Treatment of Sex Offenders

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K.N. Daly
had largely been a rehabilitative system, but after 1986 it became a punitive system.
Federal drug statutes contained a myriad of mandatory minimums and increased
sentences for many crimes. For nearly 30 years federal judges were largely divested
of their sentencing discretion because of the mandatory federal sentencing guidelines.
State governments shortly began to follow suit. While federal judges regained
portions of their sentencing discretion in 2004 following the United States Supreme
Court’s decision in United States v. Booker ( 2005 ) which declared the sentencing
guidelines advisory and not mandatory, judges are still constrained by mandatory
minimums. In many states state court judges continue to be constrained by mandatory
minimums and sentencing schemes that give them little to no ability to fashion
a sentence that is appropriate based on the individual characteristics of the
defendant.
There was a third force at work which formed the current sexually violent
predator laws. The Civil Rights Movement promoted a switch from indeterminate
to determinate criminal sentencing. The argument was based on the notion that
determinate sentencing would promote sentencing uniformity and therefore promote
equality before the law. Among the initial flaws of early determinate sentencing
schemes was the failure to account for individuals who had lengthy criminal
records. Previously courts had far more discretion in crafting lengthy prison sentences
for individuals who were likely to re-offend, including sex offenders.
Determinate sentencing laws set maximums, often relatively short maximums, for
violent crimes such as rape. Sexually violent predator laws began being passed as a
response to the gaps created by early determinate sentencing laws. Alongside the
passage of sexually violent predator statutes, legislators began setting high mandatory
minima in many cases and adopting new and more stringent indeterminate
sentencing schemes for many classes of crimes.
It was against this backdrop the next generation of sexual psychopath laws was
passed. Regardless of the nomenclature, the purpose of these laws was to fill the
gaps created by the determinate sentencing schemes that were adopted in the past
decade. This time labeled sexually violent predator laws, their popularity gained
rapidly starting in the early 1990s. Between 1990 and 1999 17 states passed SVP
laws. The federal version was added as an amendment to the 2006 Adam Walsh Act
in which neither the United States Sentencing Commission nor the House or Senate
Committee on the Judiciary was consulted prior to passage of the amendment. Since
the passage of the Adam Walsh Act, there have been limited efforts by any state to
pass additional SVP legislation. For the reasons referenced above, the passage of
the Adam Walsh Act has been harshly criticized by both lawyers and judges.
New York was among the most recent states to pass an SVP law when it did so in
2007.
SVP statutes require an individual suffer a prior conviction in order to trigger
SVP proceedings. Common among the list of triggering crimes are rape, spousal
rape, any of a number of child molest crimes, kidnapping, and assault with intent to
commit any of the aforementioned crimes. Some states allow the use of prior convictions
when an individual was a juvenile. While each SVP law is slightly different,
they all share some common features: