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COMMENT
Kansas v. Hendricks:
The Diminishing Role of Treatment in
the Involuntary Civil Confinement of
Sexually Dangerous Persons
I. INTRODUCTION
In 1690, John Locke wrote that in exercising the power “of doing whatsoever [a person] thought fit for the preservation of himself and the rest of
mankind, he gives up to be regulated by laws made by the society, so far
forth as the preservation of himself and the rest of that society shall require;
which laws of the society in many things confine the liberty he had by the law
of nature.”1 His observation continues to hold true today. Though we as
citizens of the United States do relinquish the right to engage in certain
activities for the greater good of society, a person’s liberty interest, the right
to live freely, is considered to be the most cherished right which can rarely be
infringed upon.2 However, the United States Supreme Court has repeatedly
1
. J OHN LOCKE, THE SECOND TREATISE OF GOVERNMENT § 129
(Thomas P. Peardon ed., Macmillan Publ’g Co. 1952).
2
. See Reno v. Flores, 507 U.S. 292, 316 (1993) (O’Connor, J.,
concurring). “The institutionalization of an adult by the government
triggers heightened, substantive due process scrutiny. There must be a
‘sufficiently compelling’ governmental interest to justify such action,
usually a punitive interest in imprisoning the convicted criminal or a
regulatory interest in forestalling danger to the community.” Id. (citing
United States v. Salerno, 481 U.S. 739, 748 (1987)); Foucha v.
Louisiana, 504 U.S. 71, 80 (1992) (quoting Jones v. United States, 463
U.S. 354, 361 (1983) (stating “‘[i]t is clear that commitment for any
purpose constitutes a significant deprivation of liberty that requires due
process protection.’”); United States v. Salerno, 481 U.S. 739, 750
(1987) (considering the “importance and fundamental nature” of an
individual’s liberty interest).
1-475
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held that this interest is not absolute.3
There are three ways in which a
person’s liberty interest may be abridged by the government: (1) as
punishment for the violation of a criminal law; (2) by civil commitment,
when clear and convincing evidence shows that the individual is dangerous;
and (3) in certain narrow circumstances which justify short-term preventative
detention.4 A determination by a fact finder that a person is both (1) mentally
ill; and (2) poses a future threat to society (dangerousness) has been held
sufficient to confine a person civilly without depriving him of the due process
rights afforded by the Fifth and Fourteenth Amendments to the United States
Constitution.5 The confinement of sex offenders, though, poses a unique
challenge to the application of this otherwise clear standard for involuntary
confinement.6 Few would argue with the premise that a sex offender is
dangerous to society. As long as the finding of dangerousness can be made
at the time of the confinement hearing, it satisfies part two of the two-part
test.7 The obstacle, however, is that sex offenders do not suffer from a
traditional form of mental illness.8 Therefore, they do not qualify for
confinement under typical civil confinement statutes.9 In response to this
3
. See Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (explaining that
the importance of an individual’s freedom “has always been at the core
of the liberty protected by the Due Process Clause from arbitrary
governmental action”); Jacobson v. Massachusetts, 197 U.S. 11, 26
(1905) (discussing constitutional limitations on liberty interests). In
Jacobson, the Court stated:
[T]he liberty secured by the Constitution of the United States to every
person within its jurisdiction does not import an absolute right in each
person to be, at all times and in all circumstances, wholly free from
restraint. There are manifold restraints to which every person is
necessarily subject for the common good. On any other basis organized
society could not exist with safety to its members . . . . Even liberty itself,
the greatest of all rights, is not unrestricted license to act according to
one’s own will.
Id.; see also Kansas v. Hendricks, 521 U.S. 346, 356-60 (1997)
(discussing the nexus between civil confinement and the liberty
interest).
4
. See Foucha, 504 U.S. at 80.
5
. See id. If a fact finder determines that a person does not meet
each of the requirements of the two-part test first laid out by the Foucha
Court, such person may not be civilly confined. See infra notes 112-17
and accompanying text.
6
. See infra note 123 and accompanying text.
7
. See KAN. STAT. ANN. §§ 59-29a02(a), 59-29a06 (1994 & Supp. I.
1997).
8
. See infra notes 11, 12, 123 and accompanying text.
9
. See John Kip Cornwell, Protection and Treatment: The
Permissible Civil Detention of Sexual Predators, 53 WASH. & LEE L.
R EV. 1293, 1301 (1996). States such as Washington, Kansas, and
Arizona have used virtually the same excerpt describing the purpose for
enacting its civil confinement statute for sex offenders:
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problem, many state legislatures have enacted civil confinement statutes
aimed specifically at sex offenders.10 By using a fiction described as a
“mental abnormality,”11 sex offenders are able to fulfill the mental deficiency
and dangerousness requirements though they are not actually mentally ill as
the term has been traditionally defined.12 One who does not have a genuine
mental illness, but instead has a fictional label of a mental illness placed on
him, would not be amenable to treatment.13 It is difficult to treat something
that does not exist.14 This raises a substantive due process issue in that if a
person is civilly confined and not amenable to treatment for his condition,
such confinement becomes preventative detention, which cannot be
accomplished under a constitutional civil scheme.15
The legislature finds that a small but extremely dangerous group of
sexually violent predators exist [sic] who do not have a mental disease or
defect that renders them appropriate for the existing involuntary treatment
act . . . . In contrast to persons appropriate for civil commitment under
[that statute], sexually violent predators generally have antisocial
personality features which are unamenable to existing mental illness
treatment modalities and those features render them likely to engage in
sexually violent behavior.
Id. (quoting WASH. R EV. C ODE ANN. § 71.09.010 (West 1992))
(alterations in original).
10
. See Debra T. Landis, Annotation, Standard of Proof Required
Under Statute Providing for Commitment of Sexual Offenders or
Sexual Psychopaths, 96 A.L.R.3d § 2, at 842 (1979).
11
. See Cameron v. Walsh, No. CIV. A. 95-10904-PBS, 1996 WL
461502, at *12 (D. Mass. 1996) (stating that “the term ‘sexually
dangerous person’ is not a medical diagnosis. To the contrary, the term
describes a particular legal status, not necessarily a condition of mental
illness.”). The American Psychiatric Association has broken disorders
down into approximately 17 different categories, none of which include
the term “mental abnormality” as it is used here. See generally
AMERICAN PSYCHIATRIC ASS ’N, DIAGNOSTIC AND STATISTIC M ANUAL OF
M ENTAL DISORDERS (4th ed. 1994).
12
. See Brian G. Bodine, Comment, Washington’s New Violent
Sexual Predator Commitment System: An Unconstitutional Law and an
Unwise Policy Choice, 14 U. PUGET SOUND L. R EV. 105, 106 n.13
(1990) (citing Dr. James Reardon, Testimony before the 1990
Washington State Legislature).
Mental illnesses are specific conditions that result in a loss of contact with
reality and can be treated with medication and therapy. Violent sexual
behavior is just that—behavior that is always under voluntary control.
The rapist or pedophile must decide to commit the sexual act—the mental
patient cannot.
Id.
13
. See id.
14
. Though this seems to be the main issue in the civil confinement of
sex offenders, the Supreme Court brushed the issue aside, using only a
footnote. See Kansas v. Hendricks, 521 U.S. 346, 360 n.3 (1997); see
also Howard Zonana, The Civil Commitment of Sex Offenders, SCI.
M AG., Nov. 14, 1997, at 1248. “Framing the issue as a scientific
dispute absolves the Court from articulating a principled justification for
prolonged confinement of these offenders.” Id.
15
. See infra notes 73-89 and accompanying text.
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In order to avoid other constitutional hazards, such as double jeopardy and
ex post facto violations, a confinement statute must be civil, rather than
criminal in nature, and must not intend to punish.16 Criminal statutes are
intended to serve the twin goals of criminal punishment: retribution and
deterrence.17 A civil statute, on the other hand, must be intended to serve the
goals of incapacitation and treatment, not punishment.18 A common concern
with civil confinement statutes is that they are a camouflaged form of
punishment, in that they correct mistakes made in the criminal process such
as sentences which are, in hindsight, too short.19 The typical response to this
claim is that, unlike criminal confinement, civil confinement is only
appropriate until a person is no longer a threat to society.20 However, it is
16
. See Hendricks, 521 U.S. at 369 (stating: “Our conclusion that the
Act is nonpunitive thus removes an essential prerequisite for both
Hendricks’ double jeopardy and ex post facto claims.”); see also
W AYNE R. LAFAVE & AUSTIN W. SCOTT, J R., C RIMINAL LAW 10 (1986).
o society—more specifically, to prevent
injury to the health, safety, morals and welfare of the public. This it
accomplishes by punishing those who have done harm, and by threatening
with punishment those who would do harm to others.
Id.
17
. See Hendricks, 521 U.S. at 361-62.
18
. See Landis, supra note 10 (discussing the social objectives of
confinement statutes).
19
. See In re Young, 857 P.2d 989, 1023-24 (Wash. 1993) (Johnson,
J., dissenting) (arguing that the sexual predator statute was
“fundamentally flawed”). “The Legislature has other options for dealing
with sex offenders. Enhanced sentences for repeat offenders and
supervised release are but two of the most obvious.” Id. at 1024; In re
the Care and Treatment of Leroy Hendricks, 912 P.2d 129, 136 (Kan.
1996) (stating, in dicta, that “we need to point out that the legislature
has provided the State with other options to achieve that objective
[continued incarceration without providing treatment to sex offenders]
and, in addition, has the authority to increase the penalty for sex crimes
committed against children.”), stay granted sub. nom. by Kansas v.
Hendricks, 517 U.S. 1153 (1996) and cert. granted, 518 U.S. 1004
(1996), rev’d, 521 U.S. 346 (1997).
20
. See, e.g., KAN. STAT. ANN. § 59-29a10 (Supp. 1997). The statute
states:
If the secretary of the department of social and rehabilitation services
determines that the person’s mental abnormality or personality disorder
has so changed that the person is not likely to commit predatory acts of
sexual violence if released, the secretary shall authorize the person to
petition the court for release. The petition shall be served upon the court
and the attorney general. The court, upon receipt of the petition for
release, shall order a hearing within 30 days. The attorney general shall
represent the state, and shall have the right to have the petitioner
examined by an expert or professional person of such attorney’s choice.
The hearing shall be before a jury if demanded by either the petitioner or
the attorney general. The burden of proof shall be upon the attorney
general to show beyond a reasonable doubt that the petitioner’s mental
abnormality or personality disorder remains such that the petitioner is not
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difficult to envision a scenario where a person could become less of a threat
without treatment.21
One aspect of involuntary civil confinement statutes that courts have
looked at as being indicative of their true civil nature has been the element of
treatment.22 Thirteen states have some form of sex offender statute on the
books.23 The constitutionality of several statutes has been challenged, and
ultimately upheld, within certain parameters.24 Through this case law,
certain factors have emerged as being the ones that courts take into
consideration when making a constitutional determination.25 The United
States Supreme Court concluded in Allen v. Illinois26 that in order for a civil
confinement statute to avoid being penal in nature, the ultimate goal of the
safe to be at large and that if discharged is likely to commit predatory acts
of sexual violence.
Id.
21
. See State v. Little, 261 N.W.2d 847, 854 (Neb. 1978) (stating that
“treatment is a necessary part of a statutory scheme involving sexual
sociopaths”); Davy v. Sullivan, 354 F. Supp. 1320, 1329-30 (M.D. Ala.
1973). The Davy court stated:
[O]nce it is determined that a person incarcerated under Alabama’s sexual
psychopath statute cannot or will not benefit from further treatment, his
release from incarceration cannot constitutionally be conditioned on full
and permanent recovery from his “‘psychopathy,’” unless continued
incarceration for such a disorder is justified upon a finding of
dangerousness to self or others . . . . [A] finding of dangerousness upon
termination of such treatment must be grounded upon the likelihood of
conduct which has a serious effect on the person incarcerated or others,
rather than being merely repulsive or repugnant.
Id.
22
. See generally, Allen v. Illinois, 478 U.S. 364 (1986); Kansas v.
Hendricks, 521 U.S. 346 (1997).
23
. See ARIZ. R EV. STAT. ANN. §§ 36-3701 to 36-3716 (Supp. 1998);
C AL. W ELF. & INST. C ODE ANN. §§ 6600-6609.3 (1998 & Supp. 1999);
C OLO. R EV. STAT. §§ 16-11.7-101 to 16-11.7-107 (1998); CONN. GEN.
STAT. §§ 17a-566 to 17a-576 (1998); ILL. C OMP. STAT., ch. 725, §§
205/0.01-205/12, 207/1 to 207-99 (1992 & Supp. 1998); KAN. STAT.
