How little control? Volition and the civil confinement of sexually violent predators.

• Author: Lee, Steve C.
• Position: Case Note

Traditionally, civil confinement has been employed for the treatment and incarceration of non-responsible, non-culpable actors such as the severely mentally ill or the legally and criminally insane. (1) Due to concern about the danger repeat sexual offenders pose to public safety, many states, including Kansas, have passed statutes that permit civil confinement of sexually violent predators after completion of a criminal sentence. (2) In 1997, the Supreme Court upheld the Kansas civil confinement statute in Kansas v. Hendricks. (3) The Court decided that a state could civilly confine a previously incarcerated sexually violent predator, due to the likelihood that the offender could engage in future criminal acts. Hendricks, however, left open the issue of whether civil confinement under that statute requires a finding that the defendant cannot control his dangerous behavior. Last term, in Kansas v. Crane, (4) the Supreme Court held that Hendricks did not establish a requirement of a determination of total or complete lack of control, but that the Constitution would not permit commitment of a dangerous sexual offender without any lack-of-control determination. (5) By trying to draw a fine line between the actual Kansas statute, (6) which does not mandate a volitional control requirement, and the prior determination of the Kansas Supreme Court, which read Hendricks as requiring a total volitional impairment for civil confinement, (7) the Court failed to provide a workable standard for the civil confinement of violent sexual predators. The holding of the Court is impermissibly vague and ultimately infringes upon both the precedent set by Hendricks and the right of a state legislature to establish its own standards on such matters.

On January 6th, 1993, Michael Crane engaged in two incidents that led to his arrest and imprisonment. First, he exposed himself to a tanning salon attendant. (8) Thirty minutes later, at a video store, Crane, waiting until he was the only customer in the store, grabbed the clerk from behind with his genitals exposed, ordered her to perform a sexual act, and threatened to rape her, before running out. (9) Crane was eventually convicted of lewd and lascivious behavior and pled guilty to aggravated sexual battery for these two incidents. (10)

The State filed a petition in the state district court seeking to have Crane evaluated and adjudicated as a sexually violent predator under the Kansas Sexually Violent Predator Act (SVPA). (11) Under the SVPA, the state can impose an involuntary civil confinement process for the long term care and treatment of sexually violent predators. (12) After psychological examination, the state district court committed Crane to custody under this Act. (13) The court determined that Crane fulfilled the requirements of the SVPA, because he had a "mental abnormality or personality disorder" and was "likely to engage in repeat acts of sexual violence if not treated" for his disorder. (14)

The Kansas Supreme Court reversed and remanded the judgment of the district court. (15) Judge Allegrucci, writing for the court, asserted that confinement under the SVPA is unconstitutional absent a finding that the defendant cannot control his dangerous behavior. (16) The court interpreted the Hendricks decision as requiring a civil confinement statute to limit involuntary confinement to those "who suffer from a volitional impairment rendering them dangerous beyond their control." (17) Because Crane was diagnosed with a "personality disorder," which by definition does not include a volitional impairment, his civil confinement was deemed to be unconstitutional. (18)

The Supreme Court granted certiorari and vacated and remanded the ruling of the Kansas Supreme Court. The Court held that Hendricks sets forth no requirement of total or complete lack of control, but that the Constitution does not permit confinement of the type of dangerous sexual offender considered in Hendricks without any lack-of-control determination. (19) Writing for the Court, Justice Breyer first asserted that Hendricks does not require a complete lack of volition. (20) The Kansas Act, as referred to in Hendricks, requires a "mental abnormality" or "personality disorder" that makes it "difficult, if not impossible, for the [dangerous] person to control his dangerous behavior." (21) Justice Breyer emphasized that the word "difficult" indicates that the lack of control referred to by the Court in Hendricks is not absolute. (22) He recognized that "most severely ill people--even those commonly termed 'psychopaths'--retain some ability to control their behavior." (23) Insistence upon absolute lack of control would risk barring the civil confinement of high dangerous individuals who suffer from severe mental abnormalities. (24)

Second, Justice Breyer stated that the Constitution does not permit confinement of the type of dangerous sexual offender considered in Hendricks without any lack-of-control determination. (25) He asserted that Hendricks emphasizes the constitutional importance of "distinguishing a dangerous sexual offender subject to civil confinement 'from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings.'" (26) According to Justice Breyer, this distinction is critical to prevent civil confinement from becoming a mechanism for general criminal deterrence or retribution. (27) Although recognizing the difficulties in precisely demonstrating "inability to control behavior," Justice Breyer argued that there must be proof of serious difficulty in controlling behavior to create such a distinction. (28)

Finally, Justice Breyer emphasized that the Court in Hendricks did not draw a clear distinction between "emotional" and "volitional" sexually-related mental abnormalities. (29) The Court in Hendricks had no occasion to decide whether confinement based on purely "emotional" abnormality would be constitutional, and likewise, the Crane court was unable to consider this issue. (30)

Writing in dissent, Justice Scalia argued that the majority misinterpreted the precedent set by Hendricks and the very language of the SVPA. (31) He asserted that Hendricks unequivocally states that "the SVPA's required finding of a causal connection between the likelihood of repeat acts of sexual violence and the existence of a 'mental abnormality' or a 'personality disorder' necessarily establishes 'difficulty if not impossibility' in controlling behavior." (32) Therefore, according to Justice Scalia, no requirement of a separate finding of inability to control behavior is necessary, as the majority indicated. (33)

Justice Scalia also argued that the Hendricks opinion explicitly recognizes that the SVPA reaches individuals with not only volitional impairments but also those with other mental illnesses such as personality disorders and emotional and volitional impairments. (34) He refuted the...