Opinion · Supreme Court of the United States
Kansas v. Crane
534 U.S. 407
- Type
- Opinion
- Court
- Supreme Court of the United States
- Jurisdiction
- Federal
- Date
- 2002-01-22
- Topic
- general
How later courts describe this case
- holding that, absent an individualized determination of "lack of control," indefinite civil commitment of a sex offender violates substantive due process
- recognizing that the Constitution does not permit the commitment of a pedophile without some lack-of-control determination thereby recognizing the possibility that a pedophile may control his urges
- holding that the dangerousness of a previously convicted sexual predator may outweigh right to be free from restraint and warrant involuntary civil commitment
- holding that, absent an individualized determination of “lack of control,” indefinite civil commitment of a sex offender violates substantive due pro: cess
- holding that a similar statute satisfies constitutional due process only when there is “proof of serious difficulty in controlling behavior”
- holding that a similar statute satisfies constitutional due process when there is “proof of serious difficulty in controlling behavior”
- holding that proof of “serious difficulty in controlling behavior” is a necessity for commitment
- noting that “our cases suggest that civil commitment of dangerous sexual offenders will normally involve individuals who find it particularly difficult to control their behavior”
Citator
UpLaw has not yet analyzed Kansas v. Crane. The absence of a flag is not a finding that it is good law.
- Cited by
- 751 opinions
Headnotes
- Constitutional Law — Substantive Due Process The Constitution does not require a finding of total or complete lack of control before a dangerous sexual offender may be civilly committed; because the Kansas Act requires a mental abnormality or personality disorder that makes it "difficult, if not impossible" for the person to control his dangerous behavior, the requisite lack of control need not be absolute. An absolutist approach is unworkable and would risk barring commitment of highly dangerous persons suffering from severe mental abnormalities. 534 U.S. at 411–413 (citing Kansas v. Hendricks, 521 U.S. 346, 358 (1997))
- Constitutional Law — Substantive Due Process The Constitution does not permit civil commitment of the type of dangerous sexual offender considered in Hendricks without any lack-of-control determination; a distinction must be maintained between such an offender and other dangerous persons more properly dealt with exclusively through criminal proceedings, lest civil commitment become a mechanism for retribution or general deterrence. 534 U.S. at 413 (citing Kansas v. Hendricks, 521 U.S. 346, 360, 372–373 (1997))
- Constitutional Law — Civil Commitment — Standard of Proof In cases where lack of control is at issue, inability to control behavior need not be demonstrable with mathematical precision; it is enough that there be proof of serious difficulty in controlling behavior, which — viewed in light of the nature of the psychiatric diagnosis and the severity of the mental abnormality itself — must suffice 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. 534 U.S. at 413
- Constitutional Law — Civil Commitment — Bright-Line Rules The Constitution's safeguards of human liberty in the area of mental illness and the law are not always best enforced through precise bright-line rules; because States retain considerable leeway in defining the mental abnormalities and personality disorders that make an individual eligible for commitment, and because psychiatry is an ever-advancing science whose distinctions do not seek to mirror those of the law, courts proceed deliberately and contextually, elaborating generally stated constitutional standards and objectives as specific circumstances require. 534 U.S. at 413
- Constitutional Law — Civil Commitment — Volitional, Emotional, and Cognitive Impairments When considering civil commitment, the Court has not ordinarily distinguished for constitutional purposes among volitional, emotional, and cognitive impairments; the fact that Hendricks limited its discussion to volitional disabilities reflects only that the case involved pedophilia, and the Court has no occasion to decide whether confinement based solely on an emotional abnormality would be constitutional. 534 U.S. at 414–415
KANSAS v. CRANE,534 U.S. 407(2002)
122 S.Ct. 867
KANSAS, PETITIONERv. MICHAEL T. CRANE
CERTIORARI TO THE SUPREME COURT OF KANSAS
No. 00-957.
Argued October 30, 2001
Decided January 22, 2002
John C. Donham argued the cause and filed a brief for respondent.fn*Page 409
I
InHendricks, this Court upheld the Kansas Sexually Violent Predator Act, Kan. Stat. Ann. §59-29a01et seq. (1994), against constitutional challenge.521 U.S., at 371. In doing so, the Court characterized the confinement at issue as civil, not criminal, confinement.Id., at 369. And it held that the statutory criterion for confinement embodied in the statute's words "mental abnormality or personality disorder" satisfied " `substantive' due process requirements."Id., at 356, 360.
