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Hendricks and the future of sex offender commitment laws.

In its 1997 Hendricks decision, the United States Supreme Court upheld the constitutionality of the Kansas Sexually Violent Predator commitment law. In important ways, the decision gives states the green light to use civil commitment as a tool to address sexual violence. More broadly, the decision answers a number of questions about the constitutional limits on the use of civil commitment. Despite the answers, questions remain, particularly about the practical application of these constitutional limits. During the two years since Hendricks was decided, several important lower court decisions have begun to shed light on these questions. However, the most significant limits on the use of civil commitment will come from legislative and administrative policy decisions.

I. Sex Offender commitments

Sex offender commitments deploy civil-commitment-style confinement to address sexual violence. Beginning in the late 1930's, states began to enact civil commitment laws aimed at mentally disordered sex offenders. Eventually, such laws were enacted in over half the states.

These laws were conceived of as providing alternatives to imprisonment for sex offenders whose mental conditions rendered them "too sick to deserve punishment." By the mid-1970's, however, a number of influential studies declared these laws to be a failed experiment. The laws were based on the mistaken assumption that sex offenders displayed some medically valid diagnosis. Treatment for detainees was either not provided or had not been shown to be effective. Most states repealed or abandoned these first generation laws.

Since 1989, states have shown a renewed interest in using civil commitment to address sexual violence. The second generation laws differ from the first in a critical respect: instead of providing an alternative to prison, the new laws are specifically intended to extend the incapacitation of convicted sex offenders who are deemed too dangerous to release when their prison terms expire. About 12 states have adopted such laws and an equal number are considering them.

Sex offender commitment laws follow a uniform pattern, though there is some state-by-state variation. All of the laws are denominated "civil," rather than criminal. Civil laws are not subject to the strict constitutional constraints of the criminal law. This is an important feature of the laws, since the laws are designed to extend the incarceration of convicted sex offenders who have completed their penal sentences. Normal rules of criminal procedure prohibit lengthening a sentence beyond its expiration date and imprisoning an individual based on a prediction of future criminal activity. Typically, the commitment laws require proof of four elements: (1) A past course of sexually harmful conduct. All contemporary commitment schemes aim at individuals who have been convicted of, and have served prison time for, past crimes of sexual violence. (2) A current mental disorder or "abnormality." The Kansas law, for example, requires proof of a "mental abnormality or personality disorder," and defines "mental abnormality" as a "congenital or acquired condition affecting the emotional or volitional capacity." Minnesota law requires proof of a "sexual, personality, or other mental disorder or dysfunction." (3) A finding of risk of future sexually harmful conduct. The Kansas law requires a finding that the person is "predisposed" to "commit sexually violent offenses... in a degree constituting such person a menace to the health and safety of others." The Minnesota law requires a finding that the individual "is likely to engage in acts of harmful sexual conduct." (4) Finally, the laws require some form of connection between the mental abnormality and the danger. The Kansas law requires a showing that the mental abnormality "predisposes" the individual to commit sexually violent crimes. The Minnesota law states that the past history and the current mental disorder must "result in" the likelihood of future harmful behavior. California law holds that the diagnosed mental disorder "makes" it likely that future sexually violent criminal behavior will occur.

A key feature of contemporary sex offender commitment laws is their reliance on systematized risk assessment. For example, in Minnesota, the Department of Corrections is required to make risk determinations for all sex offenders about to be released from prison. Those assessed as "high risk" must be further assessed for appropriateness for sex offender commitments. A similar screening requirement is used in California. Both states use "structured screening instruments" as part of the screening process.

Currently, Minnesota's commitment program detains about 150 individuals in highly secure treatment facilities. By comparison, the sex offender population in Minnesota prisons is about 1100. About 350 sex offenders are released from prison each year. Of these, about 10% are referred for possible commitment, and half of those (15 to 18 annually) are civilly committed.

In theory, sex offender commitments end as soon as the detainee is no longer dangerous. In practice, committed sex offenders are almost never discharged. For example, in the two states with the longest contemporary commitment programs (both operating since about 1990), Minnesota and Washington, no individuals have been discharged from commitment, and only a handful are in transitional placements. Thus, sex offender commitment populations will continue to grow for the foreseeable future.

Sex offender commitments are expensive. The per diem for a committed sex offender in Minnesota is $344. For comparison purposes, the total 1998 Minnesota budget for sex offender treatment staff and support in prisons was $1.233 million. If the total prison treatment budget is spread across all sex offender inmates (1090), the per capita available for prison treatment amounts to about 1% of the amount currently spent for the civil commitment of one person.

