Dangerous Diagnoses, Risky Assumptions, and the Failed Experiment of “Sexually Violent Predator” Commitment † Deirdre M. Smith 246 Deering Avenue Portland, Maine 04102 (207) 780-4376 [email protected] http://mainelaw.maine.edu/faculty/profiles/smith.html Draft: Please do not quote from or cite to this article without the author’s express permission. This paper is a draft of an article that is forthcoming in Oklahoma Law Review, 67 Okla. L. Rev. __. It is available for download at no cost at the author’s SSRN page: http://ssrn.com/author=625469 . † Professor of Law and Director of the Cumberland Legal Aid Clinic, University of Maine School of Law. I am grateful to the following people who read earlier drafts of this article and provided many helpful insights: David Cluchey, Malick Ghachem, Barbara Herrnstein Smith, and Jenny Roberts. I also appreciate the comments and reactions of the participants in the University of Maine School of Law Faculty Workshop, February 2014, and the participants in the Association of American Law Schools Section on Clinical Legal Education Works in Progress Session, May 2014. I am appreciative of Dean Peter Pitegoff for providing summer research support and of the staff of the Donald L. Garbrecht Law Library for its research assistance. Electronic copy available at: http://ssrn.com/abstract=2447633 ABSTRACT In the 1997 opinion, Kansas v. Hendricks, the U.S. Supreme Court upheld a law that presented a new model of civil commitment. The targets of these new commitment laws were dubbed “Sexually Violent Predators,” and the Court upheld this form of indefinite detention on the assumption that there is a psychiatrically distinct class of individuals who, unlike typical recidivists, have a mental condition that impairs their ability to refrain from violent sexual behavior. And, more specifically, the Court assumed that the justice system could reliably identify the true “predators,” those for whom this unusual and extraordinary deprivation of liberty is appropriate and legitimate, with the aid of testimony from mental health professionals. This Article evaluates the extent to which those assumptions were correct and concludes that they were seriously flawed and, therefore, the due process rationale used to uphold the SVP laws is invalid. The category of the “Sexually Violent Predator” is a political and moral construct, not a medical classification. The implementation of the laws has resulted in dangerous distortions of both psychiatric expertise and important legal principles, and such distortions reveal an urgent need to re-examine the Supreme Court’s core rationale in upholding the SVP commitment experiment. 2 Electronic copy available at: http://ssrn.com/abstract=2447633 I. INTRODUCTION In 1990, the state legislature of Washington, in response to calls for action after a highly- publicized violent sexual crime committed against a young child by an offender with prior convictions for violence against children, enacted a statute to enable the state to continue to detain sex offenders after they had completed their criminal sentences. The targets of these new laws were dubbed “Sexually Violent Predators,” a label intended to connote a sub-class of sex offenders who run a high risk of recidivism after their release due to the presence of a mental abnormality or personality disorder. Soon thereafter, a few other states, including Kansas, enacted their own commitment laws modeled closely on Washington’s. The first person committed under Kansas’s law, Leroy Hendricks, challenged the constitutionality of his indefinite detention under due process, ex post facto, and double jeopardy principles in a case that reached the United States Supreme Court. In the 1997 opinion in Kansas v. Hendricks,1 the Court upheld this new model of commitment. In the wake of that case, other states (for a total of 20 to date) and the federal government enacted “Sexually Violent Predator” (SVP) laws as well. Since 1990, several thousand people have been committed under such laws, the vast majority of whom remain in indefinite detention. The core rationale of the Hendricks opinion, as well as that of the follow-up opinion in Kansas v. Crane,2 is that indefinite preventive detention is consistent with substantive due process principles where a mental disorder limits the committed individual’s ability to control his behavior. Although a finding of such mental disorder is, consequently, a constitutional prerequisite for these indefinite commitments, the Court also conferred broad discretion on legislatures regarding how states could satisfy this requirement. The Court based its opinions regarding SVP laws on the assumption that there is a medically distinct class of individuals who are not “typical recidivists” but who