THE UPCOMING SUPREME COURT "SEXUAL PREDATOR" CASE:
Why Mental Illness Should Not Govern Civil Commitment

By SHERRY F. COLB

Wednesday, Oct. 24, 2001

Next week, on October 30, the United States Supreme Court will hear arguments in Kansas v. Crane. The case requires the Court to examine for the second time the Kansas Sexually Violent Predator Act. This statute permits the State of Kansas to confine "sexually violent predators," people who have a mental disorder that makes them likely to commit sexual crimes of various sorts.

The First Sexual Predator Case: Kansas v. Hendricks

The first time the Court considered the statute at issue, in the 1997 case of Kansas v. Hendricks, a different plaintiff, Leroy Hendricks, challenged the constitutionality of his confinement as a "sexually violent predator" after having completed a plea-bargained prison sentence of ten years for child-molestation. Hendricks argued that incarcerating him for a second time on the basis of the same conduct that gave rise to his conviction and sentence violated various constitutional provisions, including the prohibition on Double Jeopardy.

The Court rejected Hendricks' arguments and held that because Hendricks suffered from a disorder that rendered him unable to stop molesting children, Kansas had a non-punitive interest in confining him for the purpose of treating his condition and protecting public safety. It was therefore not a criminal "punishment" to confine him as a sexually violent predator. Like other mentally ill and dangerous individuals subject to civil confinement, Hendricks posed a threat to the people around him, a threat that resulted from his mental disorder, and the State could accordingly act to protect people, without triggering the requirements of the criminal process.

Kansas v. Crane

The case now before the Court involves a different plaintiff, Michael T. Crane. Crane apparently has a propensity for rape and sexual exhibitionism but does not experience irresistible compulsions or an absolute volitional impairment. Crane does suffer from "anti-social personality disorder," an official diagnosis in the "Bible" of mental illness, the DSM IV-TR (the Diagnostic and Statistical Manual of Mental Disorders, 2000 Revised Edition). However, psychiatrists who have examined him conclude that he is capable of refraining from committing crimes, unlike the pedophile who simply cannot stop himself.

The "Mad" versus the "Bad"

Because Crane can control his behavior, he argues that he should not be subject to civil confinement. He ought to be treated, in other words, as "bad" (through the criminal justice system) and not as "mad" (through involuntary civil commitment). Presumably, Crane urges that he is "bad" rather than "mad" because he received a relatively lenient sentence for his crimes (including aggravated sexual battery) and, absent civil commitment, would now be a free ex-convict rather than a civilly committed sick person. His preference is understandable.

Crane's challenge to the Kansas statute, however, rests on a flawed assumption about the law. The assumption is that we must divide the universe of dangerous, threatening people into two worlds. World one includes those who suffer from serious mental illness and therefore fit appropriately into a system of preventive detention or "civil" commitment. World two includes everyone else, and the people who inhabit this world enjoy freedom from confinement unless and until they violate a criminal law.

Crane's challenge suggests that those in world two (like him) should have access to the full panoply of constitutional protections that apply to a defendant within the criminal justice system. If one is mentally healthy enough to be able to control his own conduct, the argument goes, then he has a dignitary interest in avoiding a system of civil commitment in which he lacks most criminal procedural safeguards. As someone who possesses free will, he must also possess individual rights.

Mental Illness: The Worst of Both Worlds

Though the dichotomy between the two worlds might sound workable, it has never accurately described the law governing civil and criminal incarceration.

In truth, the two worlds are not mutually exclusive. The line between them has operated instead as a one-way ratchet. If a person is so mentally ill that he may be found "not guilty by reason of insanity" for a criminal offense, then the law presumes that he is mentally ill and dangerous enough for civil confinement. In other words, anyone who does not fall within world two — those subject to the criminal justice system — necessarily falls within world one — those subject to civil commitment.

Importantly, however, the converse does not hold true. Someone may be subject to the criminal justice system — may indeed have a history of criminal incarceration — and nonetheless remain subject to civil confinement as well. Following John Hinckley's attempt on President Reagan's life, for example, legal reforms have considerably narrowed the scope of the federal insanity defense. The defense now encompasses only those mental disorders that impair cognition (so that a person cannot distinguish right from wrong) but not those disorders that impair volition (so that a person cannot control his conduct). Kansas has a similarly narrow insanity defense.

