Fordham Urban Law Journal
This article addresses a paradigmatic risk-based collateral sanction, the so-called civil confinement. In contrast to many other collateral sanctions, it does not follow automatically but is judicially imposed following a hearing. In Hendricks v. Kansas (1997) the Supreme Court specifically upheld involuntary confinement following a criminal justice sentence for a sexually violent predator. The Kansas statute mandated confinement based on an assessment of dangerousness which had to result from a mental abnormality. Once it characterized the sanction as civil, the Court concluded that procedural protections traditional in the criminal context, such as double jeopardy, do not apply. The narrow majority opinion continues the uneasy relationship between civil and criminal sanctions and fails to provide a coherent picture of how the two should be conceptualized. The German Sicherungsverwahrung, while not without its critics, may provide a more satisfying blueprint for accommodating goals of punishment and risk considerations. Sicherungsverwahrung - confinement based on security concerns - is imposed at sentencing on serious violent offenders who are found to constitute a high risk of re-offending. During this confinement period, the offender is to be treated and rehabilitated. For that reason Sicherungsverwahrung generally precedes incarceration so that the explicitly penal part of the offender's sentence can continue the rehabilitative treatment but allows for the traditional sentencing focus on retribution and deterrence. The imposition of Sicherungsverwahrung at sentencing acknowledges the connection between the criminal offense and the confinement which is downplayed in U.S.-style civil confinement. At the same time, it mandates rehabilitation and accomplishes the goals of the criminal justice system without creating uncomfortable sentence dislocations. While this article will highlight the problems with Sicherungsverwahrung, it supports it as a more honest approach to accomplishing the goals of sentencing while protected public safety.
Nora V. Demleitner, Abusing State Power or Controlling Risk? Sex Offender Commitment and Sicherungverwahrung, 30 Fordham Urb. L. J. 1621 (2003).