[that precedent.” Williams v. Taylor, 529 U.S. 362, 404 (2000). A state court decision is an
unreasonable application of federal law only if it is “objectively unreasonable” and not if it is
simply erroneous. /d. at 409. With these standards in mind, the Court turns to Varner’s due
process and equal protections claims.

1. Due process

Varner claims that the Illinois Supreme Court’s decision in his case was both contrary to
and an unreasonable application of Crane.

A. “Contrary to”

According to Varner, Crane requires a separate lack of contro} finding in civil
commitment hearings for sexually violent persons. Varner argues that the Illinois Supreme
Court’s decision in Varner IJ was contrary to Crane because it held that the statutory
requirements of the [Illinois SVPA, which does not include a separate lack of control
determination, were constitutionally sufficient.

The Court disagrees. Though the Supreme Court ruled in Crane that the state must
present sufficient evidence of difficulty in controlling behavior to distinguish a sexually violent
person from a typical recidivist, Crane, 534 U.S. at 412, it did not conclude that such a finding
had to be made separately from the findings of dangerousness and mental illness. Indeed, the
Court explicitly rejected the establishment of a bright-line test for inability to control behavior.
Id. at 413.

For this reason, the Illinois Supreme Court’s decision was not contrary to Crane. The
Illinois Supreme Court’s reading of Crane is consistent with that of the majority of state courts

that have considered Crane's effect on the requirements of their states’ civil commitment acts.


like similar statutes in other states, “does contain an articulated volitional component in its
definition of ‘mental disorder’ and required finding that it is ‘substantially probable’ the subject
of the proceeding will engage in proscribed sexual conduct in the future.” /d. (emphasis in
original). Citing rules of statutory construction, the court held that because the SDPA and SVPA
are “obviously closely related” and are “undoubtedly governed by on spirit,” id., the definition of
mental disorder from the SVPA should be read into the SDPA “‘to the extent consistency allows
and augmented with the standard that appears to emerge from Crane.” /d. at 329. The court
went to hold that the term “mental disorder” in the SDPA would be construed as:

[A] congenital or acquired condition affecting the emotional or volitional capacity that

predisposes a person to engage in the commission of sex offenses and result in serious

difficulty controlling behavior.
id. (emphasis added).

Varner’s equal protection claim arises out of the Illinois Supreme Court’s inclusion of the
phrase “and results in serious difficulty controlling behavior” in its requirement for commitment
under the SDPA. In Varner IT, when faced with Varner’s Crane challenge, the Illinois Supreme
Court did not add this language to the definition of mental disorder in the SVPA. Varner claims
that the court’s failure to impose a requirement of a separate lack of control finding in his case
results in the SVPA providing less protection to the accused than the SDPA, thereby violating the
equal protection rights of persons subject to the SVPA.

The equal protection clause requires a state to treat similarly situated persons in a similar
way. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). To establish an
equal protection violation, Varner must first show that persons committed under the SVPA are

similarly situated to those committed under the SDPA. Varner argues that the Illinois Supreme

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The Need for Coherence: States’ Civil Commitment of Sex Offenders in the Wake of Kansas v.
Crane, 55 Stan. L. Rev. 2229, 2248 (2003) (arguing that Crane demands a separate lack of
control finding); Kenneth W. Gaines, Instruct the Jury: Crane’s “Serious Difficulty”
Requirement and Due Process, 56 S.C. L. Rev. 291, 300-01 (2004) (same).

The Ninth Circuit came to the same conclusion when faced with a post-Crane due
process challenge to Washington’s SVPA. Brock v. Seling, 390 F.3d 1088, 1091 (9th Cir. 2004).
In Brock, the court ruled that the jury’s finding that the offender had “some combination of
mental abnormality and personality disorder which in conjunction make him likely to engage in
predatory acts of violence” necessarily included a finding that the offender had serious difficulty
in controlling his behavior and thus met the requirements of Crane. Id. at 1090-91. The court
concluded that “the United States Supreme Court does not require a fact finder to make specific
determinations of ‘lack of control’ or ‘volitional impairment’ before ordering civil commitment
of a sexually violent predator.” Jd.

