Discuss the civil commitment of sex offenders by the ruling in Kansas v. Hendricks, including the various criticisms of this decision.

Question

What will be an ideal response?

Answer 1

The idea that people who engage in socially disapproved behavior are sick and require treatment is seen as particularly applicable to sex offenders. In 1997, the Supreme Court upheld Kansas’s Sexually Violent Predator Act (SVPA), which allowed for keeping sex offenders in state custody under civil commitment laws after they have served their full prison terms if they demonstrate “mental abnormality” or are said to have a “personality disorder” (Kansas v. Hendricks, 1997). The federal government and many other states have since passed similar involuntary confinement laws for sex offenders. There is no doubt that Leroy Hendricks was a repeat predatory pedophile and a thoroughly nasty piece of work, but while many applaud his incapacitation, what concerns civil libertarians is that the Hendricks decision created a special category of individuals defined as “abnormal” who may be punished indefinitely for what they might do if released. Hendricks appealed his confinement on double jeopardy (no person can be prosecuted twice for the same offense) and ex post facto (a person cannot be punished for acts that were not crimes at the time he or she committed them) grounds. The Supreme Court ruled that Hendricks’ confinement was not double jeopardy because the commitment proceedings of the SVPA under which he was confined were civil rather than criminal, and thus did not constitute a second prosecution. Likewise, Hendricks’ ex post facto claim was rejected because the ex post facto clause of the U.S. Constitution relates only to criminal statutes. The Court declared that because Hendricks was committed under a civil act, his commitment did not constitute punishment. The majority of Supreme Court justices seemed to have believed that putting a different name on state confinement against the will of the confined changes how that person experiences it. In his analysis of civil commitment of sex offenders, R. Alexander (2004) lists a number of ways in which he believes the Supreme Court erred in its rulings in Hendricks and subsequent cases dealing with the same issue. The gist of most of these criticisms is that the ruling offends ideals of social justice and does not accomplish any of the goals of state confinement (deterrence and rehabilitation) other than retribution and incapacitation. Farkas and Stichman (2002) also argue that what they call the “culture of fear” generated by atypically brutal sex offenses has resulted in laws that are constitutionally questionable and that have negative consequences for the treatment of sex offenders, the criminal justice system, and society in general. The popularity of the laws with the general public, and the extremely negative view of sex offenders that it holds, makes it unlikely that these laws will be changed in the near future. It should be noted that only between 1% and 2% of sex offenders are confined under civil commitment orders.