American Journal of Law & Medicine

Sex offenders, mental illness and criminal responsibility: the constitutional boundaries of civil commitment.(Case Note)

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.(13)

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.(24) Similarly, if Hendricks were unable to control his conduct, then Hendricks should not have been found criminally responsible because he could not have completed a criminal act.(25) Despite this conflict, the Hendricks decision allows states to argue, consistent with the Due Process Clause,(26) that an individual possesses the capacity to control his conduct for the purpose of criminal confinement and that the same individual lacks the capacity to control his conduct for the purpose of civil commitment.

Moreover, in permitting the civil commitment of convicted criminals, the Hendricks decision broadens the range of individuals who may be civilly committed.(27) After Hendricks, a state may link past criminal conduct to a related "mental abnormality" or "personality disorder" to justify civil commitment.(28) In Hendricks's case, for example, Kansas linked child molestation to pedophilia.(29) Under a similar rationale, a state could link driving under the influence or under-age drinking to alcohol-use disorders or, similarly, drug crimes to cocaine-, hallucinogen-, or cannabis-related disorders.(30) In this manner, a state could civilly commit all persons convicted of drug- or alcohol-related crimes.(31) The Hendricks decision provides no limitations on the scope of state power.(32)

This Note argues: (1) that the requirements of civil commitment announced by the Supreme Court in Hendricks were poorly grounded in constitutional methodology; (2) that a normative conflict between the criminal and civil laws results from the Supreme Court's abandonment of its traditional framework for evaluating due process claims; and (3) that a proper analysis of civil commitment will show that the Due Process Clause only permits civil commitment of individuals who are dangerous and criminally irresponsible for their conduct. To this end, Part II reviews the development of civil commitment standards; Part III explains the constitutional standard created by the Hendricks decision; and Part IV analyzes the Hendricks standard under the Due Process Clause. Finally, Part V recommends a revised constitutional standard for evaluating civil commitment laws.

II. THE DEVELOPMENT OF CIVIL COMMITMENT STANDARDS

Today's commitment standards reflect the idea that the deprivation of liberty implicated by civil commitment is not justified on the basis of mental illness alone, but must be coupled with a prediction of dangerousness.(33) This modern justification for civil commitment places a high value on individual autonomy, sanctioning confinement only when legitimate public interests are at stake.(34) Past commitment standards, however, reflected different values, permitting civil commitment solely on the basis of mental illness.(35) With the Hendricks decision, the Supreme Court broadens the constitutional standard for civil commitment, reflecting less concern for individual autonomy and greater concern for public safety. To provide historical and legal context for the Hendricks decision, this Note begins with a brief background of past commitment practices and standards.

A. STATE STANDARDS FOR CIVIL COMMITMENT

In the sixteenth and seventeenth centuries, families and other local persons usually cared for the mentally ill.(36) America was still largely agrarian and people lived in small, scattered communities.(37) Mental illness was not yet considered a medical issue.(38) Consequently, care for the mentally ill focused on their inability to support themselves, not on providing medical treatment.(39) In fact, early colonists treated the mentally ill(40) as any other dependent group, such as widows, orphans, aged or the sick.(41) Early colonial laws required local communities to provide for dependent persons who could not provide for themselves.(42) When families could not care for these persons or, worse, could not be located, the law required local communities to provide food and clothing.(43) At times, concerns for public safety also played a role.(44) Some colonial legislation also permitted towns to limit the freedoms of "distracted persons" who threatened the safety of other residents.(45)

The population growth of the early eighteenth century, however, exposed the failings of the informal manner in which the colonists cared for all dependent persons.(46) In response, larger towns created welfare institutions, such as almshouses, that cared for the insane along with other dependent persons.(47) Almshouses of the eighteenth and nineteenth centuries, precursors to modern hospitals, provided medical care for only the socially marginalized sick and elderly, not people who had means to pay.(48)