In reaching its conclusion, the Court's opinion pointed out that "States have in certain narrow circumstances provided for the forcible civil detainment of people who are unable to control their behavior and who thereby pose a danger to the public health and safety."Id., at 357. It said that "[w]e have consistently upheld such involuntary commitment statutes" when (1) "the confinement takes place pursuant to proper procedures and evidentiary standards," (2) there is a finding of "dangerousness either to one's self or to others," and (3) proof of dangerousness is "coupled . . . with the proof of some additional factor, such as a `mental illness' or `mentalPage 410abnormality.'"Id., at 357-358. It noted that the Kansas "Act unambiguously requires a finding of dangerousness either to one's self or to others,"id., at 357, and then "links that finding to the existence of a `mental abnormality' or `personality disorder' that makes it difficult, if not impossible, for the person to control his dangerous behavior,"id., at 358 (citing Kan. Stat. Ann. §59-29a02(b) (1994)). And the Court ultimately determined that the statute's "requirement of a `mental abnormality' or `personality disorder' is consistent with the requirements of . . . other statutes that we have upheld in that it narrows the class of persons eligible for confinement to those who are unable to control their dangerousness."521 U.S., at 358.
The Court went on to respond to Hendricks' claim that earlier cases had required a finding, not of "mental abnormality" or "personality disorder," but of "mental illness."Id., at 358-359. In doing so, the Court pointed out that we "have traditionally left to legislators the task of defining [such] terms."Id., at 359. It then held that, to "the extent that the civil commitment statutes we have considered set forth criteria relating to an individual's inability to control his dangerousness, the Kansas Act sets forth comparable criteria."Id., at 360. It added that Hendricks' own condition "doubtless satisfies those criteria," for (1) he suffers from pedophilia, (2) "the psychiatric profession itself classifies" that condition "as a serious mental disorder," and (3) Hendricks conceded that he cannot "`control the urge'" to molest children. And it concluded that this "admitted lack of volitional control, coupled with a prediction of future dangerousness, adequately distinguishes Hendricks from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings."Ibid.
II
In the present case the State of Kansas asks us to review the Kansas Supreme Court's application ofHendricks. The State here seeks the civil commitment of MichaelPage 411Crane, a previously convicted sexual offender who, according to at least one of the State's psychiatric witnesses, suffers from both exhibitionism and antisocial personality disorder.In re Crane,269 Kan. 578,580-581,7 P.3d 285,287(2000); cf. also American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 569 (rev. 4th ed. 2000) (DSM-IV) (detailing exhibitionism), 701-706 (detailing antisocial personality disorder). After a jury trial, the Kansas District Court ordered Crane's civil commitment.269 Kan., at 579-584,7 P.3d, at 286-288. But the Kansas Supreme Court reversed.Id., at 586,7 P.3d, at 290. In that court's view, the Federal Constitution as interpreted inHendricksinsists upon "a finding that the defendant cannot control his dangerous behavior" — even if (as provided by Kansas law) problems of "emotional capacity" and not "volitional capacity" prove the "source of bad behavior" warranting commitment.269 Kan., at 586,7 P.3d, at 290; see also Kan. Stat. Ann. §59-29a02(b) (2000 Cum. Supp.) (defining "[m]ental abnormality" as a condition that affects an individual's emotionalorvolitional capacity). And the trial court had made no such finding.
Kansas now argues that the Kansas Supreme Court wrongly readHendricksas requiring the Statealwaysto prove that a dangerous individual iscompletelyunable to control his behavior. That reading, says Kansas, is far too rigid.
