8. If the Criminal Law Don’t Fit, Civilly Commit

Richard B. Sanders, Jacob Zahniser, and Derek Bishop*

Our thesis is this: The criminal law has served us well. It honors our humanity by holding each individual accountable for his acts, not his thoughts, not for who he is. Importantly, the criminal law— through its process, rules, and protections—chains the beast of unrestrained government; it guards our liberty.

But our thesis is also this: The blessings bestowed on us by the criminal law are under attack. Not a frontal attack, but an attack on the flanks, much as Adolf Hitler’s panzers flanked the Maginot Line—and just as effective. We are referring to ‘‘noncriminal,’’ ‘‘civil,’’ or other forms of executive imprisonment.

The subject of this chapter is the so-called sexually violent predator (SVP) laws. However, the same concerns arise whenever someone is imprisoned outside the confines of the criminal law, whether it is civil commitment or detention by the commander-in-chief in the worldwide battlefield of the so-called War on Terror.

Like Hitler’s panzer crews, the attackers speak a different language. Those subject to their attack are not ‘‘convicted,’’ ‘‘sentenced,’’ or ‘‘punished.’’ Instead, they are confined for ‘‘treatment.’’ Nor are they ‘‘imprisoned.’’ Instead, they are ‘‘detained,’’ perhaps as the new ‘‘residents’’ of an exclusive gated community. Nevertheless, the actuality of this ‘‘detention’’ for ‘‘treatment’’ is as restrictive as any imprisonment. Unless we repair to the first principles of our criminal justice system, we fear that the War on Liberty that has been declared may overpower the public’s first line of defense— our courts.

* Richard B. Sanders is a justice on the Washington Supreme Court. Jacob Zahniser earned his J.D. at St. John’s University and served as a law clerk to Justice Sanders between 2007 and 2008. Derek Bishop earned his J.D. at the University of Washington and served as a law clerk to Justice Sanders between 2007 and 2008.

Henry Hart analyzed the criminal law using a set of principles: the criminal law is the mechanism by which the community condemns unacceptable conduct, and the criminal law is the procedure to punish the perpetrator.1 In other words, the criminal law engenders social order by setting forth minimum obligations of conduct, which vary depending on the institutional actor: the constitution maker, the legislator, the judge, and even the criminal.

However, the criminal law not only engenders social order, it also protects us from a government that would destroy our liberties. When reading the Bill of Rights, we discover a majority of its words address criminal investigation, process, and punishment.2 These rights are not aimed at catching, convicting, and punishing criminals. To the contrary, these rights protect us against the awesome power of the state, which may overwhelm not only the criminal but everyone else.

If the aims of the criminal law are to engender social order while protecting our liberty, how is it doing? Since the early 1990s, the aims of the criminal law have been co-opted in pursuit of a goal never imagined by Hart or the Framers: to make the community feel safe. We say ‘‘feel’’ safe because the criminal law does not actually make the community safe; for as long as there has been a criminal law there have been criminals. ‘‘[T]he practical fact must be faced that many crimes . . . are undeterrable.’’3 Nevertheless, the notion that the state should enact a law to make the community feel safe seems to be the motive behind the recent rash of SVP civil commitment laws. This chapter analyzes these SVP laws within the framework of Hart’s analysis of the criminal law, as well as our own.

The Socio-Political Environment of SVP Commitment

Washington’s SVP statute was the first of its kind in the nation, and it has since been copied throughout the country. Currently, 16 states and the District of Columbia allow civil commitment of sexually violent predators.4 Because Washington was the first in the nation to enact SVP legislation, and that legislation has been used frequently as the model for other states, it is appropriate to look to it to draw conclusions about SVP statutes in general.

On the evening of May 20, 1989, Earl Shriner met a young boy riding a bike.5 Shriner suggested he and the boy ride their bikes together through the nearby woods. When Shriner and the boy were in the woods, Shriner anally and orally raped the boy, stabbed him in the back, strangled him, and cut off his penis. Shriner left the boy to die in the woods. A family discovered the boy and rushed him to a hospital. Somehow he survived.

Prior to this brutal attack Shriner had a lengthy and violent criminal past. He had been jailed for 10 years for abducting two 16-yearold girls. The state believed Shriner was still dangerous and sought to keep him jailed beyond his 10-year maximum sentence. But because Shriner could not be further imprisoned for his criminal convictions, the state sought to continue his confinement under the existing mental health civil commitment scheme. However, the court found he did not meet the criteria for civil commitment and released Shriner after he fully served his sentence.

