Civil Commitment of Violent Sex Offenders thus are committed in accordance with the civil system. Sex offenders, however, fall in between these two categories because they traditionally have been held criminally responsible for their crimes even though a mental abnormality, such as pedophilia, may have influenced their conduct.
The dangers of doing away with the civil-criminal divide would seem clear enough to any true liberal supporter. Yet at least one commentator (Slobogin, 2005) still vehemently argues for the complete and absolute abrogation of this distinction. Instead, he calls for a form of “pure preventive detention" based solely on the prediction of dangerousness. Police Power, Parens Patriae and the Notion of Mental Disorder Weeks (1998), following Schopp (1995), examines two available constitutional justifications for civil commitment, namely, police power and parens patria. Police power justifies preventive detention as a form of social protection. This reasoning runs into difficulties quickly, for a mere estimation of dangerousness becomes insufficient. Preventive detentions remain unconstitutional without a finding of mental disorder. Parens patria reasoning justifies preventive detention for vulnerable, non-responsible individuals who become a threat to themselves or others. Yet, commitment-eligible violent sex offenders have already served their criminal sentences. In their case, parens patriae arguments become all but moot. Concludes Weeks (1998, p.1283): “[B]oth of these theories of state power over individual liberty [police power and parens patriae] fail to provide constitutional justification for civil commitment of sex offenders”. The contradictions for liberal proponents of civil commitment become obvious: If they use police power to justify the preventive detention of violent sex offenders, why require a finding of “mental illness or abnormality”? Individuals deemed dangerous enough for civil commitment would not benefit from mental health treatment anyway. Yet, if they use parens patriae reasoning, how can violent sex offenders continue serving their criminal sentences? Clearly the lack of a conceptually sound and empirically solid definition of mental disorder for legal purposes makes it almost impossible to resolve any of these complex legal puzzles. Fabian acknowledges the following: “A major issue in the civil commitment legislation of sexual predators is the definition of
ETHOS GUBERNAMENTAL
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