This Note examines the recent, burgeoning practice of subjecting convicted sex offenders to indefinite civil commitment. Given the Supreme Court's current position and prior holdings, this Note will center on conditions of confinement in sex offender treatment facilities as the basis for an as-applied constitutional challenge to these civil commitment regimes. Minnesota will be the focus of this examination, both as one of the earliest enacting states and as proprietor of perhaps the most infamous treatment facility for committed offenders, the Minnesota Sex Offender Program ("MSOP") at Moose Lake. Part I contains an overview of the current legal ramifications and potential penalties that inhere for those who have been adjudicated "sexually violent" or "sexually dangerous" persons. Section A highlights the public fear and revulsion surrounding sex offenders, a driving source of the political will behind such legislation. Section B describes how and why these statutes have withstood constitutional challenges. Part II begins the examination of a particular case study of the Minnesota Sexually Dangerous Persons Act ("SDPA"), both in terms of legislative intent and its actual impact on convicted sex offenders. Finally, Part III details the conditions of confinement for those who have been civilly committed under this statute. Section A begins with an examination of the state's failure to meet its obligations under the SDPA, while Section B describes the resultant institution (Moose Lake), as one that is definitively punitive. This Note will demonstrate that the conditions at Moose Lake violate inmate-patients' due process rights under the Fourteenth Amendment, as they tend to be more punitive than treatment-oriented in nature and, as such, constitute a substantial departure from accepted professional judgment.
PERPETUAL PUNISHMENT AT THE MARGINS: SEX OFFENDER EXCEPTIONALISM IN THE ERA OF THE ADAM WALSH ACT
America is the land of second chance, and when the gates of the prison open, the path ahead should lead to a better life. (1)
At the start of his second term as President of the United States, George W. Bush urged upon Congress the manifold, historic goals of American incarceration: punishment and incapacitation, met with rehabilitation and the "second chance" for self-betterment. Roughly two years later, on July 27, 2006, the President signed the Adam Walsh Act ("AWA") into law. The AWA established, inter alia, a national sex offender registry, (2) a new version of the Bail Reform Act (with stricter release requirements for sex offenders), (3) and made failure to register a federal crime. (4) Most notably, though, the Act established a post-incarceration, indefinite civil commitment regime for convicted sex offenders. (5) All told, the entire enactment signified "the most expansive and punitive sex offender law ever initiated by the federal government." (6) The AWA produced an extensive mode of incomparable punishment for sex offenses. The results have been far-reaching, but specific in their targeting of this group as a purportedly risk-laden sub-class of criminal. As such, sex offenders continue to face collateral consequences unheard of in other areas of the criminal justice system: indefinite registration requirements, heightened penalties (including incarceration) for seemingly minor acts, and the potential to be confined indefinitely through civil commitment.
