by Eric S. Janus. Ithaca & London: Cornell University Press, 2006. 208pp. Cloth. $35.00. ISBN: 9780801443787.
Reviewed by Thomas L. Hafemeister and Amy Woolard, School of Law, University of Virginia.
Eric Janus begins FAILURE TO PROTECT: AMERICA’S SEXUAL PREDATOR LAWS AND THE RISE OF THE PREVENTIVE STATE much in the same way that sexual predator laws typically begin, namely, with a victim’s story, but he reaches a very different conclusion. Dru Sjodin’s picture was a recurrent feature of many national newscasts in the months following her disappearance in late 2003. A young, attractive co-ed finishing her studies at the University of North Dakota, Sjodin was kidnapped as she walked in the early evening to her car parked at a North Dakota shopping mall. Although Alfonso Rodriguez, Jr. was ultimately convicted and given a death sentence for Sjodin’s abduction, sexual assault, and murder, it was widely noted that seven months earlier Rodriguez had been released from prison where he had been held for twenty-three years as a repeat sex offender.
Janus describes the resulting political backlash as understandable but misguided. There was a general outcry that Sjodin’s fate, and others like hers, could and should have been prevented. Rodriguez was labeled a “sexual predator” and calls were renewed to use modified civil commitment laws to place such individuals in secure facilities – for the rest of their lives if possible – to fill a perceived gap in the criminal justice system. These increasingly popular sexually violent predator (SVP) civil commitment laws, now approved in twenty states, typically authorize the civil commitment of persons who, due to a “mental abnormality” or “personality disorder,” are likely to engage in “predatory acts of sexual violence.” These laws are primarily designed to place inmates completing their prison sentences for a sexual offense in a secure facility long after their sentence has ended.
Janus decries the use of this mechanism for three primary reasons. First, these laws distort society’s understanding of the real nature and scope of sexual violence, which he characterizes as a public health crisis, and divert attention from a more rational response to it. Second, they facilitate a dehumanizing portrayal of these offenders as the worst of the worst that justifies society’s failure to implement alternative efforts that can better prevent such crimes by diminishing the level of sexual violence in our culture. Third, they “introduce dangerous principles into the sensitive balance between liberty and security” (p. 24), which undercut and bypass normal constitutional constraints on the government’s ability to confine individuals because of possible future dangerous acts.
Distortion of the Nature and Scope of Sexual Violence
Willing to travel unpopular ground, Janus argues that the headline-grabbing stories of victims like those of Dru Sjodin, Megan Kanka (the inspiration for the sex offender community registration and notification measures known as “Megan’s laws” now found in all fifty states), Jessica Lunsford, and Sarah Lunde, among others, distort the public’s perspective of the nature of sexual violence in the United States. While these crimes are undeniably heinous, Janus documents that these events are far rarer than media accounts represent and that these accounts fail to address the greater societal problem of sexual violence in general.
Janus asserts that these accounts create an inaccurate image of the archetypal sex offender, namely, a career criminal previously unknown to the victim who is driven by uncontrollable urges. As he points out, however, the data indicate that (1) sexual homicides are extremely rare; (2) sexual violence is predominantly committed by relatives or acquaintances, not strangers; (3) sexual violence is ubiquitous with many sexual reports never reported (although a sex offense by a stranger is far more likely to be reported); (4) sexual violence is not random but is mainly directed at the young and at people the offender knows; (5) most sex crimes are committed by people who have never been convicted of a violent offense, and most released convicted sex offenders are not arrested for a new sex crime; and (6) a lack of self-control is characteristic of most criminals with most crimes being impulsive actions, as well as of large portions of society in general, where people have serious difficulty controlling their smoking, alcohol or drug use, gambling, eating, and the like, and thus provides little rationale for the “ritual exiles” of this population.
Failure to Implement Alternative Efforts That Can Better Prevent Such Crimes
Janus further contends that these SVP civil commitment laws shift public focus and public funds to the “stranger” rapist-murderer, which has become society’s “bogeyman” but which represents a relatively small and virtually impossible to prevent aspect of the greater sexual violence problem. Janus argues that this attention and these funds would be better spent on the far more widespread but less media appealing issues of domestic partner sexual abuse, intra-familial child sexual abuse, date-rape, and other less sensational but highly injurious crimes that may, with the right approach, actually be preventable. Janus also suggests that focusing on confining the sexual predator gives the public a false sense of security from sexual violence and erodes efforts to recognize and combat how societal attitudes facilitate more pervasive forms of sexual abuse.
