Sex offenders, mental illness and criminal responsibility: the constitutional boundaries of civil commitment after Kansas v. Hendricks.

To allow the state to first choose the criminal sanction, which requires a finding of a specific state of mind, and when that sanction is completed, to choose another sanction which requires a finding of the opposite state of mind, is a mockery of justice which places both the criminal and civil systems for dealing with sexual predators in disrepute.1 By committing individuals based solely on perceived dangerousness, the Statute in effect sets up an Orwellian "dangerousness court," a technique of social control fundamentally incompatible with our system of ordered liberty guaranteed by the constitution . .2 I. INTRODUCTION Each year, more than one million people in the United States are civilly committed to hospitals for psychiatric treatment, one-third of whom are confined involuntarily.3 Because civil commitment is not predicated on any alleged criminal conduct, public policy justifies civil commitment on either of two competing rationales. First, commitment may benefit unhealthy individuals by providing access to psychiatric care or shelter from self-endangerment.4 Alternatively, commitment may benefit the public by isolating potentially dangerous individuals from the general population, thereby preventing future wrongful conduct.5 Despite the merits of either rationale, civil commitment comes with a price: the substantial loss of an individual's autonomy.6 Critics of civil commitment argue that mentally ill persons should not be treated differently from nonmentally ill persons, that the quality of care provided by states cannot justify commitment and that less intrusive alternatives to commitment exist.7 In recognition of the serious deprivation of individual autonomy, civil commitment standards limit the circumstances under which individuals may be committed.8 Recently, civil commitment has attracted nation-wide attention as a mechanism for coping with repeat sexual offenders.9 With mounting concern for the public's safety, several states passed laws that subject sex offenders to civil commitment.10 These commitment laws specifically target sex offenders.11 The significant feature of these laws is that civil commitment does not substitute for criminal incarceration; rather, commitment follows criminal incarceration, occurring for an indefinite time period after the offender has completed a prison term.12 Presently, civil commitment statutes aimed at sexual offenders exist in at least seventeen states.l3 In Kansas v. Hendricks, the U.S. Supreme Court considered whether Kansas's sex offender civil commitment law comports with the U.S. Constitution.14 Leroy Hendricks, a convicted criminal, was committed under a newly enacted civil commitment law targeting sex offenders shortly before completion of his sentence.15 In state court, Hendricks argued that the law violated due process and the prohibitions against double jeopardy and ex post facto laws.16 The Kansas Supreme Court accepted Hendricks's due process claim.17 On appeal, however, the U.S. Supreme Court reversed.18 Writing for the majority, Justice Thomas upheld the Kansas law, concluding, in part, that civil commitment of individuals "who suffer from a volitional impairment rendering them dangerous beyond their control" satisfies the Due Process Clause.19 Although Hendricks's commitment may have been socially desirable, the Supreme Court's decision raises serious implications for the moral foundation of American criminal law. Prior to commitment, Kansas criminally incarcerated Hendricks,(20) signifying that Hendricks engaged in blameworthy conduct that deserved punishment. Based on this same offense, Kansas subsequently civilly committed Hendricks, finding that he had a mental abnormality that rendered him unable to control his conduct.21 These two findings appear normatively inconsistent. If Hendricks were criminally responsible for his conduct, based on the requisite findings of intent (mens rea)(22) and voluntary act (actus reus),(23) then Hendricks deserved punishment because he had been capable of controlling his conduct but did not. …