have a mental condition that impairs their ability to refrain from violent sexual behavior and for whom this unusual and extraordinary deprivation of liberty is appropriate and legitimate. And more specifically, the Court assumed that the justice system could reliably distinguish between the two groups and, with the aid of mental health professionals, could identify the true “predators.” In this Article, I evaluate the extent to which those assumptions were correct, both at the time of the SVP laws’ enactment and as they have been implemented. First, I consider psychiatry’s own views of the relationship of mental pathology to sexual violence and of the field’s ability to predict such violence.3 Second, I review the key features of the psychiatric expertise offered by prosecutors to support SVP commitment and analyze how courts have used 1 Kansas v. Hendricks, 521 U.S. 346 (1997). 2 Kansas v. Crane, 534 U.S. 407 (2002). 3 I will generally use the term "psychiatry" to refer to the professional field concerned with the identification of mental illness in the Sexually Violent Predator (“SVP”) context because it is closely associated with the overall development of mental pathology classification and nosology, such as through the Diagnostic and Statistical Manuals of Mental Disorders published by the American Psychiatric Association. I refer to "psychology" in the context of research regarding human behavior and the like. Parties in court proceedings quite often present expert evidence through the testimony of forensic or clinical psychologists. See GARY B. MELTON ET AL., PSYCHOLOGICAL EVALUATIONS FOR THE COURTS: A HANDBOOK FOR MENTAL HEALTH PROFESSIONALS AND LAWYERS 23–24 (3d ed. 2007; BRUCE J. WINICK & JOHN Q. LA FOND, PROTECTING SOCIETY FROM SEXUALLY DANGEROUS OFFENDERS: LAW, JUSTICE, AND THERAPY 75–77 (2003). 3 such expertise to decide whom to commit under SVP laws. These examinations reveal that the assumptions upon which the Court based the Hendricks-Crane rationale were erroneous. The Court’s most consequential error was its failure to acknowledge that the category of the “Sexually Violent Predator” is a political and moral construct, not a medical classification. Mainstream psychiatry has never claimed that it can accurately predict who is at risk of committing acts of sexual violence and has never conceptualized sexual aggression as the product of volitional impairment. Indeed, the American Psychiatric Association (APA), the leading professional organization in American psychiatry, and other voices from within the mental health profession have vociferously opposed SVP laws since their enactment precisely because of the role assigned to psychiatric expertise by such laws to identify those who should be committed. The controversies regarding admission of expert testimony in individual SVP cases reveal the troubling consequences of the Supreme Court’s failure to heed the warnings of the APA. Trial courts permit prosecution experts to offer diagnoses and predictions of risk in support of these commitments notwithstanding the fact that such testimony often strays far from current scientific understanding of the relationship of acts of sexual violence to psychopathology. In so doing, such courts distort or disregard key values in our justice system, such as limiting the admission of expert testimony to that based upon scientifically-sound methodology and reliable facts and data. Rulings in such cases have become even more dubious in the years since the SVP laws’ initial development, as the debate regarding the medical basis of SVP commitment has only intensified, bringing to the surface the unsteady foundation upon which the medical and, by extension, constitutional premise of SVP was based. The SVP laws generally4 and the Hendricks opinion specifically5 have been the target of extensive criticism from scholars as well as from legal and mental health professionals. While some have focused upon specific problems in the implementation of SVP laws, such as experts’ reliance upon controversial diagnoses or their use of actuarial instruments to assess risk, many in both groups—scholars and mental health professionals—have pointed to the laws as inherently flawed policy.6 Although critical of the SVP laws, the scholars and medical professionals offering these analyses generally assume that, in light of the Hendricks opinion, the question of their constitutionality is now a settled matter. Taken together with a review of how the laws have actually operated, however, these and related criticisms can be seen to make that assumption of constitutionality itself questionable. My approach in this Article is to analyze the SVP laws as a legislative experiment in preventive detention endorsed in the Hendricks and Crane opinions