71 J. Kan. Bar Assn. 4, 13-30 (2002). Beyond Hendricks: The United States Supreme Court decision in Kansas v. Crane and other issues concerning Kansas' Sexually Violent Predator Act.

Author:By Kevin J. Breer

Kansas Bar Journals

Volume 71.

71 J. Kan. Bar Assn. 4, 13-30 (2002).

Beyond Hendricks: The United States Supreme Court decision in Kansas v. Crane and other issues concerning Kansas' Sexually Violent Predator Act

Kansas Bar Journal71 J. Kan. Bar Ass'n, April. 2002, 13-30 (2002)Beyond Hendricks: The United States Supreme Court decision in Kansas v. Crane and other issues concerning Kansas' Sexually Violent Predator ActBreer, Kevin J., Beyond Hendricks: The United States Supreme Court decision in Kansas v. Crane and other issues concerning Kansas' Sexually Violent Predator Act, J. Kan. Bar Ass'n, April. 2002, 13-30By Kevin J. BreerI. Introduction

S ex offenders are the scourge of modern America, the "irredeemable monsters" who prey on the innocent. Although this revulsion is perhaps now more widespread and more acute, it is not unprecedented in the annals of American justice. During the twentieth century alone, those accused or convicted of sex offenses have been the subject of repeated social control strategies, including the "sexual psychopath" laws in effect nationwide since the 1930s, which segregate offenders in mental institutions. For its part, the U.S. Supreme Court has been notably unreceptive to constitutional challenges brought against such strategies, signaling its plain deference to the police power of states to target sex offenders with invasive and often quite novel interventions.[1]

Unlike ordinary criminals whose recidivism rates are relatively lower, sexual predators pose a unique threat to society because of the high probability that they will continue to commit sexual crimes upon those who are often unable to protect themselves. States are not willing to take the extreme measures described in "A Clockwork Orange,"[2] but several states, including Kansas, have taken what many consider to be a significant step towards the protection of its citizens by enacting sexually violent predator acts. These acts allow states to confine an individual, deemed to be a sexually violent predator, after serving a prison sentence for a sex crime conviction or when about to be released on parole.[3] The Kansas Sexually Violent Predator Act,[4] as originally adopted, included a statement of the legislative intent behind the Act, noting that:

The legislature finds 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 defined in K.S. 59-2901 et seq. and amendments thereto, which is intended to provide short-term treatment to individuals with serious mental disorders and then return them to the community. ... [S]exually 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 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.[5]

Several states have passed or are in the process of passing sexually violent predator acts to address the special problems presented by sex predators. Prior to some significant legal decisions, many legal scholars believed that the involuntary commitment schemes (like the ones used in Washington and Kansas) were unconstitutional. The United States Supreme Court decision in Kansas v. Hendricks,[6] however, gave the green light for many more states to pass similar laws to address this troublesome area.

The purpose of this article is to address the legal issues not raised in Hendricks, and to discuss the case law that has been developed in Kansas and other states.[7] Additionally, this article will discuss the recent U.S. Supreme Court decision in Kansas v. Crane.[8]

  1. Substantive due process issues

    One of the first constitutional challenges to the sexually violent predator acts (hereinafter generally referred to as "SVPA") was whether the acts violated the substantive due process rights of the respondent.[9]

    1. "Mentally ill"

      The United States Supreme Court has held that a finding of "mental illness" is a "benchmark requirement" for civil commitment to satisfy substantive due process standards.[10] In In re Young,[11] the respondents argued that the Washington SVPA violated their substantive due process rights because the State failed to prove they were "mentally ill."[12] The respondents further argued that the Washington SVPA did not serve a legitimate state purpose.

      Civil commitment statutes have been routinely upheld by the courts when a "legitimate concern for public safety" is shown.[13] The Young court noted that the State had a legitimate interest in confining dangerous sexual predators.[14] Even though the Washington statute does not refer to sex predators as "mentally ill," the statute does require a finding that the person have a "mental abnormality or personality disorder."[15] The court also recognized that the legislature generally utilized the concept of "mental illness" when drafting the SVPA.[16] Because the "mental abnormality or personality disorder" requirement encompassed a "mentally ill" concept, the court held that the Washington SVPA did not violate the respondents' substantive due process rights.[17]

      Like the respondents in Young, the respondent in Hendricks argued that the Kansas Sexually Violent Predator Act required a finding of a "mental illness." Similarly, Hendricks argued that language in the statute which only required a finding of a "mental abnormality" was violative of his substantive due process rights.[18] In denying Hendrick's argument, the Court admitted that the term "mental illness," as used in previous cases, had no "talismanic significance" and that the "mental abnormality" requirement found in the Kansas Act was sufficient to satisfy due process concerns.[19]

      Hendricks also argued that the Kansas SVPA's requirement of "mental abnormality" did not satisfy substantive due process requirements.[20] Although the Constitution protects citizens from arbitrary physical restraint, the "liberty interest found in the Constitution is not absolute."[21] The Court noted that states are allowed to civilly detain persons who are a danger to the public and whose restraint is for the "common good."[22] Civil detainment is warranted if the State shows that commitment protects the public, the procedures are constitutionally sound, and evidence is admitted or suppressed pursuant to the constitutional standards.[23] Because the Kansas statute required a finding that the respondent was likely to recommit sex crimes in the future, the Court unanimously held that the act sufficiently met substantive due process standards.[24]

    2. "Volitional control"

      In In re Crane,[25] the Kansas Supreme Court had an opportunity to revisit the decision in Hendricks. Crane was convicted of lewd and lascivious behavior for exposing himself to a tanning salon attendant.[26] The Kansas Supreme Court affirmed his convictions for the incidents involving the tanning salon attendant but reversed his convictions for attempted aggravated criminal sodomy, attempted rape and kidnapping which occurred at a nearby video store. During his trial for civil commitment, Crane filed a motion for summary judgment arguing that there was no evidence that he suffered from "volitional impairment" as he suggested was required by the language in Hendricks. The district court denied Crane's summary judgment motion, holding that the Kansas SVPA did not require the State to prove lack of "volitional control."[27]

      The trial court instructed the jury that in order to find Crane was a sexually violent predator, the State had to prove: (1) that Crane had been convicted of an aggravated sexual battery; and (2) that Crane "suffers from a mental abnormality or personality disorder which makes the respondent likely to engage in future predatory acts of sexual violence, if not confined in a secure facility."[28] The jury found Crane to be a sexually violent predator.

      On appeal, Crane again argued that the language in Hendricks required the jury to find that he lacked "volitional control" in order to satisfy substantive due process constitutional standards.[29] The Kansas Supreme Court in Crane noted that the act contained both an "emotional element" and a "volitional one." The court also recognized that the Hendricks opinion is "replete with references" regarding the lack of volitional control.[30] While the evidence in Hendricks indicated that the respondent had a history of abusing children and that he was unable to control his behavior, the evidence in Crane was "weak" concerning his inability to control his sexual urges.

      Based on the language in Hendricks, the court concluded the decision required a finding of an inability to control dangerous behavior and that...

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