Sex offender civil commitment: The treatment paradox

California Law Review

Volumn 98, Issue 6, 2010, Pages 2093-2128

  Miller, Jeslyn A ^a  

^a NONE

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EID: 79953836755     PISSN: 00081221     EISSN: None     Source Type: Journal    
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References (334)

1. See. e.g., Addington v. Texas, 441 U. S. 418, 425 (1979) ("This Court repeatedly has recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.");
2. BRUCE J. WINICK, CIVIL COMMITMENT: A THERAPEUTIC JURISPRUDENCE MODEL 1-2 (2005) (explaining that civil commitment may entail a greater curtailment of liberty than penal incarceration because, in addition to the forced detention found in both systems, involuntary commitment requires intrusive treatment and imposes a "severe stigma" that produces continued social and occupational disabilities long after discharge).
3. See, e.g., Kansas v. Crane, 534 U.S. 407 (2002);
4. Kansas v. Hendricks, 521 U.S. 346 (1997).
5. See United States v. Ward, 448 U.S. 242, 248 (1980).
6. See, e.g., Edward P. Ra, Comment, The Civil Confinement of Sexual Predators: A Delicate Balance, 22 ST. JOHN'S J. LEGAL COMMENT. 335, 337, 364 (2007);
7. N.Y. MENTAL HYG. LAW §10.01 (McKinney 2010) (describing protection of the public and treatment of the offender as dual aims of New York's civil commitment system).
8. See infra Part II.
9. For a discussion of psychotherapist-patient privilege and civil commitments, see infra notes 90-92 and accompanying text.
10. See infra Part III.B.
11. I am grateful to Tamara Lave for discussing this point with me.
12. See, e.g., Kansas v. Hendricks, 521 U.S. 346, 371 (1997) (Kennedy, J., concurring) ("If the object or purpose of the Kansas [sex offender civil commitment] law had been to provide treatment but the treatment provisions were adopted as a sham or mere pretext, there would have been an indication of the forbidden purpose to punish.").
13. See, e.g., Id.
14. Jason A. Cantone, Rational Enough to Punish, But Too Irrational to Release: The Integrity of Sex Offender Civil Commitment, 57 DRAKE L. REV. 693, 696 (2009).
15. See Samuel Jan Brakel & James L. Cavanaugh, Jr., Of Psychopaths and Pendulums: Legal and Psychiatric Treatment of Sex Offenders in the United States, 30 N.M. L. REV. 69, 71 (2000). Michigan was one of the first states to pass sex offender civil commitment legislation in 1937. Mich. Comp. Laws §780.501-.509 (1937) (repealed 1968).
16. Raquel Blacher, Comment, Historical Perspective of the "Sex Psychopath" Statute: From the Revolutionary Era to the Present Federal Crime Bill, 46 MERCER L. REV. 889, 903 (1995);
17. see also Karl M. Bowman, Review of Sex Legblation and the Control of Sex Offenders in the United States of America, INT'L REV. OF CRIMINAL POL'Y, July 1953, at 20-39 (1953) (explaining that various terms were used to describe the targeted group of sex offenders, including "psychopathic offenders" and, most typically, "sexual psychopaths").
18. Blacher, supra note 13, at 905;
19. John Q. La Fond, The Costs of Enacting a Sexual Predator Law, 4 PSYCHOL. PUB. POL'Y & L. 468, 470-71 (1998).
20. See Blacher, supra note 13, at 906 (stating that various factors led to the treatment's decline, including "the recognition that not all violent sexual offenders were likely to respond to the same type of therapy; the growing awareness that sex offenders were not mentally ill," and "the lack of proven treatment methods to reduce recidivism rates"). A number of influential reports, including those of the Group for the Advancement of Psychiatry and the American Bar Association's Criminal Justice Mental Health Standards, recommended the repeal of special statutes for mentally disordered offenders.
21. See GROUP FOR THE ADVANCEMENT OF PSYCHIATRY, PSYCHIATRY AND SEX PSYCHOPATH LEGISLATION: THE '30s TO THE '80s 942, 935 (1977) (characterizing sex psychopath statutes as an "experiment [that] has failed" because they provided neither effective treatment nor the incarceration of truly dangerous individuals and recommending the repeal of sex psychopath legislation).
22. See Aman Ahluwalia, Civil Commitment of Sexually Violent Predators: The Search for a Limiting Principle, 4 CARDOZO PUB. L. POL'Y SÍ ETHICS J. 489, 489 (2006);
23. Cantone, supra note 11, at 697.
24. Case law converted sexual psychopath laws into something inherently criminal. See, e.g., Specht v. Patterson, 386 U.S. 605, 609-11 (1967) (holding that due process in commitment hearings requires assistance of counsel, the right to confront and to cross-examine adverse witnesses, the right to present one's own witnesses and evidence, and a final decision sufficiently articulated to permit meaningful review on appeal);
25. United States ex rel. Stachulak v. Coughlin, 520 F.2d 931, 935 (7th Cir. 1975) (finding that individuals committed under the Illinois Sexually Dangerous Persons Act suffer a "grievous loss" and that, in addition to statutory rights to a hearing, jury trial, and counsel, a defendant is entitled to the right to confront and to crossexamine witnesses, the right against self-incrimination, the right to speedy trial, and a reasonabledoubt standard of proof) (citations omitted).
26. Millard v. Cameron, 373 F.2d 468,472-73 (D.C. Cir. 1966).
27. ERIC S. JANUS, FAILURE TO PROTECT: AMERICA'S SEXUAL VIOLENT PREDATOR LAWS AND THE RISE OF THE PREVENTATIVE STATE 22-23 (2006).
28. For example, Washington's civil commitment law responded to public outcry over the rape, mutilation, and killing of a seven-year-old boy by a mentally retarded man who had professed the intent to molest children if released from prison, and the kidnapping and murder of a young woman by an inmate who the state mental hospital considered "too dangerous to handle." ROXANNE LIEB, WASHINGTON'S SEXUALLY VIOLENT PREDATOR LAW: LEGISLATIVE HISTORY AND COMPARISONS WITH OTHER STATES 1 (1996), http://www.wsipp.wa.gov/rptfiles/ WAsexlaw.pdf.
29. New Jersey enacted its civil commitment legislation following community outrage over the release of Donald Chapman, who had served twelve years for the abduction and rape of a twenty-three-year-old female and had expressed the intent to continue committing sexually motivated offenses against women and children upon release. Claudine M. Leone, New Jersey Assembly Bill 155-A Bill Allowing the Civil Commitment of Violent Sex Offenders After the Completion of a Criminal Sentence, 18 SETON HALL LEGIS. J. 890, 890-96 (1994).
