Amicus Curiae Brief — Kansas v. Hendricks

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Nos, 95-1649, 95-9075

In THE

Supreme Court of the United States

OCTOBER TERM, 1996

STATE OF KANSAS,

. Petitioner,

LEROY HENDRICKS,

Respondent.

LeRoY HENDRICKS,

e Cross-Petitioner.

STATE OF KANSAS,

Cross-Respondent.

On Writs of Certiorari to the

Supreme Court of Kansas

BRIEF FOR THE

AMERICAN PSYCHIATRIC ASSOCIATION

ts AS AMICUS CURIAE

IN SUPPORT OF LEROY HENDRICKS

RICHARD G. TARANTO

(Counsel of Record)

FARR & TARANTO

2445 M Street, NW

Washington. DC 20037

(202) 775-0184 _

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TABLE OF CONTENTS

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INTEREST OF AMICUS CURIAE .........0020..00..-..0...00200

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SUMMARY OF ARGUMENT ...W...2.......-..-c.-cceeceeseseeeeeees

ARGUMENT

THE CONFINEMENT OF HENDRICKS UNDER

THE KANSAS STATUTE WAS UNCONSTITU-

TIONAL BECAUSE IT LACKED AN ADE-

QUATE NON-CRIMINAL BASIS ...........................-.

A. The State’s Confinement Scheme Has a Strongly

EEE DAA AIES

B. The State’s Confinement Regime Does Not Fall

Into One of the Narrow Categories of Permitted

RT PIR eA

C. The State’s Asserted Parens Patriae Interest in

Treatment Is Not Well Grounded and So Does

Not Alter the Character of the Confinement......

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Page

17

20

30

ii

TABLE OF AUTHORITIES

Cases Page

Addington v. Texas, 441 U.S. 418 (1979) ....... 1, 18, 19, 21

Allen v. Illinois, 478 U.S. 364 (1986) .......0........... passim

Bell v. Wolfish, 441 U.S. 520 (1979) ......................... ll

California Dep’t of Corrections v. Morales, 115

& 2: — Ree ee ee 10

Carlson v. Landon, 342 U.S. 524 (1952) -..00000000...... 17

Collins v. Youngblood, 497 U.S. 37 (1990) -............. 10

County of Riverside v. McLaughlin, 500 U.S. 44

EISEITIED sehinvesansishintscpnsmenentaditinsdeaittldedictalindlisaniilih tale ekeat ae ad 17

Department of Revenue of Montana v. Kurth

Ranch, 114 8S. Ct. 1987 (1994) .............................. 10, 12

Foucha v. Louisiana, 504 U.S. 71 (1992) —............- passim

Heller v. Doe by Doe, 113 S. Ct. 2637 (1993) ........... 18, 26

Humphrey v. Cady, 405 U.S. 504 (1972) ................ 9

In re Young, 112 Wash. 2d 1, 857 P.2d 989 (1993) .. 6

Jackson v. Indiana, 406 U.S. 715 (1972) ................. 27

Jacobson v. Massachusetts, 197 U.S. 11 (1905)...... 18

Jaffee v. Redmond, 116 S. Ct. 1923 (1996) ............... 1

Kennedy v. Mendoza-Martinez, 372 U.S. 144

EEE niicshincieisinstieainiesicinaplinaistaiaaiamiaiamaiindabiatatiieiiiaia Aeckniicesiies 11

