An End-Game for Sexually Violent Predator Laws: As-Applied Invalidation

Abstract

In this essay, the authors sketch the case for "as-applied invalidation" of a sexually violent predator commitment law. In Seling v.Young, the Supreme Court heard and rejected a plea to release a committed individual because of the manner in which the SVP law was applied to him. But Young left open the possibility that an SVP law might be invalidated based upon evidence, derived from the implementation of the law, of improper purpose, as opposed to "facial" considerations, such as language and pre-implementation findings regarding legislative intent or purpose. We also raise and sketch a related issue: how an "as-applied invalidation" claim might be successfully litigated, notwithstanding the existence of federal jurisdictional obstacles such as the abstention and fact-deference doctrines, and the requirement that federal habeas litigants first exhaust state remedies.

Keywords: SVP, sexually violent predator, as-applied invalidation, abstention doctrine, fact-deference doctrine,constitutional law, substantive due process; sex crimes, habeas corpus,right to treatment