In 2006, the State of Nebraska adopted legislation that authorizes the civil commitment of convicted sex offenders who are "substantially unable to control [their] criminal behavior" and who "suffer from a mental illness .. .or .. .a personality disorder which makes [them] likely to engage in repeat acts of sexual violence." This legislation, which has its origins in the "sexually violent predator" commitment statutes of Washington and Kansas, authorizes the continuous, indefinite confinement of sex offenders who have completed their prison terms and who do not meet the state's traditional "mentally ill and dangerous civil commitment standard." Courts reviewing the constitutionality of the Washington and Kansas statutes struggled to categorize these unique commitments as "civil" or "criminal" dispositions and could not agree whether the commitments were predicated upon psychological impairments that justify civil deprivations of liberty. The Supreme Court ultimately resolved these controversial questions in favor of the validity of the Washington and Kansas commitment procedures. This Article attempts to explain the difficulty that inheres in classifying convicted sex offender commitments as civil or criminal dispositions and argues that the civil commitment of convicted sex offenders can, under certain circumstances, distort the interrelationship between criminal responsibility and psychological impairment that underlies the basic institutions of criminal justice and civil commitment in the United States. The Article is organized as follows: Part II describes the origins, terms, and controversial features of the Kansas and Washington sexual predator commitment statutes and summarizes key legal challenges that have been raised against those statutes. Part III describes the origins and terms of Nebraska's new sex offender commitment act and compares its terms to those of the Washington and Kansas statutes. It should be noted that this Article does not attempt to argue whether the cases addressing the controversial aspects of the Washington and Kansas statutes will apply with equal force to the Nebraska act; rather, it argues only that the Nebraska act, like the Washington and Kansas statutes, raises concerns about the proper functions of criminal punishment and civil commitment. Part IV briefly recounts the test employed by the Supreme Court to distinguish civil deprivations of liberty from criminal deprivations of liberty and outlines an alternate analytical framework that is consistent with the American institutions of civil commitment and criminal punishment. This framework, which is based upon the expressive function performed by criminal punishment, is then applied to convicted sex offender commitments, and the manner in which the most controversial of these commitments distort the distinction between criminal and civil sanctions is illustrated. Part V concludes the Article.
Marc W. Pearce,
Civilly Committing Criminals: An Analysis of the Expressive Function of Nebraska's "Dangerous Sex Offender" Commitment Procedure,
85 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol85/iss3/2