Responding to Sex Offenders

Literature on Sex Offenders and SVPs

Despite widespread belief that sex offenders routinely reoffend, the empirical evidence largely does not support this conclusion (Mercado et al., 2013). Indeed, contrary to prevailing notions about sexual offenders, they are generally not high recidivists when compared with other types of offenders (Zimring, Piquero, & Jennings, 2007; see also Tewksbury et al., 2012). Furthermore, in contrast to the notion of “stranger danger,” the vast majority of sex offenders are relatives, family friends, or neighbors of their victims (Douard, 2007; Janus, 2006). Without question, SVPs are the most serious types of sex offenders, and they represent a distinct societal concern. To be classified as an SVP, one must be diagnosed with a mental abnormality or defect (e.g., antisocial personality disorder), which is a legal construct that, in some states, includes a volitional impairment component (Winsmann, 2012). In other words, the individual’s condition must render them incapable of controlling their impulses which makes reoffending a likely probability (Mercado et al., 2013; Winsmann, 2012). Nevertheless, the current body of research fails to support the ubiquitous belief that sex offenders will recidivate (Tewksbury et al., 2012). Consider the following findings.

Case Law on the Total Confinement of Sex Offenders and SVPs

Given the controversy surrounding the use of potentially indefinite civil commitment of SVPs and the registration and community notification provisions to which sex offenders are subjected, it is perhaps unsurprising that these post-incarceration measures have been challenged in the courts. Despite the scientific evidence documenting the limited effectiveness of these “total confinement” practices (Arrigo, Bersot, & Sellers, 2011, p. 3), the U.S. Supreme Court has repeatedly found that they are constitutionally permissible. Thus, the civil liberties of convicted sex offenders are consistently denied based on often unfounded fears regarding the potential dangerousness and the perceived threat that they pose to the public’s safety (Janus, 2006). In what follows, five of the precedent-setting cases involving civil commitment, sex offender registration, and community notification are reviewed. Given their importance in elucidating the Court’s position on total confinement measures aimed at sex offenders and SVPs, each of these decisions has been featured prominently in the extant literature (e.g., Fabian, 2012; Mercado, Schopp, & Bornstein, 2003; Miller, 2010; Perlin, 2007; Yung, 2009). As we subsequently argue, these rulings collectively demonstrate how public sentiment rather than relevant empirical evidence inform and guide the Court’s decision making.

In Kansas v. Hendricks (1997), the Court addressed the question of whether the provision mandating civil commitment in the Kansas Sexually Violent Predator Act (SVPA) violated Hendricks’ substantive due process and protection from double jeopardy. Hendricks, a convicted sex offender diagnosed with a psychiatric disorder, contended that the SVPA’s definition of “mental abnormality” was insufficient to support subjecting those classified as SVPs to civil commitment. The Court disagreed and reversed the Kansas Supreme Court’s ruling. Furthermore, the Justices opined that the Act did not constitute a violation of Hendricks’ substantive due process rights or the Constitution’s double jeopardy clause. As the Court noted,

The Act does not impose punishment; thus, its application does not raise ex post-facto concerns. Moreover, the Act clearly does not have retroactive effect. Rather, the Act permits involuntary confinement based upon a determination that the person currently both suffers from a “mental abnormality” or “personality disorder” and is likely to pose a future danger to the public. To the extent that past behavior is taken into account, it is used, as noted above, solely for evidentiary purposes. Because the Act does not criminalize conduct legal before its enactment, nor deprive Hendricks of any defense that was available to him at the time of his crimes, the Act does not violate the Ex Post-Facto Clause. (Kansas v. Hendricks, 1997, pp. 370-371) ¹

In Kansas v. Crane (2002), the U.S. Supreme Court deliberated once again on the Kansas SVP Act and its civil commitment mandate. Unlike Hendricks, Crane suffered from exhibitionism and an antisocial personality disorder. Central to the case was whether Crane’s disorder constituted a volitional impairment—a key condition under the Act. Ultimately, the Court reasoned that an absolute finding of an individual’s inability to control their impulses was not necessary. In rendering their opinion, the Justices held that

when considering civil commitment, the Court has not ordinarily distinguished for constitutional purposes between volitional, emotional, and cognitive impairments. The Court in Hendricks had no occasion to consider whether confinement based solely on “emotional” abnormality would be constitutional, and has no occasion to do so here. (Kansas v. Crane, 2002, p. 415)

Although the Kansas Supreme Court’s ruling was vacated and the case was remanded, Crane is cited in the literature because the opinion offers important insights into the U.S. Supreme Court’s perspective on civil commitment for those who pose the risk of being sexually violent (Mercado et al., 2003; Perlin, 2007).

