Document Type

Article

Publication Title

St. John's Law Review

Abstract

Fifteen years after the Supreme Court’s decision in Kansas v. Hendricks upheld their constitutionality, sexually violent predator (SVP) statutes exist in 20 states and the federal code. Committing sex offenders indefinitely in an effort to protect the public, SVP statutes have survived academic criticism and mushrooming expense, targeting society’s most unpopular subjects and unpalatable crimes. In upholding the statutes against constitutional attack in Hendricks, the Court relied upon the state’s demonstrable power to preventively detain individuals during public health emergencies – analogous to the civil detention model of quarantine – to establish the state’s unquestioned right to involuntarily commit sex offenders in the name of public safety.

This paper does not revisit the constitutional arguments rejected by multiple opinions since Hendricks. Instead, this paper applies a different source of law and policy: the well-established public health framework justifying quarantine in communicable disease cases. This framework is applied to SVP statutes’ inconsistent entrance criteria whose distinctions have long evaded meaningful review. After demonstrating how the two civil detention schemes are relevantly similar, this novel analysis focuses on the application of a four-part public health test to SVP statutes and concludes that SVP statutes are not sufficiently necessary, proportional, verifiable, or fair. Finally, solutions are offered to bring SVP statutes into compliance with public health norms in an attempt to remedy their chronic inconsistencies.

First Page

847

Last Page

898

Publication Date

Fall 2013

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