ANN. §§ 59-29a01 to 59-29a15 (1994); MASS. GEN. LAWS ch. 123A, §§
1-9 (1996 & Supp. 1997); NEB. R EV. STAT. §§ 29-2922 to 29-2936
(1995); N.J. STAT. ANN. 30:4-82.4 (West 1997); ORE. R EV. STAT. §§
426.510–426.680 (1997); TENN. C ODE ANN. §§ 33-6-301 to 33-6-305
(1984 & Supp. 1998); WASH. R EV. C ODE ANN. §§ 71.09.001-71.09.902
(1992 & Supp. 1996-1999); WIS . STAT. §§ 980.01-980.13 (1998).
24
. See, e.g., Wisconsin v. Carpenter, 541 N.W.2d 105 (Wis. 1995)
(overruling lower court decision and upholding the validity of the
commitment statute); In re Young, 857 P.2d 989 (Wash. 1993)
(overruling lower court decision and upholding the validity of the
commitment statute).
25
. See infra notes 166-213 and accompanying text.
26
. 478 U.S. 364 (1986).
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statute must be to treat and not to punish.27 The Court, in construing the
Illinois statute as a civil statute, also pointed to a number of other factors.28
A very similar statute to the one at issue in Allen was brought before the
Court in the recent case of Kansas v. Hendricks.29 In both cases, the Court
had to ascertain whether the confinement statute was civil in nature.30 The
Hendricks majority, using a substantially analogous line of reasoning as it
had used earlier in Allen, upheld Kansas’ version of the statute, finding that
the scheme was indeed civil.31 However, the Court deviated from precedent,
changing the requirements with respect to one of the factors involved.32 The
Court validated a treatment program, which, at the time, did not actually
provide any significant treatment.33 The Court in Allen alluded numerous
times to the Illinois legislature’s intent to provide treatment to those confined
under the statute.34 The majority in Hendricks, however, made two
alternative conclusions, each tolerating a lesser amount of treatment than was
required by the Allen decision.35 The Court was undeterred by the fact that
Hendricks was not receiving any treatment at all when his case was heard,36
27
. See id. at 367, 369, 370, 373.
. See id. at 368-74. Those factors are: the irrebuttable civil label
placed on the statute by the legislature, see id. at 368-69, the provision
for a number of procedural safeguards, see id. at 369-70, the
requirement of proof of the existence of a mental disorder, see id. at 37071, and the nature of the treatment facility itself. See id. at 373.
29
. 521 U.S. 346 (1997).
30
. See generally id.; Allen v. Illinois, 478 U.S. 364 (1986).
31
. See Hendricks, 521 U.S. at 356-71.
32
. See id. at 371-72.
33
. See infra note 36.
34
. See Hendricks, 521 U.S. at 373-97.
35
. See infra notes 232-67 and accompanying text.
36
. See Transcript of State Habeas Corpus Proceeding under KAN.
STAT. ANN. § 60-1501 at 5-18, In re the Care and Treatment of Leroy
Hendricks, 912 P.2d 129 (Kan. 1996) (No. 73039), reprinted in Brief of
Petitioner at 389, Kansas v. Hendricks, 521 U.S 346 (1997) (Nos. 951649, 95-9075), 1996 WL 435941, at *389aa. The testimony of Dr.
Charles Befort on direct examination by Hendricks’ attorney was, in
part:
Q. [S]hould the person in charge of the actual clinical department have
that expertise [of treating sex offenders]?
A. Yes.
Q. And you’ve testified that you feel you do not have that expertise, is that
correct?
A. Not entirely, that’s right. . . .
Q. [T]he sexual predator treatment program composition . . . lists several
items that are in bold face required characteristics. One of the required
characteristics . . . is that the program must have adequate staffing in
terms of numbers, quantifications and gender representation. Now the
sexual treatment program at Larned doesn’t have that, does it? A. Not at
this time. . . .
28
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despite the fact that Allen, upon which the bulk of its opinion is based, would
seem to require it.37
Though the dissent concurred with the majority on most of the
determinative factors,38 they focused their discord on the aforementioned lack
of treatment, which the majority in effect brushed aside.39 This Comment
focuses on Hendricks’ deviation from the treatment requirement and what it
means to a state legislature drafting a constitutional, involuntary civil
confinement statute for dangerous sexual offenders.
In examining the extent to which the Supreme Court has alleviated the
treatment requirements for involuntarily confined sexual predators,40 this
Comment begins in Part II with a discussion of the evolution of the civil
confinement statute for sex offenders, up to, and in the wake of, the
Hendricks decision.41 Part III discusses the background of the Hendricks
case including its facts,42 procedure,43 and the majority44 and dissenting45
opinions. Part IV looks closely at the opinion in comparison with the Allen
decision, as well as lower court decisions, to see if they can be reconciled or
distinguished.46 Part IV also includes a discussion of why the dissent is the
Q. And up until this time you’re the only psychologist or psychiatrist that
Mr. Hendricks has had any contact with, aren’t you? In the sexual
treatment program?
A. That’s correct.
Q. For the reasons you just stated, would you agree that it would be
extremely difficult, if not impossible, for you to give effective treatment to
Mr. Hendricks?
A. I assume that, with respect to certain issues, yes. . . .
Q. [Y]ou’re going to have to tell the court that he has had no opportunity
for meaningful treatment, aren’t you?
A. Yes. . . .
Q. And the reason [Hendricks’ dangerousness] hasn’t been dealt with in
treatment is because the sexual treatment program at Larned Correctional
Mental Health Facility basically doesn’t exist outside of you, isn’t that
correct?
A. In terms of addressing the sexual deviance, that’s essentially correct. . .
.
Id. at 10-17. On redirect, Dr. Befort further testified:
Q. And up to now there hasn’t been a real serious approach to [preparing
people to return to society], has there, as far as the treatment actually
delivered?
A. In terms of the needed treatment relevant to the sexual deviancy, that
hasn’t been delivered yet. . . .
Id. at 40.
37
. See Hendricks, 521 U.S. at 363-69.
38
. See id. at 374 (Breyer, J., dissenting).
39
. See id. at 373-78.
40
. See id. at 377-78.
41
. See infra notes 50-117 and accompanying text.
42
. See infra notes 118-41 and accompanying text.
43
. See infra notes 142-47 and accompanying text.
44
. See infra notes 148-60 and accompanying text.
45
. See infra notes 161-70 and accompanying text.
46
. See infra notes 171-267 and accompanying text.
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more persuasive argument,47 and what would happen if a case like this were
to arise in the future.48 Due to the potential negative ramifications of the
Court’s decisions, there have been numerous articles and commentaries
written on the case which will be discussed briefly.49
II. BACKGROUND: THE EVOLUTION OF CIVIL CONFINEMENT
STATUTES FOR SEX OFFENDERS
A.
Minnesota ex rel. Pearson v. Probate Court of Ramsey County: The
Supreme Court Determined the Constitutionality of Sex Offender
Commitment Laws for the First Time
The Supreme Court first considered the psychiatric commitment of
dangerous sex offenders in Minnesota ex rel. Pearson v. Probate Court of
Ramsey County.50 In Pearson, the Court upheld a Minnesota “psychopathic
personality” confinement statute against due process and equal protection
challenges.51 The factors it looked to were: (1) a habitual course of
misconduct in sexual matters; (2) an utter lack of power to control sexual
impulses; and (3) a likelihood of future sexual misconduct.52 This decision
provided the foundation, upon which the Court would greatly expand in the
future.53
B.
Baxtrom v. Herold: The Court Ruled That Civil Confinement,
Subsequent to a Criminal Sentence, Did Not Violate Constitutional
Standards
Though the Court had already decided that civil confinement of sex
offenders was permissible,54 it was still unclear when it was permissible.
That question was addressed in Baxtrom v. Herold.55 In Baxtrom, the Court
47
.
.
.
.
.
See infra notes 254-67 and accompanying text.
See infra notes 268-82 and accompanying text.
49
See infra notes 269-82.
50
309 U.S. 270 (1940).
51
See id. at 272, 277; see also J OHN BERGMAN ET. AL., THE SEX
OFFENDER, C ORRECTIONS, TREATMENT AND LEGAL PRACTICE 22-4 to
22-5 (Barbara K. Schwartz & Henry R. Cellini eds., 1995) [hereinafter
THE SEX OFFENDER] (discussing the Supreme Court’s role in the
development of sex offender statutes).
52
. See Pearson, 309 U.S. at 273 (citation omitted).
53
. See infra notes 54-117 and accompanying text.
54
. See supra notes 50-53 and accompanying text.
55
. 383 U.S. 107 (1965).
48
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considered whether a New York statute allowing for the commitment of an
individual to a mental institution at the expiration of his criminal sentence in
state prison was constitutional.56
Jonnie K. Baxtrom was convicted of second-degree assault57 and sentenced
to a term of two and one-half to three years in prison.58 Two years into his
sentence, a prison physician certified him as insane.59 He was transferred to
a state hospital, which was used to confine and care for mentally ill prisoners
who were serving criminal sentences.60 Through statutory proceedings, a
determination was made that, although Baxtrom’s sentence was about to
expire, he was still mentally ill and in need of further treatment.61 He
remained in the hospital operated by the department of corrections and was
never transferred to a civil hospital.62 Subsequently, he filed for a writ of
habeas corpus, claiming that the statute under which he was being confined
violated his constitutional rights.63 The Supreme Court granted certiorari on
his equal protection claim.64 The Court held that “there is no conceivable
basis for distinguishing the commitment of a person who is nearing the end of
a penal term from all other civil commitments.”65 This has been interpreted
to mean that the fact that a person has served a criminal sentence does not
preclude him from being confined civilly thereafter.66 Looking at this issue
from a different perspective, the Court stated that a convicted criminal who
allegedly is mentally ill is entitled to release at the end of his term unless the
state commits him in a civil proceeding.67 The Baxtrom Court thus
concluded that a person may be civilly confined either after, or in lieu of, a
criminal sentence if the commitment comports with other constitutional
parameters.
C.
Addington v. Texas: The Court Outlined the Burden of Proof Required
to Confine a Person Civilly, and Developed “Dangerousness” and
“Mental Illness” Requirements
56
. See id. at 108.
. See id.
58
. See id.
59
. See id.
60
. See id.
61
. See Baxtrom, 383 U.S. at 108-09.
62
. See id.
63
. See id. at 109.
64
. See id. at 110.
65
. Id. at 111-12.
66
. See id. The issue is whether or not a person has a mental
condition rendering him appropriate for confinement, not the extent to
which he is afflicted. See id.
67
. See Baxtrom, 383 U.S. at 114-15.
57
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The constitutional requisites for the confinement of dangerous sexual
predators continued to develop in Addington v. Texas.68 Frank Addington
was civilly committed under a Texas commitment statute; he appealed on
substantive due process grounds.69 The Court first concluded that a midlevel burden of proof would apply in making commitment findings.70 The
Court further concluded that a confinement pursuant to a state’s police
power would first require a showing of mental illness and dangerousness.71
It was the analysis underlying the second conclusion that led to the formation
of the modern involuntary civil confinement statutes.72
D. Allen v. Illinois: The Court Outlined the Differences Between Criminal
and Civil Statutes
Subsequent to Baxtrom and Addington, the Court was presented with
several new constitutional issues pertaining to civil commitment statutes for
sex offenders. In Allen v. Illinois,73 the Supreme Court reinforced a state’s
legitimate parens patriae power as discussed in Addington,74 and analyzed
the distinction between civil and criminal statutes.75
Terry B. Allen was charged with the crimes of unlawful restraint and
deviant sexual assault.76 The charges were dismissed for lack of probable
cause, but were later recharged by indictment.77 The petition to declare him
68
. 441 U.S. 418 (1979).
. See id. at 421.
70
. See id. at 431. The Supreme Court unanimously decided that “the
preponderance standard falls short of meeting the demands of due
process and that the reasonable-doubt standard is not required, [and]
turn[ed] to a middle level of burden of proof that strikes a fair balance
between the rights of the individual and the legitimate concerns of the
state.” Id.
71
. See id. at 426. The Court concluded that:
The state has a legitimate interest under its parens patriae powers in
providing care to its citizens who are unable because of emotional
disorders to care for themselves; the state also has authority under its
police power to protect the community from the dangerous tendencies of
some who are mentally ill.
Id.
72
. See infra notes 103-07 and accompanying text.
73
. 478 U.S. 364 (1986).
74
. See id. at 373 (discussing the Illinois statute’s intent to treat, not
punish, and to protect society).
75
. See generally Allen, 478 U.S. 364. Although the ultimate issue in
Allen involved the interpretation of the Fifth Amendment right against
self-incrimination, it was also necessary for the Court to analyze in
depth the distinction between civil and criminal statutes. See id.; see
also THE SEX OFFENDER, supra note 51, at 22-6 to 22-9.