A person who has a mental disorder that impairs his volition is thus subject to both criminal and civil detention. A compulsively violent mentally ill person must answer to the criminal law, because he is not legally insane. Yet he can also be civilly confined before he actually does anything criminal, on the theory that his sickness makes him a danger to those around him. Another way of looking at his predicament is that the volitionally impaired mentally ill person gets the worst of both worlds. That was the predicament of Leroy Hendricks, the pedophile who brought the first, unsuccessful challenge against the Kansas statute.

Too "Bad" to be a Second-Class Citizen

Crane claims that he resides exclusively in world two, the world in which people are subject to the criminal justice system. Thus, he urges, he may not be preemptively confined. It would deny his dignity and autonomy, he argues, to place him behind bars as a means of preventing possible future harm.

He may be dangerous, he argues, but that danger comes from the possibility that he will make an autonomous decision to commit future criminal offenses. If he makes this decision in the future, however, he can then be criminally prosecuted and incarcerated then, he asserts, and not before. Unlike Hendricks, he has a choice, one that we must therefore wait for him to make.

Crane's argument has a certain perversity to it, though its perversity emerges quite naturally from a system that divides the world into the mentally ill and everyone else.

An individual who suffers from a mental disorder that is so severe that he cannot stop himself from harming other people receives no exemption from criminal prosecution and punishment. He is, however, "exempt" from the procedural protections against preventive confinement. He is not entitled to commit a crime before he is locked up for it, but he is also subject to retribution once he does commit that crime.

Crane, however, is not volitionally impaired by his mental illness, though he does suffer from a personality disorder characterized by a propensity to commit anti-social acts. He therefore claims entitlement to the procedural protections denied people like Leroy Hendricks.

The very fact, then, that Crane chooses to do bad things — the fact that his dangerousness is a product of his will rather than something beyond his control — supposedly entitles him to the freedom that he will use to carry out these acts. In other words, even if we could know with certainty that if Crane were released, he would rape someone, we would have to wait for him to rape before we confined him — precisely because the act, when it occurred, would be voluntary and chosen. The woman he would victimize could, for that reason, not be protected from his attack.

Crane will object, of course, that we cannot know he will rape anyone. Because he can stop himself, he claims, he therefore might stop himself.

Though clever, this reply is non-responsive. It does not address our concern about protecting possible victims and, indeed, implies that we can never do so, but always must wait for the victimization to occur first.

After all, we can never know in advance that a person will carry out a criminal act, no matter how volitionally impaired he is. Our predictions are always imperfect, sometimes startlingly so.

So Crane's argument — that because he is not certain to rape, he therefore cannot be preventively confined — is an argument against any civil confinement, not one against confining Michael Crane.

Dangerousness Without Diagnosis

Some people are more predictably dangerous than others, of course, but they do not distinguish themselves by having less volition. In fact, they distinguish themselves in exactly the way that the typical recidivist criminal — including the sex criminal — does, by apparently choosing a life of crime, notwithstanding the penalties attached.

When it comes time for these dangerous offenders to be released, civil confinement thus becomes an appealing option. Yet Crane, like every other inhabitant of world two (those subject to criminal penalties), wishes to be exempt from world one (those subject to civil confinement).

Liberty versus Equality

To do these issues justice, the Supreme Court must be prepared to carry out a searching re-evaluation of civil confinement. If it is prepared to do so, then it will have to take seriously the notion that the severely mentally ill who are accountable for their misdeeds are entitled to live free of invidious discrimination.

If the Court considers it unfair to confine the mentally well preventively, to avoid future (rather than punish past) wrongdoing, then it ought to extend the same consideration to the mentally ill, a move that would call into question the legitimacy of any and all civil commitment.

If, on the other hand, the Court believes that even people who are responsible for their crimes should sometimes be subject to civil confinement, a position that it has consistently taken over the years, then what ought to follow is that everyone (including battering husbands and persons deemed likely to commit acts of terrorism, to name but two examples) must be subject to both forms of incarceration, regardless of whether or not they suffer from a mental illness.

Might the Court adopt this position? Consider the fact that Attorney General Ashcroft has detained over 800 people in connection with the September 11 attacks. At least some of these ongoing detentions are undoubtedly based on future dangerousness, not past crimes, and few of those detained are likely to be suffering from serious mental illness.

Michael Crane asks the Court to keep the category of second-class citizens small and thereby protect the liberty of most. If the interest justifying preventive detention is public safety, however, that interest — along with the interest in equality — is best served by a program that measures threats by their magnitude rather than by the mental health of their source.


Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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