II. The Hendricks case

In its 1997 Hendricks decision, the U.S. Supreme Court considered, and rejected, several constitutional challenges to the Kansas' Sexually Violent Predator Act. The Court's decision makes clear that there is nothing inherently unconstitutional about civilly committing mentally disordered sex offenders. However, the decision suggests that the constitution imposes some limits on the scope of such commitments and the conditions of confinement.

Hendricks addressed two main constitutional challenges. The first set of arguments asserted that the Kansas scheme had a punitive intent, and therefore violated constitutional prohibitions on ex post facto laws and double jeopardy. The Court rejected this argument, holding that incapacitation is a legitimate goal of civil commitment, and that the treatment program furnished by the state, though skimpy, was nonetheless adequate to dispel any inference of punitive intent. The Court warned, however, that a different result might ensue if the conditions of confinement "suggest a punitive purpose."

The second group of arguments urged that sex offender commitments violate "substantive due process," in that they extend civil commitment beyond its constitutionally allowed area. (According to the Court's decision in Zinermon v. Burch, 494 U.S. 113, 125 (1990), substantive due process "bars certain arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them.") The Court stated that civil commitment is constitutionally limited to individuals who have a "mental disorder," and focused its inquiry on the constitutional meaning of this element. Without articulating any underlying theory, the Court seemed to make three points about mental disorder as a constitutional predicate for civil commitment. First, the mental disorder element must restrict civil commitment to a narrow band of dangerous individuals. Second, it must adequately distinguish persons subject to civil commitment from those subject only to the criminal justice system. Third, it was a particular form of mental dysfunction--the inability to control behavior--that legitimized the commitment of Leroy Hendricks.

From the Hendricks decision, we can draw several important lessons about civil commitment law. First, prior to Hendricks, some commentators argued that the state could preventively confine any dangerous individual, in much the same way that it could quarantine contagion and protect the public from nuclear waste. The Supreme Court clearly rejected this principle in Hendricks, stating, "A finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment." Rather, the Court said, civil confinement "ordinarily" requires an "additional factor, such as a 'mental illness' or 'mental abnormality'."

Second, prior to Hendricks, it was unclear whether states' use of civil commitment was limited to cases under the "patens patriae" power--the power of the state to intervene to protect individuals who lack the capacity to help themselves. Most sex offender commitments would not fit within this rationale, since the majority of sex offenders are mentally competent, and commitments are primarily aimed at protecting the public (rather than the detainee). The Court's opinion does not mention the parens patriae power. This suggests that the states" police power (the power to protect the health and safety of the public) can be constitutionally sufficient to support mental-health commitments. But the Court suggested that police power civil commitments must be narrow, and that states must somehow distinguish individuals who are subject to commitment from those for whom the criminal law is the appropriate intervention.

Third, Hendricks teaches that the role of the mental disorder element is to limit police-power civil commitment and prevent it from swallowing the criminal law. The "mental disorder" element represents legal, rather than medical categories. While recognizing that particular terms, such as "mental illness," have no "talismanic significance," and that states may adopt varying "nomenclature," the Court appears to reject the view that states have an unfettered right to define "mental disorder" as they please. Rather, the Court emphasizes the "narrow circumstances" that are appropriate for civil commitment. Kansas' definition of "mental abnormality" passes constitutional muster because it, like other traditional civil commitment definitions, "narrows the class of persons eligible for confinement to those who are unable to control their dangerousness."

The conventional wisdom is that "inability to control" is a highly confused concept with little or no meaningful content. Because the Court did not explain why it focused on this sort of dysfunction or how this dysfunction serves to limit and justify civil commitment, the constitutional significance of the "'inability to control" rubric remains a subject of contention.

Fourth, Hendricks sheds some light on the legal significance of "treatment" in justifying civil commitment. Challengers argued that the sex offender commitment laws were unconstitutional because incarceration, rather than treatment, was the primary goal of the legislation. As restated by the Supreme Court, this argument took two forms.

In the "punitive intent" argument, challengers argued:
   ... the Act is necessarily punitive because it fails to
   offer any legitimate "treatment." Without such
   treatment, ... confinement under the Act amounts to
   little more than disguised punishment.

The substantive due process argument asserts:
   If there is nothing to treat under [the statute], then
   there is no mental illness. In that light, the provisions
   of the Act for treatment appear somewhat
   disingenuous ... Absent a treatable mental illness ...
   Hendricks could not be detained against his will.

