How the professional judgment standard could undermine the validity of sexually violent predator laws.

• Author: Nordsieck, David W.

There is hardly anything objectionable about a statute that allows a state to convict an individual of a crime, imprison him (1) for a fixed term, and release him after he has served his sentence. However, many people's sense of fairness and justice would be offended by a statute that--rather than releasing him from prison at the end of his criminal sentence--allowed the state to try him civilly on essentially the same facts and involuntarily confine him for an indefinite period. Although such a procedure is generally atypical in American law, in the context of sexually violent predators, (2) a significant number of states have adopted just such a scheme. (3)

Sexually violent crimes garner a unique fear and disgust in the public's mind. (4) Rather than releasing this particular type of criminal back into the community, many state legislatures have found it a prudent and politically popular choice (5) to extend these individuals' confinement beyond their criminal sentences through the use of the civil system. (6) The rationalization for this policy choice rests on the murky nexus between the provinces of law and psychology. (7) Sexually violent predators are believed to have a mental abnormality that increases their likelihood of recommitting a sexually violent crime. (8) Confinement, therefore, has the twin aim of protecting the public from this higher level of danger and providing treatment to the individuals to help them overcome the mental abnormality on which their confinement is based. (9) Under most such statutes, the individual's chances of being released from the civil commitment rest on his ability or inability to overcome his mental abnormality through treatment. (10)

Despite these compelling public policy concerns, such statutes have been the subject of numerous constitutional challenges and scholarly criticism. (11) Although litigants have tested the constitutional validity of these statutes under a variety of theories, (12) the crucial determination has almost invariably been whether the statute is criminal or civil. (13) Courts look beyond the statutory label to determine whether it is punitive in purpose or effect, which would transform the nominally civil statute into a criminal one. (14) In determining whether the statute is punitive in purpose or effect, Supreme Court precedent has relied heavily upon the statutory provision of treatment. (15) The provision of treatment is important for the constitutional validity of the statute because its purported purpose is to protect the public while the individual is treated for his mental abnormality; the purpose cannot be to punish the individual, at least not without violating the Double Jeopardy Clause. (16) If the state fails to provide any treatment for the individual's mental abnormality, the prospect of recovery and release is practically impossible. (17) Indefinite physical confinement with practically no chance of release would certainly raise questions as to whether the statute had a punitive purpose or effect. In short, to support the constitutionality of these civil commitments, the statutory provision of treatment really ties the scheme together.

But what if a state provided insufficient or "'sham treatment ... that lasts for years, ostensibly to change someone's psychiatric diagnosis,'" (18) with the true purpose of prolonging his confinement? Such a scenario would likely be difficult to detect, in part because of the ongoing debate as to whether these individuals are amenable to treatment at all. (19) When a confined individual alleges that the state has impinged on his constitutional rights, the proper guardian of his rights ought to be the federal courts rather than the state. (20) In the context of sexually violent predators, however, the courts have adopted the professional judgment standard, which presumes that the treatment decisions of a qualified mental health professional are valid unless they substantially depart from generally accepted norms. (21) Because the generally accepted norms for treating sexually violent predators are ill defined, (22) courts lack a principled metric with which to apply the standard. By continuing to adhere to a standard that the courts cannot apply in practice, they are abdicating their role as the protector of individual rights.

Part I of this Note will explore some common features shared by different states' statutory schemes for the involuntary commitment of sexually violent predators. Part II will analyze several Supreme Court cases that shed some light on how the treatment that is provided to sexually violent predators may affect the constitutionality of their confinement. Part III explains what is meant by "treatment" for sexually violent predators and then explores the propriety and consequences of the professional judgment standard as a method for evaluating challenges to treatment. Part IV analyzes the strengths and weaknesses of alternative options for addressing the difficulties of providing treatment. This Note concludes with a brief overview of the purpose of the statutes, the problems that have arisen that threaten to undermine such statutes, and a suggestion of how to adjust the jurisprudence to better serve principles of justice without sacrificing public safety.

1. THE MODERN STATUTORY SCHEME FOR THE INVOLUNTARY CIVIL COMMITMENT OF SEXUALLY VIOLENT PREDATORS

   The law has treated sexually violent criminals as a uniquely dangerous class of criminals for much of the twentieth century. (23) Sexual crimes, especially violent sexual crimes against women and children, are often seen as more egregious than other crimes. (24) Because these criminals are thought to engage in violent sexual acts compulsively, (25) it follows that they would be less likely to be deterred by the possibility of incarceration (26) and more likely to reoffend upon release. To protect society from the possibility of these individuals reoffending when released from prison, states have attempted to detain them through a variety of civil commitment statutes over the past century. (27)

   Many states now have statutory schemes that allow for the indefinite and involuntary civil commitment of people found to be sexually violent predators (SVPs). (28) Although there is significant variation between the state statutes, (29) many of them are "strikingly similar." These statutes operate only after an individual has been convicted of a sexually violent offense and given a criminal sentence. Toward the end of the convict's incarceration, the state attorney general may instigate proceedings to determine whether the convict fits the statutory definition of an SVP. (32) The statutory definition of an SVP (33) generally consists of two components: a conviction for a predicate sexual crime, (34) and a "mental abnormality" (35) that increases the likelihood of reoffending (36) unless the person is confined to a secure facility. (37) This determination is made in a civil trial, (38) although the trial often has some modifications that are more characteristic of a criminal trial. (39) If the jury finds that the convict fits the statutory definition of an SVP, (40) he must be committed to a facility for care and treatment (41) until such time that it is safe to release him, (42) meaning until such time that he no longer fits the statutory definition of an SVP. A person committed as an SVP is given annual evaluations to decide whether he still fits the statutory definition of an SVP, (43) and he may also request such an evaluation at any time. (44) Under such schemes, an individual found to be an SVP can be involuntarily committed for treatment in a secure facility for the rest of his life after having served his criminal sentence. (45)

   It appears that the general effect of such statutes has been life sentences imposed on these individuals after having served their criminal sentences. (46) Only "a small fraction" of SVPs progress through the treatment regimes and are released from confinement. (47) Juries are understandably prone to label convicts as SVPs. (48) Furthermore, the methods that are commonly used to measure an individual's likelihood of reoffending, (49) which is what his release ultimately depends on, (50) are largely static and therefore fail to account for how long an SVP has been in treatment. (51)

   There is also an apparent disparity of treatment effectiveness among states that provide for civil commitment. (52) Although rates for successful completion of the program and release are generally low, (53) some states have never recommended the release of an individual following successful treatment, while others have released a disproportionate amount. (54) One state's utter failure to produce a single success story, when compared to another state with a modest rate of success, leads one to ask whether there may be a problem or deficiency in the way that treatment is being administered.

2. THE EFFECT OF TREATMENT ON THE CONSTITUTIONALITY OF THE MODERN STATUTORY SCHEME

   The constitutionality of involuntary civil commitment statutes has been challenged under a number of theories, such as ex post facto, double jeopardy, and substantive due process. (55) In each of the cases that have come before the Supreme Court, the issue of treatment has been an important part of the Court's analysis of the constitutionality of the scheme.

   In Allen v. Illinois, (56) Terry Allen was indicted for "the crimes of unlawful restraint and deviate sexual assault," and an accompanying petition was filed to have him declared sexually dangerous. (57) Allen submitted to two court-ordered psychiatric examinations in preparation for a civil trial to determine whether he fell within the statutory definition (58) of a sexually dangerous person. (59) When the State attempted to use the psychiatric examinations at trial, Allen objected, asserting his Fifth Amendment privilege against self-incrimination. (60) The Supreme Court of Illinois unanimously...