In Seling v. Young (2001), the Court considered an “as applied” challenge concerning civil commitment. This type of legal challenge involves a statute that, although deemed constitutional, “operates unconstitutionally” based on an individual’s distinct set of circumstances (Kreit, 2010, p. 657). Young, classified as an SVP, argued that the Washington statute mandating his post-incarceration confinement imposed an unduly harsh punishment on him. At the core of Young’s assertion was his claim that indefinite civil commitment was excessive and that the treatment he received was insufficient. Reversing the judgment of the U.S. Court of Appeals for the Ninth Circuit, the U.S. Supreme Court reasoned,

We do not deny the seriousness of some of respondent’s allegations. Nor does the Court express any view as to how his allegations would bear on a court determining in the first instance whether Washington’s confinement scheme is civil. Here, however, the Court evaluates respondent’s allegations under the assumption that the Act is civil, as the Washington Supreme Court held and the Ninth Circuit acknowledged. The Court agrees with petitioner that an “as-applied” analysis would prove unworkable. Such an analysis would never conclusively resolve whether a particular scheme is punitive and would thereby prevent a final determination of the scheme’s validity under the Double Jeopardy and Ex Post Facto Clauses. Confinement is not a fixed event, but extends over time under conditions that are subject to change. (Seling v. Young, 2001, p. 263)

One of the leading cases concerning sex offender registration and community notification is Smith v. Doe (2003). The case involved convicted sex offenders who asserted that the Alaska Sex Offender Registration Act (ASORA), which included both registration and community notification provisions, violated the Constitution’s ex post facto clause because it entailed sanctions that were imposed following the completion of their criminal sentences. The ASORA stipulates that convicted sex offenses must provide law enforcement authorities with a range of personal information including their appearance descriptions, residential addresses, employment locations, and the crimes for which they were convicted. Respondents contended that the ASORA’s requirements were stigma inducing. In response, officials argued that the ASORA was a justifiable measure that was intended to protect the public rather than to inflict further punishment on sex offenders.

Upholding the lower court’s ruling, the Court found that the ASORA was consistent with a legitimate regulatory scheme. Writing on behalf of the majority, Justice Kennedy opined that the Act’s registry and community notification mandates served a legitimate purpose in that their intention was to protect the public from those who posed a potential risk to citizen safety. The Court was unconvinced that the Act’s provisions imposed a stigma on convicted sex offenders. Furthermore, the Court reasoned that a significant portion of the personal information on sex offenders was a matter of public record. Thus, the Court was not persuaded that registration and notification requirements made sex offenders vulnerable to adverse reactions from the community. As the Court concluded,

Stigma . . . results not from public display for ridicule and shaming but from the dissemination of accurate information about a criminal record, most of which is already public . . . [and] though “humiliation increas[es] in proportion to the extent of the publicity . . . the purpose and the principal effect of notification are to inform the public for its own safety. (Smith v. Doe, 2003, pp. 98-99)

In Connecticut Department of Public Safety v. Doe (2003), a convicted sex offender charged that statutes based on Megan’s Law subjecting him to registration and community notification violated his procedural due process rights. Doe’s constitutional rights claim rested on the fact that he was required to register without being afforded a hearing to determine his level of dangerousness. Similar to the sex offenders involved in the previously discussed cases, Doe argued that the registration and notification mandates represented a government action that consequently and counter-therapeutically stigmatized him as a sex offender.

On certiorari to the Supreme Court, the Court of Appeal’s decision was reversed. The majority opinion, composed by then-Chief Justice Rehnquist, reasoned that authorities are not required to establish whether or not a sex offender is “currently dangerous” (Connecticut Dept. of Public Safety v. Doe, 2003, p. 1). As such, the Connecticut law at issue did not constitute a violation of Doe’s procedural due process rights. Although the Court chose not to engage in any significant deliberation regarding Doe’s assertion that the registration and notification provisions imposed a harm-inducing stigma on reintegrating sex offenders, the Justices were firm in their refusal to affirm Doe’s liberty interest claim.