In rejecting these arguments, the Court noted that Kansas had provided some treatment. Thus, Hendricks does not shed any light on the constitutionality of a hypothetical "no-treatment, pure prevention" civil commitment system. But the Court quite clearly held that "amenability" to treatment is not a constitutional requirement, at least for police power commitments that are justified on the basis of severe dangerousness. In this way, Hendricks suggests that States may commit dangerous, mentally disordered individuals for whom no effective treatment exists. Some treatment, however, may be necessary. In determining whether the state acted with punitive intent, the Court seemed to use a "reasonable efforts" standard for treatment. The Kansas law mandated treatment "where possible," and the record failed to show that the state had unreasonably failed to implement that requirement. Conversely, the provision of treatment is not sufficient to guarantee the constitutionality of commitment. It was not the provision of treatment that brought the Kansas statute within the constitutional powers of the state, but rather a particular form of impaired mental functioning coupled with future danger.

Fifth, Hendricks confirms that a law's reliance on prediction of dangerousness does not render the law unconstitutional. Prediction is central to the operation of sex offender commitment schemes, and challengers asserted that the inherent inaccuracy of prediction renders sex offender commitments unconstitutionally arbitrary. But prediction is central in a broad range of legal settings--from death penalty proceedings to child custody--so it is not surprising that Hendricks rejected this constitutional challenge.

III. Post-Hendricks Cases

Though Hendricks upheld the Kansas sex offender law against constitutional attack, the Court's language suggests quite strongly that states do not have limitless power to use civil commitment to achieve social control goals. As mentioned above, the Court stated explicitly that civil confinement normally requires proof of a mental disorder as well as dangerousness. Also, the Court made much of the assertion that civil commitment is addressed to a "narrow class of particularly dangerous individuals" and that the "mental disorder" requirement "narrows the class of persons eligible for confinement to those who are unable to control their dangerousness." Though sex offender commitments have been limited, in actual practice, to a comparatively small number of individuals, the narrowness of application appears more to result from discretionary prosecutorial decisions than from limiting appellate court decisions.

Thus, one of the open questions after Hendricks is whether the courts will indeed enforce a constitutional definition of "mental disorder" that substantially narrows the states" ability to use civil commitment. The question is put most directly in a 1999 Minnesota Supreme Court case, In re Linehan. Minnesota's Sexually Dangerous Persons (SDP) Act allows the commitment of individuals who are predicted to be sexually dangerous. It requires proof of a mental or personality disorder that "results in" a likelihood of future sexual violence. However, the Act specifically states: "it is not necessary to prove that the person has an inability to control the person's sexual impulses."

The SDP Act was challenged on the theory that its definition is too broad, violating the Hendricks principle that some traditional form of severe dysfunction--such as the inability to control impulses--is required for constitutionality. In the Linehan decision, the Minnesota Supreme Court agreed partially with this major premise, but rejected the argument's conclusion. The Minnesota Court read Hendricks as holding that only "some degree of volitional impairment must be evidenced to satisfy substantive due process." The actual language of the Minnesota law said that proof of "an inability to control" was not necessary, but the Court construed this as requiring proof that the individual's "present disorder or dysfunction does not allow them to adequately control their sexual impulses." The Court then examined the trial record, and held that evidence of impulsiveness in sexual behaviors and intermittent "abusive" behavior towards guards constituted sufficient evidence of "inability to exercise adequate control over his actions."

The Minnesota Court's decision stands for a broad conception of state power to use civil commitment. Most sex offenders--indeed, most criminals-are diagnosable with some form of mental or personality disorder. Further, a history of criminal activity certainly would satisfy the Court's "lacks-some-control" standard. If the Minnesota Court's decision stands, the conclusion will follow that the constitution imposes almost no restrictions on the scope of civil commitment.

A second significant post-Hendricks case is Young v. Weston, recently decided by the U.S. Court of Appeals for the Ninth Circuit. Unlike Hendricks and Linehan, which are direct appeals of judgments of commitment, Young is a federal habeas corpus action, thus allowing the court to examine the post-commitment conditions of confinement. The petitioner in Young raised a number of constitutional challenges to the Washington State Sexually Violent Predator Statute. The Court of Appeals reversed the dismissal of the petition, holding that Young's allegations, if proven, are sufficient to prove a violation of the Constitution. Young argued that the statute, as applied to him, is punitive and thereby violates the ex post facto and double jeopardy protections of the constitution. The Court reviewed Young's factual allegations, and held that the following were sufficient to support a finding of unconstitutionality: "conditions of confinement ... [that] are not compatible with the ... statute's treatment purposes" such as "conditions more restrictive than those placed either on true civil commitment detainees or even those placed on state prisoners;" placement of the treatment center "within the perimeter of a larger Department of Corrections facility and reli[ance] on the Department of Corrections for a host of essential services;" housing residents in units "clearly inappropriate for individuals in a mental health treatment program;" and the absence of "certified sex-offender treatment providers." Young thus suggests that the Constitution sets a floor on the conditions of confinement. Commitment programs that are housed within correctional facilities or that lack the differentiating indicia of traditional civil commitment confinement may be particularly vulnerable to attack.

