THE SUPREME COURT'S DECISION IN KANSAS V. CRANE:
Which "Dangerous" People Can Be Incarcerated?

Last week, the United States Supreme Court held, in the case of Kansas v. Crane, that the Constitution does not permit the State to incarcerate a "mentally abnormal" and "dangerous" sexual predator unless it first shows that he has some difficulty controlling his impulses. Justice Breyer authored the majority opinion; Justices Scalia and Thomas dissented.

The Court sought to maintain a distinction between the majority of dangerous people, who may be incarcerated only as punishment for a crime, and a small minority of dangerous people, who may be confined without a criminal conviction, in order to prevent future harm. The Court failed, however, to articulate criteria that meaningfully distinguish between the two categories. The dissent did no better.

Although no Justice would acknowledge it, this failure leads to a potentially alarming consequence. Under Kansas v. Crane and other Court precedents, a "dangerous" person may be civilly confined without any showing that truly distinguishes him from a garden-variety criminal, entitled to the array of substantive and procedural protections associated with the criminal process.

Most ordinary criminals are likely to have some difficulty controlling their impulses; that may be one reason they committed their crimes despite the prospect of being caught and punished. Many other people similarly have trouble controlling themselves, though they have never committed, and will never commit, a crime - including virtually anyone who suffers from alcoholism or other addictions, and many who suffer from mental illnesses.

The distinction between the two categories - the "dangerous" who must be tried for a crime prior to any incarceration, and the "dangerous" who need not be - seems to hinge entirely on labeling rather than on principle. That puts all of our rights in jeopardy - for if criminal procedure protections can be stripped away merely by calling an individual "mentally abnormal" and impaired in his ability to control impulses, the protections become matters of sovereign grace rather than clear entitlement.

Preventive Confinement and Self-Control

Under our Constitution, the primary method by which we control dangerous people is the criminal justice system - a system by which we incarcerate a person as punishment for what she has done in the past. We do not rely primarily on preventive confinement - the incarceration of a person in anticipation of what he will do in the future.

Thus, ordinarily, a person has the right to freedom from confinement unless and until he is convicted of a crime. And while there is a class of people who may be locked up to prevent future harm, the law - in theory - strives to erect strict boundaries around that class, so that preventive confinement remains an exceptional measure.

In some circumstances, a person who cannot control his criminal impulses does seem the perfect candidate for preventive confinement. If John Doe feels the urge to molest every child he sees, and he cannot resist that urge, it would be foolish to wait until the next molestation before placing Doe behind bars.

Because Doe cannot exercise free will to avoid the act, leaving Doe at large to face temptations honors a nonexistent autonomy. People who have the capacity to control their impulses, by contrast, seem entitled to the opportunity to succeed or fail in doing so.

Accordingly, the Court has already approved the civil confinement of a person who concedes that he suffers from a serious volitional impairment -as I noted in a column written before Crane was decided.

But what about a person who does not concede this point, and insists that he retains self-control? Can such a person still be civilly confined and if so, upon what evidentiary showing? These were the questions that faced the Court in Crane.

The Court's Decision: Preventive Confinement Despite Some Self-Control

Michael T. Crane was convicted of exposing himself to two women, one of whom he physically assaulted and threatened to rape.

Crane has also been diagnosed as suffering from exhibitionism and anti-social personality disorder. He does not concede, however, and no court or jury has officially determined, that he is volitionally impaired.

Kansas claimed before the U.S. Supreme Court that there was no constitutional requirement of any such concession or finding as a prerequisite of Crane's confinement. Crane, on the other hand, contended that there must be a determination of complete inability to control oneself for civil commitment to be constitutionally permissible.

The Supreme Court took an intermediate position. Justice Breyer explained, on behalf of a 7-2 majority, that for civil commitment of someone like Crane to be lawful, there must be a finding of more than just mental abnormality and dangerousness. In addition, "there must be proof of serious difficulty in controlling behavior" - difficulty that is "sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case." Thus, proof of some volitional impairment - though not complete volitional impairment, as Crane urged - is required.

