Sex law reforms

THE essence of the American criminal justice system is reactive, not predictive – you are punished for the crime you committed. You can’t be punished simply because you might commit one someday. You certainly can’t be held indefinitely to prevent that possibility.

And yet that is exactly what is happening to about 5 000 people convicted of sex crimes around the US.

This population, which nearly doubled in the last decade, has completed prison sentences but remains held in what is deceptively called civil commitment – the practice of keeping someone locked up in an institution for months, years or even decades for the purpose of preventing possible future offences.

The authorities have the power to detain people with mental illnesses or disorders who cannot function independently, or who pose a danger to themselves or others. But since the early 1990s, this power has been used increasingly to imprison one distinct group: sex offenders.

In a decision in June, a federal judge ruled that Minnesota’s civil-commitment law for sex offenders violates the constitution.

A central flaw, District Judge Donovan Frank said, is that Minnesota does not perform reassessments of risk, so the burden lies with the detainees to prove they no longer pose a danger.

Last week, Judge Frank ordered the State to come up with constitutionally valid reforms by the end of September, or he “may demand a more forceful solution”.

Public safety would be better served if resources were directed toward community supervision and other services for those leaving prison, rather than toward skirting the edges of the constitution to keep them locked away.