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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  

Tamara Rice Lave

University of Miami, School of Law

Date Written: 2011

Abstract

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

Suggested Citation

Lave, Tamara Rice, Controlling Sexually Violent Predators: Continued Incarceration at What Cost? (2011). New Criminal Law Review, Vol. 14, No. 2, pp. 213-280, Spring 2011. Available at SSRN: https://ssrn.com/abstract=2153292

Tamara Rice Lave (Contact Author)

University of Miami, School of Law ( email )

P.O. Box 248087
Coral Gables, FL 33146
United States

HOME PAGE: http://www.law.miami.edu/facadmin/tlave.php

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