C.S. Lewis—the twentieth-century Oxford don, literary scholar, Christian apologist, and celebrated children’s author—is an unlikely source of wisdom for thinking about the sexually violent predator (SVP) laws that currently exist in twenty states and the District of Columbia. Those laws allow the government to confine someone indefinitely in a secure, state-run mental hospital upon determination that the person has a predilection, due to a mental abnormality, to commit sexually violent offenses in the future—a determination made after someone has served his sentence for the original crime.
To the defendant, the state says this: you have served your time for the crime you committed. However, we think it is more likely than not that you will commit this crime again, and we are therefore detaining you indefinitely to protect society. Since you are not being convicted of a crime, the ordinary protection against double jeopardy doesn’t apply here, and the state need not prove its case beyond a reasonable doubt. Rather, this is a civil commitment. When you can demonstrate to our satisfaction that you have recovered from your disease, then we will release you.
Put this way, SVP laws operate in a manner that is eerily close to the plot in the 2002 movie Minority Report, where there is a special pre-crime police unit tasked with arresting and detaining people for crimes they have not yet committed. In theory, SVP confinements are temporary, non-punitive, and aimed at rehabilitation. In practice, however, civil commitment under SVP laws amounts to a life sentence for the vast majority of people confined under these statutes. In my home state of Missouri, for example, where the SVP statute went into effect in 1999, no one has ever been discharged after being committed to the custody of the state Department of Mental Health, and under the plain terms of the statute, one can only be “conditionally released” and then perpetually monitored.
The Humanitarian Theory of Punishment
All of this brings us back to C.S. Lewis. Several years ago, I organized a community seminar on Lewis’s political writings through the Kinder Institute on Constitutional Democracy at the University of Missouri. Chelseá R. Mitchell, one of the attorneys who has been on the front lines representing defendants in Missouri SVP cases, was a participant in the seminar. Although she was often quiet, she had quite a lot to say the day we met to discuss Lewis’s 1949 essay “The Humanitarian Theory of Punishment.”
Lewis’s thesis, briefly stated, is this: the traditional “retributive” theory of punishment holds that we should punish a criminal both because he deserves it and as much as he deserves it. What Lewis called the modern “humanitarian” theory of punishment, on the other hand, holds that crime is pathological, and the proper response is not punishment but therapy.
At first glance, this might seem enlightened and humane, but it comes at a cost: it completely removes from our analysis the concept of desert and thereby severs the “only connecting link between punishment and justice.” People are not confined under SVP laws because they deserve it. What they deserve, as determined and mediated by our laws, is the criminal sentence they have already served. They are confined now for a different reason: because they need to be cured of an emotional or volitional impairment (according, at least, to the definition of mental abnormality used in the Missouri statute). Yet as we begin to think of crime in medical terms, Lewis suggested, we lose sight of “a person, a subject of rights” and instead “have a mere object, a patient, a ‘case.’”
During our seminar, many of the participants’ jaws dropped as Chelseá explained the area of law in which she works. SVP commitment was the perfect real-world example of the theoretical point Lewis was making in his essay. We are not punishing these men (and they are always men) because they deserve it; we are instead confining them on the advice of an “expert”—usually a psychologist—without concerning ourselves with rights or duties or justice or desert. And as Lewis noted presciently, the “first result of the Humanitarian theory is, therefore, to substitute for a definite sentence” something far worse, “an indefinite sentence terminable only by the word of those experts . . . who inflict it.”
What’s at Stake
SVP laws have garnered little opposition because there is no public sympathy for the men who are confined under these statutes. Those convicted of sexually violent crimes—particularly against children—have done such great damage to basic human goods, and have so violated the social compact, that their transgressions are rightly reviled by the public.
But the gravity of the past offense is a distraction from the principle at stake. Those who are recommitted under SVP laws have already served the sentences which, under the law, they deserved. The same chain of reasoning that leads us to indefinitely confine someone on account of this purported volitional or emotional impairment (predilection to commit another sexual assault) would also lead to the confinement and treatment of any number of other people with volitional or emotional states that “experts” judge to be dangerous to society. It would be no use protesting that criminal due process rights have been violated, for the state would simply assure us, as it does in the case of SVP laws, that treatment and indefinite detention are civil rather than criminal, therapeutic rather than punitive.
Lewis thought “it is essential to oppose the Humanitarian theory of punishment, root and branch, wherever we encounter it.” This is because we must keep desert in view if we are to treat citizens as free and morally responsible agents, and not simply patients to be confined and cured by experts.
If we followed Lewis’s advice, we would still be left with the difficult task of meting out sentences according to our best conception of justice. It might be the case that some sexually violent crimes are so heinous that we believe the only just punishment is life in prison, or even death. But that is a question, in our society, for legislators, judges, and juries, for those whose job it is to weigh the competing claims of justice and mercy. “To be punished, however severely, because we have deserved it, because we ‘ought to have known better,’” Lewis reminds us, “is to be treated as a human person made in God’s image.”