30. ARIZ. REV. STAT. ANN. §§36-3701-3717 (2007);
31. CAL. WELF. & INST. CODE §§66006609.3 (West 2010);
32. FLA. STAT. §§394.910-394.932 (2010);
33. 725 III. COMP. STAT. 205/1.01205/12 (2010);
34. IOWA CODE §229A (2002);
35. KAN. STAT. ANN. §§59-29a01-22 (2008);
36. MASS. GEN. LAWS ch. 123A §§1-16 (2010);
37. MINN. STAT. §253B (2010);
38. Mo. REV. STAT. §§632.480.513 (2008);
39. NEB. REV. STAT. §§71-1201-1226 (2006);
40. N.H. REV. STAT. §135-E (2010);
41. N.J. STAT. ANN. §§30:4-27.26-38 (West 2010);
42. N.Y. MENTAL HYG. LAW §10.01 (McKinney 2010);
43. N.D. CENT. CODE §§25-03.3-01-.3-44 (2009);
44. 42 PA. CONS. STAT. §§6401-09 (2010);
45. S.C. CODE ANN. §§4448-10-170 (2009);
46. TEX. HEALTH & SAFETY CODE ANN. §§841.001-007 (Vernon 2009);
47. VA. CODE ANN. §§37.2-900-921 (2010);
48. WASH. REV. CODE §§71.09.010-903 (2010);
49. Wis. STAT. §§980.01-14 (2010).
50. 18 U.S.C. §4248 (2006). The Supreme Court recently upheld this federal civil commitment statute-which authorizes the Department of Justice to detain a mentally ill, sexually dangerous federal prisoner beyond the date the prisoner would otherwise be released-as a constitutional exercise of congressional power under the Necessary and Proper Clause. United States v. Comstock, 130 S. Ct. 1949 (2010). The Comstock opinion expressly declined to address whether §4248 or its application denied equal protection, procedural or substantive due process, or any other constitutional rights.
51. Id. at 1956, 1965.
52. While "Sexually Violent Predator" or "SVP" is the most common designation for civilly committed offenders, Massachusetts and Wisconsin use "Sexually Dangerous Person," North Dakota uses "Sexually Dangerous Individual," and Arizona and Illinois use "Sexually Violent Person;" Minnesota has two designations under their law-"Sexually Dangerous Person" and "Sexual Psychopathic Personality." ADAM H. DEMING, SEX OFFENDER CIVIL COMMITMENT PROGRAM DEMOGRAPHICS AND CHARACTERISTICS (2006), available at http://www.soccpn.org/ docs/soccpdemochar.pdf.
53. Holly A. Miller, Amy E. Amenta & Mary Alice Conroy, Sexually Violent Predator Evaluations: Empirical Evidence, Strategies for Professionals, and Research Directions, L. & HUMAN BEHAV., Feb. 2005, at 29, 31-35 (providing a comparison of state laws).
54. WASH. STATE INST, FOR PUB. POLICY, COMPARISON OF STATE LAWS AUTHORIZING INVOLUNTARY COMMITMENT OF SEXUALLY VIOLENT PREDATORS: 2006 UPDATE, REVISED 1 (2007) [hereinafter WSIPP], available at http://www.wsipp.wa.gov/pub.asp?docid= 07-08-1101.
55. Critics argue that civil commitment programs inappropriately blur the line between punishment and civil commitment in violation of the constitutional prohibitions against double jeopardy and ex post facto punishments.
56. See, e.g., Peter C. Pfaffenroth, The Need for Coherence: State's Civil Commitment of Sex Offenders in the Wake of Kansas v. Crane, 55 STAN. L. REV. 2229, 2259-62 (2003). For a discussion of constitutional concerns in the context of civil commitment,
57. see infra Part II.B.
58. See Monica Davey & Abby Goodnough, Doubts Rise as States Hold Sex Offenders After Prison, N.Y. TIMES, Mar. 4, 2007, at Al (stating that civil commitment programs, on average, cost taxpayers four times more than keeping the offenders in prison). Costs include treatment, security and supervision, direct care, health care, contracted services, legal services, psychological examinations, transportation, and administrative overhead. In 2006, more than $454.7 million was budgeted nationwide for civil commitment programs, and the average yearly cost across states was $94,017 per resident in a commitment center as opposed to $25,994 per Department of Corrections (DOC) inmate. WSIPP, supra note 25, at 5. California's cost of civil commitment was the highest: $166,000 per sexually violent predator resident per year.
59. Id. at 5. State commitment centers are also costly to build. For example, California's Coalinga State Hospital, constructed in 2005 to house California's sexually violent predator population, cost approximately $388 million. Press Release, Cal. Dep't of Mental Health, Coalinga State Hospital Facts (2005), available at http://www.dmh.ca.gov/News/Press-Releases/docs/2005/ dedication/ CSH%20Facts.pdf. Further, critics opine that civil commitment programs divert resources that would otherwise fund prevention programs and probation departments to the highly visible but extremely rare incidents of sexual violence.
60. See, e.g., JANUS, supra note 19, at 2-4.
61. For example, the past sexually violent offense requirement encompasses persons charged with just one crime of sexual violence; persons charged with sexual offenses as juveniles; and, in some states, persons charged with sexual conduct that does not involve any physical contact with another person, such as "living off or sharing earnings of a minor prostitute," MASS. GEN. LAWS ch. 123A, §1; possession of child pornography,
62. Id.
63. stalking via mail or telephone, MINN. STAT. §253B.02(7)(b);
64. or attempted offenses, N.H. REV. STAT. §135-E:2(XI)(f);
65. S.C. CODE ANN. §44-48-30(2)(n);
66. Wis. STAT. §980.01(6)(c). South Carolina includes as a sexually violent offense the acts of incest or "buggery" (anal penetration), even when with a consenting adult. S.C. CODE ANN. §4448-30(2)(i)-(j). The mental abnormality requirement includes antisocial personality disorder, which "is extremely common in prisons with prevalence rates as high as 40-60% among the male sentenced population."
67. P. Moran, The Epidemiology of Antisocial Personality Disorder, 34 Soc. PSYCHIATRY & PSYCHIATRIC EPIDEMIOLOGY 231, 234 (1999);
68. see also Rudolph Alexander, Jr., Civil Commitment of Sex Offenders to Mental Institutions: Should the Standard Be Based on Serious Mental Illness or Mental Dborder?, 11 J. HEALTH & Soc. POL'Y 67 (2000) (arguing that civil commitment should not include personality disorders, which many sex offenders suffer from, in the same category as major mental illness). And the risk of future dangerous determination is based on actuarial comparisons to other sexually violent predators; these actuarial tools are only 71 percent accurate, undercalculate the decrease in risk with advancing age, and do not take into account the link between an individual's mental illness and the risk of recidivism as constitutionally required.
69. Tamara Rice Lave, Controlling the Offender: Sex, Mental Illness, and the Static 99 (November 2006) (unpublished manuscript, on file with author).
70. Eric S. Janus, Closing Pandora's Box: Sexual Predators and the Politics of Sexual Violence, 34 SETON HALL L. REV. 1233, 1233-50 (2004) (discussing the effect of politics and public uproar against crimes of sexual violence and how that outcry fuels the expansion of sexually violent predator programs);
71. Larry Oakes, The New Life Sentence: OK'dfor Transfer, but Going Nowhere, STAR TRIB., June 11, 2008, at Al (noting that Minnesota has a political appointee making release decisions, that the sexually violent predator population has grown exponentially, and that "[b]ecause no one can guarantee an offender won't rape or molest again, the safest course ... has been to keep offenders locked up regardless of how their treatment has progressed").
72. BERNARD E. HARCOURT, AGAINST PREDICTION: PROFILING, POLICING, AND PUNISHING IN AN ACTUARIAL AGE 190 (2007).
73. 521 U.S. 346 (1997).
74. Id. at 354-55. Hendricks conceded that he "can't control the urge" to molest children when he "get[s] stressed out" and that the only sure way he could keep from sexually abusing children in the future was "to die."
75. Id.
76. Id. at 371. For an extended discussion of the Hendricks decision,
77. see infra Part II.B.
78. To avoid additional constitutional challenge, state commitment programs typically mimic the Washington/Kansas model that was upheld as constitutional in Hendricks. Grant H. Morris, The Evil That Men Do: Perverting Justice to Punbh Perverts, 2000 U. III. L. REV. 1199, 1204 (2000).
79. See MARCUS NIETO, COMMUNITY TREATMENT AND SUPERVISION OF SEX OFFENDERS: How IT'S DONE ACROSS THE COUNTRY AND IN CALIFORNIA 11-12 (2004), available at http://www.library.ca.gov/crb/04/12/04-012.pdf.
80. E.g., N.Y. MENTAL HYG. LAW §10.01;
81. see also In re Detention of Darling, 712 N.W.2d 98, 100 (Iowa 2006) (noting that one goal of the Iowa civil commitment statute is treatment of the sexually violent predator).
82. See, e.g., United States v. Comstock, 551 F.3d 274, 278 (4th Cir. 2009), overruled by 130 S. Ct. 1949 (2010) (challenging the federal civil commitment scheme on the grounds that the federal government, unlike states, has no general police or parens patriae power).
83. See, e.g., Addington v. Texas, 441 U.S. 418, 426 (1979).
84. Id.
85. TEX. HEALTH & SAFETY CODE ANN. §841.001;
86. see abo IOWA CODE §229A.1;
87. FLA. STAT. §394.910;
88. KAN. STAT. ANN. §59-29a01;
89. N.H. REV. STAT. §135-E:1;
90. N.Y. MENTAL HYG. LAW §10.01;
91. S.C. CODE ANN. §394.910;
92. WASH. REV. CODE §71.09.010.
93. Every state has a statute for the civil commitment of individuals with mental illness. These laws usually provide short-term treatment for individuals suffering from severe psychiatric illness where the persons' symptoms put them at imminent risk of serious physical harm.
94. E.g., FLA. STAT. §394.910;
95. S.C. CODE ANN. §4448-20.
96. FLA. STAT. §394.910;
97. N.H. REV. STAT. §135-E:1.
98. See MINN. STAT. §253B.03(7);
99. WASH. REV. CODE §71.09.080(2).
100. See 42 PA. CONS. STAT. ANN. §6406(c) (2010) (listing treatment as a "duty" and requiring that the Department of Public Welfare "develop policies and procedures for providing individualized treatment and discharge plans based on clinical guidelines and professional standards in the fields of sexual offender treatment and mental health");
101. see also CAL. WELF. & INST. CODE §6606(a);
102. N.Y. MENTAL HYG. LAW §10.01(f).
103. MASS. GEN. LAWS ch. 123A.
104. MINN. STAT. §253B.03(10)(2).
105. 42 PA. CONS. STAT. §6404;
106. TEX. HEALTH & SAFETY CODE ANN. §841.082(a)(4).
107. See MINN. STAT. §253.B.04 (stating that voluntary admission is preferred over involuntary commitment and treatment);
108. NEB. REV. STAT. §71-1202 (providing that it is the "public policy" of the state that dangerous sex offenders obtain voluntary treatment, but that if "voluntary treatment is not obtained, such persons shall be subject to involuntary custody and treatment").
109. See, e.g., S.C. CODE ANN. §44-48-170 (stating only that the treatment program must comply with constitutional requirements).
110. See, e.g., NEB. REV. STAT. §71-1215-1216;
111. 42 PA. CONS. STAT. §6406;
112. TEX. HEALTH & SAFETY CODE ANN. §841.083(a);
113. see also MINN. STAT. §253B.045 (requiring that treatment providers take "reasonable measures to assure proper care and treatment of a [committed] person").
114. See, e.g., ARIZ. REV. STAT. ANN. §36-3701(F) (requiring monthly reports for offenders on conditional release to a less restrictive alternative);
115. MASS. GEN. LAWS eh. 123A, §16 (requiring annual reports describing the treatments offered);
116. NEB. REV. STAT. §71-1215-16 (requiring reports regarding the individual's progress in treatment every ninety days for the first year and every six months thereafter);
117. N.Y. MENTAL HYG. LAW §10.11(b)(2) (requiring treatment reports every four months).
118. See, e.g., KAN. STAT. ANN. §59-29a08 (requiring a current examination of the committed person's mental condition once per year);
119. TEX. HEALTH & SAFETY CODE ANN. § 841.102 (providing for biennial review);
120. Wis. STAT. §980.08(1) (allowing a review of confinement after twelve months).
121. Foucha v. Louisiana, 504 U.S. 71, 72 (1992);
122. see Id. at 79 (holding that, as a matter of due process, insanity acquittée is entitled to release when he has recovered his sanity or is no longer dangerous even if he continues to have an untreatable antisocial personality disorder);
123. Id. at 88 (O'Connor, J., concurring) ("I think it clear that acquittées could not be confined as mental patients absent some medical justification for doing so; in such a case the necessary connection between the nature and purposes of confinement would be absent.").
124. See, e.g., CAL. WELF. & INST. CODE §6605;
125. IOWA CODE §229A.7(5)(b);
126. TEX. HEALTH & SAFETY CODE ANN. §841.103(c). Some states allow release to a "less restrictive alternative" treatment program.
127. See, e.g., ARIZ. REV. STAT. ANN. §36-3707(B);
128. IOWA CODE § 229A.8A (2);
129. WASH. REV. CODE §71.09.092.
130. See In re Detention of Darling, 712 N.W.2d 98, 101 (Iowa 2006) ("Chapter 229A does not require that the treatment will ultimately be successful as a prerequisite for commitment.");
131. see abo CAL. WELF. & INST. CODE §6606(b) ("Treatment does not mean that treatment be successful.. . nor does it mean that the person must recognize his or her problem and willingly participate.").
132. Seling v. Young, 531 U.S. 250, 265 (2001) (explaining that where the commitment law gives committed persons the right to adequate care and individualized treatment, it is for the state courts to determine whether the commitment centers are operating in accordance with state law and to provide a remedy).
133. In re Detention of Betsworth, 711 N.W.2d 280, 289 (Iowa 2006).
134. See Hubbart v. Superior Court, 969 P.2d 584, 602 (Cal. 1999) (finding that language in Hendricks "strongly suggests that there is no broad constitutional right of treatment for persons involuntarily confined as dangerous and mentally impaired, at least where no acceptable treatment exist[s] or where they cannot be successfully treated for their afflictions" (internal quotation marks omitted)).
