Delineating Sexual Dangerousness
Fredrick E. Vars
University of Alabama - School of Law
May 1, 2012
Houston Law Review, Vol. 50, Forthcoming
U of Alabama Public Law Research Paper No. 2050994
Only “dangerous” individuals may be indefinitely detained. Is a one percent chance of a future crime clear and convincing evidence of dangerousness? For sex offenders, fear and uncertainty in case law leave open this passage to limbo. This article closes it.
The due process balancing test used to evaluate standards of proof provides the framework. This article explains the relationship between the standard of proof and the definition of “dangerous” and argues that only an approach combining the two is consistent with the Constitution.
Applying decision theory with assumptions favoring the government, this article calculates a minimum likelihood of recidivism for commitment. Of the 20 jurisdictions with sex offender commitment, just one requires something close to that constitutional floor. Thousands have been detained applying unconstitutional standards, and the vast majority remains so.
Number of Pages in PDF File: 41
Keywords: sexually violent predator, civil commitment, preventive detention, due process, standards of proof, dangerousness
Date posted: May 4, 2012