Skip navigation
CLN bookstore

Assessing the Real Risk of Sexually Violent Predators: Doctor Padilla's Dangerous Data, Tamara Rice Lave and Franklin E. Zimring, 2018

Download original document:
Brief thumbnail
This text is machine-read, and may contain errors. Check the original document to verify accuracy.
ASSESSING THE REAL RISK OF SEXUALLY VIOLENT PREDATORS:
DOCTOR PADILLA’S DANGEROUS DATA

Tamara Rice Lave* and Franklin E. Zimring**
ABSTRACT
This Article uses internal memoranda and emails to describe the efforts of the
California Department of Mental Health to suppress a serious and well-designed
study that showed just 6.5% of untreated sexually violent predators were arrested
for a new sex crime within 4.8 years of release from a locked mental facility. The
Article begins by historically situating sexually violent predator laws and then
explains the constitutionally critical role that prospective sexual dangerousness
plays in justifying these laws. The Article next explains how the U.S. Supreme
Court and the highest state courts have allowed these laws to exist without requiring any proof of actual danger. It then describes the California study and reconciles its findings with those of a well-known Washington study by explaining the
preventive effects of increasing age. Finally, the Article explains how these results
undermine the justification for indeterminate lifetime commitment of sex offenders.
INTRODUCTION
This Article on sexually violent predator (SVP) laws will partake in two traditional
modes of legal scholarship: constitutional doctrinal analysis and the application of
empirical research to those doctrines. But it is also a narrative of legal and political
events that help capture what we consider our legal system’s egregious mishandling
of the SVP issue, and, as we will elaborate below, the narrative will center on one
great unresolved mystery: why a crucial piece of empirical research that could have
corrected the system’s misapprehension of the dangers of SVPs was suppressed.
In the late 1980s, citizens from the state of Washington were galvanized by horrific crimes committed by repeat sex offenders.1 The legislature responded to the
mounting pressure by passing the first SVP law in 1990.2 The law ordered the
* Professor of Law, University of Miami. This Article has benefited enormously from the insightful
comments and suggestions of Bob Weisberg, Brandon Garrett, Eric Janus, John Monahan, and Nick Petersen.
We are also grateful to Toni Mendocino for her tireless administrative support and Nicole Chipi for her excellent
work in researching and compiling Appendix 1. Finally, we thank the editors at the American Criminal Law
Review for their careful editing. © 2018, Tamara Rice Lave and Franklin E. Zimring.
** William G. Simon Professor of Law, University California of Berkeley School of Law.
1. Barry Siegel, Column One: Locking up ‘Sexual Predators’: A Public Outcry in Washington State Targeted
Repeat Violent Sex Criminals. A New Preventative Law Would Keep Them in Jail Indefinitely, L.A. TIMES (May
10, 1990), http://articles.latimes.com/1990-05-10/news/mn-1433_1_sexual-predator.
2. Michael G. Petrunik, Managing Unacceptable Risk: Sex Offenders, Community Response, and Social Policy
in the United States and Canada, 46 INT’L J. OFFENDER THERAPY & COMP. CRIMINOLOGY 483, 492 (2002).

705

Electronic copy available at: https://ssrn.com/abstract=3202538

706

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

indefinite commitment of persons deemed to be sexually violent predators3 after
they had completed their maximum prison term. To qualify, a person must have
been convicted (or found not guilty by reason of insanity) of at least one prior
crime of sexual violence and must currently suffer from a mental abnormality or
personality disorder that makes him likely to engage in future predatory acts of
sexual violence.4 Currently, twenty states5 and the federal government6 have laws
calling for the involuntary civil commitment of SVPs. As of 2016, there were
5,355 persons committed as SVPs across the country with an additional 1,001
detained pending commitment.7
SVP laws allow the state to use civil law to lock people away in what constitutes
the functional equivalent of punishment. They are forced to reside in a secure facility
with armed guards.8 In Kansas, for instance, SVPs are housed in a maximum-security
facility operated by the Department of Corrections, and they share dining, shower,
and recreation facilities with the general inmate population. SVPs are not free to leave
and are subject to important limitations regarding diet, visitors, and activities. Most
significantly, they have no idea when, or if, they will ever be released.9
Because SVP laws are specifically targeted at those who have served their maximum prison sentence, the classification of these laws as civil or criminal is critical.
The Fifth and Fourteenth Amendments bar the state from punishing a person twice
for the same crime, and so if the law were criminal, it would constitute an impermissible second punishment.10 If the law is civil, however, the state may continue

3. See WASH. REV. CODE §§ 71.09.020(18), 71.09.040 (2017).
4. ROXANNE LIEB, WASH. STATE INST. FOR PUB. POLICY, WASHINGTON’S SEXUALLY VIOLENT PREDATOR
LAW: LEGISLATIVE HISTORY AND COMPARISONS WITH OTHER STATES 2 (1996).
5. Arizona, California, Florida, Illinois, Iowa, Kansas, Massachusetts, Minnesota, Missouri, Nebraska, New
Hampshire, New Jersey, New York, North Dakota, Pennsylvania, South Carolina, Texas, Virginia, Washington,
and Wisconsin. For a detailed discussion of each of these statutes including date of passage and procedural
protections, see Tamara Rice Lave, Throwing Away the Key: Has the Adam Walsh Act Lowered the Threshold for
Sexually Violent Predator Commitments Too Far?, 14 U. PA. J. CONST. L. 391, 409–17 (2011).
6. 18 U.S.C. §§ 4247–4248(a) (2012). The Adam Walsh Act was passed by both houses of Congress and
signed by the President in 2006. See Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248,
120 Stat. 587.
7. JENNIFER E. SCHNEIDER ET AL., SOCCPN ANNUAL SURVEY OF SEX OFFENDER CIVIL COMMITMENT
PROGRAMS (2016), at 8 [hereinafter SOCCPN 2016 ANNUAL SURVEY].
8. See ERIC S. JANUS, FAILURE TO PROTECT: AMERICA’S SEXUAL VIOLENT PREDATOR LAWS AND THE RISE OF
THE PREVENTIVE STATE 21–22 (2006). For a representative look at a treating hospital, see DSH Coalinga—
Security, CAL. DEP’T ST. HOSPITALS, http://www.dsh.ca.gov/Coalinga/Security.aspx (describing the “state-ofthe-art security system” that surrounds the hospital and lists security measures such as random shakedowns,
metal detectors, and uniforms of inmates and noting “all patients are constantly and directly supervised”).
9. Kansas v. Hendricks, 521 U.S. 346, 363 (1997). The Court stated:
Hendricks focuses on his confinement’s potentially indefinite duration as evidence of the State’s
punitive intent. That focus, however, is misplaced. Far from any punitive objective, the confinement’s duration is instead linked to the stated purpose of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others.
Id.; see also JANUS, supra note 8, at 22.
10. Ex parte Lange, 85 U.S. 163, 168 (1873). The Court stated:

Electronic copy available at: https://ssrn.com/abstract=3202538

2018]

DOCTOR PADILLA’S DANGEROUS DATA

707

to hold a person indefinitely because the prohibition on double jeopardy does not
apply.11
In Kansas v. Hendricks, the United States Supreme Court upheld the constitutionality of Kansas’s SVP law. The majority began its analysis in Kansas v.
Hendricks by noting that in narrow circumstances “an individual’s constitutionally
protected interest in avoiding physical restraint may be overridden even in the civil
context.”12 To justify such a commitment, the state must prove that a person is dangerous and suffers from mental illness or a mental abnormality:
A finding of dangerousness, standing alone, is ordinarily not a sufficient
ground upon which to justify indefinite involuntary commitment . . . [C]ivil
commitment statutes [have been] sustained when they have coupled proof of
dangerousness with the proof of some additional factor, such as a “mental illness” or “mental abnormality.” . . . These added statutory requirements serve
to limit involuntary civil commitment to those who suffer from a volitional
impairment rendering them dangerous beyond their control.13

The Court accepted as true the legislature’s empirical claims about SVPs: they
are “extremely dangerous”14; their “likelihood of engaging in repeat acts of predatory sexual violence is high”15; “the prognosis for rehabilitating [them] in a prison
setting is poor,”16 and their treatment needs are “very long term.”17 The Court did
not offer any proof for these assertions, and even though there was a wide body of
research studying the recidivism rate of sex offenders, none of it was cited.
Perhaps the Court omitted this analysis because dangerousness was not a contested
issue in the Hendricks case. During his trial, Hendricks admitted that he was an
uncured pedophile who could not control his desire to molest children.18 Whatever
the reason, the fact remains that in upholding Kansas’s SVP law, the Court never
asked for proof of the central justifying premise for the law—that an identifiable
group of sex offenders is highly likely to commit new predatory sex crimes if
released into the community.

If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully
punished for the same offence. And . . . there has never been any doubt of its entire and complete
protection of the party when a second punishment is proposed in the same court, on the same facts,
for the same statutory offence.
Id.
11. Hendricks, 521 U.S. at 369–70 (acknowledging Baxstrom v. Herold, 383 U.S. 107 (1966), as the case
where the Court “expressly recognized that civil commitment could follow the expiration of a prison term
without offending double jeopardy principles”).
12. Id. at 356.
13. Id. at 358 (citations omitted).
14. Id. at 351.
15. Id.
16. Id.
17. Id.
18. Id. at 355.

Electronic copy available at: https://ssrn.com/abstract=3202538

708

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

The Court’s holding in Hendricks has been criticized for a number of reasons.19
One such criticism focuses on the distinction between civil and criminal law, and
whether the SVP law is actually criminal which would make it an unconstitutional
second punishment. Rollman argued that various factors show the law is really
criminal, including “the fact that implementation of the Act is delayed until the
‘anticipated release’ of a prisoner, thereby lessening the effect of any treatment
while simultaneously maximizing punishment.”20 Campbell criticized the majority
for allowing states to “[m]erely redefine any [punitive] measure . . . as ‘regulation,’
and magically, the Constitution no longer prohibits its imposition.”21 Janus argued
that by inappropriately blurring the line between punishment and civil commitment, SVP laws undermine the Constitution’s due process protections.22
Carlsmith, Monahan, and Evans conducted experiments to determine how the law
should be classified and found that civil commitment of sexually violent predators
was primarily motivated by retributive goals, thus demonstrating that it is impermissibly criminal in effect.
Others have focused attention on the nebulous quality of a “mental abnormality.” Morse argued that “the term ‘mental abnormality’ is circularly defined . . . collaps[ing] all badness into madness,”23 and Winick contended that the definition of
mental abnormality is so broad that it can apply to any behavior.24 In 1999, the
American Psychiatric Association created a task force to evaluate SVP laws and
concluded, “sexual predator commitment laws represent a serious assault on the integrity of psychiatry, particularly with regard to defining mental illness and the
clinical conditions for compulsory treatment.”25
Still another line of critique focuses on the use of actuarial instruments to prove
dangerousness. Harcourt criticized the actuarial nature of SVP laws for treating
offenders as objects,26 while Wollert27 and Lave28 contended that we simply do not
have the ability to accurately predict future dangerousness. This means that due to

19. See generally ROBERT A. PRENTKY ET AL., SEXUAL PREDATORS: SOCIETY, RISK, AND THE LAW (2015).
20. Eli M. Rollman, “Mental Illness”: A Sexually Violent Predator is Punished Twice for One Crime, 88 J.
CRIM. L. & CRIMINOLOGY 985, 1013 (1998).
21. Andrew D. Campbell, Note, Kansas v. Hendricks: Absent a Clear Meaning of Punishment, States Are
Permitted to Violate Double Jeopardy Clause 30 LOY. U. CHI. L.J. 87, 87, 124–29 (1998) (quoting United States
v. Salerno, 481 U.S. 739, 760 (1987) (Marshall, J., dissenting)).
22. JANUS, supra note 8.
23. Stephen J. Morse, Fear of Danger, Flight From Culpability, 4 PSYCHOL. PUB. POL’Y & L. 250, 261 (1998).
24. See Bruce J. Winick, Sex Offender Law in the 1990s: A Therapeutic Jurisprudence Analysis, 4 PSYCHOL.
PUB. POL’Y & L. 505, 525–30 (1998).
25. AM. PSYCHIATRIC ASS’N, DANGEROUS SEX OFFENDERS: A TASK FORCE REPORT OF THE AMERICAN
PSYCHIATRIC ASSOCIATION 173 (1999).
26. See BERNARD E. HARCOURT, AGAINST PREDICTION: PROFILING, POLICING, AND PUNISHING IN AN
ACTUARIAL AGE (2007).
27. See Richard Wollert, Low Base Rates Limit Expert Certainty When Current Actuarials Are Used to Identify
Sexually Violent Predators: An Application of Bayes’s Theorem, 12 PSYCHOL. PUB. POL’Y & L. 56, 72 (2006).
28. See Tamara Rice Lave, Controlling Sexually Violent Predators: Continued Incarceration at What Cost?
14 NEW CRIM. L. REV. 213, 217 (2011).

Electronic copy available at: https://ssrn.com/abstract=3202538

2018]

DOCTOR PADILLA’S DANGEROUS DATA

709

the low base rate of recidivism, we are locking away people who would not reoffend if released. Monahan, on the other hand, observed that actuarial instruments
(unlike clinicians) have significantly improved over the past twenty years in predicting future violence.29 However, Monahan agreed that if SVP laws were criminal, then instruments should not be permitted to consider factors that a person has
no control over, like their gender.30 This would in effect prohibit the state from
“using the very risk factors that scientifically permit high-risk classifications to be
made.”31
Others have explicitly questioned the laws’ empirical justification. Lave and
McCrary used panel data on U.S. states for the last few decades to examine the
impact of SVP laws on the incidence of sex-related homicide, forcible rape, nonfatal child sexual abuse, and gonorrhea, a common proxy for the prevalence of sexual abuse.32 They found that SVP laws had no discernible impact on the incidence
of sex crimes or gonorrhea, the exact opposite of what would be expected if SVP
laws were locking away violent sex offenders. In a related inquiry, Ellman and
Ellman33 showed how the Supreme Court relied on misleading and unsubstantiated
statements about sex offender danger in upholding what would otherwise be an
unconstitutional second punishment34 or an unconstitutional ex post facto law.35
Although Justice Kennedy described sex offender recidivism as “frightening and
high,”36 Ellman and Ellman pointed to multiple studies that have shown the opposite to be true.37
We expand on these criticisms by telling the story of a serious and well-designed
study, the Padilla study, which the California Department of Mental Health
quashed after the study showed that untreated sex offenders with all of the risk factors of committed SVPs had just a 6.5% rate of contact sex crimes during an almost
five-year exposure in the community.38 Such a low recidivism rate undermines the
state’s authority to confine these persons under the rationale that they are too

29. John Monahan, A Jurisprudence of Risk Assessment: Forecasting Harm among Prisoners, Predators, and
Patients 92 VA. L. REV. 391, 405–06 (2006); see also John Monahan & Jennifer L. Skeem, The Evolution of
Violence Risk Assessment, 19 CNS SPECTRUMS 419, 423 (2014) (writing that, although such instruments are
useful in predicting individual risk and may continue to improve, “‘the contingencies of life’ will place an upper
limit on what can be achieved in many risk assessment contexts”).
30. Monahan, supra note 29, at 434.
31. Id. at 433.
32. Tamara Rice Lave & Justin McCrary, Do Sexually Violent Predator Laws Violate Double Jeopardy or
Substantive Due Process: An Empirical Inquiry, 78 BROOK. L. REV. 1391, 1396 (2013).
33. Ira Mark Ellman & Tara Ellman, “Frightening and High”: The Supreme Court’s Crucial Mistake About
Sex Crime Statistics, 30 CONST. COMMENT. 495, 495–97, 499 (2015).
34. McKune v. Lile, 536 U.S. 24, 29, 35–38 (2002).
35. See Smith v. Doe, 538 U.S. 84, 103–04 (2003).
36. See McKune, 536 U.S. at 34; see also Smith, 538 U.S. at 103.
37. Ellman & Ellman, supra note 33, at 501–05 (internal citations omitted).
38. See Deposition of Jesus Padilla at 57–58, 67–68, People v. Tighe, No. MH100903(Cal. Sup. Nov. 23,
2009) (on file with authors) [hereinafter Padilla Deposition]. For a discussion of the recidivism rate for other
types of offenders, see infra notes 102–07 and accompanying text.

Electronic copy available at: https://ssrn.com/abstract=3202538

710

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

dangerous to be released. Our Article is part investigative report, part empirical
study, part traditional doctrinal argument, and a pinch of old-fashioned who-doneit. It involves an unusual array of research, including data files obtained only after
an extended FOIA fight with the California Department of State Hospitals, internal
memoranda and emails from Atascadero State Hospital, twenty-five-year-old
Kansas legislative records copied from microfiche, and information obtained
directly from SVP states.
The Article proceeds as follows. Section I provides a brief comparison of two separate generations of sex offender civil commitment systems. Section II outlines the specific elements of prospective sexual danger that provide the only constitutionally
permissible justification for civil commitment, the characteristics these systems assume
SVPs have. It then compares the assumptions these systems make with the empirical
data available on sex offenders generally and the almost complete absence of data
assessing the risk of persons with the criminal histories, record of institutional confinement, and advanced age of those committed to, and retained by, civil confinement systems. Section III describes the Padilla study and California’s efforts to suppress it.
Section IV turns to other data sources to corroborate Padilla’s findings and addresses
the Washington State Institute study that apparently finds a higher recidivism rate and is
frequently cited for highlighting the risk posed by released SVPs. Section V concludes
by discussing the constitutional and public policy implications of this ARTICLE.
I. A BRIEF HISTORY OF POST-PENAL CIVIL COMMITMENT
Special civil commitment laws that confine convicted sexual offenders after
their release from prison were passed in two waves a half-century apart.39 The first
came in the 1930s and 1940s—so-called “sexual psychopath” laws—which were
passed in twenty-six states and the District of Columbia and provided for a mix of
compulsory treatment and secure confinement for protracted periods of time.40 The
era of their passage was an optimistic period for belief in what was later termed
“the rehabilitative ideal,” and the legislation assumed that successful treatment in
an institutional setting could cure the risk generating condition and render the former sexual psychopath no longer a danger to the community. A 1948 article in the
Saturday Evening Post revealed the tenor of the times. After describing the kidnapping and brutal murder of a six-year-old girl, David Wittels wrote:
The Chicago City Council voted to add 1000 policemen to the force. That was
laudable, but it would have done better to hire 500 policemen and 50 psychiatrists, even if it meant paying for the training of young medical students for
the jobs. Fifty psychiatrists, backed by sensible laws, could do more to halt
crime waves in a city like Chicago than 5000 extra policemen could.41
39. See Tamara Rice Lave, Only Yesterday: The Rise and Fall of Twentieth Century Sexual Psychopath Laws,
69 LA. L. REV 549, 549 (2009).
40. Id.
41. David G. Wittels, What Can We Do About Sex Crimes, SATURDAY EVENING POST, Dec. 11, 1948, at 30.

