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

26 Pages Posted: 19 Jan 2009 Last revised: 22 Jan 2009

See all articles by Eric S. Janus

Eric S. Janus

Mitchell Hamline School of Law

Bradly T. Bolin

affiliation not provided to SSRN

Date Written: December 1, 2008

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

Suggested Citation

Janus, Eric S. and Bolin, Bradly T., An End-Game for Sexually Violent Predator Laws: As-Applied Invalidation (December 1, 2008). Ohio State Journal of Criminal Law, Vol. 6, No. 25, 2008, William Mitchell Legal Studies Research Paper No. 108, Available at SSRN: https://ssrn.com/abstract=1326470

Eric S. Janus (Contact Author)

Mitchell Hamline School of Law ( email )

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Bradly T. Bolin

affiliation not provided to SSRN

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