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Irresistible impulses. (Guest Editorial).

In January of this year, the Supreme Court in Kansas v. Crane made its second ruling on the constitutionality of so-called sexually violent predator statutes.

These statutes create a safety net for criminal prosecutors by allowing the state to civilly commit sex offenders who have completed their prison sentence. This use of civil commitment to prolong a criminal's confinement raises many constitutional questions.

Sex offenders constitute 10% of the prison population, so the first question is this: How do sexually violent predator (SVP) statutes identify those offenders who are to remain in the custody of the state? That issue was addressed in the recent Supreme Court decision (Crane) but without a very clear answer.

In the first go-round, Kansas v. Hendricks, Justice Clarence Thomas held in his majority opinion that there were no constitutional defects in the Kansas SVP statute, which is typical of laws in other states that have codified this new use of civil commitment.

Critics of the Kansas statute had raised at least three important constitutional questions:

* Was the offender subject to double jeopardy since he would be confined a second time based on acts for which he had already been punished?

* Was this an unconstitutional ex post facto law since the imprisoned offender was to be confined based on a statute passed after he had committed his offenses?

* Was the substantive standard for confinement clear and selective enough to identify the subset of sexually violent predators who are to be confined?

Despite the concerns of dissenting justices about all three questions, Justice Thomas ruled in Hendricks that neither double jeopardy nor ex post facto concerns were implicated in the Kansas act. His argument came down to a matter of definition: The SVP statute was civil, not criminal, and therefore was not punitive. Since the new confinement was not punitive (by definition), neither double jeopardy nor ex post facto concerns were relevant.

Since Hendricks had a lifelong history of pedophilia and had conceded that, if released and given the opportunity, he would again offend, it was difficult to argue that the substantive standard was not properly applied in his case. In fact, the Menninger Foundation gave its name to a brief in support of the Kansas law in Hendricks.

Nonetheless, there were and are serious legal and psychiatric grounds for questioning these laws. Particularly troubling to organized psychiatry were the vague definitions of mental illness in the statute and the absence of any real prospect of treatment.

Indeed, as Justice Stephen Breyer pointed out in dissent, if there had been effective treatments for offenders like Hendricks, why did Kansas wait to provide them until his prison sentence was completed?

There are promising treatments that psychiatrists believe can help some sex offenders. But available treatments can and should be provided in prison long before the offender's sentence is completed. These concerns, and others to be discussed, led the American Psychiatric Association to submit a brief to the Supreme Court opposing the Kansas law even as applied to Hendricks. The APA view, and we concur, is that these statutes cloaked criminal sanctions under the mantle of therapy and civil commitment.

The Kansas SVP statute used a different definition of mental disorder than it applied in ordinary civil commitments. In its standard civil commitment statute, Kansas had followed the definition and guidelines of the APA's model statute on civil commitment (a person in need of treatment suffering from severe mental disorder, lacking capacity to make an informed decision about treatment, and likely to cause harm to self or others). That definition embodies organized psychiatry's view of the proper role of civil commitment.

In crafting the sexually violent predator statute to serve as a safety net for the criminal justice system, the Kansas legislature instead used the catchall phrase "mental abnormality." It defined "mental abnormality" as a congenital or an acquired condition affecting the emotional or volitional capacity that predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.

That definition seems vague, circular, and ambiguous, but it was constitutionally sufficient for Justice Thomas and the majority.

At the outset, Justice Thomas asserted that mental health terms used in legislation can be based on legal tradition and legislative consensus. Lawmakers are not required to adhere to psychiatry or its DSM-IV.

As a constitutional matter, state legislatures can define mental illness for their own purposes.

Justice Anthony Kennedy warned in Hendricks that "if it were shown that mental abnormality is too imprecise a category to offer a solid basis for concluding that civil detention is justified, our precedent would not suffice to validate it."