Furthermore, Janus provides a cost-benefit analysis that strongly suggests that the extraordinary funding of these commitments flies in the face of common sense. He reports that the average annual cost to house and treat one SVP is $75,000. He adds that estimates for the total national cost for the then sixteen existing SVP commitment laws ranged up to $320 million, which did not include the one-time litigation costs for new [*328] commitments (estimated at up to $100,000 per case) and the capital costs of constructing confinement facilities (with one state’s estimate being $69 million). A 2007 survey by the NEW YORK TIMES found that the total SVP civil commitment budget for the eighteen states for which data were available was $446.8 million (Goodnough and Davey 2007). Janus projects that within the next decade the annual national expenditure on SVP commitments will be $750 million to $1 billion. These expenditures, however, only pay for the incarceration of about three thousand offenders. Further, SVP civil commitment confines only 3-12% of sexual recidivists and can be expected to confine only 0.4-1.7% of the individuals who would otherwise be convicted of sex offenses each year.
In contrast, Janus notes a lack of correctional treatment programs for sex offenders, cut-backs in parole services for released sex offender inmates, and a failure to appropriate adequate funding for programs that will reduce the level of sexual violence in general and provide a needed continuum of interventions. Janus asserts that the limited public funding available would be far better spent on more effective preventative measures that address the wider problem of sexual violence.
Subverting the Balance Between Liberty and Security
Civil commitment laws, argues Janus, cement the idea of the sex crime as stranger violence and the sex offender as a mentally ill deviant who cannot control his own behavior. The result is that society is willing to relax its protections of liberty and override criminal justice safeguards if it means certain “monsters” are locked away for good. Further, Janus contends that cordoning off the “stranger-danger” sex crimes results in a failure to identify and address the causes of sexual violent and prevent sexual violence before it happens.
Janus worries that SVP civil commitment laws, which hinge upon ably identifying potential dangerousness, are a harbinger of an increasingly “preventive state.” Janus draws apt comparisons to the detainment of suspected terrorists in the post-9/11 United States. Both groups are confined for their perceived risk of future dangerousness, rather than for their past criminal actions. He argues that those who would celebrate the distance United States law has traveled from decisions like BUCK v. BELL (1927), which upheld mandatory sterilization of individuals with a mental disorder, and KOREMATSU v. UNITED STATES (1944), upholding the internment of citizens of Japanese ancestry during World War II, need only look to the USA Patriot Act, passed in 2001, to understand that this country is not yet beyond providing a reduced-rights status to certain disfavored groups, or what Janus refers to as the “degraded other.”
Janus also notes that many additional types of legislation have historically been enacted to identify “dangerous” people and restrain their liberty before they can do harm. Among the examples he sites are racially discriminatory laws, including the “separate but equal” laws targeting blacks, broad-sweeping [*329] vagrancy and anti-loitering laws, and criminal sanctions for being an alcoholic or a drug addict. Janus asserts that “the idea that our laws may pick out a disfavored group of others for specially disfavored treatment in the law has been all but eliminated” (p.97) but argues that these limits were hard won and are potentially fragile.
Legislatures and courts that have sanctioned the commitment of sex offenders must do so in the name of “treatment” rather than punishment to pass constitutional muster. However, organizations such as the American Psychiatric Association and the National Association of State Mental Health Program Directors have categorized these laws as a “misuse” of civil commitment, noting that often no meaningful treatment exists or is provided for many of those who are detained. Janus adds that (1) the range of mental disorders that justifies SVP commitment has generally been broadened to encompass personality disorders, even though this is not typically a sufficient basis for civil commitment in general; (2) the treatment services provided in conjunction with SVP civil commitment are of questionable efficacy, and it is far more difficult to achieve release back into the community following SVP civil commitment; and (3) current dangerousness, a requirement of civil commitment in general, can be based on an inmate’s prior conviction of a sexual offense, even when a relatively long period of time has elapsed since the crime, or a questionable prediction of future dangerousness. Although the United States Supreme Court in KANSAS v. HENDRICKS (1997) upheld the constitutionality of the prototypical Kansas Sexually Violent Predator Act, it is worth noting that Justice Kennedy’s pivotal concurring opinion warned that if the object of such a law is to provide treatment but the treatment provided is a sham or mere pretext, the law would violate constitutional protections.