Ludecke v. Watkins, 335 U.S. 160 (1948) ............... 17

Miller v. Florida, 482 U.S. 423 (1987) .................... 10

Minnesota v. Probate Court, 309 U.S. 270 (1940).. 22

Montana v. Egelhoff, 116 S. Ct. 2013 (1996) .......... 14, 20

Moyer v. Peabody, 212 U.S. 78 (1909) ..................... 17

Powell v. Texas, 392 U.S. 514 (1968) -.......--...... 10, 26, 30

Riggins v. Nevada, 504 U.S. 127 (1992) ................... 1

Robinson v. California, 370 U.S. 660 (1962) .......... 10

Schall v. Martin, 467 U.S. 253 (1984) —....0000000000.... 11,17

Schiro v. Farley, 114 S. Ct. 783 (1994) .......00000000.. 10

Shaughnessy v. United States ex rel. Mezei, 345

ts So 0 Pe Se Nee ah 17

Specht v. Patterson, 386 U.S. 605 (1967) ................ 1.4, 22

United States v. Brown, 381 U.S. 437 (1965)........ 14

United States v. Halper, 490 U.S. 485 (1989)........ 12

United States v. One Assortment of 89 Firearms,

GED With. SEG CHG iccvisincncchiestsisietntiintineeiis 12

United States v. Salerno, 481 U.S. 739 (1987) ....... ‘8,17

United States v. Ursery, 116 S. Ct. 2135 (1996)... 12

ee

iii

TABLE OF AUTHORITIES—Continued

Page

United States v. Ward, 448 U.S. 242 (1980) ......... 12

Vitek v. Jones, 445 U.S. 480 (1980) .......... i ciaieiiies 9

Washington v. Harper, 494 U.S. 210 (1990) ........ 1

Young v. Weston, 898 F. Supp. 744 (W.D. Wash.

REESE NS A LS ee ae 6

Zinermon v. Burch, 494 U.S. 113 (1990). eee 26

Statutes

i i Salad aiid 25

Een 14

SS eee 13

8 EE ce ee 15

Fe oe ee 2, 30

Ee 2,19

Ce ane es 2, 3, 27

TT 3

ET eee 3

ESET ESE ne eae 3

En 3, 28

TESS aos 4, 28

§ 59-29209 | So Ae NR a aE 3

EES eee em — +

ETS eS

I i 25

§ 59-2902 (h) ..................... lili ad - 25

Wash. Rev. Code Ann. § 9A.12.010 niliiilieniiiai 13

Congressional Material

S. Rep. 98-225, 98th Cong., Ist Sess. (1983) 26

Other Materials

ABA, Criminal Justice Mental Health Standards

(1984) _.... << Ce 22

APA, Diagnostic and Statistical Manual of Mental

Disorders (4th ed. 1994) oo 22, 23, 27

APA, Guidelines for Legislation on the Psychiatric

Hospitalization of Adults, 140 Amer. J. Psychia-

try 672 (1988) .................... EL A 25

iv

TABLE OF AUTHORITIES—Continued

APA Statement on the Insanity Defense, 140

Amer. J. Psychiatry 681 (1983) —................... 26

G. Abel & C. Osborn, Pedophilia, in 2 G. Gabbard

ed., Treatments of Psychiatric Disorders (2d

i FRM Ee Was ee Bd AE 29

Allen, “Criminal Justice, Legal Values and the

Rehabilitative Ideal,” in Crime, Law and Society

(A. Goldstein and J. Goldstein eds. 1971) ........ 27

W. Blackstone, Commentaries ..........................--.. 14, 25, 26

Bradford, Pharmacological Treatment of the Para-

philias, in Review of Psychiatry, vol. 14 (1995) .. 29

S. Brakel, et al., The Mentally Disabled and the

ae passim

Furby, Weinrott & Blackshaw, Sex Offender Re-

cidivism: A Review, 105 Psychological Bull. 3

eS Aas 8 EE Se ae 19, 20

General Accounting Office Report, Ser Offender

Treatment: Research Results Inconclusive About

What Works to Reduce Recidivism (June 1996) .. 29

Grisso & Appelbaum, Is It Unethical to Offer Pre-

dictions of Future Violence? 16 L. & Human

kA EE eee 1

Group for the Advancement of Psychiatry, Psy-

chiatry and Sex Psychopath Legislation: The

PF RR ee

International Classification of Diseases .__..........

H. Kaplan & B. Sadock, eds., Comprehensive Tezt-

book of Psychiatry (6th ed. 1995)... .............

W. Marshall, D. Laws, & H. Barbaree, eds., Hand-

book of Sexual Assault (1992) 0.

