Let us Not Talk Falsely Now, The Hour is Getting Late: Contrived Diagnoses, Preventive Detention, and Lawlessness

Developing Strategies to Defend the Most Despised; Confronting Institutional Abdication and Indifference to Injustice on Behalf of Sex Offenders

Dennis Feld, J.D. & Arthur Baer, J.D.

I. Background
If... mental abnormality is too imprecise... to offer a solid basis for concluding... civil detention is justified, [the Court's] precedents would not... validate [the statute]." Kansas v. Hendricks, 521 US 346, 373 (1996) (Kennedy, J., concurring). It has been 20 years since Justice Kennedy wrote those words. And after 20 years, it is apparent his words remain unheeded by both State actors, and those tasked to defend our liberties, the courts. Decision after decision, with few exception, have permitted unvalidated, sui generis or rejected diagnoses to be predicates for depriving sex offenders of their liberty, after completion of their sentences, perhaps for the rest of their lives.

In this 20th anniversary year of the Supreme Court's constitutional imprimatur on sex offender civil commitment statutes, we will review the dangerous deterioration of legal limits on civil deprivations of liberty in such proceedings wrought by judicial abdication in upholding the rule of law, which is intended to protect even the most despised. We will trace the use of sex offender civil commitment statutes, and continuing judicial indifference to the use of pretextual and unsubstantiated diagnoses as predicates for confinement. The mechanisms of the descent into preventive detention, in which doctors use contrived diagnoses, masquerading as science, based events from decades earlier, to justify confinement without recent evidence, in effect, shifting the burden of proof, will be considered.

What can be done to ensure predicates to confinement are objective, scientific, and valid, rather than pretextual. How can we advocate on behalf of the unpopular to secure fair and impartial trials and determinations in such cases, for example, to ensure juries are not prejudiced by facts of crimes committed years earlier, but objectively consider whether there is a condition that manifests in loss of control and is legitimately treatable. What are the potential dangers of the continuing use of pretextual mechanisms to justify what in substance is preventive detention.

II. Objectives
This workshop will seek to explore these issues, by analyzing recent example cases in which unsubstantiated, contrived, or even rejected diagnoses have resulted in deprivations of sex offenders' liberty, as well as how the State and trial courts have tried to circumvent even positive judicial precedent. What happened in these cases and what can be done to prevent injustice in future circumstances. These cases will be used to illustrate the problems involved, and to facilitate discussion on what may be done to ensure that civil commitment comports with both the rule of law and justice.

After an initial presentation using case examples, and possible approaches; the workshop will invite participants to share ideas about possible strategies that may be used to curb the use of pretextual diagnoses, unfair prejudice attendant to sex offenders, and to ensure full and fair adjudication of rights, and fair outcomes that comport with the rule of law. Among the areas we will cover are:

III. Legal and Advocacy Strategies
A. Challenging the Use of Contrived Diagnoses, Unwarranted Evidence, and Imprecise Definitions Used to Effect Unconstitutional Preventive Detention.

  1. Using jury instructions to clearly define legal predicates for confinement.
  2. Challenging Unfair Violations of Privacy and Confidentiality Resulting form Using Confidential Treatment Information Against Respondents.
  3. Using motion practice to preclude scientifically unjustifiable, or highly prejudicial evidence.
  4. Challenging unfair prosecution tactics used to play on jury prejudice in derogations of liberty.

B. Invitation to Share Strategies
C. Challenging Public Narratives Demonizing Sex Offenders, and Developing Counter Narratives to Ensure the Rule of Law Limits Unconstitutional Deprivations of Liberty For All Persons.

IV. Learning Goals:
A. Developing Effective Legal Strategies - Understanding the Possibilities for Use of New Legal Approaches
B. Developing Effective Advocacy Strategies - Understanding the Possibilities for Use of New Advocacy Strategies
C. Brainstorming to Begin to Develop An Outline of Long Term Strategies to Confront Institutional Abdication and Indifference, and Ensure the Rule of Law Protect's All Persons, Even the Most Despised Among Us.

Link to brief presenter bios: Dennis Feld, J.D., Arthur Baer, J.D.