Vamer argues that the Supreme Court in Crane must have intended that a separate
determination of lack of control be made, because it concluded that the statutory requirements of
the Kansas SVPA, which did not include specific lack of control language, were constitutionally
infirm. Varner’s argument fails, however, because Crane did not find the Kansas SVPA
constitutionally deficient. Though the Court remanded the case lor further consideration in hght
of its decision, it did not overturn Hendricks and did not direct that on remand, a jury had to
determine anew whether, in addition to the statutory criteria, Crane had serious difficulty

controlling his behavior. Crane, 534 U.S. at 872.


See In re Commitment of Laxton, 254 Wis. 2d 185, 201-02, 647 N.W.2d 784, 793 (2002)
(separate finding regarding the individual’s serious difficulty in controlling behavior is not
necessary for civil commitment)’; Florida v. White, 891 So.2d 502, 509 (Fl. 2004) (“Crane does
not impose [an element] required for civil commitment or render the Florida standard jury
instructions inadequate”); People v. Williams, 31 Cal. 4th 757, 774-75, 74 P.3d 779, 790 (2003)
(Crane “does not compel us to hold that further lack-of-control instructions or findings are
necessary to support a commitment under the SVPA”); /n re Commitment of Almaguer, 117
S.W.3d 500, 504 (Tex. App. 2003) (the Crane majority made no mention of the need for a new
instruction or even additional jury findings); Jn re Leon G., 204 Ariz. 15, 22 59 P.3d 779, 786
(2002) (““Crane’s statement that a state must prove ‘serious difficulty in controlling behavior’
does not require express statutory language”). But see In re Thomas, 74 8.W.3d 789, 792 (Mo.
2002) (jury instruction defining mental disorder must include the language “causes the individual
to have serious difficult in controlling his behavior” to comport with Crane), In re Detention of
Barnes, 658 N.W.2d 98, 101 (lowa 2003) (Crane requires a jury instruction specifying serious
difficulty in controlling behavior); In re Commitment of W.Z., 173 N.J. 109, 133-34, 801 A.2d
205, 219 (2002) (the state must specifically prove “by clear and convincing evidence that the

individual has serious difficulty his or her harmful sexual behavior”), see also Peter Pfaffenroth,

3 fter Crane, the Wisconsin jury instruction for the definition of mental disorder was
revised to add language linking the definition of mental disorder with the person’s difficulty in
controlling behavior. Laxton, 254 Wis. 2d at 204 n.14, 647 N.W.2d at 794. Mental disorder in
Wisconsin is now defined as “a condition affecting the emotional or volitional capacity that
predisposes a person to engage in acts of sexual violence and causes serious difficulty in
controlling behavior. Not all persons with a mental disorder ... have serious difficulty in
controlling behavior.” Id.; see Wis. JI— Criminal 2502 (Special Release 2/2002). This standard
jury instruction, however, was not adopted until after Laxton was civilly committed.

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Cir. 2000) (under the “unreasonable application of” clause, the court should “defer to a

reasonable, if incorrect, state court decision”), In light of the language and holding of Crane, it

was not objectively unreasonable for the Illinois Supreme Court to uphold Varner’s commitment

and conclude that a separate determination of lack of control was not mandated by Crane.
Equal protection

Varner argues that he has been denied equal protection of the law because the Illinois
Supreme Court has imposed a more stringent standard for commitment under the Sexually
Dangerous Persons Commitment Act than under the Sexually Violent Persons Commitment Act.
The SDPA provides for civil commitment of persons deemed to be “sexually dangerous,” which
is defined by statute as:

All persons suffering from a mental disorder, which mental disorder has existed for a

period of not less than one year, immediately prior to the filing of the petition hereinafter

provided for, coupled with criminal propensities to the commission of sex offenses, and
who have demonstrated propensities toward acts of sexual assault or acts of sexual
molestation of children.
725 ILCS 205/1.01. Unlike the SVPA, the SDPA permits civil commitment of persons who
have never been charged with or convicted of a criminal offense.

