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The Evil That Men Do

Perverting Justice to Punish Perverts

As a society, we are revolted at repeated, sexual, violent conduct perpetrated against women and children. States enacted sexual psychopath legislation years ago to address the problem. That answer proved inadequate and was abandoned. But the problem persists. Within the last decade, states began enacting sexually violent predator (SVP) legislation as a new, and politically popular, solution. Typically, after an individual identifiable as an SVP serves a criminal sentence, he is subjected to civil commitment and detained indefinitely. In Kansas v. Hendricks, 521 U.S. 346 (1997), by the narrowest of margins, the Supreme Court upheld the Kansas SVP statute against several constitutional attacks. With this Supreme Court imprimatur, SVP legislation has become the wave of the present. Many scholars have asserted that the Supreme Court wrongly decided Hendricks and that SVP legislation is unconstitutional. Professor Morris reviews their arguments and concludes that after Hendricks, they are not likely to succeed. Professor Morris notes, however, that the Supreme Court did not consider an equal protection attack on SVP legislation. He explains why an equal protection challenge claiming that SVPs are similarly situated with other civilly committed patients is likely to fail. Nevertheless, Professor Morris asserts that a properly framed equal protection claim could and should succeed. He explains why, based on other Supreme Court decisions, SVP legislation impermissibly discriminates against sentence-expiring convicts, incompetent criminal defendants, and nondangerous insanity acquittees by exempting from SVP commitment other individuals who are equally mentally disordered and dangerous. * Professor of Law, University of San Diego School of Law; Clinical Professor, Department of Psychiatry, School of Medicine, University of California, San Diego.

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