Fighting the devil we don't know: Kansas v. Hendricks, a case study exploring the civilization of criminal punishment and its ineffectiveness in preventing child sexual abuse.

• Author: King, Cynthia A.

In 1984, a jury convicted Leroy Hendricks of taking "indecent liberties" with two children.(1) He served all but a few months of his sentence and was scheduled to be released to a halfway house when the Kansas legislature promulgated the Sexually Violent Predator Act ("Act").(2) The Act provided for "a civil commitment procedure for the long-term care and treatment of the sexually violent predator."(3) Hendricks objected to the Act on constitutional grounds, arguing that it violated the Double Jeopardy and Ex Post Facto Clauses of the U.S. Constitution, as well as his right to due process.(4) Although the Kansas Supreme Court agreed that the Act violated Hendricks's right to due process,(5) the U.S. Supreme Court did not. In Kansas v. Hendricks, the Court held that because "the Act does not establish criminal proceedings and ... involuntary confinement pursuant to the Act is not punitive," it did not violate the Constitution.(6)

The Court's ruling had the effect of incarcerating an admitted pedophile indefinitely.(7) Society's instinctive reaction might be one of intense satisfaction that the Court protected children by permitting a legislature to banish those who prey upon them. In the broader context, however, the analytical calisthenics that the Court performed to obtain that result have sobering implications. By defining the Act as civil in nature, the Court was able to circumvent the constitutional protections the founding fathers granted to criminal defendants.(8) The Court also permitted the Kansas legislature to redefine the terms of permissible "involuntary confinement" to deny sexual offenders what few "civil" protections existed.(9) Hendricks laid the framework for states to deprive sexual offenders of individual liberty by mere legislative action. By using a faulty analytical basis and then refusing to narrow its holding to child molesters, or even to sexual offenders, the Court opened the door for state legislatures to imprison "undesirables" without judicial impediment.(10)

Arguably, the deprivation of constitutional rights to those who commit child sexual abuse is a small price to pay to assure the safety of children.(11) On an ideological level, however, the unilateral deprivation of constitutional protections is objectionable. The Constitution strives to "establish Justice ... and secure the Blessings of Liberty" to "We the People."(12) Permitting legislators to pick and choose to whom constitutional protections may apply places our entire judicial system on an insecure foundation.(13) On a practical level, by upholding the Act, the Supreme Court squandered the opportunity to force lawmakers to confront the horrific realities of child sexual abuse and target its most frequent perpetrators.(14)

Despite the onslaught of publicity surrounding crimes committed by sexually violent strangers, the devastating truth is that most child sexual abuse is committed by a relative or friend of the victim.(15) The incarceration of a handful of individuals is insufficient to address the widespread problem of sexual abuse.(16) Legislators may propose and enact sexually violent predator statues and claim to solve the problem, yet the implementation of such laws protects but a small minority of victims. By assuming that incarceration is the appropriate remedy, lawmakers and the Supreme Court, which endorsed the legislation, ignore the need to delve deeper into the "silent epidemic" of the sexual abuse problem in the United States and to think creatively about methods of prevention.(17)

The first section of this Note examines the traditional distinctions between "civil" and "criminal" detention and discusses the purposes and protections provided to individuals subject to each type of imprisonment. The second section analyzes the Supreme Court's decision in Hendricks, including its acceptance of the classification of Leroy Hendricks as a "predator," and its complete deference to the Kansas legislature.(18) The third section considers possible reasons for the Court's apparent willingness to abandon constitutional protections in certain areas. This Note concludes with a discussion of the implications and ramifications of the Hendricks decision on the problem of child sexual abuse.

INVOLUNTARY CONFINEMENT: PURPOSE, HISTORY, AND THE DISTINCTION BETWEEN CIVILITY AND CRIMINALITY

The Preamble of the Constitution insists that a major goal of the document is to "secure the Blessings of Liberty to ourselves and our Posterity."(19) The Constitution ensures that liberty applies not only to society in general, but also to the rights of individuals to be free from unreasonable governmental intrusion.(20) This does not mean, however, that American citizens live free from any and all restrictions: "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."(21) A balance exists between individual independence and societal benefits.