Collectively, these five precedent-setting cases offer remarkable insight into prevailing, yet largely scientifically unfounded, perceptions of sex offenders. Indeed, while the empirical literature reveals that SVPs as a high-risk subgroup constitute some concern for future recidivism (Singh, Fazel, Gueorguieva, & Buchanan, 2013), those who commit sexually based crimes have a noticeably lower reoffending rate compared with those who engage in other types of criminality. This fact notwithstanding, the aforementioned cases make it apparent that the Court’s decision making is informed and guided principally by public sentiment rather than relevant science. Although in some cases the Justices acknowledged the detrimental effects of indefinite civil commitment as well as the potential stigma stemming from sex offender registration and community notification, the majority were not persuaded by (or inclined to rely on) the empirical evidence documenting the impact of these protracted custodial and social-psychological harms (Arrigo et al., 2011). Indeed, in each case, the civil liberty interests of sex offenders and SVPs were principally usurped by unsubstantiated claims regarding their potential dangerousness and perceived criminality.

Legal Moralism

While a number of views on legal moralism exist, the doctrine itself can be summarily defined as a prescription for judicial decision making endorsing the view that “the state can and should criminalize immorality” (Brink, 2012, p. 1). As a form of paternalism, the doctrine

suggests that between the notion of a public law and a private morality there is also something that equates to a public morality . . . [Therefore], it can be legitimate and permissible for those in authority [e.g., Courts] to intervene in an individual’s private life on moral grounds. (Wood, 2014, pp. 602-603)

As a matter of practice, legal moralism provides a jurisprudential basis by which behavior deemed unethical or otherwise offensive to a prevailing (i.e., communal) sense of rightness can be adjudicated (Brink, 2012). Discerning this “rightness,” particularly in matters involving individuals deemed the worst of the worst (i.e., sex offenders and SVPs), is clearly challenging. Nevertheless, the Court has made evident how its decision making embodies a public morality consistent with the state’s response to (and interventions on behalf of) those who perpetuate sexually based crimes.

In recent years, a series of data-driven studies have been conducted examining the moral reasoning lodged within the precedent-setting and/or prevailing case law on a number of pressing and problematic criminal justice and mental health policy issues. These inquiries focus on the text-based ways in which the U.S. Supreme Court in particular, and other appellate courts of last resort in general, reconcile the tension between individual liberties and public safety, where the relevant scientific evidence does not figure prominently into the legal analysis. Examples of these studies include waiving juveniles to the adult criminal court system where they are subsequently found competent to stand trial, despite research findings explaining how age-based adolescent cognitive development does not guarantee such maturity (Sellers & Arrigo, 2009). Or, placing mentally ill offenders in long-term, disciplinary solitary confinement, despite empirical evidence documenting how exposure to such custodial treatment exacerbates an inmate’s psychiatric condition (Bersot & Arrigo, 2010). In a subsequent work that included further refinements on both of these inquiries, Arrigo et al. (2011) examined the five U.S. Supreme Court rulings described above involving post-incarceration sanctions for convicted sex offenders. The authors challenged these total confinement measures, noting that the social science evidence repeatedly demonstrated the limited effectiveness, questionable necessity, and/or acknowledged harm that follows from sustaining such response-to-crime initiatives.

Unique to the Arrigo et al. (2011) investigation, however, was the application of a novel methodology. It involved two levels of qualitative analysis fitted to each of the three above-mentioned case law data sets. The first level identified the Court’s jurisprudential intent by locating actual words or phrases in each case that communicated judicial attitudes, temperaments, beliefs, perceptions, and so on. These data were then subjected to a second level of analysis that determined the underlying moral philosophy most consistent with the Court’s jurisprudential intent. Intra-textual (within each case), inter-textual (between cases in each data set), and cross-textual (among all three case law data sets) analyses revealed that two ethical schools of thought informed judicial decision making on matters of total confinement law and policy. These included ethical formalism as expressed through the Court’s reliance on Kantian deontology and consequentialism as revealed through the Court’s commitments to utilitarian principles (Arrigo et al., 2011). ² Several examples of these findings are worth noting with regard to the sex offender case law data set.

