Are Sexually Violent Predators Dangerous Enough? September 15, 2015
By Tamara Rice Lave and Justin McCrary
On June 15, U.S. District Judge Donovan W. Frank struck down
's law allowing for the civil
commitment of so-called sexually violent predators. SVP laws allow a person to
be locked away indefinitely after he has completed his maximum prison sentence.
Twenty states and the federal government have passed such laws, and over 5,000
SVPs are incarcerated at an annual cost in excess of 450 million dollars. Minnesota
Judge Frank found
law unconstitutional because it continued to hold people after they were no
longer dangerous. The next day, a three-judge panel on the Ninth Circuit Court
of Appeals held that Minnesota 's
SVP law did not violate the Constitution because, as Judge Susan Graber wrote,
"a state rationally may decide that sexually violent crime is
qualitatively more dangerous than other kinds of violent crime." California
These cases came out differently in part because Judge Frank considered evidence of SVP dangerousness, while the Ninth Circuit for the most part did not. Shirking facts is nothing new when it comes to sex offender laws. In
v Hendricks, the U.S. Supreme Court
simply accepted as true the legislature's claim that SVPs are "extremely
dangerous" and their "likelihood of engaging in repeat acts of
predatory sexual violence is high." Kansas
Yet dangerousness is critical to the constitutionality of SVP laws. Many people support putting away sex offenders forever, but the Constitution prohibits a person from being punished twice for the same crime. Legally, a state may not hold a sex offender past his release date because it feels he deserves more time, but it may civilly commit him if it can prove that he is mentally ill and dangerous.
In a 2013 paper published in the Brooklyn Law Review, we questioned this central premise -- that there is a small, readily identifiable segment of the population so dangerous public safety demands they be locked away. If this claim were true we would expect to see what criminologists term an "incapacitation effect" -- in other words, removing these dangerous people from the community should have a negative impact on the rate of crimes we believe they are at risk of committing.