How Little Control? Volition and the Civil Confinement of Sexually Violent Predators
Lee, Steve C., Harvard Journal of Law & Public Policy
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. …