SEX OFFENDER CIVIL COMMITMENT TOPRISON POST-KINGSLEY

Northwestern University Law Review: Arielle W. Tolman; Vol. 113, No. 1, 2018

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ABSTRACT—Today, an estimated 5400 people are civilly committed under
state and federal sex offender programs. This Note surveys these civil
commitment regimes and finds that seventeen jurisdictions (sixteen states
and the federal government) have enacted legislative schemes that authorize
the indefinite civil detention of people charged with, or previously convicted
of, sex offenses to prisons or prison-like facilities—often for their entire
lives. By charting the pervasiveness of sex offender civil commitment to
prison, this Note provides new evidence that these sex offender civil
commitment statutes are, in fact, punitive and, therefore, unconstitutional.
Moreover, this Note argues that the Supreme Court’s decision in Kingsley v.
Hendrickson calls into question the Court’s logic in upholding sex offender
civil commitment regimes in prior cases. Traditionally, civil commitment
jurisprudence has turned on whether the legislature intends to punish—not
merely confine—sex offenders. Kingsley, however, suggests that
confinement may be found punitive based solely on the objective harshness
of the conditions of incarceration, regardless of whether any state actor
intended for the conditions to be punitive. If incarceration conditions may
now constitute punishment regardless of governmental intent, it follows that
the government may be punishing thousands of sex offenders without
authorization. Indeed, as this Note shows, convicted prisoners and
committed sex offenders commonly experience identical conditions of
confinement.

Read the full article by clicking on the link below:

SOURCE: https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1353&context=nulr

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