Varner’s equal protection claim is based on People v. Masterson, 207 Ill.2d 305, 798
N.E.2d 735 (2003), a decision of the Illinois Supreme Court holding that the requirements for
commitment under the SDPA were constitutionally infirm in light of Crane. In Masterson, the
court held that the language of the SDPA did not comply with Crane because it did not contain a
definition of the term “‘mental disorder’ that specifically linked the disorder to impairment of

‘volitional capacity’ nor a specific standard for determining the likelihood that a sexual offense

will be committed in the future.” /d. at 328. The court went on to note that the Illinois SVPA,


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES, ex rel.,
HERBERT J. VARNER, )
Petitioner, ‘
vs. Case No. 04 C 2065
TIMOTHY BUDZ, facility director, }
Respondent. }

MEMORANDUM OPINION AND ORDER'

MATTHEW F. KENNELLY, District Judge:

Herbert J. Varner pled guilty to criminal sexual assault of his five-year-old niece and was
sentenced to thirteen years in prison. When Varner’s prison term was complete, the State of
Illinois commenced civil commitment proceedings pursuant to the Sexually Violent Persons
Commitment Act, 725 ILCS 207/1 et seq., which permits indefinite commitment of a person
found by a jury to be “sexually violent” beyond a reasonable doubt.

The jury in Varner’s case heard evidence that Varner had committed sexual acts with
children and heard testimony from three clinical psychologists, regarding Varner’s mental state
and the possibility that he would commit sex offenses against children in the future. The jury
was instructed that it had to determine whether the state had proved beyond a reasonable doubt
that Varner was a sexually violent person. The jury was further instructed, pursuant to the

SVPA, that “sexually violent person” means:

'The Court thanks petitioner’s appointed counsel Richard McLeese for his vigorous
advocacy on behalf of petitioner.


those who have no prior convictions.

Even were the Court to determine that persons committed under the SDPA and SVPA are
similarly situated for purposes of equal protection review, the more limited definition of “mental
disorder” in the SDPA still would not violate the equal protection rights of SVPA offenders. In
considering Varner’s equal protection challenge to the SVPA, the Court employs the rational
basis standard of review. /n re Detention of Samuelson, 189 Ill. 2d 548, 561-62, 727 N.E.2d 228,
236 (2000); In re Commitment of Bushong, 351 Ill. App. 3d 807, 815, 815 N.E.2d 103, 110
(2004). The rational basis standard “does not require that all persons be dealt with identically,
but it does require that a distinction made have some relevance to the purpose for which the
classification is made.” Baxstrom v. Herold, 383 U.S. 107, 111 (1966). If the difference in the
definition of mental disorder in the SDPA and SVPA bears a rational relationship to a legitimate
state interest, than there is no equal protection violation. Bushong, 351 Ill. App. 3d at 815, 815
N.E.2d at 110.

Illinois has a legitimate in interest in making the standard for commitment more stringent
under the SDPA than SVPA, because the former statute concerns persons who have not been
adjudicated guilty of a criminal sexual offense. The Supreme Court rationally could have
determined that the risk to society posed by persons whose violent proclivities have resulted in a
criminal conviction is greater than that posed by sexually dangerous persons, justifying a less
specific standard for commitment. See Bushong, 351 Ill. App. 3d at 816, 815 N.E.2d at 111
(requiring proof of continued dangerousness beyond a reasonable doubt under the SDPA, while
the clear and convincing standard governs in SVPA cases, does not violate equal protection

rights of SVPA committees because they have already been convicted of a sexually violent

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Court essentially determined in Masterson that the two groups were similarly situated when it
stated that the SDPA and SVPA are “obviously closely related in subject and proximity, and they
are undoubtedly governed by one spirit and a single policy.” Masterson, 207 Ill. 2d at 329, 798
N.E.2d at 48.

