Throwing Away the Key: Has the Adam Walsh Act Lowered the Threshold for Sexually Violent Predator Commitment Too Far?

Abstract

The Adam Walsh Act allows a person to be committed indefinitely as a sexually violent predator (SVP) who has never been convicted of, or even charged with, a sex crime. The government need only convince a judge by clear and convincing evidence that the person committed, or attempted, certain offenses. I consider the question US v. Comstock explicitly left open: Does the Act violate due process? I ask whether persons subject to SVP commitment deserve procedural protection. Contrary to belief, the rate of sex offender recidivism is quite small, which makes a robust due process regime necessary. I then contrast the due process rights of SVPs with those of other individuals whose mental state is at issue and demonstrate that SVPs have fewer protections. I discuss the Supreme Court’s justification for reduced SVP due process. I next compare state SVP protections with the constitutional minima afforded by the Court. This data provide a map to SVP legislation that should prove of practical importance to judges and practitioners. One might suspect that states would have afforded only the minimum, but most have provided more. Finally, I evaluate the Act from a public policy and constitutional perspective and conclude that it violates common sense and due process.

Keywords: Adam Walsh Act, Sexually Violent Predator, U.S. v Comstock, procedural due process