III
We agree with Kansas insofar as it argues thatHendricksset forth no requirement oftotalorcompletelack of control.Hendricksreferred to the Kansas Act as requiring a "mental abnormality" or "personality disorder" that makes it "difficult, if not impossible, for the [dangerous] person to control his dangerous behavior."521 U.S., at 358(emphasis added). The word "difficult" indicates that the lack of control to which this Court referred was not absolute. Indeed, as differentamicion opposite sides of this case agree, an absolutist approach is unworkable. Brief for Association for thePage 412Treatment of Sexual Abusers asAmicus Curiae3; cf. Brief for American Psychiatric Association et al. asAmici Curiae10; cf. also American Psychiatric Association, Statement on the Insanity Defense 11 (1982), reprinted in G. Melton, J. Petrila, N. Poythress, C. Slobogin, Psychological Evaluations for the Courts 200 (2d ed. 1997) ("`The line between an irresistible impulse and an impulse not resisted is probably no sharper than that between twilight and dusk'"). Moreover, most severely ill people — even those commonly termed "psychopaths" — retain some ability to control their behavior. See Morse, Culpability and Control, 142 U. Pa. L. Rev. 1587, 1634-1635 (1994); cf. Winick, Sex Offender Law in the 1990s: A Therapeutic Jurisprudence Analysis, 4 Psychol. Pub. Pol'y L. 505, 520-525 (1998). Insistence upon absolute lack of control would risk barring the civil commitment of highly dangerous persons suffering severe mental abnormalities.
We do not agree with the State, however, insofar as it seeks to claim that the Constitution permits commitment of the type of dangerous sexual offender considered inHendrickswithoutanylack-of-control determination. See Brief for Petitioner 17; Tr. of Oral Arg. 22, 30-31.Hendricksunderscored the constitutional importance of distinguishing a dangerous sexual offender subject to civil commitment "from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings."521 U.S., at 360. That distinction is necessary lest "civil commitment" become a "mechanism for retribution or general deterrence" — functions properly those of criminal law, not civil commitment.Id., at 372-373 (Kennedy, J., concurring); cf. also Moran, The Epidemiology of antisocial personality disorder, 34 Social Psychiatry Psychiatric Epidemiology 231, 234 (1999) (noting that 40%-60% of the male prison population is diagnosable with Antisocial Personality Disorder). The presence of what the "psychiatric profession itself classifie[d] . . . as a serious mental disorder" helped to make that distinction inHendricks. And a critical distinguishing feature of that "serious . . . disorder" therePage 413consisted of a special and serious lack of ability to control behavior.
In recognizing that fact, we did not give to the phrase "lack of control" a particularly narrow or technical meaning. And we recognize that in cases where lack of control is at issue, "inability to control behavior" will not be demonstrable with mathematical precision. It is enough to say that there must be proof of serious difficulty in controlling behavior. And this, when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be 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.521 U.S., at 357-358; see alsoFouchav.Louisiana,504 U.S. 71,82-83(1992) (rejecting an approach to civil commitment that would permit the indefinite confinement "of any convicted criminal" after completion of a prison term).
We recognize thatHendricksas so read provides a less precise constitutional standard than would those more definite rules for which the parties have argued. But the Constitution's safeguards of human liberty in the area of mental illness and the law are not always best enforced through precise bright-line rules. For one thing, the States retain considerable leeway in defining the mental abnormalities and personality disorders that make an individual eligible for commitment.Hendricks,521 U.S., at 359;id., at 374-375 (Breyer, J., dissenting). For another, the science of psychiatry, which informs but does not control ultimate legal determinations, is an ever-advancing science, whose distinctions do not seek precisely to mirror those of the law. Seeid., at 359. See also,e.g., Akev.Oklahoma,470 U.S. 68,81(1985) (psychiatry not "an exact science"); DSM-IV xxx ("concept of mental disorder . . . lacks a consistent operational definition");id., at xxxii-xxxiii (noting the "imperfect fit between the questions of ultimate concern to the law andPage 414the information contained in [the DSM's] clinical diagnosis"). Consequently, we have sought to provide constitutional guidance in this area by proceeding deliberately and contextually, elaborating generally stated constitutional standards and objectives as specific circumstances require.Hendricksembodied that approach.
IV
The State also questions how often a volitional problem lies at the heart of a dangerous sexual offender's serious mental abnormality or disorder. It points out that the Kansas Supreme Court characterized its state statute as permitting commitment of dangerous sexual offenders who (1) suffered from a mental abnormality properly characterized by an "emotional" impairment and (2) suffered no "volitional" impairment.269 Kan., at 583,7 P.3d, at 289. It adds that, in the Kansas court's view,Hendricksabsolutely forbids the commitment of any such person.269 Kan., at 585-586,7 P.3d, at 290. And the State argues that it was wrong to readHendricksin this way. Brief for Petitioner 11; Tr. of Oral Arg. 5.