76
. See Allen, 478 U.S. at 365.
77
. See id.
69
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sexually dangerous as required under the commitment statute was also
reinstated.78 At trial, the state presented the testimony of two examining
psychiatrists that Allen was “mentally ill and had criminal propensities to
commit sexual assaults.”79 This testimony was the basis for the trial court’s
decision to classify Allen as a sexually dangerous person80 under the Illinois
Sexually Dangerous Persons Act.81 The Appellate Court of Illinois for the
Third District reversed, holding that the trial court had “improperly relied
upon testimony obtained in violation of petitioner’s privilege against selfincrimination.”82 The Supreme Court of Illinois reversed the appellate court
and held “that the privilege against self-incrimination was not available in
sexually-dangerous-person proceedings because they are ‘essentially civil in
nature,’ the aim of the statute being to provide ‘treatment, not
punishment.’”83 Because the Fifth Amendment protection against selfincrimination only applies in criminal cases, it was of no assistance to
Allen.84
After granting certiorari on the issue of whether sexually dangerous person
proceedings were criminal in nature, giving rise to constitutional protection,
the United States Supreme Court affirmed the Illinois Supreme Court.85 The
Court looked at a number of factors to determine that the Act was civil in
nature: (1) the intent of the Illinois legislature;86 (2) procedural safeguards
that normally accompany criminal proceedings;87 and (3) the role of
treatment.88 Overall, Allen provided a framework for courts to use in
distinguishing whether a confinement statute for sex offenders is civil or
criminal.89
78
. See id.
. Id. Allen objected to the testimony on the basis that the
psychiatrists had “elicited information from him in violation of his
privilege against self-incrimination.” Id. Although the trial court ruled
that Allen’s statements were not admissible, the psychiatrists were
permitted to testify as to their opinion, based on their interviews with
Allen. See id.
80
. See id.
81
. 725 ILL. C OMP. STAT. ANN. 205/0.01-205/12 (West 1993 & Supp.
1998).
82
. Allen, 478 U.S. at 367 (citing Illinois v. Allen, 463 N.E.2d 135,
137 (1984), rev’d, 481 N.E.2d 690 (1985), aff’d, 478 U.S. 364 (1986)).
83
. Id. at 367 (quoting Illinois v. Allen, 481 N.E.2d 690, 694-95
(1985), aff’d, 478 U.S. 364 (1986)).
84
. See id. at 368.
85
. See id. at 375.
86
. See id. at 368.
87
. See id. at 369.
88
. See Allen, 478 U.S. at 369.
89
. See generally id.
79
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United States v. Salerno: The Court Stated That There are Situations
Where an Individual’s Liberty Interest is Outweighed by the Public
Safety Interest
Though the “mental illness” and “dangerousness” standard was a
major breakthrough in the area, the Court further developed the
theory upon which a state can constitutionally confine a person civilly.
Under the Bail Reform Act of 1984,90 a federal court was permitted to
detain an arrestee pending trial, upon proof that no release conditions
“will reasonably assure . . . the safety of any other person and the
community.”91 The issue in United States v. Salerno92 was one of
substantive due process.93 In reversing the United States Court of
Appeals for the Second Circuit, the United States Supreme Court held
that the Act “fully comports” with due process requirements.94
Congress promulgated the Act in response to “the alarming problem
of crimes committed by persons on [bail] release.”95
The government’s evidence showed that Salerno was a “boss” in the
Genovese crime family of La Cosa Nostra.96 According to information
acquired via court-ordered wiretaps, he and his associate were involved in
conspiracies to commit illegal activities through violent means.97 Therefore,
the government sought, pursuant to the Act, to hold the men without bail
pending trial.98 The district court held that the government had shown that
the safety of the community would be at stake if the men were not detained.99
The United States Court of Appeals for the Second Circuit reversed the
district court,100 holding that to permit pre-trial detention on the ground that
the arrestee is likely to commit future crimes is violative of substantive due
process.101
90
. Pub. L. No. 98-473, 98 Stat. 214 (codified as amended in
scattered sections of 18 U.S.C.).
91
. Id. § 3142(e).
92
. 481 U.S. 739 (1987).
93
. See id. at 741.
94
. Id.
95
. Id. at 742.
96
. See id. at 743.
97
. See id.
98
. See Salerno, 481 U.S. at 743.
99
. See id. at 743-44.
100
. See id. at 744.
101
. See id.
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The United States Supreme Court reversed the court of appeals.102 The
Court agreed with the court of appeals that the Act was regulatory, not penal
in nature.103 In order to distinguish between punishment and regulation, the
Court looked to the legislative intent underlying the Act,104 reasoning that
unless Congress has expressly imposed punitive consequences, the distinction
turns on “‘whether an alternative purpose to which [the restriction] may
rationally be connected is assignable for it, and whether it appears excessive
in relation to the alternative purpose assigned [to it].’”105 Congress intended
the Act to aid in the solution of a pressing societal problem.106 Having found
that the Act was indeed regulatory and not punitive, the Court held that “the
Government’s regulatory interest in community safety can, in appropriate
circumstances, outweigh an individual’s liberty interest.”107 Salerno stands
for the proposition that if the Government’s interests are both legitimate and
compelling,108 and its solution focuses on a particularly acute problem,109
liberty interests may be compromised for the public safety.110 The Court
stated that “where the government’s interest is sufficiently weighty, [the
individual’s liberty interest may] be subordinated to the greater needs of
society.”111
F.
Foucha v. Louisiana: The Court Clarified Addington by Holding That
an Individual May Be Civilly Confined for an Indefinite Amount of
Time as Long as He Is Both “Mentally Ill” and “Dangerous” for the
Entire Period
The Court further clarified Addington in Foucha v. Louisiana.112
Foucha was found not guilty of aggravated burglary and illegal
discharge of a firearm by reason of insanity.113 There was testimony to
the effect that his mental illness was “in remission.”114 In deciding
Foucha’s substantive due process claims, the Court struck down the
102
. See id. at 755.
. See id. at 747.
104
. See Salerno, 481 U.S. at 747.
105
. Id. (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69
(1963)) (alterations in original).
106
. See id.
107
. Id. at 748.
108
. See id. at 749.
109
. See id. at 750.
110
. See Salerno, 481 U.S. at 750-51.
111
. Id.
112
. 504 U.S. 71 (1992).
113
. See id. at 73-74.
114
. Id. at 74.
103
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Louisiana statute which allowed for the indefinite commitment of
persons acquitted of crimes by reason of insanity who had regained
their mental health, but were unable to demonstrate that they were no
longer dangerous.115 In Foucha, the Court relied on its decision in
Addington that an aquittee could only be civilly confined “as long as
[the acquittee] is both mentally ill and dangerous, but no longer.”116
The Foucha Court clarified that if a detained individual is deemed to
be no longer either “mentally ill” or “dangerous,” he must be released;
one of the two factors alone is not sufficient to justify continued
detention.117 This brought the Court to Hendricks, in which it further
clarified the application of the “mentally ill” and “dangerous” standard
set forth in Addington and strengthened in Foucha.
III. KANSAS V. HENDRICKS
A.
Facts
In 1994 the Kansas Legislature enacted the Sexually Violent
Predator Act118 to combat the problem of recidivism of sexual
offenders.119 The Act provides for the civil confinement of persons
who do not fall within the scope of the general civil confinement
statute.120 The Act therefore pertains to individuals who have been (1)
convicted of a sexually violent offense and are about to be released
from confinement; (2) charged with a sexually violent offense but are
incompetent to stand trial; or (3) found not guilty of a sexually violent
offense by reason of insanity.121 Under the Act, the state bears the
burden of proving beyond a reasonable doubt that the individual is
both dangerous to the community and suffers from a “mental
abnormality or personality disorder.”122 The legislature was of the
opinion that due to the unique nature of the sexual predator, no
115
. See id. at 83.
. Id. at 77.
117
. See id. at 78.
118
. KAN. STAT. ANN. §§ 59-29a01-a15 (1994).
119
. See Kansas v. Hendricks, 521 U.S. 346, 350 (1997); see also Rob
Curley, Sex Offender Treatment Has Defenders, Detractors, TOPEKA
(Kan.) C APITAL-JOURNAL, July 14, 1997, available in
<http:www.cjonline.com/ stories/ 071497/ larned.html>. The Act was
passed largely in response to the 1993 murder of Stephanie Schmidt, a
nineteen-year-old student at Pittsburg (Kansas) State University. See id.
Her killer, Donald Gideon, was on parole after serving ten years in jail
for raping and sodomizing a woman in 1982. See id.
120
. See KAN. STAT. ANN. § 59-29a01(1994).
121
. See id. § 59-29a03.
122
. Id. § 59-29a08; see also Hendricks, 521 U.S. at 350.
116
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adequate civil confinement statutes were already in place.123 Leroy
Hendricks was the first person to be committed under the Act.124
Hendricks was convicted in 1984 of taking “indecent liberties” with
two thirteen-year-old boys.125 Shortly before his release to a halfway
house, after Hendricks had served nearly ten years of his sentence, the
State filed a petition in state court to have him confined as a sexually
violent predator.126 Hendricks, represented by counsel, appeared
before the court in support of his motion to dismiss the petition on the
grounds that the Act was unconstitutional in a number of ways.127
Without ruling on the constitutionality of the Act, the Court held that
there was probable cause to support a finding that Hendricks was a
sexually violent predator and ordered that he be mentally evaluated.128
Hendricks requested a jury trial, where he testified as to his previous
sexual convictions.129 In 1955 he pleaded guilty to indecent exposure for
exposing his genitals to two young girls.130 In 1957 he was briefly jailed on a
123
. See Hendricks, 521 U.S. at 350-51 (citation omitted). The Kansas
legislature clearly stated its intent in promulgating the Act, explaining
that:
[A] small but extremely dangerous group of sexually violent predators
exist who do not have a mental disease or defect that renders them
appropriate for involuntary treatment pursuant to the treatment act for
mentally ill persons . . . which is intended to provide short-term treatment
to individuals with serious mental disorders and then return them to the
community. In contrast to persons appropriate for civil confinement . . .
sexually violent predators generally have antisocial personality features
which are unamenable to existing mental illness treatment modalities and
those features render them likely to engage in sexually violent behavior.
The legislature further finds that sexually violent predators’ likelihood of
engaging in repeat acts of predatory sexual violence is high. The existing
involuntary commitment procedure pursuant to the treatment act for
mentally ill persons . . . is inadequate to address the risk these sexually
violent predators pose to society. The legislature further finds that the
prognosis for rehabilitating sexually violent predators in a prison setting is
poor, the treatment needs of this population are very long term and the
treatment modalities for this population are very different than the
traditional treatment modalities for people appropriate for commitment
under the treatment act for mentally ill persons . . . therefore a civil
commitment procedure for the long-term care and treatment of the
sexually violent predator is found to be necessary by the legislature.
KAN. STAT. ANN. § 59-29a01 (1994).
124
. See Hendricks, 521 U.S. at 350.
125
. Id. at 353.
126
. See id. “Sexually violent predator” is defined in the Act as “any
person who has been convicted of or charged with a sexually violent
offense and who suffers from a mental abnormality or personality
disorder which makes the person likely to engage in the predatory acts
of sexual violence.” KAN. STAT. ANN. § 59-29a02(a) (1994).
127
. See Hendricks, 521 U.S. at 354.
128
. See id.
129
. See id.
130
. See id.
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lewdness conviction involving a young girl.131 In 1960 he was sentenced to
two years in prison for molesting two young boys while working for a
carnival.132 While on parole for that offense, he was re-arrested for
molesting a seven-year-old girl.133 He continued to spend time in and out of
prison until he was paroled in 1972.134 Though attempts at treatment were
repeatedly made, Hendricks admitted that he had still harbored sexual desires
for children.135 Soon after his parole, he began a four-year period where he
would force his stepdaughter and stepson to engage in sexual activity with
him.136 It was subsequent to all of these acts that he was convicted of taking
liberties with the two boys,137 served his jail time, and was scheduled for
release in September 1994.138
While testifying at his trial, Hendricks explained that the reason why he
repeatedly abused children was that when he “‘get[s] stressed out,’” he
“‘can’t control the urge’ to molest children.”139 Though he conceded that his
behavior was harmful to children, and stated that he hoped he would never
molest a child again, he urged that the only way to make sure that it never
happened again would be “‘to die.’”140 He further stated that he still suffered
from pedophilia and was not cured despite all of the treatment he had
received.141
B.