Media reports quickly began to reflect the public belief that Shriner’s release from prison demonstrated a failure in the criminal justice system. Newspaper headlines throughout the state reflected public sentiment and read ‘‘Outrage Over the Attack, Over the System’’6 and ‘‘Protection of Society: Justice System Fails.’’7 One editorial, titled ‘‘Put Mutilators Away,’’ suggested, ‘‘The legal system needs to be changed to make it possible to remove the criminally insane from society, quickly and permanently. In such obvious cases as this, the law should err, if it errs at all, on the side of protecting the innocent.’’8 In no respect did the public seem concerned with treating Shriner’s underlying ‘‘insanity.’’ The only interest of the public and policymakers was, in the words of Governor Booth Gardner, ‘‘keep[ing] violent and dangerous people off the streets.’’9 To put it simply, fear captured the public and their elected representatives. Fear is a powerful, if not irresistible force, which, unfortunately, our institutions have not always been strong enough to contain.10

The political situation surrounding the enactment of the SVP statute demonstrates that the motive for enactment was not driven by a need to rehabilitate, but by a desire to segregate the so-called predator from the general public.11 But community protection is ordinarily a result of the criminal law, although the crime prevention purpose is qualified by the more important purpose of establishing social order and maintaining constitutional safeguards to liberty.12

The SVP Commitment Process

To fully understand how civil commitment imitates, but actually undermines, the aims of the criminal law, we first examine how SVP proceedings actually work. Each jurisdiction with an SVP commitment process requires some history of harmful sexual misconduct. All jurisdictions require the subject of commitment to be at least charged, but not necessarily convicted, with a sex offense as a predicate to civil commitment.13 Some jurisdictions suspend the pending criminal process when the petition for commitment is filed.14 Relatedly, some jurisdictions require the subject of commitment be confined at the time the petition is filed.15 Other jurisdictions, such as Washington, do not require the person be confined at the time the petition is filed provided the person has not committed a ‘‘recent overt act.’’16

All jurisdictions specify the types of offenses to qualify a person for SVP commitment. Additionally, the person must exhibit some mental condition that supposedly ‘‘makes’’ the individual likely to reoffend, although each jurisdiction uses differing terminology to describe the mental condition and the standard of commitment.

A majority of jurisdictions require the state to prove beyond a reasonable doubt the person satisfies the criteria for commitment.17 The remaining jurisdictions require the state to prove by clear and convincing evidence the person satisfies the criteria for commitment.18 A majority of jurisdictions provide that the finder of fact may be a jury, with either the state or the subject of commitment requesting jury determination.

All jurisdictions provide that the subject of commitment has a statutory right to counsel and, if indigent, have court-appointed counsel at the public’s expense. Moreover, all jurisdictions provide the subject with a right to request an expert and have the public pay for the costs of that expert. All jurisdictions provide that the subject of commitment has a right to attend the proceeding and cross-examine the state’s witnesses; however, the jurisdictions are split as to whether the subject of the proceeding has the right to remain silent. In Washington, for example, the subject of the petition has no statutory or constitutional right to remain silent.19

Once the subject is determined to be a sexually violent predator, some jurisdictions require the court to commit him or her to a special commitment center. Other jurisdictions permit the court to commit the subject to the least restrictive alternative appropriate. In either event, the person is committed to a department of health, not a department of corrections, even though the treatment programs are typically housed in prisons.

Lastly, most jurisdictions require the subject to be confined until he or she is no longer ‘‘dangerous.’’ About half the jurisdictions provide for some annual review of the subject to determine continuing ‘‘dangerousness.’’20 At this annual review, the burden of proof shifts to the supposed ‘‘predator’’ to show that he or she is no longer ‘‘dangerous.’’

As Hart observed, if conduct is equated with sickness and punishment with treatment, there would be no requirement for condemnable conduct to have actually taken place.21 Yet, the supposed ‘‘predator’’ is obviously subjected to the ‘‘community’s solemn condemnation’’ so, according to Hart, ‘‘the default to be condemned ought plainly to consist of overt conduct, and not simply of a condition of the mind; and the fact of default should be proved with scrupulous care.’’22 As will be seen, it is not.

The Civil Commitment Jurisprudence

To understand SVP civil commitment, one must understand the evolution of civil commitment laws in general. Despite certain fundamental differences, the U.S. Supreme Court drew from its general civil commitment jurisprudence to analyze the constitutionality of SVP civil commitment.23

Beginning in the 1930s, ‘‘sexual psychopath’’ laws authorized civil commitment of persons charged with or convicted of sexual offenses and deemed to be dangerous. These laws consigned the so-called sexual psychopath to a mental institution for treatment. The U.S. Supreme Court upheld Minnesota’s sexual psychopath law in Minnesota ex rel. Pearson v. Probation Court.24

