Mitchell Hamline School of Law

Sex Offense Litigation and Policy Resource Center

SVP

Beyond Strict Scrutiny: Forbidden Purpose and the “Civil Commitment” Power

Posted: June 29, 2018
Sex offender civil commitment (SOCC) is a massive deprivation of liberty as severe as penal incarceration. Because it eschews most of the "great safeguards" constraining the criminal power, SOCC demands careful constitutional scrutiny. Although the Supreme Court has clearly applied heightened scrutiny in judging civil commitment schemes, it has never actually specified where on the scrutiny spectrum its analysis falls. This article argues that standard three-tier scrutiny analysis is not the most coherent way to understand the Supreme Court’s civil commitment jurisprudence. Rather than a harm-balancing judgment typical of three-tier scrutiny, the Court’s civil commitment cases are best understood as forbidden purpose cases, a construct that is familiar in many areas of the Court’s constitutional analysis...

Beyond Strict Scrutiny: Forbidden Purpose and the “Civil Commitment” Power

Assessing the Real Risk of Sexually Violent Predators: Doctor Padilla’s Dangerous Data [Law Review]

Posted: June 29, 2018
This Article uses internal memoranda and emails to describe the efforts of the California Department of Mental Health to suppress a serious and well-designed study that showed just 6.5% of untreated sexually violent predators were arrested for a new sex crime within 4.8 years of release from a locked mental facility. The Article begins by historically situating sexually violent predator laws and then explains the constitutionally critical role that prospective sexual dangerousness plays in justifying these laws. The Article next explains how the U.S. Supreme Court and the highest state courts have allowed these laws to exist without requir- ing any proof of actual danger. It then describes the California study and recon- ciles its findings with those of a well-known Washington study by explaining the preventive effects of increasing age. Finally, the Article explains how these results undermine the justification for indeterminate lifetime commitment of sex offenders.

Assessing the Real Risk of Sexually Violent Predators: Doctor Padilla’s Dangerous Data [Law Review]

Topics

Jurisdiction

Constitutional Issues

Substantive Issues

Actual Innocence Administrative exhaustion Administrative Procedures Act AEDPA Antisocial Personality Disorder Apprendi / Alleyne As-Applied AWA Burden of Proof Churches Civil Commitment Collateral Estoppel Conditions of Confinement Conditions of Release Daubert Deregistration Evidentiary Standards Expungement Extraterritorial Registration Failure to Register Familial Relationships GPS Halloween Hearsay Heck bar Homelessness Housing HUD Immigration Ineffective Assistance International Travel Internet Identifiers Internet Restrictions Jury Instructions Juvenile Registration Mental disorder Non-Sexual Offense Notification Out-of-state Offense Paraphilia Diagnosis Pardon Parole Personality Disorder Plea Agreement Plethysmograph PLRA Polygraphs Preemption Presence Restrictions Procedural Default PROTECT Act Punishment Qualified Immunity Recidivism Reclassification Res Judicata Residential Banishment Retroactive Application (Non-EPF) Revocation of Supervision Risk School Property Second / Subsequent Offense Sentencing Sexual Predator designation Sign Posting Special Needs Supervised Release SVP Tiering / Classification Tolling Transitional Release Travel Travel Restrictions Treatment Programs Voting Rights