We agree thatHendrickslimited its discussion to volitional disabilities. And that fact is not surprising. The case involved an individual suffering from pedophilia — a mental abnormality that critically involves what a lay person might describe as a lack of control. DSM-IV 571-572 (listing as a diagnostic criterion for pedophilia that an individual have acted on, or been affected by, "sexual urges" toward children). Hendricks himself stated that he could not "`control the urge'" to molest children.521 U.S., at 360. In addition, our cases suggest that civil commitment of dangerous sexual offenders will normally involve individuals who find it particularly difficult to control their behavior — in the general sense described above. Cf.Selingv.Young,531 U.S. 250,256(2001); cf. also Abel Rouleau, Male Sex Offenders, in Handbook of Outpatient Treatment of Adults: Nonpsychotic Mental Disorders 271 (M. Thase,Page 415B. Edelstein, M. Hersen eds. 1990) (sex offenders' "compulsive, repetitive, driven behavior . . . appears to fit the criteria of an emotional or psychiatric illness"). And it is often appropriate to say of such individuals, in ordinary English, that they are "unable to control their dangerousness."Hendricks,supra, at 358.
Regardless,Hendricksmust be read in context. The Court did not draw a clear distinction between the purely "emotional" sexually related mental abnormality and the "volitional." Here, as in other areas of psychiatry, there may be "considerable overlap between a . . . defective understanding or appreciation and . . . [an] ability to control . . . behavior." American Psychiatric Association Statement on the Insanity Defense, 140 Am. J. Psychiatry 681, 685 (1983) (discussing "psychotic" individuals). Nor, when considering civil commitment, have we ordinarily distinguished for constitutional purposes among volitional, emotional, and cognitive impairments. See,e.g.,Jonesv.United States,463 U.S. 354(1983);Addingtonv.Texas,441 U.S. 418(1979). The Court inHendrickshad no occasion to consider whether confinement based solely on "emotional" abnormality would be constitutional, and we likewise have no occasion to do so in the present case.
* * *
For these reasons, the judgment of the Kansas Supreme Court is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
I
Respondent was convicted of lewd and lascivious behavior and pleaded guilty to aggravated sexual battery for two incidents that took place on the same day in 1993. In the first, respondent exposed himself to a tanning salon attendant. In the second, 30 minutes later, respondent entered a video store, waited until he was the only customer present, and then exposed himself to the clerk. Not stopping there, he grabbed the clerk by the neck, demanded she perform oral sex on him, and threatened to rape her, before running out of the store. Following respondent's plea to aggravated sexual battery, the State filed a petition in State District Court to have respondent evaluated and adjudicated a sexual predator under the SVPA. That Act permits the civil detention of a person convicted of any of several enumerated sexual offenses, if it is proven 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," either of "which makes the person likely to engage in repeat acts of sexual violence." Kan. Stat. Ann. §§59-29a02(a), (b) (2000 Cum. Supp.).
Several psychologists examined respondent and determined he suffers from exhibitionism and antisocial personality disorder. Though exhibitionism alone would not support classification as a sexual predator, a psychologist concluded that the two in combination did place respondent's conditionPage 417within the range of disorders covered by the SVPA, "cit[ing] the increasing frequency of incidents involving [respondent], increasing intensity of the incidents, [respondent's] increasing disregard for the rights of others, and his increasing daring and aggressiveness."In re Crane,269 Kan. 578,579,7 P.3d 285,287(2000). Another psychologist testified that respondent's behavior was marked by "impulsivity or failure to plan ahead," indicating his unlawfulness "was a combination of willful and uncontrollable behavior,"id., at 584-585,7 P.3d, at 290. The State's experts agreed, however, that "`[r]espondent's mental disorder does not impair his volitional control to the degree he cannot control his dangerous behavior.'"Id., at 581,7 P.3d, at 288.
Respondent moved for summary judgment, arguing that for his detention to comport with substantive due process the State was required to prove not merely what the statute requires — that by reason of his mental disorder he is "likely to engage in repeat acts of sexual violence" — but also that he is unable to control his violent behavior. The trial court denied this motion, and instructed the jury pursuant to the terms of the statute.Id., at 581,7 P.3d, at 287-288. The jury found, beyond a reasonable doubt, that respondent was a sexual predator as defined by the SVPA. The Kansas Supreme Court reversed, holding the SVPA unconstitutional as applied to someone, like respondent, who has only an emotional or personality disorder within the meaning of the Act, rather than a volitional impairment. For such a person, it held, the State must show not merely a likelihood that the defendant would engage in repeat acts of sexual violence, but also an inability to control violent behavior. It based this holding solely on our decision inKansasv.Hendricks,521 U.S. 346(1997).