Registration and Community Notification and Other Legislative Actions
Janus also describes with concern a related step taken in response to the perceived threat posed by violent sexual predators. For example, he notes that although all states have some form of a sex offender registry and community notification (i.e., a Megan’s law), the routine underfunding of these mechanisms impairs delivery of their clearest benefit, namely, the provision of useful information so people can take meaningful measures to protect themselves. One national study concluded that states on average were unable to account for 24% of offenders supposed to be in these databases. With 603,245 registered sex offenders in the United States at the end of 2006 (National Center, 2007), this study suggests that accurate information on the location of nearly 145,000 registered offenders is unavailable.
Janus also comments that the value of this mechanism is challenged by research indicating that (1) six out of seven sexual assaults are committed by people who are not previously convicted sex offenders and thus are not subject to [*330] community registration and notification, (2) roughly half the states do not perform an individualized assessment of each sex offender’s future risk, as a result including individuals on the list who may pose little if any risk to others, (3) many of these schemes do not provide any practical advice to citizens about how best to protect themselves, and (4) this approach is overbroad as the vast majority of victims of sexual assault are related to or are already acquainted with the person who assaults them. Furthermore, inclusion on these lists can make it extremely difficult for listed individuals to obtain a job or a place to live, which are vital steps for a reintegration into the community, and few treatment or support programs are provided to facilitate this reentry, which ironically may place the community at greater risk.
Janus also notes that many states and locales now have provisions banning registered sex offenders from living within a specified distance of schools, parks, daycare centers, and other places where potential victims may congregate. He cautions, however, that the dedication of extensive but scarce police resources are needed to enforce such provisions at even the most basic level but which are then not available to respond to other societal needs such as preventing sexual violence in general. Plus, offenders may find themselves unable to find housing in any acceptable area, leading many to go “off the grid” when they fail to re-register or disappear to neighboring states, thereby further diminishing the value of such registries.
Although comprehensive in its scope, there are some limitations to Janus’ treatise. First, although he should be credited for providing an extensive review of relevant research on sex offenders and sexual violence, as a law professor it is perhaps to be expected that his focus is the legal and public policy ramifications of SVP commitment laws and related enactments. His review of the literature on sex offender treatment, however, is relatively cursory. For a more extensive review of available treatment modalities within the context of a discussion of the laws in this country designed to monitor and control sex offenders, see Shajnfeld & Krueger (2006). Similarly, Janus’ review of risk assessment and related instruments and their reliability when applied to this population is relatively brief. For an analysis of the use of the increasingly popular construct of psychopathy and associated measures to assess future risk, see Kolbe (2007). For a review of violence risk assessment in general, see Monahan (2006).
In addition, Janus could have noted that civil commitment in general has historically been used to confine and control unpopular or disfavored groups (Appelbaum, 1994). Furthermore, mental illness per se tends to engender stigma and potential discrimination. As a result, certain procedural protections are employed to ensure that the civil commitment of individuals with a mental illness is limited to individuals truly in need of care and treatment. In much the same way that calls for increased SVP civil commitment have been driven by well-publicized tragic [*331] events, similar events where an individual with a mental illness has attacked others, typically after a loved one unsuccessfully sought mental health services for the individual, have stimulated calls to expand the availability and reach of civil commitment in general as well (Zdanowicz, 2006). Although Janus’ analogizing SVP civil commitment to the detainment of suspected terrorists is valuable, it would have been of interest to learn whether he, an expert in this field, finds efforts designed to pressure individuals perceived to be in need of mental health treatment to accept this treatment – including expanding the criteria for civil commitment in general, enhancing the availability of out-patient commitment, increasing the use of psychiatric advance directives, and establishing mental health courts – also reflect efforts to control a disfavored and what may be perceived to be a threatening group within an increasingly “preventive state.”
Finally, Janus vigorously argues that efforts to enact SVP commitment laws reflect a conservative agenda to undercut feminist assertions about the prevalence and causes of sexual violence, including their position that sexual violence is used to maintain the oppression of women. According to Janus, “[t]he predator laws arrived just in time to provide conservatives with a Trojan horse, a stealth vehicle for pushing back against the ‘tidal wave’ of change wrought by the women’s movement” (p.87). Janus asserts that the predator laws (1) resurrect the archetypal sexual offense as stranger violence, (2) reemphasize the model of a sexual offender as a person with a mental disorder who lacks the ability to control his sexual impulses, and (3) diminishes the need to address the contribution of traditional community values and attitudes to the occurrence of sexual violence. While a provocative and intriguing thesis, this argument has the unfortunate potential of engulfing his other important assertions within the cultural wars that have polarized and immobilized efforts to resolve other important societal issues, ranging from abortion to end-of-life decision making. As Janus acknowledges, calls to enact SVP commitment laws are typically bipartisan once a tragic event has unfolded. Furthermore, conservatives in this country have for some time sought to advance a law-and-order agenda, as reflected for example by the explosion of the prison population and the wide enactment of “three-strikes” laws. As Janus notes, calls for SVP civil commitment readily fall within this agenda as well. Janus has more than sufficient bases for his critique of SVP commitment laws without framing them within an ideological argument that may ultimately undercut his ability to promote his goal.
