This article addresses a group of laws, originating in the early 1990s, known as sexually violent predator (SVP) laws. These laws use civil confinement (in contrast to criminal incarceration) to lock up individuals who are viewed as at high risk of committing a sexual offense in the future. Because these laws deprive people of their liberty in anticipation of a predicted crime, they are highly controversial legally as well as morally. This article describes these laws as well as their legal context, traces their history, discusses the justifications as well as critiques, and concludes with a discussion of their current status.
Definition and Context of SVP Laws
SVP laws are civil commitment laws designed to identify individuals who pose a high risk of future sexually harmful behavior and commit them to indeterminate confinement in secure treatment centers. The stated purpose of the laws is to protect society from sexual violence by incapacitating those at highest risk of recidivist sexual violence. To comply with constitutional norms (discussed later in this article), these programs are aimed only at individuals whose future risk is associated with some form of mental disorder or abnormality. Treatment for the sexual dangerousness must be provided.
SVP laws are one aspect of a suite of legal innovations that developed in the 1990s, all of which are aimed at the prevention of future sexual recidivistic offending by means outside of the criminal justice system. Other laws require sex offenders to register with law enforcement, classify sex offenders by risk, provide for the notification of the public about sex offenders who are being released to the community, and (in a growing number of jurisdictions) place geographic restrictions on where sex offenders may live or visit.
Many of these prevention laws impose long-term or lifelong burdens and obligations on sex offenders, but the SVP laws are the most drastic in that they involve long-term total confinement. For this reason, SVP laws are the most narrowly aimed and require the most comprehensive judicial due process. Although there is substantial variation among the state and federal SVP laws, they share key characteristics. SVP laws impose three criteria for commitment: (1) a history of sexually harmful behavior, (2) a mental disorder or abnormality, and (3) resulting in an elevated risk of future harmful sexual behavior. The laws are generally aimed at convicted sex offenders who are scheduled for release from prison, and all establish a system for screening incarcerated sex offenders who are nearing the completion of their prison sentences. Those who may meet the criteria of commitment are referred to as prosecutors, who then make the determination whether to petition a court for commitment.
Upon the filing of such a petition, the offender (referred to as the respondent) is generally assigned a defense lawyer, and expert examiners are appointed (in some instances also selected by the respondent) to evaluate the mental status and risk of the individual. A trial is held, and a decision about commitment is rendered, in some states by a jury, and in others by a judge. Some laws use the criminal law standard beyond a reasonable doubt, but others use the lower clear and convincing evidence standard. Upon a finding that the individual satisfies the legal criteria, the individual is committed, most often to a highly secure treatment facility, but in some instances to a less restrictive community setting subject to extensive supervision and control.
Some SVP laws provide for periodic reassessment of risk and mental condition, and all provide for some form of release if the individual’s risk is diminished. All of the laws specify that some form of treatment is to be provided. There is great variability in the actual implementation of these legal provisions.
The Distinction Between Civil and Criminal Laws
All SVP laws claim to be civil regulation of liberty, in contrast to criminal punishment. The distinction is an important one and critical to an understanding of the legal context for SVP laws. The criminal justice system is the primary tool that the government has to address antisocial violence, which permits the government to impose the most burdensome consequences on individuals, including depriving them of their liberty through imprisonment and, in the most extreme cases, imposing the death penalty. But the U.S. Constitution imposes numerous constraints on criminal punishment, as a bulwark against the kind of tyranny that led to the American Revolution: It can be imposed only after an individual is charged with a specific crime, at a specified time and place, in violation of specific, previously enacted laws, by a jury’s verdict beyond a reasonable doubt. The government is forbidden to make something a crime retroactively (ex post facto laws) and cannot try a person for the same crime twice or increase a sentence after it is imposed (prohibition on double jeopardy). A person cannot be punished for a status (e.g., addiction or dangerousness), and no one may be forced to testify in a self-incriminating manner.