135. Cf. Elizabeth A. Weeks, Note, The Newly Found "Compassion" for Sexually Violent Predators: Civil Commitment and the Right to Treatment in the Wake of Kansas v. Hendricks, 32 GA. L. REV. 1261 (1998) (analyzing lower court decisions-including Rouse v. Cameron, 373 F.2d 451, 455-56 (D.C. Cir. 1966),
136. Wyatt v. Aderholt, 503 F.2d 1305, 1306 (5th Cir. 1975), and Cameron v. Walsh, No. 95-10904, 1996 U.S. Dist. LEXIS 11691 (D. Mass. July 23, 1996)-that held civilly committed individuals have a constitutional right to treatment).
137. See Cantone, supra note 11, at 705;
138. Pfaffenroth, supra note 26, at 2261;
139. Douglas G. Smith, The Constitutionality of Civil Commitment and the Requirement of Adequate Treatment, 49 B.C. L. REV. 1383, 1384 (2008);
140. see also David DePugh, The Right to Treatment for Involuntarily Committed Sex Offenders in the Wake of 'Kansas v. Hendricks, 17 BUFF. PUB. INT. L.J. 71, 82-84 (1998-1999) (espousing an Eighth Amendment cruel-and-unusual-punishment rationale for a right to treatment, based on Robinson v. California, 370 U.S. 660 (1962),
141. and Estelle v. Gamble, 429 U.S. 97 (1976)).
142. See, e.g., FLA. STAT. §394.922 ("The long-term control, care, and treatment of a person committed under this part must conform to constitutional requirements.");
143. IOWA CODE § 229A.9 (same);
144. N.H. REV. STAT. 135-E16 (same);
145. S.C. CODE ANN. §44-48-170 (same).
146. Kansas v. Hendricks, 521 U.S. 346, 357 (1997) (providing that, although freedom from restraint is at the core of the liberty interest protected by the Due Process Clause from arbitrary government action, in "certain narrow circumstances" states can civilly detain people who pose a danger to public health and safety because they are unable to control their behavior).
147. See, e.g., Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (finding that continued civil confinement of an insanity acquittee became unconstitutional where the state could no longer show by clear and convincing evidence that the individual was both mentally ill and dangerous);
148. Jackson v. Indiana, 406 U.S. 715, 738 (1972) (finding that the state was entitled to hold a person for being incompetent to stand trial only long enough to determine if he could be cured and become competent, otherwise the state was required to afford the protections constitutionally required in a civil commitment proceeding).
149. Hendricks, 521 U.S. at 358. In Kansas v. Crane, the Court clarified the Hendricks constitutional standard by requiring "proof of serious difficulty in controlling behavior" to commit a sexually violent predator civilly. 534 U.S. 407, 413 (2002).
150. Youngberg v. Romeo, 457 U.S. 307, 317 (1982) (holding that a severely mentally retarded person had a due process right to "training" minimally necessary to ensure his safety and freedom from shackling while institutionalized against his will);
151. see also Polite v. Liberty Behavioral Health Care, Inc., No. 2:07-cv-158, 2009 WL 2242626, at *4 (M.D. FIa. July 27, 2009) ("Contrary to the defendant's argument that civil detainees at the FCCC do not have a federally protected right to treatment, the Fourteenth Amendment most certainly requires a State provide 'minimally adequate or reasonable training' to those involuntarily committed, civil detainees." (quoting Youngberg, 457 U.S. at 319)).
152. Youngberg, 457 U.S. at 317.
153. See Todd M. Grossman, Comment, Kansas v. Hendricks: The Diminishing Role of Treatment in the Involuntary Civil Confinement of Sexually Dangerous Persons, 33 NEW ENG. L. REV. 475, 478 (1999).
154. Ra, supra note 4, at 350.
155. See Allen v. Illinois, 478 U.S. 364, 370 (1986);
156. see also Grossman, supra note 67, at 477-78.
157. See Allen, 478 U.S. at 371 (explaining that if a law does not try to prevent past misdeeds, it is not criminal in nature);
158. see also Grossman, supra note 67, at 478.
159. U.S. CONST, amends. V, VI.
160. See Smith v. Doe, 538 U.S. 84, 92 (2003) (stating that since the Court normally defers to the legislature's stated intent, only the "clearest proof will suffice to override legislative intent and prove the law punitive in nature);
161. Kansas v. Hendricks, 521 U.S. 346, 361 (1997);
162. Allen, 478 U.S. at 368.
163. Allen, 478 U.S. at 369 (quoting Illinois Sexually Dangerous Persons Act, III. REV. STAT. ch. 38, ¶ 105-8 (1985)) (internal quotations and punctuation omitted).
164. Id. at 373.
165. 521 U.S. 346 (1997).
166. Id. at 360-61.
167. Id. at 361 (quoting United States v. Ward, 448 U.S. 242, 24819 (1980)) (internal quotations omitted). As a threshold matter, the Court explained that the civil commitment statute did not implicate retribution or deterrence, the two primary objectives of criminal punishment.
168. Id. at 361-62. The statute's purpose was not retributive because it did not affix culpability for prior criminal conduct (rather, prosecutors introduced past criminal history to support a finding of mental abnormality or dangerousness);
169. it did not make criminal conviction a prerequisite for commitment; and it lacked a scienter requirement, an important element in distinguishing between criminal and civil statutes.
170. Id. at 362. Nor did the statute operate as a deterrent because the threat of confinement was unlikely to deter individuals who suffer from mental abnormalities that prevent them from controlling their behavior.
171. Id. at 362-63.
172. According to the Court, affirmative restraint did not evince punitive intent because the affirmative restraint of mentally ill and dangerous persons had been historically regarded as a legitimate nonpunitive objective.
173. Id. at 363. Moreover, the potentially infinite duration of confinement corresponded with the purpose of holding a person until his mental abnormality no longer caused him to be a threat to others and did not implicate any punitive objective.
174. Id. at 363-64.
175. Id. at 365-66.
176. Id. at 367-68.
177. See Steven I. Friedland, On Treatment, Punishment, and the Civil Commitment of Sex Offenders, 70 U. COLO. L. REV. 73, 112 (1989) ("[T]he Court no longer had to examine the circumstances of a commitment to determine whether the law met the treatment minimum; it could now simply look at the face of the law.");
178. Erich H. Gaston, Kansas v. Hendricks: The Court's Unworkable Constitutional Standards and Flawed Analysis Threaten Freedom, 2 QUINNIPIAC HEALTH L.J. 227, 251 (1999) ("A particular danger is that Hendricks implies that treatment has little if any bearing on whether a state's decision to civilly commit a person comports with due process.");
179. Grossman, supra note 67, at 503 ("[A]fter the Hendricks decision, courts are now free to apply a much more lenient standard than that which was previously required to satisfy due process.").
