William Mitchell Law Review: Eric Janus; March 27, 2003 11:39 PM
Minnesota’s sex offender commitment laws arise from a compelling purpose: the prevention of sexual violence. Yet, I will argue in this short essay that there is strong evidence that these laws are poor public policy. When confronted with the problem of sexual violence, the Minnesota Legislature asked the wrong question, and sex offender commitment laws are an expensive, and ultimately wrong answer. The Minnesota Courts and Legislature have made the problem worse by consistently failing to establish meaningful and transparent standards for invoking and continuing sex offender commitments. As a result, the flaws in the system are
exacerbated and multiplied as time goes on.
One might well ask: why should we care? After all, sex offender commitments undeniably incapacitate a group of dangerous sex offenders, and in that direct and obvious way, prevent further sexual violence. The commitments may be expensive, but saving a future victim from sexual violence is arguably worth the price.
But it is not that simple. Public resources are limited, even for the prevention of sexual violence. Prestigious national professional organizations have roundly criticized sex offender commitments on resource allocation grounds. For example, the 1996 Interim Report of an American Psychiatric Association Task Force
concluded that Sexual Violent Predator (“SVP”) laws “misallocate psychiatric facilities and resources, and constitute an abuse of psychiatry,” and the National Association of State Mental Health Program Directors warned that these laws “undermine the mission and integrity of the public mental health system, . . . divert[ing] scarce resources away from people who both need and desire
treatment.” In 1992, the Minnesota Psychiatric Society called for the repeal of Minnesota Psychopathic Personality law, warning that for the great majority of those committed, “there is no form of treatment that has a reasonable expectation of success.” Yet despite the drumbeat of concern, the consequences of the choice
in the State of Minnesota have remained essentially unexamined. In this essay, I suggest that an evidence-based evaluation of sex offender commitments would likely show that a different allocation of those resources – abandoning the expensive commitment program – could prevent even more sexual violence. If I am right, the state’s choice is actually subjecting victims to crimes that could have been prevented.
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