Construing Crane: examining how state courts have applied its lack-of-control standard.

• Author: Pierson, Janine

INTRODUCTION I. THE CONSTITUTIONALITY OF CIVILLY COMMITTING SEXUALLY VIOLENT PREDATORS A. Kansas v. Hendricks: Addressing Due Process Challenges to Civil Commitment B. Kansas v. Crane: Closing the Gap Left Open by Hendricks C. Justice Scalia's Dissent in Crane D. Control and the Insanity Defense II. STATE APPLICATIONS OF CRANE'S LACK-OF-CONTROL STANDARD A. The Implicit Lack-of-Control Theory 1. Declining to Require Specific Proof of Lack of Control 2. The Implicit Lack-of-Control Approach Disregards Crane B. The Nested Lack-of-Control Theory 1. Including Lack of Control in the Definition of "Mental Abnormality" 2. The Nested Lack-of-Control Approach Conflates Mental Abnormality with Lack of Control C. Control as a Separate Element for Commitment 1. Requiring a Separate Finding of a Sex Offender's Lack of Control a. Remanding Cases Without Giving a Standard b. Affirming Commitment with a Factor-Based Approach c. Affirming Commitment By Relying on Expert Testimony 2. Overreliance on Expert Testimony and the Need for a Clear Standard III. RECOMMENDATIONS TO COURTS APPLYING CRANE A. Operationalizing the Control Standard B. Monitoring the Use of Expert Testimony CONCLUSION INTRODUCTION

The Supreme Court recently upheld the constitutionality of a federal statute that authorizes the Department of Justice to civilly commit federal prisoners after their release if they suffer from a mental illness or abnormality that causes "serious difficulty in refraining from sexually violent conduct." (1) Not only has the federal government authorized civil commitment for sexually violent predators, but as of 2009, twenty states have also enacted statutes authorizing the same. (2) By 2006, more than 3646 people had been detained or committed under these laws. (3) Such commitments generally occur in secure mental health facilities, some of which are connected to, or within, prisons. (4) A person committed under a sexually violent predator law is committed until he (5) no longer presents a danger to the community. (6) This often results in commitment for life; (7) the New York Times reported that, as of 2007, only 250 civilly committed sex offenders had been released from confinement. (8) Often unsympathetic characters in the courtroom, sex offenders face an uphill battle in proving that they should be set free despite their past offenses.

Statutes providing for the civil commitment of sexually violent predators typically require that the State prove at least three elements before commitment can be effected: (1) the defendant must have been convicted of, or at least have been charged with, a sexually violent offense; (2) the defendant must have a mental disorder or abnormality, generally defined as "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"; (9) and (3) there must be a prediction of future dangerousness--a likelihood that the defendant will continue to engage in sexually violent behavior. (10) In the landmark decision Kansas v. Crane, the Supreme Court held that, in addition to these statutory elements, "there must be proof of serious difficulty in controlling behavior" before the state may, consistent with due process, subject the defendant to civil commitment. (11)

While the application of Crane's holding--that there must be proof that the offender lacks control--is problematic on account of its ambiguity, this Comment argues that there are ways in which courts can better apply the standard to ensure that due process is provided to defendants. Specifically, Crane mandates that states require a separate finding on the issue of whether the defendant has serious difficulty controlling his behavior. (12) In light of this mandate, states should attempt to operationalize the evidentiary requirement by developing a standard definition--grounded in the norms and judgment of the community--on the issue of what constitutes serious difficulty in controlling oneself to assure a more consistent and fair application of the concept across cases. (13) In addition, state courts should restrict expert testimony to a qualitative description of the defendant's ability to control himself rather than permitting experts to render ultimate conclusions. Lastly, juries should be instructed that there is no generally accepted method for measuring volitional impairment in the mental health community. These procedures will help ensure that the trier of fact understands that "proof of serious difficulty in controlling behavior" (14) is a legal standard and can then properly weigh expert testimony.

It is important to note from the outset that this Comment, in arguing for a more stringent application of the control test to justify civil commitment, does not argue that sex offenders should face less restrictive or less severe consequences for their actions. The sex offenders facing civil commitment in these cases have already been found guilty of their crimes and have been punished by the criminal justice system. The issue is whether some sex offenders should face civil commitment after and in addition to the time they have already served for their crimes. As explained by Professor Stephen Morse,

Our society routinely and regretfully releases from prison inmates we know are highly likely to re-offend, because culpability limits the term of possible confinement. Their prison term "cleanses" their culpability for past crime, and no general form of pure preventative detention exists for responsible agents who are simply dangerous, no matter how serious their past record nor how predictable their future violence might be. (15) Thus, sex offenders do not face detention simply because society considers them likely to re-offend; offenders face detention only if society also deems that they are substantially unable to control their behavior. (16) Because of this distinction, the factfinder's determination on the issue of control is an essential safeguard that limits the number of offenders who are eligible for civil commitment. This Comment is premised on the idea that our justice system must clearly define the rules for determining when a person who has already faced criminal punishment and been "cleansed" of his prior crimes should be incapacitated indefinitely via civil commitment solely for the future protection of the community.

Part I discusses the legal background of civil commitment for sexually violent predators, including the Supreme Court's decisions in Kansas v. Hendricks and Kansas v. Crane. Part II surveys and critiques the various ways in which state appellate and supreme courts have construed the Supreme Court's mandate in Crane that the State must prove the defendant has serious difficulty controlling his behavior in order to justify civil commitment. Part III provides recommendations for how courts can better apply the control test going forward to ensure that defendants facing civil commitment proceedings for sexually violent behavior are afforded due process.

1. THE CONSTITUTIONALITY OF CIVILLY COMMITTING SEXUALLY VIOLENT PREDATORS

   1. Kansas v. Hendricks: Addressing Due Process Challenges to Civil Commitment

      The Kansas Sexually Violent Predator Act permits the State to civilly commit sexually violent predators. The statute defines a sexually violent predator "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 repeat acts of sexual violence." (17) It defines "mental abnormality" as "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." (18) In Kansas v. Hendricks, the State sought to civilly commit Leroy Hendricks, an inmate about to be released from prison after serving time for sexually molesting children. (19) Hendricks challenged the Act on substantive due process grounds, among others. The Supreme Court upheld the constitutionality of Kansas's civil commitment of sexually violent predators, as well as Hendricks's confinement. (20)

      The Hendricks Court explained that the liberty afforded to citizens by the Constitution is not absolute and that certain exceptions are necessary for the "common good." (21) The Court noted that, under certain conditions, it had upheld statutes providing for the civil confinement of individuals who could not control their actions and who posed a threat to the community. (22) Articulating the narrow standard under which a person may be committed, the Court explained that a mere finding of dangerousness is generally insufficient to warrant commitment. (23) However, proof of a mental illness or abnormality that is linked to the finding of dangerousness "serve[s] to limit involuntary civil confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control," thereby fulfilling the narrow tailoring required by the Due Process Clause. (24) The Court left individual states with the discretion to define what constitutes a mental illness or abnormality and explained that the legal significance of these terms need not directly equate with medical standards. (25) In specifically upholding Hendricks's civil commitment, the Court found that an "admitted lack of volitional control, coupled with a prediction of future dangerousness, adequately distinguishe[d] Hendricks from other dangerous persons who [were] perhaps more properly dealt with exclusively through criminal proceedings." (26)

   2. Kansas v. Crane: Closing the Gap Left Open by Hendricks

      Hendricks's reference to lack of control left uncertainty in the governing law--namely, whether a showing that a defendant completely lacked the...