IV. The Future of Sex Offender Commitment Schemes

As a matter of constitutional law, the future is bright for sex offender commitment schemes. At least to date, courts have imposed few real restrictions on the use of civil commitment to address problems that are the traditional concern of the criminal law. As with the first generation laws, the future trajectory of this second legislative experiment will depend mostly on social policy judgments by legislatures and administrators.

The goal of sex offender commitments--the prevention of sexual violence --is a compelling one. The detainees--mainly repeat sex offenders--engender little sympathy. And the logic of the programs--incapacitation of the "most dangerous"--seems self-evidently valid. Most certainly it will be the escalating cost of these programs that eventually will drive an examination of their wisdom.

Recently, a Minnesota Task Force estimated that the annual cost of "current practice" will increase by 450% (from $17 million to $76.9 million) in the twelve years from 1998 to 2010. At a legislative oversight hearing convened to hear the report, state Sen. Randy Kelly stated: "I'm very alarmed by those numbers and we have got to find some alternatives to bring those numbers down, because you will not be able to sustain this kind of an operation." The National Association of State Mental Health Program Directors, in their 1997 Policy Statement on Laws Providing for the Civil Commitment of Sexually Violent Criminal Offenders, warned that sex offender commitment programs "divert scarce resources away from people who have been diagnosed with a mental illness and who both need and desire treatment," and may "stigmatize the civil commitment process and people diagnosed with mental illnesses." While millions are spent on these post-prison commitment schemes, the correctional systems remain the "point of greatest opportunity for the treatment of persons convicted of serious sex offenses." (P. M. Harris, Prison-Based Sex Offender Treatment Programs in the Post-Sexual Psychopath Era, 23 J. PSYCHOL. & L. 555, 569 (1995)). Yet the National Center for Missing & Exploited Children warns, "While community supervision and oversight is widely recognized as essential, the system for providing such supervision is overwhelmed," and "[s]tate-sponsored [sex offender] treatment programs are under attack and are disappearing around the country."

Other, less tangible side-effects of sex offender commitment laws may undercut the efficacy of sex-offender treatment and distort the community's response to sexual violence. Sex offender commitment laws abrogate the therapist-client privilege. Disclosures made in prison-based sex offender treatment form key ingredients in referrals for commitment and in the commitment case itself. Afraid that their participation in treatment may cement the case for commitment, prisoners may avoid the self-disclosure that is central to sex offender treatment. Will the creation of such a disincentive decrease treatment efficacy, thereby increasing recidivism?

As suggested above, sex offender commitment schemes adopt a mental-disorder explanation for sexual violence, and characterize sex offenders as "unable to control" their sexual impulses. Since sex offender treatment is based on the assumption that individuals can control their sexual offending, will these ascriptions undercut the efficacy of the treatment? Will they distort broader social understandings of sexual violence, suggesting that such violence is caused primarily by psychological abnormality, rather than social factors such as the prevalence of images of violence against women and attitudes in the society that condone such violence?

V. Conclusion

While the book on the constitutionality of sex offender commitments is not finally written, Hendricks suggests that few constitutional limitations will be imposed. The imbalance between commitments and discharges will cause commitment populations to grow over the foreseeable future. Eventually, the huge costs of commitment schemes will force serious assessment of whether the facial logic of these programs hides seriously distorted resource allocation and anti-therapeutic side-effects.

Eric S. Janus is Professor of Law, William Mitchell College of Law, St. Paul, Minnesota. The author has served as co-counsel in litigation challenging the constitutionality of Minnesota's Sexually Dangerous Persons Act. Editor's note: While this issue of Developments is intended to cover relevant 1998 topics, it was published in 1999, and Professor Janus includes some 1999 cases in the discussion.
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Author:Janus, Eric S.
Publication:Developments in Mental Health Law
Date:Jan 1, 1998
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