State laws that allow sexually violent predators to be locked up even after they have served their sentences are based on questionable assumptions that they continue to pose a danger to society, according to a study published in the American Criminal Law Review.

The study focused on California where, according to the authors, research indicating that sexually violent predators (SVPs) are less likely to re-commit crimes than other offenders was suppressed because it challenged the constitutional legitimacy of the state’s SVP laws.

The research in the mid-2000s by Dr. Jesus Padilla, a clinical psychologist at Atascadero State Hospital, a California maximum-security institution that houses mentally ill offenders, found that just 6.5 percent of untreated sexually violent predators were arrested for a new sex crime within 4.8 years of release from a locked mental facility.

But the research was halted and its findings hidden in what, in effect, was an attempt to “bury” information that might challenge the constitutional basis for the $147.4 million program operated by the California Department of Mental Health that supervised the involuntary commitment of SVPs, the study claimed.

The authors, Tamara Rice Lave of the University of Miami School of Law; and Franklin Zimring, of the University of California, Berkeley, wrote they learned about the concealed study from a former public defender who is now a Superior Court judge in San Diego, and then contacted Dr. Padilla.

“Dr. Padilla was very responsive and gave us a detailed account of what had happened,” the authors wrote. “We then submitted a FOIA request to the newly created Department of State Hospitals (DSH). But we were told that they were ‘unable to verify any study on recidivism conducted by Jesus Padilla, PhD.’

“We shared DSH’s response with Dr. Padilla, 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.”

An examination of the study, which was originally commissioned to assess the value of clinically treating SVPs, revealed the lower recidivism rates—a result that surprised researchers at the time, but also paralleled the findings of a 2003 study by the Department of Justice’s Bureau of Justice Statistics (BJS) that showed 2.5 percent of rapists were rearrested for rape within three years of release from prison, and just 3.3 percent of child molesters were arrested for another sex crime against a child during that same period.

In contrast, during that same three-year period, the BJS researchers found that 13.4 percent of robbers were rearrested for robbery, 23.4 percent of burglars were rearrested for burglary, and 41.2 percent of drug offenders were rearrested for a drug crime.

The recidivism statistics call into question the entire basis for the involuntary civil commitment of sexual offenders, wrote the authors.

Currently, 20 states and the federal government have similar SVP laws, and as of 2016, there were 5,355 persons committed as SVPs across the country, with an additional 1,001 detained pending commitment, the study said.

Because the Constitution prevents a person from being punished multiple times for the same crime in criminal cases, the courts have enforced civil commitments in the cases of many SVPs, which allow for a post-sentence detention in an effort to prevent further offenses.

“We have no way of knowing the real reason why California halted the Padilla study and then tried to bury it,” wrote the authors. “Although our FOIA request asked why the study was terminated, we never received an answer.

“Perhaps higher-ups at DMH (the California Department of Mental Health) had not initially paid attention to the study because they did not expect the results….DMH may have realized the study had to be stopped because it threatened the legitimacy of the entire SVP program.

“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.”

The authors noted that the use of SVP laws was given the stamp of approval by a 1997 U.S. Supreme Court Case Kansas v. Hendricks, which accepted claims that SVPs are “extremely dangerous” and that their “likelihood of engaging in repeat acts of predatory sexual violence is high.”

In that case, defendant Leroy Hendricks “admitted that he was an uncured pedophile who could not control his desire to molest children.” But, as the authors argue, Hendricks does not represent the greater SVP population.

“If the Court had asked what the basis was for this conclusion, they would have been sorely disappointed,” the study says. “We searched the legislative minutes for the 1994 Kansas law and found no citations to data on prospective danger.”

The unwillingness to substantiate the claims may be be rooted in fears of inflaming public opinion, argued the authors. A 2010 national opinion poll found that 72 percent of respondents believed that at least half, if not most, of convicted sexual offenders would commit additional sex crimes later on, according to the study.

A separate study from the Washington State Institute (WSI) reported that recidivism rates were as high as 25 percent in Washington. But the authors note a variance in age demographics between WSI and Padilla’s studies, with WSI’s largely consisting of a younger demographic.

Data from the Department of Justice released in 2016 shows that recidivism rates among sex offenders for other non-sexual crimes was around 60 percent. Only 5.6 percent were re-arrested for rape or sexual assault.

“If SVPs are no different than the dangerous but typical recidivist convicted in an ordinary criminal case, then the state has no constitutionally permissible reason to continue locking them away,” the study says.

California’s use of indeterminate civil commitment means that it is unlikely that the state’s SVPs, most of whom are over 50, will ever be released, the study said—based on the presumption that the risk posed by an offender at 40 remains the same when he is 50, 60 “or even 90.”

The rediscovery of the Padilla study should spur California and other states to make it a requirement that SVPs are regularly examined to prove they are likely to recidivate—a system that California used before the onset of SVP laws, the authors wrote.

“The politics of crime and fear of sex offenders mean that someone like Mr. Hendricks, who is now 83 and confined to a wheelchair, will never prevail,” they added.

“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.”

The authors called on the Bureau of Justice Statistics to resurrect and continue the Padilla study.

“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.”

A complete copy of the study can be downloaded here.

TCR News Intern Marianne Dodson contributed to this summary. Readers’ comments are welcome.