But these limits apply only to criminal procedures. The U.S. legal system permits certain forms of civil liberty-deprivation that fall outside of those protections. Traditional forms include involuntary treatment for severe mental illness, enforced quarantine and isolation for contagious diseases, and, now, discredited interventions like forced sterilization of mentally impaired individuals and the internment of U.S. citizens of Japanese descent during the World War II. The constitutional question is whether the government may properly classify SVP laws as civil and thus avoid the protections of the criminal law. The U.S. Supreme Court has ruled that SVP laws, at least on their face, are legitimate civil laws. The rulings are discussed in the next section.
History
First-Generation Laws
Beginning in the late 1930s, about half of the states adopted the so-called sex psychopath laws. Arising from the progressive movement and the emerging influence of psychiatry, these laws posited that certain sex offenders were more sick than bad and thus should be diverted from the criminal justice system to psychiatric institutions where they could be treated. Paralleling traditional civil commitment laws, the new laws sought to expand the concept of insanity to include the idea of moral insanity, the rough equivalent of the present-day concept of antisocial personality disorder. But these laws, as drafted, were exceedingly vague and broad, and in a rare move (for that era), the Supreme Court, in Minnesota ex Rel. Pearson v. Probate Court (1940), insisted on narrowing their application to individuals who had an utter lack of power to control their dangerous sexual impulses.
In the early years, sex psychopath laws were aimed at offenders who were viewed as too sick for punishment, diverting them from the criminal justice system. Most of those diverted were nonviolent offenders, many of whom were gay men whose offenses were engaging in consensual sex with other men. But child molesters were also included, though the underlying reason for diverting these individuals was that child molestation did not have the same severe character as forcible rape.
By the late 1970s and early 1980s, these laws fell into disuse following several authoritative studies that questioned fundamental assumptions underlying these laws, demonstrating that committed offenders were not distinguished by any psychiatric condition that was treatable and that dangerousness could not be identified in a reliable manner.
Second-Generation Laws
Context for Enactment
A decade or so after the demise of the first generation, a second generation of sex offender commitment laws arose. The new SVP laws espoused a markedly different aim: to identify, and confine, sex offenders too dangerous to release from prison. Eventually, 20 states and the federal government would enact SVP laws. The first SVP laws, in Washington state and Minnesota, were reactions to heinous sex crimes committed by recently released sex offenders. Several factors converged to shape this particular reaction to sexual violence. Feminists argued that sexual violence required more forceful and widespread responses, and conservatives pushed a law-and-order agenda. Because of constitutional limitations, broadened definitions of sexual assault and increased sentences could not be applied retroactively and thus did not immediately address the problem of the release of dangerous offenders from prison, so policy makers turned to civil commitment as a solution.
Although feminists and conservatives shared the goal of harsher punishment for sex offenders, much of the feminist agenda was troubling for social conservatives. Feminists argued that violence against women was a widespread phenomenon, allowed to flourish because of the widely accepted myths and attitudes they said characterized patriarchy. Conservatives took the position that true sexual violence was aberrational and abnormal, the result of individual depravity rather than flawed societal norms. The SVP laws, based on the mental disorder model of sexual dangerousness, provided a vehicle for conservatives to address the feminist call to take sexual violence seriously, while adopting the aberrational view of sexual violence that conservatives espoused.
Initial Legal Challenges
The newly adopted SVP laws were immediately challenged on constitutional grounds. In 1997, the Supreme Court, in a split decision, upheld the constitutionality of these laws, based largely on a facial analysis of the language of the laws (Kansas v. Hendricks). The Court addressed and rejected two related challenges. The first asserted that the SVP laws were a form of criminal punishment and that they therefore violated key constitutional limitations on criminal law: the prohibitions on ex post facto laws and double jeopardy. The other challenge was based on the concept of substantive due process, a constitutional principle that places limits on the circumstances justifying the state’s deprivation of an individual’s liberty. The two arguments are related to each other. The states argued that the SVP laws were not punishment because they were civil commitment laws, long recognized as constitutionally legitimate. Challengers argued that SVP laws were not bona fide commitment laws, and therefore violated substantive due process, and could not be classified as civil rather than penal.
