SEX CELLS: AN ANALYSIS OF THE CIVIL COMMITMENT OF SEXUALLY VIOLENT PREDATORS IN THE EIGHTH CIRCUIT AND RECOMMENDATIONS FOR SOUTH DAKOTA'S FUTURE.

• Author: De Jong, Matthew

1. INTRODUCTION

   "What did I do wrong?" (3) This is the haunting question Jacob Wetterling asked his kidnapper, Danny Heinrich, before he was sexually assaulted and executed. (4) Danny Heinrich was driving down a road when he observed several children on their bicycles. (5) After passing the children, he turned his car around and waited for them to come back. (6) Heinrich exited his car, approached the children with his revolver, and ordered them to stand in the ditch. (7) Heinrich then took Jacob to his vehicle, handcuffed him, and drove him out of town. (8) Once they were out of town, Heinrich took Jacob into a wooded area and sexually assaulted him. (9) Heinrich shot Jacob twice and placed his body in a shallow grave. (10)

   The story of Jacob Wetterling pulls at our heartstrings and demonstrates the importance of the civil commitment of sexual predators. (11) Civil commitment is "the involuntary detention of a convicted felon beyond the specified release date." (12) There are competing interests that define the significance of the civil commitment of sexually violent predators. (13) Advocates for these programs point to public safety and public policy concerns because the state has a duty to protect the public. (14) Advocates also identify providing treatment to the offenders as a benefit of civil commitment programs because offenders would not normally have access to the sophisticated treatment provided by these programs. (15) Nonetheless, there are constitutional and public policy concerns regarding sexual civil commitment programs. (16) Specifically, civil commitment programs have procedural and Substantive Due Process, Equal Protection, Ex Post Facto, and Double Jeopardy concerns. (17)

   The reason these concerns have materialized is because sexual civil commitment laws vary from other civil commitment statutes. (18) Typically, an involuntary commitment is statutorily permitted for seventy-two hours to three months. (19) However, the civil commitment of sex offenders is indefinite. (20) Laws enacted to civilly commit sexually violent predators tend to be custom-made for a small group of sex offenders after they complete their prison sentence if it is proven that they are likely to commit another act. (21) Generally, these statutes require that the offender have a mental abnormality, have committed at least one sexually violent offense, and have a high risk of committing another future offense. (22) Once an individual is admitted to the program, they remain in the program until they meet the requirements set forth in the statute to be released. (23)

   The latest annual report on crime in South Dakota shows an overall decrease in violent crime. (24) Even with this decrease, South Dakota still ranks second nationally in rape and sexual assault cases. (25) There were ninety-seven rapes in 2015 and one-hundred seven in 2016 in Sioux Falls, South Dakota. (26) As stated in one news report, "[f]hose numbers are higher than the national average per capita and they [do not] include incest or statutory rape cases." (27) South Dakota has a sex crime issue affecting the state and South Dakota must improve its national standing. (28) While many of the states surrounding South Dakota have a civil commitment program for sex offenders, South Dakota does not. (29) South Dakota needs a sexually violent predator act, like those of neighboring states, in order to civilly commit sex offenders. (30)

   This comment will analyze civil commitment programs for sexually violent predators within the Eighth Circuit. (31) To begin, this comment will examine the history of sex offender civil commitment laws, and then discuss Supreme Court precedent on sexual civil commitment laws. (32) This comment will then examine the statutory construction of the programs adopted by states within the Eighth Circuit: Iowa, Minnesota, Missouri, Nebraska, and North Dakota. (33) Finally, this comment will offer recommendations for South Dakota's future regarding a civil commitment program. (34)

2. BACKGROUND

   1. HISTORY OF CIVIL COMMITMENT OF SEXUALLY VIOLENT PREDATORS IN THE UNITED STATES

      Beginning in 1911, legislation determined that sex offenders were "defective delinquents" and "criminal psychopaths." (35) This led to sex offenders being treated more as people with mental disorders rather than criminals. (36) This shift in treatment from incarceration to rehabilitation began in Michigan in 1937 when Michigan was the first state to pass a "sexual psychopathic personality statute." (37) Michigan passed this law as a political reaction to the murder of a girl by a man that was previously committed for sex crimes. (38)