With this constitutional imprimatur, other jurisdictions passed similar laws. By 1960, more than half of the states passed some kind of sexual psychopath law, ostensibly to provide treatment for so-called sexual psychopaths.25 It is important to note, however, these precursor laws to SVP commitment provided a civil procedure to mandate treatment in lieu of punishment, not in addition to punishment.26

By the late 1970s, however, treatment programs for so-called sexual psychopaths were severely curtailed due in large part to a series of reports, which became the foundation for the ‘‘nothing works’’ philosophy.27 The major tenet of this philosophy was no amount of treatment or rehabilitation curbs criminal recidivism, especially the recidivism of sex offenders. As this view became widely accepted, legislative focus shifted from indeterminate sentencing and involuntary treatment-based models to determinate sentencing wherein the convicted criminal serves his or her justly imposed sentence and is released regardless of treatment.

Some critics viewed determinate sentences as insufficient punishment for violent, recidivist sex offenders, yet legislative commitment to determinate sentences and prohibitions on retroactive punishment restricted how violent sex offenders could be appropriately punished.28 One commentator calls this perceived problem the ‘‘incapacitation gap.’’29

Hart warned of the ‘‘incapacitation gap’’ when he observed that determinate sentences did not adequately account for the individual criminal defendant’s circumstances.30 Hart posited that a sentencing judge could consider the individual circumstances of the convicted defendant, such as undeterrability, when crafting an individual sentence and that a parole board could ensure equality of sentencing, thus, implicitly eliminating any need for post-conviction civil commitment.31 Hart’s astute observation has been lost in the rush to commit the so-called predators living among us.

As we shall see in the cases to follow, the U.S. Supreme Court attempts to balance society’s wish to be protected from ‘‘predators’’ against the clear deprivation of liberty inherent in civil commitment. Without limits, however, the simple weighing of the social benefit of avoiding harm potentially caused by the recidivist criminal against the harm of depriving a single person’s liberty will always favor the state. A single criminal recidivist, such as Earl Shriner, can cause significant psychic harm to a community, and physical harm to an individual, whereas depriving him of liberty is seen as a much smaller harm.32

Hart recognized a double danger to this approach:

[It] tends always to depreciate, if not deny, the significance of [the criminal law] and to focus attention instead on the individual. . . . The danger to the individual is that he will be punished, or treated, for what he is or is believed to be, rather than for what he has done. . . . The danger to society is that the effectiveness of the general commands of the criminal law as instruments for influencing behavior so as to avoid the necessity for enforcement proceedings will be weakened.33

The balance the Supreme Court struck was to require the state to prove a mental illness that causes a person to be dangerous. However, relying on amorphous concepts, such as mental illness and dangerousness, is like pinning down fog; they may provide a comforting poultice for the constitutional injury, but they provide no real limitation on the government’s ability to civilly detain its citizenry. For a state to detain a person based on such amorphous concepts threatens the liberty of us all.

O’Connor v. Donaldson was the first case to link mental illness and dangerousness as the predicate conditions to civil commitment.34 In O’Connor, Kenneth Donaldson brought suit alleging his involuntary commitment violated his constitutional right to liberty. During his 15-year involuntarily commitment, he received no treatment for his mental illness (paranoid schizophrenia), and the state never claimed he was dangerous to society.35 The Supreme Court held Donaldson’s commitment unconstitutional; ‘‘[a] finding of ‘mental illness’ alone cannot justify a State’s locking a person up against his will and keeping him indefinitely in simple custodial confinement . . . there is still no constitutional basis for confining such persons involuntarily if they are dangerous to no one and can live safely in freedom.’’36 Importantly, the Supreme Court did not address how dangerousness could be proven. In the end, the decision in O’Connor left more questions unanswered than it resolved.

The next case to address one of the predicates to civil commitment, albeit in an indirect manner, was United States v. Salerno.37 Salerno involved a substantive due process challenge to the Bail Reform Act of 1984, which permits preventative pretrial detention of a person charged with certain serious felonies based solely on a prediction of dangerousness.38 The Supreme Court upheld the constitutionality of the act, reasoning

[w]hile the Government’s general interest in preventing crime is compelling, even this interest is heightened when the Government musters convincing proof that the arrestee, already indicted or held to answer for a serious crime, presents a demonstrable danger to the community. Under these narrow circumstances, society’s interest in crime prevention is at its greatest.39

Explicit in the ‘‘narrow circumstances’’ of Salerno is the temporal limit to the commitment being challenged; the detainee’s right to a speedy trial with all attendant constitutional protections ensures a determinate commitment length.40 But the facts explicit in Salerno render it inappropriate to support SVP commitment; pretrial criminal detention predicated on dangerousness is significantly different than indefinite civil detention.41

The most important case to address civil commitment was Foucha

v. Louisiana.42 Foucha concerned the constitutionality of a Louisiana statute allowing indefinite involuntary commitment of persons found not guilty by reason of insanity when the person was dangerous but not mentally ill.43 The issue before the court was whether an individual with ‘‘an antisocial personality,’’ which is not a mental disease or illness, may be civilly committed.44

The Supreme Court held that the Louisiana statute violated due process because it permitted civil commitment without mental illness. The Supreme Court reasoned that although an insanity acquit-tee could be committed,45 he is entitled to release when either he has recovered his sanity or is no longer dangerous.46 Since Foucha was not mentally ill, the basis for holding him as an insanity acquittee disappeared; the state could no longer hold him. In other words, mental illness and dangerousness were necessary predicates to civil commitment.