In Hendricks, the Court sought to establish a balance that honored Kansas’s need to manage classified SVPs by way of involuntary civil commitment and that affirmed the liberty interests at stake for those whom the state’s mandate affected. As the majority opined, “an individual’s constitutionally protected interest in avoiding physical restraint may be overridden even in the civil context” (pp. 356-357). Ultimately, the Court endeavored to ensure collective citizen well-being (i.e., the greatest good for the greatest number) by stating that civil commitment was a legitimate measure for those who were “unable to control their behavior” and “pose[d] a danger to the public health and safety” (p. 357). Furthermore, the Court expressed a deontological (duty-based) sense of obligation to uphold the state’s right to “restrict the freedom of the dangerously mentally ill” (p. 363).

As noted previously, the Crane Court relied heavily on its earlier ruling in Hendricks. Here, too, the underlying moral reasoning that informed this decision reflected a fidelity to utilitarian principles and Kantian deontology. For example, the majority opined that by intervening in Kansas’ directive regarding sex offenders and SVPs, this would “risk barring the civil commitment of highly dangerous persons suffering from severe mental abnormalities” (p. 421). Furthermore, and based on a recognized “duty,” the Justices maintained that “the States retain considerable leeway” (p. 413) in establishing laws that they perceive meet the needs of citizens by civilly committing individuals with mental abnormalities and personality disorders.

The Young ruling further elucidated the Court’s resolve to uphold states’ rights to protect society. Employing utilitarian logic, the Justices weighed the safety interests of citizens against the civil liberties of SVPs. As the majority observed, “the State had an interest in protecting the public from dangerous individuals with treatable and untreatable conditions” (p. 262). Although the Court affirmed Young’s right to “adequate care and individualized treatment” (p. 265) in a psychiatric facility, it also asserted its obligation to affirm the decision making of lower courts when it opined that “state courts, in addition to federal courts, remain competent to adjudicate and remedy challenges to civil commitment schemes” (p. 265).

Notwithstanding the empirical evidence documenting the less than significant risk of re-victimization that sex offenders pose (Hanson, 2003; Hanson & Morton-Bourgon, 2005; Mercado et al., 2013; Sample & Bray, 2003), the Court in Connecticut elected to express an alternative view. Specifically, as the Court alleged, “when sex offenders reenter society they are much more likely than any other type of offender to be re-arrested for a new rape or sexual assault” (p. 4). Moreover, and consistent with utilitarian principles that seek to protect or advance the public good—particularly its most vulnerable members (i.e., children)—the Connecticut Court weighed these interests against the social welfare needs of sex offenders. Communicating its duty to affirm the greatest good for the greatest number of citizens, the Court observed that convicted sex offenders “did not warrant additional safeguards” and that they “had no more right to additional ‘due process’” (p. 9).

Relying on utilitarian logic, the Smith Court reasoned that while the ASORA might have a “lasting and painful impact on . . . convicted sex offender[s]” (p. 101), the sex offenders must not “undermine the Government’s ability to engage in effective regulation” (p. 102). The majority in Smith repeatedly conveyed its sense of duty in rendering its opinion. Specifically, we note that the decision consisted of various phrases such as “rule of universal application,” “precedents instruct us,” “criminal law insists on,” and so on. When placed within their respective contexts, phrases such as these revealed the Court’s perceived long-standing obligation to uphold and honor a state’s right to establish mandates that might inadvertently harm offenders but nevertheless ought to be administered to protect the public.

Legal Moralism: Toward a Virtue Jurisprudence Perspective

The case law findings documented above are unsurprising. The role of the Court is to weigh competing interests, to affirm duties, to assign responsibilities, to acknowledge liberties, and to measure rights. This is how utilitarian ethical principles and Kantian ethical reasoning reveal judicial intention and inform judicial judgment. Legal moralism assumes textual form when the Court exercises its perceived community-sanctioned obligation to “intervene in an individual’s [private] life on [public] moral grounds” (Wood, 2014, p. 603). These interventions would affirm the state’s objective, namely, to “criminalize immorality” consistent with communal sentiment (Brink, 2012, p. 1). Upholding this juridical obligation by way of consequentialist and deontological justification alone might be warranted, if the empirical science supported the Court’s jurisprudence. However, as we previously explained, this is not the case. Civil commitment, offender registration, and community notification are not scientifically supported as effective post-incarceration sanctions. Thus, when these regulatory practices are ethically affirmed through the Court’s jurisprudential reasoning, they represent tangible expressions of how legal moralism mirrors communal sentiment. That said, and given the evidence-based deficiency on which much of the public’s outrage operates, we therefore are led to question if it is possible to reconcile the relevant science with the current law in the instance of sex offenders, mindful of the Court’s legitimate role and responsibility to embody said sentiment when the public’s conscience rightfully is offended.