Procedure
After the state filed the petition under the Act to have Hendricks
adjudged a sexually violent predator, the evidence of his history of sex
crimes and current mental state went to the jury.142 The jury found
unanimously, beyond a reasonable doubt, that he was in fact a sexually
violent predator.143 The trial court ordered, after classifying
pedophilia as a “mental abnormality,” that he be committed.144
Hendricks appealed this decision, claiming that the application of the
131
132
133
134
135
136
137
138
139
140
141
142
143
144
.
.
.
.
.
.
.
.
.
.
.
.
.
.
See id.
See id.
See Hendricks, 521 U.S. at 354.
See id.
See id.
See id.
See id. at 355.
See id.
Hendricks, 521 U.S. at 355.
Id.
See id.
See id.
See id.
See id. at 355-56.
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Act to him in this case violated due process, double jeopardy, and ex
post facto protections under the United States Constitution.145 The
Kansas Supreme Court accepted the due process claim as valid.146
The United States Supreme Court granted certiorari.147
C.
The Supreme Court Opinion
1. Majority
In overturning the decision of the Kansas Supreme Court and upholding
the validity of the Act, the majority opinion set two new standards by which
courts can now interpret civil confinement statutes for sex offenders.148 First,
the Court held that the Act’s definition of “mental abnormality” satisfies
substantive due process principles.149 The Court has historically upheld civil
commitment statutes which couple a dangerousness finding with another
factor such as “mental illness.”150 Hendricks’ argument was that a “mental
abnormality” was not the equivalent of a “mental illness,” and thus did not
meet the constitutional threshold under Foucha and Addington.151 The Court
disagreed, stating that “[i]ndeed, we have never required State legislatures to
adopt any particular nomenclature in drafting civil commitment statutes.
Rather, we have traditionally left to legislatures the task of defining terms of
a medical nature that have legal significance.”152 This determination was
145
. See Hendricks, 521 U.S at 356-57.
. See In re the Care and Treatment of Leroy Hendricks, 912 P.2d
129, 138 (1996), stay granted sub. nom. by Kansas v. Hendricks, 517
U.S. 1153 (1996), and cert. granted, 518 U.S. 1004 (1996), rev’d, 521
U.S. 346 (1997). The Kansas Supreme Court struck down the Act, after
finding that it violated Hendricks’ 14th Amendment due process rights.
See id. at 138. This decision was based on the court’s opinion that a
“mental abnormality or personality disorder” as defined by the Act, did
not qualify as the necessary mental illness as required under Addington
and Foucha. Id.
147
. See Hendricks, 521 U.S. 350.
148
. The majority was formed by a 5-4 vote. Justice Thomas authored
the majority opinion which was joined by Chief Justice Rehnquist, and
Justices O’Connor, Scalia, and Kennedy. See Hendricks, 521 U.S. at
348. Justice Kennedy also filed a concurring opinion. See id. at 371.
Justice Breyer authored the dissenting opinion in which Justices Stevens
and Souter joined, and which Justice Ginsburg joined in part. See id. at
373.
149
. KAN. STAT. ANN. § 59-29a02(b) (1994). The statute states: “[a]s
used in this act: . . . ‘Mental abnormality’ means a congenital or
acquired condition affecting the emotional or volitional capacity which
predisposes the person to commit sexually violent offenses in a degree
constituting such person a menace to the health and safety of others.” Id.
150
. See supra notes 68-89, 112-17 and accompanying text.
151
. See Hendricks, 521 U.S. at 358-59.
152
. Id. (citation omitted).
146
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crucial, in that it affirmed the presence of the first factor—“mental
abnormality or personality disorder”—required for a person to be civilly
confined.153
Second, the United States Supreme Court held that the Act did not give
rise to criminal proceedings, and therefore, confinement pursuant to the Act
did not constitute punishment.154 After having made this determination, the
Court easily disposed of Hendricks’ ex post facto and double jeopardy
claims.155 The Court looked at a number of factors in upholding the statute
as being civil.156 This Comment focuses on the Court’s analysis of the
153
. See In re the Care and Treatment of Leroy Hendricks, 912 P.2d
129 (1996), stay granted sub. nom. by Kansas v. Hendricks, 517 U.S.
1153 (1996), and cert. granted, 518 U.S. 1004 (1996), rev’d, 521 U.S.
346 (1997). One of the main reasons why the Kansas Supreme Court
struck down the Act was that it felt that the state’s definition of “mental
abnormality” was insufficient to warrant a person being civilly confined.
The court held that:
We must determine if Hendricks is denied substantive due process based
not on his lack of character but, rather, on the merits of his challenge . .
. . Here, neither the language of the Act nor the State’s evidence supports
a finding that “mental abnormality or personality disorder,” as used in
[the sex offender commitment statute], is a “mental illness” as defined in
[the regular civil commitment statute]. Absent such a finding, the Act
does not satisfy the constitutional standard set out in Addington and
Foucha . . . . [T]o indefinitely confine as dangerous one who has a
personality disorder or antisocial personality but is not mentally ill is
constitutionally impermissible.
Id. at 138.
154
. See Hendricks, 521 U.S. at 369.
155
. See id. at 369-71. In denying the validity of both of these claims,
the Court first defined the parameters of the Double Jeopardy Clause by
stating that “[a]lthough generally understood to preclude a second
prosecution for the same offense, the Court has also interpreted this
prohibition to prevent the State from ‘punishing twice, or attempting a
second time to punish criminally, for the same offense.’” Id. at 369
(quoting Witte v. United States, 515 U.S. 389, 396 (1995) (emphasis
added)). Relying on this standard, the Court held that “[b]ecause we
have determined that the Kansas Act is civil in nature, initiation of its
commitment proceedings does not constitute a second prosecution.” Id.
Using a standard reaffirmed in California Dept. of Corrections v.
Morales, 514 U.S. 499 (1995), the Court iterated that “The Ex Post
Facto Clause, which ‘forbids the application of any new punitive
measure to a crime already consummated,’ has been interpreted to
pertain exclusively to penal statutes.” Hendricks, 521 U.S. at 370
(quoting Morales, 514 U.S. at 505) (quoting Lindsey v. Washington,
301 U.S. 397, 401 (1937)). Accordingly, the Court concluded that “[a]s
we have previously determined, the Act does not impose punishment;
thus, its application does not raise ex post facto concerns.” Id. at 37071.
156
. See infra notes 171-224 and accompanying text.
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treatment factor.157 The Court held that the Act would not necessarily be
punitive for failure to offer treatment, where treatment for a particular
disorder was not available.158 Alternatively, the Court held that if treatment
was possible, it need only be an “ancillary” concern of a legislature in
enacting a confinement statute for sex offenders.159 Contrary to previous
belief, treatment need not be an “aim” of the legislature in enacting such a
statute.160
2. Dissent
The dissent focused on the fact that Hendricks received only “inadequate
treatment.”161 That consideration, coupled with other factors, led to the
dissent’s conclusion that commitment under the Act “was not simply an
effort to commit Hendricks civilly, but rather an effort to inflict further
punishment upon him.”162 The main issue was whether the Due Process
Clause requires that the state provide treatment where the state has conceded
that treatment is available.163 Justice Breyer noted that in Allen, the Court
“found the statute civil—in important part because the State had ‘provided
for the treatment of those it commits.’”164
The dissent, while agreeing with a great bulk of the analysis of the
majority, disagreed with its handling of the treatment issue, opining that
“[s]everal important treatment-related factors—factors of a kind that led the
five-member Allen majority to conclude that the Illinois’ legislature’s
purpose was primarily civil, not punitive—in this case suggest precisely the
opposite.”165 These factors which the dissent referred to are fourfold. First,
the Kansas Supreme Court in Hendricks, unlike the Illinois Supreme Court
in Allen, found that treatment was not a significant objective of the Act.166
157
. See infra notes 225-67 and accompanying text.
. See Hendricks, 521 U.S. at 370-71.
159
. See id. at 367.
160
. See infra notes 225-67 and accompanying text. Cf. supra notes
73-89.
161
. Hendricks, 521 U.S. at 373 (Breyer, J., dissenting).
162
. Id.
163
. See id. at 378.
164
. Id. at 382 (quoting Allen v. Illinois, 478 U.S. 364, 370 (1986)).
While both Allen and Hendricks were 5-4 decisions, and the make-up of
the Court had changed between the decisions, Chief Justice Rehnquist
and Justice O’Connor were in the majority both times, and Justice
Stevens dissented both times.
165
. Id. at 383.
166
. See id. In distinguishing the differing objectives, the dissent
noted that “[t]he Kansas court wrote that the Act’s purpose is
‘segregation of sexually violent offenders,’ with ‘treatment’ a matter that
was ‘incidental at best.’” See id. (quoting In re the Care and Treatment
of Leroy Hendricks, 912 P.2d 129, 136 (1996) stay granted sub. nom. by
Kansas v. Hendricks, 517 U.S. 1153 (1996) and cert. granted, 518 U.S.
158
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Second, the dissent looked at the delay in the treatment of those confined
until after their criminal sentence had expired.167 Third, the dissent pointed
out that the committing authority was not required under the Act to consider
less restrictive alternatives to civil confinement.168 Fourth, the dissent
compared Kansas’ statute with similar statutes in other states and concluded
that the Kansas Act’s objectives do not require the statutory features that
indicate a punitive purpose.169 Taking all of these factors into consideration,
the dissent concluded that “[t]he statutory provisions before us do amount to
punishment primarily because . . . the legislature did not tailor the statute to
fit the nonpunitive civil aim of treatment, which it concedes exists in
Hendricks’ case.”170
IV. ANALYSIS
A. The Hendricks Court Followed the Allen Court in Many Important
Respects
The Supreme Court began, with its decision in Pearson,171 to determine
the constitutional standards by which a state may confine a sexually violent
predator.172 Six factors have emerged from this line of cases.173 Although
1004 (1996), rev’d, 521 U.S. 346 (1997)). “By way of contrast, in Allen
the Illinois court had written that ‘treatment, not punishment’ was ‘the
aim of the statute.’” Id. (quoting Allen, 478 U.S. at 367).
167
. See Hendricks, 521 U.S. at 387 (Breyer, J., dissenting). The
dissent found that:
[T]he statement in the Act itself, that the Act aims to respond to special
“long term” “treatment needs,” suggests that treatment should begin
during imprisonment. It also suggests that, were those long-term
treatment needs (rather than further punishment) Kansas’ primary aim, the
State would require that treatment begin soon after conviction, not [ten] or
more years later.
Id.
168
. See id. (noting the Court’s previous holdings “that a failure to
consider, or to use, ‘alternative and less harsh methods’ to achieve a
nonpunitive objective can help to show that [the] legislature’s ‘purpose
. . . was to punish.’” (quoting Bell v. Wolfish, 441 U.S. 520, 539 n.20
(1979)). The dissent went on to conclude that “[l]egislation that seeks
almost exclusively to incapacitate the individual through confinement . .
. would not necessarily concern itself with potentially less restrictive
forms of incapacitation.” Id. at 388.
169
. See id.
170
. Id. at 396.
171
. 309 U.S. 270 (1940); see also supra notes 50-53 and
accompanying text.
172
. See KAN. STAT. ANN. § 59-29a02(a) (1994). The statute states:
“‘[s]exually violent predator’ means any person who has been convicted
of or charged with a sexually violent offense and who suffers from a
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Hendricks is substantially in accord with the first five factors, it departs from
precedent in regard to the sixth factor—the necessity of the provision of
treatment.174 The Court has departed from precedent by diminishing the role
that the treatment of sex offenders must play.175 The decision is erroneous
because treatment had previously been the factor which legitimized the
reasoning behind the other factors.176
Petitioner Hendricks believed the Act “establishe[d] criminal proceedings,”
hence making his ex-post facto and double jeopardy claims valid.177 In
finding the Kansas statute to be civil in nature, the Court looked to six main
factors.178 The first five of the factors (dangerousness and mental
abnormality finding; civil characterization by the legislature; objectives of
criminal punishment; use of procedural safeguards; and the potentially
infinite duration of the confinement)179 were analyzed by the Court in a
comparable fashion to the way it was done in Allen.180 The sixth factor
(treatment), however, was decided in a manner quite contrary to the way the
Court had previously decided similar issues.181
1. “Dangerousness” and “Mental Abnormality” Labels Examined
First, Hendricks asserted that a finding of dangerousness alone could not
justify his confinement under a civil act.182 The Court agreed that a
dangerousness finding, standing alone, would not be enough to justify an
indefinite, involuntary committal.183 However, a finding of dangerousness
coupled with “proof of some additional factor, such as a . . . ‘mental
abnormality’” would be upheld.184 When the two factors are coupled
together as is the case under the Act, the class of persons covered will be
mental abnormality or personality disorder which makes the person
likely to engage in the predatory acts of sexual violence.” Id.; see also
KAN. STAT. ANN. §59-29a02(b) (1994); supra note 149.