180. Hendricks, 521 U.S. at 371 (Kennedy, J., concurring).
181. Id. at 378 (Breyer, J., dissenting). Breyer concluded that the Kansas scheme, which conceded Hendricks's condition was treatable but delayed such treatment until Hendricks completed his prison term-so that further incapacitation was therefore necessary-and provided only inadequate treatment thereafter, was not tailored "to fit the nonpunitive civil aim of treatment."
182. See Id. at 396 (Breyer, J., dissenting).
183. Id. at 382-83.
184. Seling v. Young, 531 U.S. 250 (2001).
185. Id. at 260.
186. Id. at 263;
187. see also Id. at 263-64 ("Permitting respondent's as-applied challenge would invite an end run around the Washington Supreme Court's decision that the Act is civil in circumstances where a direct attack on that decision is not before this Court."). In the Young dissent, Justice Stevens argued that courts should consider conditions of confinement in as-applied challenges in order to gain "full knowledge of the effects of the statute."
188. Id. at 277 (Stevens, J., dissenting). According to Stevens, if Young's allegations-concerning both the absence of treatment and the starkly punitive character of the conditions of his confinement-were correct, the statute should have been characterized as a criminal law for federal constitutional purposes.
189. Id.
190. Id. at 265-67. The Court referred to a pending §1983 action that would address the conditions of confinement at the Washington facility.
191. Id. at 265-66. The Court noted: The [Special Commitment] Center operates under an injunction that requires it to adopt and implement a plan for training and hiring competent sex offender therapists; to improve relations between residents and treatment providers; to implement a treatment program for residents containing elements required by prevailing professional standards; to develop individual treatment programs; and to provide a psychologist or psychiatrist expert in the diagnosis and treatment of sex offenders to supervise the staff.
192. Id. at 266.
193. Foucha v. Louisiana, 504 U.S. 71, 79 (1992) (holding that the continued detention of an insanity acquittée is "improper absent a determination in civil commitment proceedings of current mental illness and dangerousness").
194. See, e.g., People v. Martinez, 105 Cal. Rptr. 2d 841 (Ct. App. 2001);
195. Appeal in Pima Cnty. Mental Health Case, 721 P.2d 142, 144 (Ariz. Ct. App. 1986).
196. See, e.g., Troville v. State, 953 So. 2d 637 (Fla. Dist. Ct. App. 2007);
197. People v. Dist. Court, Cnty. of Adams, 797 P.2d 1259 (Colo. 1990).
198. See In re Deville, 610 So. 2d 1070 (La. Ct. App. 1992) (finding physician-patient privilege did not apply to bar admission of mental patient's medical records and oral testimony of treating physician in judicial commitment proceeding where the court ordered continued confinement and treatment of the patient).
199. See, e.g., MASS. GEN. LAWS eh. 123A, §9: Evidence of the person's juvenile and adult court and probation records, psychiatric and psychological records, the department of correction's updated annual progress report of the petition, . . . and any other evidence that tends to indicate that he is a sexually dangerous person shall be admissible in a hearing under this section.
200. See also N.H. REV. STAT. §135-E:10(I);
201. S.C. CODE ANN. §44-48-140;
202. In re Civil Commitment of A.H.B., 898 A.2d 1027 (N.J. Super. Ct. App. Div. 2006);
203. Albertson v. Super. Court, 107 Cal. Rptr. 2d 381 (Ct. App. 2001) (addressing updated evaluations in CAL. WELF. & INST. CODE § 6603(c)).
204. Seaton v. Mayberg, 610 F.3d 530, 534-35 (9th Cir. 2010).
205. Id.
206. Jill S. Levenson & John W. Morin, Factors Predicting Selection of Sexually Violent Predators for Civil Commitment, 50 INT'L J. OFFENDER THERAPY & COMP. CRIMINOLOGY 609, 610 (2006).
207. Id.
208. Id.
209. Id.
210. Id.
211. NIETO, supra note 35, at 3-4, 7-8;
212. ROXANNE LIEB & SCOTT MATSON, SEXUAL PREDATOR COMMITMENT LAWS IN THE UNITED STATES: 1998 UPDATE 4-9 (1998), available at http://www.wsipp.wa.gov/ rptfiles/sexcomm-98.pdf (detailing variation between states).
213. NIETO, supra note 35, at 3.
214. The penile Plethysmograph measures changes in blood flow in the penis. For sexual offenders, it is typically used to determine the level of sexual arousal as the subject is exposed to sexually suggestive content, such as pictures, movies, or audio. It has been demonstrated to be one of the most accurate methods for identifying which sexual offenders will go on to commit sexual crimes against children.
215. See R. Karl Hanson & M.T. Bussière, Predicting Relapse: A MelaAnalysis of Sexual Offender Recidivbm Studies, 66 J. CONSULTING & CLINICAL PSYCHOL. 348 (1998).
216. NIETO, supra note 35, at 4.
217. See supra text accompanying note 24.
218. See Rebecca L. Jackson & Derek T. Hess, Evaluation for Civil Commitment of Sex Offenders: A Survey of Experts, 19 SEX ABUSE: J. RES. & TREATMENT 425, 428 (2007).
219. Eric S. Janus, Minnesota's Sex Offender Commitment Program: Would an Empirically-Based Prevention Policy Be More Effective, 29 WM. MITCHELL L. REV. 1083, 1122-23 (2003) ("In these processes, treatment failure is viewed as increasing the risk of sexual recidivism and suitability for commitment, while treatment success decreases these concerns. Non-entry into treatment, on the other hand, is seen as neutral, neither increasing nor decreasing risk.").
220. The RRASOR, developed by Dr. Hanson, consists of four items: (1) having prior sex offenses, (2) having a male victim, (3) having an unrelated victim, and (4) being between the ages of eighteen and twenty-five years old. DENNIS M. DOREN, EVALUATING SEX OFFENDERS: A MANUAL FOR CIVIL COMMITMENTS AND BEYOND 123-24 (2002).
221. In addition to the RRASOR's four items, the other items on the Static-99 include (1) number of sentencing occasions, (2) conviction for noncontact sexual offense, (3) conviction for nonsexual violent offense at same time as index sexual offense, (4) conviction for nonsexual violent offense prior to index sexual offense, (5) any stranger victim to sexual offense, and (6) if the offender ever lived with a lover for two consecutive years.
222. Id. at 125-27;
223. ANDREW HARRIS, AMY PHENIX, R. KARL HANSON, & DAVID THORNTON, STATIC-99 CODING RULES, REVISED (2003), available at http://www.publicsafety.gc. ca/res/cor/rep/-fl/2003-03-stc-cde-eng.pdf.
224. The sixteen MnSOST-R items are (1) number of sex-related convictions, (2) length of sexual offending history, (3) having been under supervision when committing a charged sexual offense, (4) having committed a charged sexual offense in a public place, (5) having used force within any charged sexual offense, (6) having done multiple acts on a single victim within a charged sexual offense, (7) number of victim age groups for charged sexual offenses, (8) history of victimizing thirteen- to fifteen-year olds within any charged sexual offense, (9) stranger victim within charged sexual offense, (10) evidence of adolescent antisocial behavior by offender, (11) history of drug or alcohol abuse, (12) employment history, (13) discipline history while incarcerated, (14) chemical dependency treatment while incarcerated or on release, (15) sex offender treatment while incarcerated or on release, and (16) age of the offender. DOREN, supra note 107, at 127-31.