Electronic copy available at: https://ssrn.com/abstract=3202538

2018]

DOCTOR PADILLA’S DANGEROUS DATA

711

A. The Demise of Sexual Psychopath Laws
The sexual psychopath model was intended to be a collaboration of medicine,
psychology, and law, but the performance of the laws and the institutions they created was a failure of both medicine and justice. The incarceration in these “civil”
prisons was protracted and far from therapeutic. When Professor Norval Morris
reviewed the records of the Illinois Menard Correctional Center, he discovered
eighteen men who had been illegally detained for a quarter century.42 Paul
Tappan’s 1950 report for the state of New Jersey was perhaps the most damning. It
challenged the central justification for the laws, that sex offenders had a high recidivism rate,43 and demonstrated that prosecutors were using the statutes in otherwise
weak cases to lock away nuisance offenders for indefinite periods of time.44
Tappan also shattered once and for all the illusion that sexual psychopath laws
were concerned with helping people get better:
The states that have passed special laws on the sex deviate do not attempt
treatment! The “patients” are kept in bare custodial confinement. This point is
central to the atrocious policy of those jurisdictions that commit non-criminals
and minor deviates for indefinite periods to mental hospitals where no therapy
is offered . . . The point should be stressed that commitment of a sex deviate to
a state mental hospital does not imply clinical treatment. These institutions
lack the space, the personnel, the treatment methods, or even the desire to handle deviated sex offenders who are non-psychotic.45

Soon the medical community started to distance itself from these laws.
Benjamin Karpman wrote in his 1954 book, The Sexual Offender, “[t]he term ‘sexual psychopath’ and ‘sexual psychopathy’ have no legitimate place in psychiatric
nosology or dynamic classification.”46 In 1977, the Group for the Advancement of
Psychiatry concluded that the sexual psychopath laws had not met their goals and
should be overturned:
First and foremost, sex psychopath and sexual offender statutes can best be
described as approaches that have failed. . . . The mere assumption that such a
heterogeneous legal classification [“sex psychopath” or “sex offender”] could
define treatability and make people amenable to treatment is not only fallacious; it is startling . . . [i]f the assessment of the statute in terms of achieving
certain goals, for whatever reasons, leads to the conclusion that an experiment
has not been successful, it should be halted.47

42. Albert W. Alschuler, In Memoriam: Norval Morris (1923-2004), 72 U. CHI. L. REV. 455, 465 (2005).
43. PAUL W. TAPPAN, THE HABITUAL SEX OFFENDER: REPORT AND RECOMMENDATIONS OF THE COMMISSION
ON THE HABITUAL SEX OFFENDER 24 (1950).
44. Id. at 30.
45. Id. at 15–16 (emphasis original).
46. Benjamin Karpman, The Sexual Psychopath, 42 J. CRIM. L. & CRIMINOLOGY 184, 185 (1951).
47. AM. PSYCHIATRIC ASS’N, supra note 25, at 14.

Electronic copy available at: https://ssrn.com/abstract=3202538

712

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

By the mid-1970s, the reputation of these facilities and the laws that created them was dismal and the consensus for reforming sexual psychopath laws was repeal and repudiation.
The disrepute of sexual psychopath laws was also part of a larger decline in confidence in medical models of crime causation and medical cures for repetitive criminal activity. Professor Francis Allen, who had coined the term “the rehabilitative
ideal” in the 1950s, observed and analyzed the changing mood of professionals and
the public in one of his later books, The Decline of the Rehabilitative Ideal.48 By the
1990s, the critical era for passage of what we shall call the second generation of sexually violent predator laws, what had been the rehabilitative ideal and medical models of criminal behavior had little standing in scientific and policy communities.
The second wave of civil commitment laws for sex offenders began in
Washington State in 1990.49 It was almost certainly motivated by the same “war
on crime” ideology that characterized much of the penal legislation of the early
1990s. Like the “Three Strikes and You’re Out” law in California,50 states enacted
SVP laws in response to high profile sex crimes by repeat offenders. However,
SVP laws were unique among legislation of the period in that they allowed politicians to show they were tough on crime with a population of offenders so universally reviled that there was no risk of political backlash for perceived excessive or
unfair incarceration. When it came to sex offenders, especially those who offended
against a child, the only risk a politician faced was not being severe enough.
While the terminology of the legislation turned from psychology to legalism, from
“sexual psychopath” to “sexually violent predator,” the indeterminate structure, medical personnel, and treatment rationale in the new generation of laws was similar to the
older SVP regimes. Since the targets of these new laws had already served prison sentences, the only permissible basis for continuing to restrain them was their future sexual danger which the laws hypothesized was linked to psychological or personality
conditions. Could these dangerous people be fixed? Did the people who drafted these
new laws believe medical treatment could cure sexual danger?
Almost certainly they did not. The real agenda of the prosecutors and politicians
who drafted the second generation of laws was incapacitation; the “cure” for sexual dangerousness in 1990 was permanent confinement. But if that was the central
objective of the new systems, why did they use medical terms and personnel?
They had to. Because the new incarceration only started after subjects had completed serving their prison terms, any further confinement that could be regarded as
punishment would constitute double jeopardy and violate the Constitution.51 If the
48. FRANCIS ALLEN, THE DECLINE OF THE REHABILITATIVE IDEAL 1–2 (1981).
49. See WASH. REV. CODE § 71.09 (1991).
50. See FRANKLIN E. ZIMRING ET AL., PUNISHMENT AND DEMOCRACY: THREE STRIKES AND YOU’RE OUT IN
CALIFORNIA 5–6 (2001).
51. “If there is anything settled in the jurisprudence of England and America, it is that no man can be twice
lawfully punished for the same offence. And . . . there has never been any doubt of its entire and complete
protection of the party when a second punishment is proposed in the same court, on the same facts, for the same
statutory offence.” Ex parte Lange, 85 U.S. 163, 168 (1873).

Electronic copy available at: https://ssrn.com/abstract=3202538

2018]

DOCTOR PADILLA’S DANGEROUS DATA

713

additional confinement were classified as civil, however, the prohibition on double
jeopardy would not apply.52 In Foucha v Louisiana, the Supreme Court laid out the
blueprint for civil commitment.53 Proof of future dangerousness was not enough to
withstand constitutional scrutiny; the person must also be mentally ill.54
Thus, the medical treatment rationale of the old sexual psychopath regime provided a convenient precedent for justifying confinement as non-punitive and continuing its duration as long as the subjects’ mental illness and sexual danger to the
community had not been cured. But using this cover story required that those committed actually be mentally ill, which was a problem since most sex offenders are
not. It also required calling the institution a hospital and staffing it with professionals who specialized in the clinical treatment of sexual offenders in an era when
public confidence in clinical cures for sex offending was non-existent.
It is an understatement to say that the medical establishment was skeptical about
the pretense of medical motives for this new wave of civil commitment laws. Here
is the judgment issued in 1999 by a task force of the American Psychiatric
Association:
In the opinion of the task force, sexual predator commitment laws represent a
serious assault on the integrity of psychiatry, particularly with regard to defining mental illness and the clinical conditions for compulsory treatment.
Moreover, by bending civil commitment to serve essentially non-medical purposes, statutes threaten to undermine the legitimacy of the medical model of
commitment.55

The battle lines for this second generation of civil commitment laws constituted
a sharply different matter than the sexual psychopath laws of the earlier era.
Organized medical science labeled the new enterprise essentially fraudulent as evidenced by the amicus brief filed by the American Psychiatric Association, which
criticized the new sexually violent predator laws for locking up people who were
not mentally ill.56 But the United States Supreme Court held that the Kansas version of the new laws did not violate the Constitution despite the uncertain link
between any clear clinical diagnosis of mental illness and the propensity to commit
sex crimes. In an opinion authored by Justice Thomas, the Supreme Court wrote:
“the term mental illness is devoid of talismanic significance” thereby leaving legislatures free to define the term however they want.57

52. Kansas v. Hendricks, 521 U.S. 346, 369–70 (1997) (“[The Court] expressly recognized that civil
commitment could follow the expiration of a prison term without offending double jeopardy principles.”) (citing
Baxstrom v. Herold, 383 U.S. 107 (1966)).
53. Foucha v. Louisiana, 504 U.S. 71, 82 (1992).
54. Id. at 82–83.
55. AM. PSYCHIATRIC ASS’N, supra note 25, at 174.
56. Amicus Brief for the Am. Psychiatric Ass’n, Hendricks, 521 U.S. 346 (Nos. 95-–649, 95–9075).
57. Hendricks, 521 U.S. at 359.

Electronic copy available at: https://ssrn.com/abstract=3202538

714

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

II. THE PAUCITY OF PROSPECTIVE DANGEROUSNESS DATA
The fact that SVP confinement comes after punishment is complete significantly
limits the state’s power to confine. In the era of Ewing v. California,58 state penal
codes can, if they choose, impose lifelong incarceration on offenders convicted of
glorified misdemeanors. That means the punitive power of state criminal law has few
limits on the duration of punitive confinement, and states have used this power to dramatically increase sentences for sex crimes over the past thirty years, especially when
the victim is a child.59 This increase in sentences occurred despite broad public support for lowering incarceration rates in the United States.60 For example, existing
plans to reduce the number of persons in prison—like the realignment plan in
California—explicitly exclude sex offenders from any kind of early release.61 The
state’s power to punish is immense, but once the punitive rationale has been removed,
it is only mental illness plus the prospect of future danger that can provide a constitutionally permissible justification for compulsory treatment or confinement.62-63
A. How Dangerous Is Dangerous Enough?
But how substantial must the risk of future sexual danger be to justify commitment and confinement?64 The majority opinion in Hendricks stated that the
58. Ewing v. California, 538 U.S. 11, 15–16 (2003).
´
59. See TRACY VELAZQUEZ
, VERA INST. OF JUSTICE, THE PURSUIT OF SAFETY: SEX OFFENDER POLICY IN THE
UNITED STATES 3–4 (2008); NAT’L CONFERENCE OF STATE LEGISLATURES, SIGNIFICANT STATE LEGISLATION 19962004 ON SEX OFFENDERS SENTENCING (2006); Jazmine Ulloa, California Toughens Laws Against Rape after Brown
Signs Bills Inspired by Brock Turner Case, L.A. TIMES (Sept. 30, 2016), http://www.latimes.com/politics/essential/
la-pol-sac-essential-politics-updates-california-expands-punishment-for-rape-1475260488-htmlstory.html.
60. MELLMAN GROUP & PUB. OPINION STRATEGIES, NATIONAL SURVEY KEY FINDINGS—FEDERAL
SENTENCING & PRISONS 1 (2016). The report found that:
Americans are ready and willing to change the way the federal justice system deals with drug
offenders, phase out mandatory minimum sentences for a variety of offenses, allow people in federal prison to earn time off their prison terms by participating in programs proven to reduce recidivism, and make other reforms that would reduce a federal prison population they see as too large,
too expensive, and too often incarcerating the wrong people.
Id.
61. J. RICHARD COUZENS & TRICIA A. BIGELOW, FELONY SENTENCING AFTER REALIGNMENT 7, 48–49 (2017).
62. Hendricks, 521 U.S. at 358 (“A finding of dangerousness, standing alone, is ordinarily not a sufficient
ground upon which to justify indefinite involuntary commitment. We have sustained civil commitment statutes
when they have coupled proof of dangerousness with the proof of some additional factor, such as a ‘mental
illness’ or ‘mental abnormality’.”).
63. Even though Hendricks clearly requires both mental illness and future dangerousness, the only factor that
actually matters is future danger. See PRENTKY ET AL., supra note 19, at 41. The authors state:
Though the constitutional underpinnings of SVP laws appear to put the “mental disorder” and
“dangerousness” prongs on equal footing, in reality it is fair to say that most of the focus in the
implementation of these laws falls on dangerousness. The mental disorder prong has little or no
role in determining who is committed and who is not.
Id.
64. For a look at how SVP states define “likely to reoffend,” see Jefferson C. Knighton et al., How Likely Is “Likely to
Reoffend” in Sex Offender Civil Commitment Trials? 38 LAW & HUM. BEHAV. 293, 293 (2014). See also infra Appendix 1.

Electronic copy available at: https://ssrn.com/abstract=3202538

2018]

DOCTOR PADILLA’S DANGEROUS DATA

715

person’s “mental abnormality” or “personality disorder” must make it “difficult if
not impossible for the person to control his behavior”65 and later described the law
as being akin to those that provided for the “forcible civil detainment of people
who are unable to control their behavior.”66 In Kansas v. Crane, the Court realized
that the “unable to control” standard would pose too high a burden for the state, but
it rejected Kansas’s position that a person could be committed as an SVP “without
any lack-of-control determination.”67 Instead, the Court held that the “mental abnormality” or “personality disorder” must make it “difficult, if not impossible, for
the person to control his dangerous behavior.”68 To ensure that the confinement
remained civil and not criminal, the Court stated that the SVP must be distinguishable from other sex offenders: “[T]he severity of the mental abnormality itself,
must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.”69
SVP states for the most part have translated this rather ambiguous language to
require that the person’s risk of reoffending is “likely” should they be released into
the community.70 Some states further interpret “likely” in probabilistic terms such
as, “highly probable,”71 “more probably than not,”72 “substantially probable,”73
and “more likely than not.”74 Others define “likely” to mean that the person’s propensity to engage in repeat acts of sexual violence would “pose a menace to the
health and safety of others.”75 The state has the burden of proving this risk of reoffending by a constitutional minimum of “clear and convincing evidence,”76 and
nine states require that this risk be proved “beyond a reasonable doubt.”77
B. Are SVPs Actually That Dangerous?
Since future danger is critical to the constitutionality of SVP commitment, one
might have expected the Supreme Court to require proof that the class of individuals
being committed was actually dangerous. After all, the Court was not just determining
65. Hendricks, 521 U.S. at 358 (citing KAN. STAT. ANN. § 59-29a02(b) (1994)).
66. Id. at 357 (emphasis added).
67. Kansas v. Crane, 534 U.S. 407, 412 (2002).
68. Id. at 410 (quoting Hendricks, 521 U.S. at 358).
69. Id. at 413.
70. See infra Appendix 1.
71. In re Leon G., 59 P.3d 779, 782 (Ariz. 2002) (en banc).
72. See WASH. REV. CODE § 71.09.020(7) (2017).
73. In re Commitment of Dodge, 989 N.E.2d 1159, 1167 (Ill. App. Ct. 2013).
74. See IOWA CODE § 229A.2 (2017); Underwood v. State, 519 S.W. 3d 861, 871 (Mo. Ct. App. 2017).
75. FLA. STAT. § 394.912(4) (2017); KAN. STAT. ANN. § 59–29a02(b) (2012); see also NEB. REV. STAT. § 83174.01(2) (2012); S.C. CODE ANN. § 44-48-30(9) (2017); VA. CODE ANN. § 37.2–900 (2017).
76. According to the U.S. Supreme Court, the burden of proof that the state must meet is “clear and
convincing evidence,” not the more stringent standard of “beyond a reasonable doubt.” Foucha v. Louisiana, 504
U.S. 71, 75–76 (1992).
77. These nine states are: Arizona, California, Illinois, Iowa, Kansas, Massachusetts, Missouri, South
Carolina, Texas, Washington and Wisconsin. See Lave, supra note 5, at 413 (internal citations omitted).

Electronic copy available at: https://ssrn.com/abstract=3202538

716

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

whether Mr. Hendricks was dangerous; rather, it was passing judgment on SVP programs in many American states. Despite the importance of the issue, the Justices simply took as true the statement in the preamble to Kansas’s SVP law: “The legislature
further finds that sexually violent predators’ likelihood of engaging in repeat acts of
predatory sexual violence is high.”78 If the Court had asked what the basis was for this
conclusion, they would have been sorely disappointed. We searched the legislative
minutes for the 1994 Kansas law and found no citations to data on prospective danger.
1. A Dearth of Data on SVP Danger in Kansas Law
In July 2016, we contacted the reference librarian for the State of Kansas to
request the legislative history of Kansas’s 1994 Sexually Violent Predator Act (S.
B. 525, otherwise known as Stephanie’s Law), which was passed in response to the
high profile rape and murder of a young college student named Stephanie Schmidt
by a convicted sex offender.79 The legislative record contained information about
the man who murdered Schmidt, but there was no indication of data presented
about the post-release danger of sex offenders as a class. For example, one threepage fragment of an article on self-reported career histories of sex offenders was
reproduced twice in the records, but it did not cover the post-release records of
offenders.80 This omission matters because SVP legislation is premised on the idea
that persons will continue to reoffend even after they have been formally held accountable by the state for a sexually predatory crime. In addition, although two witnesses made factual assertions about multiple victim career offenders, they did not
provide support for their testimony. On February 22, 1994, Kansas Attorney
General Carla Stovall testified that “an FBI study of serial rapists showed an average of 20 rapes each in their history,”81 but she provided no reference to the source
and no indication of how this information would impact the population covered by
S.B. 525. Representative Gary Haulmark—a member of the Ad Hoc Sexual
Offender Task Force created in the wake of Schmidt’s murder that recommended
S.B. 525 to the legislature—testified that “our task force saw statistic after statistic
which indicated that these people will reoffend 50% to 90% of the time if allowed
the opportunity.”82 Like Stovall, Haulmark did not reference any specific study.
78. See Kansas v. Hendricks, 521 U.S. 346, 351 (1997). As Appendix 2 shows, courts across the country have
upheld SVP laws without requiring any proof that the class of persons being committed pose a risk of committing
violent sex crimes if they were released.
79. See 1994 Kan. H. Judiciary Comm., Minutes on S.B. 525; 1994 Kan. S. Judiciary Comm. Minutes on S.B.
525, (Feb. 22, 1994); 1994 Kan. S. Judiciary Comm. Minutes on S.B. 525 (Feb. 23, 1994); 1994 Kan. H.
Judiciary Comm. Minutes on S.B. 525 (Feb. 24, 1994); 1994 Kan. H. Judiciary Comm. Minutes on S.B. 525
(Feb. 25, 1994. The librarian was able to provide some basic legislative history, but most of what we needed was
on microfilm. We hired a for-fee service recommended by the librarian to copy all the testimony and attachments
to minutes for the hearings related to the bill. We received and reviewed all the documents electronically.
80. See 1994 Kan. H. Judiciary Comm. Minutes on S.B. 525; 1994 Kan. S. Judiciary Comm. Minutes on S.B.
525, at 14–6, 14–7, 14–8, I–6, I–7 (Feb. 23, 1995) (on file with authors).
81. Carla Stovall, Feb. 22, 1994, p. 5,416 (on file with authors).
82. Rep. Gary Haulmark, Testimony in Support of S.B. 525, 1994 Kan. H. Judiciary Attachment 3 (Mar. 21,
1994) (on file with authors).

Electronic copy available at: https://ssrn.com/abstract=3202538

2018]

DOCTOR PADILLA’S DANGEROUS DATA

717

Nor was there any data presented by the Kansas Department of Corrections on sex
offender recidivism. Although a former member of the state’s Parole Commission testified in favor of the bill, he did not provide any data to support his position. Indeed,
no prison release follow-ups of any class of sex offender were requested by the legislative committees considering S.B. 525, much less actually submitted to the House or
Senate committees.83 The release and parole data could have shown the danger posed
by Kansas’s sex offenders. Instead, the legislature defined a class of offenders without
ever asking correctional or parole authorities how many such offenders leave the
state’s prisons every year or how they perform in the community after release.
2. What Do Existing Studies Show?
It may not have occurred to the justices to require proof of sex offender danger
when it seems so intuitively obvious. After all, a 2010 national opinion poll developed by the Center for Sex Offender Management found that seventy-two percent
of respondents believed that at least half, if not most, of convicted sex offenders
would commit additional sex crimes in the future. Of these, thirty-three percent
believed that more than seventy-five percent of convicted sex offenders would
reoffend.84 Politicians across the political spectrum proclaim that sex offenders
cannot control themselves,85 and Congress changed the Federal Rules of Evidence
to allow propensity evidence in sex cases under the theory that sex offenders (especially child molesters) are especially likely to reoffend.86 The Supreme Court
appears to have accepted this alleged common wisdom, asserting in Smith v. Doe
that sex offenders have a “high rate of recidivism.”87 In 2002, Justice Kennedy
penned the opinion for a four person plurality in McKune v. Lile, writing that the
recidivism rate “of untreated offenders has been estimated to be as high as 80%.”88
If the Supreme Court had inquired, they would have seen that contrary to popular belief, most sex offenders do not recidivate. In 1989, the United States
Department of Justice (DOJ) released a study that analyzed the recidivism rate of
rapists released from prison in 1983.89 It found that just 7.7% of rapists were rearrested for rape within three years of release.90 nine years later, in 1998, Hanson and
Bussière conducted a meta-analysis of sixty-one studies from six different
83. 1994 Kan. H. Judiciary Comm. Minutes on S.B. 52; 1994 Kan. S. Judiciary Comm. Minutes on S.B. 525
(on file with authors).
84. CTR. FOR SEX OFFENDER MGMT., EXPLORING PUBLIC AWARENESS AND ATTITUDES ABOUT SEX OFFENDER
MANAGEMENT: FINDINGS FROM A NATIONAL PUBLIC OPINION POLL 3 (2010).
85. See Tamara Rice Lave, Inevitable Recidivism—The Origin and Centrality of an Urban Legend, 34 INT’L J.
L. & PSYCHIATRY 186, 187–88 (2011).
86. Tamara Rice Lave & Aviva Orenstein, Empirical Fallacies of Evidence Law: A Critical Look at the
Admission of Prior Sex Crimes, 81 U. CIN. L. REV. 795, 808–11 (2013).
87. Smith v. Doe, 538 U.S. 84, 103 (2003).
88. McKune v. Lile, 536 U.S. 24, 33 (2002).
89. ALLEN J. BECK & BERNARD E. SHIPLEY, BUREAU OF JUSTICE STATISTICS, RECIDIVISM OF PRISONERS
RELEASED IN 1983, at 6 (1989).
90. Id.

