Fear of an Undeterrable Other

• Author: Fredrick E. Vars
• Pages: 1-28

Louisiana Law Review Volume 75 | Number 1 Fall 2014 Fear of an Undeterrable Other Fredrick E. Vars Repository Citation Fredrick E. Vars, Fear of an Undeterrable Other , 75 La. L. Rev. (2014) Available at: http://digitalcommons.law.lsu.edu/lalrev/vol75/iss1/6 This Article is brought to you for free and open access by the Law Reviews and Journals at DigitalCommons @ LSU Law Center. It has been accepted for inclusion in Louisiana Law Review by an authorized administrator of DigitalCommons @ LSU Law Center. For more information, please contact sarah.buras@law.lsu.edu . Fear of an Undeterrable Other Fredrick E. Vars * ABSTRACT America is presently fighting a war on terror and a war on sex offenders. In each, the government openly detains hundreds of individuals not for what they have done, but for what they might do. Some warn that this greatest restriction on liberty may expand to other types of people. This Article examines the risk of such expansion by putting our current wars in historical perspective. The two main conclusions are: (1) some categories of people detained in prior periods are not being detained today; and (2) the risk of expansion is real but lower than previously suggested. TABLE OF CONTENTS Abstract ....................................................................................1 Introduction ..............................................................................2 I. National Security .....................................................................5 A. World War II ......................................................................5 B. Oklahoma City Bombing ...................................................8 C. “War on Terror” .................................................................9 II. Mental Defect .........................................................................13 A. First-Generation Sex Offender Laws ...............................14 B. Second-Generation Sex Offender Laws ...........................17 C. Virginia Tech Shooting ....................................................20 III. Prospects for Expansion .........................................................22 Conclusion .............................................................................27 Copyright 2014, by FREDRICK E. VARS. * Associate Professor, University of Alabama School of Law. J.D., Yale University. A.B., Princeton University. Thanks to Adam Cox, Caroline Harada, Eric Janus, David Patton, Andrew Townsley, and Carol Montgomery. 2 LOUISIANA LAW REVIEW [Vol. 75 INTRODUCTION America is currently fighting at least two “wars”: a war on terror 1 and a war on sex offenders. 2 In each, the government has openly employed indefinite preventive detention, locking up thousands not for what they have done, but for what they might do. Commentators warn that this controversial strategy may be expanded to encompass other types of people. 3 For example, the preventive detention of “suspected terrorists” at Guantanamo could expand to individuals suspected of other violent crimes. 4 How real is that threat 5 This Article assesses the risk of such “mission creep” 6 — specifically, the expansion of indefinite preventive detention beyond terrorists and sex offenders. As others have observed, the law in these areas is relatively elastic, so the potential for creep is real. 7 In other words, the risk is not zero. To be more precise, one needs a theory for when the government engages in indefinite preventive detention. Such a theory will be more persuasive if it has explanatory power across time, as well as in multiple situations, including the wars on terror and sex offenders. It turns out that neither of these wars is wholly new. The present war on terror dates back to September 11, 2001. Before that, the last major attack on American soil was at Pearl Harbor on 1. President Obama has said that the war on terror must end, but pointedly did not declare it over. Peter Baker, Reviving Debate on Nation’s Security, Obama Seeks To Narrow Terror Fight , N.Y. TIMES, May 24, 2013, at A1. 2. See generally Corey Rayburn Yung, The Emerging Criminal War on Sex Offenders , 45 HARV. C.R.-C.L. L. REV. 435 (2010). 3. David Cole, Out of the Shadows: Preventive Detention, Suspected Terrorists, and War , 97 CAL. L. REV. 693, 728, 749 (2009) [hereinafter Cole, Out of the Shadows ]; ERIC S. JANUS, FAILURE TO PROTECT: AMERICA’S SEXUAL PREDATOR LAWS AND THE RISE OF THE PREVENTIVE STATE 94, 101 (2006). 4. Cole, Out of the Shadows , supra note 3, at 728. 5. This Article is primarily descriptive, not normative. One exception is the use of the word “threat” here rather than a neutral word like “possibility.” Criticisms of sex offender commitment appear in Fredrick E. Vars, Delineating Sexual Dangerousness , 50 HOUS. L. REV. 855 (2013) [hereinafter Vars, Dangerousness ], and Fredrick E. Vars, Rethinking the Indefinite Detention of Sex Offenders , 44 CONN. L. REV. 161 (2011) [hereinafter Vars, Rethinking ]. For a critical analysis of both “wars” in an historical perspective, see Eric Janus, The Preventive State: When Is Prevention of Harm Harmful? , in HANDBOOK OF PUBLIC PROTECTION 316 (Mike Nash & Andy Williams, eds. 2010). 