Substantive Due Process and the Involuntary Confinement of Sexually Violent Predators

66 Pages Posted: 22 Aug 2003 Last revised: 9 Mar 2008

See all articles by Eric S. Janus

Eric S. Janus

Mitchell Hamline School of Law

Wayne A. Logan

Florida State University - College of Law


Over the past fifty years the Supreme Court has been repeatedly asked to address the constitutionality of civil commitment laws, including laws specifically targeting sexually violent predators (SVPs). The SVP laws have withstood challenge, in each instance redeemed by their putative civil purpose. Today, however, roughly 13 years after the first modern SVP law was enacted by the State of Washington, serious concern exists over whether the laws are fulfilling their civil purpose, or are merely serving as vehicles for impermissible preventive detention.

This Article addresses this question, in the process exploring the viability of the major remaining constitutional basis to challenge the laws: that police power commitment authority entails a strong, enforceable right to treatment, indeed, effective treatment, designed to achieve material progress toward community re-entry.

Our argument takes on the conventional judicial wisdom that discounts the right to treatment for the dangerous mentally disordered. Tying together thirty years of the Court's cases, we establish that without treatment progress, involuntary civil commitment, although perhaps legitimate ab initio, can over time become unconstitutional punishment. To ensure that this principle is honored, we devise an analytic framework that is sensitive to the deference properly owed states in the operation of their SVP regimes, yet fulfills the imperative that courts carefully scrutinize state deprivations of liberty on the cusp of the shadowy civil-criminal divide.

The Article begins by discussing Seling v. Young, in which the Supreme Court turned back a right-to-treatment claim for habeas relief. Noting that Young was an ex post facto/double jeopardy case, the Article turns to the Court's substantive due process jurisprudence. We argue that there are limits to the hands-off deference that courts often express regarding treatment claims. The right to treatment is often thought of in monolithic terms. We argue that the constitutional right to treatment has several distinct analytic branches. Treatment must be a purpose of commitment if it is to retain its civil cast. However, for a variety of reasons, the Constitution does not impose a treatment-amenability standard as a pre-condition for police power commitment. Further, the details of treatment are properly left to the discretion of state professionals. Nonetheless, the duration of confinement must be related to its treatment purpose. This principle suggests the invalidity of commitments whose duration is excessive in relation to a treatment purpose. In a series of cases, the Court has insisted that commitments, even those valid ab initio, must end when their constitutional underpinnings disappear. We argue that this principle requires release if effective treatment has not been provided within a reasonable period.

JEL Classification: K14, K42

Suggested Citation

Janus, Eric S. and Logan, Wayne A., Substantive Due Process and the Involuntary Confinement of Sexually Violent Predators. Connecticut Law Review, Vol. 35, No. 2, Winter 2003, Available at SSRN:

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)

Wayne A. Logan

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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