Beyond Strict Scrutiny: Forbidden Purpose and the 'Civil Commitment' Power

21 New Criminal Law Review 345 (2018)

34 Pages Posted: 16 Jul 2018

See all articles by Eric S. Janus

Eric S. Janus

Mitchell Hamline School of Law

Date Written: June 21, 2018

Abstract

Sex offender civil commitment (SOCC) is a massive deprivation of liberty as severe as penal incarceration. Because it eschews most of the "great safeguards" constraining the criminal power, SOCC demands careful constitutional scrutiny. Although the Supreme Court has clearly applied heightened scrutiny in judging civil commitment schemes, it has never actually specified where on the scrutiny spectrum its analysis falls. This article argues that standard three-tier scrutiny analysis is not the most coherent way to understand the Supreme Court’s civil commitment jurisprudence. Rather than a harm-balancing judgment typical of three-tier scrutiny, the Court’s civil commitment cases are best understood as forbidden purpose cases, a construct that is familiar in many areas of the Court’s constitutional analysis. But the Court’s civil commitment cases tie the search for punitive purpose to another genre of constitutional analysis, the application of the substantive boundaries on governmental power most commonly associated with the specific grants of federal power. In contrast to the normal conception of state power as plenary, limited only by the specific constraints of the bill or rights and the amorphous limits of "substantive due process," the Court has posited a narrowly limited "civil commitment" power. The search for the forbidden purpose maps directly onto the inquiry into the limits of this discrete and special state power. Finally, the article argues that the forbidden purpose/discrete power analysis provides clarity on another vexing issue, the facial/as-applied distinction.

Keywords: Sexual Predator Laws, Civil Commitment, Substantive Due Process, Strict Scrutiny, Forbidden Purpose

JEL Classification: K19, K49

Suggested Citation

Janus, Eric S., Beyond Strict Scrutiny: Forbidden Purpose and the 'Civil Commitment' Power (June 21, 2018). 21 New Criminal Law Review 345 (2018). Available at SSRN: https://ssrn.com/abstract=3200517

Eric S. Janus (Contact Author)

Mitchell Hamline School of Law ( email )

875 Summit Ave
St. Paul, MN Minnesota 55105-3076
United States
6126954928 (Phone)
6126954928 (Fax)

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