225. Jackson & Hess, supra note 105, at 428.
226. See MnSOST-R items, supra note 109.
227. Miller, Amenta & Conroy, supra note 24, at 44-45.
228. Jill S. Levenson, Sexual Predator Civil Commitment: A Comparison of Selected and Released Offenders, 48 INT'L J. OFFENDER THERAPY & COMP. CRIMINOLOGY 638, 645 (2004).
229. Jackson & Hess, supra note 105, at 429.
230. Id.
231. Id. at 431 tbl.2, copyright © 2007 by SAGE Publications. Reprinted by Permission of SAGE Publications.
232. See NIETO, supra note 35, at 11-20. For a discussion of whether prison-based sexual offender treatment implicates the offender's Fifth Amendment right against self-incrimination,
233. see David Heim, Note, Damned if You Do, Damned if You Don't: Why Minnesota 's Prbon-Based Sex Offender Treatment Violates the Right Against Self Incrimination, 32 WM. MITCHELL L. REV. 1217 (2006),
234. and Brendan J. Shevlin, Note, "[BJetween the Devil and the Deep Blue Sea." A Look at the Fifth Amendment Implications of Probation Programs for Sex Offenders Requiring Mandatory Admissions of Guilt, 88 KY. L.J. 485 (2000).
235. NIETO, supra note 35, at 11 (citing COLO. DEP'T OF CORRECTIONS, STATE SEX OFFENDER TREATMENT PROGRAMS: A 50 STATE SURVEY (2000)).
236. Id. at 16.
237. Id. at 49-50 (suggesting that the California Department of Corrections and Rehabilitation should create a prison treatment program that would include development of sex offender treatment guidelines).
238. See supra Part H.A.
239. WINICK, supra note 1, at 143 (2005) (discussing commitment of mentally disordered offenders and sexually violent predators generally).
240. Id. (citing Norman G. Polythress, Mental Health Expert Testimony: Current Problems, 5 J. PSYCHIATRY & L. 201, 213 tbl.2 (1977));
241. see also Eric S. Janus & Robert A. Prentky, Forensic Use of Actuarial Risk Assessment with Sex Offenders: Accuracy, Admissibility, and Accountability, 40 AM. CRIM. L. REV. 1443, 1448-49 (2003) (finding that frequently the liberty-deprivation decision comes to a credibility judgment between the clinical assessments of two competing expert witnesses).
242. See, e.g., N.H. REV. STAT. §135-E:15(I) ("In order to protect the public, relevant information and records that are otherwise confidential or privileged shall be released to the agency with jurisdiction, to a multidisciplinary team, or to the county attorney or attorney general for the purpose of meeting the notice requirements of this chapter and determining whether a person is or continues to be a sexually violent predator."); see also FLA. STAT. §394.913(2)MINN. STAT. §253B.07(1)(b).
243. Janus, supra note 106, at 1122.
244. Anita Schlank & Rick Harry, The Treatment of the Civilly Committed Sex Offender in Minnesota: A Review of the Past Ten Years, 29 WM. MITCHELL L. REV. 1221, 1224 (2003).
245. Id. (citing McKune v. Lile, 536 U.S. 24 (2002)).
246. Anita M. Schlank & Theodore Shaw, Treating Sexual Offenders Who Deny Their Guilt: A Pilot Study, 8 SEXUAL ABUSE: J. RES. & TREATMENT 17, 18 (1996).
247. Walter J. Meyer, III, et al., Outpatient Civil Commitment in Texas for Management and Treatment of Sexually Violent Predators: A Preliminary Report, 47 INT'L J. OFFENDER THERAPY & COMP. CRIMINOLOGY 396, 401-02 (2003).
248. Id.
249. Id.
250. Id.
251. Id.
252. See, e.g., CAL. DEP'T OF MENTAL HEALTH, COALINGA STATE HOSPITAL: MODEL SEX OFFENDER TREATMENT, http://www.dmh.ca.gov/Services-and-Programs/State- Hospitals/ Coalinga/Treatment.asp (last visited Nov. 19, 2009) (listing California's sex offender treatment components);
253. DENIS PROUTY, IOWA LEGISLATIVE SERVICES AGENCY FISCAL SERVICES: SEXUAL PREDATOR COMMITMENT PROGRAM 3 (2006) (explaining Iowa's five-phase program);
254. ASS'N OF STATE CORR. ADM'RS' PUBL'N, CORRECTIONAL BEST PRACTICES: DIRECTORS' PERSPECTIVES (2000), http://www.drc.state.oh.us/web/Articles/ article61.htm (discussing Ohio's sex offender treatment program).
255. Heim, supra note 117, at 1223;
256. see also, e.g., Johnson v. Fabian, 711 N.W.2d 540, 543 (Minn. Ct. App. 2006) (explaining that the sex offender treatment program requires the offender to admit his offense and to discuss its specifics before being admitted to treatment, and that refusal to discuss the offense was considered a disciplinary violation).
257. Janus, supra note 106, at 1125
258. (quoting Janice M. Allen, Meeting Standards for Commitment Under the Psychopathic Personalities Statute: Petitioner's Perspective, in PSYCHOPATHIC PERSONALITIES AND SEXUALLY DANGEROUS PERSONS 2 (Minn. Inst. Legal Educ. 1995)).
259. DEIRDRE M. D'ORAZIO ET AL., THE CALIFORNIA SEXUALLY VIOLENT PREDATOR STATUTE: HISTORY, DESCRIPTION & AREAS FOR IMPROVEMENT 27 (2009), available at http://ccoso.org/papers/CCOSO%20SVP%20Paper.pdf.
260. Id.
261. see also WASH. STATE INST, FOR PUB. POLICY, SEX OFFENDER SENTENCING IN WASHINGTON STATE: WHO PARTICIPATES IN THE PRISON TREATMENT PROGRAM 3 (2006) ("[T]he law authorizing civil commitment of sexually violent offenders could motivate some sex offenders to decline participation because revelations during their treatment about additional victims or violence could later be used as reasons for the state to file a Sexually Violent Predator petition.");
262. Mareva Brown, Special Report: Sexual Predators Evading Treatment, SACRAMENTO BEE, Feb. 12, 2006, at Al ("Some Atascadero offenders list the court trials among their justifications for shunning therapy: They fear information from those sessions could arise in their hearings[.]").
263. See Janus, supra note 106, at 1124.
264. See supra note 109 and accompanying text.
265. DOREN, supra note 107, at 127-31.
266. Id.
267. See Janus, supra note 106, at 1124.
268. According to 2008 data, only twenty-eight of the 3,200 civilly committed offenders (0.88 percent) from responding states had been discharged through treatment, with an additional two persons to be discharged by the end of the year; six states had not released a single individual. REBECCA JACKSON, TARA TRAVIA, JENNIFER SCHNEIDER, SOCCPN ANNUAL SURVEY OF SEX OFFENDER CIVIL COMMITMENT PROGRAMS 32 (2008).
