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September 4, 2012

"Sex Offender Exceptionalism and Preventive Detention"

The title of this post is the title of this notable symposium paper by Professor Corey Rayburn Yung, which is now available via SSRN. Here is the abstract:

The emerging war on sex offenders, as typical of wartime mentality, has been marked by substantial deviations from established legal doctrine, constitutional protections, and the rule of law.  Because of a high level of panic among the general population about sex offenders the use of preventative detention for sex offenders has received little attention or scrutiny.  While the population of the detention facility at Guantanamo Bay has slowly decreased, the number of persons in state and federal detention centers dedicated to sex offenders has continued to climb.  With the courts largely rubber stamping the federal civil commitment of sex offenders allowed under the Adam Walsh Child Protection and Safety Act (AWA) in 2006, the path has been cleared for an enormous expansion of sex offender detention.

Because of the limited attention given to these detentions, they represent a particularly dire threat to American liberties.  The normal societal and institutional checks against government abuse embodied in the media, public, Constitution, and courts have essentially been removed.  We authorize government to detain indefinitely those who are deemed “sexually dangerous” at our peril.  Instead of waiting for someone to commit a wrong, the government acts to restrict liberty of persons who have yet to commit a wrong (but the government believes will likely do so in the future).  The criminal justice system offers plenty of opportunities for the government to prosecute someone before harm is done using inchoate and conspiracy crimes.  To go beyond those already broad tools, the circumstances should be highly exceptional, the danger should be real and imminent, and the net should be cast narrowly.  In the case of sex offender civil commitment, the circumstances are no more dangerous than for other serious crimes, the risk is speculative based upon pseudo-science, and the net is far too broad.  Because of these aspects of sex offender civil commitment laws, America should fundamentally reconsider its approach to fighting sexual violence.  Laws like AWA, premised on myths that allocate substantial resources in a never ending war, do not create a just or better society.

September 4, 2012 at 12:24 PM | Permalink


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Why have the criminal regimes and the terrorists who support them been able to get away with only attacking and stealing from one group of U.S. citizens? They don't even offer up any excuses for why the rest of the Registries don't exist. Why is that being allowed?

Posted by: FRegistryTerrorists | Sep 4, 2012 12:31:39 PM

all i can say is NO SHIT! Just think it only took DECADE and a HALF for the egg heads to notice!

Posted by: rodsmith | Sep 4, 2012 4:30:09 PM

I'm curious about what they actually do in Europe. Not because I think we should feel obligated to do (or even that it's even necessarily desirable to do) whatever they do in Europe, but just because I'm curious. For all the talk about how much more enlightened European justice systems are, e.g., because they don't sentence people to lifetime imprisonment without parole, even for murder, I wonder if maybe we're wrong to focus on what they say they're doing, rather than what they're actually doing.

For example, we know from the Breivik case in Norway that even though that mass killer was sentenced to a relatively short determinate prison sentence, few people acquainted with Norway's criminal justice system think there's any realistic chance that he's ever getting out. Either in prison or in some form of mental hospital, he will be confined involuntarily, and indefinitely, even after he has (theoretically) served his sentence in full. The decision will simply be made by administrators/bureaucrats, and for five-or-so years at a time, instead of by a judge and up front. But the hearings will be formalities, much like Charles Manson's periodic parole reviews.

So, that brings me back to my question: what do they do in Europe? Do they simply let people who seem likely to be dangerous recidivist sex offenders go back home after service of their more "enlightened" shorter prison sentences, and cross their fingers that -- perhaps because of possibly nicer European prison facilities and programs -- the individual won't reoffend? Or do they hold sex offenders who appear to present high risks of recidivism, in similar fashion to the kind of indefinite detentions that we typically haven't had here and that the writer of this article decries?

Posted by: guest | Sep 4, 2012 7:32:30 PM

Actualy outside of the english speaking counties...IE england. Most of the rest of the continent is not as anal about it. Hell former sex criminals FROM englan are moving to the mainland to get AWAY from the neo-nazi sex police in england and using the EU's and UN treaties to do it!

Posted by: rodsmith | Sep 4, 2012 9:52:02 PM

Ah, to be guilty of future-crime in America. Some countries have called our system of indefinite detention for sex offenders a violation of human rights, but then I guess we gave up any toss about seriously caring about human rights some years ago.