6. Cole, Out of the Shadows , supra note 3, at 749. The term “mission creep” generally refers to the expansion of a mission beyond its original objectives. Jim Hoagland, Prepared for Non-Combat , WASH. POST, Apr. 15, 1993, at A29. My focus is on creep to other categories of people, not on creep within a category. 7. Cole, Out of the Shadows , supra note 3; JANUS, supra note 3, at 94, 101. 2014] FEAR OF AN UNDETERRABLE OTHER 3 December 7, 1941. In fact, the government engaged in widespread, indefinite preventive detention after both attacks. 8 In contrast, the Oklahoma City bombing in 1995 did not result in preventive detention. 9 These three events will frame this Article’s discussion of national security detentions. The current wave of sex offender commitment started in 1990; a previous wave started in the late 1930s. 10 Sex offender commitment is often justified as an extension of mental illness civil commitment. 11 Because these two types of commitment share a mental defect component, they are considered together in this Article. Sticking to cases where fear is greatest, the mental illness example employed in this Article is the 2007 Virginia Tech mass shooting, which also led to an expansion of preventive detention authority. A complete history of even one of these six events is beyond the scope of this Article. Rather, the goal is to distill the key factors that contribute to preventive detention. The touchstone is Fear of an Undeterrable Other . 12 Fear is a relatively straightforward concept, but it is not always correlated with risk. 13 Other is a term of art. In this context, it means an identifiable minority group that is perceived negatively by the majority. 14 Undeterrable is used loosely to describe anyone with a defect in control or other attribute that weakens the normal deterrent effect of civil and criminal penalties. 15 Deterrence is the preferred default option because, if it works, the government has to incarcerate fewer people than it would need to preventively detain. 16 Although presented here separately, these three factors can be mutually reinforcing. Broad fluctuations in detention practices appear to be driven mainly by fluctuating levels of fear. The scope of such practices, 8. See infra Parts I.A, I.C. By “indefinite preventive detention,” I mean a deprivation of liberty of movement premised on a perceived risk and not limited in duration. 9. See infra Part I.B. 10. See generally Samuel Jan Brakel & James L. Cavanaugh, Jr., Of Psychopaths and Pendulums: Legal and Psychiatric Treatment of Sex Offenders in the United States , 30 N.M. L. REV. 69 (2000); see also infra Parts II.A, II.B. 11. Kansas v. Hendricks, 521 U.S. 346, 358 (1997). 12. See JANUS, supra note 3, at 108 (referencing a feeling of being “threatened by an outsider group”). 13. Vars, Dangerousness , supra note 5, at 878–82. 14. Cf. Natsu Taylor Saito, Interning the “Non-Alien” Other: The Illusory Protections of Citizenship , 68 L. & CONTEMP. PROBS. 173 (2005). 15. CHRISTOPHER SLOBOGIN, MINDING JUSTICE: LAWS THAT DEPRIVE PEOPLE WITH MENTAL DISABILITY OF LIFE AND LIBERTY 140 (2006). 16. See infra Part III. 4 LOUISIANA LAW REVIEW [Vol. 75 however, is sensitive to then-operative notions of Otherness. Here, there is some room for optimism, or at least two silver linings to the current resurgence of preventive detention. Tens of thousands of Japanese-American citizens were interned during World War II. 17 It appears that only a few American citizens were detained after 9/11. 18 Citizenship trumped ethnic and cultural Otherness. Less appreciated is the status of homosexuals in the history of sex offender commitment. Many were detained in the first wave based on consensual adult sex; very few, if any, in the second. 19 Our culture no longer views lesbian, gay, bisexual, and transgender people as a sufficiently threatening Other to detain preventively. Muslim and Arab-American citizens and homosexuals should probably be thankful that they do not live in an earlier era. Should we nonetheless be worried about mission creep? That post-9/11 detentions focused almost exclusively on non-citizens is hopeful. 20 A terror attack would likely have to be larger than 9/11 to lead to widespread detentions of citizens. The more likely threat is fear induced by a domestic crime wave or even a few horrific crimes, as in the case of sex offenders. Sex offenders have been called the most reviled Other. 21 That kind of antipathy, thankfully, does not materialize overnight. But other categories of dangerous people may still be at risk. Fear of an undeterrable Other is not presently sufficient to justify overt indefinite detention of gang members, for example. But such a conclusion is historically contingent and could change with rapid gang...