Kansas v. Hendricks: Fighting for Children on the Slippery Slope - Michael L. Atlee

• Citation: Vol. 49 No. 3
• Publication year: 1998

Kansas v. Hendricks: Fighting for Children on the Slippery Slope

In Kansas v. Hendricks,¹ the United States Supreme Court determined the constitutionality of a civil commitment statute that provides for possible indefinite confinement of sex offenders who are near the end of their prison sentences and who pose a threat to society and suffer from a "mental abnormality." In a five to four decision, the Court reversed the Kansas Supreme Court and upheld Kansas's Sexually Violent Predator Act ("SVPA").² In doing so, the Court declared the act nonpenal and rejected due process, double jeopardy, and ex post facto challenges.³

I. Factual Background

In Hendricks, the State filed a petition seeking civil commitment of Leroy Hendricks under Kansas's SVPA.⁴ The SVPA, passed in 1994, attempts to reduce the threat that repeat sex offenders pose to society.⁵ Before a sex offender can be committed, the SVPA requires that certain criteria are met.⁶ First, the individual must have been previously charged with or convicted of a sexually violent offense.⁷ Second, the individual must suffer from a mental abnormality or personality disorder.⁸ Third, the individual, because of the mental abnormality, must pose a threat to society.⁹ If these indicia are met, several procedural steps must be satisfied before the individual is committed.¹⁰ Initially, the State must file a petition seeking confinement.¹¹ Next, a hearing is held to determine whether there is probable cause that the individual is a "sexually violent predator."¹² If probable cause is found, the individual must undergo a professional medical evaluation.¹³ Finally, a trial is held to find, beyond a reasonable doubt, whether the individual is a sexually violent predator.¹⁴

Leroy Hendricks was convicted in 1984 for taking "indecent liberties" with two thirteen year-old boys. Prior to that, Hendricks had been convicted four times for similar sex crimes with minors. At the hearing to determine probable cause, Hendricks agreed with a professional evaluation that labeled him as a pedophile. He also admitted that he could not control his urges when he got "stressed out."¹⁵ The jury found Hendricks to be a sexually violent predator beyond a reasonable doubt, and the court determined pedophilia to be a mental abnormality and committed Hendricks.¹⁶

Hendricks appealed, contending that the SVPA violated due process, double jeopardy, and the ex post facto clause.¹⁷ The Kansas Supreme Court looked only to the due process challenge.¹⁸ It held that the SVPA violated due process by allowing civil commitment based on a finding of dangerousness coupled with a mental abnormality.¹⁹ The court reasoned that the statute's mental abnormality requirement fell below the mental illness requirement affirmed by the United States Supreme Court in Foucha v. Louisiana.²⁰

The United States Supreme Court granted the State's petition for certiorari and reversed the Kansas Supreme Court.²¹ The Court rejected the due process claim, stating that it has "never required state legislatures to adopt any particular nomenclature in drafting civil commitment statutes," and it also dismissed Hendricks's double jeopardy and ex post facto claims.²²

II. Legal Background

The Supreme Court announced long ago that a person's civil liberty interest "is not [an] unrestricted license to act according to one's own will."²³ Those restrictions on civil liberty began to take modern form when the Court began considering the constitutionality of civil commitment statutes.

Modern boundaries of civil commitment were initially set when the Court upheld a Minnesota statute in Minnesota ex rel. Pearson v. Probate Court.²⁴ The Court upheld confinement of a dangerous individual with a "psychopathic personality."²⁵ Rejecting an equal protection challenge, the Court applied a rational basis test to the group affected by the statute and decided that the protection of society was a legitimate concern.²⁶ A separate due process challenge was defeated because the statute provided adequate procedural safeguards.²⁷

In O'Connor v. Donaldson,²⁸ the Court held it unconstitutional for an individual to remain committed if the individual does not pose a threat to society.²⁹ In that case Donaldson was initially committed because he suffered from "paranoid schizophrenia."³⁰ During his fifteen years of commitment, Donaldson never exhibited dangerous behavior. In fact, testimony demonstrated that Donaldson never committed a dangerous act.³¹ The Court held that Donaldson should have been released, even if the initial confinement was permissible, because "[a] finding of 'mental illness' alone cannot justify a State's locking a person up against his will .... [T]here is still no constitutional basis for confining such persons involuntarily if they are dangerous to no one."³² Therefore, the Court established that two requirements must be met to justify involuntary confinement—the individual must suffer from a mental illness and must pose a threat to society.³³

The Court's next major civil commitment case came four years later in Addington v. Texas.³⁴ The Court affirmed the two-part test formu- lated in O'Connor for civil commitment and also announced the evidentiary requirements.³⁵ Appellant contended that the State must prove the two elements beyond a reasonable doubt, while the State argued that a preponderance of the evidence standard should be applied.³⁶ The Court adopted a middle level "clear and convincing standard."³⁷ A clear and convincing standard, the Court reasoned, protected individuals against erroneous commitment and also served the legitimate interests of the State.³⁸

In Foucha v. Louisiana,³⁹ the Supreme Court held that states may not become too liberal in their commitment practices.⁴⁰ Although a review panel recommended that Terry Foucha, an insane acquittee, be conditionally discharged, the State recommitted him. Foucha did not have a mental illness, but the State held him because he demonstrated an antisocial personality, which rendered him a danger to others.⁴¹ Foucha argued his due process rights were violated.⁴² The Court agreed and held that an antisocial personality fell below the mental illness requirement.⁴³

However, a civil commitment statute may be unconstitutional even though it meets the two-part O'Connor test if its proceedings are punitive rather than civil.⁴⁴ If an act is punitive, it may offend the Double Jeopardy Clause or the Ex Post Facto Clause.⁴⁵ When determining whether the act is civil or punitive, courts look to a variety of factors. First, courts may look to legislative intent.⁴⁶ If the legislature's stated intent was to establish a civil proceeding, then the challenging party must show by '"the clearest proof that 'the statutory scheme [was] so punitive either in purpose or effect as to negate [the State's] intention' to deem it 'civil.'"⁴⁷

Second, courts may look to various provisions of the act. If the act does not require scienter, the act appears civil.⁴⁸ Moreover, affirmative restraint does not lead to a punitive conclusion.⁴⁹ Also, an act will not necessarily be punitive if it implements procedural safeguards found in criminal trials.⁵⁰ Rather, those safeguards ensure that the group intended to be affected is actually the group affected by the statute.⁵¹ Ultimately, the civil or punitive 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].'"⁵²

III. Rationale of the Court

In a five to four decision, the Supreme Court held as constitutional the Kansas civil commitment statute applying to sex offenders who suffer from a mental abnormality making them dangerous to society.⁵³ In upholding the SVPA, the Court rejected three constitutional attacks.⁵⁴

First, the Court addressed and rejected Hendricks's due process attack that the SVPA's requirement of a mental abnormality fell below...