Janus warns that when people mistakenly come to believe that sexual violence is limited to sexually violent predators who can be readily identified and controlled, legislators feel obliged to answer by introducing SVP civil commitment and related bills. The implicit message associated with these bills is that once they are in place, the public will be adequately protected. [*332] SVP civil commitment laws seek to legislate away the public’s fear of sexually violent crime by embracing an “out of sight, out of mind” approach. When these enactments follow a particularly monstrous crime, as they usually do, the legislative response is often swift, leaving little room for reflection, discussion, or research. Megan’s law was enacted in New Jersey less than three months after the death of Megan Kanka. Florida’s Jessica Lunsford Act, which increased minimum sentences for sexual offenses against children and requires offenders to be closely tracked upon release, was enacted in thirty-two days. After all, as Janus notes, no one wants to be the state representative who votes “for” violent rapists and pedophiles over the safety of children.
Janus does see some value in sexual predator laws in that they “give loud expression to our collective disapproval of sexual violence” and “empower victims and other innocent members of society [to give] voice to their hurt and their fears” (p.145). However, he contends that these laws fail to address the systemic conditions that foster sexual violence in our culture, with the result that these crimes will continue to occur relatively unabated. Ultimately, Janus advocates for a policy that casts sexual violence as a public health crisis that demands a more effective community response. By redirecting the exorbitant sums that support the few violent sex offenders being housed in state-funded SVP civil commitment facilities, Janus suggests that more appropriate options can be explored and implemented. Further, by broadening our focus and presenting the public with more realistic accounts of the problems that exist, he effectively asserts we can better redress the plight of the thousands of nameless victims who will suffer through crimes that do not even make the local police blotter, much less the evening news.
Appelbaum, Paul S. 1994. ALMOST A REVOLUTION: MENTAL HEALTH LAW AND THE LIMITS OF CHANGE. New York: Oxford University Press.
Goodnough, Abby, and Davey, Monica. 2007. “A Record Of Failure At Center For Sex Offenders.” THE NEW YORK TIMES, (Mar. 5, 2007). Available at http://www.nytimes.com/2007/03/05/us/05civil.html?em&ex=1173330000&en=30270e8fc8f37b62&ei=5070.
Kolbe, Vanessa L. 2007. “A Cloudy Crystal Ball: Concerns Regarding The Use Of Juvenile Psychopathy Scores In Judicial Waiver Hearings.” 26 DEVELOPMENTS IN MENTAL HEALTH LAW 1-25.
Monahan, John. 2006. “A Jurisprudence Of Risk Assessment: Forecasting Harm Among Prisoners, Predators, And Patients.” 92 VIRGINIA LAW REVIEW 391-435.
National Center for Missing and Exploited Children (visited on Mar. 9, 2007). “Registered Sex Offenders In The United States.” Available at http://www.missingkids.com/en_US/documents/sex-offender-map.pdf. [*333]
Shajnfeld, Adam, and Krueger, Richard B. 2006. “Reforming (Purportedly) Non-Punitive Responses To Sexual Offending.” 25 DEVELOPMENTS IN MENTAL HEALTH LAW 81-99.
Zdanowicz, Mary T. 2006. “Dealing With The Dangerously Ill: Maryland And Virginia Offer Little Defense.” WASHINGTON POST, p. B08, (May 21, 2006). Available at http://www.washingtonpost.com/wp-dyn/content/article/2006/05/19/AR2006051901362_pf.html.
BUCK v. BELL, 274 U.S. 200 (1927).
KANSAS v. HENDRICKS, 521 U.S. 346 (1997).
KOREMATSU v. UNITED STATES, 323 U.S. 214 (1944).
© Copyright 2007 by the authors, Thomas L. Hafemeister and Amy Woolard.