Out of Sight, Out of Mind: An Analysis of Kansas V. Crane and the Fine Line between Civil and Criminal Sanctions

Date01 September 2004
AuthorFranklin T. Wilson
DOI10.1177/0032885504268186
Published date01 September 2004
Subject MatterArticles
10.1177/0032885504268186THE PRISON JOURNAL / September 2004Wilson / OUT OF SIGHT, OUT OF MIND
OUT OF SIGHT, OUT OF MIND:
AN ANALYSIS OF KANSAS V.CRANE
AND THE FINE LINE BETWEEN
CIVIL AND CRIMINAL SANCTIONS
FRANKLIN T. WILSON
Sam Houston State University
The social intolerance surrounding repeat sexual offenders has spawned numerous
legal remedies through the years including sexual psychopath laws, Megan’s Law,
chemical castration, and sexually violent predator (SVP) legislation. In the past 12
years, several states have implemented what many consider to be the resurrectionof
the old sexual psychopath laws of the 1930s and 1940s. This newest legal remedyis
most often referred to as SVP legislation and allows for the indefinite civil commit-
ment of those offenders who have served their prison sentences but have been deter-
mined to be SVPs still. Based on this legislation,this article analyzes the impact of the
U.S.Supreme Court case of Kansas v. Crane, the latest in a series of cases that address
an issue that many feel runs dangerously close to crossingthe fine line between civil
commitment and criminal sanctions.
Keywords: civil commitment; Kansas; Hendricks; Crane; Kansas Sexu-
ally Violent Predator Act; sexually violent predator
It is safe to say that society finds violent and sexual offenses intolerable.
The knowledge that such offenses have occurred numerous times only serves
to amplify society’s disdain for the acts and their perpetrators. Consequently,
this social intolerance has led to numerous methods of addressing such
issues. Potter and Kappeler (1998) pointed out that the 1930s and 1940s
experienced an enormous panic about the presumed presence of sex fiends.
This panic ultimately resulted in the State of Michigan passing the first sex-
ual psychopath laws and eventually led to a total of 28 states passing such
laws (Potter & Kappeler, 1998; Websdale, 1996). These laws provided for
the confinement of offenders who were determined by psychiatrists to suffer
from some form of sexual dysfunction (Potter & Kappeler, 1998). The
THE PRISON JOURNAL, Vol. 84 No. 3, September 2004 379-394
DOI: 10.1177/0032885504268186
© 2004 Sage Publications
379
offender could be held indeterminately until the state found him to be cured.
Grant Morris (2000) reported that for years, states utilized sexual psychopath
laws but ultimately deemed such laws to be inadequate. This was primarily
because of the prevailing belief that sex offenders did not suffer from any
mental illness and therefore were not candidates for treatment (Websdale,
1996). However, in the past 12 years, several states have implemented what
many consider to be the resurrection of the old sexual psychopath laws as
sexually violent predator (SVP) legislation.
In general, SVP legislation allows for the indefinite civil commitment of
those offenders who have served their prison sentences but have been deter-
mined to still be SVPs. Although Washingtonwas the first state to implement
such legislation (La Fond, 1999), the Kansas Sexually Violent Predator Act
(KSVPA)has received the most attention, reaching before the U.S. Supreme
Court twice within a 5-year period. This analysis of the KSVPA and, more
specifically, the importance of the Kansas v. Crane (2002) case with regard
to civil commitment statutes for sexual predators in general is not intended to
imply that one form of legislation is better than the other. Nor is intended to
overlook the often harsh and intrusive nature of such acts. Rather, the pur-
pose of this analysis is to examinethe latest in a series of cases that address an
issue that many feel runs dangerously close to crossing the fine line between
civil commitment and criminal sanctions.
The Kansas v. Hendricks (1997) case, the first of two Supreme Court
cases originating from the KSVPA, “can be viewed as a logical, if extreme,
development in a 30-year-long process: the progressive triumph of the ‘dan-
gerousness’ standard over traditional grounds for civil commitment”
(Friedland, 1999, p. 124). More specifically, concerns arise that such cases
could transform the traditional treatment orientation of civil commitment
statutes into a mechanism for the continuation of criminal sanctions afteran
individual has served his or her prison sentence.
A THIN LINE: CIVIL COMMITMENT VERSUS
CRIMINAL INCARCERATION
Friedland (1999) thoroughly explained the distinguishing characteristics
of civil commitment and criminal incarceration. He stated that, although
criminal incarceration may have the goal of rehabilitation in mind, its pri-
mary objective is to provide punishment and deterrence. This aim stands in
contrast to a civil commitments’ goal, which has the primary objective of
helping the detainee with treatment while still protecting the rest of society
from harm. Often, the burden of proof in civil commitment cases is clear and
380 THE PRISON JOURNAL / September 2004

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