173
. See infra notes 178-81 and accompanying text.
174
. See infra notes 225-31 and accompanying text.
175
. See infra notes 232-67 and accompanying text.
176
. See supra notes 73-89 and accompanying text.
177
. Kansas v. Hendricks, 521 U.S. 346, 361 (1997).
178
. See id. at 357-69.
179
. See id. at 357-65.
180
. See id.
181
. Compare Allen v. Illinois, 478 U.S. 364, 366-72 (1986), with
Hendricks, 521 U.S. at 357-65. While even a narrow reading of Allen
would indicate the importance the Court placed on the fact that
treatment was provided under the Illinois Act, the Court seems to have
manipulated the principles it established to reach the result it wanted in
Hendricks.
182
. See Hendricks, 521 U.S. at 358-59.
183
. See id. at 360; see also supra notes 112-17 and accompanying
text.
184
. Hendricks, 521 U.S. at 358 (citation omitted).
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narrowed down from people who are merely dangerous, to people who are
dangerous and unable to control that dangerousness.185 The Court held that
this was consistent with the requirements of similar statutes that it had
previously upheld.186 For example, in Allen the trial court found the
petitioner to be sexually dangerous based on the testimony of two
psychiatrists.187 They testified to their belief that (1) petitioner was
“mentally ill;”188 and (2) he had criminal propensities to commit sexual
assaults.189 Hendricks was diagnosed as a pedophile, which qualified as a
“mental abnormality.”190 The Court properly concluded that Hendricks’
“admitted lack of volitional control, coupled with a prediction of future
dangerousness, adequately distinguishes [him] from other dangerous persons
who are perhaps more properly dealt with exclusively through criminal
proceedings.”191 Though the Court has been consistent in interpreting sexual
offenders to have a “mental abnormality” or “personality disorder,” the
185
. See id.
. See id.; see also Heller v. Doe, 509 U.S. 312, 314-15 (1993)
(permitting the commitment of a “mentally retarded” or “mentally ill”
and dangerous individual);
Allen, 478 U.S. at 366 (permitting the commitment of a “mentally ill”
and dangerous individual); Minnesota ex rel. Pearson v. Probate Court
of Ramsey County, 309 U.S. 270, 271-72 (1940) (permitting the
commitment of a dangerous person with a “psychopathic personality”).
187
. See Allen, 478 U.S. at 366.
188
. The terms “mentally ill” and “mental abnormality” are virtually
interchangeable. The Court has “traditionally left to legislators the task
of defining terms of a medical nature that have legal significance.”
Hendricks, 521 U.S. at 359.
189
. See Allen, 478 U.S. at 366.
190
. See Transcript of Proceedings at 314, In re the Care and
Treatment of Leroy Hendricks, 912 P.2d 129 (Kan. 1996) (No. 73039),
reprinted in Brief of Petitioner at 218a, Kansas v. Hendricks, 521 U.S.
346 (1997) (Nos. 95-1649, 95-9075), available in 1996 WL 435941, at
*218a. Direct examination of Mr. Lester Lee by the state at Hendricks’
dangerousness hearing revealed the following:
Q. We’ve been using the term “pedophilia” in court, and I would like if
you could go over the characteristics and diagnosis of one who might be
considered a pedophile.
A. Criteria one over a period of six months recurrent, intense sexuallyarousing fantasies, sexual urges, or behaviors involving sexual activity
with a prepubescent child or children, generally age thirteen years or
younger. Second, the fantasies, sexual urges or behavior caused . . .
clinical significant distress or impairment in social, occupational or other
important areas of functioning. Three, the person is at least sixteen years
of age and at least five years older than the child or children in the first
criteria.
Id. at 315-16.
191
. Kansas v. Hendricks, 521 U.S. 346, 360 (1997).
186
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Court acknowledged that many health care professionals disagree with this
decision.192
2. Characterization of the Act as “Civil” by the Legislature Examined
Second, the Court looked to the characterization of the Act as civil by the
legislature.193 It noted here, as it did in Allen, that a “civil label is not always
dispositive” of the issue whether a statute is in fact civil and not criminal.194
In agreeing with the majority, the dissent noted that in close cases, the civil
label is “not of paramount importance.”195 The test to determine whether to
reject a legislature’s manifest intent was developed in United States v.
Ward.196 In Ward, the Court required that a defendant provide “‘the clearest
proof’” that “the statutory scheme [is] so punitive either in purpose or effect
192
. See Hendricks, id. at 360 n.3; see also, e.g., James D. Reardon,
Sexual Predators: Mental Illness or Abnormality? A Psychiatrist’s
Perspective, 15 U. PUGET SOUND L. R EV. 849 (1992). Dr. Reardon
states:
The [Washington State Psychiatric Association] recognized that the
American Psychiatric Association’s Diagnostic and Statistical Manual
III-R did not define any type of mental disorder called sexually violent
predator. Thus, the WSPA assumed that the legislature was attempting to
declare a class of criminals (i.e. sex offenders) as mentally ill. Because
psychiatrists have traditionally defined and treated mental illness, the
WSPA was disturbed that a lay body, namely the Washington State
Legislature, was being encouraged to legislate psychiatric diagnosis and
treatment. Furthermore, if the legislature were successful in calling sex
offenders mentally disordered, it might expand the definition to include
other criminals, such as car thieves or bank robbers, claiming that they,
too, had some mental abnormality or personality disorder that made them
likely to steal cars or commit robberies.
Id. at 850. “Dr. Reardon is a board-certified psychiatrist specializing in
forensic and institutional psychiatry. He is currently a consultant for the
Washington State Department of Corrections and the Special Offender
Center, which is a special prison for the care and treatment of mentally
ill offenders located in Monroe, Washington.” Id. at n.*; see also 9
R ONALD S. R OCK ET AL., HOSPITALIZATION AND DISCHARGE OF THE
M ENTALLY ILL (1968). In discussing the difficulty of coming up with a
workable definition of mental illness for legal purposes, Rock stated:
If mental disorder and disease were as plainly describable and
specifically treatable as is, for instance, measles, the problem of drafting a
legally satisfactory commitment law would be no more formidable than
that of drafting a law for measles quarantine . . . . The law governing
commitment can at best, therefore, only approximate a desirable standard
of legal precision and in many jurisdictions it seems fair to say that it does
not even do that.
Id.
193
. See Hendricks, 521 U.S. at 361; see also KAN. STAT. ANN. § 5929a01 (1994) (stating that “a civil commitment procedure for the longterm care and treatment of the sexually violent predator is found to be
necessary . . . .”).
194
. Hendricks, 521 U.S. at 361 (quoting Allen v. Illinois, 478 U.S.
364, 369 (1986)).
195
. Id. at 381.
196
. 448 U.S. 242 (1980).
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as to negate [the state’s] intention” to establish a civil remedial mechanism.197
Although the Court has “looked behind a ‘civil’ label fairly often”198 and
considered a statute to be criminal, this is a heavy burden for a defendant to
meet.199 The Court similarly held in both Allen and Hendricks that the
defendants failed to meet this requirement.200 Many courts have used a
similar analysis to determine whether a statute’s civil label was incorrect.201
3. Retribution and Deterrence Examined
Third, the Court determined that “commitment under the Act does not
implicate either of the two primary objectives of criminal punishment:
retribution or deterrence.”202 The Court looked to the fact that the Act, like
the Illinois statute at issue in Allen, did not require a criminal conviction as a
prerequisite to commitment.203 In each case, a petition for commitment could
197
. Id. at 248-49; accord Hendricks, 521 U.S. at 361; Allen, 478 U.S.
at 369.
198
. Hendricks, 521 U.S. at 381 (Breyer, J., dissenting); accord
United States v. Halper, 490 U.S. 435, 447-48 (1989).
199
. See Hendricks, 521 U.S. at 361.
200
. See Allen, 478 U.S. at 369; Hendricks, 521 U.S. at 361.
201
. See People v. Putney, 67 Cal. Rptr. 2d 283, 288 (1997); United
States v. Ursery, 518 U.S. 267 (1996); Cameron v. Walsh, No. CIV. A.
95-10904-PBS, 1996 WL 461502, at *8 (D. Mass. 1996); People v.
Myers, 58 Cal. Rptr. 2d 32, 36 (1996); State v. Carpenter, 541 N.W.2d
105, 109 (Wis. 1995); In re Young, 857 P.2d 989, 996 (Wash. 1993).
202
. Hendricks, 521 U.S. at 361-62.
203
. See id. at 362; see also 725 ILL. C OMP. STAT. ANN. 205/3 (West
1992) (stating that when an individual is charged with a criminal
offense, the attorney general or state’s attorney may file a petition in the
court wherein the individual stands charged, that the individual is a
sexually dangerous person); 725 ILL. C OMP. STAT. ANN. 205/1.01 (West
1992) (defining sexually dangerous persons as persons, suffering from a
mental disorder, who have demonstrated “criminal propensities to the
commission of sex offenses, and who have demonstrated propensities
toward acts of sexual assault or acts of sexual molestation of children . .
. .”); KAN. STAT. ANN. § 59-29a07 (1994). The Hendricks Court stated
that:
[U]nlike a criminal statute, no finding of scienter is required to commit an
individual who is found to be a sexually violent predator; instead, the
commitment determination is made based on a “mental abnormality” or
“personality disorder” rather than on one’s criminal intent. The existence
of a scienter requirement is customarily an important element in
distinguishing criminal from civil statutes. The absence of such a
requirement here is evidence that confinement under the statute is not
intended to be retributive.
Hendricks, 521 U.S. at 362 (citation omitted).
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be filed even if a person had not been convicted of a crime.204 The Kansas
Act allowed filing even in a case where a person had been found “not guilty
by reason of insanity of a sexually violent offense.”205 The Illinois statute
requires charges to be brought, but the state need only prove that the person
perpetrated “at least one act of or attempt at sexual assault or sexual
molestation.”206 This requirement of the initiation of some kind of criminal
proceeding is more stringent than the requisite requirement in the act at issue
in Hendricks.207 Nevertheless, the Allen Court held that since the
“antecedent conduct is received not to punish past misdeeds, but primarily to
show the accused’s mental condition and to predict future behavior,” it did
not serve as a sign of retribution or deterrence.208 Thus, due to Kansas’ less
stringent requirement, the Court was justified in concluding that “[a]n
absence of the necessary criminal responsibility suggests that the State is not
seeking retribution for a past misdeed.”209 In each case, the mere fact that
the statutes were “tied to criminal activity” was “insufficient to render the
statute punitive.”210 The Court reasonably concluded in Hendricks that
people suffering from a “‘mental abnormality’ or a ‘personality disorder’ that
prevents them from exercising adequate control over their behavior . . . are . .
. unlikely to be deterred by the threat of confinement.”211 The Hendricks
Court concluded, just as it had in Allen, that the statute was neither
retributive nor a deterrent, and therefore did not have the inherent qualities of
a criminal statute.212 Many courts have evaluated this factor in a similar
manner.213
204
. See KAN. STAT. ANN. § 59-29a03 (1994). The section provides:
When it appears that a person may meet the criteria of a sexually violent
predator . . . the agency with jurisdiction shall give written notice of such
to the prosecuting attorney of the county where that person was charged,
60 days prior to: . . . (2) release of a person who has been charged with a
sexually violent offense and who has been determined to be incompetent
to stand trial; . . . or (3) release of a person who has been found not guilty
by reason of insanity of a sexually violent offense . . . .
Id.
205
. KAN. STAT. ANN. § 59-29a07 (1994).
206
. Allen v. Illinois, 478 U.S. 364, 370 (1986).
207
. See KAN. STAT. ANN. § 59-29a03(a) (1994).
208
. Allen, 478 U.S. at 371.
209
. Kansas v. Hendricks, 521 U.S. 346, 362 (1997).
210
. Id. (citing United States v. Ursery, 116 S. Ct. 2135, 2139 (1996));
accord Allen, 478 U.S. at 370.
211
. Hendricks, 521 U.S. at 362.
212
. See id.; accord Kennedy v. Mendoza-Martinez, 372 U.S. 144,
168-69 (1963).
213
. See, e.g., United States v. Halper, 490 U.S. 435, 447-48 (1989).
The Halper Court held that:
[A] civil as well as a criminal sanction constitutes punishment when the
sanction as applied in the individual case serves the goals of punishment .
