Eric S. Janus

Assessing the legal standard for predictions of dangerousness in sex offender commitment proceedings.

Advocates and courts legitimize sex offender commitment laws by claiming the laws confine only those who are “highly likely” to engage in sexual violence. This article proposes a definition of “probability” of future harm and assesses the legal probability thresholds commitment courts actually use. Using published information about recidivism and actuarial prediction, the authors concludes that moderate, but not extravagant, claims about legal probability thresholds are supportable but only on a rather optimistic set of assumptions. The authors recommend that sex offender commitment courts use the proposed methods to quantify judicial standards and findings about prediction. This will allow the claims for legitimacy to be more readily assessed.

Sexually Violent Predators in the Courtroom: Science on Trial

Adjudication of sexually violent predator commitment laws places demands on science. In the current article, the authors discuss the determination of mental abnormality and its reliance on medical nosological systems. Second, the authors examine the determination of current risk by reviewing three common concerns: (a) mechanistic estimations of risk, (b) mitigation of risk as a function of age, and (c) estimation of contemporaneous (dynamic) risk. The authors focus specifically on determinations of risk posed by the nexus of mental abnormality with prior history of sexually violent acts. Third, the article examines relevant, though sometimes nonstatutory, considerations, namely, the standards and the expectation for the treatment provided in high-security civil commitment programs. Potentially important dynamic or time-varying factors that may mitigate risk, such as offender age and treatment, are considered. Recommendations to promote good science and to avoid bad science are included with respect to determinations of mental abnormality, risk of reoffending, and treatment.

Hendricks and the moral terrain of police power civil commitment.

In Kansas v. Hendricks, the Supreme Court relied heavily on Hendrickss lack of “volitional control” to justify the use of civil commitment as a tool of social control. The Courts decision is best explained by the rule that police power commitment is constitutional only if it is a principled and narrow exception to the primacy of the criminal justice system. Despite the Courts failure to adopt a parens patriae or treatment-appropriateness limit, the Hendricks doctrine has the potential to confine civil commitment to its appropriate domain. But the Courts application of its principle is dangerously ambiguous. “Volitional incapacity” may be an empty rhetorical ploy; or, it may embody a pernicious “jurisprudence of difference,” equating mental difference with the degradation of civic personhood. If volitional incapacity identifies those who are too sick to deserve punishment, the Courts decision is on sound moral terrain.

Legislative Responses to Sexual Violence

Abstract: In the past three decades, the legislative response to sexual violence has undergone two sets of reforms. The feminist reforms, beginning in the 1970s, sought to modify legal forms and practices to reflect new theories of the nature of sexual violence. The ‘regulatory’ reforms of the 1990s were atheoretical, and adopted a ‘preventive’ strategy to close perceived gaps in the system of social control. This article examines the second wave of reform, with special emphasis on Sexually Violent Predator (SVP) laws. It summarizes the current legal controversies generated by these laws, and suggests that the underlying assumptions and forms adopted by the 1990s reforms may undercut some of the advances achieved by the feminist reforms in understanding and addressing sexual violence.

Beyond Strict Scrutiny: Forbidden Purpose and the 'Civil Commitment' Power

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. But the Court’s civil commitment cases tie the search for punitive purpose to another genre of constitutional analysis, the application of the substantive boundaries on governmental power most commonly associated with the specific grants of federal power. In contrast to the normal conception of state power as plenary, limited only by the specific constraints of the bill of rights and the amorphous limits of “substantive due process,” the Court has posited a narrowly limited “civil commitment” power. The search for the forbidden purpose maps directly onto the inquiry into the limits of this discrete and special state power. Finally, the article argues that the forbidden purpose/discrete power analysis provides clarity on another vexing issue, the facial/as-applied distinction.