cm lave throwing away the key

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14 UPAJCL 391 CM Page 814 U. Pa. J. Const. L. 391

14 U. Pa .J. Const. L.391 (2011)

THROWING AWAY THE KEY: HAS THE ADAM WALSH ACT LOWERED THE

THRESHOLD FOR SEXUALLY VIOLENT PREDATOR COMMITMENTS TOO FAR?

Tamara Rice Lave [FNa1]

Copyright (c) 2011 The University of Pennsylvania Journal of Constitutional Law; Tamara Rice

Lave

Public outrage spurred passage of the first sexually violent predator law. Citizens in thestate of Washington were horrified by a rash of high profile crimes by convicted sex offenders

who had been released from prison. [FN1] After a particularly horrific attack by a mentally

impaired parolee with a history of kidnapping, rape, and murder, thousands of letters flooded the

governor's office demanding that something be done. In February 1990, Washington responded

to the mounting pressure by passing the Community Protection Act, which authorizes theindefinite commitment of individuals determined to be sexual violent predators (SVPs) after

they have completed their maximum prison term. [FN2] In order to commit someone underWashington's law, the state must prove that the accused (1) has at least one prior crime of sexual

violence and (2) currently suffers from a mental abnormality or personality disorder that (3)

makes him likely to engage in future predatory acts of sexual violence. [FN3] Nineteen statesand the federal government have since followed Washington's lead. [FN4]

These laws are motivated by a worthy goal--protecting innocent men, women, and children

from menacing sex offenders. At the *392 same time, however, these laws pose a significantdanger--locking away individuals for the rest of their lives who would not commit a sex offense

if released. With stakes this high, accused SVPs should receive the highest procedural

protections, yet the Supreme Court has ruled that they are not entitled to many of the due process

rights guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments. [FN5] As a result,they do not enjoy the right to competency, the right against self-incrimination, proof beyond a

reasonable doubt, or trial by jury. [FN6]

***

I. Do Sex Offenders Deserve Procedural Protection?

The fundamental factual question that needs to be answered for a person to be committed

under an SVP statute is whether he has a current mental disorder that causes him to have

difficulty controlling himself such that he is at risk of committing a new sexually violent

offense. The diminished due process standards afforded to accused SVPs during this processappear to derive from the belief of politicians and the general public that most, if not all, sex

offenders will continue to be dangerous even after they have served their prison sentences.

[FN16] Many believe that child molesters pose the gravest danger because, as Justice Breyer

wrote, they suffer from pedophilia--a mental abnormality that critically involves what a lay

person might describe as a lack of control. [FN17]


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14 UPAJCL 391 CM Page 914 U. Pa. J. Const. L. 391

If politicians and the public are correct then procedural protections for accused sexually

violent predators may seem less critical. If everyone is going to reoffend, then the only kind of

mistake we could ever make is a false negative--releasing someone who we think is safe but is

actually still dangerous. Indeed, if a significant share, but not all, people are likely to reoffendthen there is an argument for lesser due process because the expected societal cost of a false

negative *395 outweighs the expected cost of a false positive. [FN18] Contrary to public

opinion, however, studies show that most offenders do not continue to recidivate after beingreleased. [FN19] This means that society must confront the very real problem of the false

positive--locking someone away who would not otherwise reoffend. [FN20]

In 2003, the Department of Justice (DOJ) released a report studying the recidivism of sexoffenders released in 1994. [FN21] The DOJ study followed the entire population of sex

offenders released from *396 prison in fifteen states--9691 sex offenders. [FN22] Of these

offenders, 3115 had been convicted of rape; 6576 were convicted of sexual assault; 4295 were

convicted of child molestation; and 443 were convicted of statutory rape for a total of 9691 outof 272,111 prisoners released in 1994. [FN23] Within three years after release from prison, 5.3%

or 517 of the convicted sex offenders were rearrested for a new sex crime. [FN24] During thatsame three-year period, 5.0% of convicted rapists were rearrested for a new sex crime. [FN25]

Finally, 3.3% or 141 of the convicted child molesters were arrested for another sex crime against

a child. [FN26]

It is important to note that researchers continued to track released offenders during the entire

three-year period. [FN27] If, for instance, a person were rearrested for burglary and then later

for rape both of these arrests would have been recorded. Thus within the entire three-yearperiod, just 5.3% of sex offenders were rearrested for a new sex crime. [FN28]

It is true, however, that convicted sex offenders were significantly more likely to be arrested

for a new sex crime than released offenders who had not been convicted of a sexcrime. Compared to 5.3% of convicted sex offenders, only 1.3% of persons convicted for non-

sex related offenses were subsequently arrested for a sex crime within three years after release.

[FN29] Less than half of 1% of those previously convicted of a non-sex offense were rearrestedfor a new sex crime against a child. [FN30]

Not only do few sex offenders get rearrested for committing a new sex crime, but sexoffenders are less likely then non-sex offenders to *397 be rearrested for any crime at all. Forty-

three percent of sex offenders released in 1994 were arrested for a new crime within three years.

[FN31] In contrast, 68% of non-sex offenders released in 1994 were arrested for any new crime

within three years. [FN32]

Other studies have come to similar conclusions. In 1998, Hanson and Bussiere did a meta-

analysis of sixty-one studies from six different countries, including the United States.[FN33] They found that over an average follow-up time of four to five years, the sex offense

recidivism rate was 13.4%. [FN34] In 2007, Sample and Bray used arrest data from 1990-1997

collected by the Illinois State Police. [FN35] They found that less than 4% of convicted child


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14 UPAJCL 391 CM Page 1014 U. Pa. J. Const. L. 391molesters were rearrested for any sex offense within one, three, and five years after release from

custody. [FN36] They also found that about 7% of convicted rapists were rearrested for any sexoffense within five years after release. [FN37]

Not only do most sex offenders not recidivate, but, like other types of offenders, their risk of

doing so decreases as they age. In 2002, R. Karl Hanson used data from ten follow up studies ofadult male sex offenders ages 18-70+ (combined sample of 4673) to study the relationship

between age and sexual recidivism. He found that [i]n the total sample, the recidivism rate

declined steadily with age . . . . [and] [t]he association was linear. [FN38] Other researchershave reported similar results, [FN39] even when analyzing the age effect on a *398 sample of

offenders with a higher recidivism rate than the general prison population. [FN40]

The significance of the protective value of age in recidivating cannot be underestimated in

the sexually violent predator context. Since accused SVPs must have completed their custodial

sentence before the state can begin commitment proceedings, they are likely to be older and thus

at lower risk of reoffending. As a result, states and the federal government may be initiating

civil commitment proceedings against individuals who have simply aged out of being dangerous.

The facts are crystal clear. The DOJ study and other studies show that sex offenders have alow rate of recidivism and that they are less likely than non-sex offenders to commit additional

non-sex related crimes. In addition, because accused sexually violent predators are older, their

risk of reoffending has diminished. Accordingly, it is crucial to provide extensive proceduralprotections so as to prevent people from being locked up indefinitely--most of whom in fact pose

no further threat to society. ***

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