Menzies, et al., The Dimensions of Dangerousness

Revisited, 18 L. & Human Behavior 1 (1994)...

Model Penal Code § 4.01(2) (1962) — 000.

J. Monahan & H. Steadman, eds., Violence and

Mental Disorders (1994) 0

M. Moore, Law and Psychiatry (1984) ...................

Morse, Culpability and Control, 142 U. Penn. L.

Rev. 1587 (1994) ........ ce i a

1 M. Perlin, Mental Disability Law (1989) nally

SS &> Fe FS BS BB

v

TABLE OF AUTHORITIES—Continued

Page

Schopp & Sturgis, Serual Predators and Legal

Mental Iliness for Civil Commitment, 13 Behav.

Sy Gt Ci GT ED. cnccecrnnuecsiigmnimamiaatnebatial 24, 26, 27

Stone & Stromberg, A Model State Law on Civil

Commitment of the Mentally Ill, 20 Harv. J.

Se 9 RS ee 25

Swanson, Mental Disorder, Substance Abuse, and

Community Violence: An Epidemiological Ap-

proach, in J. Monahan & H. Steadman, eds.,

Violence and Mental Disorder (1994) . __.... 20

Swanson, Serual Psychopath Statutes: Summary

and Analysis, 51 J. Crim. L., Criminology, &

Police Sci. 215 (1960) —.......... Se nn See 22

INTEREST OF AMICUS CURIAE

The American Psychiatric Association (APA), with

approximately 42,000 members, is the Nation’s leading

organization of physicians specializing in psychiatry. The

APA has participated as amicus curiae in numerous cases

involving mental-health issues in this Court, including

Jaffee v. Redmond, 116 S. Ct. 1923 (1996), Riggins v.

Nevada, 504 U.S. 127 (1992), Foucha v. Louisiana, 504

U.S. 71 (1992), Washington v. Harper, 494 U.S. 210

(1990), Allen v. lilinois, 478 U.S. 364 (1986), and

Addington v. Texas, 441 U.S. 418 (1979). The APA

and its members have a strong interest in ensuring that

medical diagnoses not be improperly invoked to support

involuntary confinement and that psychiatric hospitaliza-

tion be reserved for proper care and treatment of patients.

The APA accordingly has a strong interest in this case.'

STATEMENT

The Kansas Sexually Violent Predator Act provides for

the confinement of “sexually violent predators” who are

not mentally ill under the normal standards justifying

civil commitment. The Kansas Supreme Court, relying

on Foucha v. Louisiana, 504 U.S. 71 (1992), struck

down the statute as a form of preventive detention that

impermissibly sidesteps the limits on criminal punishment

of convicted offenders. Kansas challenges that holding,

relying critically on its asserted interest in treatment.

Leroy Hendricks defends the Kansas Supreme Court's

holding both under Foucha and on the closely related

ground that the statute is essentially criminal and so, as

applied to him, imposes a second punishment in violation

of the ex post facto and double jeopardy clauses.

A. The Kansas Act begins by acknowledging that

it is designed to reach individuals who do not come

within the standards governing normal civil commitment:

“a small but extremely dangerous group of sexually vio-

1A joint letter from the parties consenting to the filing of this

brief has been lodged with the Clerk of this Court. Amicus has no

parent or subsidiary companies.

2

lent predators exist who do not have a mental disease or

defect that renders them appropriate for [civil commit-

ment}.” ~ Unlike “persons appropriate for civil commit-

ment,” the Act continues, “sexually violent predators

generally have antisocial personality features which are

unamenable to existing mental illness treatment modali-

ties.” As a result of the high likelihood of “repeat acts

of predatory sexual violence,” the statute declares, com-

mitment procedures are “inadequate,” “the prognosis for

rehabilitating sexually violent predators in a prison setting

is poor,” “the treatment needs of this population are very

long term,” and appropriate “treatment modalities” are

“very different” from those appropriate in regular civil

commitment. Kan. Stat. Ann. § 59-29a01.