Electronic copy available at: https://ssrn.com/abstract=3202538

718

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

countries including the United States.91 They found that over an average follow-up
period of four to five years, the sex offense recidivism rate was 13.4%.92
These numbers are strikingly lower than the eighty percent figure claimed by
Justice Kennedy in McKune v. Lile.93 Yet these lower recidivism rates are consistent
with those of more recent studies. A 2016 DOJ study found that just 5.6% of sex
offenders were rearrested for rape or sexual assault within five years of release from
prison.94 In 2009, Hanson and Morton-Bourgnon conducted a meta-analysis of
twenty-one sex offender studies, and they found an overall sexual recidivism rate of
11.5%.95 In 2007, using arrest data from 1990–1997 collected by the Illinois State
Police,96 Sample and Bray found that fewer than four percent of convicted child
molesters were rearrested for any sex offense within one, three, or five years after their
release from custody.97 They also found that approximately seven percent of convicted
rapists were rearrested for any sex offense within five years after release.98 In 2003, the
DOJ studied the recidivism of 9,691 sex offenders released from prison in fifteen states
across the country.99 Although they found that sex offenders were four times more
likely to be rearrested for a sex crime than other types of offenders,100 the vast majority
of sex offenders did not sexually recidivate. Indeed, just 5.3% were rearrested for a
new sex crime within three years of release from prison.101
To give these numbers some context, it helps to look more generally at recidivism. In the 2016 DOJ study cited above, analysts found that 67.8% of the 404,638
state prisoners released in 2005 were arrested within three years, and 76.6% were
arrested within five years of release.102 Interestingly, the 2003 DOJ study found
that sex offenders were much less likely to be rearrested than non-sex offenders.103
Analysts found that forty-three percent of sex offenders were rearrested for a new
crime within three years of release from prison as opposed to sixty-eight percent of
91. R. Karl Hanson & Monique T. Bussière, Predicting Relapse: A Meta-Analysis of Sexual Offender
Recidivism Studies, 66 J. CONSULTING & CLINICAL PSYCHOL. 348, 350 (1998).
92. Id. at 357.
93. McKune, 536 U.S. at 33.
94. MATTHEW R. DUROSE ET AL., BUREAU OF JUSTICE STATISTICS, NCJ 244205, RECIDIVISM OF PRISONERS
RELEASED IN 30 STATES IN 2005: PATTERNS FROM 2005 TO 2010, 1 tbl.2 (2016).
95. R. Karl Hanson & Kelley E. Morton-Bourgon, The Accuracy of Recidivism Risk Assessments for Sexual
Offenders: A Meta-Analysis of 118 Prediction Studies, 21 PSYCHOL. ASSESSMENT 1, 3–4, 6 (2009) (evaluating
accuracy of prediction models). The recidivism rate is higher if other types of crimes are included. For prior sexcrime perpetrators, the sexual or violent recidivism rate is 19.5%. It is 33.2% if all types of crimes are considered.
Id.
96. Lisa L. Sample & Timothy M. Bray, Are Sex Offenders Different? An Examination of Rearrest Patterns,
17 CRIM. JUST. POL’Y REV. 83, 88 (2006).
97. Id. at 95.
98. Id.
99. PATRICK A. LANGAN ET AL., BUREAU OF JUSTICE STATISTICS, NCJ 198281, RECIDIVISM OF SEX
OFFENDERS RELEASED FROM PRISON IN 1994 1 (2003) [hereinafter 2003 DOJ STUDY].
100. Id.
101. Id.
102. DUROSE ET AL., supra note 94, at 1.
103. Id.

Electronic copy available at: https://ssrn.com/abstract=3202538

2018]

DOCTOR PADILLA’S DANGEROUS DATA

719

released non-sex offenders who were rearrested for a new crime during that same
period.104
Ironically, the 2003 DOJ study found that sex offenders were among the least
likely to be rearrested for the same crime. Bureau of Justice Statisticians Langan
and Levin found that 2.5% of rapists were rearrested for rape within three years of
release from prison,105 and the DOJ found that 3.3% of child molesters were
arrested for another sex crime against a child during that same period.106 In contrast,
during that same three year period, Langan and Levin found that 13.4% of robbers
were rearrested for robbery; twenty-two percent of assailants were rearrested for
assault; 23.4% of burglars were rearrested for burglary; 33.9% of thieves were rearrested for larceny/theft; 11.5% of car thieves were rearrested for the same; and
41.2% of drug offenders were rearrested for a drug crime. The only released
offenders who had a lower specialized recidivism rate than rapists and child
molesters were those who had been convicted of homicide. Just 1.2% of offenders
were rearrested for homicide within three years after release from prison.107
Other studies have found significantly higher sex offender recidivism rates, but
no study comes close to the eighty percent number pronounced by Justice Kennedy.
Hanson, Scott, and Steffy studied the long-term recidivism of 191 child molesters
released between 1958 and 1974 from a maximum-security provincial correctional
institution in Ontario, Canada.108 Their recidivism rate, as defined by conviction for
a new sex crime over a fifteen- to thirty-year period, was 35.1%.109 As another
example, Rice, Harris, and Quinsey followed fifty-four rapists (defined as anyone
who had sexually assaulted or attempted to sexually assault a female age fourteen
or older)110 released from a maximum-security psychiatric hospital in Canada.111
Their average age was thirty, which as will be discussed later, is markedly younger
than that of committed SVPs.112 The average follow-up period was forty-six
months, and recidivism, defined as conviction for a new sex crime, was twentyeight percent.113 These results are significantly higher than the 2003 and 2016 DOJ
studies, but we think there are important reasons to discount them. First, both
104. See 2003 DOJ STUDY, supra note 97, at 2.
105. PATRICK A. LANGAN & DAVID J. LEVIN, BUREAU OF JUSTICE STATISTICS, NCJ 193427, RECIDIVISM OF
PRISONERS RELEASED IN 1994 9 (2002).
106. Id. at 1.
107. Id. at 9.
108. R. Karl Hanson et al., A Comparison of Child Molesters and Non-Sexual Criminals: Risk Predictors and
Long-Term Recidivism, 32 J. RES. CRIME & DELINQ. 325, 327 (1995).
109. Id. at 332. For an in-depth discussion of the differences between these two studies, see Lave, supra note
28, at 245–47.
110. Marnie E. Rice et al., A Follow-Up of Rapists Assessed in a Maximum-Security Psychiatric Facility, 5 J.
INTERPERSONAL VIOLENCE 435, 437 (1990). This study utilized a broader definition of rape than would be
employed under U.S. criminal law.
111. Id.
112. Id. at 439. The average age at the time of release for those who reoffended and those who did not was 29.9,
but the standard deviation for those who did not recidivate was 10.2 and for those who did was 29.9. Id. at 439.
113. Id. at 442.

Electronic copy available at: https://ssrn.com/abstract=3202538

720

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

studies looked at offenders who were released many years ago in Canada. Second,
the sample sizes are significantly smaller than that studied by the DOJ, with sample
sizes of 191 and 54 as opposed to 9,691 and 20,422.
Even if the 2003 and 2016 DOJ studies are a more accurate account of the risk
posed by U.S. sex offenders, they may not be relevant for SVPs. The whole premise behind sexually violent predator legislation is that SVPs are different. They
supposedly have a mental abnormality that makes them high risk for committing
new sex offenses, which means the low recidivism rates found by the DOJ may not
be useful in assessing how dangerous they are. What we really need to study is the
behavior in community settings of persons who share the special characteristics of
the SVP population. Enter the Padilla Study.
III. THE PADILLA STUDY
In 2000, Dr. Jesus Padilla was hired as a clinical psychologist at Atascadero State
Hospital.114 The institution held all committed California SVPs from the inception of
the program in 1995 until September 2005 when they were moved to a new facility.
Two years after arriving at Atascadero, Padilla became a member of the SVP Design
Team,115 the group responsible for devising the treatment program for SVPs.116
Padilla soon began working with another team member—a social worker named
Kabe Russell—on a long-range study of how SVPs who had completed treatment
fared in the community as compared with SVPs who had not. The study was
approved through the established chain of command at the Atascadero facility.117
Until the study was abruptly terminated in 2007, Padilla and Russell were in constant
contact with administrators from Atascadero and the Department of Mental Health
(DMH), arranging for necessary data and providing updates of their progress.118
A. Study Design and Findings
The gold standard for testing clinical treatment is the random assignment of persons eligible for treatment into test and control groups without the subjects or those
114. Padilla Deposition, supra note 38, at ll. 22–23 (on file with authors).
115. See Direct Examination of Jesus Padilla, Tr., Mar. 11, 2011, San Diego, CA at 1219, l. 12 (on file with
authors).
116. Padilla Deposition, supra note 38, at 30, ll. 24–25 (on file with authors).
117. The study was actually approved two times. Melvin Hunter, the Executive Director of Atascadero State
Hospital, approved the study on Mar. 9, 2004. See E-mail from Melvin Hunter to Christine Mathiesen, Jesus
Padilla, Kabe Russell, and Karen Dubiel, cc Dave Bourne, Gary Renzaglia, Jeanne Garcia and Linda Wilkes
(Mar. 9, 2004, 08:25:13 AM) (on file with authors). On July 21, 2004, Padilla and Russell formally requested to
expand their study to individuals who had been released from ASH earlier in the SVP commitment process. See
Memorandum from Jesus Padilla and Kabe Russell to Silva Blount (July 21, 2004) (on file with authors)
[hereinafter Memorandum to Blount]. That request was formally approved on July 20, 2004. See Memorandum
from Silva Blount to Jesus Padilla and Kabe Russell (signed and approved by Diane Inrem, Chief, SVP Design
Team (July 20, 2004), Christine Mathiesen, Dir., EOS (July 26, 2004), Dave Bourne, Clinical Admin. (July 27,
2004), and Melvin Hunter, Exec. Dir., Atascadero State Hosp. (July 28, 2004)) (on file with authors).
118. See internal memoranda and emails on file with authors.

Electronic copy available at: https://ssrn.com/abstract=3202538

2018]

DOCTOR PADILLA’S DANGEROUS DATA

721

who treated them knowing whether they were treatment or controls. A few things
complicated this testing protocol for SVPs. To begin with, “blind” treatment was
impossible for sustained clinical interventions in an SVP institution, and random
assignment into non-custodial non-treatment groups would never be approved
because prosecutors and judges would not tolerate the risk of community exposure
with or without treatment. Furthermore, committing but not treating a control
group would be unconstitutional.119
In addition, although it would have been better to study how treated and
untreated SVPs fared in the community during the same time period, this proved
impossible. Padilla knew that:
[G]iven the political situation for SVPs in California . . . it was going to be
many, many years before a sufficient number of the treated individuals were
in the community completely free from supervision (and) you can’t really
compare them until they are off supervision because supervision is really a
great deterrent.120

However, Padilla was still able to study released, untreated SVPs because at the
time, California was the only state in the country that limited SVP commitment to
two-year periods.121 This meant that every two years the state had to go through
the entire SVP commitment process again for each offender: filing a motion with the
court within a certain time period, having two mental health providers determine the
person had a currently diagnosed mental disorder that made him a danger if released,
convincing a judge there was probable cause to hold that person, and then persuading
a jury beyond a reasonable doubt that the person was an SVP.122 The recommitment
process meant that there were multiple opportunities for people to fall out of the
system.
Padilla collected detailed data on each individual who was released without
treatment including their age, criminal history, and where the subject went after leaving the program’s control.123 Padilla accessed criminal records by
inputting a person’s unique California Identification and Index (CII) number
into the California Law Enforcement Telecommunications System
119. Not providing treatment to someone who has already served his prison sentence may reveal that the law
is punitive and thus unconstitutional. See Kansas v. Hendricks, 521 U.S. 346, 382 (1997) (Breyer, J., dissenting)
(“The Allen Court, looking behind the statute’s ‘civil commitment’ label, found the statute civil—in important
part because the State had ‘provided for the treatment of those it commits.’”). Not providing treatment to
someone who can’t be treated however would not seem to have that same problem. See id. at 366 (“While we
have upheld state civil commitment statutes that aim both to incapacitate and to treat . . . we have never held that
the Constitution prevents a State from civilly detaining those for whom no treatment is available, but who
nevertheless pose a danger to others.”).
120. See Padilla Deposition, supra note 38 at 32 ll. 15–23.
121. See Ballot Pamp., Gen. Elec. (Nov. 7, 2006), text of Prop. 83, 127 (“California is the only state, of the
number of states that have enacted laws allowing involuntary civil commitments for persons identified as
sexually violent predators, which does not provide for indeterminate commitments.”).
122. See CAL. WELF. & INST. CODE §§ 6600–04 (West 2017).
123. See Padilla Deposition, supra note 38.

Electronic copy available at: https://ssrn.com/abstract=3202538

722

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

(CLETS).124 Although Atascadero could get criminal records on currently
committed SVPs, it could not access records on persons who had been
released. Since the data was necessary to conduct the study, a point person at
DMH was appointed to provide it to Padilla and Russell.125 The fact that DMH
went out of its way to provide the criminal record data to Padilla and Russell is
especially ironic since they would later be accused of accessing it illegally.126
But Padilla did not just rely on recidivism data provided in the CLETS database;
he also went to the Megan’s Law website to see if the SVPs were properly registered.127 Then, he contacted the prosecutors in the counties where the SVPs were
released to see if they had been rearrested.128 Padilla subtracted any time that the
subjects spent in custody, which meant that the arrest rate was only based on periods of being at risk in community settings.129 Padilla explained that:
there are times when people are not in the community, not available to commit
an offense, because they have suffered parole violations or some other reason;
they have had other minor crimes for which they went to jail and were there
for a while. So we had to subtract that time from the actual time at risk.130

Padilla also collected data where available on each individual’s Static-99 score.131
The Static-99 is an actuarial instrument that uses an individual’s characteristics,
such as age, marital status, sex of victims, and number of prior offenses to predict
re-offending.132 The Static-99 is still the most commonly used instrument in SVP
commitment hearings.133
124. See Memorandum from Jesus Padilla and Kabe Russell to Silva Blount, Subject: Program Evaluation
Data Request (July 21, 2004) (on file with authors); Jesus Padilla, Timeline Relevant to Recidivism Study (Jan.
30, 2007) (on file with authors) [hereinafter Padilla, Timeline]; see also Padilla Testimony at 1224 ll. 4–13,
People v. McKee, No. MH97752 (Cal. Super. Ct. Mar. 11, 2011) (on file with authors) [hereinafter McKee
Padilla Testimony].
125. See Padilla, Timeline, supra note 124.
126. See text surrounding infra notes 146–49.
127. Padilla Testimony at 47 ll. 2–6.
128. Id. at 34 ll. 10–25.
129. Id. at 32 ll. 21–24.
130. Id. at 32 ll. 17–22.
131. See Memorandum from Jesus Padilla and Kabe Russell to Janice Marques 1 (Jan. 5, 2004) (on file with
authors) [hereinafter Memorandum to Marques].
132. R. KARL HANSON & DAVID THORNTON, STATIC 99: IMPROVING ACTUARIAL RISK ASSESSMENTS FOR SEX
OFFENDERS 1999-2002 AT 1-3; https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/sttc-mprvng-actrl/sttc-mprvngactrl-eng.pdf.
133. Brian Abbott & Karen Franklin, Static-99: A Bumpy Developmental Path, NEWS: FORENSIC PSYCHOL.,
CRIMINOLOGY & PSYCHOL.-L. (Apr. 19, 2015), http://forensicpsychologist.blogspot.com/2015/04/static-99-yetmore-bumps-on-rocky.html. See also SOPHIE G. REEVES ET AL., The Predictive Validity of the Static-99,
Static-99R, and Static-2002/R: Which One to Use? SEXUAL ABUSE 1, 2 (2017). There are four versions of the
instrument: Static-99, Static-99R, Static-2002, and Static-2002R. The Static-99 uses ten items to assess a
person’s risk, including number of prior sexual offenses and any stranger victims. REEVES ET AL. at 3. The
Static-99R is identical to the Static-99 except it has revised age weights, which will be described in footnote 248
infra. REEVES ET AL. at 8. The Static-2002 uses fourteen items to assess a person’s risk; eight are identical to
those used in the Static-99. Id. at 8. The Static-2002R is identical to the Static-2002 except it uses revised age

Electronic copy available at: https://ssrn.com/abstract=3202538

2018]

DOCTOR PADILLA’S DANGEROUS DATA

723

A total of 121 persons left Atascadero without significant exposure to its treatment program. Of these 121 persons, Padilla was able to obtain clear records of
extensive time in the community and detailed criminal record information for 93,
with an average documented time of 4.71 years living in community settings. As
Table 1, below, shows, just 6.5% were arrested for a contact sex crime, which
equates to an average annual rate of 1.27% per year. This was despite the fact that
their average Static-99 score was a six, which the scoring manual equates to a high
risk of recidivating.134
Table 1. California Non-Treated SVP Controls, Five-Year Prevalence for
Offending, Ninety-Three Untreated SVP Candidates.135
Any Sex Offense 6.5% (N = 6)
Any Other Arrest 30% (N = 28)
100% (N = 93)

A person with a score of six on the Static-99 was estimated as having a 36%
chance of being convicted of a new sexually violent offense within five years of
release, a 44% chance of being convicted of a new sexually violent offense within
ten years of release, and a 53% chance of being convicted of a new sexually violent
offense within fifteen years of release.136 That means that the released SVPs performed much better than expected based on their Static-99 score. The difference is
that much more striking considering that Padilla used arrests to measure recidivism, and the creators of the Static-99 used convictions. Since many arrests do not
end up in a conviction, the disparity would have been even greater if they had both
used arrests as their basis of measurement.
There were three elements of the Padilla design that made it a plausible indication
of community risk levels for SVPs if not confined. First, those who were almost
committed but then released were “highly similar” to committed SVPs.137 Not only
weights, similar to what is used in the Static-99R. Id. Each instrument has moderate accuracy in predicting sexual
recidivism, and using multiple instruments does not increase predictive accuracy. Id. at 17-18.
134. According to the scoring manual for the Static-99, a score of six is equal to a high risk of reoffending.
See L. HELMUS ET AL., STATIC-99R: REVISED AGE WEIGHTS (2009), http://www.static99.org/pdfdocs/static99randage20091005.pdf.
135. See ANDREW HARRIS ET AL., STATIC-99 CODING RULES REVISED-2003 77 app. 10 (2003), http://www.
static99.org/pdfdocs/static-99-coding-rules_e.pdf. Originally, the coding manual for the Static-99 recommended
that risk be conveyed as a numerical percentage. SEE HARRIS ET AL. at 71. In 2009, coding rules were changed to
recommend that risk instead be conveyed as a category ranging from low to high. SEE LESLIE HELMUS ET AL.,
Reporting Static-99 in Light of New Research on Recidivism Norms, The Forum 21 (1) Winter 2009, 38, 43. The
individuals whom Padilla and Russell studied were evaluated using the Static-99 before this change from
percentages to categories was made, and so we will use the published risk associated with this instrument.
136. See Memorandum from Jesus Padilla to Jim McEntee, October 10, 2008 (on file with authors).
137. Memorandum to Marques, supra note 131 (on file with authors).

