The original sin of so-called “sex offender civil commitment” laws is that they were never meant to be “nonpunitive”. Legal scholars, civil libertarians, and human rights defenders, have challenged the prison-length nature of these carceral institutions. Many of these opponents to systems of pre-crime preventative detention focused on how these laws have been applied in practice to impose de facto life sentences on those who have already repaid their debt to society.
The following quote comes from a state report published two years before the first so-called sex offender “civil commitment” law was passed in the United States and demonstrates that the original intent of these legislative schemes has always been to create a back door around the traditional protections of afforded defendants in our criminal legal system – including due process, double jeopardy, and ex post facto protections.
“First, the criminal justice system requires in-court testimony to prove a crime, whereas sex offender commitment proceedings make liberal use of hearsay evidence embedded in the expert testimony. Thus, the task force recommended that sex offender commitment laws can protect society, “individuals who may not have been convicted of a sex offense because of the reluctance of young and/or scared victims to testify against perpetrators of sexual abuse”.
Second, the envisioned sex offender commitment law would circumvent the limits imposed by strict burdens of proof by allowing the confinement of individuals who “make dangerous, but evade conviction due to the high burden of proof required in criminal cases” (as does said law as authoritatively interpreted and construed by Minnesota appellate courts).
Third, because the envisioned law wouldn’t be limited by double jeopardy and ex post facto protections (as said Act is not, per authoritative holdings of Minnesota appellate courts), and can compensate for the “comparatively short sentences” for sex offenders by confining individuals after they have completed their criminal sentences.”
Minnesota Department of Human Services (DHS), Psychopathic Personalities Subcommittee, “Report to the Commissioner: Commitment Act Task Force,” pp. 45, 48-50 (1988)