In Print: Volume 88: Number 5
How the Professional Judgment Standard Could Undermine the Validity of Sexually Violent Predator Laws
By David Nordsieck
88 Wash. U. L. Rev. 1281 (2011)
There is hardly anything objectionable about a statute that allows a state to convict an individual of a crime, imprison him for a fixed term, and release him after he has served his sentence. However, many people’s sense of fairness and justice would be offended by a statute that—rather than releasing him from prison at the end of his criminal sentence—allowed the state to try him civilly on essentially the same facts and involuntarily confine him for an indefinite period. Although such a procedure is generally atypical in American law, in the context of sexually violent predators, a significant number of states have adopted just such a scheme.
Sexually violent crimes garner a unique fear and disgust in the public’s mind. Rather than releasing this particular type of criminal back into the community, many state legislatures have found it a prudent and politically popular choice to extend these individuals’ confinement beyond their criminal sentences through the use of the civil system. The rationalization for this policy choice rests on the murky nexus between the provinces of law and psychology. Sexually violent predators are believed to have a mental abnormality that increases their likelihood of recommitting a sexually violent crime. Confinement, therefore, has the twin aim of protecting the public from this higher level of danger and providing treatment to the individuals to help them overcome the mental abnormality on which their confinement is based. Under most such statutes, the individual’s chances of being released from the civil commitment rest on his ability or inability to overcome his mental abnormality through treatment.
Despite these compelling public policy concerns, such statutes have been the subject of numerous constitutional challenges and scholarly criticism. Although litigants have tested the constitutional validity of these statutes under a variety of theories, the crucial determination has almost invariably been whether the statute is criminal or civil. Courts look beyond the statutory label to determine whether it is punitive in purpose or effect, which would transform the nominally civil statute into a criminal one. In determining whether the statute is punitive in purpose or effect, Supreme Court precedent has relied heavily upon the statutory provision of treatment. The provision of treatment is important for the constitutional validity of the statute because its purported purpose is to protect the public while the individual is treated for his mental abnormality; the purpose cannot be to punish the individual, at least not without violating the Double Jeopardy Clause. If the state fails to provide any treatment for the individual’s mental abnormality, the prospect of recovery and release is practically impossible. Indefinite physical confinement with practically no chance of release would certainly raise questions as to whether the statute had a punitive purpose or effect. In short, to support the constitutionality of these civil commitments, the statutory provision of treatment really ties the scheme together.
But what if a state provided insufficient or “‘sham treatment . . . that lasts for years, ostensibly to change someone’s psychiatric diagnosis,’” with the true purpose of prolonging his confinement? Such a scenario would likely be difficult to detect, in part because of the ongoing debate as to whether these individuals are amenable to treatment at all. When a confined individual alleges that the state has impinged on his constitutional rights, the proper guardian of his rights ought to be the federal courts rather than the state. In the context of sexually violent predators, however, the courts have adopted the professional judgment standard, which presumes that the treatment decisions of a qualified mental health professional are valid unless they substantially depart from generally accepted norms. Because the generally accepted norms for treating sexually violent predators are ill defined, courts lack a principled metric with which to apply the standard. By continuing to adhere to a standard that the courts cannot apply in practice, they are abdicating their role as the protector of individual rights.
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