Electronic copy available at: https://ssrn.com/abstract=3202538

724

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

were they the same average age, but they also had the same average Static-99 score
of six.138 Second, the subjects also all had at least two or more sexually violent predatory offenses. In addition, all of them had been found to be an SVP by two or more
DMH mental health providers based on having a currently diagnosed mental disorder that caused them to be at risk for committing a sexually violent offense.139 Last,
the research team did not exclude any member of the group of 121 for whom they
had reliable data.140 The numbers were probably too small for Dr. Padilla’s ambitions to serve as controls for a sustained study of differential treatment effects. But
we know of no other careful follow up on community risk of a recently released
untreated population so close to the profile of locked-up SVPs.
C. DMH’s Efforts to Quash the Study
In 2006, a public defender fighting his client’s SVP commitment heard about
the study and subpoenaed Padilla to appear in court. DMH tried unsuccessfully to
quash the subpoena141 on the grounds that the information was privileged and protected by HIPAA.142 The judge ordered Padilla to testify, but instructed him to provide only summary information.143 Padilla explained under oath that untreated
subjects who had all of the risk factors of the sexually violent predators committed
in California had just a 6.5% sexual recidivism rate after almost five years without
formal supervision in the community.144
After Padilla’s testimony, the study was halted in midcourse.145 Jon de Morales,
the new head of the Sex Offender Commitment Program (replacing someone who
had supported the study), accused Padilla and Russell of illegally accessing criminal history from the CELTS.146 Padilla showed Morales all the documentation
demonstrating that they had authorization to obtain this data, but it made no difference to Morales.147 DMH appointed an independent investigator, and on May 7,
2007, after a six-month investigation, Padilla and Russell were cleared of all
wrongdoing.148 The investigation determined that there was no violation of a
CLETS policy, practice, or procedure, and allowed the Atascadero staff whose
access to CLETS had been suspended to resume access.149
138. California data on file with authors.
139. See Memorandum to Blount, supra note 117; see also McKee Padilla Testimony. at 1231––32.
140. See Memorandum from Jesus Padilla to Jim McEntee (Oct. 10, 2006) (on file with authors).
141. See Dep’t of Mental Health, Notice of Compliance with Court Order RE: Motion to Quash Subpoena,
California v. Miller, CR 105735, July 15, 2008 (on file with authors).
142. See McKee Padilla Testimony, supra note 124, at 1275 ll. 7–12.
143. Id. at 1275 ll. 6–15.
144. See Padilla Deposition, supra note 38, at 57–58, 67–68.
145. See McKee Padilla Testimony, supra note 124, at 1228 ll. 8–27.
146. See Padilla Deposition supra note 38 , at 37 ll.
147. Id. at 38 ll. 7–12.
148. Email from James Rostron to Melvin Hunter (May 7, 2007, 09:19:56 AM), forwarded from Robert
Knapp to Jesus Padilla (May 7, 2007,10:34:37 AM) (on file with authors).
149. Id.

Electronic copy available at: https://ssrn.com/abstract=3202538

2018]

DOCTOR PADILLA’S DANGEROUS DATA

725

On June 5, 2007, Atascadero Chief Executive Melvin Hunter (who had
approved and supported the Padilla study) “abruptly retired” without offering any
reason why.150 Hunter was replaced by none other than Jon De Morales. On June
8, Morales sent Padilla a memorandum stating that his research project had been
terminated and that he was not authorized to use the previously gathered data for
publication, research, testimony, or any other purpose.151 The data was never
returned, and the physical boxes of documents were destroyed.152 Padilla was
forced to turn over his electronic copy when he left Atascadero later that summer
to become a member of the SVP Evaluators Panel.153
Despite this setback, Padilla and Russell attempted to continue the study. They were
told that because they were doing basic research and not program evaluation, they
would have to reapply.154 They submitted a new proposal to Atascadero, but were told
to go through DMH.155 They sent the proposal to DMH, but DMH said they could not
evaluate the proposal because they did not have a human subjects committee.156 They
then sent the proposal to the Health and Human Services committee which oversaw
DMH.157 Padilla received a call from the Head of Human Subjects who told him that it
was program evaluation and not basic research.158 They then went back to DMH, but
DMH said they had to go through Atascadero.159 They were now eighteen months into
the process, and it took Atascadero a few more months to respond.160 Finally, on
March 13, 2008, Morales sent them a memorandum informing them that they could
not conduct the recidivism study because they would need “legislation or approval
from the Department of Mental Health” to access the CLETS, and “[n]either ASH nor
DMH would permit ‘volunteers’ to conduct this research.”161
At this point, Padilla gave up trying to complete the study. He explained why
during a 2009 deposition:
150. Stephen Curran, ASH Executive Director Abruptly Retires Today, TRIBUNE (June 6, 2007), http://www.
sanluisobispo.com/news/article39104976.html.
151. Memorandum from Jon De Morales to Jesus Padilla (June 8, 2007) (on file with authors). Interestingly, in July
2017, one of us (Lave) contacted the Department of State Hospitals to find out when Jon De Morales became Director
of Atascadero State Hospital. According to DSH’s official records, Jon De Morales became the Interim Executive
Director of Atascadero State Hospital on August 24, 2007, and he stayed in that position until October 30, 2009. DSH
also stated via email that Melvin Hunter began transitioning out of his position as Executive Director of Atascadero on
August 24, 2007 and formally left on September 14, 2007. DSH had no explanation for why Morales was identifying
himself as Executive Director of Atascadero State Hospital more than two months before he became Interim Director.
See Emails from Department of State Hospitals (July 27–July 31, 2007) (on file with authors).
152. Padilla Deposition, supra note 38, at 43 ll. 15–18.
153. Id. at 43 ll. 18–24; see also Email from Jesus Padilla to Brenda Epperly-Ellis (June 6, 2007, 09:17 AM)
(on file with authors).
154. See Padilla Deposition, supra note 38, at 43 ll. 4–10.
155. Id. at 46 ll. 10–11.
156. Id. at 13–14.
157. Id. at 45 ll. 22–25.
158. Id. at 45 ll. 2–4.
159. Id. at 45 ll. 17–18.
160. Id. at 45 ll. 19–21.
161. Memorandum from Jon De Morales to Jesus Padilla and Kabe Russell (Mar. 13, 2008) (on file with authors).

Electronic copy available at: https://ssrn.com/abstract=3202538

726

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

So the next step is to go to (Governor) Jerry Brown and say: Please, you guys need to
do this research. We need it. You can’t not do it. You can’t just hide your head in the
sand and—you know. So that’s where it ended. I got tired of pursuing it. . . . It’s too
—it’s too hard to fight the system, you know. It’s too hard to get them to do this.162

The authors of this article heard about the study from a former public defender who
is now a Superior Court judge in San Diego. We emailed Dr. Padilla163 and arranged
a telephone call to discuss the study.164 Dr. Padilla was very responsive and gave us a
detailed account of what had happened. We then submitted a FOIA request to the
newly created Department of State Hospitals (DSH),165 but we were told that they
were “unable to verify any study on recidivism conducted by Jesus Padilla, PhD.”166
We shared DSH’s response with Dr. Padilla,167 and he sent us a packet of documents
pertaining to the study including internal memoranda, emails, and the signatory page
granting approval for the study.168 We cite to many of these documents in this article.
It was not until we sent a copy of Padilla’s 2004 research proposal with signed
approvals from multiple administrators—including Melvin Hunter, the Executive
Director of Atascadero State Hospital—that DSH agreed to continue looking into our
original request.169 It still took months of fighting before we received the underlying
data, and when we showed Dr. Padilla what we had received, he told us that the Excel
files had been tampered with.170 We had hoped that Dr. Padilla would be able to help
us repair the files so that we would be able to work with them, but he died of stomach
cancer in 2013.171 We then contacted Kabe Russell by telephone, but he told us that
he did not remember the files well enough to discuss and would not look at them.172
162. Padilla Deposition, supra note 38, at 42, 68.
163. See Email from Tamara Lave to Jesus Padilla (Sept.19, 2011, 06:41 AM) (on file with authors).
164. See Email from Jesus Padilla to Tamara Lave (Sept. 19, 2011, 11:39 AM) (on file with authors).
165. On July 1, 2012 DMH became the Department of State Hospitals. California’s Department of Mental
Health Transition to the New Department of State Hospitals, CAL. DEP’T STATE HOSPS., http://www.dsh.ca.gov/
Publications/Transition_and_Reorg.aspx (last visited Mar. 12, 2018).
166. See Letter from Alice Lee, Staff Counsel, Cal. Dep’t of Mental Health (Oct. 18, 2011) (on file with authors).
167. See Email from Tamara Lave to Jesus Padilla (Oct. 26, 2011, 02:56 PM) (on file with authors).
168. See Email from Jesus Padilla to Tamara Lave (Nov. 27, 2011, 12:17 PM) (on file with authors).
169. See Letter from Franklin Zimring and Tamara Rice Lave to Alice Lee, Staff Counsel, Cal. Dep’t of
Mental Health (Dec. 12, 2011) (on file with authors); see Letter from Alice Lee to Franklin Zimring (Feb. 17,
2012) (on file with authors).
170. Interview with Jesus Padilla, Ph.D. (June 25, 2012); Interview with Jesus Padilla Ph.D. (July 11, 2013); see
also Notes taken by Brian R. Abbott, Ph.D. from telephone consultation with Jesus Padilla (Dec. 4, 2008) at 5 (“An
attorney, Todd Melnik, subpoenaed DMH to provide him with the excel spreadsheets that contained all of Dr.
Padilla’s data. DMH provided Mr. Melnik pdf files containing excel spreadsheet information. Dr. Padilla reviewed
the pdf files Mr. Melnik obtained from DMH and found DMH had carved up spreadsheet and placed into files that
were essentially useless. Also, the data sent by DMH to Mr. Melnik was incomplete.”) (on file with authors).
171. See Email from Tamara Lave to Jesus Padilla (July 8, 2013, 03:06 PM) (on file with authors); Email from
Jesus Padilla to Tamara Lave (July 10, 2013, 1:05 PM) (on file with authors); Email from Tamara Lave to Jesus
Padillla (July 22, 2013, 04:15 PM) (on file with authors); Email from Tamara Lave to Jesus Padilla (July 24, 2013,
05:08 PM) (on file with authors); Email from Jesus Padilla to Tamara Lave, (July 25, 2013, 11:35 PM) (on file with
authors); Email from Tamara Lave to Jesus Padilla, (Aug. 6, 2013, 2:09 PM) (on file with authors); Email from Jesus
Padilla to Tamara Lave, (Aug. 6, 2013, 8:13 PM); Notes by Tamara Lave, (Dec. 17, 2013) (on file with authors).
172. See notes by Tamara Lave, (Mar. 17, 2014) (on file with authors).

Electronic copy available at: https://ssrn.com/abstract=3202538

2018]

DOCTOR PADILLA’S DANGEROUS DATA

727

We have no way of knowing the real reason why California halted the Padilla
study and then tried to bury it. Although our FOIA request asked why the study
was terminated, we never received an answer. The only explanation we have
comes from Jon De Morales’s June 8, 2007 memorandum in which he writes, “to
conduct research of this type, one would need to follow Special Order 288 and
gain separate approval from the DOJ to have access to criminal Offender
records.”173 We are dubious of this explanation for two reasons. First, we reviewed
Special Order No. 228, and it does not say anything about the special approval
Morales claimed was necessary.174 Second, just one month before, the independent
investigation had determined that Padilla and Russell did nothing wrong in accessing these records, even without the special approval supposedly necessary.
However, we can theorize as to why the study was terminated. To begin with, it is
certainly true that the recidivism results were much lower than anyone anticipated. In
2004, immediately after the study was approved, Kabe Russell wrote then Director
Hunter: “I’m hopeful that this data will confirm the importance of providing supervision and treatment for this high-risk group of patients.”175 Later, looking back on the
study, Padilla testified: “we were surprised by the recidivism rates. We expected the
recidivism rates to be thirty-seven, thiry-eight percent. Much higher [which] would
be consistent with . . . what the Static 99 [score] was showing.”176 Although the numbers were lower than expected, Padilla and Russell did not shy away from completing
the study, and neither did Director Hunter. Even after a preliminary analysis showed
that just 4% of untreated SVPs were rearrested for a new sex crime,177 Hunter
approved Padilla’s request to expand the study to include more people.178
Unfortunately, not everyone shared this same thirst for knowledge. Perhaps
higher-ups at DMH had not initially paid attention to the study because they did not
expect the results. Once Padilla testified, DMH may have realized the study had to be
stopped because it threatened the legitimacy of the entire SVP program. As explained
earlier, the only constitutionally acceptable rationale for SVP commitment is that
offenders are so dangerous that they must be locked away, and this study showed otherwise. If the SVP law were to be declared unconstitutional, it would threaten the
$147.3 million annual budget DMH (and now Department of State Hospitals)
receives for the civil commitment program. People have done far worse than bury a
study for a hundred million dollars.

173. Memorandum from Jon De Morales, supra note 151.
174. See Cal. Dep’t of Mental Health Special Order No. 228 (July 15, 1995).
175. Email from Kabe Russell to Melvin Hunter (Mar. 9, 2004, 09:03:48 AM).
176. McKee Padilla Testimony, supra note 124.
177. See Memorandum to Melvin Hunter from Jesus Padilla and Kabe Russell (July 14, 2004) (on file with
authors).
178. See Memorandum to Silva Blount from Jesus Padilla and Kabe Russell (July 21, 2004) (on file with
authors).

Electronic copy available at: https://ssrn.com/abstract=3202538

728

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

IV. ARE THE PADILLA RESULTS ACCURATE?
Although we had hoped to replicate Padilla’s findings, this proved impossible
due to the damaged data files.179 That left us to try and find other ways to test the
accuracy of the data.
A. General Data on Sex Offender Recidivism
Although the Padilla results may seem surprising, they are actually consistent with
other studies of sex offender recidivism. The largest U.S. follow-up study of released
sex offenders was published by the DOJ in 2016.180 It analyzed the recidivism of
20,422 persons released from prison in 2005 from thirty states after conviction for
rape or sexual assault.181 Recidivism was defined as re-arrest for a new crime, and the
follow-up period was five years.182 Figure 1 reports that 60.1% were rearrested for
any offense, but just 5.6% were rearrested for rape or sexual assault.183
Unfortunately, the DOJ researchers did not provide demographic data about the
sex offenders in their published report. In March 2017, we contacted Matthew
Durose, the chief author of the 2016 study, to ask for more detailed demographics
on the released sex offenders. Durose indicated that he would be unable to provide
that information at this time because it was still being analyzed. Since the 2003
DOJ study provides more fine-grained analysis, we will turn to it now.
Figure 1. Five Year Rearrest Rate for 20,422 Sex Offenders Released from
Prison, 30 U.S. States (2016).

179. Although DSH sent us an Excel version of the data, it had been internally divided. Because they had
removed names and any other identifying information, we had no way of following individuals from one Excel
sheet to the next. In addition, there were more individuals in the dataset than in the original study. We knew that
some of them had been dropped due to death or insufficient information, but we couldn’t determine who those
individuals were. Exacerbating things further was the fact that some files appeared to have been distorted.
Padilla’s memorandum provided information about those few released SVPs who had recidivated, and so we
should have been able to identify them in the Excel spread sheet, however, we were unable to do so.
180. DUROSE ET AL., supra note 94.
181. Id. at tbl. 1.
182. Id. at tbl. 2.
183. Id.

Electronic copy available at: https://ssrn.com/abstract=3202538

2018]

DOCTOR PADILLA’S DANGEROUS DATA

729

In 2003, the DOJ published what was then the largest study of American sex
offenders.184 Figure 2 reports the rate of re-arrests noted for all 9,691 men released
from prison in 1994 from fifteen states after conviction for a sex crime. Just as with
the 2016 study, the measure of possible recidivism is re-arrest rather than reconviction, a much looser standard than proven guilt.185-186
The overall arrest rate for released sex offenders was just over 40% in three
years, lower than the re-arrest frequencies for other types of incarcerated
offenders.187 Additionally, the overwhelming majority of re-arrests were not for
sexual offenses. For every 100 offenders placed on a Megan’s Law list to warn the
public of sexual danger, ninety-five showed no indication of repeat sexual offenses
in a three-year follow up.
1. Relevance of DOJ Studies for SVPs
One obvious problem with relying on the 2003 and 2016 DOJ studies to assess
the accuracy of the Padilla study is that released SVPs may be more dangerous
than released sex offenders. For that reason, it is critical to determine to what
extent the targets of SVP legislation differ from other sex offenders.188 Our
research demonstrated that there are two important respects in which persons confined as sexually violent predators differ from other sex offenders sentenced to, or
released from, prison:
Figure 2. Three Year Rearrest Rate for Sex Offenders Released from Prison,
15 U.S. States (2003).

Source: U.S. Dep’t of Just.

184. 2003 DOJ STUDY, supra note 99, at 1.
185. See id.
186. Id. at 1–2.
187. Id. at 2.
188. To answer that question, one of us wrote to each SVP state and requested information on SVP
commitments. Each state required more than one contact to provide information, and typically there were several
exchanges. Some states required requests in writing, and California mandated a formal FOIA request. Since no
state was willing to provide the criminal history of those committed, one of us read each of the SVP statutes to
learn how much prior sexual misconduct was required.

Electronic copy available at: https://ssrn.com/abstract=3202538

730

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

(1) The SVP population has longer records of sex offense convictions than
other sex offenders. (It should be noted, however, that no state currently
requires that a person have committed multiple crimes in order to qualify
as a sexually violent predator. Indeed, the laws specifically state that one
conviction for a qualifying offense is enough. The federal government does
not even require that the qualifying offense stem from a conviction.)
(2) SVPs are much older than other sex offenders.

Of these distinctive attributes of the SVP population, one is associated with
higher sex crime re-arrests,189 and the other is associated with lower re-arrests.190
The 2003 DOJ study reported that if a released sex offender was being punished
for his first sex crime arrest, his re-arrest rate for a sex offense in three years was
4.2%.191 However, released sex offenders with multiple priors were re-arrested at
nearly double that rate, 8.3%.192
So a longer record does have some impact on prospective risk in this population—an 8.3% probability instead of 4.2% probability.193 But older age at
release in the 2003 DOJ report cuts the re-arrest rate for sex crimes almost in
half, with 3.3% of the forty-five-and-over persons released re-arrested for a sex
crime versus 5.8% for the three youngest groups.194 Length of confinement in
the DOJ report was not associated with any trend in re-arrest for sex crimes,
with the four lowest sentence categories averaging a 4.5% sex crime re-arrest
rate as did the four highest of the eight-time served category.195
Figure 3 compares the ages of persons released from prison for sex crimes in the
DOJ study with the average age on entry to the California SVP program and the
current average age of a confined SVP.196 At that time there were 1,334 individuals
committed as SVPs in California.
B. Comparison with Other Studies
A better way to measure the empirical merit of Dr. Padilla’s sample of
ninety-three SVP candidates is to compare this study to other similar data sets
in the United States. The problem, as McReynolds and Sanders pointed out, is
that “by the nature of the laws themselves, almost all of those offenders who
get civilly confined are never in the community” because “only a small percentage of those sex offenders who have been civilly confined have been
189. See Monahan, supra note 29, at 423–24 (“Criminologists have repeatedly demonstrated that prior
violence and criminality are strongly associated with future violence and criminality. Indeed, no risk factor has
been more thoroughly studied and none have generated more reliable results.”).
190. Increased age is associated with lower recidivism. See infra notes 193–97.
191. 2003 DOJ STUDY, supra note 99, at 28.
192. Id.
193. Id. at 28 tbl. 30.
194. Id. at 25 tbl. 25.
195. Id. at 26 tbl. 26.
196. We computed the age as of May 13, 2014, which was the date that the Department of Hospitals generated
the data.

Electronic copy available at: https://ssrn.com/abstract=3202538

2018]

DOCTOR PADILLA’S DANGEROUS DATA

731

Figure 3. The Median Age of Released Sex Offenders in 15 States and
California SVPs.

