Lock them up - and throw away the key: the preventive detention of sex offenders in the United States and Germany.

Author:Kelly, Meaghan
 
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  1. INTRODUCTION

    The management of sex offenders is increasingly unlikely to achieve a balance between protecting society and preserving individual liberties. (1) Sex offenders differ from typical offenders because the harm their offenses cause can be particularly damaging to their victims and certain sub-classes of sex offenders are at high risk of reoffending. Moreover, through media frenzy and misinformation, the public generally sees all types of sex offenders as high-risk individuals who cannot handle living in society. As a result, the public is more willing to tolerate, if not advocate, infringement on sex offenders' liberty interests. As Eric S. Janus insightfully suggests, this lack of public outrage (in a time when the intrusion into civil liberties is generally loudly resisted) may be due to the ability to separate sex offenders easily as an outsider group without inspiring fear in the general public of similar intrusions into their own liberties. (2)

    One questionable method of managing sex offenders is the imposition of preventive detention after the sex offender has completed his sentence for his conviction. (3) The United States and Germany, coun tries with different backgrounds and legal systems, have similar approaches to the post-incarceration confinement of sex offenders, which both raise similar problems. In the United States, Sexually Violent Predator ("SVP") laws allow for the inpatient civil commitment of sex offenders after they have served their sentence if certain conditions--the finding of a mental abnormality or personality disorder and a finding of future dangerousness--are present. Germany has a similar mechanism for managing sex offenders by imposing preventive confinement, called Sicherungsverwahrung. These laws accord with the general, but flawed, notions that risk prediction is extremely accurate and that sex offenders simply cannot be treated effectively.

    Both the United States and Germany seem to be skewing the proper balance between protecting society and protecting individual liberties. Each country's system of preventive detention raises constitutional concerns seemingly at odds with their own notions of justice. With so much liberty at stake in preventive detention, more critical and less impassioned judgment is demanded along with the option of less restrictive alternatives. For example, once communities acknowledge and accept that managing the risk posed by sex offenders requires accepting some level of risk, supervision in the community (outpatient civil commitment in the United States and its counterpart in Germany) might be used in a way that furthers community safety as well as the reintegration of sex offenders.

    Laws providing for preventive detention and the public concern over sex offenders are not decreasing in either the United States or Germany. The complicated issue of managing sex offenders must continue to be addressed, but in a rational way that appreciates the available research and is not dominated by fear and disgust of the outsider.

  2. UNITED STATES JURISPRUDENCE ON SEX OFFENDERS

    1. Overview

      SVP laws provide for the potential lifetime confinement of sex offenders through civil commitment following their release from incarceration. These laws have been determined to be civil, not criminal, in nature. Washington was the first state to pass an SVP law in 1990. Today 20 states have SVP laws, providing for the indefinite detention of about 2,700 offenders. (4) In general, SVP laws provide for the post-incarceration involuntary civil commitment of sex offenders after a finding that the individual: (1) committed a sexually violent act; (2) suffers from a mental abnormality or a personality disorder; and (3) is likely to pose a future danger as a result of his mental abnormality. These criteria are relatively vague, but if they are deemed satisfied, the sex offender will remain in civil commitment indefinitely until he is determined no longer to be dangerous as a result of his mental abnormality. Civil commitment need not be imposed at the time of the original sentencing but can be imposed at the end of the prison sentence.

    2. Moral Panic (5)

      Sex offenders are currently the subject of widespread public fear and revulsion. Therefore, it is not entirely surprising that many states not only criminalize sex offenses but also try to keep sex offenders confined away from the community forever through SVP laws, despite the apparent constitutional concerns these harsh measures raise.