The Act defines “sexually violent predator” to mean

“any person who has been convicted of or charged with

a sexually violent offense and who suffers from a mental

abnormality or personality disorder which makes the per-

son likely to engage in the predatory acts of sexual vio-

lence [if unconfined].” Kan. Stat. Ann. § 59-29a02.* The

qualifying “sexually violent offense[s]” include rape and

various sex offenses involving children. “[PJersonality

disorder” is not defined; “mental abnormality” is defined

to mean “a congenital or acquired [i.e.. any] condition

affecting the emotional or volitional capacity which pre-

disposes the person to commit sexually violent offenses in

* The genera! Kansas civil commitment statute requires that the

individual not only have “a severe mental disorder to the extent

that such person is in need of treatment” and be “likely to cause

harm to self or others,” but also that the individual “!ack[ |] capacity

to make an informed decision concerning treatment.” Pet. App. 19a.

(“Pet. App.” refers to the appendix to the petition for a writ of

certiorari in No. 95-1649.)

3In referring to persons who are charged with but not convicted

of a criminal offense, the statute later makes clear that it means

persons who have been found incompetent to stand trial on the

criminal charges or not guilty by reason of insanity. Kan. Stat.

Ann. § 59-29a03. This case does not involve such a situation—which

raises distinct issues (see note 8, infra) and is not further dis-

cussed here.

3

a degree constituting such person a menace [to others].”

The Act thus requires [1] a sex offense plus [2] a mental

condition that makes the person “likely” to commit fur-

ther sexual offenses. /d.

The Act provides for initiation of confinement proceed-

ings only for convicted criminals nearing release, Kan.

Stat. Ann. § 59-29a03; see note 3, supra. The state offli-

cials with custody, if they think that the person might

meet the “sexually violent predator” standard, are re-

quired to notify the Attorney General, whose “prosecu-

tor’s review committee” is then responsible for determin-

ing whether the standard is met (based in part on an

assessment from a “multidisciplinary team”). Jd. § 59-

29a03. The Attorney General (or local district attoffiey )

may then file a petition in court alleging that the person

is a sexually violent predator. /d. § 59-29a04.

If the court finds probable cause, the respondent/

defendant is confined in a secure facility (which may be

a county jail) for evaluation by a qualified professional.

Id. § 59-29a05. A trial is then held (before a jury if

called for by the defendant, prosecutor, or judge) in which

the prosecutor must prove beyond a reasonable doubt that

the defendant is a sexually violent predator. /d. §§ 59-

29a06, 59-29a07. If the finder of fact finds the standard

met, the defendant is committed to “the custody of the

secretary of social and rehabilitation services [SRS] for

contrel, care and treatment until such time as the person's

mental abnormality or personality disorder has so changed

that the person is safe to be at large.” /d. § 59-29a07.

The SRS secretary must keep such persons segregated

from other civil committees (since June 1995, in a sep-

arate facility); the SRS secretary may, however, arrange

for confinement by the prison authorities, who must

“house| |” and “manage[]” such persons separately from

other offenders. /d.

Once committed, the “predator” must be given “care

and treatment” that “conform to constitutional require-

ments.” /d. § 59-29a09. He must also be furnished an

4

examination of his mental condition, and a court review

of his status, once every year. /d. § 59-29a08. If he seeks

release at this annual review, and the court finds probable

cause to think that the “mental abnormality or personality

disorder has so changed that the person is safe to be at

large and will not engage in acts of sexual violence if

discharged,” he is entitled to a new hearing on continued

predator status. /d. § 59-29a08.

The Act also authorizes petitions for release outside

the annual-review process. If the SRS secretary believes

that the “predator” qualifies for release, he must be

authorized to file a petition, and a full hearing follows.

Id. § 59-29a10. A confined “predator” may file for re-

lease on his own, without SRS authorization; but while

the statute directs that a second such petition should be

dismissed without a hearing if there is no evidence of a

changed condition, it sets no standard for reviewing a

first solo petition. /d. §59-29all. According to the

Kansas Supreme Court, release through this last mecha-

nism is “improbable.” Pet. App. 8a.