      Even though Michigan's statute was found unconstitutional, Illinois, California, and Minnesota enacted similar statutes by 1939. (39) Many states ultimately enacted sexual psychopathic personality statutes. (40) The statutes went unused, however, despite the fact that they were "touted as a scientific, enlightened response to dangerous sex offenders that would achieve two goals: remove the sex offender from the community, and treat the underlying mental condition." (41)

      Civil commitment of sex offenders did not begin to increase in popularity until the 1990s. (42) In 1990, Washington passed the first legislation regarding civilly committing sexually violent predators. (43) Earl K. Shriner's sex crimes sparked a political reaction leading to the passage of legislation. (44) After Washington passed a civil commitment program for sexually violent predators, Arizona, California, Kansas, and Wisconsin passed comparable legislation in the following years. (45) Today, twenty states plus the District of Columbia have enacted a statute allowing for the civil commitment of sexually violent predators. (46) In 2006, Congress passed the Adam Walsh Child Protection and Safety Act. (47) This statute enabled the federal government to civilly commit federal sex offenders. (48) Even though the federal government and nearly half of the states have enacted some form of a sexually violent predator law, these statutes continue to be controversial among legal and clinical professionals alike. (49)

      Despite the fact that these statutes are controversial, the United States Supreme Court held civil commitment of sex offenders was constitutional in Kansas v. Hendricks. (50) The Court came to that conclusion by relying on a textual analysis of the state's statute. (51) Several years later, the Court determined that these statutes must be narrowly tailored to a subset of sex offenders that suffer from "mental abnormalities" causing them to be a high risk to reoffend due to a lack of control. (52) States that have enacted such laws generally provide that three elements must be met. (53) First, the individual being civilly committed must have a mental abnormality. (54) Second, the defendant must have committed at least one sexually violent crime. (55) Third, the person to be committed must be found to have a high risk of committing another sexually violent crime in the future. (56)

      Sexually violent predator laws contain three important legal terms of art: "mental abnormality," "sexually violent offense," and "sexually violent person." (57) A "mental abnormality" is a "congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others." (58) The Supreme Court considers the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) when determining what constitutes a "mental abnormality." (59) "Sexually violent offense[s]" consist of sex crimes and sexually motivated crimes. (60) "Sexually violent predator" is another legal term of art that is central to these statutes. (61) The Court defined a "sexually violent predator" as "any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence." (62)

   2. TREATMENT PROGRAMS ADMINISTERED BY STATES UNDER SEXUALLY VIOLENT PREDATOR STATUTES

      States with civil commitment programs for sexually violent predators have sophisticated treatment plans including both in-patient and out-patient programs. (63) The goal of these programs is to allow those civilly committed to be released into the community. (64) While the goal of the treatment is consistent in the various jurisdictions, the programs themselves vary. (65) For instance, some programs have conditional release, or a "halfway" house, while others do not have that intermediate step. (66)

      The treatment plans for the civil commitment programs are largely based on two theories, Risk-Need-Responsivity and cognitive-behavioral. (67) To effectuate these theories, treatment programs use "sex offender process groups, dynamic factor risk management, self-regulation, organized milieu/therapeutic community, motivational interviewing, dialectical behavior therapy, and strength-based approaches." (68) In order to provide effective treatment, assessments of the individual must be completed. (69) These evaluations include considering various risk factors such as sexual history, alcohol and substance abuse, and client's mental health. (70)

      Treatment programs share many common elements jurisdiction to jurisdiction, but they must also be specially tailored to the population they serve to meet specific needs. (71) Individuals in these programs receive rigorous long-term interventions. (72) These interventions take on a holistic approach to the individual. (73)

      Throughout the intervention, there are typically four phases. (74) Phase One tackles the individual's motivation to change and develop problem-solving skills by therapists who utilize psychoeducational practices. (75) When an individual moves to Phase Two of treatment, the focus shifts to the offender's sexual history...