"Mental Illness": A Sexually Violent Predator Is Punished Twice for One Crime

By Rollman, Eli M. | Journal of Criminal Law and Criminology, Spring 1998 | Go to article overview

"Mental Illness": A Sexually Violent Predator Is Punished Twice for One Crime


Rollman, Eli M., Journal of Criminal Law and Criminology


I. 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)

II. BACKGROUND

A. 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. …

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