Unimpressed, Justice Thomas ruled that the "mental abnormality" definition was sufficient and further justified the SVP statute criteria as derived from the traditional legal concept of the insanity defense: a mental abnormality that produces an irresistible impulse.

The imprecision of "mental abnormality" and the relevance of irresistible impulses became central constitutional questions in this year's Kansas v. Crane case. Unlike Leroy Hendricks, who had a 40-year history of sex offenses against children, Michael Crane was a diagnosed exhibitionist having an antisocial personality disorder. Most of the offensive behaviors on his criminal record were construed as willful rather than uncontrollable.

Crane argued that he was therefore not "mentally abnormal" and the ambiguity of the SVP definition was confronted.

Did the statute, as described by Justice Thomas, require an offender to be subject to an irresistible impulse? Or could a person be an SVP if subject to something less than an irresistible impulse?

A mental health professional might ask whether anyone diagnosed with antisocial personality disorder who committed sexual offenses would meet the criteria of an SVP. This would certainly enlarge the category.

The SVP laws, since they require mental abnormality and dangerousness, also raise the recurring empirical question: Is there a valid scientific basis for predicting future violent behavior? The leading authorities continue to express serious doubt about the validity of any scientific attempt to predict future violence, sexual or not.

The Supreme Court itself has recognized the scientific limitations of predicting dangerousness in civil commitment (Addington v. Texas and Heller v. Doe). The court nonetheless has endorsed repeatedly the use of such predictions in many legal contexts, assuming that scientific limitations can be exposed via cross-examination.

The ultimate responsibility for the prediction is in theory left to the judge and jury rather than the scientific experts who testify.

The prediction issue was not addressed in Kansas v. Crane. The case instead focused on whether the trial court had to find specifically that a defendant lacked control. Justice Breyer, who had expressed concern about the prior lack of treatment in Hendricks, wrote the Crane majority opinion. He held that the state must, as a separate matter, show that the offender lacked some element of control. That determination is essential to prevent civil commitment from becoming a mechanism of retribution or punishment, a mechanism that definitely belongs within the criminal system rather than the civil system.

Commitment under SVP statutes thus requires not an irresistible impulse but at least an impulse that is difficult to resist. This lack-of-control standard will guide Crane's retrial.

Justice Thomas and Justice Antonin Scalia strongly objected to Justice Breyer's majority opinion in Kansas v. Crane. For them, the presence of a mental abnormality itself suffices to prove the defendant's lack of volitional control.

Unfortunately, neither of these Supreme Court arguments makes much sense from a psychiatric perspective.

Psychiatrists have come to believe that disputes about degrees of volitional control are beyond our scientific expertise. That premise was the basis of the APA's rejection of the irresistible impulse test in its insanity defense position paper (June 1983). Congress followed this recommendation in its Insanity Defense Reform Act of 1984.

The Supreme Court now asks mental health practitioners to distinguish between sexually violent criminals who can and cannot control their violence. There is no known scientific basis for such distinctions. Mental health professionals will therefore find it difficult to provide expert guidance to the courts in determining which sex offenders require further confinement.

The 20th century taught both patients and psychiatrists that civil commitment without meaningful treatment can be more demeaning and destructive than a criminal sentence. SVP statutes ignore this terrible history and its toll of lives lost in crowded wards of what were called "hospitals."

Lawmakers are understandably concerned about sexual offenders like Hendricks. As many legal scholars have pointed out, those concerns can and should be dealt with by appropriate criminal sentences, not by a new masquerade of civil commitment.

DR. Alan A. STONE is the Touroff-Gluck Professor of Law and Psychiatry in the Faculty of Law and the Faculty of Medicine, Harvard University.
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Title Annotation:sexual offenders and the law
Author:Stone, Alan A.
Publication:Clinical Psychiatry News
Article Type:Editorial
Geographic Code:1USA
Date:May 1, 2002
Previous Article:Fink! Still at large: pack-rat eccentricity or mental illness? (Opinion).
Next Article:Letters.

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