"Mental illness": a sexually violent predator is punished twice for one crime.

• Author: Rollman, Eli M.
• Position: Supreme Court Review - Case Note

1. INTRODUCTION

   In Kansas v. Hendricks,(1) the Supreme Court addressed the constitutionality of detaining an individual pursuant to the Kansas Sexually Violent Predator Act (Act).(2) The Court held that the Act's civil commitment procedure meets constitutional requirements.(3) Supreme Court precedent(4) has established that civil confinement, to comport with constitutional due process requirements, requires a showing of both mental illness and dangerousness.(5) The Court held that the Act's requirement of a "mental abnormality or personality disorder" satisfies the "mental illness" standard.(6) The Court also held that under the Act, Kansas may detain an individual against his will without violating the Constitution's prohibitions on double jeopardy and ex post facto laws, despite the fact that the defendant was already serving a prison sentence when the law was enacted.(7) The Court found that the Act is a civil, nonpunitive law,(8) and therefore renders irrelevant the Constitution's Double Jeopardy(9) and Ex Post Facto Clauses,(10) which are only implicated by criminal statutes.(11)

   This Note argues that the Court erred in upholding the constitutionality of the Act. First, this Note observes that Kansas' stated reason for enacting the law was to enable the state to confine people who are not mentally ill.(12) Therefore, this Note concludes, the Court was wrong to decide that the Act requires a showing of mental illness.(13) Second, this Note argues that the language of the Act, its legislative history, and the implementation of the Act show that punishment is a primary goal of the statute. Confining an individual who was already serving time in prison at the time the Act was passed thus violates the Double Jeopardy and Ex Post Facto Clauses of the Constitution.(14)

2. BACKGROUND

   1. THE KANSAS SEXUALLY VIOLENT PREDATOR ACT

      In July, 1993, a Kansas college student named Stephanie Schmidt was brutally raped and murdered by a co-worker.(15) Her attacker recently had been paroled from a rape sentence.(16) Schmidt's death sparked the formation of an Ad Hoc Sexual Offender Task Force (Schmidt Task Force),(17) which lobbied for legislation to prevent similar crimes by repeat sexual offenders.(18)

      The Schmidt Task Force proposed the Kansas Sexually Violent Predator Act to the Kansas legislature,(19) which enacted it in 1994.(20) The Act creates a civil procedure by which persons found to be sexually violent predators may be committed against their will for an indefinite period of time.(21)

      A person found to be a sexually violent predator must have a mental abnormality or personality disorder, must be likely to engage in future sexually violent acts, and must have committed, or at least been charged with committing, a sexually violent offense.(22) "Mental abnormality" under the Act is a predisposition to commit sexually violent offenses.(23) However, the Act fails to define "personality disorder." The Act lists four categories of persons who "may meet the criteria of a sexually violent predator," and who thus would be subject to the provisions of the Act.(24) The categories are: (1) a person who has been convicted of a sexually violent offense; (2) a person who has been charged with a sexually violent offense and who has been determined to be incompetent to stand trial; (3) a person who has been found not guilty by reason of insanity of a sexually violent offense; and (4) a person who has been found not guilty of a sexually violent offense and for whom the jury answers in the affirmative to the question of whether the person has a mental disease or defect.(25)

      The Act requires the custodial agency to notify the local prosecutor sixty days prior to the expected release of a prisoner who might meet the Act's criteria.(26) The prosecutor then has forty-five days to file a petition in state court seeking the prisoner's involuntary commitment.(27) In the event such a petition is filed, the state district court must decide whether there is probable cause to believe that the person named in the petition is a sexually violent predator.(28) If the court finds probable cause, the prisoner is transferred to a secure facility to undergo a professional psychiatric examination.(29) If the examiner determines that the subject is a sexually violent predator, a trial is held for the purpose of confirming such a finding beyond a reasonable doubt.(30) A person found to be a sexually violent predator is committed indefinitely, until the mental abnormality or personality disorder has ceased to cause the person to be dangerous.(31)

      The Act includes a number of procedural safeguards: any person tried subject to the Act is guaranteed the assistance of counsel; he has the right to be examined by a qualified expert; he has the option of requesting a trial by jury.(32) Furthermore, the status of a person committed under the Act is reviewed annually by a qualified professional, and then by the court, to determine whether continued detention is warranted.(33) A review also may occur upon petition by the secretary of social and rehabilitation services(34) or by the committed person.(35)

   2. CONSTITUTIONAL PRINCIPLES REGARDING PUNISHMENT AND THE LINE BETWEEN CIVIL AND CRIMINAL PROCEDURES

      A state has the ability to administer punishment by means of civil, as well as criminal, sanctions.(36) When and how a statute is determined to be punitive in nature has been addressed by the Supreme Court, as has the related issue of the dividing line between civil and criminal procedures.

