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8 Stanford Law and Policy Review 71 (1997)


Sex offender commitment laws present courts with a difficult choice: either allow creative efforts to prevent sexual violence or enforce traditional constitutional safeguards constraining the power of the state to deprive citizens of their Iiberty. Three state supreme courts have deflected this hard choice while upholding sex offender commitment schemes. As part of their ""official narrative"" that legitimizes sex offender commitments, the courts claim that society can have prevention and still maintain the primacy of the criminal justice system. This narrative neutralizes the conflict in values by claiming that sex offender commitments are just like mental illness commitments, a small, discrete area of the law unprotected by the safeguards of criminal procedure. This article shows the dissolution of the values reconciliation in these official narratives when courts confront concrete cases and the intense public pressure to lock up sex criminals. Part I of this article explains that sex offender commitments need to be legitimized because they appear to encroach on fundamental American legal values. Part II describes the official narrative that three state supreme courts have developed to justify sex offender commitments. Part III of the article examines the violent public and political reaction to one attempt to implement the legal limitations actually contained in, but never before followed, in Minnesota's official narrative. Part IV uses the corpus of sex offender commitment cases in Minnesota to show that the official narrative is reduced to a ""legal fiction"" when the lower courts confront actual cases where the conflict in values must be concretely resolved. Part V argues that the clashing values are too important to be resolved with a false reconciliation. It recommends that courts reviewing sex offender commitment schemes understand how they are actually administered in concrete cases and concludes that the official narrative of sex offender commitments is, to a material degree, fiction.

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