To qualify as an SVP under California’s law, a person must have committed at least one crime of sexual violence, and the state has to prove the offender has a diagnosed mental disorder that makes it “likely” he will reoffend. Among them, they hold about 6,000 “sexually violent predators” in indefinite detention. Today, 21 states and the federal government have civil commitment laws for people who have been convicted of sex crimes. The justices took at face value the core assumption in the preamble to Kansas’ civil commitment law: that this group’s likelihood of committing new offenses is exceptionally high. The decision framed civil commitment not as punishment but as treatment. Hendricks, the Court created special rules for people with sex offense records who suffer from a “mental abnormality” or “mental illness” that makes it “difficult, if not impossible,” for them to control their behavior. A 1997 Supreme Court decision gets around that prohibition by permitting states to confine certain sex offenders not for their old crimes but for those they might commit. The Constitution’s Fifth and 14th amendments bar punishing someone twice for the same crime. Yet for decades it has operated under the cover of unexamined assumptions, and the authorities apparently prefer it that way. The whole incident might have been forgotten, if not for the work of law professors Tamara Rice Lave and Franklin Zimring, who excavated Padilla’s work in a 2018 American Criminal Law Review article and brought to light the ways in which the state tried to ensure that knowledge of it would die with him.Ĭalifornia’s civil commitment program is the biggest in the country, holding 15 percent of those detained nationwide-so a great deal rides on understanding whether it is actually achieving its goals. But as he explained in 2009, “It’s too hard to fight the system, you know.” In 2013, Padilla died of stomach cancer, his research unfinished. At first he pushed back and even tried to continue on his own. His records were confiscated, his hard copies were shredded, and he was forbidden to talk about his work. Shortly after his testimony, Padilla’s study was abruptly terminated. The recidivism rate that Padilla found for SVPs did not square with the 1995 law that created the program, which had called the people it targeted a “small but extremely dangerous sexually violent predators.” In short, the study called into question the legitimacy of the entire $270-million-a-year civil commitment program. By comparison, a 2018 study by the federal Bureau of Justice Statistics found that 49 percent of all state prisoners were arrested again for the same type of offense within five years of their release. That amounts to an astonishingly low rearrest rate of 6.5 percent. In his sworn testimony before the judge and an October 10, 2006, memo, Padilla explained that of the 93 ex-offenders he and a colleague had tracked, just six had been rearrested for an alleged sexual crime after about five years in the community. What he discovered would undermine the basic premise of civilly committing people with sex crime records. Padilla had tracked them to find out their recidivism rates, which he presumed would be high. Padilla was four years into a study of ex-offenders classified as SVPs who had been released on technical grounds. McEntee called as a witness Jesus Padilla, one of Atascadero’s psychologists. Fortunately, the lawyer had heard of evidence that might tip the scales: a study done at Atascadero itself that could help his client. If he failed, McCurdy would be confined at the hospital indefinitely. Seven years after McCurdy was committed, his lawyer, Jim McEntee, was trying to persuade a judge that his client was a low risk to reoffend. That designation let them civilly commit him to Atascadero, much the way people with mental health issues can be locked up when they are deemed a threat to themselves or others. Prosecutors used that violation and the two prior convictions to get McCurdy classified as a “sexually violent predator” (SVP), he says. In 1998, McCurdy says he was brought in on a parole violation for living too close to a school, contrary to his conditions of release. In 1990, he was convicted of a burglary and served another six years. In 1983, McCurdy had pleaded guilty to a rape, for which he served two years in state prison. Rex McCurdy, a 49-year-old man, had been detained for seven years at Atascadero State Hospital under a 1995 California law authorizing “civil commitment” of people who have been convicted of sex offenses, a practice that keeps them confined long after they have completed their sentences. In late 2006, a public defender went before a Napa County judge to argue for his client’s freedom. He died with the work unfinished.īy: STEVEN YODER | FROM THE APRIL 2020 ISSUE of. Psychologist Jesus Padilla was forbidden to complete research that could have set many indefinitely committed people free.