Sexual Predator Laws: Clarifying the Relationship Between Mental Health Laws and Due Process Protections

• Publication year: 2021
• Citation: Vol. 97

97 Nebraska L. Rev. 1167. Sexual Predator Laws: Clarifying the Relationship Between Mental Health Laws and Due Process Protections

Sexual Predator Laws: Clarifying the Relationship Between Mental Health Laws and Due Process Protections

Maureen F. Larse(fn*)
Robert F. Schopp(fn**)

TABLE OF CONTENTS

I. Introduction .......................................... 1167

II. The Justification for SVP Legislation .................. 1169
A. Police Power and Parens Patriae ................... 1169
B. The Constitutionality of Civil Confinement ......... 1172

III. A Lack of Measurable Standards Make SVP Statutes Unworkable ........................................... 1176
A. The Court's Vague Mental Illness Standard ........ 1176
B. The Danger of Predicting Dangerousness .......... 1181

IV. Clarifying the Nature of SVP Statutes ................. 1187
A. Maintaining Sex Offender Culpability .............. 1187
B. The Exclusion of Juveniles from SVP Commitment . 1191

V. The Utilization of Mental Health Laws for Preventive Incarceration ......................................... 1193

VI. Strict Mandatory Minimums and Recidivist Laws as Alternatives to SVP Commitment ..................... 1195

VII. Conclusion ............................................ 1198

I. INTRODUCTION

In May of 1987, Earl K. Shriner's ten-year sentence for kidnapping and assaulting two teenage girls was ending. Shriner was intellectually disabled and had a long history of killing, sexual assaulting, and kidnapping.(fn1) Prior to his release from a Washington prison, prison of-

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ficials learned that Shriner planned to torture and kill children after his release. Officials attempted to prevent his release and detain him under Washington's general civil commitment laws; however, the law required a recent overt act to establish dangerousness.(fn2) Unable to show a requisite act, Shriner was released. Two years later, he raped and cut off the penis of a seven-year-old boy in Tacoma, Washington.(fn3)

One year earlier, a woman had been kidnapped and murdered by Gene Raymond Kane, an inmate that had been placed on work release after serving thirteen years for attacks on two women.(fn4) Kane had been rejected from the state mental hospital's sexual pathology program because he had been determined "too dangerous to handle."(fn5) Public outrage led the governor of Washington to establish a Community Protection Task Force to recommend statutory changes.(fn6) Before the task force could make recommendations, another offender, Wesley Allen Dodd, was arrested while attempting to abduct a six-year-old boy from a movie theatre in Washington.(fn7) Dodd subsequently confessed to killing two boys that were riding their bikes in a park and to kidnapping and brutally murdering a four-year-old boy who was playing outside a school.(fn8)

The task force proposed a bill that included a civil commitment statute authorizing the state to confine and treat a specific group of sex offenders after their criminal sentence had been completed, and the statute unanimously passed both houses of the legislature.(fn9) The constitutionality of the statute was challenged on the grounds that it violated the Constitution's double jeopardy and ex post facto protections.(fn10) Upholding the statute, the Washington Supreme Court concluded that it did not violate constitutional protections because the statute was civil and not criminal in nature.(fn11) However, a federal dis-

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trict court ruled that the statute violated (1) substantive due process by permitting indefinite confinement without the requirement of mental illness, (2) the ex post facto clause because the law was punitive and retrospectively applied, and (3) the double jeopardy clause because the offender had already been convicted and incarcerated for the criminal conduct.(fn12) The case was being appealed in the Ninth Circuit Court of Appeals when the U.S. Supreme Court upheld a similar statute in Kansas v. Hendricks.(fn13)

After a sex offender's criminal sentence has been served, sexually violent predator (SVP) laws permit post-incarceration confinement if the offender is determined to be likely to commit future sexual crimes.(fn14) The earliest "sexual psychopath" laws were enacted in the 1930s, and these laws confined sex offenders in prisons. Michigan enacted the first such law in 1937; however, it was quickly determined to be unconstitutional.(fn15) Currently, at least twenty states have SVP statutes, and most require the state to satisfy three elements: (1) the offender was convicted of or charged with a sexual offense, (2) the offender has a mental disorder or abnormality, and (3) the offender is likely to engage in further sexually violent conduct.(fn16) Following Hendricks, the constitutionality and application of SVP statutes continues to be controversial.