In the mid-eighteenth century, views toward mental illness began to change.(49) Enlightenment values encouraged people to apply intelligence and rationality to social problems.(50) The new theorists believed that insanity was not a chronic illness, but a recoverable one if a person received appropriate treatment.(51) Consistent with these beliefs, Pennsylvania founded the first state-authorized hospital in 1753 that specifically treated mental illness as a medical illness.(52) Twenty years later, Virginia established the first facility devoted exclusively to mental illnesses.(53) Nevertheless, the number of persons treated by both these hospitals remained small.(54)

In the second quarter of the nineteenth century, state asylums increasingly provided care for the insane.(55) Prodded by reformers who desired more humane alternatives to jails and almshouses,(56) new asylums opened in virtually every state.(57) Admissions to asylums greatly exceeded expectations, with families opting for institutionalization over home or community care.(58) Throughout the next century, the growth of asylums continued without abatement, with a total inpatient population in 1955 of more than half a million people.(59)

At the start of the Civil War, states assumed that asylums were the best place to care for almost all people suffering from mental illness.(60) Under enabling legislation for state asylums, many states simply required judicial certification of the need for treatment.(61) Thus, the first legal standard for commitment required a finding that a mentally ill person was in need of, or likely to benefit from, the treatment.(62) Coercion played a large role in the institutionalization process because states presumed that mental disorders affected cognition.(63)

Nevertheless, states placed regulatory controls on civil commitment after complaints alleged that greedy relatives and conniving physicians had coerced some persons into mental institutions.(64) Social reformers campaigned for laws that would protect individuals, particularly married women, from wrongful commitment to asylums.(65) These laws required jury trials and the right to correspond free from institutional censorship.(66) Although reformers were not successful in altering the standard for civil commitment, their efforts led to the regulation of private facilities and the adoption of procedural safeguards similar to those used in the criminal justice system.(67)

Responding to these laws, a 1952 National Institute of Mental Health report urged states to revise their commitment laws by restricting involuntary commitment to the dangerous mentally ill.(68) The report, however, failed to galvanize states to change their civil commitment laws. As of 1961, only thirty-seven states legislated any judicial procedures to govern commitment.(69) Of these, only five required a finding that the individual be dangerous to himself or others; only seven required the determination that the patient needed care or treatment.(70) In 1971, only nine states restricted civil commitment to dangerous persons.(71) Therefore, early standards for civil commitment generally permitted an individual to be confined on the basis of mental illness, without regard to dangerousness.(72)

B. CONSTITUTIONAL LIMITATIONS ON STATE POWER

The U.S. Supreme Court has noted that states "have traditionally exercised broad power to commit persons found to be mentally ill."(73) This power flows from two distinct legal grounds: the patens patriae power and the police power.(74) Under the parens patriae power, states have the authority to protect individuals, such as the mentally ill, minors or the elderly, who lack the capacity for taking care of themselves.(75) Under the police power, states have the authority to restrain individuals, such as criminals and the dangerous mentally ill, who present a threat to the public's safety.(76)

Until recently, state power to civilly commit persons with mental illness has known few constitutional boundaries. In 1960, the Iowa Supreme Court declared that involuntary civil commitment did not implicate such a loss of liberty as to fall within the protection of the Due Process Clause of the Fourteenth Amendment.(77) As the 1960s civil rights movement focused attention on state practices that denied persons individual liberties, the judicial climate began to change.(78) Under the leadership of Chief Justice Earl Warren, the U.S. Supreme Court struck down laws infringing on individual liberties.(79) By 1972, the Court declared that civil commitment resulted in a "massive curtailment of liberty."(80)

With heightened attention on civil liberties, civil commitment received a fresh examination by the nation's highest court. Initially, the Court proceeded on claims arising under equal protection and due process, addressing only the procedural infirmities in the practice of civil commitment pertaining to criminal defendants or sexual psychopaths.(81) In a series of cases, the Court required that prisoners be declared insane under New York's general commitment law prior to commitment;(82) that persons convicted under Colorado's Sexual Offenders Act receive full judicial hearings prior to indefinite civil commitment;(83) and that persons found incompetent to stand trial could not be indefinitely committed under an Indiana statute without customary civil commitment proceedings.(84)

