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Full-Text Articles in Law

Abusing State Power Or Controlling Risk?: Sex Offender Commitment And Sicherungverwahrung, Nora V. Demleitner Jan 2003

Abusing State Power Or Controlling Risk?: Sex Offender Commitment And Sicherungverwahrung, Nora V. Demleitner

Scholarly Articles

This article addresses a paradigmatic risk-based collateral sanction, the so-called civil confinement. In contrast to many other collateral sanctions, it does not follow automatically but is judicially imposed following a hearing. In Hendricks v. Kansas (1997) the Supreme Court specifically upheld involuntary confinement following a criminal justice sentence for a sexually violent predator. The Kansas statute mandated confinement based on an assessment of dangerousness which had to result from a mental abnormality. Once it characterized the sanction as civil, the Court concluded that procedural protections traditional in the criminal context, such as double jeopardy, do not apply. The narrow majority ...


A Healer Or An Executioner: The Proper Role Of A Psychiatrist In A Criminal Justice System, Gregory Dolin Jan 2003

A Healer Or An Executioner: The Proper Role Of A Psychiatrist In A Criminal Justice System, Gregory Dolin

All Faculty Scholarship

This article argues that despite the benefits of ridding the criminal justice system of some uncertainty and ignorance with respect to mental health issues, the very close involvement of psychiatrists in the criminal justice system as practiced in the United States is not only illogical and bad policy, but also unethical from the viewpoint of medical ethics. Part II of this article will lay the groundwork for the argument by discussing the history of the insanity defense, and of science's involvement with criminal justice; while Part III, will look into the association of science and the administration of justice ...


Involuntary Treatment Of The Mentally Ill: Autonomy Is Asking The Wrong Question, Dora W. Klein Jan 2003

Involuntary Treatment Of The Mentally Ill: Autonomy Is Asking The Wrong Question, Dora W. Klein

Faculty Articles

When determining if involuntary treatment is appropriate, the proper question for courts to ask is not whether autonomy is preferable to involuntary treatment, but whether no treatment at all is preferable to involuntary treatment. When legislatures develop and courts apply statutes governing civil commitment, the interests at stake should be considered not at the abstract level of "freedom" or "autonomy," but rather at the concrete level of the consequences that are likely to result from providing or not providing involuntary treatment. Only by examining the particular interests that are likely to be affected can informed decisions be made about when ...