Three important elements should be teased out of the Foucha decision. First, the Supreme Court was concerned with the possibility of indefinite detention, as opposed to the limited detention based solely on dangerousness in Salerno.47 Second, where the detention was indefinite, dangerousness alone was insufficient to justify civil commitment.

[A] convicted felon serving his sentence has a liberty interest, not extinguished by his confinement as a criminal, in not being transferred to a mental institution and hence classified as mentally ill without appropriate procedures to prove that he was mentally ill. ‘‘The loss of liberty produced by an involuntary commitment is more than a loss of freedom from confinement.’’48

In other words, a high likelihood of reoffense is insufficient to justify civil commitment; something more must separate the dangerous, but ordinary, criminal recidivist from the dangerous, and extraordinary, mentally ill person.49

Third, the Supreme Court failed to set out any parameters to define mental illness. It explicitly rejected the notion that mere recognition of a disorder by the psychiatric community is a mental illness sufficient to justify civil commitment.

[T]he State asserts that because Foucha once committed a criminal act and now has an antisocial personality that sometimes leads to aggressive conduct, a disorder for which there is no effective treatment, he may be held indefinitely. This rationale would permit the State to hold indefinitely any other insanity acquittee not mentally ill who could be shown to have a personality disorder that may lead to criminal conduct. The same would be true of any convicted criminal, even though he has completed his prison term. It would also be only a step away from substituting confinements for dangerousness for our present system which, with only narrow exceptions and aside from permissible confinements for mental illness, incarcerates only those who are proved beyond reasonable doubt to have violated a criminal law.50

The court rejected ‘‘personality disorder’’ and ‘‘antisocial personality’’ as mental illnesses to justify civil commitment. Hart echoes this observation: ‘‘It is not simply antisocial conduct which public officers are given responsibility to suppress.’’51 However, the Supreme Court and Hart stop short of setting out any parameter that could justify civil commitment. In a concurring opinion, Justice Sandra Day O’Connor opined the state could civilly commit a person upon a showing of dangerousness and ‘‘some medical justification.’’52 Needless to say, following Foucha, it was clear that mental illness was a constitutional requirement for civil commitment, but it was unclear what constitutes a mental illness, except that Foucha’s personality disorder was insufficient.53

To summarize, O’Connor rejected civil commitment based on mental illness without dangerousness. However, O’Connor did not address how dangerousness could be proven. Foucha rejected civil commitment based on dangerousness without mental illness, but the Foucha ruling left considerable ambiguity surrounding the exact nature of the mental illness requirement. The stage was now set for the U.S. Supreme Court’s review of SVP civil commitment.

Leroy Hendricks was convicted in Kansas in 1984 for taking ‘‘indecent liberties’’ with two teenage boys; he was sentenced to 5 to 20 years in prison.54 Shortly before Hendricks’s scheduled release, the state invoked its newly enacted SVP statute, seeking to commit Hendricks as an SVP.55 Hendricks moved to dismiss the petition on constitutional grounds.56 The trial judge reserved ruling on Hendricks’s motion and found probable cause to proceed to trial.57

At trial, Hendricks stated he could not control his urges to molest children.58 The state presented expert testimony that Hendricks suffered from pedophilia, was likely to sexually reoffend against children if not confined, and pedophilia qualified as a ‘‘mental abnormality’’ under the Kansas SVP law.59 A jury unanimously found Hendricks to be a sexually violent predator beyond a reasonable doubt.60

Hendricks appealed to the Kansas Supreme Court, arguing his commitment violated the Constitution’s Due Process, Double Jeopardy, and Ex Post Facto Clauses.61 The Kansas Supreme Court held the SVP statute did indeed violate the Due Process Clause of the Constitution because the ‘‘mental abnormality’’ required under the statute fell short of the requirement of ‘‘mental illness’’ as a predicate for civil commitment.62 The U.S. Supreme Court granted certiorari and reversed, rejecting Hendricks’s claims.

