The Use of Social Science and Medicine in Sex Offender Commitment

Sex offender commitment statutes are a controversial and recurring response to the threat of sexual violence. These statutes, claiming exemption from the strict constitutional limitations of the criminal law, use civil-commitment-like procedures to detain sex offenders in secure treatment centers. Litigation testing these statutes has sought to locate the border between legitimate exercise of the state\u27s mental health power, and illegitimate preventative detention. This article examines the central roles that medicine and behavioral science play in the operation of sex offender commitment statutes and the litigation testing their constitutional validity. The thesis of this article is that the presence of these sciences in sex offender commitment schemes is central to their claims of validity. It is the systemic, rather than causal or interstitial, presence of science that provides the central pillar in the claim for legitimacy. But the way in which science is used , the pattern of its use and non-use, undercuts those very claims. Sex offender commitment statutes can partially rehabilitative their claims to legitimacy by restructuring their use of science. Part IA of this article describes briefly the operation of sex offender commitment laws, introduces the legitimacy claims they make through the use of science, and sketches how the actual usage pattern of science undercuts those claims. Part IB reviews the literature on the use of science in law, highlighting concepts that are useful in assessing science in the context of sex offender commitment laws. Part II sets out in more detail the way sin which sex offender commitment schemes use and fail to use science. Part III then sets out recommendations for the use of science in sex offender commitments. The article suggests that science can be used to restore some of the legitimacy claimed by sex offender commitments but lost by current practices. It posits that courts lack the knowledge to set meaningful legal standards for sex offender commitments. The article concludes in Part IV by raising a set of cautions about even this use of science in law

Toward a Conceptual Framework for Assessing Police Power Commitment Legislation

Recent litigation and scholarship have begun to focus on the substantive limits of the state\u27s power to use civil commitment as a social control tool. Courts and commentators describe civil commitment as grounded on two powers of the state: the parens patriae interest and the police power. This Article seeks an analytical framework for defining the boundaries of police power commitments in which justification rests on the interests of the public rather than on the interests of the committed individual

“The Worst Idea Ever”: Lessons from One Law School’s Embrace of Online Learning

This essay explores one law school\u27s contrarian and pioneering embrace of online education into the core of its J.D. program, a five-year journey undertaken by William Mitchell College of Law (now Mitchell Hamline School ofLaw). This essay makes a simple point. Online pedagogy ought to be part of the palette of tools available for the design of J.D. programs. But placing it at the core of a J.D. program is not universally to be desired. Like any pedagogy, these online tools have their strengths and their weaknesses. The particular combination of tools and methods represents a question of design: of arranging resources to maximize strengths and minimize weaknesses-within a set of constraints. And the key constraint ought to be the particular mission of each law school. Design in the absence of clarity of mission, and without the availability of the full gamut of instructional methods, is impoverished and suboptimal. An openness to bringing online pedagogy into the core has this salutary effect: it invites, almost requires, intentional, mission-based design. It invites educators to think foundationally about what they seek to accomplish by their J.D. programs, and how that might best be accomplished. It exposes business-as-usual thinking, and forces one to question what seem to be quite foundational assumptions about how to educate lawyers. For this reason alone, online methodologies ought to be clearly and readily available to legal educators. There are strong sentiments opposing substantial incorporation of online components in legal education, many of which I will explore. Not the least has been the historic, robust embrace of face-to-face teaching by the American Bar Association (ABA). As well, online pedagogy, especially if its adoption is part of a major re-design of the J.D. program, is not cheap and not easy. And the uncertainty surrounding many of the design constraints is high. All of this leads me to conclude that only one variety of law school mission is likely to support substantial online incorporation-that with the goal of expanding access to legal education

“Forward” in Recent Developments in Minnesota Law

Introduction to Issue 4 of Volume 34 of the William Mitchell Law Review. The issue has a dual focus. The first part of the issue examines an eclectic collection of Minnesota laws and cases. The issue begins with a retrospective on the opinions of Associate Justice Sam Hanson, then turns to the Law Review’s traditional—and critical—look at selected (mostly recent) Minnesota Supreme Court decisions, and finally scans and audits the state’s animal protection laws. The second part of the issue has a decidedly more international scope, reflecting the robust work of William Mitchell’s Tobacco Law Center, particularly the work product of a symposium on tobacco law held at the College in the fall of 2007

