of justice.

While the notion of selective incapacitation of the dangerous became essentially mainstream, legislatures and courts consistently rejected the pure jurisprudence of preventive detention in the domain of civil commitment-a simple calculus that weighs the benefit from the avoidance of harm that would be caused by a potential sex offender against the harm to that individual's liberty in the event he is detained. Rather, courts and legislatures constantly searched for principled limits to this bipolar calculus. This article examines the range of limiting principles that courts and legislatures sought to superimpose on the bipolar calculus that forms the basis of incapacitation of sexually violent predators.

In the earlier generation of sex offender commitment laws, civil commitment for sex offenders was analogized to commitment of the mentally ill. Traditionally, civil commitment of the mentally ill was predicated on two different rationales: parens patriae power and police power. Under the parens patriae rationale-which represents the role of state as parent (literal translation being "parent of the country")11-the state may civilly commit those who are unable to take care of themselves. Such commitment is for the individual's own good. Under the police power rationale, the state may commit individuals who are mentally ill and who-as a consequence of such illness-are a danger to the community. While these are two separate justifications, they tend to become fused in the context of civil commitment of the mentally ill.12Statutes and courts often apply the two rationales jointly, such that while police power may be invoked as a rationale, it may only be so invoked for those individuals for whom there also exists a parens patriae rationale. This was a comfortable arrangement that allowed courts toPage 493 avoid squarely addressing the issue of the police power of the state and the appropriate limits for such power.

Sexually violent predator statutes pose a significant challenge to this arrangement. While there is some variation in the laws of different states, sexually violent predator statutes generally apply to those individuals who possess a "mental abnormality or personality disorder which makes the person likely to engage in repeat acts of sexual violence."13By explicitly embracing a wider "mental abnormality or personality disorder" standard, these statutes come closer to letting loose the bipolar calculus. If we accept the commitment of sexually violent predators as being civil in nature, is there an effective limiting principle for such commitment?14

This article begins with a discussion of civil commitment laws as being rooted in the mental health system, and examines early decisions in which courts held that a finding of "mental illness" was a constitutional prerequisite for civil commitment. It then specifically addresses sexually violent predator statutes, and explores three potential limiting principles.

First, it examines the "mental abnormality" or "personality disorder" standard as being a sufficient limiting principle. This article will critically analyze the Supreme Court's decision in Kansas v. Hendricks,15in which the Court held that a finding of mental abnormality or personality disorder satisfied substantive due process. The standard upheld by the Court is vague, over-inclusive and too malleable in the civil commitment context. In discussing this standard, I refer to psychiatric literature on sexual deviance in an attempt to understand the basis for a finding of sexual deviance.

Second, this article looks at the "lack-of-control" standard superimposed on the Kansas sexually violent predator statute in Kansas v. Crane.16In addition to a finding of mental abnormality or personality disorder, Crane requires an independent finding that the individual lacked control. However, the article will argue that the impossibilityPage 494 and ambiguity of this standard render it ineffective as a limiting principle.

Finally, this article will examine whether recidivism17rates for sex offenders are so drastically different from other categories of offenders that civil commitment is justified. Does recidivism among sex offenders display unique characteristics that would render it a sufficient limiting principle in itself? This article will conclude that sex...

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