23 New England Journal on Criminal and Civil Confinement 347 (1997)
Sex offender commitment statutes are a controversial and recurring response to the threat of sexual violence. These statutes, claiming exemption from the strict constitutional limitations of the criminal law, use civil-commitment-like procedures to detain sex offenders in secure "treatment centers." Litigation testing these statutes has sought to locate the border between legitimate exercise of the state's mental health power, and illegitimate preventative detention. This article examines the central roles that medicine and behavioral science play in the operation of sex offender commitment statutes and the litigation testing their constitutional validity. The thesis of this article is that the presence of these sciences in sex offender commitment schemes is central to their claims of validity. It is the systemic, rather than causal or interstitial, presence of science that provides the central pillar in the claim for legitimacy. But the way in which science is used , the pattern of its use and non-use, undercuts those very claims. Sex offender commitment statutes can partially rehabilitative their claims to legitimacy by restructuring their use of science. Part IA of this article describes briefly the operation of sex offender commitment laws, introduces the legitimacy claims they make through the use of science, and sketches how the actual usage pattern of science undercuts those claims. Part IB reviews the literature on the use of science in law, highlighting concepts that are useful in assessing science in the context of sex offender commitment laws. Part II sets out in more detail the way sin which sex offender commitment schemes use and fail to use science. Part III then sets out recommendations for the use of science in sex offender commitments. The article suggests that science can be used to restore some of the legitimacy claimed by sex offender commitments but lost by current practices. It posits that courts lack the knowledge to set meaningful legal standards for sex offender commitments. The article concludes in Part IV by raising a set of cautions about even this use of science in law.
Janus, Eric S., "The Use of Social Science and Medicine in Sex Offender Commitment" (1997). Faculty Scholarship. 93.