Clinical Teaching at William Mitchell College of Law: Values, Pedagogy, and Perspective

A retrospective celebrating thirty years of clinical education at William Mitchell College of Law. These courses are nurtured by the key principles that have shaped clinical education at William Mitchell. They embrace the profession of law, but insist on a critical stance. They recognize that values define the practice of law, and that only through intentional choice of pedagogy and perspective can values education be effective and respectful of the autonomy of our students as they work to define the sort of lawyers they wish to become

Preventing Sexual Violence: Alternatives To Worrying About Recidivism

How can it be that in the era in which almost one million Americans are on sex offender registries—most of whom are publicly stigmatized on websites, banished from their homes, shunned from their jobs, prevented from uniting with their families and traveling internationally, forced into homelessness, all of which increases their risk for suicide, and shames their spouses and children, even if their offenses occurred long in the past—that the #MeToo movement would explode, revealing widespread sexual misconduct against women, by powerful men, protected by iconic institutions? How can we have had three decades of the most aggressive, “spare-no-expense” laws ostensibly designed to prevent sexual violence and, at the same time, observe the widespread failure of law enforcement agencies to take the simple step of analyzing sexual assault kits, as a first step in the investigation of allegations of sexual abuse? How can these phenomena co-exist? This Article argues that this incongruity is not an ironic coincidence, but rather a flaw that goes to the heart of our contemporary approach to sexual violence prevention. This flaw has, at its core, an almost obsessive focus on recidivistic sexual violence. Understanding this central characteristic will illuminate a framework for an alternative approach to our public policy on sexual violence, one in which the prevention of recidivism plays but a small role in a more comprehensive approach to sexual violence and its place in our culture The flaws in the regulatory intervention policies are not an accidental characteristic, but arise from, and in turn support and protect, the very phenomena underlying #MeToo and the SAK revelations: the cultural attitudes, values and practices that allow sexual violence against women to flourish. Indeed, the thesis is that our aggressive policies are, in a perverse way, designed precisely to protect this aspect of our society—what feminists might call “the patriarchy”—from taking full accountability and responsibility for its role in sexual violence. In this sense, we can say that #MeToo and SAK backlogs persist not in spite of, but in significant measure because of the nature of the aggressive regulatory policies addressed to sexual recidivism

Sex Offender Commitments: Debunking the Official Narrative and Revealing the Rules-in-Use

Sex offender commitment laws present courts with a difficult choice: either allow creative efforts to prevent sexual violence or enforce traditional constitutional safeguards constraining the power of the state to deprive citizens of their Iiberty. Three state supreme courts have deflected this hard choice while upholding sex offender commitment schemes. As part of their official narrative that legitimizes sex offender commitments, the courts claim that society can have prevention and still maintain the primacy of the criminal justice system. This narrative neutralizes the conflict in values by claiming that sex offender commitments are just like mental illness commitments, a small, discrete area of the law unprotected by the safeguards of criminal procedure. This article shows the dissolution of the values reconciliation in these official narratives when courts confront concrete cases and the intense public pressure to lock up sex criminals. Part I of this article explains that sex offender commitments need to be legitimized because they appear to encroach on fundamental American legal values. Part II describes the official narrative that three state supreme courts have developed to justify sex offender commitments. Part III of the article examines the violent public and political reaction to one attempt to implement the legal limitations actually contained in, but never before followed, in Minnesota\u27s official narrative. Part IV uses the corpus of sex offender commitment cases in Minnesota to show that the official narrative is reduced to a legal fiction when the lower courts confront actual cases where the conflict in values must be concretely resolved. Part V argues that the clashing values are too important to be resolved with a false reconciliation. It recommends that courts reviewing sex offender commitment schemes understand how they are actually administered in concrete cases and concludes that the official narrative of sex offender commitments is, to a material degree, fiction