Preventing Sexual Violence: Setting Principled Constitutional Boundaries on Sex Offender Commitments

Abstract

Two forces are converging in litigation testing sex offender commitments. Our society's belated and proper concern for sexual violence pushes legislators to seek novel and effective means to prevent-not just punish-sexual violence. Along with notification and registration laws, states are adopting sex offender commitment laws to institutionalize sex criminals after they have completed their criminal sentences and prevent them from striking again. These laws, however, pay a dear constitutional price. Eschewing the “great safeguards which the law adopts in the punishment of crime and the upholding of justice,” they seek the shelter of psychiatric diagnosis and civil commitment to avoid condemnation as “preventive detention.” This article traces the steps in the Supreme Court’s trajectory towards the decision about civil commitment’s boundaries. Each of the courts that has ruled on contemporary sex offender commitment schemes has begun with the proposition that “mental disorder” is a constitutional predicate for civil commitment. The narrow issue of contention, the issue that has split the courts most clearly, is how “mental disorder” is to be defined for constitutional purposes. This article explores the Supreme Court’s mental-disorder-centered jurisprudence, and proposes a principled basis for making the outer boundaries of civil commitment.

Keywords: Sex offenders, civil commitment, constitutional law, liberty, police powers, sex crimes, criminal law