. . . From these premises, it follows that a civil sanction that cannot fairly
be said solely to serve a remedial purpose, but rather can only be
explained as also serving either retributive or deterrent purposes, is
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4. Inclusion of Procedural Safeguards Examined
Fourth, the petitioners in Allen and Hendricks each believed that the
inclusion of certain procedural safeguards in the statutes which were
historically included in criminal trials, would render the statutes criminal.214
In Allen, the petitioner pointed to such things as the right to counsel, the right
to demand a jury trial, the right to confront and cross examine witnesses, and
use of the reasonable doubt standard to argue that the statute was criminal in
nature.215 The Court, however, viewed these safeguards by the Kansas
Legislature as evidence of great care on its part to “confine only a narrow
class of particularly dangerous individuals . . . only after meeting the strictest
procedural standards.”216 Neither Hendricks, nor anyone else contesting the
constitutionality of a civil confinement statute for sex offenders, will have a
good argument for the criminal nature of a statute based on the fact that it
allows for procedural safeguards.217 The Court made this clear when it held
that the mere fact that a state legislature “provide[s] some of the safeguards
applicable in criminal trials cannot itself turn these proceedings into criminal
prosecutions requiring the full panopoly of rights applicable there.”218
punishment, as we have come to understand the term.
Id.; see also Young v. Weston, 898 F. Supp. 744, 753 (1995) (quoting
Halper, 490 U.S. at 448); Cameron v. Walsh, No. CIV. A. 95-10904PBS, 1996 WL 461502, at *6. The Cameron court, in its civil/criminal
distinction, noted that:
“Commitment to the treatment center and the treatment an SDP [sexually
dangerous predator] receives there is intended to provide the SDP with an
opportunity to overcome his general lack of power to control his sexual
impulses so that he can successfully reenter society. It does not serve as
an additional punishment or deterrent measure.”
Id. (quoting In re Hill, 661 N.E.2d 1285, 1290-91 (1996)); see also
Wisconsin v. Carpenter, 541 N.W.2d 105, 109 (Wis. 1995). The
Carpenter court stated that:
In determining whether a sanction constitutes punishment for the
purposes of double jeopardy, we must assess “the purposes actually served
by the [statute], not the underlying nature of the proceeding giving rise to
the sanction . . . .” We consider whether the statutory scheme is so
punitive either in purpose or effect as to negate the legislature’s remedial
purpose.
Id. (quoting Halper, 490 U.S. at 447 n.7) (citations omitted).
214
. See Allen, 478 U.S. at 371; Hendricks, 521 U.S. at 364-65.
215
. See Allen, 478 U.S. at 371.
216
. Hendricks, 521 U.S. at 364-65.
217
. See Specht v. Patterson, 386 U.S. 605 (1967) (reversing a
sentence pursuant to Colorado’s Sex Offenders Act on the ground that
procedural safeguards were not offered, in violation of the 14th
Amendment).
218
. Allen, 478 U.S. at 372 (citing People v. English, 201 N.E.2d 455,
458 (1964)).
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5. Indefinite Period of Confinement Examined
Fifth, each statute provided that confinement would last for an indefinite
period of time.219 The Court in each case viewed this component of the
statutes as evidence that the statutes were civil.220 Each statute required that
a person confined be discharged when adjudged safe enough to be out in
public.221 A person was automatically entitled to periodic review.222 On this
issue, the Court held in Hendricks that “[f]ar from any punitive objective, the
confinement’s duration is instead linked to the stated purposes of the
commitment, namely, to hold the person until his mental abnormality no
longer causes him to be a threat to others.”223
These five factors, present in both statutes at issue in Allen and Hendricks,
seem to indicate that the Court will have, in any case involving the
determination of a possible punitive element of a confinement statute for
sexually violent predators, a solid foundation to adjudge the statute to be
civil.224 It is of course, only under a civil statute that a person could be
confined without being granted the same panopoly of substantive due process
rights which would be required in a criminal proceeding. It is the subsequent
219
. See KAN. STAT. ANN. § 59-29a07(a) (1994). The statute states
that:
If the court or jury determines that the person is a sexually violent
predator, the person shall be committed to the custody of the secretary of
social and rehabilitation services for control, care and treatment until such
time as the person’s mental abnormality or personality disorder has so
changed that the person is safe to be at large.
Id. (emphasis added); see also 725 ILL. C OMP. STAT. ANN. 20519 (West
1992) (stating “[i]f the patient is found to be no longer dangerous, the
court shall order that he be discharged.”).
220
. See Allen, 478 U.S. at 372; Hendricks, 521 U.S. at 365-66.
221
. See KAN. STAT. ANN. § 59-29a08 (1994). The statute states that:
If the court at the (annual) hearing determines that probable cause exists
to believe that the person’s mental abnormality or personality disorder has
so changed that the person is safe to be at large and will not engage in
acts of sexual violence if discharged, then the court shall set a hearing on
the issue . . . . The burden of proof at the hearing shall be upon the state to
prove beyond a reasonable doubt that the committed person’s mental
abnormality or personality disorder remains such that the person is not
safe to be at large and if released is likely to engage in acts of sexual
violence.
Id.
222
. See id. The statute states that:
Each person committed under this act shall have a current examination of
the person’s mental condition made once every year . . . . The yearly report
shall be provided to the court that committed the person under this act.
The court shall conduct an annual review of the status of the committed
person.
Id.; see also generally Foucha v. Louisiana, 504 U.S. 71 (1992); supra
notes 112-17 and accompanying text.
223
. Hendricks, 521 U.S. at 363.
224
. See supra notes 171-223 and accompanying text.
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analysis of the treatment aspect that will change the manner in which such
statutes are analyzed by reviewing courts in the future.
B.
The Proper Role of Treatment in Determining That a Confinement
Statute is Civil in Nature
The final of the six factors which the Court considered was based on
Hendricks’ argument that because the Act “fails to offer any legitimate
‘treatment,’ . . . confinement under the Act amounts to little more than
disguised punishment.”225 The Court analyzed the requirement that
treatment be provided to those confined in two alternative
approaches.226 Each was based on an interpretation of the conclusion
drawn by the Kansas Supreme Court.227 The Court has not indicated a
preference for either, though each is a departure from the underlying
concept set forth in Allen, where the Court implied that adequate
treatment would be a determinative factor for consideration by a court
making a distinction between a civil and a criminal statute with regard
to sexual predators.228 Though the United States Supreme Court has
225
. Hendricks, 521 U.S. at 365; see also 60 Minutes: Stephanie’s
Law (CBS television broadcast, Jan. 11, 1998), available in 1998 WL
8973638. In discussing the effectiveness of treatment programs for sex
offenders, Dr. Phillips, former deputy medical director of the American
Psychiatric Association stated:
The treatments in this area are experimental. They have been shown to
work with a very small number of individuals, and they don’t come
anywhere near the levels of efficacy that we see in other areas of
psychiatry or medicine . . . . Let’s stop saying we’re treating this
individual. Let’s stop saying we’re doing this because it’s in the interest
of the individual. This is a dishonest shell game in which it’s clear there
wasn’t any real treatment that could work.
Id.
226
. See Hendricks, 521 U.S. at 367.
227
. See id. at 366-67; see also In re the Care and Treatment of Leroy
Hendricks, 912 P.2d 129, 136 (Kan. 1996), stay granted sub. nom. by
Kansas v. Hendricks, 517 U.S. 1153 (1996), and cert. granted, 518 U.S.
1004 (1996), rev’d, 521 U.S. 364 (1997). The aforementioned
conclusion by the Kansas Supreme Court stated that:
It is clear that the overriding concern of the legislature is to continue the
segregation of sexually violent offenders from the public. Treatment with
the goal of reintegrating them into society is incidental, at best. The
record reflects that treatment for sexually violent predators is all but
nonexistent. The legislature concedes that sexually violent predators are
not amenable to treatment under [the existing Act]. If there is nothing to
treat under [the statute], then there is no mental illness. In that light, the
provisions of the Act for treatment appear somewhat disingenuous.
Id.
228
. See Allen v. Illinois, 478 U.S. 364, 367, 369, 370, 373 (1986);
see also THE SEX OFFENDER, supra note 51, at 22-7 (stating “the Court
also strongly suggested [in Allen] that a statutory treatment scheme of
this sort actually does create a right to treatment.”).
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never thoroughly discussed the importance of treatment in a civil
confinement statute for sexually dangerous persons, many lower
courts have.229 Every case subsequent to Allen dealing with the
constitutionality of a confinement statute, either upheld or struck
down a statute by applying the test of whether the statute (1) sought
to protect society from the dangerous behavior of a sexually violent
predator; and (2) whether adequate treatment was provided for after
such confinement.230 However, after the Hendricks decision, courts
are now free to apply a much more lenient standard than that which
was previously required to satisfy due process.231
1. The Hendricks Court First Discussed the Constitutionality of a
Confinement Statute if Treatment Were Not Available for Sexual
Predators
The Hendricks Court first interpreted the Kansas Supreme Court’s
decision to mean that effective treatment is not available for sexual
predators.232 The Court found this interpretation to be potentially acceptable
under the precept that it had “never held that the Constitution prevents a
State from civilly detaining those for whom no treatment is available, but
who nevertheless pose a danger to others.”233 The Court analogized this lack
of treatment for sexually violent predators to the lack of treatment for people
with highly contagious, untreatable diseases.234 The analogy was made in
229
. See, e.g., Ohlinger v. Watson, 652 F.2d 775 (9th Cir. 1980). In
Ohlinger, the court explained: “[h]aving chosen to incarcerate
appellants on the basis of their mental illness, the State has determined
that it no longer has an interest in punishing appellants, but rather in
attempting to rehabilitate them . . . .” Id. at 777. The court continued:
Appellants are not requesting the best possible treatment nor are they
demanding a guarantee to be cured of their mental incapacity. They only
request a treatment program that will address their particular needs with
the reasonable objective of rehabilitation. Lack of funds, staff or facilities
cannot justify the State’s failure to provide appellants with that treatment
necessary for rehabilitation.
Id. at 779 (citations omitted).
230
. See, e.g., Wisconsin v. Carpenter, 541 N.W.2d 105 (Wis. 1995).
In upholding a Wisconsin civil commitment statute for sex offenders, the
court concluded “that [the statute] is aimed at protecting the public by
providing concentrated treatment for convicted sex offenders who are at
a high risk to reoffend based upon a mental disorder which predisposes
them to commit acts of sexual violence.” Id. at 113; see also generally
Ohlinger, 652 F.2d 775 (discussing the importance of treatment).
231
. See People v. Blakely, 70 Cal. App. 4th 202 (1997) (upholding
the civil confinement of a sexual predator though no treatment was
available); see also infra note 260 and accompanying text.
232
. See Hendricks, 521 U.S. at 365.
233
. Id. at 366.
234
. See id. (citing Compagnie Francaise de Navigation a Vapeur v.
Louisiana State Bd. of Health, 186 U.S. 380 (1902)). In Vapeur, the
Court held that the Louisiana Board of Health was empowered “to
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support of the Court’s view that “under the appropriate circumstances and
when accompanied by proper procedures, incapacitation may be a legitimate
end of the civil law.”235 Though this is true, and there is ample case law
supporting this proposition,236 the treatment aspect of civil confinement
statutes for sex offenders plays a different role than it does for other civil
confinement statutes, due to the lack of a recognized treatment.237 Unlike the
groups the Court analogized to, “sex offenders,” “sexually dangerous
persons” or “sexual psychopaths” have never actually been clinically
diagnosed with any type of mental illness.238 Therefore, it was necessary for
legislatures to place the “mental abnormality” label on them. Since
pedophiles do not suffer from a traditional form of mental illness, such as
insanity or schizophrenia, the law has crafted the term “mental abnormality”
or “personality disorder” in order that civil commitment would be
constitutionally permissible.239 The accepted standard for involuntary civil
confinement has been to confine only when that person suffers from a
“mental illness,” coupled with a future threat of dangerousness.240 Many
courts have been hesitant to find that a “mental abnormality” suffices as a
“mental illness” under their respective state statutes.241 Without satisfying
exclude healthy persons from a locality infested with a contagious or
infectious disease . . . .” Id.
235
. Hendricks, 521 U.S. at 365-66.
236
. See id. at 366 (citing Allen v. Illinois, 478 U.S. 364 (1986)); see
also generally United States v. Salerno, 481 U.S. 739 (1987).
237
. See, e.g., Bodine, supra note 12, at 106 n.13; see also THE SEX
OFFENDER, supra note 51, at 2-2.
238
. See THE SEX OFFENDER, supra note 51, at 22-3 (stating that “the
clinical category of ‘sexually dangerous’ actually is a legal term in
diagnostic clothing.”).
239
. See Hendricks, 521 U.S. at 360 n.3. The Court rationalized the
use of the term “mental illness” by stating that its usage “is devoid of
any talismanic significance. Not only do ‘psychiatrists disagree widely
and frequently on what constitutes mental illness,’ but the Court itself
has used a variety of expressions to describe the mental condition of
those properly subject to civil confinement.” Id. at 359 (citing Ake v.
