The ex post facto clause and the jurisprudence of punishment.

• Author: Logan, Wayne A.
• Position: US Supreme Court rules against ex post facto clause

"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people."(1)

1. INTRODUCTION

   By any estimate, Leroy Hendricks would rank among society's worst. His chilling thirty-year career as a child sex offender began in 1955 when, at the age of twenty, he pled guilty to indecently exposing himself to two young girls.(2) Subsequent years witnessed a stream of other convictions: in 1957, for playing strip poker with a teenage girl,(3) in 1960, for molesting two young boys at a carnival;(4) in 1963, for molesting a seven-year-old girl;(5) and in 1967, for sexually assaulting an eight-year old girl and an eleven-year-old boy.(6)

   Upon being paroled in 1972, Hendricks sexually abused his own step-children for several years,(7) and in 1984 pled guilty to taking indecent liberties with two other adolescent boys.(8) Although Hendricks was eligible to receive a sentence of 45 to 180 years because he was a habitual felon, the State of Kansas dropped one count of child abuse and permitted him to serve only two concurrent sentences of five to twenty years.(9) Under these terms, Hendricks could look forward to release in 1994, after serving ten years.(10)

   Kansas authorities, however, had other ideas for how Hendricks, then sixty years old, could spend the rest of his life. In the wake of the highly publicized July 1993 rape and murder of Agnes Schmidt by a recently paroled sex offender, an ad hoc group which included members of Ms. Schmidt's family, law enforcement personnel, and parole board members organized to prevent such a tragic reoccurrence. The efforts of the Schmidt Task Force culminated in 1994, just before Hendricks was scheduled to be released from prison, with the enactment of the Kansas Sexually Violent Predator Act (SVPA).(11) As applied, the SVPA subjected Hendricks to likely indefinite involuntary civil commitment--after the completion of his prison term.

   Sexual offenders such as Hendricks posed a special problem to Kansas legislators: although the suffering from "anti-social personality features" made them "unamenable to existing treatment modalities," the absence of "mental disease or defect" among such offenders made them ineligible for conventional involuntary civil confinement.(12) Added to these practical treatment challenges was the recognition that, although relatively few in number, "sexually violent predators" were an "extremely dangerous group" whose peculiar psychological makeup made them "likely to engage in [future] sexually violent behavior."(13)

   Frustrated with this unmet interstitial need, and wanting to keep Leroy Hendricks off the streets, the Legislature passed the SVPA to ensure the "long-term care and treatment"(14) of persons such as Hendricks. Paradoxically, however, Kansas had not taken any of the steps necessary to provide such treatment,(15) prompting the Kansas Supreme Court to characterize the Legislature's "treatment" motivation as "somewhat disingenuous,"(16) an inference buttressed by the fact that commitment (and hence "treatment") occurred only when the "predator" faced imminent release from prison.(17)

   In enacting the SVPA, Kansas fell in line with a distinctly modern trend: the enactment of laws designed to impose additional, retrospective sanctions on persons already punished under a state's criminal laws. Although in the recent past Americans seemed content to impose harsh prison sentences, and leave it at that, today this is no longer enough. Ours has become a "jurisprudence of prevention,"(18) and the foremost target of our obsessive concern is the loathsome, seemingly irredeemable sex offender.(19) Compelling evidence of this trend lies in both the tsunami of copy-cat "Megan's Laws" sweeping the nation,(20) and the numerous recently enacted "Sexual Predator" laws,(21) of which the Kansas SVPA is but one example.(22) Along with substantially increased sentences for new sex offenders, the interventions form a comprehensive strategy of social control with great appeal to a frustrated public clamoring for protection from sex offenders.(23)

   That this should occur now is not surprising for the ingredients are at the ready: an obvious empathy for the targets of sexual abuse, especially children;(24) a radicalized, politically empowered "victims' rights" movement;(25) Americans' unmitigated desire to impose yet harsher prison sentences on criminals, and concomitant disavowal of the "rehabilitative ideal";(26) and widespread distrust over the justice system's capacity to protect citizens from violent crime.(27) Nor can the role of the media--in whose glare the "mad" and the "bad" have become synonymous--be underestimated. While twenty years ago the sexual abuse and killings of Polly Klaas and Megan Kanka would have ignited local concern, today they serve as galvanizing national rallying causes for changes in the ways sex offenders are treated.(28) The tragedies become emotionally compelling "narratives" or "paradigms," the horrible details of which serve as catalysts to promote swift changes in the justice system.(29)

