Controlling Sexually Violent Predators: Continued Incarceration at What Cost?
New Criminal Law Review, Vol. 14, No. 2, pp. 213-280, Spring 2011
69 Pages Posted: 27 Sep 2012
Date Written: 2011
Sexually violent predator (SVP) laws are inherently suspicious because they continue to incarcerate people not because of what they have done, but because of what they might do. I focus on three major criticisms of the laws. First, I use recent recidivism data to challenge the core motivation for the SVP laws-that sex offenders are monsters who cannot control themselves. Second, I situate the laws theoretically as examples of what Feeley and Simon call the "new penology." I argue that the SVP laws show the limited promise of the new penology -- that we can use science to predict risk accurately --because the actuarial instruments used in SVP determinations make many mistakes. In making this argument, I focus particularly on the most commonly used such instrument, the Static-99. Finally, I argue that the Static-99 fails to meet the constitutional criteria laid out by the U.S. Supreme Court in Kansas v. Hendricks because it does not link an individual's mental illness to his dangerousness.
Keywords: Sexually Violent Predators, Static 99, Recidivism, False Positives, Actuarial Instruments, Kansas v. Hendricks
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