      In Kennedy v. Mendoza-Martinez,(37) the Court held that two federal statutes which stripped American citizenship from individuals evading military service were punitive in nature.(38) Having made that determination, the Court held that both laws were unconstitutional because they administered punishment without providing constitutional rights guaranteed by the Fifth(39) and Sixth(40) Amendments. Writing for the majority, Justice Goldberg set out a seven-part test to aid in evaluating whether a statute is punitive or regulatory.(41) While the Court has never deemed this test decisive, it has employed these factors to inform its analysis of whether a statute is "punitive."(42)

      Three years later, in Baxstrom v. Herold,(43) the Court made clear that civil and criminal statutes have different purposes, and that, so long as the civil statute is nonpunitive, there is no constitutional conflict in applying both to the same individual. The Court held unanimously that Johnnie Baxstrom was denied equal protection when he was civilly committed at the end of his criminal prison sentence.(44) New York law provided jury review and a judicial determination of mental illness for anyone civilly committed, except those persons, such as Baxstrom, already serving out a criminal punishment.(45) The Supreme Court disallowed Baxstrom's civil detention due to his failure to receive a judicial hearing.(46) In so holding, however, the Court implicitly allowed the state, if proper procedures are followed, to commit in a civil proceeding a mentally ill and dangerous person who already had served a criminal sentence.(47) Baxstrom thus established the power of the state to punish a mentally ill criminal and thereafter to commit him in a civil proceeding.4s

      In Allen v. Illinois,(49) the Court ruled on the constitutionality of Illinois' approach to the civil commitment of sexually violent offenders. The Court held that proceedings under the Illinois Sexually Dangerous Persons Act(50) are not "criminal," and therefore the Fifth Amendment's privilege against self-incrimination(51) does not apply.(52)

      In so holding, the Court considered the fact that the statute is included in Illinois' civil code." The majority opinion stated that while labeling a law "civil" is not dispositive, it can be ignored only if the statute is shown to be "`so punitive either in purpose or effect as to negate [the State's] intention' that the proceeding be civil...."(54) The Allen Court did not ignore the label in this case because it did not find that the goals of the Illinois Act are the punishment goals of retribution and/or deter(55) Fence.

      The Court also dismissed Allen's alternative argument that, notwithstanding the nonpunitive nature of the Illinois Act, it should be considered criminal under Fifth Amendment analysis because of its use of language and methods associated with criminal law.(56) According to the Court, simply because the Illinois Act provides criminal trial safeguards does not compel the conclusion that a trial held pursuant to the Act is a criminal proceeding.(57) Nor is the Illinois Act rendered criminal because involuntary detainment may be a result of proceedings under that Act.(58) The Court held that Illinois has a legitimate interest in "supplement[ing] its parens patriae concerns with measures to protect the welfare and safety of other citizens."(59) Keeping dangerous individuals out of the general population is a legitimate exercise of that interest.(60)

      The dissent argued that the statute was criminal in substance because of the potential loss of liberty involved;(61) the stigma associated with confinement;(62) and the criminal law nature of the proceedings.(63) The dissent recognized the state's interest in protecting the public, but argued that such a concern is not license to disregard protections provided by the Constitution.(64)

      In United States v. Salerno,(65) the Court carved out another narrow exception to the general rule that confinement is a punitive measure. The Court held that statutorily authorized pre-trial detention based on a prediction of dangerousness is not punishment and does not violate the Due Process Clause.(66) The respondents in the case were detained prior to trial, following the guidelines of the Bail Reform Act,(67) after "the Government had established by clear and convincing evidence that no condition or combination of conditions of release would ensure the safety...