Posted by: Guy | Sep 4, 2012 10:49:37 PM

@ Guy:

Putting aside the question about too-broad and automatic inclusion of people as sex offenders who probably shouldn't be categorized that way (e.g., older teenagers in "Romeo and Juliet" type relationships with boyfriends/girlfriends just under the legal age of consent, teenagers who stupidly e-mail nude pictures of themselves to boyfriends/girlfriends), the recidivism rate for certain types of sex offenders is horrific. Although I would agree that you can't cut off the risk of recidivism by simply locking everyone up forever, I'd also question an analysis that doesn't factor in an unreasonable failure to protect likely future victims, even when their precise identifies can't yet be known (i.e, a "human rights" analysis that considers crime to future victims as not the state's fault or problem because committed by private actors, with the sole "human rights" concern being what the state is doing to the offender).

Would you be happier with a regime in which prison terms for certain types of sex offenses were determinate but followed by very long, or even lifetime, probation terms, which would allow offenders' probation to be revoked and their liberty terminated -- simply upon a preponderance of the evidence showing that the offender had taken at least a substantial step towards committing a new sex offense, or would you require a new conviction at a new beyond-a-reasonable-doubt full-dress trial (and a new victim)?

Posted by: guest | Sep 4, 2012 11:23:22 PM

well guest i will give you the fact that certain types of sex crimes have a as you call it a "horrific" reoffencse rate. i think rape hits 50-60% and pedophilia with same-sex victims also comes close in non-stranger cases.

But we have almost a million people now on the illegal registry and most have been on it a LONG LONG LONG LONG damn time.

Pretty much every study using those numbers so that 80-95% of all NEW sex crimes are comitted by those NOT of that ILLEGAL list!

so why are we FUCKING over 900,000 people becasue 10-15,000 of them have a problem.

based on that idiotic logic i should be allowed to walk though town and shoot 9 out of 10 of everyone i meet!

as for this!

"would you require a new conviction at a new beyond-a-reasonable-doubt full-dress trial (and a new victim)?"

HMM last time i looked that is what the CONSTITUTION requires! and STILL requires pretty much for EVERY OTHER crime except SEX CRIMES!

Posted by: rodsmith | Sep 5, 2012 12:57:09 AM

While we're talking about "horrific" reoffence rates for crimes

shall we talk about the

70-80% for car theft, DUI, DWI, property crimes, DRUGS!

where are THEIR registrys and all the other little GOTCHA!

Posted by: rodsmith | Sep 5, 2012 12:59:01 AM

Guy --

I would be interested in your response to guest's questions.

More broadly, the phrase "human rights" can mean anything anyone wants it to, and is used by leftists to mean whatever is on their agenda. Having no settled definition, it's essentially a battering ram used against anyone who thinks sex crimes warrant any punishment whatever. That's why the author of this ideological screed starts right in talking about the "war" on sex offenders, as if civil prosecutions based on statutes and precedent are just like the Nazis invading Poland.

Utter tripe.

Posted by: Bill Otis | Sep 5, 2012 9:52:03 AM

1. Assessments used for civil commitment hearings have no scientific / statistical validity. 2. Civilly committed sex offenders are not released, so their commitments become life sentences. 3. The cost of such commitment is five times the cost of imprisonment. 4. Thinking about someone else's comment, even the nazi war criminals who were not executed were released after a few short years in prison and their crimes were much more horrific. 5. The prison terms for child pornography surpass those given to murderers. 6. Is this war on child sex criminals akin to attempts at social engineering similar to prohabition, war on drugs, etc. 7. With the statistics of molestation indicating that most are committed by those who know the victim or are family members, can this program realistically succeed?

Posted by: Mark | Sep 5, 2012 10:19:53 AM

"Is this war on child sex criminals . . . ."

Please tell me that you're referring to something like adolescents/young adults who are prosecuted for sex offenses for having otherwise-consensual sex with slightly-under-the-age-of-legal-consent girlfriends/boyfriends (so-called "Romeo and Juliet"), or teenagers who idiotically send nude pictures of themselves to boyfriends/girlfriends, as opposed to adults who rape or otherwise sexually abuse children.