Source: U.S. Dep’t of Just. and Cal. Dep’t of State Hosps.197

2003 DOJ STUDY, supra note 99, at 32; California data on file with authors.
released.”198 As a result, “it is difficult to determine whether those offenders who
become civilly confined are in fact the most likely to sexually recidivate.”199
Wilson, Looman, Abracen, and Pake were able to study the recidivism of
thirty-one SVPs who were released into the community after completing treatment
in Florida.200 Their average Static-99 score (5.86) was about the same as that in the
Padilla study (6), but the mean age at release (45.72) was lower than in the Padilla
study (50).201 Wilson et al. found that 3.2% (1/31) of the SVPs committed a new
sexual offense within 2.54 years of release from the Florida Civil Commitment
Center.202 These recidivism rates were “considerably below” the 26.2% projected
by the Static-99.203 “This suggests,” Wilson et al. wrote, “that, even though these
two programs may provide treatment to offenders substantively meeting the ‘highrisk/needs’ standard, the attendant actuarial normative data may not apply.”204 In
other words, the offenders may meet the criteria associated with being high risk,
but the risk of reoffending associated with that criteria may not apply to them.
Other researchers have looked at persons who were similar from a risk perspective
to committed SVPs,205 including those who were referred for SVP evaluation but not

198. See Larkin S. McReynolds & Jeffrey C. Sandler, Evaluating New York State’s Sex Offender Management
and Treatment Act: A Matched Historical Cohort Analysis, 23 CRIM. JUST. POL’Y REV. 164, 168 (2012).
199. Id.
200. Robin J. Wilson et al., Comparing Sexual Offenders at the Regional Treatment Centre (Ontario) and
the Florida Civil Commitment Center, 57 INT’L J. OFFENDER THERAPY & COMP. CRIMINOLOGY 377, 390
(2012).
201. See id. at 385.
202. Id. at 385.
203. Id. at 390.
204. Id. (citation omitted).
205. See McReynolds & Sandler, supra note 198, at 177 (created a matched historical cohort of offenders by
matching offenders who were almost committed under the Sex Offender Management and Treatment Act to

Electronic copy available at: https://ssrn.com/abstract=3202538

732

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

ultimately committed. Mercado, Jeglic, Markus, Hanson, and Levenson studied 102
“nearly committed” SVPs in New Jersey.206 These persons were independently evaluated and recommended for commitment by two mental health providers, but for
assorted reasons were not ultimately referred for commitment by the Attorney
General.207 Ten-and-a-half percent were convicted of a new sex offense during the average 6.5-year follow-up.208 The authors concluded:
Even among this highest risk group . . . detected rates of sexual recidivism
were still quite low. Given the exceptionally high cost of SVP commitment
and the fact that most new sexual offenses are not committed by known
offenders, policymakers should be encouraged to better balance estimated
crime prevention associated with SVP commitment with that of primary prevention techniques that may cast a wider net in terms of reducing sexual violence in the community.209

Duwe studied SVPs who were almost committed in Minnesota.210 By state
law, the Department of Corrections is required to refer high-risk offenders to
counties for civil commitment review.211 Duwe found that of the 161 persons
who were referred for civil commitment but not ultimately committed, just
6.5% were reconvicted of a new sex crime within four years of release.212
Duwe wrote, “What is worth emphasizing, however, is that although referred
(but not committed) offenders were more likely to reoffend sexually than the
non-referred offenders, their overall rate of reoffending (6.5%) was still
low.”213

offenders who were released from prison before SOMTA and finding that 11.6% were rearrested for a new sex
crime within five years of release from prison); see also Jeffrey Abracen & Jan Looman, Evaluation of Civil
Commitment Criteria in a High Risk Sample of Sexual Offenders, 1 J. SEXUAL OFFENDER CIV. COMMITMENT:
SCI. & L. 124, 131, 135 (2006) (studied 188 persons released from Regional Centre for Sex Offender Treatment
program who had been diagnosed with a mental disorder and had scored at least five on the Static-99; mean age
35.1; found that 13.3% were convicted for a new sexual offense within a 4.8-year period; “[t]he results of the
present study fail to support the validity of the criteria commonly used in SVP assessments . . . recidivism rates
were well below the standard set by SVP commitment criteria”).
206. CYNTHIA CALKINS MERCADO ET AL., SEX OFFENDER MANAGEMENT, TREATMENT, AND CIVIL
COMMITMENT: AN EVIDENCE BASED ANALYSIS AIMED AT REDUCING SEXUAL VIOLENCE 61 (2013), http://www.
ncdsv.org/images/SO-management-treatment-and-civil-commitment_9-2013.pdf. Unfortunately, these authors
did not include data on the age or Static-99 score of the almost committed.
207. Id.
208. Id.
209. Id. at 6.
210. Grant Duwe, To What Extent Does Civil Commitment Reduce Sexual Recidivism? Estimating the
Selective Incapacitation Effects in Minnesota, 42 J. CRIM. JUST. 193, 194 (2014).
211. Id. at 194.
212. Id. at 196–197.
213. Id. at 197.

Electronic copy available at: https://ssrn.com/abstract=3202538

2018]

DOCTOR PADILLA’S DANGEROUS DATA

733

The Washington State Institute for Public Policy has published the most influential
studies of risk posed by committed SVPs,214 but that may be because until 2012
there were no other published studies.215
The Institute followed a group of 135 SVP-eligible persons released from prison
who did not get civil commitment.216 These subjects were followed in communities for a total of six years, and research showed a much higher rate of sex
Exhibit 1217 Most Serious New Offense.
Type of Offense

Number of Offenders

Percentage of Offenders

Felony
Sex
Violent (not sex)
Violent Total
Non-Violent
Felony Total

31
14
45
22
67

23%
10%
33%
16%
50%
Misdemeanor

Sex
Violent (not sex)
Non-Violent
Misdemeanor Total

3
5
13
21

2%
4%
10%
16%

Failure to Register

5

4%

Total Recidivism

93

69%

Source: Milloy, Six Year Follow-Up (2007)

214. See CHERYL MILLOY, WASH. STATE INST. FOR PUB. POL’Y, SIX-YEAR FOLLOW-UP OF 135 RELEASED SEX
OFFENDERS RECOMMENDED FOR COMMITMENT UNDER WASHINGTON’S SEXUALLY VIOLENT PREDATOR LAW, WHERE
NO PETITION WAS FILED 1 (June 2007) [hereinafter MILLOY, SIX YEAR FOLLOW-UP 2007], http://www.wsipp.wa.gov/
ReportFile/985/Wsipp_Six-Year-Follow-Up-of-135-Released-Sex-Offenders-Recommended-for-CommitmentUnder-Washington-s-Sexually-Violent-Predator-Law-Where-No-Petition-Was-Filed_Full-Report.pdf; CHERYL
MILLOY, WASH. STATE INST. FOR PUB. POL’Y, SIX YEAR FOLLOW-UP OF RELEASED SEX OFFENDERS
RECOMMENDED FOR COMMITMENT UNDER WASHINGTON’S SEXUALLY VIOLENT PREDATOR LAW, WHERE NO
PETITION WAS FILED 1 (2003) [hereinafter MILLOY, SIX YEAR FOLLOW-UP 2003], http://www.wsipp.wa.gov/
ReportFile/844/Wsipp_Six-Year-Follow-Up-of-Released-Sex-Offenders-Recommended-for-CommitmentUnder-Washingtons-Sexually-Violent-Predator-Law-Where-No-Petition-Was-Filed_Full-Report.pdf. See
generally DONNA SCHRAM & CHERYL DARLING MILLOY, WASH . STATE INST. FOR PUB . POL’Y , SEXUALLY
V IOLENT PREDATORS AND CIVIL COMMITMENT : A STUDY OF THE CHARACTERISTICS AND RECIDIVISM OF
SEX OFFENDERS CONSIDERED FOR CIVIL COMMITMENT BUT FOR W HOM PROCEEDINGS WERE DECLINED 1
(1998), http://www.wsipp.wa.gov/ReportFile/1278/Wsipp_Sexually-Violent-Predators-and-Civil-Commitment_
Full-Report.pdf.
215. See McReynolds & Sandler, supra note 198, at 168 (“The only three studies on the public safety impact of sex
offender civil commitment published to date . . . were conducted by the Washington State Institute for Public Policy.”)
216. See MILLOY, SIX YEAR FOLLOW-UP 2007, supra note 214, at 1.
217. Id. at 3.

Electronic copy available at: https://ssrn.com/abstract=3202538

734

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

offending recidivism than the five-year follow up reported by Padilla or that of the
other studies described above. Washington State reported 33% of the released SVP
candidates were later convicted of a sex offense felony; an additional 2% were
convicted of a misdemeanor sex offense, and almost 70% of the group was convicted of some offense. What the authors called Exhibit 1 is reproduced here.
This data was presented as evidence that the SVP classification was a highly significant predictor of future danger:
[T]he distinctiveness of the select subpopulation of sex offenders in the current study is clearly illustrated by a comparison of this group’s recidivism
rates to those of an overall population of released Washington State sex
offenders. The offenders who were referred for possible civil commitment
have a much higher pattern of recidivism . . . .218

The difference in results between the Padilla and Washington State study is
particularly striking considering the study designs. The Washington State study
had an identical six-year follow up period for each person.219 The Padilla study,
by contrast, followed all offenders from the time they were released, which for
some was as early as 1996.220 Even though the study was halted in 2007, Padilla
was still able to follow some offenders for eleven years. Furthermore, in contrast
to Washington State, Padilla subtracted any time that subjects spent in custody
from the duration of the follow-up period, which meant that the arrest rate was
only based on periods of being at risk in community settings.221 In addition,
unlike the Washington State study,222 Padilla did not just rely on recidivism data
provided in government databases. He contacted the prosecutors in the counties
where SVPs were released to see if they had been rearrested.223 With more time
in the community to reoffend and more ways of detecting it, we would have
expected to see higher rates of reoffending in Padilla’s study, not lower.
1. Reconciling the Data Conflict
The most significant difference in results between the Padilla and the
Washington State Institute studies is the estimate of the prevalence of sex offending, as this is the central justification for SVP commitment. In just under five years
of street time, 6.5% of the Padilla group was arrested for a contact sex crime, or an
average of 1.27% per year. In contrast, the reported rate of sex crime convictions
was twenty-five percent over six years in Washington or an average of 4.2% per
217. Id. at 3.
218. Id. at 8.
219. Id. at 1.
220. See Memorandum to Jim McEntee (Oct. 10, 2008) (on file with authors); Excel Data File on file with
authors.
221. See Padilla Deposition, supra note 38, at 50 l. 10, 52 l. 20.
222. See MILLOY, SIX YEAR FOLLOW-UP 2007, supra note 214, at 3.
223. See Padilla Deposition, supra note 38, at 50 l. 10, 52 l. 20.

Electronic copy available at: https://ssrn.com/abstract=3202538

2018]

DOCTOR PADILLA’S DANGEROUS DATA

735

year.224 Although the prevalence rates in both studies are far below the 50% to
90% prospective dangerousness estimate put forth by the Kansas legislature in justifying its SVP law, they are still very different. How can these results be
reconciled?
Age is a key difference between the groups studied by Padilla and Washington
State that can explain the significant difference in recidivism rates. The
Washington group is much younger on average than the SVP population in
California, and the effect of age on sex crime risk is huge in the Washington data.
Here is the age-specific sex offense risk published in detail for the first time in
2007 by the Washington authors in their third report on the project. Only average
age of release was published in the 1998 study,225 and the 2003 study contained no
age information at all.226
Table 2. Washington Sex Offense Recidivism by Age at Inclusion in Risk
Group
Age

Conviction of Sex Felony

Number of Persons

18–29

39%

(N = 28)

30–39

18%

(N = 57)

40–49

29%

(N = 34)

501

0

(N = 16)

TOTAL

23% (31)

(N= 135)

Source: Milloy, Six Year Follow-Up (2007)227

The 33% aggregate rate for sex felony combines age groups with radically different risks of sexual recidivism, ranging from 39% to 0%. In the Washington
study, no offenders who were fifty or older when released had any later reconvictions.228 The reason this extremely low risk group does not have more impact on
224. See MILLOY, SIX YEAR FOLLOW-UP 2007, supra note 214, at 3. The authors use an average to emphasize
the difference between the two studies. The authors acknowledge, however, that recidivism is most likely to
occur the first year after release, dropping every year after that. As Harris and Hanson explained, “For all crimes
(and almost all behaviours) the likelihood that the behaviour will reappear decreases the longer the person has
abstained from that behaviour. The recidivism rate within the first two years after release from prison is much
higher than the recidivism rate between years 10 and 12 after release from prison.” ANDREW J.R. HARRIS & R.
KARL HANSON, PUB. SAFETY & EMERGENCY PREPAREDNESS CANA, SEX OFFENDER RECIDIVISM: A SIMPLE
QUESTION 1 (2004), https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/sx-ffndr-rcdvsm/sx-ffndr-rcdvsm-eng.pdf.
Harris and Hanson found that the rate of recidivism in the populations they studied decreased by half every five
years. Id. at 9.
225. SCHRAM & MILLOY, supra note 214, at 4.
226. See MILLOY, SIX YEAR FOLLOW-UP 2003, supra note 214.
227. MILLOY, SIX YEAR FOLLOW-UP 2007, supra note 214, at 6–7.
228. Id. at 7.

Electronic copy available at: https://ssrn.com/abstract=3202538

736

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

the aggregate is because the Washington group is a very young one—63% of the
SVP-eligible offenders in this group were under forty, and only 12% were over
fifty. Because there were so many more high-risk young offenders than low risk
older ones, the overall recidivism rate was skewed higher.
In contrast, the California group of SVPs that Padilla studied was almost certainly
vastly older. Padilla testified that the average age of the subjects was “about fifty.”229
We were unable to get more specific information about Padilla’s dataset because he
was barred from discussing his findings in detail, and as noted earlier, the excel files we
received from the Department of State Hospitals had been tampered with. Fortunately,
we were able to obtain commitment data from the Department of State Hospitals on the
1,334 currently committed SVPs in California. The median and average age at commitment was the same: fifty-two. The median and average age of the currently committed
was fifty-eight.230 Therefore, we can be confident that the population that Padilla studied
was much older than that studied by the Washington State Institute.
Once age is accounted for, the California data is perfectly consistent with the
Washington data, and California risks are the correct estimates for the current
California SVP population. Rather than serving as a basis for confining all these
older SVPs, the Washington data suggests they will pose a low risk of sexually
offending if they are released into the community.
The irony is that Padilla and Russell were specifically interested in looking at the
impact of age on recidivism when they designed their study. “We know that the FBI
crime data shows that men over 50 have a very low recidivism rate,” Russell
wrote,231 “[w]hat we don’t know is whether that same trend holds for high risk
offenders such as SVPs.”232 The much higher average age in their ninety-three-person group (and in California’s SVP lock ups) provides a good test of the sexual dangerousness of older SVPs. The aggregate rate at 6.5% is much more representative
of the risks of sexual recidivism posed by the usually older SVP populations.
B. Other Studies on Age and Recidivism
Importantly, Padilla’s findings are consistent with other studies that examined
the impact of age on sex offending. In 2002, Hanson used data from ten followup studies of adult male sex offenders ages eighteen to seventy and above (combined sample of 4,673) to study the relationship between age and sexual recidivism. He found that, “[i]n the total sample, the recidivism rate declined steadily
with age,” and “[t]he association was linear.”233 Similarly, Prentky and Lee
227. MILLOY, SIX YEAR FOLLOW-UP 2007, supra note 214, at 6–7.
229. See Padilla Deposition, supra note 38, at 63, l. 19.
230. Data on file with authors.
231. Email from Kabe Russell to mlispcomb@flacc.om, cc. Diane Inrem, Jesus Padilla, rbriody@flacc.com,
(Mar. 3, 2004, 03:49:23 PM) (on file with authors).
232. Id.
233. R. Karl Hanson, Recidivism and Age: Follow-Up Data from 4,673 Sexual Offenders, 17 J.
INTERPERSONAL VIOLENCE 1046, 1053 (2002).

Electronic copy available at: https://ssrn.com/abstract=3202538

2018]

DOCTOR PADILLA’S DANGEROUS DATA

737

studied the age effect on a cohort of 136 rapists and 115 child molesters with
multiple priors who had been civilly committed to a Massachusetts prison and
then released in 1959 and followed for twenty-five years.234 They found that
with rapists, recidivism dropped linearly as a function of age. With child
molesters they found that recidivism increased from age twenty to age forty and
then declined slightly at age fifty and significantly at age sixty.235 Other
researchers have reported similar results.236
IV. WHY THE PADILLA STUDY MATTERS
It would be hard to ignore a study showing that the vast majority of recently
released individuals committed under the current SVP regime did not recidivate.
The range of sexual danger found in the Padilla study is not substantial enough to
justify permanent confinement, and this finding threatens the entire SVP apparatus.
If SVPs are no different than the “dangerous but typical recidivist convicted in an
ordinary criminal case,”237 then the state has no constitutionally permissible reason
to continue locking them away.
And make no mistake; if SVP laws were to be declared unconstitutional, it
would have a tremendous financial impact on the institutions used to house and
treat SVPs. In 2006, the total civil commitment budget across the country totaled
$454.7 million, with SVP states spending an average of $94,017 per year on each
234. Robert Alan Prentky & Austin F.S. Lee, Effect of Age-at-Release on Long Term Sexual Re-offense Rates
in Civilly Committed Sexual Offenders, 19 SEXUAL ABUSE: J. RES. & TREATMENT 43, 45–47 (2007). Prentky and
Lee’s sample was small and included offenders with a higher base rate of recidivism than those drawn from the
general prison population.
Although this latter consideration must be regarded as a limitation in terms of generalizability, it
may also be seen as a strength of the study. Presumably, using a higher risk sample is a more
severe test of the age-crime hypothesis, providing confirmatory support for the rapists and “amplifying” or exaggerating the quadratic blip in Hanson’s (2002) data for child molesters.
Id. at 58.
235. Id. at 53.
236. See Howard E. Barbaree et al., Aging Versus Stable Enduring Traits as Explanatory Constructs in Sex
Offender Recidivism: Partitioning Actuarial Prediction into Conceptually Meaningful Components, 36 CRIM.
JUST. & BEHAV. 443, 443, 459, 463 (2009) (“A large body of evidence has recently accumulated indicating that
recidivism in sex offenders decreases with the age of the offender at the time of his release . . . .”); Patrick Lussier
et al., Criminal Trajectories of Adult Sex Offenders and the Age Effect: Examining the Dynamic Aspect of
Offending in Adulthood, 20 INT’L CRIM. JUST. REV. 147, 164 (2010) (offering “several explanations as to why
older sex offenders represent a lower risk of recidivism”); Patrick Lussier & Jay Healey, Rediscovering Quetelet,
Again: The “Aging” Offender and the Prediction of Reoffending in a Sample of Adult Sex Offenders, 26 JUST. Q.
827, 838–40 (2009) (finding that the risk of recidivism decreases with age); John Monahan et al., Age, Risk
Assessment, and Sanctioning: Overestimating the Old, Underestimating the Young, 41 LAW & HUM. BEHAV.
191, 197 (2017) (After finding that the Post Conviction Risk Assessment Instrument (PCRA) overestimates
recidivism risk among older offenders, the authors argue that all instruments should better take age into account);
Richard Wollert et al., Recent Research (N = 9,305) Underscores the Importance of Using Age-Stratified
Actuarial Tables in Sex Offender Risk Assessments, 22 SEXUAL ABUSE: J. RES. AND TREATMENT 471, 471, 484
(2010) (concluding that “evaluators should report recidivism estimates from age stratified tables when they are
assessing sexual recidivism risk, particularly when evaluating the aging sex offender”).
237. Kansas v. Crane, 534 U.S. 407, 413 (2002).