   These historic forces have coalesced to create a combustible mix of compelling issues that legislators, already acutely sensitive to emerging public opinions and concerns, have found difficult to resist.(30) Perhaps emboldened by the notable popularity of innovative "Scarlet Letter" sanctions of the 1980s,(31) and the success of "hybrid" administrative sanctions such as "civil" fines and forfeitures,(32) American legislatures with lightning speed have moved to impose novel new post-confinement methods of social control that strain our historic understandings of "punishment."(33)

   What is surprising, however, is that this sea-change is taking place in an apparent constitutional vacuum. Since its origin in 1787, the Ex Post Facto Clause, prominently set forth in Article I of the United States Constitution, has unequivocally, prohibited state and federal governments from enacting "ex post facto laws"--penal laws that are retroactive in their effect.(34) In this constitutional capacity, the Clause has guarded against the "hydraulic pressures"(35) that periodically beset our majoritarian political processes and compel lawmakers to impose retroactive punishments on maligned individuals and groups "of the moment."(36)

   Over the centuries, the Clause has been invoked by a veritable "'who's who" of scorned Americans--from supporters of the Confederacy in the late 1860s, to immigrants in the late 1800s, to Communist sympathizers in the 1950s. To this list, we can now add sex offenders. That sex offenders are deserving of disdain is not the issue, for they surely are. The issue, rather, is whether they deserve the protection of the Constitution, which they surely do.

   In its Fall 1996 term, the Supreme Court addressed Leroy Hendricks's claim that his involuntary "civil" commitment under the Kansas SVPA was in reality retroactive punishment, imposed in violation of the Ex Post Facto Clause. By a 5-4 margin, with Justice Clarence Thomas writing for the majority, the Court rejected Hendricks' claim, concluding that the SVPA was remedial and non-punitive in nature, and hence consistent with the Ex Post Facto Clause's proscription against retroactive punishment.(37)

   The Court's decision that the SVPA did not impose "punishment" is yet another entry in its ongoing examination of the "punishment question," a matter of threshold constitutional significance, potentially triggering a broad array of constitutional protections, including those of the Fifth, Sixth, and Eighth Amendments, as well as the Bill of Attainder and Ex Post Facto Clauses. Despite this importance, the Court's numerous decisions in the area have amounted to an incoherent muddle. Indeed, one would be hard-pressed to identify an area of constitutional law that betrays a greater conceptual incoherence.(38) Until recently, this abiding tolerance by the Court for its intellectual disarray has been regrettable, but of relatively little constitutional consequence.

   With Hendricks, however, the Court made a major misstep with enormous potential consequences that extend far beyond any narrow definitional quest. In a sharp departure from its settled jurisprudence, dictating that the punishment question be assessed in terms of "the evils" the constitutional provision was "designed to eliminate,"(39) the Court addressed Hendricks's ex post facto claim in blatant disregard for the basic purposes of the Ex Post Facto Clause.

   In our increasingly punitive, public opinion-sensitive age, Hendricks can only be taken as an ominous development. Feeling the public's urgent desire for aggressive, innovative methods of social control, American legislatures today are pressing the envelope of the criminal-civil distinction like never before--enacting post-confinement sanctions that betray a shrewd awareness of the importance of the "criminal" label. This tendency, of course, is not unique, for the Ex Post Facto Clause arose out of this very concern for legislative vindictiveness. What is unique, and most troubling, is the disappearance of the Clause from modern constitutional discourse, and the Court's abdication of its constitutional duty to give meaning to it. Hendricks stands as proof of that abdication.

   This Article seeks to develop a meaningful analytic framework to answer the punishment question from the standpoint of the Ex Post Facto Clause. After examining the majority and dissenting opinions in Hendricks in Part II, Part III discusses the historic origins and purposes of the Ex Post Facto Clause. Part IV of the Article canvasses the Court's extended, unsuccessful endeavor to articulate and apply a reliable jurisprudence on the "punishment question," and Part V attempts to formulate a reliable, constitutionally based approach to resolving the punishment question in a manner consistent with the Ex Post Facto Clause. With the punishment...