II
Hendricksalso involved the SVPA, and, as in this case, the Kansas Supreme Court had found that the SVPA swept too broadly. On the basis of considerable evidence showingPage 418that Hendricks suffered from pedophilia, the jury had found, beyond a reasonable doubt, that Hendricks met the statutory standard for commitment. Seeid., at 355;In re Hendricks,259 Kan. 246,247,912 P.2d 129,130(1996). This standard (to repeat) was that he suffered from a "mental abnormality" — a disorder affecting his "emotional or volitional capacity which predisposes [him] to commit sexually violent offenses" — or a "personality disorder," either of which "makes [him] likely to engage in repeat acts of sexual violence." Kan. Stat. Ann. §§59-29a02(a), (b) (2000 Cum. Supp.). The trial court, after determining as a matter of state law that pedophilia was a "mental abnormality" within the meaning of the Act, ordered Hendricks committed. See521 U.S., at 355-356. The Kansas Supreme Court held the jury finding to be constitutionally inadequate. "Absent . . . a finding [of mental illness]," it said, "the Act does not satisfy . . . constitutional standard[s],"259 Kan., at 261,912 P.2d, at 138. (Mental illness, as it had been defined by Kansas law, required a showing that the detainee "[i]s suffering from a severe mental disorder"; "lacks capacity to make an informed decision concerning treatment"; and "is likely to cause harm to self or others." Kan. Stat. Ann. §59-2902(h) (1994).) We granted the State of Kansas's petition for certiorari.
The first words of our opinion dealing with the merits of the case were as follows: "Kansas argues that the Act's definition of `mental abnormality' satisfies `substantive' due process requirements. We agree."Hendricks,521 U.S., at 356. And thereasonit found substantive due process satisfied was clearly stated:
"The Kansas Act is plainly of a kind with these other civil commitment statutes [that we have approved]: It requires a finding of future dangerousness [viz., that the person committed is "likely to engage in repeat acts of sexual violence"], and then links that finding to the existence of a `mental abnormality' or `personalityPage 419disorder'that makes it difficult, if not impossible,for the person to control his dangerous behavior. Kan. Stat. Ann. §59-29a02(b) (1994)."Id., at 358 (emphasis added).
It is the italicized language in the foregoing excerpt that today's majority relies upon as establishing the requirement of a separatefindingof inability to control behavior.Ante, at 4.
That is simply not a permissible reading of the passage, for several reasons. First, because the authority cited for the statement — in the immediately following reference to the Kansas Statutes Annotated — is the section of the SVPA that defines "mental abnormality,"which contains no requirement of inability to control.fn*What the opinion was obviously saying was that the SVPA's required finding of acausal connectionbetween the likelihood of repeat acts of sexual violence and the existence of a "mental abnormality" or "personality disorder"necessarilyestablishes "difficulty if not impossibility" in controlling behavior. This is clearly confirmed by the very next sentence of the opinion, which reads as follows:
"The precommitment requirement of a `mental abnormality' or `personality disorder' is consistent with the requirements of . . . other statutes that we have upheld in that it narrows the class of persons eligible for confinement to those who are unable to control their dangerousness."521 U.S., at 358.
It could not be clearer that, in the Court's estimation, the very existence of a mental abnormality or personality disorderPage 420that causesa likelihood of repeat sexual violence in itselfestablishesthe requisite "difficulty if not impossibility" of control. Moreover, the passage in question cannot possibly be read as today's majority would read it because nowhere did the jury verdict of commitment that we reinstated inHendrickscontain a separate finding of "difficulty, if not impossibility, to control behavior." That finding must (as I have said) have been embraced within the finding of mental abnormalitycausingfuture dangerousness. And finally, the notion that the Constitution requires in every case a finding of "difficulty if not impossibility" of control does not fit comfortably with the broader holding ofHendricks, which was that "we have never required state legislatures to adopt any particular nomenclature in drafting civil commitment statutes. Rather, we have traditionally left to legislators the task of defining terms of a medical nature that have legal significance."Id., at 359.
