“See this Empty Cage now Corrode”

Abstract

Our sexually violent predator (SVP) laws are a miserable failure. We suggest a turn to international human rights law (IHR) as a source of rights for this population, and consider this matter from the perspective of comparative law. Many nations have enacted laws that both mirror and contradict early developments in United States jurisprudence, but there, challenges to community containment and preventive detention laws have been more successful when based upon IHR law. Also, registry notification is generally far more limited, and details are usually confined solely to police agencies. We must consider laws and court decisions from other nations when implementing US law reform in this area. In Part I, we consider the implications of IHR law, and assess how realistic it is that such law be embraced by domestic jurisdictions in dealing with relevant cases. We also consider the human rights issues and violations that have resulted from domestic enactment of International Megan’s Law. In Part II, we apply comparative law in an effort to determine how other nations have struggled with some of the basic issues that have been focused on by domestic jurisdictions since the Supreme Court’s decision in Kansas v. Hendricks (1997). In Part III, we assess the application of therapeutic jurisprudence (TJ) to the legal and human rights issues discussed prior, in an effort to determine whether other nations have more successfully implemented TJ principles to combat some of the seemingly-intractable problems raised in SVP cases. We conclude by offering suggestions for US-based policymakers.