The Rise of the Preventive State

Galen Baughman’s essay is a cogent rebuke to the badly misguided bevy of laws claiming the mantle of sexual violence prevention. And David Prescott adds the evidence-based critique of an expert in the field of sex offender treatment. This response supplements those two arguments, focusing on the constitutional issues and broader public policy implications of this form of preventive detention.

These sexually violent predator (SVP) laws are not only un-American, violating the sacred rights we have fought to establish over two centuries; they are bad policy, distorting what should be a vigorous, evidence-based fight against sexual abuse and sexual violence.

The indictment against these laws is not simply that they smash the liberty interests and destroy the lives of kids, like Galen Baughman himself, whose adolescent libidos and developing brains fail to set the right limits. The fundamental damage these laws do is not simply a result of their overbreadth. In fact, many of the men who are confined under these laws are indeed psychopathic predators who lack the controls and conscience that characterize normal human beings. They are people who have done great damage to others, and might do so again.  But these laws nonetheless deeply distort our societal project to reduce sexual violence, while returning us to a corrosive and expandable “outsider jurisprudence” that justifies the imposition of a “reduced-rights” zone on the outsider group du jour. They lay the legal groundwork for a “preventive state.”[1] We should be very afraid of these laws.

The idea that we should take all possible steps to prevent the “next” sex crime is very seductive. In the late 1980s, recidivist sex crimes took on a special salience. The feminist movement raised awareness about violence against women and children, and the earlier demise of indeterminate sentencing had robbed correctional officials of the ability to prevent the release of offenders deemed likely to reoffend. Constitutional limits on double jeopardy prevented retroactive lengthening of prison sentences. In that context, the civil commitment model provided a ready vehicle for preventive incarceration of offenders deemed “too dangerous to release” in a legal context free of the confining constraints of the criminal justice system.

Political realities, as well as Supreme Court decisions, required cabining this preventive detention scheme. After all, our republic was founded on the notion of limited governmental power; at the core of potential tyranny is the state’s power to take our liberty. The web of constitutional constraints on that power, hard won over two centuries, would be meaningless if government could escape, at will, the strict rules of the criminal law simply by calling incarceration civil treatment.

Stripping away the legalese, the civil commitment rubric offered a framework for confining this un-American pre-crime legislation to a group of despised outsiders. The target for this preventive confinement was defined as the mentally disordered sexual predator, a “type” of individual so lacking in the normal human attributes as to be outside of the “we the people” who are entitled to the full protections of the Constitution. As further protection for the general polity, these new sexually violent predator laws were presented as an emergency stop-gap, a short-term remedy for inadequate criminal punishments of sex crimes.

The new laws thus seemed an acceptable expedient to address the rising chorus of feminist concern about violence against women. They also struck a chord in the culture wars of the early 1990s. Aspects of the feminist agenda were deeply troubling to social conservatives. Supported by new and authoritative social science research, feminists argued that violence against women was not aberrational, but systemic, allowed to flourish by widespread and deeply seated attitudes about women. By construing the paradigmatic sex offender as a deranged outsider, the SVP laws seemed to confirm the social conservative view that the problem is not within us, but outside of us, and that we could acquit ourselves of our feminist-inspired obligation to address sexual violence without the need to dismantle the set of values that feminists labeled patriarchy. SVP laws promised to identify the “worst of the worst” and banish them from our midst. Mission accomplished.

The SVP project, now 25 years old, has not been a short-term expedient. It has grown to 20 states plus the federal government. Its use has not dwindled, despite a radical (and not inappropriate) increase in penal sentences for sexual violence. It has become an attractive and irresistible tool of state control.