The challenges turned on whether SVP laws were bona fide civil commitment laws. Relying on a prior Supreme Court case (Foucha v. Louisiana), the challengers argued that the SVP laws do not fall within this traditional category because they do not require proof of a valid mental illness. Challengers argued that terms defining the commitment class were not either medically valid (e.g., mental abnormality) or, though medically valid, mental illnesses (e.g., personality disorder). The Court rejected these arguments. While acknowledging that commitment requires some mental disorder predicate, the Court held there was no particular constitutional significance to the term mental illness; thus, mental abnormalities were not categorically ineligible to be constitutional predicates for commitment. In a later case, Kansas v. Crane, the Court held that “there must be proof of serious difficulty in controlling behavior . . . [that] must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.”
The Court also noted that the SVP laws adhered to the key indicia of civil commitment laws. In particular, they required that available treatment be provided and that an individual must be released from commitment just as soon as the circumstances justifying commitment no longer obtain. Challengers argued that the state had failed to provide effective treatment to committed individuals, supporting their argument that incarceration, rather than treatment, was the primary goal of the legislation. But the Court rejected this argument because the newness of the laws excused the rather meager treatment programs and held that treatment could be a purpose secondary to the primary purpose of incapacitation.
Growth of the Programs
Subsequent to Supreme Court approval, SVP laws have been adopted in 20 jurisdictions. Best estimates are that upward of 5,000 people, mostly men, are confined. Implementation varies widely among jurisdictions in areas such as per capita commitment rates (varying from 0.76 to 128.6 per million) and number of discharges (ranging from 1 or 2 to 185). Commentators estimate that the total cost of SVP programs in the United States approaches US$1 billion each year. The average per capita cost for confinement, care, and treatment is about US$95,000 for SVP programs compared with US$26,000 for prisons.
Justifications and Critiques of SVP Laws
SVP laws remain highly controversial. In this section, the arguments for and against SVP laws are reviewed.
The strongest justification for SVP laws is that they demonstrably prevent at least some recidivist sexual violence. Critics argue that the cost of these programs is very high and that risk assessment is questionable. But supporters argue that the laws are justified even if only one horrendous crime is avoided. These policy makers assert that the United States should spare no expense in preventing the next horrific sexual crime.
Critics argue that this framework ignores costs, both monetary and moral, and that the SVP laws may engender. Critics argue that policy makers should ask whether the resources invested in SVP programs could prevent more crimes if allocated differently. SVP programs are focused on recidivist violence and, by design, on a small portion of recidivist violence. But recidivist crimes—that is, crimes that are committed by individuals who are released from criminal sentences for similar crimes—constitute a small percentage of all sex crimes. As well, recidivism rates for sex offenders are lower than many in the public estimate. A large meta-analysis involving 10 studies found recidivism of 14% at 5 years, 20% at 10 years, and 24% at 15 years after release from prison. Other studies found recidivism rates for rapists and child molesters to be about 5% after 3 years; some studies find recidivism rates even lower. There are authoritative studies that show that recidivism rates have declined since the late 1990s and that recidivism declines with age.
There are few empirical studies of the efficacy of SVP laws. A 2013 study of the Minnesota program estimated that Minnesota’s program reduced the 4-year sexual recidivism rate in the state from 3.2% to 2.8%. A 2013 national study focused not on recidivism but on rates of sexual violence. It found no statistically significant correlation between SVP laws and the rate of sexual violence. Thus, a key question is whether the resources devoted to SVP programs could be more effective in combatting sexual violence if redirected. Critics suggest reframing the policy debate. Instead of asking whether SVP laws prevent some sexual violence, the focus should be on asking how resources should be allocated to prevent the most violence. SVP laws are based on the theory that the best strategy is to spend relatively large resources on preventing a few highly likely crimes. The alternate approach suggests spreading the resources more broadly, addressing individuals who are individually lower risk but collectively account for a much greater percentage of sexual violence. Many violence prevention programs are underfunded, as are some supervision programs for released sex offenders and aspects of rape prosecution evidence collection.
