The Evil that Men Do: Perverting Justice to Punish Perverts
55 Pages Posted: 11 Dec 2000
In Kansas v. Hendricks, 521 U.S. 346 (1997), by the narrowest of margins, the Supreme Court upheld the Kansas Sexually Violent Predator (SVP) statute against several constitutional attacks. With this Supreme Court imprimatur, SVP legislation has become the wave of the present-a politically popular solution to the problem of repeated sexual violence against women and children. Typically, after an individual identifiable as an SVP serves a criminal sentence, he is subjected to civil commitment and detained indefinitely.
Many scholars assert that Hendricks was wrongly decided and that SVP legislation should be held unconstitutional. I review their arguments and conclude that after Hendricks, they are not likely to succeed. However, the Supreme Court did not consider an equal protection attack on SVP legislation. In my article, I explain why an equal protection challenge claiming that SVPs are similarly situated with other civilly committed patients is likely to fail. Nevertheless, I believe that a properly framed equal protection claim could, and should succeed. I explain why, based on other Supreme Court decisions, SVP legislation impermissibly discriminates against sentence-expiring convicts, incompetent criminal defendants, and nondangerous insanity acquittees by exempting from SVP commitment other individuals who are equally mentally disordered and dangerous.
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