Only “dangerous” individuals may be indefinitely detained. Is a one percent chance of a future crime clear and convincing evidence of dangerousness? For sex offenders, fear and uncertainty in case law leave open this passage to limbo. This Article closes it.
The due process balancing test used to evaluate standards of proof provides the framework. This Article explains the relationship between the standard of proof and the definition of “dangerous” and argues that only an approach combining the two is consistent with the Constitution.
Applying decision theory with assumptions favoring the government, this Article calculates a minimum likelihood of recidivism for commitment. Of the twenty jurisdictions with sex offender commitment, just one requires something close to that constitutional floor. Thousands have been detained applying unconstitutional standards, and the vast majority remains so.