{"title":"“See this Empty Cage now Corrode”","authors":"M. Perlin, H. Cucolo","doi":"10.1525/nclr.2020.23.3.388","DOIUrl":null,"url":null,"abstract":"From every perspective, our sexually violent predator (SVPA) laws are a miserable failure. In this paper, we present a new approach: a turn to international human rights law as a source of rights for the population in question, and a consideration of the matter from the perspective of comparative law. \n \nTo briefly summarize, many nations have enacted laws that both mirror and contradict early developments in United States civil commitment jurisprudence. In these nations, though, challenges to community containment and preventive detention laws have been more successful when based upon international human rights law. Also, registry notification is generally far more limited, and details are usually confined solely to police agencies. We believe that the implications of the laws and court decisions from other nations are necessary to consider when implementing US law reform in this area, and require far more attention than they have received from US scholars and legislators. \n \nThis paper will proceed in the following manner. In Part I, we will consider the implications of international human rights law for cases involving the populations in question, and then assess how realistic it is that such law be embraced by domestic jurisdictions in dealing with relevant cases. We will also consider the human rights issues and violations that have resulted from the domestic enactment of “International Megan’s Law.” In Part II, we will 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, for the 20+ years since the Supreme Court’s decision in Kansas v. Hendricks, 521 U.S. 346 (1997). In Part III, we will 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 SVPA cases. In part IV, we offer some conclusions and some suggestions for US-based policy-makers in this contentious area of law and social policy.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"13 1","pages":"388-433"},"PeriodicalIF":0.4000,"publicationDate":"2020-04-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"1","resultStr":null,"platform":"Semanticscholar","paperid":null,"PeriodicalName":"New Criminal Law Review","FirstCategoryId":"1085","ListUrlMain":"https://doi.org/10.1525/nclr.2020.23.3.388","RegionNum":0,"RegionCategory":null,"ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q2","JCRName":"Social Sciences","Score":null,"Total":0}
引用次数: 1
Abstract
From every perspective, our sexually violent predator (SVPA) laws are a miserable failure. In this paper, we present a new approach: a turn to international human rights law as a source of rights for the population in question, and a consideration of the matter from the perspective of comparative law.
To briefly summarize, many nations have enacted laws that both mirror and contradict early developments in United States civil commitment jurisprudence. In these nations, though, challenges to community containment and preventive detention laws have been more successful when based upon international human rights law. Also, registry notification is generally far more limited, and details are usually confined solely to police agencies. We believe that the implications of the laws and court decisions from other nations are necessary to consider when implementing US law reform in this area, and require far more attention than they have received from US scholars and legislators.
This paper will proceed in the following manner. In Part I, we will consider the implications of international human rights law for cases involving the populations in question, and then assess how realistic it is that such law be embraced by domestic jurisdictions in dealing with relevant cases. We will also consider the human rights issues and violations that have resulted from the domestic enactment of “International Megan’s Law.” In Part II, we will 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, for the 20+ years since the Supreme Court’s decision in Kansas v. Hendricks, 521 U.S. 346 (1997). In Part III, we will 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 SVPA cases. In part IV, we offer some conclusions and some suggestions for US-based policy-makers in this contentious area of law and social policy.
从任何角度来看,我们的性暴力掠夺者(SVPA)法律都是一个悲惨的失败。在本文中,我们提出了一种新的方法:将国际人权法作为有关人口权利的来源,并从比较法的角度考虑这一问题。简而言之,许多国家制定的法律既反映了美国民事承诺法学的早期发展,又与之相矛盾。然而,在这些国家,以国际人权法为基础,对社区收容和预防性拘留法的挑战更为成功。此外,登记处的通知通常要有限得多,细节通常仅限于警察机构。我们认为,在实施美国在这一领域的法律改革时,有必要考虑其他国家的法律和法院判决的影响,并且需要比美国学者和立法者得到更多的关注。本文将按以下方式进行。在第一部分中,我们将考虑国际人权法对涉及有关人口的案件的影响,然后评估在处理有关案件时国内司法管辖区采用这种法律的现实程度。我们还将审议因国内实施“国际梅甘法”而导致的人权问题和侵犯行为。在第二部分中,我们将运用比较法,以确定自最高法院在堪萨斯诉亨德里克斯案(521 U.S. 346, 1997)中作出裁决以来的20多年里,其他国家是如何努力解决国内司法部门关注的一些基本问题的。在第三部分中,我们将评估治疗法学(TJ)在之前讨论的法律和人权问题上的应用,以确定其他国家是否更成功地实施了TJ原则,以应对SVPA案件中提出的一些看似棘手的问题。在第四部分,我们为美国的政策制定者在这个有争议的法律和社会政策领域提供了一些结论和建议。
期刊介绍:
Focused on examinations of crime and punishment in domestic, transnational, and international contexts, New Criminal Law Review provides timely, innovative commentary and in-depth scholarly analyses on a wide range of criminal law topics. The journal encourages a variety of methodological and theoretical approaches and is a crucial resource for criminal law professionals in both academia and the criminal justice system. The journal publishes thematic forum sections and special issues, full-length peer-reviewed articles, book reviews, and occasional correspondence.