The Supreme Court first addressed Hendricks’s claim that substantive due process requires that civil commitment be based on a ‘‘mental illness,’’ as that term may be defined by the psychiatric community. The Supreme Court held the Kansas law’s mental disorder requirement satisfied the requirements of substantive due process because ‘‘[t]he precommitment requirement of a ‘mental abnormality’ or ‘personality disorder’ is consistent with the requirements of . . . other statutes that we have upheld in that it narrows the class of persons eligible for confinement to those who are unable to control their dangerousness.’’63 The Supreme Court stated that ‘‘the term ‘mental illness’ is devoid of any talismanic significance.’’64 Rather, it observed, ‘‘we have traditionally left to legislators the task of defining terms of a medical nature that have legal significance.’’65 In other words, according to the Supreme Court, a ‘‘mental illness’’ is whatever the state legislature says it is, although it must result in some ‘‘inability to control . . . dangerousness.’’66

Putting aside the semantic quibble that it is not a person’s dangerousness that must be uncontrollable but a person’s conduct, the Supreme Court’s reasoning might be viewed to collapse the mental illness requirement into the dangerousness requirement. Recall in Foucha that the civil commitment was reversed because an antisocial personality disorder, although leading to uncontrollable dangerousness, was not a ‘‘mental illness,’’ talismanic or not.67 Perhaps because Hendricks admitted his dangerousness and his mental illness, the Supreme Court felt comfortable to collapse the requirements of dangerousness and mental illness into one another.68

To answer Hendricks’s double jeopardy and ex post facto arguments, the Supreme Court characterized the commitment as civil, not criminal: ‘‘As a threshold matter, commitment under the Act does not implicate either of the two primary objectives of criminal punishment: retribution or deterrence.’’ In addition,

the Kansas court’s determination that the Act’s ‘overriding concern’ was the continued ‘segregation of sexually violent offenders’ is consistent with our conclusion that the Act establishes civil proceedings . . . especially when that concern is coupled with the State’s ancillary goal of providing treatment to those offenders, if such is possible.69

Yet, if the Supreme Court were to approach the civil and criminal distinction in a principled way, it might do well to look to the purposes underlying that distinction. Hart offers one such principled method when he posits that the difference between civil and criminal sanction is ‘‘the judgment of community condemnation which accompanies and justifies [the criminal sanction’s] imposition.’’70 According to Hart, criminal acts ‘‘incur a formal and solemn pronouncement of the moral condemnation of the community.’’71 Accordingly, acts not morally condemned by the community may be subject to civil sanction.

Other experts view the distinction differently. For example, Professor John C. Coffee views the distinction from a utilitarian standpoint. For Coffee, the difference ‘‘lies in the distinction between ‘pricing’ and ‘prohibiting.’’’72 Civil sanctions are intended to ‘‘price’’ the action, and they cause the actor to ‘‘internalize the social costs of an activity.’’73 Because a civil sanction requires the actor only to pay the social costs, the punishment is not punitive and, ‘‘arguably the full constitutional safeguards applicable to criminal prosecutions need not apply.’’74 Criminal sanctions on the other hand are imposed on actions with no social utility and, therefore, must be prohibited in all cases.75

The question presented by SVP laws may also be approached differently than either Hart or Coffee. The question may not be whether SVP laws are criminal or civil but whether there are adequate safeguards on the state’s ability to restrict a person’s liberty.

For example, Professor Randy Barnett proposes a satisfying method to determine the legitimacy of laws.76 This view begins with the Framers’ deep mistrust of majoritarianism, and understanding the representative system put in place by the Constitution allowed the electorate, not to pass laws, but instead work as a check on those who do.77 Therefore, the government cannot consent to the abridgement of any individual rights. Since there is no consent to the abridgement of rights, the use of government power is legitimate only when it is ‘‘(1) necessary to protect the rights of others and

(2) proper insofar as [such powers] do not violate the preexisting rights of the persons on whom they are imposed.’’78 These rights, as properly understood by the Framers, go well beyond those enumerated in the Bill of Rights and encompass all ‘‘inherent rights’’ held by citizens, which are so pervasive as to be innumerable.79 He urges a presumption of liberty, making any deprivation of rights by the state illegitimate unless the state meets its burden to show procedural and substantive safeguards ensuring that the rights of the individual are respected.80

With this approach, the classification of SVP commitment as civil or criminal is immaterial; instead, only the substantive and procedural protections attendant to the deprivation of liberty are important. Where an individual faces forced confinement of indeterminate length, he is completely deprived of liberty; therefore, to be a legitimate use of government power, the protections attendant to the deprivation must also be complete.

By focusing on the formalistic labels of ‘‘civil’’ versus ‘‘criminal,’’ however, we lose sight of the practical realities of SVP commitment: communal condemnation and dehumanization, lack of meaningful clinical criteria, lack of clinical consensus on predictive ability, and the overall depreciation of the criminal law and social order.81 It is to these realities we now turn.