An additional critique is that SVP laws invigorate a dangerous strand in U.S. law, which excludes outsider groups from full protection of the Constitution. Slavery and Jim Crow laws are obvious examples, but the reach of this exclusionary philosophy extends further, to forced sterilization of imbeciles, internment of U.S. citizens of Japanese descent, and the exclusion of gays and lesbians from equal participation in civic life. The Supreme Court’s approval of same-sex marriage in 2015 seemed to signal the end of this sort of outsider jurisprudence. But SVP laws mandate a reduced rights zone based on who a person is rather than what a person has done. By claiming that some form of mental abnormality justifies the abrogation of hard-fought constitutional limitations on the power of the state, critics fear that these laws give extended life to the discredited outsider jurisprudence.
Critics argue that SVP laws distort the U.S. approach to sexual violence prevention in three ways. First, the laws distort society’s view of sexual violence by suggesting that sexual violence— or at least the worst of it—is beyond the control of the men who commit it because it is caused by mental abnormality. But empirical findings establish that sexual violence is not aberrational, is mostly committed by acquaintances and intimates rather than strangers, and is facilitated by societal norms, myths, and attitudes more than mental disorder.
A second distortion that SVP laws strengthen is the public policy focus on recidivism as the core problem to be addressed in the fight against sexual violence. SVP laws are based on the premise that recidivism among sex offenders is extraordinarily high. Repeated frequently by courts, this meme is false. Sex offenders have recidivism rates that are lower than many other categories of criminals; a majority of sex offenders are not apprehended for recidivist sex crimes.
But critics also claim that the focus on recidivist crime misdirects the public’s attention. The great majority of sex crimes (some studies find 95%) are not recidivist crimes. They are crimes committed by offenders who have not been apprehended before for a sex crime. A focus on recidivism directs attention away from the great bulk of sexual violence and away from policies that address root causes of sexual violence.
Many commentators urge an alternate framework for combatting sexual violence. A public health approach would insist on a comprehensive and systematic set of policies, based on empirical knowledge, rigorous program assessment, and adoption of best practices. Interventions would aim at root causes (primary prevention) to attempt to head off violence before it occurs. These programs would be combined with standard criminal justice interventions as well. Resources would be allocated to program evaluation, disseminating and implementing models that prove successful.
Current Status
In 2018, SVP laws are well into their third decade. A second generation of legal challenges is now working its way through the courts. Two federal district courts have held that state programs are unconstitutional as they have been implemented. Several other cases are working their ways through the courts. But a federal appellate court reversed the first of the district court decisions. As of September 2018, the second is on appeal.
These cases present a number of challenges to the implementation of these laws. The most well-developed challenges focus on the states’ failure to fulfill the requirement that SVP laws have the key characteristics of bona fide civil commitment programs. The trial courts have found that some SVP programs have a punitive purpose, in large measure, because states have failed to monitor ongoing risk, provide less restrictive alternatives in the community, and release committed individuals just as soon as the circumstances justifying confinement no longer obtain. In reversing, the appellate court held that the systemic failure to release to community settings did not violate the constitution.
References:
- Janus, E. (2006). Failure to protect: America’s sexual predators laws and the rise of the preventive state. Cornell University Press, Ithaca, New York.
- Jeglic, E. L., & Calkins, C. (Ed). (2016). Sexual violence: Evidence based policy and prevention. Springer, New York.
- Prentky, R. A., Barbaree, H. E., & Janus, E. S. (2015). Sexual predators: Society, risk and the law. Routledge, New York
Court Cases:
- Foucha v. Louisiana, 504 U.S. 71 (1992).
- Kansas v. Crane, 534 U.S. 407 (2002).
- Kansas v. Hendricks, 521 U.S. 346 (1997).
- Minnesota ex Rel. Pearson v. Probate Court, 309 U.S. 270 (1940).