Electronic copy available at: https://ssrn.com/abstract=3202538

738

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

committed SVP.238 California’s civil commitment budget was the highest at
$147.3 million,239 and it has grown to at least $288.8 million per year.240
The implications of the Padilla findings extend beyond California. As noted above, an
important protective factor against recidivism is advanced age, and the group Padilla studied is similar in age to currently committed SVPs across the country. According to the
2016 SOCCPN report, the age range of residents across programs was nineteen to eightyfive, and the average age was fifty-two, with a standard deviation of 6.96.241 This average
includes Pennsylvania, which only has an SVP civil commitment program for juveniles.242 The average age of residents in Pennsylvania’s program is twenty-five.243 With
Pennsylvania subtracted, the average age of SVPs across programs was fifty-three.244
In addition, we have gathered some age-specific information from several SVP
states. Table 3 shows the median age at admission and the median age of all incarcerated SVPs for six states, including Washington.
Table 3. Median Age of Incarcerated SVPs.
Median Age at Admission

Median Age of Currently Confined

Arizona

44

48

Iowa

49

52

Missouri

46

51

New Jersey

42

48

Washington

41

48

Wisconsin

40

47

Source: Data from SVP States (on file with authors).

238. See KATHY GOOKIN, WASH. STATE INST. FOR PUB. POL’Y, COMPARISON OF STATE LAWS AUTHORIZING
INVOLUNTARY COMMITMENT OF SEXUALLY VIOLENT PREDATORS: 2006 UPDATE, REVISED 5 (2007), http://www.
wsipp.wa.gov/ReportFile/899/Wsipp_Involuntary-Commitment-of-Sexually-Violent-Predators-ComparingState-Laws_Full-Report.pdf.
239. Id.
240. According to the California Sex Offender Management Board, the in-patient cost to the state of treating
SVPs is about $200,000 per person. CAL. SEX OFFENDER MGMT. BD., ANNUAL REPORT 2016 39 (2016), http://
www.casomb.org/docs/2016_CASOMB_Annual_Report-FINAL.PDF. After serving a FOIA request on the
Department of State Hospitals, we were provided with an Excel file giving us information about the currently
committed SVPs in California. According to that information, there were 1,334 SVPS committed as of May 13,
2014. Confining 1,334 SVPs at a cost of $200,000 per person would cost $266.8 million per year.
241. SOCCPN 2016 ANNUAL SURVEY, supra note 7, at 19.
242. Under Pennsylvania’s program, a determination is made as to whether a juvenile can be released into the
community upon turning 21 or whether he should be committed to the state’s inpatient civil commitment
program. Frequently Asked Questions, PA. SEXUAL OFFENDERS ASSESSMENT BD., http://www.soab.pa.gov/
FortheCommunity/FAQs/Pages/default.aspx (last visited Mar. 12, 2018).
243. SOCCPN 2016 ANNUAL SURVEY, supra note 7, at 19.
244. Email from Jennifer Schneider, Principle Author, (July 11, 2017) (on file with author).

Electronic copy available at: https://ssrn.com/abstract=3202538

2018]

DOCTOR PADILLA’S DANGEROUS DATA

739

In all six states, the average SVP was forty or older when admitted to the program,
and the median age of these prospectively dangerous persons was forty-eight, within two
years of the category that demonstrated no risk in the Washington study. A majority of
the California, Missouri, and Iowa SVPs were over fifty. In Washington, even with the
second youngest age at admission of those states we were able to gather data from, the
average age in the state program was forty-eight. Almost half of the Washington program
population was in the group with no recorded sex re-arrests in the Washington study.
Even more remarkable is that the Padilla subjects had two characteristics that
should have placed them at higher risk of reoffending than currently committed
SVPs. First, California law at the time required that a person have two or more sexually violent predatory prior offenses in order to be committed as an SVP. Now every state, including California, requires just one. This difference matters because
increased criminal history is correlated with higher risk of recidivating. In addition,
the average Static-99 score of currently committed SVPs across the country is
actually lower than in Padilla’s sample. According to the Static 99 and 2016
SOCCPN annual report, the average Static-99 score across programs was 4.69,245
which is below the average score from Padilla’s study. According to the scoring
manual for the Static-99R, a score of five would actually place those individuals at
moderate-high risk of reoffending.246 As previously noted, the average score in the
Padilla study was six, which equates to a high risk of reoffending. That means that
SVPs across the country would be expected to do even better than Padilla’s sample
if released into the community.
CONCLUSION
SVP laws are premised on the fact that they are incapacitating dangerous sex
offenders who would be committing sexually violent crimes if released into
the community. The only other possible justification—that these individuals
deserve to be punished because they committed reprehensible crimes—would violate
245. 2016 SOCCPN ANNUAL SURVEY, supra note 7, at 27.
246. HELMUS ET AL., supra note 134. The creators of the instrument recommend that evaluators switch from the
Static-99 to the Static-99R. Regardless of which instrument they choose, they should use the coding rules for the Static99R. However, the age weights are different between the two instruments. AMY PHENIX ET. AL., Static-99R Coding
Rules, Revised-2016 at 4. http://static99.org/pdfdocs/Coding_manual_2016_InPRESS.pdf. The Static-99 instrument was
criticized for failing to adequately take into account how advancing age lowers the risk of recidivism. See REEVES ET AL.
supra note 133 at 4 (internal citations omitted). In 2009, HELMUS ET AL. modified the Static-99 to try and address this
problem. The Static-99 asks evaluators to score someone on whether they are older or younger than 25, but the Static99R breaks age into four sub-categories. Evaluators are instructed to add one point to a person’s risk score if they are
between the ages of 18-34.9, add zero points if they are between the ages of 35-49.9, subtract one point if they are
between the ages of 40-59.9, and subtract three points if they are over the age of 60. See HELMUS ET AL., supra note 134
at Static-99R Coding Form. The Static-99R does not address the problems raised by this article for two major reasons.
First, many evaluators have not switched from the Static-99 to the Static–99R. Even if they have switched, the Static99R has only been in existence since 2009, and so many SVPs could only have been committed using the Static-99.
Second, the Static-99R has been criticized within the research literature on a number of serious grounds, which calls into
question its accuracy in predicting risk. See REEVES ET AL., supra note 133 at 4.

Electronic copy available at: https://ssrn.com/abstract=3202538

740

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

the Constitution’s double jeopardy prohibition.247 Thus, prevention is not merely the
most important objective of SVP strategy; it is the only legitimate legal objective.
Despite the critical importance of dangerousness, the Supreme Court upheld the constitutionality of Kansas’s SVP law without requiring any actual proof that SVPs would
commit predatory sex crimes if released. If the justices had looked for empirical proof
instead of simply deferring to the assertions of the Kansas legislature, they would have
seen that sex offenders actually have a low recidivism rate. Indeed, the DOJ has published
three major studies—in 1997, 2003, and 2016—that have all shown that the vast majority
of convicted sex offenders do not recidivate once released from prison. Of particular note
is the 2016 DOJ study, which found just 5.6% of 20,422 convicted sex offenders were
rearrested for rape or sexual assault within five years of release from prison.248
And yet sexually violent predator laws are necessarily premised on the idea that
SVPs are different than run-of-the-mill sex offenders, which means the DOJ studies
may be irrelevant in assessing their danger. What we really need then are studies
that look specifically at how released SVPs perform in the community, but conducting such a study is difficult because most SVPs are never released. Indeed, we know
of only two studies that have examined how released SVPs fare in the community.
The Padilla study was shut down after it showed a 6.5% recidivism rate for 4.8 years
at risk in the community. The Washington State Institute study, which initially
appeared to support the notion that SVPs are extremely dangerous, ended up being
consistent with the Padilla results once attention was focused on the offenders’ age.
Padilla’s study and the statistics in Table 2 from the Washington study undermine any
theory of fixed levels of sexual violence risk. The men in Washington who were fifty or
older when eligible for SVP status had historical records of prior sex offending that were
almost certainly as long as the younger group. When had they become so low risk that no
member of the population re-offended? It can’t have been that a treatment program succeeded, because they weren’t treated. Age alone seems to have diminished the propensity
to sexually offend. If so, the notion of fixed and immutable danger requires reconsideration.
Even though most of the SVPs that California locks up are over fifty now, it is
unlikely that they will ever be released. Like all other SVP states, California now
makes commitment indeterminate249—in effect presuming that the risk a person poses
at the age of forty remains the same when he is fifty, sixty, or even ninety. The Padilla
study demonstrates why states should be required at the very least to prove recidivism
danger at regular intervals, as California used to do. Putting the burden on the committed person to prove he is no longer dangerous is not a legitimate alternative. The
politics of crime and fear of sex offenders mean that someone like Mr. Hendricks,
who is now eighty-three-years-old and confined to a wheelchair, will never prevail.

247. See Jones v. United States, 463 U.S. 354, 374 (1983) (Brennan, J., dissenting).
248. See DUROSE ET AL., supra note 94, at tbl. 2.
249. DEIRDRE M. D’ORAZIO ET AL., CAL. COAL. ON SEXUAL OFFENDING, THE CALIFORNIA SEXUALLY
VIOLENT PREDATOR STATUTE: HISTORY, DESCRIPTION, & AREAS FOR IMPROVEMENT 17 (2009), https://ccoso.org/
sites/default/files/CCOSO%20SVP%20Paper.pdf.

Electronic copy available at: https://ssrn.com/abstract=3202538

2018]

DOCTOR PADILLA’S DANGEROUS DATA

741

The ironic result of allowing state governments to make up their own theories of
prospective sexual danger and never to test their hunches goes beyond the wasteful
and unjust incarceration of elderly men with histories of sex offenses. Detailed and
careful empirical study could provide much better evidence of the age and other
characteristics of persons who have significant offending risks. For that reason, we
urge the Bureau of Justice Statistics to resurrect and continue the Padilla study
with what would now be a significant follow-up period. Until such research is conducted, we will never know whether the true legacy of Kansas v. Hendricks
includes not just unjust confinement but also an allocation of limited resources
with no focus on populations of maximum danger. Justice and community safety
demand the truth.

Electronic copy available at: https://ssrn.com/abstract=3202538

AMERICAN CRIMINAL LAW REVIEW

742

[Vol. 55:705

APPENDIX 1
SVP Danger Requirement – All States and Federal Government
State

Statute

Standard for SVP
commitment

Definition

Arizona

Ariz. Rev.
Stat. Ann.
§§ 363701(7)
(a), (b)
(West
2017)

7. “Sexually violent person” means a person to
whom both of the following apply:
(a) Has ever been convicted of or found guilty
but insane of a sexually
violent offense or was
charged with a sexually
violent offense and was
determined incompetent
to stand trial.
(b) Has a mental disorder
that makes the person
likely to engage in acts of
sexual violence.

Term “likely” in
Sexually Violent Persons
(SVP) Act’s requirement
that an SVP must exhibit
“a mental disorder that
makes the person likely
to engage in acts of sexual violence” means
more than probable or
highly probable. In re
Leon G., 59 P.3d 779,
786–87 (Ariz. 2002).

California

Cal. Welf.
& Inst.
Code §§
6600(a)(1)
(West
2014)

(a)(1) “Sexually violent
predator” means a person
who has been convicted
of a sexually violent
offense against one or
more victims and who has
a diagnosed mental disorder that makes the person
a danger to the health and
safety of others in that it
is likely that he or she
will engage in sexually
violent criminal behavior.

Under the Sexually
Violent Predator Act
(SVPA), a person is
“likely” to engage in sexually violent criminal
behavior, i.e., reoffend, if
he or she presents a substantial danger, that is, a
serious and well-founded
risk, that he or she will
commit such crimes if
free in the community.
People v. McKee, 223
P.3d 566 (Cal. 2010), at
571.

D.C.

D.C. Code
Ann. §§
22-3803
(West
1994)

(1) The term “sexual psychopath” means a person,
not insane, who by a
course of repeated misconduct in sexual matters
has evidenced such lack
of power to control his or
her sexual impulses as to
be dangerous to other

“Likely” is not defined.
The following was found
in the notes of decision:
Habeas corpus petitioner,
who was under hospital
commitment as a sexual
psychopath, was not entitled to release on the
ground that he was not

Electronic copy available at: https://ssrn.com/abstract=3202538

DOCTOR PADILLA’S DANGEROUS DATA

2018]

743

Continued
State

Federal

Statute

18 U.S.C.
§ 4247(5),
(6) (2012)

Standard for SVP
commitment

Definition

persons because he or she
is likely to attack or otherwise inflict injury, loss,
pain, or other evil on the
objects of his or her
desire.

mentally ill, as psychiatric testimony established
that petitioner was still a
sexual psychopath who
was likely to be of danger
to others if permitted to
return to society. D.C.
C.E. § 22-3503(1).
Clatterbuck v. Harris,
295 F. Supp. 84, 85 (D.D.
C. 1968).
No case law clarifies definition of ‘likely’

Definitions from Adam
Walsh Act. “(5) ‘sexually
dangerous person’ means
a person who has engaged
or attempted to engage in
sexually violent conduct
or child molestation and
who is sexually dangerous to others.”

“(6) ‘(S)exually dangerous to others’ with
respect to a person,
means that the person
suffers from a serious
mental illness, abnormality, or disorder as a result
of which he would have
serious difficulty in
refraining from sexually
violent conduct or child
molestation if released.”
“While “likely” indicates
more than a mere propensity or possibility, it is
not bound to the statistical probability inherent
in a definition such as
“more likely than not,”
and the terms are not
interchangeable. To conclude that “likely”
amounts to a quantifiable
probability, absent a
more specific statutory
expression of such a
quantity, is to require
mathematical precision
from a term that, by its
plain meaning, demands

Electronic copy available at: https://ssrn.com/abstract=3202538

744

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

Continued
State

Statute

Standard for SVP
commitment

Definition
contextual, not statistical,
analysis.” Commonwealth v. Boucher, 880
N.E.2d 47, 50 (Mass.
2002).

Florida

Fla. Stat.
Ann. §
394.912
(West
2016)

(10) “Sexually violent
predator” means any person who:
(a) Has been convicted of
a sexually violent offense;
and
(b) Suffers from a mental
abnormality or personality disorder that makes
the person likely to
engage in acts of sexual
violence if not confined in
a secure facility for longterm control, care, and
treatment.

(4) “Likely to engage in
acts of sexual violence”
means the person’s propensity to commit acts of
sexual violence is of such
a degree as to pose a
menace to the health and
safety of others.

Illinois

725 Ill.
Comp.
Stat. Ann.
207/5
(West
2013)

(f) “Sexually violent person” means a person who
has been convicted of a
sexually violent offense,
has been adjudicated
delinquent for a sexually
violent offense, or has
been found not guilty of a
sexually violent offense
by reason of insanity and
who is dangerous because
he or she suffers from a
mental disorder that
makes it substantially
probable that the person
will engage in acts of sexual violence.

“Likely” is not defined
within the statute. The
following came from the
Notes of Decision: Term
“substantially probable,”
as used in statute defining
a sexually violent person,
in part, as a person who
suffers from a mental disorder that makes it substantially probable that
the person will engage in
acts of sexual violence,
means “much more likely
than not.” In re
Commitment of Dodge,
989 N.E.2d 1159 (Ill.
App. 1st Dist. 2013).
The term “substantially
probable,” for purposes
of the statute defining a
sexually violent person,

Electronic copy available at: https://ssrn.com/abstract=3202538

DOCTOR PADILLA’S DANGEROUS DATA

2018]

745

Continued
State

Statute

Standard for SVP
commitment

Definition
in part, as a person who
suffers from a mental disorder that makes it substantially probable that
the person will engage in
acts of sexual violence,
means “much more likely
than not” rather than
“practically
certain.”5 The statute
relating to involuntary
commitment of a sexually violent person, by
requiring a finding
beyond a reasonable
doubt that the individual
is dangerous because he
or she suffers from mental disorder that makes it
substantially probable
that he or she will engage
in further acts of sexual
abuse, sufficiently narrows the persons eligible
for confinement to satisfy
the constitutional
requirement of serious
difficulty in controlling
behavior. In re
Commitment of Curtner,
972 N.E.2d 351 (Ill. App.
Ct. 4th Dist. 2012); In re
Detention of Hayes, 747
N.E.2d 444 (Ill. App. 2d
Dist. 2001).
“We determine that the
phrase ‘substantially
probable’ in the Act also
means ‘much more likely
than not,’ a standard
higher than or equal to
the ‘likely’ standard
found constitutional

Electronic copy available at: https://ssrn.com/abstract=3202538

746

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

Continued
State

Statute

Standard for SVP
commitment

Definition
in Hendricks. However,
we emphasize that this
definition cannot be
reduced to a mere mathematical formula or statistical analysis.” People v.
Hayes (In re Hayes), 747
N.E.2d 444, 453 (Ill.
App. 2d Dist. 2001).

Iowa

Iowa Code
Ann. §
229A.12
(West
2014)

“Sexually violent predator” means a person who
has been convicted of or
charged with a sexually
violent offense and who
suffers from a mental abnormality which makes
the person likely to
engage in predatory acts
constituting sexually violent offenses, if not confined in a secure facility.”

“Likely to engage in
predatory acts of sexual
violence” means that the
person more likely than
not will engage in acts of
a sexually violent nature.
If a person is not confined
at the time that a petition
is filed, a person is
“likely to engage in predatory acts of sexual violence” only if the person
commits a recent overt
act.

Kansas

Kan. Stat.
Ann. § 5929a02.
(West
2014)

K.S.A. 59-29a02.
Commitment of sexually
violent predators; definitions.
(a) “Sexually violent
predator” means any person who has been convicted of or charged with
a sexually violent offense
and who suffers from a
mental abnormality or
personality disorder
which makes the person
likely to engage in repeat
acts of sexual violence.
(b) “Mental abnormality”
means a congenital or
acquired condition affecting the emotional or

(c) “Likely to engage in
repeat acts of sexual violence” means the person’s propensity to
commit acts of sexual
violence is of such a
degree as to pose a menace to the health and
safety of others.

Electronic copy available at: https://ssrn.com/abstract=3202538

DOCTOR PADILLA’S DANGEROUS DATA

2018]

747

Continued
State

Statute

Standard for SVP
commitment

Definition

volitional capacity which
predisposes the person to
commit sexually violent
offenses in a degree constituting such person a
menace to the health and
safety of others.
Massachusetts

Mass. Gen.
Laws ch.
123A, §§ 1
(West
2010)

“Sexually dangerous person”, any person who has
been (i) convicted of or
adjudicated as a delinquent juvenile or youthful
offender by reason of
a sexual offense and who
suffers from a mental abnormality or personality
disorder which makes
the person likely to
engage in sexual offenses
if not confined to a secure
facility; (ii) charged with
a sexual offense and was
determined to be incompetent to stand trial and
who suffers from a mental
abnormality or personality disorder which makes
such person likely to
engage in sexual offenses
if not confined to a secure
facility; or (iii) previously
adjudicated as such by a
court of the commonwealth and whose misconduct in sexual matters
indicates a general lack of
power to control
his sexual impulses, as
evidenced by repetitive or
compulsive sexual misconduct by either violence against any victim,
or aggression against any

“Likely” is not explicitly
defined in the statute.
The cases in the notes of
decision repeatedly refer
to the definition as
“likely to engage in sexual offenses if not confined”.
Nothing in Jury
Instructions.
“While likely indicates
more than a mere propensity or possibility, it is
not bound to the statistical probability inherent
in a definition such as
“more likely than not,”
and the terms are not
interchangeable. To conclude that likely amounts
to a quantifiable probability, absent a more specific statutory expression
of such a quantity, is to
require mathematical
precision from a term
that, by its plain meaning, demands contextual,
not statistical, analysis.”
Commonwealth v.
Boucher, 880 N.E.2d 47,
50 (Mass. 2002).