A surge of constitutional challenges has befallen the judiciary since the AWA's passage. One of the earliest, successful petitions came in United States v. Karper. David Karper brought a facial challenge to one of the more controversial provisions of the AWA, which created an exception to the Bail Reform Act. (7) Under the new version of the law, in any case involving child pornography or offenses against a minor, judges were required to impose (at a minimum) a condition of electronic monitoring on all releasees. (8) The district court held that the provision violated the Due Process Clause of the Fifth Amendment, as Karper's fundamental right to freedom of movement and to the presumption of innocence at trial were infringed by the requirement. (9) The court also found the provision violative of the Eighth Amendment's prohibition against excessive bail, since it mandated onerous conditions of release despite a defendant's lack of dangerousness to the community. (10) Although the constitutional challenge brought in Karper proved successful, other claims have been struck down by the Supreme Court, supporting the AWA's validity and ongoing application to past and present sex offenders. (11)
The AWA's provision allowing for the civil commitment of "sexually dangerous persons" stands out as one of the most pervasive and controversial features of the Act. Under this portion of the law, the Attorney General and the Bureau of Prisons are granted broad authority to certify that a particular incarcerated individual is a "sexually dangerous person." (12) A hearing is then held, at which the government must prove by clear and convincing evidence that the person is "sexually dangerous." (13) If such a finding is made, the person will be civilly committed and removed to a state facility (if that person's domicile assumes responsibility for his or her custody, care, and treatment) or, as is more often the case, he or she will be placed in a federal sex offender treatment facility. (14) The individual will then be held indefinitely; release is contingent upon a finding that s/he "is no longer sexually dangerous to others," or that the person meets the requirements for a less restrictive program of ongoing treatment or care. (15) While the accompanying statute does provide a definition for sexual dangerousness, (16) it is notably silent in defining the terms "serious mental illness," "abnormality," and "disorder." (17) Moreover, the statute does not require the person to actually have been convicted of a sex crime; in such scenarios, the Government can still "attempt to prove acts for which the designated person was often neither charged nor convicted." (18)
The broad construction of the AWA has opened the gate for district courts to make findings of sexual dangerousness amongst a wide variety of defendants, subjecting each to indefinite terms of confinement after completion of an underlying or prior conviction. Eric Janus critiques the narratives implemented in these decisions, which typically presume that preventive detention is principled and does not breach the accepted division between criminal prosecution and mental health intervention. (19) The opinions justifying sex offender commitment have become almost formulaic; each begins with stories of sexual violence justifying the law's existence, the defendant's past crimes, predictions that such sexual violence is "highly likely to recur," and that the state interest in protecting its citizens against such future acts is therefore compelling. (20) Federal district courts have applied similarly mechanistic analyses in rubber-stamping commitment petitions filed by the Bureau of Prisons and the Attorney General. (21) The trend in federal commitments indicates a strong governmental interest in applying a second term of incarceration under these loosened standards; while not dispositive, it is notable that in 2010 (at the time United States v. Comstock (22) was decided), over ninety-eight percent of those designated by the government as "sexually dangerous persons" were at the end of their prison sentences and otherwise would have been released. (23) Once committed, discharge from a sex offender program is extraordinarily rare and, in many cases, becomes an effective sentence to lifelong confinement. (24)
The motives purportedly justifying the AWA are not new to the American legal landscape. Laws subjecting individuals to indefinite commitment based upon perceived sexual proclivities and pathologies have been in place, in one form or another, across various jurisdictions for a number of decades. Most grew out of state mental health laws, which allowed for the involuntary commitment of mentally ill persons who posed a danger to themselves or others; a similar, public safety rationale underpinned these early statutes, most commonly referred to as "Sexual Psychopath Laws." (25) Most state legislatures had a form of this civil commitment statute on their books by the 1960s. (26) The main goal of this first generation of commitment laws was to divert relevant individuals from prisons to hospitals, mostly in the hopes of providing treatment in a humane manner to those too sick to deserve (or be capable of handling) formal punishment through incarceration. (27) The emphasis was on remunerative, treatment-based efforts to "cure" sexual pathology. The statutes themselves reflected this emphasis, distinguishing criminal culpability (acts resulting from individual intent or malice, thereby justifying incarceration), from mental illness or fallibility (acts performed without actual intent or ill-will, thereby justifying civil commitment for treatment purposes).
Contemporary civil commitment statutes have blurred the distinction between these spheres of confinement (the prison as punishment-oriented, the commitment ward as health and safety-oriented). Beginning in the late 1980s, states began repealing their civil commitment statutes, the focus of treatment shifting to the development of prison-based programs and community outpatient therapy. (28) The laws outlining these new regimes tested the boundaries of traditional civil commitment, using preventive detention to accomplish a purpose that historically had been reserved to criminal codes. (29) This has allowed for the ongoing incapacitation of lawbreakers under the rationale of crime prevention. (30) These civil commitment laws, commonly known as Sexually Violent Predator ("SVP") or Sexually Dangerous Persons ("SDP") acts, do not target the mentally ill (as...