      The harsh treatment of this outsider group reflects a larger pattern in the United States. Eric S. Janus suggests that "the existence of the 'degraded other' ... [is] a tragic, though central, aspect of our liberal democracy." (6) Indeed, the United States has experienced times of moral panic with regard to certain groups of people, leading to the infringement of individual liberties. For example, outright fear led to the confinement of Japanese Americans in internment camps during World War II. A similar story in contemporary times is the detention of people suspected to be involved with terrorism. Interestingly, Janus argues that there is more resistance and controversy surrounding laws against terrorism, because citizens not in that outsider group feel their own liberties are being threatened. (7)

      Another period in American history involving unfair treatment of an outsider group is the eugenics movement. "In the early decades of the twentieth century, not long after the technology of surgical sterilization had been devised, state governments throughout the United States began a quest for racial purity...." (8) Many people classified as unfit for any of several reasons were subjected to forced sterilization; in fact, "[t]hirty-three states passed eugenics laws, and some 60,000 people were sterilized under these laws." (9) One of the most shocking pronouncements during this time period came from a Supreme Court case allowing the sterilization of an "unfit" woman: "It is better for all the world, if instead of waiting to execute degenerate offspring for a crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.... Three generations of imbeciles are enough." (10) What's more is "[t]he heaviest burden of the story of eugenics and forced sterilization": the "American connection to the master race theories that culminated in the Holocaust." (11) The Nazi regime honored the creator of the American Model Law on eugenics for his efforts in "racial hygiene." (12) The American Model Law influenced a law passed by Adolf Hitler's National Socialist government, called "Law for the Prevention of Genetically Diseased Offspring," which was used to forcibly sterilize over 150,000 German citizens in two years. (13)

      These seemingly harsh and barbaric practices were attempted to be justified by modern science. Similar to the reliance on the science of risk prediction and mental disorder diagnosis to justify the civil commitment of sex offenders, the use of "incontrovertible statistics and scientifically proven theorems" on the grave dangers the unfit people were used to "sweep away any discomfort methods like sterilization might cause." (14)

      Perhaps this apparent reliance on science provides sufficient cover of the real reason for the SVP laws, namely fear and panic, so as to minimize the discomfort involved in confining these offenders past the expiration of their criminal sentences. Thus, there may be a great (and possibly unwarranted) reliance on science, as discomfort should be increased with the knowledge that, though confined to secure detention facilities instead of prisons, those committed are rarely released. (15) Treatment is not the primary goal; instead, "[t] he primary articulated purpose for these laws is incapacitation--prevention of future sexual violence by means of direct physical constraint." (16)

      Moreover, the generally fearful response to sex offenders does not accord with the available data; the public fear is in large part due to the public's erroneous perception of extremely high recidivism rates and complete ineffectiveness of treatment. Despite the difficulties involved in studies of sex offending, "numerous, rigorous studies analyzing objectively verifiable data--primarily arrest and conviction records--indicate sex offender recidivism rates are far below what legislators cite and what the public believes." (17) Though the damage sex offending causes cannot be denied, "the moral panic over sex offending amounts to a social interpretation of such conduct that is not supported by data"; the public thinks recidivism rates are 80 percent whereas studies show a rate from 2-13 percent. (18) Moreover, more than one third of all parolees return to prison, (19) a much larger number than that of sex offenders. Also, "[s]tudies of recidivism generally show that sex offenders as a whole are less likely to reoffend than other criminals." (20) Notably, a recent Supreme Court case echoed the over-estimation of the rates of recidivism among sex offenders. In Smith v. Doe, the Court mentioned the "grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class. The risk of recidivism posed by sex offenders is 'frightening and high.'" (21)

      In addition, there is a striking contrast between the treatment of sex offenders and the treatment of other mentally ill patients. "[The] deinstitutionalization movement of the past four decades has led to the virtual elimination of long-term hospitalization of persons with severe mental illness [except sex offenders]." (22) This deinstitutionalization movement resulted from the desire to reduce costs, medical advances in controlling symptoms, and heightened desire for protection of civil liberties. (23) These reasons could equally justify the opposition of the post-incarceration civil commitment of sex offenders, but they have not...

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