The Practical Realities of Sexual Violent Predator Commitment

Communal Condemnation and Dehumanization

Undoubtedly, no one is more reviled than the sexually violent predator. The name itself dehumanizes, expressly referencing a wild animal. A ‘‘predator’’ is something to be shunned or eliminated.82 Yet, even if the highest constitutional protections were in place, incarceration based on who an individual is, as opposed to what that individual has done, is an unacceptable affront to the conception of liberty upon which this country was founded.83

Labeling a person a ‘‘predator’’ and incarcerating that person based on the label alone ‘‘undermine[s] the foundation of a free society’s effort to build up each individual’s sense of responsibility as a guide and a stimulus to the constructive development of his capacity for effectual and fruitful decision.’’84 Such incarceration assumes either the person is incapable of choosing to act responsibly or, having such capacity, the person will not act responsibly. Both assumptions dehumanize, viewing the person as a dangerous animal or an automaton, lacking the free will to make a choice.85 ‘‘In the dark heart of the sex predator statute is the legislative denial of free will and individual responsibility.’’86

Yet, as Hart observed, ‘‘Man is a social animal, and the function of law is to enable him to realize his potentialities as a human being through the forms and modes of social organization.’’87 All of us have free will, the potential for good and evil; it is up to each to decide.

Lack of Meaningful Clinical Criteria Under Hendricks, a simple reference to the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) satisfies the mental illness prong of the substantive due process test.88 However, even the authors of DSM-IV recognize the error of relying on its normalization of mental conditions to justify civil commitment.

When the DSM-IV categories, criteria, and textual descriptions are employed for forensic purposes, there are significant risks that diagnostic information will be misused or misunderstood. These dangers arise because of the imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis. In most situations, the clinical diagnosis of a DMS-IV mental disorder is not sufficient to establish the existence for legal purposes of a ‘‘mental disorder,’’ ‘‘mental disability,’’ ‘‘mental disease,’’ or ‘‘mental defect.’’ In determining whether an individual meets a specified legal standard (e.g., for competence, criminal responsibility, or disability), additional information is usually required beyond that contained in the DSM-IV diagnosis.89

Moreover, as the Supreme Court recognized subsequent to Hendricks, ‘‘the science of psychiatry . . . informs but does not control [the] ultimate legal determination.’’90 Notwithstanding these stern admonitions, the invocation of a DSM-IV diagnosis continues to support civil commitment.91 However, this undermines the protections of the criminal law because it fails to provide any meaningful substantive limitation and merely punishes people for ‘‘for what he is or is believed to be.’’92 This is true for three reasons.

First, relying on the DSM-IV to provide the legal standard of commitment fails to provide a significant limitation on preventative detention.93 Arguably every criminal manifests some antisocial personality, as demonstrated by his willingness to break society’s rules to personally enrich himself. It seems likely the state could find an expert to diagnose these recidivists with a personality disorder causing them to commit crime.94 As such, the state could avoid the protections of the criminal law by creating some civil mechanism to commit undeterred criminals measured for the dangerousness of criminal recidivism.95 There simply does not appear to be any principled method of limiting preventative detention to those who are truly likely to commit a violent sexual act in the future.96

Second, the reliability and validity of a DSM-IV diagnosis as determinative of sexual violence is questionable.97 Psychiatry is not a science lending itself to highly reliable outcomes in that different examiners, assessing the same individual, may not assign the same diagnosis.98 Yet, even if psychiatry were able to reliably diagnose mental illness, the question of whether that mental defect is necessarily the cause of an individual’s sexual offense is a separate one. Current research suggests sexually violent behavior results from a complex interaction of a variety of factors, mental illness not necessarily being one of them.99

Third, use of DSM-IV undermines protection afforded individuals subject to preventative detention because more must be proven. The state must also prove a causal relationship between the mental illness and the individual’s dangerousness or likelihood of reoffending. Although not explicitly stated in Hendricks,100 the Supreme Court later clarified the requisite causal link between mental illness and dangerousness in a subsequent case, Kansas v. Crane.101 But using DSM-IV provides no insight into a person’s dangerousness.

The fact that an individual’s presentation meets the criteria for a DSM-IV diagnosis does not carry any necessary implications regarding the individual’s degree of control over the behaviors that may be associated with the disorder. Even when diminished control over one’s behavior is a feature of the disorder, having the diagnosis in itself does not demonstrate that a particular individual is (or was) unable to control his or her behavior at a particular time.102

To the contrary, if a lack of volitional control is satisfied by simply having a history of sex offending, such reasoning is tautological: one is a sex predator because one has prior sex offenses.103 In this way, the simple use of the DSM-IV removes one safeguard on the state’s ability to restrict an individual’s liberty.

