The need for coherence: states' civil commitment of sex offenders in the wake of Kansas v. Crane.

• Author: Pfaffenroth, Peter C.
• Position: Case Note

INTRODUCTION

In the case of absolute madmen, as they are not answerable for their actions, they should not be permitted the liberty of acting unless under proper control; and, in particular, they ought not to be suffered to go loose, to the terror of the king's subjects. It was the doctrine of our antient [sic] law, that persons deprived of their reason might be confined till they recovered their senses. (1) Ten minutes after she had shown him to a private tanning room, Michael Crane approached the salon attendant, dropped his pants, began masturbating, and said, "You know you want it." (2) When the attendant reached for the phone and told him to get away, Crane said, "You could have had this," and walked out the door. (3)

Half an hour later, Crane asked the woman working the desk at a nearby video store for help finding a movie. (4) After an unsuccessful hunt, she returned to the desk and became engrossed in the film showing on the store's monitors. Next thing she knew, Crane was carrying her across the store with his sweatpants down and ordering her to perform fellatio. He squeezed the clerk's neck, trying to force her down. But the clerk fought back, screaming and kneeing Crane in the groin. He pushed her to the ground, hovered over her, and said, "I'm going to rape you." But suddenly, without any intervening event, Crane stopped and ran away. (5)

A psychiatrist evaluated Crane and found evidence of sexual dysfunction and deviancy in the form of exhibitionism. He testified at trial that people like Crane "want to induce some kind of shock or fear in the individual and there is also a sort of an adrenaline rush or boost of being in a dangerous situation." (6) Sometimes they need to do more than just expose themselves in order to get the fearful response they crave, the doctor reported. Such behavior serves as a stress-release, and, though voluntary, is "a bit like an addiction," which exhibitionists later use for masturbatory fantasies. (7)

A jury found Crane guilty of kidnapping, attempted aggravated sodomy, attempted rape, and lewd and lascivious behavior. He was sentenced to thirty-five years to life in prison. (8)

The convictions did not stick, however. The Kansas Supreme Court threw out the kidnapping conviction, rejecting the prosecutor's theory by finding that moving the video store clerk across the room lacked "significance." (9) The court also reversed the attempted sodomy and attempted rape charges because the prosecutor had failed to specifically allege the elements of the crimes in the complaint. (10) Only the lewd and lascivious behavior conviction, stemming from the tanning salon incident, survived. (11)

Rather than risk a retrial, the prosecutor accepted Crane's guilty plea to aggravated sexual battery, for which Crane was essentially sentenced to time served--about four years. (12) But just days after his release from prison, the prosecutor moved for Crane's indefinite civil commitment as a sexually violent predator (SVP) under the Kansas Sexually Violent Predator Act (the "Act"). (13)

At Crane's commitment trial, the video store victim testified that she was upset that Crane was not serving enough time, and the prosecutor established for the jury that Crane's punishment had been slashed from thirty-five years to life to just four years. (14) The prosecutor explained that the kidnapping charge could not be refiled on account of a "technicality," despite the Kansas Supreme Court's explicit denunciation of the evidence supporting the charge as "inconsequential." (15) At the commitment trial, the victim responded affirmatively to the prosecutor's question, "[U]nderstandably, you're very upset about how the system treated you in this case, right?" (16) The victim testified that the prosecutor had persuaded her that accepting the guilty plea, and then seeking civil commitment based on that conviction, was the only way to "make sure [Crane] stays off the street." (17)

Crane argued that for him to be committed, the jury must find that he was unable to control his exhibitionism. (18) However, the trial court held as a matter of law "that even though the State's expert witnesses might agree that [Crane's] mental disorder does not impair his volitional control to the degree he cannot control his dangerous behavior, [the Act] does not specify such a required element to be proven." (19) Instead, the State only had to "prove (1) that Crane had been convicted of aggravated sexual battery, and (2) that he suffers from a mental abnormality or personality disorder which makes the respondent likely [defined as 'more probable ... than not'] to engage in future predatory acts of sexual violence, if not confined in a secure facility." (20)

After ninety minutes of deliberation, the jury voted unanimously to commit Michael Crane to Lamed State Security Hospital indefinitely. (21)

After languishing for decades, laws permitting the involuntary civil commitment of sex offenders have regained popularity. In 1997, the United States Supreme Court upheld the constitutionality of the Act in Kansas v. Hendricks. (22) However, just five years later, the Court last Term in Kansas v. Crane expressed serious doubts about the Act and its implementation. (23) Writing for a seven-Justice majority, Justice Breyer held that, although a complete lack of volitional control need not be proved, the Constitution requires that there be some lack-of-control finding in a civil commitment proceeding. (24) Nonetheless, the Court failed to enunciate any clear standard for states to follow and gave them little guidance on how to implement its holding. As a result, the Court's decision in Crane will likely lead to few changes in the process of civil commitment following criminal conviction.

Most fundamentally, these civil commitment statutes, which are based on predictions of future dangerousness and which may facilitate the indefinite incapacitation of even those who can largely control their behavior, threaten to redefine how states punish criminals. Defendants like Michael Crane--who have perpetrated despicable acts, but who have served their sentences and can essentially choose not to recidivate--should neither be incapacitated a second time for the same offense, nor institutionalized out of fear that they might in the future again decide to commit a crime.

This Note assesses the current state of sex offender civil commitment laws and argues that states must improve the logical consistency between their dual criminal and civil efforts to confine sex offenders. Part I explains the history of these statutes and the constitutional constraints on institutionalization. Part II addresses the Supreme Court's decision in Crane. Part III weighs states' implementation of post-Crane practices. Part IV discusses the dangers of overly broad civil commitment statutes. Finally, Part V argues for several solutions to the dilemmas posed by civil commitment laws.

1. THE DEVELOPMENT OF SEX OFFENDER COMMITMENT LAWS

1. Legal Justifications for General Civil Commitment Statutes

   Civil commitment has a long tradition in the United States. In 1880, the New Hampshire Supreme Court summarized the relevant common law:

   [I]t is lawful to seize and restrain any person incapable of controlling his own actions, whose being at large endangers the safety of others. But this is justifiable only when the urgency of the case demands immediate intervention. The right to exercise this summary remedy has its foundation in a reasonable necessity, and ceases with the necessity. (25) Since then, the United States Supreme Court has upheld civil commitment, so long as it is "pursuant to proper procedures and evidentiary standards." (26) Under current law, mentally ill individuals may be committed when, because of their illness, either they can reasonably be expected to seriously injure themselves or others in the near future, or they cannot attend to their basic physical needs, such as feeding, clothing, and sheltering themselves. (27) They must be periodically evaluated, since they are entitled to release when "they are no longer 'mentally ill,' 'dangerous,' or 'in need of care or treatment.'" (28)

   A state may constitutionally institutionalize an individual only if a special justification, such as the threat posed by him, outweighs his liberty interest. (29)

   [T]he Due Process Clause contains a substantive component that bars certain arbitrary, wrongful government actions "regardless of the fairness of the procedures used to implement them." Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action. "It is clear that commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection." (30) Courts therefore engage in the familiar balancing exercise. Only "special and 'narrow' non-punitive 'circumstances'" may trump an individual's liberty interest in a civil commitment case. (31) "A finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment." (32) Moreover, a state may only overcome a person's liberty interest where it demonstrates that the "nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed." (33) Still, "[t]here 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." (34)

   There have traditionally been two bases of authority underlying civil commitment: a state's police power, used in order to protect society against the narrow class of people who are most acutely threatening, (35) and its parens patriae interest in preserving and promoting the welfare of an individual. (36) Under the police power,

   [s]tates have in certain narrow circumstances provided for the forcible civil detainment...