Illinois courts have consistently held, however, that persons committed under the SVPA
and the SDPA are not similarly situated. See, e.g., In re Commitment of Bushong, 351 Ill. App.
3d 807, 815-16, 815 N.E.2d 103, 111 (2004) (requiring the State to prove its case for continued
commitment by clear and convincing evidence under the SVPA, when the SDPA requires proof
beyond a reasonable doubt, does not violate equal protection because persons committed under
the SVPA and SDPA are not similarly situated); People v. Hancock, 329 IN. App. 3d 367, 379,
771 N.E.2d 459, 468 (2002) (no equal protection violation in the difference in commitment
procedures between the SDPA and SVPA because persons committed under the SDPA and
SVPA are not similarly situated); People v. McVeay, 302 Ill. App. 3d 960, 968, 740 N.E.2d 539,
545 (1999) (sexually violent persons create different societal problems from those created by
sexually dangerous persons, justifying the legislature in “prescribing different definitions,
procedures, and methods of treatment” under the SVPA and SDPA).

The Court agrees with the reasoning of these cases. The Illinois legislature has seen fit to
classify sexually violent persons and sexually dangerous persons with distinct criteria. Although,
as the Illinois Supreme Court indicated in Masterson, the two statutes are closely related and are
informed by a common policy, that does not make persons charged under the two statutes
similarly situated. In adopting two separate statutory schemes, the legislature saw a need to

create different commitment procedures for those convicted of sexually violent offenses than for

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B. “Unreasonable application”

The decision in Varner /] was not an unreasonable application of Crane for essentially
the same reasons that it was not contrary to the holding of Crane. The Illinois SVPA, like the
Kansas SVPA, defines “mental disorder” and “sexually violent person” in a way that
encompasses a finding of inability to control behavior. In Varner’s case, the jury was instructed
that mental disorder was defined as “a congenital or acquired condition affecting the emotional
or volitional capacity that predisposes a person to engage in acts of sexual violence,” and that
the mental disorder must “make[ ] it substantially probable that the person will engage in acts of
sexual violence.” Varner II, 207 Ill. 2d at 427, 800 N.E.2d at 796 (emphasis added). The Illinois
Supreme Court did not unreasonably apply Crane when it held that by finding Varner to have a
mental disorder that makes it substantially probable that he will commit acts of sexual violence
in the future, the jury necessarily found that he had “serious difficulty” controlling his behavior
as required by Crane. See also Brock, 390 F.3d at 1090-91 (“While the jury did not specify the
severity of Brock’s condition, it is clear it did not commit him absent ‘any’ showing of [lack of]
control in contravention of Crane.”). In other words, a determination that Varner had serious
difficulty in controlling his behavior was implicit in the jury's finding of future dangerousness
based on mental illness.

As noted earlier, decisions from three state supreme courts support Varner’s
interpretation of Crane. See supra at 6. The standard of review in habeas corpus cases, however,
is whether the state court’s application of the federal law was objectively unreasonable.

Williams, 529 U.S. at 410 (“[A]n unreasonable application of federal law is different from an

incorrect application of federal law.”); see also Anderson v. Cowan, 227 F.3d 893, 896-97 (7th


also reasoned that Illinois’ statutory definitions of mental disorder and sexually violent person
were sufficiently linked with a finding of difficulty in controlling behavior to satisfy Crane’s
holding that the Constitution requires a determination of lack of control as a prerequisite to civil
commitment of a sexually dangerous offender. /d.

Varner has petitioned for a writ of habeas corpus, alleging that the Illinois Supreme
Court’s interpretation of Crane in Varner II violated his substantive due process and equal
protection rights. For the reasons stated below, the Court denies his petition.

Discussion

The Court reviews Varner’s habeas corpus petition according to 28 U.S.C. § 2254(d).
Section 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act, permits a
federal court to grant a writ of habeas corpus only if the petitioner can show that the state court’s
decision was “contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States.” Both the “contrary to” and the
“unreasonable application of” inquiries require a federal court to be “highly deferential” to the
state court decision. Woodford v. Visciotti, 537 U.S. 19, 24 (2002). A state court decision is
contrary to established federal law only if the state court “arrives at a conclusion opposite to that
reached by the [Supreme] Court on a question of law” or “confronts facts that are materially

indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to

Though Varner brings his petition for a writ of habeas corpus under 28 U.S.C. § 2241,
the limitations that Congress has imposed on habeas corpus under § 2254 apply. Coady v.
Vaughn, 251 F.3d 480, 485 (3d Cir. 2001); Dill v. Holt, 371 F.3d 1031, 1302-03 (11th Cir.
2004); see Mederberry v. Crosby, 351 F.3d 1049, 1059-69 (11th Cir. 2003) (Section 2254 must
apply to petitioners in custody pursuant to a State court judgment, or it would “serve no function
at all”).


