Document Type

Article

Publication Date

2020

Publication Information

Michael O'Hear, Managing the Risk of Violent Recidivism: Lessons From Legal Responses to Sexual Offenses, 100 B.U. L. Rev. 133 (2020)

Source Publication

100 Boston University Law Review 133 (2020)

Abstract

Over the course of a generation, American legislatures have quietly adopted an intricate web of measures intended to reduce the risk that individuals who have been convicted of violent crimes will commit new violent crimes. These measures include, for instance, sentencing and corrections laws that categorically target “violent offenses” and “violent offenders” for harsher treatment, prohibitions on pretrial diversion opportunities, employment restrictions, and long-term offender registration requirements. Such measures parallel a generally similar, but more closely studied, set of laws that aim to reduce sexual recidivism.

This article provides an overview of the literature on sexual-recidivism measures, especially sexual offender registration and notification (“SORN”) and civil commitment for sexually violent predators (“SVPs”), and considers lessons that may be drawn for the improved management of violent-recidivism risk. Existing violent-recidivism measures suffer from the same basic structural flaw that has plagued most existing SORN laws, that is, a reliance on convictions per se as an automatic trigger for legal requirements or disabilities. This inevitably subjects many low-risk individuals to legal controls that are only suitable for higher-risk individuals — a wasteful and potentially counterproductive form of overbreadth. By contrast, SVP civil commitment is based on individualized determinations of risk. This basic approach, with various refinements and adaptations, points to a more promising strategy for addressing the risk of violent recidivism.

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