Shades of the Gulag.

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

treatments.

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.

On June 23, 1997, the U.S. Supreme Court reversed the state court's ruling on appeal, upholding the act. The High Court found that the law "presented no constitutional violations"--that it does not violate the Constitution's double jeopardy prohibition or its ban on ex post facto lawmaking. In the past, the Court has only upheld involuntary civil commitment statutes that detain people who are unable to control their behavior and pose a danger to the public health and safety, provided the confinement takes place pursuant to proper procedures and evidentiary standards.

The U.S. Supreme Court also rejected the claim that the act is necessarily punitive because it fails to offer any legitimate treatment. Yet, without treatment, confinement under the act amounts to little more than disguised punishment. (According to the testimony of Terry Davis, Kansas' director of quality assurance, confinement takes place in the psychiatric wing of a prison hospital where those confined by the act and ordinary prisoners are treated alike.)

In addition, the Court said that a prisoner can be forced to testify at the commitment trial and that all past charges--whether or not proven--may be entered into evidence. In fact, it granted the states powers for which Kansas did not ask. The justices said the law could also be used against persons never convicted of a crime.

It is a well-established precedent that the state's power of civil commitment may only be invoked under extremely narrow circumstances: in cases where people have obvious, severe mental conditions--like schizophrenia or psychosis--that break their link with reality or make them an immediate danger to themselves or others. In short, the state's power to lock up people has been acceptable only because of its limited, clear scope.

Psychiatry concerns itself with a vast gray area of mental traits and conditions, ranging from nicotine addiction to sadomasochism to "borderline personality disorders," that do not affect basic rationality or reality comprehension. These, and many others, have never been considered mental illnesses or grounds for involuntary commitment.

The High Court, in fact, explicitly endorsed this distinction in 1992 by ruling that states may not involuntarily commit people who are dangerous unless they are also mentally ill. With any threshold for commitment lower than mental illness--such as "personality disorder"--practically any prisoner can be indefinitely locked into a psychiatric ward. Interestingly, the Court stated in this ruling that most people in prison have a "personality disorder" and that every prisoner, by virtue of having committed crimes, could be seen as predisposed to do so again. Any standard that broad, the Court said, has to be wrong.

Clearly, since the act does not provide any treatment until after a prisoner's release date, how can it be anything but an effort to inflict further punishment? In any event, the ex post facto clause should prohibit the act's application to those whose crimes were committed prior to its enactment.

These offenders were not determined to have a mental abnormality when they were originally sentenced, nor do these laws contain any guidelines or treatment goals. "This is not an attempt to gain treatment or anything close to that," says Howard Zonana, professor of psychiatry at Yale University and a spokesperson for the American Psychiatric Associatiion. "What this really is is an attempt to extend prison sentences."

The Kansas Supreme Court correctly found that, as of the time of Hendricks' commitment, the state had not funded treatment or entered into treatment contracts and had little, if any, qualified treatment staff. According to the commitment program's own director, Hendricks received "essentially no treatment" during the first ten months beyond his prison sentence that he has already been detained. Since the act explicitly defers diagnosis, evaluation, and commitment proceedings until a few weeks prior to release, we must ask why the state wouldn't commit and require treatment of sex offenders sooner, say right after they begin to serve their sentences?

An act that simply seeks confinement wouldn't need to begin civil commitment proceedings sooner, would it? Proceedings would begin only when an offender's prison term ends, providing treatment years after the criminal act that indicated its necessity. Experts say delaying treatment leads to loss of memory and makes it more difficult for the offender to accept responsibility; time in prison leads to attitude hardening that one expert says "engender[s] a distorted view of the precipitating offense." Obviously, if long-term treatment (rather than further punishment) were Kansas' primary aim, the state would require that treatment begin soon after conviction, not ten or more years later.

As it happens, in a previous ruling, the High Court has said that a failure to consider or to use "alternative and less harsh methods" to achieve a nonpunitive objective can help to show that the legislature's purpose "was to punish." In fact, we find "least restrictive alternativ[e]" provisions in the ordinary civil commitment laws of almost all states. But these statutes do not require the committing authority to consider the possibility of using less restrictive alternatives, such as post-release supervision, halfway houses, and the like.

The Washington State Psychiatric Association filed an amicus brief in the Hendricks case, strongly opposing the law as a misuse of psychiatry. (Washington State as a similar law.) Since the term mental abnormality has no clinical meaning or recognized diagnostic use, mental illness is not synonymous with mental disorder 

The WSPA brief states: "Many, perhaps most, of the mental disorders described in the Diagnostic and Statistical Manual (4th Ed.) would certainly not be regarded as a `mental illness' for purposes of involuntary commitment." It also cites examples--male erectile disorder, female orgasmic disorder, caffeine-induced sleep disorder, nightmare disorder, and nicotine use disorder--before continuing:

Any argument that "mental

illness" and "mental disorder"

are synonymous flies in the face

of common sense and sound

psychiatric practice. To be

identified as "mentally ill," a

person must be suffering from a

serious cognitive, perceptual, or

affective dysfunction which

significantly impairs their ability

to function in ordinary life. In the

absence of such an impairment, a

diagnosis of "mental illness"

would never be warranted....Certainly

some sex offenders

suffer from a mental disorder, and

some are undoubtedly "mentally

ill." However, the fact of being a

sex offender does not, in itself,

imply a mental disorder or mental

illness. Deviant behavior which

is criminal does not in itself

constitute a mental disorder.

In conclusion, the WSPA states:

These laws undermine our

fundamental conception of

liberty by advancing the practice

of preventive detention. Violent

sex offenders who represent a

long-term threat to public safety

should receive sentences

commensurate with their crimes.

It does not facilitate a sound and

responsible use of psychiatric

knowledge to incarcerate them

under the guise of

"commitment." Offenders who

are truly mentally ill can and

should be committed under

Kansas' preexisting involuntary

treatment act. It is precisely

because sex offenders are

typically not mentally ill that the

Kansas legislature took the

remarkable and unfortunate step

that it did.

The Group for the Advancement of Psychiatry, the President's Commission on Mental Health, and the American Bar Association have also urged that these laws be repealed.

Other states are now rushing to pass statutes modeled after the Kansas law and to expand existing ones. The number of men (as yet there are no women) committed under these laws is already in the hundreds. Zonana says that, as more states adopt these laws, about 10 percent of the people now in prison on "sex charges" could end up committed, leading to tens of thousands within a few years.

America's current obsession with crime has helped to swell our prison population to over 1.7 million--more than any democracy in the history of the world. For anyone snared in America's sex laws--which, remember, include everything from statutes criminalizing public sex, indecent exposure, sodomy, lewd and lascivious conduct, and violation of age-of-consent laws--the threat of indefinite imprisonment now looms large.

The most chilling aspect of the U.S. Supreme Court's decision is that it established the right of lawmakers to draft laws permitting the involuntary commitment of any "narrowly defined class" of citizens they decide presents a "future dangerousness" to the state and suffers from whatever "mental abnormality" they designate. How much of a leap is it to classify "persistent drug abusers" as suffering from a "mental abnormality" that predisposes them to commit "future acts of dangerousness"? How much will it take to declare that various types of political dissidents suffer from a "personality disorder" that predisposes them to commit future acts of civil disobedience?

This Court ruling overturns what has always been a tenet of American jurisprudence: that people are punished for crimes the state has proven were committed, not crimes the state contends they might commit in the future.

Barbara Dority is president of Humanists of Washington, executive director of the Washington Coalition Against Censorship, and cochair of the Northwest Feminist Anti-Censorship Task Force.