Oklahoma, 470 U.S. 68, 81 (1985)); see also 60 Minutes, supra note
225. During the broadcast, Bob Boruchowitz, a public defender in the
state of Washington, was asked if he thought the Act was a “ruse,” to
which he responded: “What the state gets to do in this situation is to
prosecute someone, and then, when they’re done being a criminal,
they’re suddenly mentally disordered. And that’s . . . where the . . .
corruption, the distortion of the justice system is happening.” Id.; see
also supra note 181.
240
. See supra notes 68-74, 115-17 and accompanying text.
241
. See supra notes 146-53 and accompanying text (explaining that
the Kansas Supreme Court struck down the Act due to the definition of
the term “mental abnormality”).
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both prongs of the standard, a person may not be civilly confined; otherwise,
such confinement would constitute punishment.242 Punishment can only be
imposed for a criminal offense.243 Without a realistic provision for
treatment, confinement becomes mere preventative detention.244 It has been
the treatment aspect of many confinement statutes for sex offenders, though,
that has made the use of the term “mental abnormality” seem less punitive.
Acceptance of this analysis as precedent by lower courts would lead to a
bifold conclusion: (1) a “mental abnormality” satisfies the “mental illness”
requirement for confinement under substantive due process analysis;245 and
(2) no serious treatment would have to be offered to a person confined under
a civil scheme, provided that it was determined that none was actually
available.246
For the Court to accept the broad conclusion that sex offenders are not
amenable to treatment would be to accept a conclusion that is hotly debated
amongst experts.247 Allen provides no support, even in its discussion of the
242
. See supra notes 115-16 and accompanying text.
. See Hendricks, 521 U.S. at 361.
244
. See Beth Keiko Fujimoto, Sexual Violence, Sanity, and Safety:
Constitutional Parameters for Involuntary Civil Confinement of Sex
Offenders, 15 U. PUGET SOUND L. R EV. 879 (1992). “Absent a
recognized mental disease or defect and an authentic therapeutic
purpose, however, confinement to prevent possible recidivism is, in
effect, simply preventative detention to prevent future harm.” Id. at 888.
“Thus, if a sex offender involuntary commitment system does not require
a mental disorder and effect treatment, . . . the system is not a proper
exercise of the state’s civil commitment police power. Instead, the
commitment merely accomplishes unconstitutional preventive
detention.” Id. at 889.
245
. See Hendricks, 521 U.S. at 356-57.
246
. See id. at 366. “[I]t would be of little value to require treatment
as a precondition for civil confinement of the dangerously insane when
no acceptable treatment existed.” Id.
247
. See, e.g., Curley, supra note 119. Curley quoted Doctor Walt
Menninger, the Chief Executive Officer of Menninger, one of the top
mental health hospitals in the world, as follows:
[S]ociety struggles with balancing trying to help somebody who is
behaving badly or who has a very serious behavioral problem that is not a
tr aditional mental illness but is certainly a disorder . . . . I don’t know if
we have anything that will cure a good many of these individuals. But I
respect the position of society that these people should be confined when
they might be likely to commit these sort of behaviors . . . . You may go to
prison when you behave badly enough, and that’s not considered a
medical problem . . . . A number of doctors are wondering if this is truly
a medical problem, but society is saying through this law that it is . . . . It
is a situation where there is an earnest and reasonable difference of
opinion within the profession. There is little doubt that this is a disorder,
but committing homicide is a disorder, and we don’t necessarily send
those people to a mental hospital for curing that misbehavior.
Id.
243
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state’s parens patriae248 powers, for the proposition that incapacitation of
sex offenders may be achieved without any serious treatment feature to the
confinement.249 The conclusion that sex offenders need not be offered
treatment when confined is a clear departure from precedent.250 A number of
cases, citing Allen as authority, including the dissent in Hendricks, have used
strong language suggesting that at least some treatment must be offered upon
the committal of sexually violent predators.251 Absent this requirement, a
statute would be deemed to be punitive in nature, thus in violation of
substantive due process, ex post facto, and double jeopardy rights afforded
each individual under the Constitution.252 If the conclusion that no treatment
is available for sexually violent predators were adopted, many parts of the
Allen decision would be overruled by implication, and the role of treatment in
such statutes would be defined by the Court’s decision in Hendricks.253
248
. This term “refers traditionally to [the] role of [the] state as
sovereign and guardian of persons under legal disability, such as
juveniles or the insane . . . .” BLACK’S LAW DICTIONARY 1114, (6th
ed.1990) (citation omitted).
249
. See Allen v. Illinois, 478 U.S. 364, 373 (1985).
250
. See supra notes 73-89 and accompanying text.
251
. See, e.g., Ughetto v. Acrish, 518 N.Y.S.2d 398, 403 (N.Y. App.
Div. 1987) (finding involuntary civil commitment proceedings under the
New York Mental Hygiene Law to be civil). “[U]pon an examination of
the statutory scheme, it is . . . apparent that the overall purpose of the
proceedings, . . . is to ensure that patients receive the care and treatment
that is necessary based upon their condition and is not for the purpose of
exacting punishment.” Id.; see also Young v. Weston, 898 F. Supp. 744,
745 (Wash. 1995) (striking down a Washington civil commitment
statute for sex offenders on the grounds that “[t]he punishment
imperative embodied in the statutory approach, in addition to the
secondary nature of the treatment provisions, renders the Statute an
unconstitutional second punishment.”);
People v. Myers, 58 Cal. Rptr. 2d 32, 42 (1996) (upholding California’s
Mentally Disordered Offender statute, stating that “[l]aws which require
treatment for people who are currently mentally ill and who are gravely
disabled or dangerous to others (or themselves for that matter) are not
punitive and therefore such laws do not violate the ex post facto
clauses.”).
252
. See supra notes 73-89 and accompanying text.
253
. See Robert Waelder, Psychiatry and the Problem of Criminal
Responsibility, 101 U. PA. L. R EV. 378 (1952). Waelder, a
psychoanalyst, suggests that courts adopt a “trifocal formulation” due to
the uniqueness of each person. Id. at 389. Under this system,
the court, after determining the facts of the case, would proceed to the
consideration of the way in which the offender should best be dealt with
from the point of view of the merits of the case, the requirements of public
morality and public safety and the chances of the offender’s rehabilitation;
and would dispose of each case by punishment, custody or treatment, or
by a combination of these, or by release, as seems best fitted to the total
situation.
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2. Accepting the Kansas Supreme Court’s Determination That
Treatment Was at Least an Ancillary Purpose of the Act
The second interpretation of the Kansas Supreme Court’s analysis was
read by the Court to mean that even if treatment was available for confined
sex offenders, it need not be the Kansas Legislature’s “overriding” or
“primary” purpose in enacting the statute to pass constitutional
requirements.254 The Court reasoned that even if treatment did not rise to this
level, “this does not rule out the possibility that an ancillary purpose of the
Act was to provide treatment . . . .”255 If treatment were in fact merely an
ancillary concern, the Court concluded that the Act would not be punitive.256
A mere “ancillary concern” standard is in sharp contrast to the Court’s
holding in Allen, which adopted the Supreme Court of Illinois’ standard that
“the aim of the statute [must be] to provide “‘treatment, not punishment.’”257
The dissent, in fact, referred to the “Allen Court’s focus upon treatment, as a
kind of touchstone helping to distinguish civil from punitive purposes.”258
The Court’s reasoning under this second interpretation adopts an
understanding that treatment no longer has to be an “aim” of the state
legislature in enacting a civil commitment statute for sexually violent
predators.259 Now, treatment merely has to be an “ancillary” purpose, if it is
one at all.260 Without any realistic treatment program, the “mental
Id.
254
. Kansas v. Hendricks, 521 U.S. 346, 367 (1997).
. Id.
256
. See id.
257
. Allen v. Illinois, 478 U.S. 364, 367 (quoting the lower court).
258
. Hendricks, 521 U.S. at 382.
259
. See 60 Minutes, supra note 225. In a discussion between the
moderator and Mr. Boruchowitz about the importance of treatment under
the Act, the following exchange ensued:
Q. When the advocates say that this law is not about punishment, it’s
about taking someone who has a terrible problem and treating them in a
safe way, they’re just giving lip service?
A. It really is lip service. If you look at the rhetoric of the people who
propose and pass these laws, they talk about gaps in the law that allow
people to be released. They’re not talking about treatment.
Id.
260
. See, e.g., People v. Blakely, 60 Cal. App. 4th 202 (1997). In
Blakely, the court of appeals for the second district of California
reversed a superior court decision finding that Alonzo Blakely’s
antisocial personality disorder did not qualify as a “mental disease,
defect, or disorder” within the meaning of the civil confinement code. Id.
at 204. The trial court heard testimony from a forensic psychiatrist,
called by Blakely, to the effect that “there is no effective treatment for
antisocial personality disorder other than incarceration.” Id. at 207.
Further, he testified that Blakely “‘had achieved maximum hospital
benefits and . . . there was no basis for further hospitalization other than
for incarceration purposes.” Id. (alteration in original). This testimony
helped the trial court to conclude that absent any kind of known
255
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abnormality” which contributed to an offender’s confinement could never be
diminished. In such a situation, an offender could remain in civil
confinement for years under the guise of receiving help in controlling his or
her sexual impulses. This is not to say, of course, that this palliation of the
treatment factor renders civil confinement completely unworkable, only that
the burden on the legislatures has been greatly reduced.261 The Court has
made a conscious public policy decision that protecting public safety is of
such great importance that it will warrant confining anybody who threatens
to infringe upon it, even if that means that such people are essentially just
locked up without being punished for an actual crime or actually suffering
from a legitimate mental illness.262 This presumption is based on a theory
which the Court delineated in Addington v. Texas263 and adopted in Allen,
that “‘[t]he essence of federalism is that states must be free to develop a
variety of solutions to problems and not be forced into a common, uniform
mold.’”264 Now, the correct analysis to determine whether a statute is civil is
to look to whether the legislature has recommended treatment if such is
possible.265 This new factor combines the two scenarios discussed above,
and creates a standard quite different than that implicated in Allen where no
treatment methods, civilly confining Blakely would be unconstitutional
preventative detention. See id. at 214. Relying on Hendricks, the
appeals court held that the trial court’s ruling had “missed the mark,”
because “Blakely’s lack of amenability to treatment does not preclude an
extension of his commitment.” Id. at 215; see also E.B. v. Verniero, 119
F.3d 1077, 1095 (N.J. 1997). Cf. State v. Carpenter, 541 N.W.2d 105,
110 (Wis. 1995). The court upheld the Wisconsin statute by rejecting
petitioner’s claim that the treatment component of the statute “is merely
a pretense and secondary in purpose to punishment.” Id. The court held
that “the emphasis on treatment in [the statute] is evident from its plain
language.” Id. Under the standard set forth in Hendricks, petitioners
would not have been able to even consider this argument.
261
. Without having to draft statutes which are aimed at providing
treatment to those it confines, a statute can be enacted with “the single
goal of protecting society.” See supra text accompanying note 260.
262
. See supra notes 254-58 and accompanying text.
263
. 441 U.S. 418 (1979).
264
. Allen, 478 U.S. at 375 (citing Addington, 441 U.S. at 431).
265
. See Kansas v. Hendricks, 521 U.S. 346, 367 (1997). In
concluding that the Kansas Act was civil in nature, the Court outlined
the factors which it had considered, and held:
Where the State has “disavowed any punitive intent;” limited confinement
to a small segment of particularly dangerous individuals; provided strict
procedural safeguards; directed that confined persons be segregated from
the general prison population and afforded the same status as others who
have been civilly committed; recommended treatment if such is possible;
and permitted immediate release upon a showing that the individual is no
longer dangerous or mentally impaired, we cannot say that it acted with
punitive intent.
Id. at 368-69 (emphasis added).
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such test was ever formally set out.266 Since treatment is not as important as
it was previously, the distinction between a criminal statute and a civil one is
not as clear. Without treatment, some of the other factors which courts are
to look to seem to break down. For example, if indefinite confinement is
acceptable only until a person no longer suffers from a “mental abnormality”
and is no longer dangerous, how could he ever recover without being
provided any meaningful treatment? Without treatment, confinement statutes
for sex offenders start to look like mere preventative detention, which can
only constitutionally be accomplished by way of criminal, not civil
proceedings.267
C.