The Court relies upon the fact that "Hendricksunderscored the constitutional importance of distinguishing a dangerous sexual offender subject to civil commitment `from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings.'"Ante, at 4-5 (quoting521 U.S., at 360). But the SVPA as written — without benefit of a supplemental control finding — already achieves that objective. It conditions civil commitment not upon a mere finding that the sex offender is likely to reoffend, but only upon the additional finding (beyond a reasonable doubt) that thecauseof the likelihood of recidivism is a "mental abnormality or personality disorder." Kan. Stat. Ann. §59-29a02(a) (2000 Cum. Supp.). Ordinary recidivistschooseto reoffend and are therefore amenable to deterrence through the criminal law; those subject to civil commitment under the SVPA, because their mental illness is an affliction and not a choice, are unlikely to be deterred. We specifically pointed this out inHendricks. "Those persons committed under the Act," we said,Page 421"are, by definition, suffering from a `mental abnormality' or a `personality disorder' that prevents them from exercising adequate control over their behavior. Such persons are therefore unlikely to be deterred by the threat of confinement."521 U.S., at 362-363.
III
Not content with holding that the SVPA cannot be applied as written because it does not require a separate "lack-of-control determination,"ante, at 412, the Court also reopens a question closed byHendricks:whether the SVPA also cannot be applied as written because it allows for the commitment of people who have mental illnesses other than volitional impairments. "Hendricks," the Court says, "had no occasion to consider" this question.Ante, at 415.
But how could the Court possibly have avoided it? The jury whose commitment we affirmed inHendrickshad not been asked to find a volitional impairment, but had been charged in the language of the statute, which quite clearly covers nonvolitional impairments. And the fact that it did so had not escaped our attention. To the contrary, ourHendricksopinion explicitly and repeatedly recognized that the SVPA reaches individuals with personality disorders,521 U.S., at 352,353,357,358, and quoted the Act's definition of mental abnormality (§ 59-29a02(b)), which makes plain that it embraces both emotional and volitional impairments,id., at 352. It is true that we repeatedly referred to Hendricks's "volitional" problems — because that was evidently the sort of mental abnormality that he had. But we nowhere accorded any legal significance to that fact — as we could not have done, since it was not a fact that the jury had been asked to determine. We held, without any qualification, "that the Kansas Sexually Violent Predator Act comports with [substantive] due process requirements,"id., at 371, because its "precommitment requirement of a `mental abnormality' or `personality disorder' is consistent with the requirements of . . . other statutes that we have upheld inPage 422that it narrows the class of persons eligible for confinement to those who are unable to control their dangerousness,"id., at 358.
The Court appears to argue that, becauseHendricksinvolved a defendant who indeedhada volitional impairment (even though we made nothing of that fact), its narrowest holding covers onlythatapplication of the SVPA, and our statement that the SVPA in its entirety was constitutional can be ignored. Seeante, at 414-415. This cannot be correct. The narrowest holding ofHendricksaffirmed the constitutionality of commitment on the basis of the jury charge given in that case (to wit, the language of the SVPA); and since that charge did not require a finding of volitional impairment, neither does the Constitution.
I cannot resist observing that the distinctive status of volitional impairment which the Court manglesHendricksto preserve would not even be worth preserving by more legitimate means. There is good reason why, as the Court accurately says, "when considering civil commitment . . . we [have not] ordinarily distinguished for constitutional purposes among volitional, emotional, and cognitive impairments,"ante, at 7. We have not done so because it makes no sense. It is obvious that a person may be able to exercise volition and yet be unfit to turn loose upon society. The man who has a will of steel, but who delusionally believes that every woman he meets is inviting crude sexual advances, is surely a dangerous sexual predator.
IV
I not only disagree with the Court's gutting of our holding inHendricks;I also doubt the desirability, and indeed even the coherence, of the new constitutional test which (on the basis of no analysis except a misreading ofHendricks) it substitutes. Under our holding inHendricks, a jury in an SVPA commitment case would be required to find, beyond a reasonable doubt, (1) that the person previouslyPage 423convicted of one of the enumerated sexual offenses is suffering from a mental abnormality or personality disorder, and (2) that this condition renders him likely to commit future acts of sexual violence. Both of these findings are coherent, and (with the assistance of expert testimony) well within the capacity of a normal jury. Today's opinion says that the Constitution requires the addition of a third finding: (3) that the subject suffers from an inability to control behavior — not utter inability,ante, at 4, and not even inability in a particular constant degree, but rather inability in a degree that will vary "in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself,"ante, at 5.