The inconvenient truth about so-called sexually violent predators may be that sexually violent behavior is a choice rather than an uncontrollable compulsion. Intentional acts are properly punishable by the criminal law, a fact recognized when the very offenders who are deemed ‘‘predators’’ were previously imprisoned for the exact same behavior on the assumption their behavior was not due to mental illness.104 In the final analysis, civilly committing people based on a DSM-IV diagnosis merely punishes people for ‘‘what [they are] believed to be, rather than for what [they have] done.’’105

Lack of Predictive Ability

Since the danger of sexual-criminal recidivism is the primary justification for depriving individuals of their liberty through civil commitment, the state’s power to detain individuals must be focused on only the most dangerous. The Washington State Supreme Court construed its statutory standard for commitment as identifying persons whose ‘‘likelihood of re-offense is extremely high.’’106 Other jurisdictions use similar semantics.107

The question becomes, What are the criteria for predicting dangerousness, and do these criteria accurately predict which individuals will reoffend? The science of predicting dangerous recidivism is too complex and outside the scope of this chapter, but a general understanding is important to allow the reader to understand that the method currently used fails to engender social order or to protect our liberty.

Generally, the state’s forensic psychiatrist, or psychologist, gives an opinion on the likelihood that the individual will engage in future predatory acts of sexual violence. This opinion is based on one of three approaches: a purely clinical approach; a purely actuarial approach; and a combination of the two, sometimes referred to as an ‘‘adjusted actuarial approach.’’108

In a strict clinical approach, the clinician is the sole judge of dangerousness based on his or her clinical observations and expert knowledge. In a strict actuarial approach, predictions of dangerousness are based on statistical probabilities determined by a defined set of weighted predictors. In the adjusted actuarial approach, an actuarial assessment is made, which is then adjusted by the evaluator based on factors not included in the actuarial tool.

Each of these approaches based on existing science may be nothing more than propensity testimony without regard to a causal connection to the diagnosed condition.109 Studies have shown that evaluators who rely strictly on their clinical assessment will over-predict the recidivism risk while a strict actuarial assessment, relying primarily on static factors, such as prior offenses, age, and substance abuse history, fails to account for the changing dynamic factors of the subject’s emotional state and treatment progress.110 In other words, a clinical approach relies too much on the individual evaluator, and a strict actuarial approach relies too little on individual considerations and the link, if any, to a mental defect. As one judge noted, ‘‘Not only are the statistics concerning the violent behavior of others irrelevant, but it seems to me wrong to confine any person on the basis not of that person’s own conduct but on the basis of statistical evidence regarding the behavior of other people.’’111

In the adjusted actuarial approach, wherein the evaluator adjusts the actuarial assessment up or down based on the dynamic factors not included in the actuarial instrument, the criticisms inherent in the other approaches merge. As Professor John LaFond observes, ‘‘Why not convert our criminal sentencing system into a game of chance? Release from prison could be decided by a flip of a coin.’’112 As will be shown, Professor LaFond’s wry observation is not far off the mark.

This brings us to the judge’s role as gatekeeper when deciding whether to admit expert testimony. In the context of civil commitment, expert testimony is usually necessary and given great weight, which requires the accuracy and reliability of that testimony to be of paramount importance. But the judiciary fails to fulfill its basic role as neutral arbiter of justice if it admits expert testimony based on largely unproven science.

Depending on the jurisdiction, the trial judge uses either the Frye or Daubert test to ensure scientific evidence is sufficiently reliable for consideration by a fact finder.113 Under the Frye test, the trial judge determines whether the proffered expert testimony is generally accepted by the relevant scientific community.114 Under the Daubert test, ‘‘the proposed testimony must be supported by appropriate validation—i.e., ‘good grounds,’ based on what is known.’’115 In other words, the proffered expert testimony must be scientifically valid.

However, there is currently no scientific consensus that predicting dangerousness based on a mental or personality disorder is possible. In fact, all the current studies point the other way; ‘‘study after study has shown that this fond hope of the capability to accurately to predict violence in advance is simply not fulfilled.’’116

In a survey of the seven most commonly cited studies on the ability of mental health professionals to predict dangerousness, between 54 and 92 percent of individuals predicted to act violently failed to do so over a three-to five-year follow-up period.117 This means at best the so-called science of prediction is wrong half the time.118 As one commentator observes, ‘‘The validity of prediction testimony becomes so attenuated that it is ineffective to establish the requisite certainty of harm to make the state’s interest in preventing that harm ‘compelling’ (thus resulting in a violation of the due process clause).’’119 In sum, ‘‘Despite 25 years of research, social scientists have barely scratched the surface of risk assessment as a predictive tool.’’120

