Shades of the Gulag

Article excerpt

0n June 23, 1997, the U.S. Supreme Court ruled in Kansas v. Hendricks that the state may brand sex offenders as "violent sexual predators" and commit them indefinitely after they have served their full prison sentences, based on speculation about what they might do in the future.

In a majority opinion written by Justice Clarence Thomas, the Court also declared that indefinite civil confinement is not punishment, that the new definitions stated above do not violate due process rights, and that a yearly review of a person's confinement need not be conducted by an impartial court but can be facilitated by a special committee set up by the state and accountable to no one.

The case began with Kansas' 1994 Sexually Violent Predator Act, in which the state legislature established procedures for the "civil commitment" of persons who, due to a "mental abnormality" or a "personality disorder," are likely to engage in future "predatory acts of sexual violence." Although Kansas already had a long-standing statute regulating involuntary commitment of the "mentally ill," the legislature decided it was too narrowly drawn. In the act's preamble, the legislature states:

A small but extremely dangerous

group of sexually violent

predators exist[s] who do not

have a mental disease or defect

that renders them appropriate for

involuntary treatment pursuant

to the [general involuntary civil

commitment statute].... In

contrast to persons appropriate

for civil commitment, sexually

violent predators generally have

anti-social personality features

which are unamenable to existing

mental illness treatment

modalities, and those features

render them likely

to engage in sexually violent

behavior. The legislature

further finds that sexually

violent predators' likelihood of

engaging in repeat acts of

predatory sexual violence is

high. The legislature further finds

the prognosis or rehabilitating

sexually violent predators in a

prison setting is poor, the

treatment needs of this

population are very long term

and treatment modalities are

very different than traditional


To address this perceived problem, the legislature established a "civil commitment procedure for the long term care and treatment of the sexually violent predator" and defines a sexually violent predator as

any person who has been

convicted of or charged with a

sexually violent offense and who

suffers from a mental abnormality

or personality disorder which

makes the person likely to

engage in predatory acts of

sexual violence.

[emphasis added]

The act requires the custodial agency to notify the local prosecutor sixty days before the anticipated release of a person who might meet the act's criteria. Within forty-five days, the prosecutor must decide whether to petition the state for the person's involuntary commitment. After a professional evaluation, a trial is held to determine beyond a reasonable doubt whether the individual can be classified under the new standards as a sexually violent predator.

Kansas filed a petition to commit Leroy Hendricks, who had a history of sexually molesting children and was scheduled for release from prison. The court reserved ruling on Hendricks' challenge to the act's constitutionality but granted his request for a jury trial, in which it was determined that he was a sexually violent predator. Finding that pedophilia qualifies as a "mental abnormality" under the act, the court ordered him committed.

On appeal, the Kansas Supreme Court invalidated the act on the grounds that the precommitment condition of a "mental abnormality" did not satisfy the "substantive" due process requirement that involuntary civil commitment must be predicated on a "mental illness" finding. …