269. According to a Washington State report, of the 4,534 persons committed or held for evaluation as sexually violent predators nationwide, only 494 had been discharged or released, and only 188-or 4 percent-of those under program staff recommendation. WSIPP, supra note 25, at 3-4. A 2007 New York Times investigation reported that only 1.7 percent of committed sex offenders have been recommended for release: Nearly 3,000 sex offenders have been committed since the first law passed in 1990. In 18 of the 19 states, about 50 have been released completely from commitment because clinicians or state-appointed evaluators deemed them ready. Some 115 other people have been sent home because of legal technicalities, court rulings, terminal illness or old age.
270. Davey & Goodnough, supra note 27, at Al.
271. Memorandum from Amy Baron-Evans & Sara Noonan to Defenders, CJA Counsel 1 (Sept. 10, 2007, as revised Sept. 25, 2007), available at http://www.fd.Org/pdf-lib/Adam.Walsh.III.REV.9.24.07.FINAL.pdf.
272. See also Jenny Roberts, The Mythical Divide Between Collateral and Direct Consequences of Criminal Convictions: Involuntary Commitment of "Sexually Violent Predators", 93 MINN. L. REV. 670, 707 (2008).
273. D'ORAZIO ET AL., supra note 137, at 27 (listing as one of the six reasons that California sexually violent predators give for refusing treatment: "the likelihood of release is greater for those who are not in the treatment program"). Even more, treatment participation may, counterintuitively, harm an offender upon release: "the few offenders who actually follow the hospital's full program find themselves not only targets of scorn inside Atascadero but subject to both tighter scrutiny and protests upon release." Brown, supra note 138.
274. D'ORAZIO ET AL., supra note 137, at 27 (acknowledging that one reason California sexually violent predators give for nonparticipation in treatment is that "the treatment program is a hoax. . . . [and] the real goal of the SVP statute is to keep them locked up forever and the treatment program is a facade that covers a desire for indefinite commitment").
275. Brown, supra note 138 ("Everyone says, 'Don't do the treatment, it's a major trap,' said former Atascadero patient Cary Verse. 'They feel that if everybody would not do it the program would fall apart.'").
276. WINICK, supra note 1, at 146 (2005).
277. D'ORAZIO ET AL., supra note 137, at 27.
278. John Q. La Fond, Sexually Violent Predator Laws and the Liberal State: An Ominous Threat to Individual Liberty, 31 INT'L J. L. & PSYCHIATRY 158, 167 (2008).
279. STEVE WAITERS, SUPERVISED RELEASE AND DISCHARGE THROUGH TREATMENT: AN OVERVIEW OF WI'S SVP TREATMENT PROGRAM (May 2008), available at http://www.wisspd.org/html/training/ProgMaterials/Ch980s/SRDTT.pdf.
280. See supra Part I discussing sexual psychopath laws from the 1930s to 1980s.
281. R. Karl Hanson et al., First Report of the Collaborative Outcome Data Project on the Effectiveness of Psychological Treatment for Sex Offenders, 14 SEX ABUSE: J. RES. & TREATMENT 169, 170 (2002).
282. Id.
283. (citing R. Karl Hanson & Monique T. Bussière, Predicting Relapse: A MetaAnalysis of Sexual Offender Recidivbm Studies, 66 J. CONSULTING & CLINICAL PSYCHOL. 348 (1998)) (explaining that, on average, only 10 to 15 percent of sex offenders are detected committing a new sexual offence within four to five years);
284. see also David Lisak & Paul M. Miller, Repeat Rape and Multiple Offending Among Undetected Rapbts, 17 VIOLENCE & VICTIMS 73,73-74 (2002) (discussing undetected rapes and citing estimates that between 64 and 96 percent of all rapes are never reported to criminal justice authorities).
285. Hanson et al., supra note 154, at 170.
286. Id. at 188 (finding that older treatment programs were associated with a slight, but nonsignificant, increase in sexual recidivism, but that studies of these programs are no longer applicable because the treatment of sex offenders has changed considerably since the 1970s).
287. See id. at 170-71 (summarizing meta-analyses conducted by Alexander, Hall, and Gallagher et al., each of which reported a significant overall treatment effect, but challenging their methodologies).
288. Id. at 187 (2002). These numbers reflect recidivism rates among individuals who participated in "current treatments," defined as any treatment currently offered and cognitivebehavioral treatments offered since 1980. Id. at 187. The recidivism rates for individuals who participated in other forms of treatment were not as low: averaged across all studies, the sexual offense recidivism rate was 12.3 percent for treatment groups and 16.8 percent for comparison groups. Id. at 181.
289. Martin Schmucker & Friedrich Lösel, Does Sexual Offender Treatment Work? A Systematic Review of Outcome Evaluations, 20 PSICOTHEMA 10, 11-12 (2008).
290. Id. at 13-14. See PERKINS ET AL., REVIEW OF SEX OFFENDER TREATMENT PROGRAMS 7-8 (1998), available at http://www.ramas.co.uk/report4.pdf (listing studies and concluding pharmacological intervention is best used in combination with other behavioral treatment methods);
291. see abo Hanson, supra note 154, at 173 (explaining that, although many treatment approaches exist, "treatment providers have increasingly put their faith in some version of cognitive-behavioral treatment").
292. See Mark E. Olver & Stephen C.P. Wong, Therapeutic Responses of Psychopathic Sexual Offenders: Treatment Attrition, Therapeutic Change, and Long-Term Recidivism, 11 J. CONSULTING & CLINICAL PSYCHOL. 328, 328-29 (2009).
293. Mark E. Olver, Stephen C.P. Wong & Terry P. Nicholaichuk, Outcome Evaluation of a High-Intensity Inpatient Sex Offender Treatment Program, 24 J. INTERPERSONAL VIOLENCE 522, 526 (2009) (subjects had a history of one or more prior sexual offenses).
294. Id. at 529, 531.
295. Olver & Wong, supra note 162, at 330-31. Psychopathic sex offenders are high-risk and high-need offenders with diagnosed mental abnormalities as evaluated by the Psychopathy Checklist-Revised (PCL-Revised). Id. at 328.
296. Id. at 331.
297. Id. at 335.
298. Janice K. Marques et al., Effects of a Relapse Prevention Program on Sexual Recidivism: Final Results from California's Sex Offender Treatment and Evaluation Project (SOTEP), 17 SEX ABUSE: J. RES. & TREATMENT 79 (2005). The offenders in this study were highrisk prison inmates who had completed a two-year intensive cognitive-behavioral treatment in a secure state hospital, similar to civil commitment hospitals for sex offenders, and a one-year aftercare program. Id. at 83.