Until recently, the detention of individuals clearly had been categorized as either "involuntary civil confinement" or "criminal punishment."(22) Involuntary civil commitment traditionally related only to individuals who were mentally ill, while government reserved criminal punishment for prisoners as retribution for their crimes against society. This section will distinguish between the two types of detainment and then explain how the Court obliterated those differences in Hendricks.

Involuntary Civil Confinement

The American Bar Association has defined involuntary civil commitment as "the process by which mentally ill individuals who are dangerous to themselves [or to] others ... are forced to receive mental health care, usually in an inpatient facility."(23) Unlike criminal incarceration, involuntary civil commitment may continue for an indefinite duration.(24) Individuals who are involuntarily confined are entitled to periodic review of their condition.(25) When they are deemed to have "recovered," they are released.(26) These distinctions are consistent with the traditional primary purposes of involuntary civil commitment: "treatment and protective isolation of the individual."(27)

Prior to Hendricks, involuntary civil confinement wets constitutional only if a state could prove by clear and convincing evidence(28) that an individual was: (1) mentally ill and (2) dangerous, either to the individual himself or to society at large.(29) Neither element alone was sufficient to warrant detention.(30) Civil commitment was justified under the state's parens patriae power.(31) If an individual was incompetent, the state had a duty to provide for his care, and the focus of his detainment was treatment.(32) If an individual was not mentally ill, a state's civil detention of such an individual violated due process.(33)

Largely because "psychiatrists disagree widely and frequently on what constitutes mental illness,"(34) the Court has utilized a plethora of words to describe a psychiatric condition that does not appear to be "normal," yet fails to reach the heights of "mental illness."(35) Prior to Hendricks, it was unclear whether an individual's condition had to be diagnosed as a mental disease, or whether something less was sufficient to satisfy the threshold issue.(36)

The state also had to prove that the individual posed a danger to himself or to others.(37) Before Hendricks, proof of dangerousness was a considerable burden, because it required the state to establish a nexus between a finding of mental illness and the individual's dangerousness without relying solely upon evidence of the individual's past behavior.(38) Permissible factors to be considered in the evaluation of a person's dangerousness included the "imminence, likelihood, [and] severity of the threat,"(39) and "the individual's [personal] history, his ... environment and demographic factors."(40)

In an attempt to deal with the unique problems presented by pedophilia,(41) the Hendricks Court expanded the standard for involuntary civil commitment and made it easier for the state to meet the burden of proof required to satisfy that standard. In Hendricks, the Court confronted one state legislature's attempt to incorporate repeat sexual offenders into the state's system of involuntary civil commitment by making it applicable to those who suffer from a "mental abnormality."(42) Classifying sexual offenders in general, and pedophiles in particular, is difficult because the psychiatric community lacks consensus on whether these individuals are afflicted with a "mental illness."(43) Proving that an individual is a pedophile therefore does not necessarily satisfy the threshold requirement for traditional involuntary civil confinement. The Kansas legislature attempted to bypass the "mental illness" debate by using the phrase "mental abnormality."(44) The Hendricks Court held that it was unnecessary to establish "mental illness" per se to satisfy due process.(45) "[W]e have never required State legislatures to adopt any particular nomenclature in drafting civil commitment statutes."(46) The Court stated that a "mental abnormality" was an "additional factor" that, when combined with a finding of "dangerousness," was sufficient to justify involuntary civil commitment.(47)

Criminal Punishment

Philosophers continually have debated the purpose and morality of inflicting punishment upon individuals.(48) Most generally, punishment is defined as the intentional imposition of something presumed to be odious to the recipient, by a group deemed by the community as possessing the authority to mete out and enforce the sentence.(49) The individual's voluntary violation of the social code serves as the justification for the sentence.(50) Additionally, there is a general notion that the punishment should fit the crime.(51) This concept protects the accused from unduly harsh punishment and ensures that the sentence imposed by the...