In contrast to the Court's concerted efforts at providing procedural protections to individuals who were civilly committed, the development of the Court's substantive due process jurisprudence in the area of civil commitment appears incidental. Three cases support this interpretation. First, in Jackson v. Indiana, the Court struck down the indefinite civil commitment of an incompetent criminal.(85) The Court held that "due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed."(86) In effect, the ruling established a commitment standard based on reasonableness.(87) Accordingly, the Court declared that a person charged with a criminal offense and committed solely on account of his incapacity to stand trial cannot be held for more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain the capacity to stand trial in the foreseeable future.(88) This reasonableness standard, however, is short lived.

Several years later, in O'Connor v. Donaldson,(89) the United States Supreme Court heard its first case involving the civil commitment of a person with a mental illness.(90) A Florida judge had ordered Kenneth Donaldson committed as a mental incompetent who was dangerous to himself or others, or in need of treatment.(91) In Donaldson's lawsuit against the hospital for intentional and malicious deprivation of liberty, a jury had found that he was "neither dangerous to himself nor dangerous to others," and also found that, if mentally ill, he had not received treatment.(92) Because a jury found that the statutory grounds for confinement were lacking,(93) the Supreme Court ruled that confinement could no longer continue.(94) The Court reasoned that even though Florida law may have authorized confinement of the harmless mentally ill, there was no "constitutionally adequate purpose for the confinement."(95)

Although the Supreme Court's language may suggest review of the substantive merits of Florida's law, the Court actually deferred consideration of the statute's putative purpose.(96) Citing an evidentiary finding that the grounds for commitment no longer existed, the Court simply held that Donaldson's confinement was no longer constitutional.(97) In this case, the only conceivable constitutional defect in Donaldson's commitment arises from procedural due process, on the theory that his commitment was no longer valid under Florida law.(98)

Despite the intended narrowness of its holding, the O'Connor decision laid the foundation for establishing the first constitutional standard for civil commitment. The Court, in dicta, admonished that a "finding of `mental illness' alone cannot justify a State's locking a person up against his will.... [T]here is no constitutional basis for confining such persons involuntarily if they are dangerous to no one and can live safely in freedom."(99) These words altered civil commitment throughout the country. By the end of the 1970s, every state had modified or interpreted their civil commitment statutes to include a dangerousness requirement.(100)

Finally, in Jones v. United States, the Court seized on O'Connor's dangerousness requirement, explicitly making mental illness and dangerousness a substantive requirement of due process.(101) There, the Supreme Court proclaimed that "the Due Process Clause requires the Government in a civil-commitment proceeding to demonstrate by clear and convincing evidence that the individual is mentally ill and dangerous."(102) Although the authority for the Court's proclamation in Jones appears weak,(103) and the Court's reasoning unclear,(104) a finding of mental illness and dangerousness became the two substantive requirements of due process. Thus, this trilogy of cases created a constitutional standard for civil commitment that, as recently as 1992, had been deemed essential to any constitutionally valid civil commitment.(105)

III. THE CONSTITUTIONAL STANDARD AFTER KANSAS V. HENDRICKS

Having explained the development of civil commitment standards prior to Kansas v. Hendricks, this Part describes how Hendricks broadens the constitutional boundaries of civil commitment. It first describes Kansas's civil commitment statute aimed at sex offenders; it then summarizes the facts involved in Hendricks; and, finally, it defines the constitutional standard created by Hendricks.

A. KANSAS'S SEXUALLY VIOLENT PREDATOR ACT

In response to growing public concern that the criminal justice system inadequately prevents sex offenders from repeating similar crimes,(106) Kansas passed the Sexually Violent Predator Act (the Act)(107) in 1994. …

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