Yet reversing course and dismantling SVP laws is important for four key reasons:

• The SVP laws reinvigorate a dangerous “outsider jurisprudence.” The SVP laws are built on a long-standing but shameful aspect of American liberal democracy: full civil-personhood – entitlement to all of the freedom and liberty guaranteed in the constitution – is unavailable to those outside of “we the people.” Our original Constitution countenanced slavery; the Dred Scott decision explicitly excluded Americans of African-descent from civic personhood. In Buck v. Bell the Supreme Court approved forced sterilization for “imbeciles,” and the Court upheld Japanese internment as a racially based judgment about loyalty. But the moral arc of constitutional history has slowly but surely dismantled the notion that outsiders could be relegated to a reduced rights zone. The SVP laws are a serious setback to that progress.
• The SVP laws distort sexual violence policy. SVP laws strengthen policies that are counter-factual, distaining evidence-based approaches to reducing sexual violence. SVP laws legitimize the idea that the archetypal sex offender is a mentally deranged stranger. Yet the evidence shows that the great majority of sexual violence is perpetrated by individuals known to the victim, without aberrational psychological makeup. SVP laws incorrectly define the problem as recidivist sex violence. Yet most sexual violence is not recidivist sexual violence: by far the largest number of sexual offenses are committed by individuals who have not been previously convicted of a sex offense. SVP laws suck up the vast majority of sexual violence prevention resources, and (as Prescott’s essay suggests) recent research suggests that SVP laws lower recidivism rates only marginally and the incidence of sexual violence imperceptibly. Yet other proven means of sexual violence reduction are underfunded, and broad primary prevention programs lack funding for development, evaluation, and best-practices dissemination. Systemic, evidence-based policies would likely reduce sexual violence much more efficiently and effectively than SVP laws.
• In practice, SVP laws are not strictly governed by the rule of law. Instead, their implementation has been highly discretionary, influenced by the vagaries of politics. In Minnesota, commitment rates vary significantly by geography and have been radically influenced by politics. Political imperatives have trumped professional judgment, all but eliminating any possibility of even conditional discharge in most state programs. Significant proportions of the committed population are people whose only sexual offending was when they were adolescents, and, at the other end of the spectrum, elderly and infirm individuals whose risk could be managed adequately in the community. Appellate courts have abdicated their obligations to police the boundaries of pre-crime detention, hiding behind doctrines that substitute unguided discretion for transparent legal rules, and delegating important normative decisions to opaque opinions of forensic psychologists.
• SVP laws shift the focus of social control from guilt to risk. These laws allow total deprivation of liberty without the long list of constitutional limits governing criminal punishment. Guilt-based decisions treat defendants as human beings capable of free will. Risk-based decisions, on the other hand, are either guesses, or they are based on statistical profiling. To be sure, there have been scientifically based advances in risk assessment. But, at best, risk assessments are predictions based on the historical behavior of groups who share salient characteristics.  

The danger of risk-based incarceration laws runs deep. Risk-based preventive detention eschews the inherent limits that protect us against government overreaching in the criminal justice system. Criminal punishment cannot be imposed without guilt, a binary condition. But risk is a continuous variable. Once the principle of risk-based incarceration is established, there is no inherent stopping point defining the limits of preventive detention. The logic of risk is expansive. Criminal justice police work is focused on crime detection and criminal apprehension. State attention is triggered by the commission of a crime, and by probable cause that an individual is connected to that crime. But in risk-based systems, the net of surveillance must expand by orders of magnitude. If the object is to find those at risk of committing a future crime, the net of the state must be cast broadly. Big data is the realm of risk-based intervention.

Perhaps some of us are reassured that the pre-crime incarceration ordered by the SVP laws is ok because these laws only incarcerate sex offenders, and only the “worst of the worst.”  

But nothing in the legal theory upholding SVP laws guarantees those limits. As Justice Alan Page of the Minnesota Supreme Court said, “Today the target is people who are sexually dangerous. Which class of people, who are different from us and who we do not like, will it be tomorrow?” In the end, it is the replicability of the outsider jurisprudence, the new legitimacy it receives, and the expandability of “risk,” that constitutes the enduring danger of the SVP laws.