The Court made explicit that the lack of control need not be absolute, but it left undefined the degree of volitional impairment that would suffice. The majority explained that "the Constitution's safeguards of human liberty in the area of mental illness and the law are not always best enforced through precise bright-line rules."

The Dissenters' View: Preventive Confinement Despite Total Self-Control

In dissent, Justice Scalia complained that the "new" test gives courts no guidance at all as to how juries should be instructed in properly applying a preventive confinement regime. He asked rhetorically whether the jury might, for instance, be told: "Ladies and gentlemen . . . , you may commit Mr. Crane under the [Kansas statute] only if you find, beyond a reasonable doubt, that he is unable to control his penchant for sexual violence 3 times out of 10."

Justice Scalia apparently agreed with the majority, however, that not just any dangerous person may be confined to prevent future harm. He too would place limits on the State's ability to detain people preventively. However, for Justice Scalia and Justice Thomas, his fellow dissenter, the required finding of mental illness, abnormality or disorder should be enough - without regard to whether the illness or abnormality is volitional, cognitive, or emotional.

"It is obvious that a person may be able to exercise volition and yet be unfit to turn loose upon society," Justice Scalia observed. "The man who has a will of steel, but who delusionally believes that every woman he meets is inviting crude sexual advances, is surely a dangerous sexual predator."

This is certainly a reasonable conclusion, and the fact that the insanity defense generally requires a cognitive rather than a volitional impairment lends further support to it. (Proving that one lacked self-control will not generally establish the insanity defense; proving that one was unable to understand the nature of one's actions, due to severe mental illness, will).

Majority and Dissent United in Expanding Commitment Power

In reality, the majority and dissent shared more in common than they acknowledged. Both relied heavily on the mental illness/disorder category to separate "us" (those subject only to the criminal law) from "them" (those subject to both criminal and civil confinement).

In my earlier column, I argued that permitting the mentally disordered to bear burdens that no other person among us, no matter how dangerous, must bear, amounts to invidious discrimination against the mentally ill.

Strikingly, however, neither the majority nor the dissent in Crane limited civil confinement to the mentally ill. The Kansas statute at issue permits the civil commitment of those who have either a "mental abnormality" or a "personality disorder" - categories that can extend beyond the official diagnoses adopted by the psychiatric profession.

Thus, even after the majority in Crane added the further requirement that a person suffer from some volitional impairment, the Kansas statute will still permit preventive confinement of people who are not necessarily mentally ill.

Most ordinary recidivist criminals - particularly those with sexual desires that deviate from the norm - can be described both as "abnormal" and as having trouble controlling their impulses. It seems logical to assume, after all, that a person who has been caught and punished for committing a crime more than once, and yet goes back and offends again, is both deviant and seriously out of control. (Asked if a three-time child molester is "normal" or can easily control his impulses, most would believe the answer is no.)

No jury could be seriously faulted for so concluding. And under the Kansas statute, mental health experts need not agree with the jury's conclusion or with the criteria it chooses to apply. Accordingly, what is to stop juries applying the Kansas statute, or another state's similar statute, from finding that any violent criminal about to be released from prison is mentally abnormal, dangerous, and volitionally challenged?

The answer is: Nothing. This risk shows the breadth of current civil commitment power.

Confining "Dangerous" People Outside the Criminal Justice System

In practice, now that the Supreme Court has said "volition" is the magic word, juries will be asked to find, and will honestly find, some lack of control. (Justice Scalia need not have worried too much about the majority opinion on that score.)

Nine Justices at least profess to believe that the ordinary dangerous criminal should be subject exclusively to the criminal justice system. They claim to believe as well that despite the Crane decision, civil confinement remains a limited instrument for dealing with the unusual case. But all nine are wrong - for they have opened a Pandora's box that allows civil commitment of a wide range of ex-criminals, mentally ill persons, and even those who are simply considered "abnormal." Kansas and other states that have, or enact, similar laws are now free to show just how wrong the Justices are.

Who will next be confined without having done anything to justify that confinement? The answer to this question depends on who scares us most - and that group may no longer form an exclusive club whose members all boast some form of mental illness.