This Article will first explore the justification used in SVP legislation. Second, it will discuss the Supreme Court's interpretation of criminal punishment as civil commitment. Third, it will illustrate how the lack of measurable standards makes SVP statutes unworkable. And finally, this Article will suggest that states replace SVP legislation with criminal statutes for those offenders that are criminally culpable and use general civil commitment laws for offenders that are exculpable by reason of severe mental illness.

II. THE JUSTIFICATION FOR SVP LEGISLATION

A. Police Power and Parens Patriae

The Fourteenth Amendment's due process clause includes the right to be free from bodily restraint.(fn17) This liberty interest is implicated in involuntary civil commitments, so a commitment must be justified as necessary to balance "the liberty of the individual" against

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"the demands of an organized society."(fn18) Involuntary civil commitment is justified on two grounds: a state's police power and parens patriae authority.(fn19) A state has police power to protect the public from harm. In Jacobsen v. Commonwealth of Massachusetts, the Supreme Court held that a Massachusetts statute requiring vaccination against smallpox was a constitutional use of the state's police power.(fn20) The Court described a state's police power as that which "must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety."(fn21) Under this power, an individual may be confined to protect the public from harm or the threat of injury to personal property.(fn22) Police power is most often employed in the criminal justice system to incarcerate convicted offenders.(fn23) While this power may be used to punish and incapacitate convicted offenders, generally police power cannot be used to prevent future crimes because "[e]vidence of propensity can be considered relatively unreliable and more difficult for a defendant to rebut . . . ."(fn24) However, the Court has held that civil commitment may be used to confine persons with mental disorders based on a prediction of dangerousness using a state's police power and parens patriae authority.(fn25)

Parens patriae means "parent of the country."(fn26) Under the doctrine of parens patriae, the government has a duty to take care of those who cannot care for themselves. This doctrine arose from common law and has been explained by the Court as being

derived from the English constitutional system. As the system developed from its feudal beginnings, the King retained certain duties and powers, which were referred to as the "royal prerogative" . . . . These powers and duties were said to be exercised by the King in his capacity as guardian of persons under legal disabilities to act for themselves. For example, Blackstone refers to the sovereign or his representative as "the general guardian of all infants, idiots, and lunatics." Under this doctrine, the government has a duty to care for those who cannot care for themselves.(fn27)

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This doctrine is often invoked with juveniles and incompetent persons.(fn28) For example, in Schall v. Martin, the Court explained that "[c]hildren, by definition, are not assumed to have the capacity to take care of themselves."(fn29) They are assumed to be the subject of the control of their parents, and if parental control falters, the state must play its part as parens patriae."(fn30) A state may also use its parens patriae authority to appoint guardians to make decisions and manage the affairs of incompetent persons.(fn31) Ideally, when a state acts as a substitute decision-maker under its parens patriae power, it should make determinations the way an individual would if he or she were fully competent.(fn32) In O'Connor v. Donaldson, Chief Justice Burger explained that when exercising parens patriae power, "[a]t a minimum, a particular scheme for the protection of the mentally ill must rest upon a legislative determination that is compatible with the best interests of the affected class and that its members are unable to act for themselves."(fn33)

The authority under parens patriae presumes that the individual to which it is applied does not have the capacity to manage his or her own affairs. If an individual is dangerous but does not lack this capacity, states may not commit the individual under the doctrine of parens patriae alone. The state's police power is also insufficient because "a finding of dangerousness alone is ordinarily not...