Electronic copy available at: https://ssrn.com/abstract=3202538

748

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

Continued
State

Statute

Standard for SVP
commitment

Definition

victim under the age of 16
years, and who, as a
result, is likely to attack
or otherwise inflict injury
on such victims because
of his uncontrolled or
uncontrollable desires.
Minnesota

Minn. Stat.
Ann. §
253D.02
(West
2013)
“Minnesota
Commitment and
Treatment
Act:
Sexually
Dangerous
Persons
and Sexual
Psychopathic
Personalities”

This standard of commitment came from the notes
of decision. Commitment
pursuant to the sexual
psychopathic personality
statute requires there be
(1) a habitual course of
misconduct in sexual matters, (2) an utter lack of
power to control sexual
impulses so that (3) it is
likely the person will
attack or otherwise inflict
injury, loss, pain, or other
evil on the objects of their
uncontrolled and uncontrollable desire. In re
Preston, App.2001, 629
N.W.2d 104, 110 (Minn.
2001).
A “sexually dangerous
person” is defined as a
person who has engaged
in a course of harmful
sexual conduct, has manifested a sexual, personality, or other mental
disorder or dysfunction,
and as a result, is likely to
engage in acts of harmful
sexual conduct.

From the notes of decision: In a commitment
action under the sexual
psychopathic personality
statute, where utter
uncontrollability of sexual impulses is found, the
district court, in predicting serious danger to the
public, should consider
six factors: (1) the
offender’s relevant demographic characteristics, (2) the offender’s
history of violent behavior (with special attention
to recency, severity, and
frequency of violent
acts), (3) the base rate
statistics for violent
behavior among individuals of this offender’s
background, (4) the sources of stress in the environment, (5) the
similarity of the present
or future context to those
contexts in which the
person has used violence
in the past, and (6) the
person’s record with
respect to sex therapy
programs. In re Preston,
629 N.W.2d 104 (Minn.
App. 2001).
No jury instructions.

Electronic copy available at: https://ssrn.com/abstract=3202538

DOCTOR PADILLA’S DANGEROUS DATA

2018]

749

Continued
State

Statute

Standard for SVP
commitment

Definition
“We now clarify that the
SDP Act allows civil
commitment of sexually
dangerous persons who
have engaged in a prior
course of sexually harmful behavior and whose
present disorder or dysfunction does not allow
them to adequately control their sexual
impulses, making it
highly likely that they
will engage in harmful
sexual acts in the future.”
In re Linehan, 594 N.
W.2d 867, 876 (Minn.
1999).

Missouri

Mo. Ann.
Stat. §§
632.480.513
(2015)

(5) ”Sexually violent
predator”, any person
who suffers from a mental
abnormality which makes
the person more likely
than not to engage in
predatory acts of sexual
violence if not confined in
a secure facility and who:
(a) Has pled guilty or
been found guilty in this
state or any other jurisdiction, or been found not
guilty by reason of mental
disease or defect pursuant
to section 552.030, of a
sexually violent offense;
or
(b) Has been committed
as a criminal sexual psychopath pursuant
to section 632.475 and
statutes in effect before
August 13, 1980.

“Likely” is not defined
separately in the statute.
With regard to the phrase
“more likely than not” in
the statute defining a sexually violent predator as
any person who suffers
from a mental abnormality which makes the person more likely than not
to engage in predatory
acts of sexual violence if
not confined in a secure
facility, there is no numerical correlation, it is
left to the common sense
of the trier of fact, and it
is not a matter of whether
the actuarials say the person is more than 50 percent likely to reoffend.
Underwood v. State, 519
S.W.3d 861, 877 (Mo.
App. W. Dist. 2017).
(2) ”Mental

Electronic copy available at: https://ssrn.com/abstract=3202538

750

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

Continued
State

Statute

Standard for SVP
commitment

Definition
abnormality”, a congenital or acquired condition
affecting the emotional
or volitional capacity
which predisposes the
person to commit sexually violent offenses in a
degree constituting such
person a menace to the
health and safety of
others;
The court or jury shall
determine whether, by
clear and convincing evidence, the person is a
sexually violent predator.
The person also must be
found to suffer from “a
mental abnormality
which makes the person
more likely than not to
engage in predatory acts
of sexual violence if not
confined in a secure facility.”
“Although the instructions used below required
findings that “the respondent is more likely
than not to engage in
predatory acts of sexual
violence if he is not confined,” this is not enough
because they did not
require the juries to “distinguish the dangerous
sexual offender whose
mental illness, abnormality or disorder subjects
him to civil commitment
from the dangerous but
typical
recidivist” Thomas v.
State (In re Thomas), 74

Electronic copy available at: https://ssrn.com/abstract=3202538

DOCTOR PADILLA’S DANGEROUS DATA

2018]

751

Continued
State

Statute

Standard for SVP
commitment

Definition
S.W.3d 789, 792 (Mo.
2002).

Nebraska

Neb. Rev.
Stat. Ann.
§ 71-1201
to -1226

The statute cross references the terms defined in
section 83-174.01.
Dangerous sex offender;
terms, defined
(1) Dangerous sex offender means (a) a person
who suffers from a mental
illness which makes the
person likely to engage in
repeat acts of sexual violence, who has been convicted of one or more sex
offenses, and who is substantially unable to control his or her criminal
behavior or (b) a person
with a personality disorder which makes the person likely to engage in
repeat acts of sexual violence, who has been convicted of two or more sex
offenses, and who is substantially unable to control his or her criminal
behavior;

(2) Likely to engage in
repeat acts of sexual violence means the person’s
propensity to commit sex
offenses resulting in serious harm to others is of
such a degree as to pose a
menace to the health and
safety of the public;

New
Hampshire

N.H. Rev.
Stat. Ann.
§ 135-E:1–
E:2
(2010).

XII. “Sexually violent
predator” means any person who:
(a) Has been convicted of
a sexually violent offense;
and
(b) Suffers from a mental
abnormality or personality disorder that makes
the person likely to
engage in acts of sexual
violence if not confined in
a secure facility for long-

VI. “Likely to engage in
acts of sexual violence”
means the person’s propensity to commit acts of
sexual violence is of such
a degree that the person
has serious difficulty in
controlling his or her
behavior as to pose a
potentially serious likelihood of danger to others.

Electronic copy available at: https://ssrn.com/abstract=3202538

752

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

Continued
State

Statute

Standard for SVP
commitment

Definition

term control, care, and
treatment.
New Jersey

N.J. Stat.
Ann. §§
30:4-27.26
(West
1999).

“Sexually violent predator” means a person who
has been convicted, adjudicated delinquent or
found not guilty by reason
of insanity for commission of a sexually violent
offense, or has been
charged with a sexually
violent offense but found
to be incompetent to stand
trial, and suffers from a
mental abnormality or
personality disorder that
makes the person likely to
engage in acts of sexual
violence if not confined in
a secure facility for control, care and treatment.

“Likely to engage in acts
of sexual violence”
means the propensity of a
person to commit acts of
sexual violence is of such
a degree as to pose a
threat to the health and
safety of others.

New York

N.Y.
Mental
Hyg. Law
§§ 10.01.17
(McKinney 200167)

(e) “Dangerous sex offender requiring confinement” means a person
who is a detained sex offender suffering from a
mental abnormality
involving such a strong
predisposition to commit
sex offenses, and such an
inability to control behavior, that the person is
likely to be a danger to
others and to commit sex
offenses if not confined to
a secure treatment facility.
(q) “Sex offender requiring civil management”
means a detained sex offender who suffers from a
mental abnormality. A

Likely is not defined in
the statute. But, the following can be found in
the “trial” portion of the
statute: Section 10.07: If
the court finds by clear
and convincing evidence
that the respondent has a
mental abnormality
involving such a strong
predisposition to commit
sex offenses, and such an
inability to control
behavior, that the respondent is likely to be a
danger to others and to
commit sex offenses if
not confined to a secure
treatment facility, then
the court shall find the respondent to be a

Electronic copy available at: https://ssrn.com/abstract=3202538

DOCTOR PADILLA’S DANGEROUS DATA

2018]

753

Continued
State

North
Dakota

Statute

N.D. Cent.
Code Ann.
§§ 2503.3-01–
24 (West
2013)

Standard for SVP
commitment

Definition

sex offender requiring
civil management can, as
determined by procedures
set forth in this article, be
either (1) a dangerous sex
offender requiring confinement or (2) a sex offender requiring strict and
intensive supervision.
(r) “Sex offender requiring strict and intensive
supervision” means a
detained sex offender
who suffers from a mental
abnormality but is not a
dangerous sex offender
requiring confinement.

dangerous sex offender
requiring confinement.
This definition applies to
New York County only;
there is no binding statewide case law that clarifies.
“It is not enough to find
that it is ‘more likely
than not’ that the
Respondent meets the
requisite criteria. This
Court must be satisfied
that it is ‘highly probable’ that the Respondent
will commit the kinds of
‘hands-on’ sexual crime
which qualifies as a ‘sex
offense’.” State v. P.H.,
929 N.Y.S.2d 203, 2011
1884732, at *24 (N.Y.
Supp. Ct. 2011).

“Sexually dangerous individual” means an individual who is shown to have
engaged in sexually predatory conduct and who
has a congenital or
acquired condition that is
manifested by a sexual
disorder, a personality
disorder, or other mental
disorder or dysfunction
that makes that individual
likely to engage in further
acts of sexually predatory
conduct which constitute
a danger to the physical
or mental health or safety
of others. It is a rebuttable
presumption that sexually
predatory conduct creates
a danger to the physical

The phrase “likely to
engage in further acts of
sexually predatory conduct,” for the purposes of
adjudicating a sex offender as a sexually dangerous person means that
the offender’s propensity
towards sexual violence
is of such a degree as to
pose a threat to others. N.
D. Cent. Code Ann. §
25–03.3–13 (West 2013).
NDCC 25-03.3-13. In re
B.V., 708 N.W.2d 877
(N.D. 2006).

Electronic copy available at: https://ssrn.com/abstract=3202538

754

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

Continued
State

Statute

Standard for SVP
commitment

Definition

or mental health or safety
of the victim of the conduct. For these purposes,
intellectual disability is
not a sexual disorder, personality disorder, or other
mental disorder or
dysfunction.
Pennsylvania

42 Pa.
Cons. Stat.
Ann. §
9799.12

“Sexually violent predator.” An individual determined to be
a sexually violent predator
under section 9795.4
(relating to assessments)
prior to the effective date
of this subchapter or an
individual convicted of an
offense specified in:[ . . . ]
or (9)
who, on or after the effective date of this subchapter, is determined to be
a sexually
violent predator under
section 9799.24 (relating
to assessments) due to a
mental abnormality or
personality disorder that
makes the individual
likely to engage
in predatory
sexually violent offenses.
The term includes an individual determined to be
a sexually
violent predator or similar
designation where the
determination occurred in
another jurisdiction, a foreign country or by court
martial following a judicial or administrative
determination pursuant to

Likely is not defined
within the statute.
“Mental abnormality.” A
congenital or acquired
condition of a person that
affects the emotional or
volitional capacity of the
person in a manner that
predisposes that person
to the commission of
criminal sexual acts to a
degree that makes the
person a menace to the
health and safety of other
persons.
Nothing in the jury
instructions.

Electronic copy available at: https://ssrn.com/abstract=3202538

DOCTOR PADILLA’S DANGEROUS DATA

2018]

755

Continued
State

Statute

Standard for SVP
commitment

Definition

a process similar to that
under section 9799.24.
In addition, the term shall
include any person convicted between January
23, 2005, and December
19, 2012, of any offense
set forth in section
9799.13(3.1) (relating to
applicability) determined
by a court to be a sexually
violent predator due to a
mental abnormality or
personality disorder that
made the person likely to
engage in predatory sexually violent offenses,
which person shall be
deemed a sexually violent
predator under this
subchapter.
South
Carolina

S.C. Code
Ann. § 4448-30
(West
2012)

(1) “Sexually violent
predator” means a person
who:
(a) has been convicted of
a sexually violent offense;
and
(b) suffers from a mental
abnormality or personality disorder that makes
the person likely to
engage
in acts of sexual violence
if not confined in a secure
facility for long-term control, care, and treatment.
(3) “Mental abnormality”
means a mental condition
affecting a person’s emotional or volitional
capacity that predisposes
the person to commit sexually violent offenses.

(9) “Likely to engage
in acts of sexual violence”
means the person’s propensity to commit acts of
sexual violence is of such
a degree as to pose a
menace to the health and
safety of others.

Electronic copy available at: https://ssrn.com/abstract=3202538

756

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

Continued
State

Statute

Standard for SVP
commitment

Definition

Texas

Tex.
Health &
Safety
Code Ann.
§ 841.003
(West
2015)

a) A person is a sexually
violent predator for the
purposes of this chapter if
the person:
(1) is a
repeat sexually violent offender; and
(2) suffers from a behavioral abnormality that
makes the person likely to
engage in a predatory act
of sexual violence.

“Likely” is not defined,
but behavior abnormality
is defined as:
” Behavioral abnormality” means a congenital
or acquired condition
that, by affecting a person’s emotional or volitional capacity,
predisposes the person to
commit a sexually violent offense, to the extent
that the person becomes
a menace to the health
and safety of another person. Tex. Health &
Safety Code Ann. §
841.002 (West 2015)
A secondary source confirms there is no case
clarifying a definition for
“likely” in Texas.
No jury instructions.

Virginia

VA Code
Ann. §
37.2-900
to -920
(West
2009)

““Sexually violent predator” means any person
who (i) has been convicted of a sexually
violent offense, or has
been charged with
a sexually violent offense
and is unrestorably
incompetent to stand trial
pursuant to § 19.2-169.3;
and (ii) because of a mental abnormality or personality disorder, finds it
difficult to control
his predatory behavior,
which makes him likely
to engage
in sexually violent acts.”

“Likely” is not defined
within the statute.
However, mental abnormality or personality disorder is defined as:
“Mental abnormality” or
“personality disorder”
means a congenital or
acquired condition that
affects a person’s emotional or volitional
capacity and renders the
person so likely to commit sexually violent
offenses that he constitutes a menace to the
health and safety of
others.”
Nothing in Jury
Instructions.
“It is not necessary for an

Electronic copy available at: https://ssrn.com/abstract=3202538

DOCTOR PADILLA’S DANGEROUS DATA

2018]

757

Continued
State

Statute

Standard for SVP
commitment

Definition
expert to state with specificity that the respondent
will likely engage in sexually violent acts in the
future; rather, the determination whether the respondent is likely to
engage in sexually violent acts” as defined in
Code § 37.2-900 “by
clear and convincing evidence is an issue of fact
to be determined by the
court or jury upon consideration of the whole
record.” DeMille v.
Commonwealth, 720 S.
E.2d 69, 74 (Va. 2012).

Washington

Wash.
Rev. Code
Ann.
§71.09.020
(7) (West
2015)

“Likely to engage in predatory acts of sexual violence if not confined in a
secure facility”

“(T)he person more probably than not will engage
in such acts if released
unconditionally from
detention on the sexually
violent predator
petition.”

Wisconsin

Wis. Stat.
Ann.
§ 980.01–
980.14
(West
2016)

980.01(7) “Sexually violent person” means a person who has been
convicted of a sexually
violent offense . . . and
who is dangerous because
he or she suffers from a
mental disorder that
makes it likely that the
person will engage in one
or more acts of sexual
violence.

980.01(1m) “Likely”
means more likely than
not.

Electronic copy available at: https://ssrn.com/abstract=3202538

758

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

APPENDIX 2

Analysis of Evidence for SVP Dangerousness cited by State Supreme Courts
in Upholding Laws
State

Case

Mention

Data on
sex
offenders
generally

Data on
released
SVPs

Arizona250

State v. Erhlich, 59
P.3d 779, 787 (Ariz.
2002)
In re Leon G., 59 P.3d
779 (Ariz. 2002)
(same as above case)

“(T)he legislature noted that,
for a ‘small
but extremely
dangerous
group of sexually violent
predators,’ the
‘likelihood of
the sex
offenders
engaging in
repeat acts of
predatory sexual violence is
high.’” (787)

No

No

California251

Hubbart v. Superior
Court, 969 P.2d 584
(Cal. 1999)

“In recent
years, lawmakers across
the country
have perceived
a link between
certain diagnosable mental
disorders and
violent sexual
behavior that
is criminal in
nature.”(587)
“In describing
the underlying
purpose, the
Legislature

No

No

250. ARIZ. REV. STAT. ANN. § 36-3701(6)(a) (2017).
251. CAL. PENAL CODE § 288(a) (West 2017); CAL. WELF. & INS. CODE § 6601(b) (West 2017).

Electronic copy available at: https://ssrn.com/abstract=3202538

2018]

DOCTOR PADILLA’S DANGEROUS DATA

759

Continued
State

Case

Mention

Data on
sex
offenders
generally

expressed concern over a
select group of
criminal
offenders who
are extremely
dangerous as
the result of
mental impairment, and who
are likely to
continue committing acts of
sexual violence even after they have
been punished
for such
crimes.”(587)
“An uncodified statement
accompanying
the Act reads,
in full, as follows: “The
Legislature
finds and
declares that a
small but
extremely dangerous group
of sexually
violent predators that have
diagnosable
mental disorders can be
identified
while they are
incarcerated.
These persons
are not safe to

Electronic copy available at: https://ssrn.com/abstract=3202538

Data on
released
SVPs

760

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

Continued
State

Case

Mention

Data on
sex
offenders
generally

be at large and
if released represent a danger
to the health
and safety of
others in that
they are likely
to engage in
acts of sexual
violence . . . .
The
Legislature
further finds
and declares
that while
these individuals have been
duly punished
for their criminal acts, they
are, if adjudicated sexually
violent predators, a continuing threat to
society. The
continuing
danger posed
by these individuals and
the continuing
basis for their
judicial commitment is a
currently diagnosed mental
disorder which
predisposes
them to
engage in sexually violent

Electronic copy available at: https://ssrn.com/abstract=3202538

Data on
released
SVPs

2018]

DOCTOR PADILLA’S DANGEROUS DATA

761

Continued
State

Case

Mention

Data on
sex
offenders
generally

Data on
released
SVPs

No

No

behavior.”(587, n.5)
“The Kansas
Legislature
found that sexually violent
predators were
highly likely
to reoffend,
and that confinement and
treatment was
necessary to
reduce the
‘risk’ such
individuals
pose to society.”(594) (citing Hendricks,
521 U.S. at
351)
Florida252

Westerheide v.
Florida, 831 So. 2d 93
(Fla. 2002)

“The
Legislature
concluded that
the existing
involuntary
commitment
procedures
under the
Baker Act are
inadequate to
treat ‘a small
but extremely
dangerous
number of sexually violent
predators.’ §
394.01- Fla.
Stat. (2001)

252. FLA. STAT. § 800.04 (2017).

Electronic copy available at: https://ssrn.com/abstract=3202538

762

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

Continued
State

Case

Mention

Data on
sex
offenders
generally

The
Legislature
further recognized that ‘the
prognosis for
rehabilitating
sexually violent predators
in a prison setting is poor,
the treatment
needs of this
population are
very long
term, and the
treatment
modalities for
this population
are very different from [those
for individuals
who are committed] under
the Baker
Act.’”(99)
“The Supreme
Court noted
the following
factors as evidence that the
act was not punitive: the
State “disavowed any punitive intent’;
limited confinement to a small
segment of particularly dangerous individuals . . . .” (100)
“Further, the

Electronic copy available at: https://ssrn.com/abstract=3202538

Data on
released
SVPs

2018]

DOCTOR PADILLA’S DANGEROUS DATA

763

Continued
State

Case

Mention

Data on
sex
offenders
generally

affirmative
restraint of ‘a
small but
extremely
dangerous
number of
sexually violent predators’
who ‘pose [a
risk] to society’ because
they are
‘likely to
engage in
criminal, sexually violent
behavior,’
394.910, Fla.
Stat. (2001), is
a ‘classic
example of
nonpunitive
detention.’”
(100) (citing
Hendricks,
521 U.S. at
363).
“The
Legislature
has the final
word on declarations of public policy, and
the courts are
bound to give
great weight
to legislative
determinations of facts.
Further, legislative determinations of

Electronic copy available at: https://ssrn.com/abstract=3202538

Data on
released
SVPs

764

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

Continued
State

Case

Mention

Data on
sex
offenders
generally

Data on
released
SVPs

No

No

public purpose
and facts are
presumed correct and entitled to
deference,
unless clearly
erroneous.”
(Citations
omitted” (101)
“The
Legislature
has determined that
these individuals pose a
risk to society
because there
is a high likelihood that
they will
engage in
repeat acts of
predatory sexual violence.”(102)
Iowa253

In re Ewoldt, 634 N.
W.2d 622 (Iowa 2001)

“As the State
urges, the
legislature has
recognized
that ‘the treatment needs of
[sexually violent predators]
are very longterm.’”(624)

253. IOWA CODE ANN. § 229A.2(11)(b)(4), (d) (West 2017); id. at § 725.3.

Electronic copy available at: https://ssrn.com/abstract=3202538

2018]

DOCTOR PADILLA’S DANGEROUS DATA

765

Continued
State

Case

Mention

Data on
sex
offenders
generally

Data on
released
SVPs

Kansas254

In re Care &
Treatment of
Hendricks, 912 P.2d
129 (Kan. 1996) rev’d
sub nom. Kansas v.
Hendricks, 521 U.S.
346 (1997).