Nevertheless, courts regularly rely on these unproven measures of predicting dangerousness to justify civil detention. The majority of appellate courts have either ruled a Frye or Daubert analysis as unnecessary121 or dismissed concerns over scientific methodology as going to credibility subject to the discretion of the trial judge.122 But a more reasoned approach would seem to be scientific evidence is not ‘‘helpful’’ to a jury when it is not based on solid science.123

Ultimately, courts appear reluctant to be the first to say that ‘‘the emperor wears no clothes,’’ as that would undermine the well-established practice of basing judicial decisions on a prediction of dangerousness; to admit the emperor wears no clothes is to ‘‘eviscerate the entire law of involuntary commitment as well as render dubious the numerous other areas where psychiatry and the law intersect.’’124 We suppose the same could be said of witch trials in Salem. When the prestigious American Psychiatric Association reports the science is lacking to predict dangerousness but predictions of dangerousness lacking scientific basis are still admitted in court as dispositive of a person’s liberty, there must be more at work in the judicial mind than simply and impartially searching for the truth.125

The Depreciation of the Criminal Law and Social Order

If Hart is right that the criminal law provides the mechanism to allow society to vindicate its interest in prohibited conduct and engender social order, it would depreciate the role of the criminal law to shift away from punishment based on individual conduct. Hart observed that

the criminal law has an obviously significant and, indeed, a fundamental role to play in the effort to create the good society. For it is the criminal law which defines the minimum conditions of man’s responsibility for his fellows and holds him to that responsibility. The assertion of social responsibility has value in the treatment even of those who have become criminals. It has far greater value as a stimulus to the great bulk of mankind to abide by the law and to take pride in so abiding.126

Under this view, if an individual has committed a crime, he or she must be criminally punished not only as a matter of social right, but also as a matter of individual responsibility. The criminal law is the teacher, and punishment is the lesson. Where an individual is not criminally punished but civilly committed, the lesson is lost and the community’s desire to condemn the conduct is left unfulfilled.

Concomitantly, detaining a person in the name of treatment is to render the punishment arbitrary, undermining the proscriptive force of the law because ‘‘the very ideal of justice is offended by seriously unequal penalties for substantially similar crimes.’’127 The perception of arbitrariness is simple. Take two individuals who have committed the same crime: the first is punished pursuant to the criminal law and after he serves his criminal sentence, rejoins society; the second is punished pursuant to the criminal law, but in lieu of, or in addition to, his criminal sentence, he is also committed for treatment based on speculation of what he may do in the future. Such a system is easily perceived as arbitrary, especially when considering the lack of any causal link between criminal conduct and mental disorders.128 As Hart observed, unequal punishment ‘‘destroy[s] the prisoner’s sense of having been justly dealt with, which is the first prerequisite of his personal reformation.’’129

Relatedly, labeling a person a ‘‘predator’’ absolves the person from taking responsibility for the conduct, enabling the person to commit future criminal conduct and to further undermining the proscriptive force of the law.130 Formal punishment, on the other hand, enables the offender the opportunity to comply with the basic strictures of society. To deny punishment in the name of treatment is to depreciate the criminal law as well as the criminal. In the end, it is society that suffers.


Restating the original query, if the aims of the criminal law are to engender social order while providing a bulwark against deprivation of liberty, how is it doing? Well, that bulwark is not impenetrable, and it appears a goal never imagined by Hart or the Framers has co-opted the criminal law. The goal of community safety may one day breach that bulwark unless the courts recognize that the deprivation of liberty for any reason should be the sole bailiwick of the criminal law, with all its attendant protections. As the jurisprudence currently stands, a state is permitted to civilly detain a person indefinitely based on a limitless standard of mental abnormality and a guess about future dangerousness.

President Abraham Lincoln once quipped, ‘‘How many legs does a dog have if you call the tail a leg? Four. Calling a tail a leg doesn’t make it a leg.’’131 Similarly, calling incarceration ‘‘civil’’ should not demolish the formidable bulwark guarding our liberty. As one scholar observed, ‘‘The Framers, for all their prescience, did not anticipate post-modernism. They apparently thought they knew what the ‘criminal’ process was.’’132

We should be wary when government targets individuals who are already the object of the public’s abhorrence. We should be doubly wary when the government suspends the formidable protections afforded those people under the criminal law to use a civil process in order to prevent an unknowable future. So-called sexual predators are the canaries in the coal mine, the first to fall when the forces of tyranny breach the borders of liberty.

Soon, because only some mental abnormality is required, nearly anyone deemed potentially dangerous could be civilly committed. Such a process neither engenders social order nor protects people from the awesome power of the state. Such a process fails Hart’s aims of the criminal law as well as our own.