299. Id. at 88 (finding 21.6 percent of the volunteer treated subjects sexually reoffended; 20 percent of the volunteer control group sexually reoffended; and 19.1 percent of the nonvolunteer control group sexually reoffended). However, the SOTEP study did not focus on high-risk offenders similar to the sexually violent predator population, id. at 102, and a positive treatment effect may have been present for shorter follow-up periods,
300. Janice K. Marques, How to Answer the Question: "Does Sex Offender Treatment Work", 14 J. INTERPERSONAL VIOLENCE 437 (1999) (finding the treatment group performed slightly better than the volunteer and nonvolunteer control groups with regard to violent recidivism, and slightly better than the nonvolutoeer control group with regard to sex offense recidivism, but neither finding was statistically significant);
301. Janice K. Marques et al., Effects of Cognitive-Behavioral Treatment on Sex Offender Recidivism: Preliminary Results of a Longitudinal Study, 21 CRIM. JUSTICE & BEHAV. 28 (1994) (finding that the treatment group had the lowest reoffense rates for both sex and other violent crimes, though the results were not statistically significant).
302. Marques et al., supra note 168, at 102.
303. Id.
304. Id.
305. D'ORAZIO ET AL., supra note 137, at 9.
306. REBECCA JACKSON, TARA TRAVIA & JENNIFER SCHNEIDER, ANNUAL SURVEY OF SEX OFFENDER CIVIL COMMITMENT (2008), available at http://www.njatsa.org/SCC- survey.pdf. Because commitment programs have discharged few offenders, those persons recommended for release are likely not representative of the population of sexually violent predators currently in commitment settings.
307. Id.
308. Marques et al., supra note 168, at 102; Olver & Wong, supra note 162, at 334.
309. See supra text accompanying note 119.
310. See Melissa M. Matthews, Comment, Closing the Loophole in California's Sexually Violent Predator Act: Jessica's Law's Band-Aid Will Not Result in Treatment for Sexual Predators, 39 McGEORGE L. REV. 877, 897-900 (2008) (explaining that required treatment would not violate a sexually violent predator's constitutional rights and would be effective).
311. However, mandatory treatment may be considered an invasion of the constitutional right to privacy and personal autonomy. See, e.g., Jarvis v. Levine, 418 N.W.2d 139, 145, 148-49 (Minn. 1988) (stating that there is a protected privacy interest in the individual's right to choose to refrain from taking neuroleptic drugs);
312. Price v. Sheppard, 239 N.W.2d 905, 910-11 (Minn. 1976) (discussing the plaintiffs claim that his right of privacy was violated by being required to undergo electroshock therapy while involuntarily committed to a state mental health facility).
313. See supra note 48 and accompanying text.
314. See Karen J. Terry & Edward W. Mitchell, Motivation and Sex Offender Treatment Efficacy: Leading a Horse to Water and Making It Drink?, 45 INT'L J. OFFENDER THERAPY & COMP. CRIMINOLOGY 663 (2001) (discussing the debate regarding the efficacy of treatment for sex offenders);
315. Robert M. Wettstein, A Psychiatric Perspective on Washington's Sexually Violent Predator's Statute, 15 PUGET SOUND L. REV. 597, 618 (1992) ("In enforced treatment, patients come to view their therapists as their jailers, agents of the state, and punitive authority figures. Involuntary patients learn to minimize symptoms, ingratiate their therapists, and seek forgiveness. The reciprocal, mutual, trusting relationship in voluntary mental health treatment is often reduced to a game of manipulations by the patient and staff in involuntary treatment.").
316. Mack E. Winn, The Strategic and Systematic Management of Denial in Cognitive/Behavioral Treatment of Sexual Offenders, 8 SEXUAL ABUSE: J. RES & TREATMENT 25, 26-27 (1996);
317. see supra Part ILB. 1 (explaining that treatment programs almost universally require that offenders admit responsibility for the offense underlying the conviction as a condition of entry and continued participation in the program).
318. Winn, supra note 183, at 26-27.
319. For example, a study by Meg S. Kaplan et al. found that as confidentiality increased in interactions between parolees and parole officers or psychologists, reports of prior sex offenses and current urges to molest increased. Meg S. Kaplan, et al., The Impact of Parolees' Perception of Confidentiality of Their Self-Reported Sex Crimes, 3 SEXUAL ABUSE: J. RES. & TREATMENT 293 (1990).
320. ROBERT E. FREEMAN-LONGO & GERALD BLANCHARD, SEXUAL ABUSE IN AMERICA: THE EPIDEMIC OF THE 21ST CENTURY 169 (1998).
321. Anthony R. Beech & Catherine E. Hamilton-Giachritsis, Relationship Between Therapeutic Climate and Treatment Outcome in Group-Based Sexual Offender Treatment Programs, 17 SEXUAL ABUSE: J. RES. & TREATMENT 127, 129, 138 (2005) (measuring the group climate using self-reporting of group leaders and group members in the twelve sex offender treatment groups).
322. Id.
323. Meyer, et al., supra note 129, at 397.
324. LESLIE HUSS, OVERVIEW OF TEXAS SEXUALLY VIOLENT PREDATOR PROGRAM 2-3 (2008).
325. Meyer, et al., supra note 129, at 397.
326. See WSIPP, supra note 25.
327. Rahn Kennedy Bailey, The Civil Commitment of Sexually Violent Predators: A Unique Texas Approach, 30 J. AM. ACAD. PSYCHIATRY L. 525, 530-31 (2002).
328. Meyer, et al., supra note 129, at 404.
329. See CALIFORNIA HIGH RISK SEX OFFENDER AND SEXUALLY VIOLENT PREDATOR TASK FORCE, REPORT 5 (2006) (explaining that most landlords decline to rent to sexually violent predators when they become aware of the public notification process and resulting media attention). In one instance, a sexually violent predator received a "homeless" release after none of the 250 potential landlords contacted over the course of one year agreed to rent to him; individuals granted homeless release are difficult to supervise, and it is difficult to enforce the conditions of release, such as curfews. Id.
330. See LANE COUNCIL OF GOVERNMENTS, MANAGING SEX OFFENDERS IN THE COMMUNITY: A NATIONAL OVERVIEW 1 (2003), available at http://www.atsaxorrpdfs/ Managing%20Sex%20Offenders%20in%20the%20Community-A%20 National%20Overview-2003. pdf; http://www.sexoffender.com/.
331. To implement this proposal, states could either create a statutory psychotherapistpatient privilege that would apply to treatment records in sexually violent predator hearings. Or, for many states, they need only revoke the evidentiary rules in the civil commitment statute. For example, revoking the provision of Florida's statute that "[t]he psychotherapist-patient privilege ... does not exist or apply for communications relevant to an issue in proceedings to involuntarily commit a person under this part." See FLA. STAT. §394.9155.
332. See supra Part III.A.
333. Effective treatment and management of sexual offenders can reduce sexual reoffending, thereby reducing human suffering and the costs associated with the processing and reincarceration of recidivists. Olver, Wong & Nicholaichuk, supra note 163, at 522.
334. Moreover, tailored treatment programs ensure that the civil commitment system, which costs taxpayers a yearly average of $97,000 per offender, is reserved for the most dangerous offenders. See WSIPP, supra note 25.