Civil Commitment And The Criminal Law
To understand how sex offender commitment laws are situated in American jurisprudence, one must understand the two sets of intersecting concepts that describe the exercise of governmental power to deprive individuals of their liberty. These concepts describe the sources of the power and the modes in which it is exercised. The sources of governmental power are two: The police power authorizes the state to act to protect the general health, safety, and wellbeing of the society. The criminal law and public health regulations are two classic examples of police power interventions. The parens patriae power authorizes the state to protect individuals who are unable to help themselves. Guardianship laws and some civil commitment laws have parens patriae justifications.
The power is exercised in two modes. The criminal mode is exercised with an intent to punish. It is retrospective in the sense that the deprivation of liberty is tied to a past act (actus reus) for which the individual is blameworthy (done with mens rea, a guilty mind, and not excused by an insane mind). Criminal intervention can have a preventive aspect (incapacitation), but it must be governed by the principle of desert, that is, the incarceration must be triggered by a blameworthy act (dangerousness alone is not enough) and the level of intervention may need to be roughly proportional to the blameworthiness of the individual. Criminal interventions require the most stringent procedural standards (e.g., proof beyond a reasonable doubt) and invoke a unique set of rights and immunities (e.g., right against self-incrimination, no ex post facto punishment, no double jeopardy).
Governmental intervention that is civil, in contrast, emphasizes a prospective view, seeking to protect against some future harm. Civil intervention, of course, considers past behavior. However, since blame and guilt are hallmarks of punishment, courts emphasize that the past is relevant not to demonstrate guilt or blame, but rather to serve as an evidentiary foundation for diagnosis or prediction. Civil interventions require only moderate procedural protections (e.g., proof by "clear and convincing evidence") and do not trigger the full panoply of rights and protections (e.g., individuals may be forced to testify against themselves, ex post facto, and double jeopardy protections do not apply).
Contemporary sex offender commitment laws are civil interventions that are not based on the parens patriae power because they are not addressed to offenders who are incompetent. Sex offender commitments address conduct that has traditionally been the province of the criminal justice system. They thus raise a difficult question of law and social policy: What are the permissible boundaries of civil commitment where its sole justification is the police power? To what extent, if at all, can civil commitment address behavior that is also subject to criminal justice intervention?