SEXUAL PREDATOR LAWS

Perhaps the most vilified criminal in American society is the sex offender who preys on young children. To prevent convicted sex offenders from striking again, states have constructed a mosaic of laws. These laws include the registration of offenders, the notification of communities (together called "Megan's Laws," after a victim of a sex predator in New Jersey), and the newest state weapon, special involuntary commitment of sex offenders.

All fifty states now have some form of registration and notification laws, and a substantial number of states—among them, Washington, Kansas, Florida, and Wisconsin—have adopted and are considering special involuntary commitment statutes. The laws authorize the indefinite detention, possibly for life, of persons who have been previously convicted of a sex offense and are dangerous to society as a result of a mental abnormality or personality disorder. The mental abnormality or personality disorder requirement is lower than the general involuntary commitment statutes, which usually require a full-blown mental illness, such as schizophrenia or bipolar (manicdepressive) disorder, coupled with dangerousness. Further, some laws, such as the one enacted in Kansas, appear to provide only minimal psychiatric treatment to those who are committed.

The Supreme Court considered the constitutionality of sexual predator involuntary commitment laws in Kansas v. Hendricks (1997). Hendricks involved a challenge to the Kansas sex predator involuntary commitment statute based on due process of law, double jeopardy, and the ex post facto clause. All three constitutional claims were grounded on the premise that the involuntary commitment really constituted an unlawful extension of the previous conviction because it was effectively criminal punishment without the required proof beyond a reasonable doubt.

In a 5–4 decision, the Court upheld the Kansas statute. Justice clarence thomas, writing for the majority, concluded that the law did not violate any provision of the Constitution because it was civil in nature and did not impose a second criminal punishment. Thomas offered several reasons for this conclusion, including that the Kansas legislature had placed the commitment law within a larger civil statute, called the law civil, and enacted the law to protect the public, not to further punish criminals.

Thomas was not troubled by the apparent lack of psychiatric treatment provided by the law. He noted that the law was new and, under certain circumstances, mere detention could be an appropriate goal of the state. In essence, Thomas took a very deferential posture towards the legislature's power to safeguard society from heinous individuals.

Thomas's conclusion, and even his rationale, are at first glance appealing. It is easy to observe that Leroy Hendricks, who had a long history of sexually abusing children and had admitted to being unable to control his urge to molest children at times, deserved to spend the rest of his life isolated from society because of what he had done.

Despite these considerations, however, the Kansas legislature's sexual offender commitment law is constitutionally infirm and economically shortsighted. The detention of offenders such as Leroy Hendricks is criminal in nature and unconstitutional for several reasons. The first and perhaps foremost reason is the state's hidden intent to punish. Many experts in the psychiatric community agree that sex offenders are not treatable and will not benefit from involuntary hospitalization. They will be kept there, nonetheless, perhaps for life. Also, treatment is not afforded in jail, but only after the incarceration period has run its course, indicating a less-than wholehearted concern by the legislature for "healing the sick." This form of indefinite warehousing of people without the provision of realistic treatment opportunities—and without the narrow tailoring that would promote as much liberty as possible—had never before been approved by the Court and appears to be a fancy substitute for imprisonment.

The Court's reduction in standards for involuntary commitment of sex predators also abuses the mental health system. The laws ignore the plain purpose of hospitalization, which is to treat and heal. As the 1996 American Psychiatric Association Task Force's Report on Sexually Dangerous Offenders noted, "The sexual predator statutes aim to achieve preventive detention of offenders who have completed their criminal sentences. The medical model of long-term civil commitment is used as a pretext for extended confinement that would otherwise be constitutionally impermissible." Instead of psychiatrists and psychologists using their expertise to treat people who can be helped by their services, the law permits hospitals to be clogged with untreatable sex offenders.

In addition, the mental "abnormality" test is so lacking in definitional coherence that it cannot be administered properly in a court of law. The term "abnormal" is vague and devoid of a concrete definition—indeed, even the psychiatrists and psychologists do not agree on what it means—to the extent that the standard is simply not workable.

Perhaps the greatest danger of legitimizing such a law, however, is the possibility that other "dangerous" mentally abnormal recidivist groups, such as drug addicts, spouse abusers, and people who drive under the influence of alcohol or drugs, could be the next subjects of involuntary commitment laws. This slippery slope would be a powerful regulatory tool for the legislature.

While preventing sex offender recidivism is extremely important, constitutional shortcuts will not work in the long run. Using the civil system to do the work of the criminal justice system is neither laudatory nor efficient—taxpayers will be paying a substantial and increased amount for wasted psychological care for "patients" housed in expensive psychiatric institutions, many if not all of whom are untreatable and taking the space of more deserving, innocent mentally ill persons. If the legislature deems it appropriate to protect society from sex predators, it ought to enact criminal laws with lengthy criminal sentences or civil laws with cognizable standards, safeguards promoting freedom, and real treatment opportunities. While a "round-them-up" statute may have valid ends, it must be written using valid means as well. Without those constitutional means, involuntary commitment statutes should fall.

Steven I. Friedland
(2000)