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Dangerousness and the Civil–Criminal Distinction: Another Reason to Rethink the Indefinite Detention of Sex Offenders

This Essay builds upon the conclusions of Professor Vars in his Article, Rethinking the Indefinite Detention of Sex Offenders.  Focusing on the faultiness of an actuarial tool often used to assess dangerousness, Vars argues convincingly that the predictions of future dangerousness in sex offender civil commitment hearings are deeply flawed.  This Essay contends that Vars’s findings also undermine the “civil” label attached to those proceedings.  Without that label, it becomes much more difficult to justify lower procedural safeguards in sex offender civil commitment hearings than in criminal trials.  This Essay also suggests that scholars such as Vars who focus on the scientific dimension of civil commitment would be well-served to bear in mind how legislatures and courts have long exploited the “civil” classification as part of a longstanding and problematic “legal labeling game.”

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