“The Act is a
product of the
1994 legislative session . . .
The legislature’s stated
reasons for
enacting a
comprehensive scheme
for commitment of sexually violent
predators
appear in K.S.
A. 59-29a01:
‘The legislature finds that
a small but
extremely dangerous group
of sexually
violent predators exist who
do not have a
mental disease
or defect that
renders them
appropriate for
involuntary
treatment pursuant to the
treatment act
for mentally ill
persons
defined in K.S.
A. 59-2901 et

No

No

254. KAN. STAT. ANN. § 59-29a02 e(6) (2015);

Electronic copy available at: https://ssrn.com/abstract=3202538

AMERICAN CRIMINAL LAW REVIEW

766

[Vol. 55:705

Continued
State

Case

Mention

Data on
sex
offenders
generally

Data on
released
SVPs

No

No

No

No

seq. . . . The
legislature further finds that
sexually violent predators’
likelihood of
engaging in
repeat acts of
predatory sexual violence is
high.”(250)
Illinois255

In re Samuelson, 727
N.E.2d 228 (Ill.
2000).
In re Varner, 759 N.
E.2d 560 (Ill. 2001),
vacated, 537 U.S. 802
(2002).

Massachusetts256

Commonwealth v.
Bruno, 735 N.E.2d
1222 (Mass. 2000).

“These particular features of
the temporary
commitment
scheme reflect
the
Legislature’s
concern with
protecting the
public from
harm by persons who are
soon to be
released and
who are likely
to be sexually
dangerous.”
(1233)

255. 725 ILL. COMP. STAT. ANN. 207/5 (West 2018); 720 ILL. COMP. STAT. ANN. 5/11-6 (West 2018).
256. MASS. GEN. LAWS ANN. ch. 6, § 178C (LexisNexis 2017); id. at ch. 272, § 35A.

Electronic copy available at: https://ssrn.com/abstract=3202538

DOCTOR PADILLA’S DANGEROUS DATA

2018]

767

Continued
State

Case

Mention

Data on
sex
offenders
generally

Data on
released
SVPs

Minnesota257

In re Blodgett, 510 N.
W.2d 910 (Minn.
1994)
NOTE: Sexual psychopath case

“Here the
compelling
government
interest is the
protection of
members of
the public
from persons
who have an
uncontrollable
impulse to sexually assault.”
(914)
“. . . the argument ignores
the fact that
the sexual
predator poses
a danger that is
unlike any
other.” (917)

No

No

In re Linehan, 594 N.
W.2d 867 (Minn.
1999)

“We then
reviewed
adequate
grounds
for civil commitment of
mentally disordered and
dangerous persons, and concluded that the
SDP Act was
enacted to protect the public
from sexual
predators with
mental

No

No

257. MINN. STAT. ANN. § 253B.02 (West 2018); id. at § 609.345.

Electronic copy available at: https://ssrn.com/abstract=3202538

768

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

Continued
State

Case

Mention

Data on
sex
offenders
generally

Data on
released
SVPs

No

No

disorders ‘who
retain enough
control to
‘plan, wait,
and delay the
indulgence of
their maladies
until represented with a
higher probability of success.’’” (875)
Missouri258

In re Norton, 123 S.
W.3d 170 (Mo. 2003)

“The State has
a compelling
interest in protecting the
public from
crime. This interest justifies
the differential
treatment of
those persons
adjudicated as
sexually violent predators
when, as determined by the
legislature,
such mental
abnormality
makes them
distinctively
dangerous
because of the
substantial
probability
that they will

258. MO. ANN. STAT. § 632.480 (West 2017); id. § 566.068.

Electronic copy available at: https://ssrn.com/abstract=3202538

2018]

DOCTOR PADILLA’S DANGEROUS DATA

769

Continued
State

Case

Mention

Data on
sex
offenders
generally

Data on
released
SVPs

No

No

commit future
crimes of sexual violence if
not confined in
a secure facility.” (174)
Nebraska

J.R. v. Mental Health
Bd., 762 N.W.2d 305
(Neb. 2009)

“The explicit
purpose of
SOCA is to
protect the
public from
sex offenders
who continue
to pose a threat
of harm to
others.”(319)
“Mentally ill
sex offenders
are different
from mentally
ill persons
who are not
sex offenders
due to the sexual nature of
their crimes.
Sex offenders
are generally
more dangerous to others
than are the
mentally ill,
because of the
high probability of recidivism and the
unique nature
of their crimes.
The
Legislature
has defined a

Electronic copy available at: https://ssrn.com/abstract=3202538

AMERICAN CRIMINAL LAW REVIEW

770

[Vol. 55:705

Continued
State

Case

Mention

Data on
sex
offenders
generally

Data on
released
SVPs

No

No

dangerous sex
offender as
one who is
substantially
unable to control his or her
desire or urge
to commit sex
offenses.
Dangerous sex
offenders pose
a greater harm
to society
because of
their inability
to control their
behavior,
which invariably results in
harm to
others.” (323).
New
Hampshire259

State v. Ploof, 34 A.3d
563 (N.H. 2011)

“In enacting
RSA chapter
135-E, the
legislature explicitly found
that sexually
violent predators have special treatment
needs and
present unique
risks to society. As the
statute provides, ‘a small
but extremely
dangerous

259. N.H. REV. STAT. ANN. § 135-E:2(XI) (2017).

Electronic copy available at: https://ssrn.com/abstract=3202538

DOCTOR PADILLA’S DANGEROUS DATA

2018]

771

Continued
State

Case

Mention

Data on
sex
offenders
generally

Data on
released
SVPs

No

No

number of sexually violent
predators exist
who have antisocial personality features
which are
unamenable to
existing mental illness
treatment
modalities,
and those features render
them likely to
engage in
criminal, sexually violent
behavior.’”(577)
New Jersey260

In re W.Z., 801 A.2d
205 (N.J. 2002)

“In enacting
the SVPA, the
Legislature
found that ‘[c]
ertain individuals who commit sex
offenses suffer
from mental
abnormalities
or personality
disorders
which make
them likely to
engage in
repeat acts of
predatory

260. N.J. STAT. ANN. § 30:4-27.26 (West 2017); id. § 2C:14-3; id. § 2C:14-2.

Electronic copy available at: https://ssrn.com/abstract=3202538

772

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

Continued
State

Case

Mention

Data on
sex
offenders
generally

Data on
released
SVPs

Yes

No

sexual violence if not
treated.’”(211)
New York261

State of New York v.
Robert V., 929 N.Y.
S.2d 203, 2011 WL
13644522011, at *2.

“Determining
that some sex
offenders have
mental abnormalities that
predispose
them to
engage in
repeated sex
offenses, the
Legislature
enacted
SOMTA
which provides that a
person who is
determined to
be a detailed
sex offender
with a mental
abnormality,
as those terms
are defined in
. . . would be
subject to civil
management
after that person had served
his or her
criminal sentence.” (4)
“New York is
one of 18 other
states and the

261. N.Y. CORRECT. LAW § 168-a(3)(a)(i) (McKinney 2018); N.Y. PENAL LAW § 130.65 (McKinney 2018).

Electronic copy available at: https://ssrn.com/abstract=3202538

2018]

DOCTOR PADILLA’S DANGEROUS DATA

773

Continued
State

Case

Mention

Data on
sex
offenders
generally

District of
Columbia and
the federal
government to
have enacted
civil confinement statutes
such as
SOMTA with
the intent of
addressing ‘a
compelling
need . . . to
protect residents of this
state from sex
criminal
whose recidivism is predictable and
uncontrollable.’”(7-8)
“According to
the legislative
history of
SOMTA, there
is a high rate
of recidivism
among certain
sex offenders
and certain sex
offenders suffer from a
mental abnormality that
prevents them
from controlling their sexual offending
behavior . . . .
Unfortunately,
despite these

Electronic copy available at: https://ssrn.com/abstract=3202538

Data on
released
SVPs

774

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

Continued
State

Case

Mention

Data on
sex
offenders
generally

legislative
decrees, there
is scant empirical evidence
to support the
bases asserted
by the
Legislature in
enacting
SOMTA. With
respect to the
rate of recidivism of sex
offenders,
numerous
studies have
found that the
recidivism rate
for sex
offenders in
the United
States is quite
low . . . .
Indeed, sex
offenders
apparently reoffend at lower
rates than nonsex offenders
....
Notwithstanding the erroneous and unsupported foundations upon
which the
legislature
premised
SOMTA, in a
5-4 decision in
1997 in
Kansas v.

Electronic copy available at: https://ssrn.com/abstract=3202538

Data on
released
SVPs

2018]

DOCTOR PADILLA’S DANGEROUS DATA

775

Continued
State

Case

Mention

Data on
sex
offenders
generally

Hendricks, the
Supreme
Court deferred
to these same
legislative
misconceptions in
upholding the
constitutionality of a comparable statutory
scheme . . . .
Despite the
weak bases on
which the
Kansas legislature and, subsequently, the
New York
legislature,
built its sex
offenders civil
management
statute, the
Supreme
Court has
deferred to
these legislative findings in
upholding the
constitutionality of its statutory scheme.
As set forth
further below,
this Court is
constrained to
follow the
precedent
established by
the Supreme
Court.”(8-12).

Electronic copy available at: https://ssrn.com/abstract=3202538

Data on
released
SVPs

AMERICAN CRIMINAL LAW REVIEW

776

[Vol. 55:705

Continued
State

Case

Mention

Data on
sex
offenders
generally

Data on
released
SVPs

North Dakota262

In re G.R.H., 711 N.
W.2d 587 (N.D. 2006)

“North Dakota
law defines a
‘sexually dangerous individual’ as an
individual who
has engaged in
sexually predatory conduct
and has a congenital or
acquired condition that is
manifested by
a sexual disorder, a personality disorder,
or other mental order or
dysfunction
that makes the
individual
likely to
engage in further acts of
sexually predatory conduct
which constitute a danger
to the physical
or mental
health or
safety of
others.”(594)

No

No

262. N.D. CENT. CODE ANN. § 25-03.3-01(7), (9)(a)(4), (9)(a)(7) (2017).

Electronic copy available at: https://ssrn.com/abstract=3202538

2018]

DOCTOR PADILLA’S DANGEROUS DATA

777

Continued
State

Case

Mention

Data on
sex
offenders
generally

Data on
released
SVPs

Pennsylvania263

Commonwealth v.
Lee, 935 A.2d 865
(Pa. 2007)

“We begin our
analysis by
reviewing the
legislative
findings that
the General
Assembly furnished in support of its
enactment of
Megan’s Law:
‘These sexually violent
predators pose
a high risk of
engaging in
further
offenses even
after being
released form
incarceration
or commitments and that
protection of
the public
from this type
of offender is a
paramount governmental interest.’” (880)

No

No

South
Carolina264

In re McCracken, 551
S.E.2d 235 (S.C.
2001)
In re Matthews, 550 S.
E.2d 311 (S.C. 2001)
State v. Gaster, 564 S.
E.2d 87 (S.C. 2002)

“Likewise, the
South Carolina
Act permits
involuntary
confinement
based upon the
determination
the person

No

No

263. 18 PA. STAT. AND CONS. STAT. ANN. § 3126(a)(7)-(8) (West 2018).
264. S.C. CODE ANN. § 44-48-30 (2012); id. § 16-15-120.

Electronic copy available at: https://ssrn.com/abstract=3202538

778

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

Continued
State

Case

Mention

Data on
sex
offenders
generally

Data on
released
SVPs

No

No

currently suffers from both
a mental abnormality or
personality
disorder and is
likely to
engage in acts
of sexual
violence.”(Gaster, 564 S.
E.2d at 90).
Texas265

In re Fisher, 164 S.
W.3d 637 (Tex. 2004)

“In 1999, the
Legislature
enacted the
Civil
Commitment
of Sexually
Violent
Predators
Act . . . In so
doing, the
Legislature
found that:
‘[A] small but
extremely dangerous group
of sexually
violent predators exists,
and . . . . those
predators have
a behavioral
abnormality
that is not
amenable to
traditional

265. TEX. HEALTH & SAFETY CODE ANN. § 841.002(8) (West 2014); TEX. PENAL CODE ANN. § 21.11 (West
2014).

Electronic copy available at: https://ssrn.com/abstract=3202538

DOCTOR PADILLA’S DANGEROUS DATA

2018]

779

Continued
State

Case

Mention

Data on
sex
offenders
generally

Data on
released
SVPs

No

No

mental illness
treatment
modalities and
that makes the
predators
likely to
engage in
repeated acts
of sexual violence.” (639)
United States

Kansas v. Hendricks,
521 U.S. 346 (1997)

“In the Act’s
preamble, the
legislature
explained:
‘[A] small but
extremely dangerous group
of sexually
violent predators exist who
do not have a
mental disease
or defect that
renders them
appropriate for
involuntary
treatment pursuant to the
[general involuntary civil
commitment
statute] . . . . In
contrast to persons appropriate for civil
commitment
under the [general involuntary civil
commitment
statute],

Electronic copy available at: https://ssrn.com/abstract=3202538

780

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

Continued
State

Case

Mention

Data on
sex
offenders
generally

sexually violent predators
generally have
anti-social personality features which
are unamenable to existing mental
illness treatment modalities and those
features render
them likely to
engage in sexually violent
behavior. The
legislature further finds that
sexually violent predators’
likelihood of
engaging in
repeat acts of
predatory sexual violence is
high. The
existing involuntary commitment procedure . . . is
inadequate to
address the
risk these sexually violent
predators pose
to society. The
legislature further finds that
the prognosis
for rehabilitating sexually

Electronic copy available at: https://ssrn.com/abstract=3202538

Data on
released
SVPs

2018]

DOCTOR PADILLA’S DANGEROUS DATA

781

Continued
State

Case

Mention

Data on
sex
offenders
generally

violent predators in a prison
setting is poor,
the treatment
needs of this
population are
very long term
and the treatment modalities for this
population are
very different
than the traditional treatment modalities for people
appropriate for
commitment
under the [general involuntary civil
commitment
statute].
’”(351)
“Those persons committed under the
Act are, by
definition, suffering from a
“mental abnormality” or a
“personality
disorder” that
prevents them
from exercising adequate
control over
their behavior.”(362)
“Where the
State has

Electronic copy available at: https://ssrn.com/abstract=3202538

Data on
released
SVPs

782

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

Continued
State

Case

Mention

Data on
sex
offenders
generally

“disavowed
any punitive
intent”; limited confinement to a
small segment
of particularly
dangerous
individuals;
provided strict
procedural
safeguards;
directed that
confined persons be segregated from the
general prison
population and
afforded the
same status as
others who
have been civilly committed; recommended treatment if such is
possible; and
permitted immediate
release upon a
showing that
the individual
is no longer
dangerous or
mentally
impaired, we
cannot say that
it acted with
punitive
intent.”(368-9)

Electronic copy available at: https://ssrn.com/abstract=3202538

Data on
released
SVPs

2018]

DOCTOR PADILLA’S DANGEROUS DATA

783

Continued
State

Case

Mention

Data on
sex
offenders
generally

Data on
released
SVPs

Kansas v. Crane, 534
U.S. 407 (2002)

“We agree that
Hendricks limited its discussion to
volitional disabilities. And
that fact is not
surprising. The
case involved
an individual
suffering from
pedophilia – a
mental abnormality that
critically
involves what
a lay person
might describe
as a lack of
control.
Hendricks
himself stated
that he could
not “’control
the urge’“to
molest children. 521 U.S.
at 360. In addition, our cases
suggest that
civil commitment of dangerous sexual
offenders will
normally
involve individuals who
find it particularly difficult
to control their
behavior – in
the general

No

No

Electronic copy available at: https://ssrn.com/abstract=3202538

784

AMERICAN CRIMINAL LAW REVIEW

[Vol. 55:705

Continued
State

Case

Mention

Data on
sex
offenders
generally

sense
described
above. Cf.
Seling v.
Young, 531 U.
S. 250, 256,
148 L. Ed. 2d
734, 121 S. Ct.
727 (2001);
Abel &
Rouleau, Male
Sex Offenders,
in Handbook
of Outpatient
Treatment of
Adults:
Nonpsychotic
Mental
Disorders 271
(M. Thase, B.
Edelstein, &
M. Hersen eds.
1990) (sex
offenders’
“compulsive,
repetitive,
driven behavior . . . appears
to fit the criteria of an emotional or
psychiatric illness”). And it
is often appropriate to say of
such individuals, in ordinary
English, that
they are
“unable to
control their

Electronic copy available at: https://ssrn.com/abstract=3202538

Data on
released
SVPs

2018]

DOCTOR PADILLA’S DANGEROUS DATA

785

Continued
State

Case

Mention

Data on
sex
offenders
generally

Data on
released
SVPs

No

No

dangerousness.”(414-15)
United States v.
Comstock, 560 U.S.
126 (2010)

Virginia266

Shivaee v.
Commonwealth, 613
S.E.2d 570 (Va. 2005)

“Congress
could have
reasonably
concluded that
federal
inmates who
suffer from a
mental illness
that causes
them to “have
serious difficulty in
refraining
from sexually
violent conduct,” § 4247
(a)(6), would
pose an especially high
danger to the
public if
released.”
(127) Cf. H. R.
Rep. No. 109218, at 22-23.

266. VA. CODE ANN. §§ 9.1-902(E)(1), 18.2-63 (2017).

Electronic copy available at: https://ssrn.com/abstract=3202538

AMERICAN CRIMINAL LAW REVIEW

786

[Vol. 55:705

Continued
State

Case

Mention

Data on
sex
offenders
generally

Data on
released
SVPs

Washington267

In re Young, 857 P.2d
989 (Wash. 1993)

“The
Legislature
enacted extensive findings.
Among those,
the Legislature
stated: ‘In contrast to persons
appropriate for
civil commitment under
chapter 71.05
RCW, sexually violent
predators have
antisocial personality features which
are unamenable to existing mental
illness treatment modalities and those
features render
them likely to
engage in sexually violent
behavior. . .The legislature
further finds
that the prognosis for curing sexually
violent predators is poor,
the treatment
needs of this
populations
are very long

No

No

267. WASH. REV. CODE ANN. §§ 71.09.020 (West 2017); id. § 9A.44.076–.100.

Electronic copy available at: https://ssrn.com/abstract=3202538

2018]

DOCTOR PADILLA’S DANGEROUS DATA

787

Continued
State

Case

Mention

Data on
sex
offenders
generally

Data on
released
SVPs

No

No

term, and the
treatment
modalities for
this population
are very different than the
traditional
treatment
modalities. . .’”(992–
93)
Wisconsin268

State v. Post, 641 N.
W.2d 115 (Wis. 1995)
In re Laxon, 647 N.
W.2d 784 (Wis. 2002)

“The purposes
of commitment under
chapter 980
have already
been identified
as the protection of the
community
and the treatment of persons suffering
from disorders
that predispose
them to commit sexually
violent acts.”
(126)

268. WIS. STAT. ANN. §§ 980.01(6)(a) (West 2017); id. §§ 948.02, 948.07.

Electronic copy available at: https://ssrn.com/abstract=3202538

 

 

Disciplinary Self-Help Litigation Manual - Side
Advertise Here 3rd Ad
Prison Phone Justice Campaign