Posted by: guest | Sep 5, 2012 10:41:24 AM

@ Rod:

"900,000 people becasue 10-15,000 of them have a problem."

Okay, so would you agree that the issue isn't so long-term detention of sex offenders who really "have a problem" as much as it is the system's lumping in too many people into that category, i.e., not screening out carefully enough people who shouldn't be in the "dangerous sex offender-do not release" or "dangerous sex offender-exercise extreme caution before releasing" categories?

Posted by: guest | Sep 5, 2012 10:48:04 AM

It is a war in the same sense of the criminal governments' War on Drugs. This is the War Against Registry Terrorists. It doesn't matter if the criminal governments and their terrorist supporters acknowledge the war or do not fight back, it is still a war. It only takes one side to maintain a war.

I have asked thousands of people what their excuses are for not getting the rest of the Registries (and their adjunct laws) created. I have yet to even hear a response, much less one that could conceivably be legitimate. I personally think the reason is that intelligent people realize the Registries are a bunch of bunk that responsible people don't need and that doesn't/can't help irresponsible people. I think they also realize that they are in a war and the smart ones are afraid to include any more people against them. I mean, they must realize that they can dehumanize only a certain percentage of population, right? Even the crazy Nazis knew that.

Posted by: FRegistryTerrorists | Sep 5, 2012 2:01:15 PM

no guest that is TWO problems. the sex offender civil comitment scheme is illegal on just about every level. We have had a LEGAL civil comitment system in place for abut 100 years. The simple fact that the state woudn't or couldn't USE IT and had to create a whole NEW one that had none of it's court tested PROTECTIONS tells me it's illegal.

As for the registry. Maybe if we had left it as what it was created to be. For VIOLENT and REPEAT OFFENDERS! plus LAW ENFORCMENT USE ONLY! and without all the little gotcha's that have been added. It would STILL be legal. As it sits now it's an ILLEGAL EXPOST CRIMINAL VIOLATION that in my book allowes each and everyone on it the LEGAL and MORAL right to kill anyone involved in supporting and running it with no warning using the same LEGAL grounds our govt NOW uses to attack people on the streets around the world with robo kilers!


as for this bill!

"That's why the author of this ideological screed starts right in talking about the "war" on sex offenders, as if civil prosecutions based on statutes and precedent are just like the Nazis invading Poland."

Just maybe people would not compare the sex offender registry scheme with the NAZI'S if the NAZI'S hadn't pulled the same illegal shit in the 1930's as they worked their way into the Offical Nazi State!

Posted by: rodsmith | Sep 5, 2012 2:13:38 PM

The term "violent offender" is pretty broad. It covers anything and everything from touching breasts/genitals, whether through clothing or not, to rape, etc. I believe this is why the vast majority of people on the registry are categorized level 3, or violent offenders, even though the "everyman" definition of violent behavior is quite a bit more narrow.
I'm an RSO. For some dumb reason, I thought that justice would be served once my probation time is done.

Posted by: Ken | Sep 5, 2012 9:19:08 PM

americans have become extreemists. look at how they handle the war on drugs, the E.P.A., the wars we start lately and any other thing they try to do. americans are being denounced by other countries being called war mongers for their involvment in other countries affairs. WE JUST SEEM TO LOVE WAR. war on sex offenders, war on drugs, war on terrorists, war on crime...... and also love to hate, there the witches, then blacks, then communists, then socialists..... we think we are better then anyone else and are the only one's that know what's right. look to another free country like canada, england or any other and the way they handle the sex offender issue. they have more human rights then in america because they are not war mongers or extreemists. it seems we have to hate something everyday, control everything, the only problem with that mentality is to control everything costs lots of money. which we can't afford and would be better used else where. my gods i wonder what we did before the illegal hate list called the registry. how did our children survive? how did our nation survive? i bet history will one day look back at this time and laugh and wonder how stupid and scared a society could become with the help of overzealous politicians and biased news media's propaganda supporting the stupidity. the same tactics were used by hitler to change the laws in germany too before they started locking people up and treating them les then human like we did with the witch hunts of the 1600's which by the way were started by a couple of young girls with made up lies. idiots never learn and sheeple can always be led anywhere you want to lead them. extreemist will be the downfall of this country as they have been for many empires in the past.

Posted by: pan | Oct 25, 2012 11:40:19 AM

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