Application of the Hendricks Decision to Current Issues
From the perspective of the typical American citizen, the Court’s opinion
in Kansas v. Hendricks makes perfect sense. Permitting the confinement of
potentially dangerous sexual predators without guaranteeing them any
meaningful treatment is not an issue which many would categorize as a
problem. From a legal perspective however, such confinement should be
unfathomable. The purpose of civil confinement, unlike criminal
incarceration, is to take persons deemed to be dangerous to society off the
streets until they are no longer dangerous.268 If no meaningful treatment is
provided to such people, then confinement begins to resemble incarceration,
and civil liberties are implicated.269 The Court’s official characterization of
266
. See Hendricks, 521 U.S. at 367; see also Alan A. v. Verniero,
970 F. Supp. 1153, 1191 (D.N.J. 1997) (holding that “Megan’s Law”
did not result in punishment in violation of double jeopardy principles).
267
. See supra note 239 and accompanying text.
268
. See supra text accompanying note 18; Landis, supra note 10
(discussing the social objectives of confinement statutes).
269
. See American Civil Liberties Union, Freedom Network, News and
Events, Press Release, Supreme Court Upholds Kansas “Sexual
Predator” Law, (June 23, 1997)
<http://www.aclu.org/news/n062397c.html>. Stephen R. Shapiro,
ACLU national legal director, commented that “[t]his case is not about
whether our children should be protected from sexual offenders, but how
to accomplish that goal without trampling on basic civil liberties of
every citizen.” Id; see also Editorial, Supreme Court, Stalin Style (Aug.
1997) <http://www.guidemag.com/ features/ stalin-style.html>.
Supporting its belief that the Court’s opinion was overreaching, the
editorial states that:
With the Court’s decision in Kansas v. Hendricks, speculation replaces
proof as the standard establishing a punishable offense. Long-held
protections . . . have been swept aside . . . . The Court has sanctioned this
outrageous erosion of civil liberties because the individual whose case
was being reviewed is politically unpopular . . . . His freedom is not taken
away by any criminal law, but by the opinion of prison-paid psychiatrists,
now granted the powers of prosecutor, judge, and jury
. . . . An
assault on the basic constitutional rights of anyone is a threat and offense
to everyone who genuinely believes in civil liberties.
Id.
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pedophilia as a mental abnormality as required for civil confinement is at
least questionable considering the great debate amongst experts in the field.270
Since the Court has deemed such classification permissible, it is the mental
health system which will begin to break down.271 Confining people with
verifiable mental health needs with sexual offenders who are arguably just
dangerous, but not mentally ill, could lead to a myriad of problems in the
future considering the vulnerability of the mentally ill.272 The policy
reminded one commentator of “One Flew Over the Cuckoo’s Nest” where
those confined received, in effect, indeterminate, lifelong sentences.273 Prior
to the Hendricks decision, any concerns over whether sexually violent
predators were actually amenable to treatment and should be confined were
easily addressed. Why not just lengthen the sentences that offenders receive
270
. See, e.g., THE SEX OFFENDER, supra note 51, at 2-2.
[E]ach time the American Psychiatric Association meets to revise its
classification of mental disorders, rival factions debate whether rape
should be included. While many experts in the treatment of sex offenders
maintain that rapists are mentally ill individuals who show similarities to
pedophiles in their deviant behavior . . . others claim that rape is simply a
criminal act.
Id.; see also Zonana, supra note 14, at 1248. Zonana states:
In addition to pedophiles, these statutes target rapists, the vast majority of
whom do not have any mental disorder other than antisocial personality
disorder. The essential feature of this disorder is a pervasive pattern of
disregard for, and violation of, the rights of others that begins in
childhood or early adolescence and continues into adulthood. These
patterns represent long-standing traits that are not specific to sexual
activity but reflect a willingness to engage in a wide variety of general
antisocial behaviors. There are no effective treatments available for
changing such deep-seated character traits.
Id. Dr. Zonana is also a clinical lecturer at Yale Law School and
chairman of the American Psychiatric Association’s Task Force on
Sexually Dangerous Offenders. Id.; see also Bob Lane, Bob Lane
Analyzes Supreme Court Decision (Jan. 20, 1998)
<http://schizophrenia.com/80:ami/advocacy2/SexViolent.html>.
“This policy is constructed on the shaky presumption that ‘sex
offenders/sexual predators’ are mentally ill rather than criminals.
Where’s the evidence?” Id.
271
. See Lane, supra note 270. Sexual predators would be confined in
the same institution as the severely retarded, the severely mentally ill
who are drug resistant, and people suffering from cerebral palsy. See
id.; see also American Civil Liberties Union, supra note 269, ¶ 5
(stating that “we should not allow politicians to use mental hospitals as
a place to lock up individuals who are regarded as dangerous. The
result today distorts both psychiatry and laws.”).
272
. See supra note 271.
273
. See Lane, supra note 270. One court found that “[i]t is dangerous
to everyone’s liberty to suppose that the government has a duty and a
right to protect its citizens by the indefinite imprisonment of persons
that the government thinks are dangerous.” Barrerra-Echavarria v.
Rison, 21 F.3d 314, 318 (9th Cir. 1994), vacated, 44 F.3d 1441 (1995).
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after conviction?274 If we as a society deem sexual predators to be the most
heinous of offenders, why not hand them a life sentence for their crimes?275
Instead, Hendricks allows for offenders to be placed in an expensive taxfunded program that has no proven chance of accomplishing anything that
outright incarceration could not.276 In the wake of Hendricks, states can now
enact their own confinement statutes and perpetuate the myth277 that sex
offenders do suffer from a mental abnormality and are amenable to
treatment.278
Though the great many citizens of the United States will never have to
worry about being civilly confined as a dangerous sex offender,279 they
274
. See Zonana, supra note 14, at 1249. “Such broad-based civil
commitment statutes are an attempt to deal with changes in the criminal
justice system that now force the release of felons who generally could
have been given much longer sentences, and thus are a misuse of
psychiatry.” Id.; see also Dee-Ann Durbin, Sex Offender Sentencing
Sparks Debate, (June 29, 1997)
<www.nevadanet.com/renogazette/legislature/sexoffender0629.html
>. Assembly Judiciary Committee members debated concerns with the
high costs of the program and the safety of those committed. See id. The
end result was a proposal to increase the sentences of sexual predators.
See id. Assemblywoman Barbara Buckley (D-Las Vegas) stated: “[i]f
there is evidence that this is a sexually violent predator who is unable to
control his actions, then we should sentence him to life without parole . .
. . I want to lock these people up in a criminal facility.” Id.; see also
American Civil Liberties Union, supra note 269, ¶ 5. Stephen R.
Shapiro, national legal director of the ACLU, stated that “[t]he states
can and should enforce long prison terms for repeat sexual offenders.”
Id.; see also Lane, supra note 270. “Why not simply lengthen their
sentences? If officials no longer believe the offender poses a danger to
society, then they can parole him.” Id.
275
. See Durbin, supra note 274.
276
. See supra notes 225, 227 and accompanying text; see also
Reardon, supra note 192, at 850 (writing that “the Washington State
Auditor, in 1985, suggested that sex offender programs in Washington
be discontinued because they were expensive and no more effective than
incarceration in changing offender behavior.”).
277
. See, e.g., 60 Minutes, supra note 225. Kansas Attorney General
Carla Stovall, who argued Hendricks before the Supreme Court,
discussed her belief in the effectiveness of the treatment program:
Q. [T]here was a time when you believed that saying that putting these
people in some kind of mental health facility was just playing a game, that
it really wasn’t beneficial? You believed that at one time and you don’t
believe it now?
A. That’s true.
Id.
278
. See authorities cited, supra note 23. Each statute cited therein
contains a treatment provision.
279
. See Joe Diamond, Court Ruling is Victory for Society, 2
INTELLECTUALC APITAL.COM 27, ¶ 4 (July, 3, 1997)
<http://intellectualcapital.com/ issues/97/0703/icopinions2.asp>.
Diamond states:
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should fear the fact that there is a class of people who are being subjected to
a loss of their civil liberties based only on unproven theories. The only way
to defend the Court’s opinion is to shift from legal reasoning to philosophical
reasoning.280 Though philosophy has its place in the law, it alone should not
be able to sustain a cut back in the rights of anyone, even those who are
unpopular. Even though the majority of citizens will view Hendricks as a
victory for society,281 there are other means of accomplishing the goal of
protecting society from sexually violent predators that are more appropriate
from a legal perspective.282
Decent people, though, have much to celebrate. And little to fear. Under
the Kansas law, before confining sex offenders to an institution the state
must prove both that the detainee is dangerous, and that he has a mental
abnormality or personality disorder rendering him unable to control his
criminal behavior. How many law-abiding citizens fit even one of those
criteria, let alone all of them?
Id.
280
. See id. ¶ 6. Discussing the threat to all citizens when the
government infringes one group’s rights, Diamond writes that “[f]or
most people . . . the greater threat comes not from the state, but from
violent felons. In the abstract, infringing on the liberties of law-breakers
may threaten ‘everyone.’ But in the real world, it actually saves lives.”
Id.
281
. See id. ¶ 9. Arguing that sometimes protection of society is more
important than individual liberty rights, Diamond writes that:
The Court’s ruling in Kansas v. Hendricks is merely the latest
encroachment of the state upon the lives of convicted criminals. But
unlike the paranoid rantings of the ACLU, this doesn’t mean we are
becoming a totalitarian society. If anything, it means we are returning to
the days before the Warren Court, when society drew clear lines between
right and wrong . . . . The ruling is a milestone for America in general,
and the victims’ rights movement in particular.
Id. ¶¶ 9-10; see also Zonana, supra note 269, at 1248 (stating that “[i]t
is a politically popular position, and only a few law professors, the
American Psychiatric Association, and the New York Times have
publicly stated that the Court had it wrong.”).
282
. See Reardon, supra note 192, at 851. While testifying before
house and senate legislative committees that sex offenders do not suffer
from a mental illness, Dr. Reardon was asked by a member of the
committee, “‘[w]ell, what shall we call them, and where shall we put
them?’” He responded, “‘[w]hy not call them criminals and put them in
prison?’” The committee member retorted, “[w]e already do that.”
Reardon added, “[t]hen put them on parole for ten years . . . . Perhaps
the criminal justice system should be responsible for the control and care
of sex offenders, who are after all, convicted criminals.” Id.; see also An
Act To Protect The Public From Dangerous Sexual Predators, H.R.
5433, 182nd Gen. Ct. (Mass. 1998) (proposing amendment to MASS.
GEN. LAWS ch. 123A, 265). Section six of the proposed bill, which was
modeled after the Kansas act, provides that anyone
having before been convicted or adjudicated delinquent of any of the
above [sexually violent] offenses or of any other offense of any other
jurisdiction, federal, state, or territorial, which is the same as or
necessarily includes the elements of any one or more of the above
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V. CONCLUSION
In Kansas v. Hendricks, the Supreme Court made a significant change in
the way courts now interpret civil confinement statutes for sex offenders.283
Previously, due to the difference in opinion amongst health care officials as
to whether or not sex offenders are actually amenable to treatment, it was
more difficult to constitutionally confine a person.284 If treatment were
required to be an aim of state legislatures in crafting such confinement
statutes, but yet was not actually possible, no statute could pass
constitutional muster. The treatment element transforms a statute from
punitive to rehabilitative.285 Civil commitment statutes of course must be
rehabilitative in nature to avoid being criminal.286 Since states are seeking to
confine those whom it deems dangerous regardless of whether they have
committed a crime, such confinement must be imposed under a civil scheme,
not a criminal one. By lessening the role of treatment under such a scheme, it
becomes easier for states to draft constitutionally sound confinement
statutes.287 The Court has made it clear that a statute will not be considered
punitive in nature simply because no real treatment will be provided.288
Without requiring states to provide legitimate treatment to sexually
dangerous predators whom it civilly confines, the Court is condoning the
evaporation of the liberty of a particular group without providing any legal
rationale.
Todd M. Grossman
offenses, shall be imprisoned in the state prison for life.
Id. Though the legislative session ended without action being taken on
the bill, Governor Paul Cellucci stated: “‘I’m going to refile that bill and
I’m going to demand the Legislature act quickly on it. . . . It’s beyond
my comprehension why the Legislature did not pass that bill last year.’”
Associated Press, Cellucci Planning Another Bid for Broader SexOffender Bill, BOSTON HERALD, Jan. 27, 1999, at 22.
283
. See supra notes 225-67 and accompanying text.
284
. See supra notes 225-67 and accompanying text.
285
. See supra notes 225-67 and accompanying text.
286
. See supra notes 225-67 and accompanying text.
287
. See Cross v. Harris, 418 F.2d 1095 (D.C. Cir. 1969). By reducing
the requirement that adequate treatment be provided to involuntarily
confined sex offenders, there is no longer a potential problem of states
offering a “promise of treatment . . . only to bring an illusion of
benevolence to what is essentially a warehousing operation for social
misfits.” Id. at 1107.
288
. See Kansas v. Hendricks, 521 U.S. 346, 365 (1997).