Expert testimony supporting post-sentence civil incarceration of violent sexual offenders

Abstract

Many states have laws permitting the civil incarceration of violent sexual offenders after they have served their sentence. These laws must balance two strong interests: those of society in preventing the offender from committing further violent sexual offences, and those of the individual whose liberty is curtailed in the fear that he may, in the future, commit another offence.

This article reviews the purposes of civil incarceration, and the criteria used in state law permitting it, highlighting the important role played by estimates of the probability that the individual will recidivate. It then examines the methods used to estimate this probability, and the way these methods are presented by experts in court. A comparison of this expert testimony with the Daubert and Frye standards shows how questionable current practice is. We conclude with a discussion of the choices facing society.

Received 17 August 2004. Revised 20 October 2004. Accepted 20 October 2004.

Author notes

1Department of Statistics and Actuarial Science, University of Iowa, 2Department of Statistics, Carnegie Mellon University