Community sensibility steeped in outrage over behavior that is unequivocally morally reprehensible must be personified in a jurisprudence of ethical action (i.e., criminalizing immorality by doing justice). However, the rightness of this outrage can be embodied otherwise through a form of legal moralism that advances a jurisprudence of ethical activism (i.e., criminalizing immorality by being just). This distinction goes to the core of how law and social science can and ought to be reconciled when private behavior deemed morally repugnant by the public justifies and necessitates legal censure by the Court. The judicial condemnation, however, would uphold the safety of citizens while dignifying the civil liberties of offenders, consistent with the existing empirical evidence.

We take the view that the “proper end of the law is the promotion of human flourishing” (Farrelly & Solum, 2008, p. 2). The concept of flourishing is central to virtue ethics (Aristotle, 2000). It implies that the “highest purpose of [everyone’s] existence is to embody eudaimonia (excellence in being), happiness, or a fulfilled life” (Williams & Arrigo, 2012, p. 196). This ethical perspective “seeks to promote a type of human [well-being] that is rooted in reason whereby one’s character is not determined so much by what one does . . . but, instead, is [determined by how much one lives] virtuously” (Arrigo et al., 2011, p. 8). ³ Thus, as a form of legal moralism, virtue ethics addresses the criminalization of immorality by renouncing ethically deplorable behavior while affirming the character of all citizens—regardless of their societal standing or institutional status. Stated differently, acting through honoring the humanity of all parties in dispute (including those involving sex offenders and SVPs) becomes the jurisprudential basis by which to advance a shared virtue-oriented morality regarding unconscionable behavior. ⁴ Thus, rather than depending exclusively on utilitarian interest-weighing principles and Kantian duty-based calculations as drivers to exemplify the community’s conscience, the Court would typify the public’s moral outrage by ensuring that its (the Court’s) intentions and judgments dignified the flourishing of all concerned. This, then, is Supreme Court decision making in which the jurists themselves function as “fully virtuous agent[s]” (Farrelly & Solum, 2008, p. 16).

When regulatory practices (i.e., institutional and community practices of post-incarceration for sex offenders) are endorsed through a form of legal moralism built on a jurisprudence of being just, then doing justice (i.e., criminalizing immorality) requires choice and action that maximizes the well-being of all disputants. As such, the immorality of sex offending must be criminalized through interventions and sanctions that grow rather than diminish the transgressor’s humanity. ⁵ Moreover, when a jurisprudence of ethical activism informs judicial practice as a basis to reflect public outrage, then law and science can and should be reconcilable. This is because virtue jurisprudence criminalizes immorality (i.e., punishes the immoral behavior but does not renounce the unethical person) by relying on evidence-based regulatory practices that foster growth in human character. ⁶ We submit that this is how legal moralism can better serve the interests of public safety, can better honor the civil liberties of individuals, and can better ensure the administration of justice for all.

Conclusion

Incidents of sexual violence are deeply troubling, and they are clearly a source of concern for policymakers and citizens alike. The reprehensible behavior that harms the common sense of decency warrants condemnation, and judicial decision making should rightly reflect such sentiment through the doctrine of legal moralism. The sanctioning of sex offender behavior is one such case in point.

In this article, we argued that the relevant empirical science documenting the limited efficacy of post-incarceration sanctions and the current law affirming their constitutional legitimacy could be resolved, mindful of the Court’s legitimate responsibility to intervene when private behavior offends public morality. We argued that utilitarian ethical principles and Kantian moral reasoning are inadequate drivers for the Court’s jurisprudence because ethical activism (being just; upholding one’s humanity) should be a prerequisite of ethical action (doing justice; punishing one’s behavior). When the Court’s intentions and judgments are informed by this jurisprudential ethic, then the dignity of all is affirmed while the immoral conduct of the offender is rightfully criminalized. Under these conditions, the public’s outrage would be mirrored through judicial action that endorsed evidence-based character-building interventions as the virtuous path to administering justice for/to all.