This formulation of the new requirement certainly displays an elegant subtlety of mind. Unfortunately, it gives trial courts, in future cases under the many commitment statutes similar to Kansas's SVPA,not a clueas to how they are supposed to charge the jury! Indeed, it does not even provide a clue to the trial court, on remand,in this very case. What is the judge to ask the jury to find? It is fine and good to talk about the desirability of our "proceeding deliberately and contextually, elaborating generally stated constitutional standards and objectives as specific circumstances require,"ante, at 6, but one would think that this plan would at least produce the "elaboration" of what the jury charge should be in the "specific circumstances" of the present case. "[P]roceeding deliberately" is not synonymous with not proceeding at all.
I suspect that the reason the Court avoids any elaboration is that elaboration which passes the laugh test is impossible. Howisone to frame for a jury the degree of "inability to control" which, in the particular case, "the nature of the psychiatric diagnosis, and the severity of the mental abnormality" require? Will it be a percentage ("Ladies and gentlemen of the jury, you may commit Mr. Crane under the SVPA only if you find, beyond a reasonable doubt, that hePage 424is 42% unable to control his penchant for sexual violence")? Or a frequency ratio ("Ladies and gentlemen of the jury, you may commit Mr. Crane under the SVPA only if you find, beyond a reasonable doubt, that he is unable to control his penchant for sexual violence 3 times out of 10")? Or merely an adverb ("Ladies and gentlemen of the jury, you may commit Mr. Crane under the SVPA only if you find, beyond a reasonable doubt, that he is appreciably — or moderately, or substantially, or almost totally — unable to control his penchant for sexual violence")? None of these seems to me satisfactory.
But if it is indeed possible to "elaborate" upon the Court's novel test, surely the Court has an obligation to do so in the "specific circumstances" of the present case, so that the trial court will know what is expected of it on remand. It is irresponsible to leave the law in such a state of utter indeterminacy.
* * *
Today's holding would make bad law in any circumstances. In the circumstances under which it is pronounced, however, it both distorts our law and degrades our authority. The State of Kansas, unable to apply its legislature's sexual predator legislation as written because of the Kansas Supreme Court's erroneous view of the Federal Constitution, sought and received certiorari inHendricks, and achieved a reversal, in an opinion holding that "the Kansas Sexually Violent Predator Act comports with [substantive] due process requirements,"521 U.S., at 371. The Kansas Supreme Court still did not like the law and prevented its operation, on substantive due process grounds, once again. The State of Kansas again sought certiorari, asking nothing more than reaffirmation of our 5-year-old opinion — only to be told that what we said then we now unsay. There is an obvious lesson here for state supreme courts that do not agree with our jurisprudence: ignoring it is worth a try.Page 425
A jury determined beyond a reasonable doubt that respondent suffers from antisocial personality disorder combined with exhibitionism, and that this is either a mental abnormality or a personality disorder making it likely he will commit repeat acts of sexual violence. That is all the SVPA requires, and all the Constitution demands. Since we have already held precisely that in another case (which, by a remarkable feat of jurisprudential jujitsu the Court relies upon as the only authority for its decision), I would reverse the judgment below.Page 426
- Briefs of amici curiae urging reversal were filed for the State of Illinois et al. by James E. Ryan, Attorney General of Illinois, Joel D. Bertocchi, Solicitor General, William L. Browers, Lisa Anne Hoffman, and Margaret M. O'Connell, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Janet Napolitano of Arizona, Bill Lockyer of California, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Thomas J. Miller of Iowa, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Mike Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Don Stenberg of Nebraska, John J. Farmer, Jr., of New Jersey, Wayne Stenehjem of North Dakota, W. A. Drew Edmondson of Oklahoma, D. Michael Fisher of Pennsylvania, Charles M. Condon of South Carolina, Christine O. Gregoire of Washington, and James E. Doyle of Wisconsin; for the Association for the Treatment of Sexual Abusers by John J. Sullivan and Michael E. Lackey, Jr.; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp.
Briefs of amici curiae urging affirmance were filed for the American Psychiatric Association et al. by Richard G. Taranto; and for the National Association of Criminal Defense Lawyers et al. by Jody Manier Kris, Lisa Kemler, and Steven R. Shapiro. ↩ - As quoted earlier in theHendricksopinion, see521 U.S., at 352, § 59-29a02(b) defines "mental abnormality" as a "congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others." ↩