either of which ‘makes the person likely to engage in repeat acts of sexual violence.” /d. at 351-
52. In interpreting the SVPA after the Hendricks decision, the Kansas Supreme Court ruled that
in order to civilly commit a sexually violent predator, the State had to show that the defendant
“cannot control his dangerous behavior.” In re Crane, 269 Kan. 578, 586, 7 P.3d 285, 290
(2000).

The Supreme Court vacated the Kansas decision, holding that the Kansas court had
misread Hendricks to require the state to show “a total or complete lack of control.” Crane, 534
U.S. at 411 (emphasis in original). The Court held that such an “absolutist approach is
unworkable,” id., because proof of difficulty in controlling behavior is not demonstrable “with
mathematical precision.” Jd. at 412. Instead, the Court stated, the state is required only to
provide “proof of serious difficulty in controlling behavior” 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.” /d. In so ruling, the Court recognized that it was not providing a precise standard for the
amount and type of evidence required to show that an offender lacked the ability to control his
behavior. Id. at 413. The Court explained that it was purposely avoiding a bright-line rule and
ensuring that States retain ‘considerable leeway” in defining the mental disorder that make an
individual eligible for commitment. /d.

When the Illinois Supreme Court reconsidered Varner’s case and the requirements of the
Illinois SVPA in light of Crane, it ruled that the statutory requirements were constitutionally
sufficient and that a separate jury instruction regarding lack of control was not required. /n re

Detention of Varner (Varner II), 207 Ill. 2d 425, 433 800 N.E.2d 794, 799 (2003). The court


[A] person who has been convicted of a sexually violent offense and who is dangerous
because he or she suffers from a mental disorder that makes it substantially probable that
the person will engage in acts of sexual violence.
In re Detention of Varner (Varner 1), 198 Ill. 2d 78, 81-82, 759 N.E.2d 560, 562 (2001); see 725
ILCS 207/5(f). The jury was also instructed that “mental disorder” is defined as:

[A] congenital or acquired condition affecting the emotional or volitional capacity that
predisposes a person to engage in acts of sexual violence.

Id.; see 725 ILCS 207/5(b). The jury found that Varner was a sexually violent person, and the
court ordered him committed to the custody of the Illinois Department of Human Services for
institutional care at a secure facility.

Varner appealed the commitment order, claiming that the SVPA was unconstitutional
because it violated substantive due process. The Illinois Supreme Court rejected Varner’s due
process claim and affirmed his civil commitment. Varner J, 198 Ill. 2d at 87, 759 N.E.2d at 565.
Varner petitioned the United States Supreme Court for a writ of certiorari. The Supreme Court
granted the writ, vacated the Illinois Supreme Court’s judgment, and remanded Varner’s case for
further consideration in light of Kansas v. Crane, 534 U.S. 407 (2002).

In Crane, the Supreme Court considered the constitutionality of the Kansas Supreme
Court's interpretation of the Kansas Sexually Violent Predator Act. The Supreme Court had
upheld the constitutionality of the Kansas SVPA several years earlier in Kansas v. Hendricks,
521 U.S. 346 (1997). The Kansas SVPA permitted the civil detention of “a person convicted of
any of several enumerated sexual offenses, if it is proved beyond a reasonable doubt that he
suffers from a ‘mental abnormality’ - a disorder affecting his ‘emotional or volitional capacity

which predisposes the person to commit sexually violent offenses’ - or a ‘personality disorder,’


crime).
Conclusion
For the reasons explained above, the Court denies Varner’s petition for a writ of habeas

corpus {docket no. 27] and directs the Clerk to enter judgment in favor of the respondent.

WALLA,

MATTHEW F. KENNELLY
United States District Coftrt

Date: March 21, 2005

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