B. |. Leroy Hendricks, who is 60 years old, has a

long history of taking “indecent liberties” with children. In

1984, he pled guilty to two counts of that offense and

was sentenced to 5-20 years; the State dropped a third

count and did not seek longer imprisonment under the

State recidivism statute. In 1994, when Hendricks was

about to be released (under parole-like terms), the State

petitioned a court to continue Hendricks’s confinement

under the new Act. Pet. App. la-2a; J.A. 5. After eval-

uations of Hendricks, a trial was held. J.A. 125-361.

As summarized by the Kansas Supreme Court, Hen-

dricks testified

that his history of sexual involvement with children

began with his exposing himself to two girls in 1955,

and that he had spent approximately half the time

since then in prison or in psychiatric institutions. He

explained that when he gets “stressed out,” he is un-

able to control the urge to engage in sexual activity

5

with a child. Hendricks agreed that he is a pedophile

and that he is not cured of the condition

Pet. App. 3a; see J.A. 125-91. (Although Kansas inti-

mates otherwise, Hendricks did not testifv that he would

reoffend if released.) The State’s chief psychologist, who

examined Hendricks, testified that Hendricks was not

mentally ill (J.A. 256) but was a pedophile (J.A. 247);

that pedophilia is a “mental abnormality” under the “cir-

cular” definition meaning a person having a condition

predisposing him to sexually violent offenses (see J.A.

263-64); and that Hendricks was “likely” to repeat his

sexual activity with children if free (J.A. 248). See Pet.

App. 3a-4a, 18a-19a.* The Kansas Supreme Court later

stated that “the State’s own evidence is that Henricks was

being committed even though he does not suffer from

mental illness.” Pet. App. 20a. A psychiatrist called by

Hendricks testified that the research literature showed only

a small drop in reoffense rates from treatment of sexual

offenders and that psychiatrists and psychologists cannot

predict whether an individual is more likely than not to

engage in an act of sexual predation. Pet. App. 4a.

Hendricks was found to be a sexually violent predator

and committed to the custody of SRS, which sent him to

the Larned State Hospital. As of October 1994, the State

had not hired “professionals specifically dedicated to a

treatment program for sexually violent predators.” Pet.

App. 4a. Cf. J.A. 389-455 (habeas proceeding, in Au-

gust 1995, on the treatment then available).

2. On appeal, the Kansas Supreme Court held that the

Act violates the substantive due process command of the

federal Constitution, relying on this Court’s 1992 decision

in Foucha. In its “majority opinion” (Pet. App. 21a),

the Kansas court concluded that the Act’s purportedly

*The State’s psychologist agreed that—just as an alcoholic,

though not “cured,” cannot be predicted to reoffend (because control

is possible)—“simply by giving a diagnosis of pedophilia, you

aren’t saying that a person would re-offend in the future.” J.A.

272.

6

civil confinement must rest on “clear and convincing proof

of mental iliness and dangerousness”: it is not enough to

have “ ‘committed a criminal act’” and have “‘an anti-

social personality that sometimes leads to aggressive con-

duct, a disorder for which there is no effective treatment.’ ”

Pet. App. 122 (quoting Foucha, 504 U.S. at 82). The

Kansas statute does not require (and Hendricks conced-

edly does not have) a “mental illness.” Pet. App. 19a-

20a. The court therefore held the Act invalid.*

In reaching that conclusion, the Kansas court construed

the Kansas legislature’s purposes as follows:

It is clear that the overriding concern of the legisla-

ture is to continue the segregation of sexually violent

offenders from the public. Treatment with the goal

of reintegrating them into society is incidental, at

best. The record reflects that treatment for sexually

violent predators is all but nonexistent.

Pet. App. 15a. In light of the Act’s declaration that the

designated “predators” are not amenable to the treatments

provided through normal civil commitment, the court said,

“the provisions of the Act for treatment appear somewhat

disingenuous.” Jd. at 15a. The court added: “It is clear

that the primary objective of the Act is to continue in-

carceration and not to provide treatment.” Jd. at 16a.

The court also noted “that the legislature has provided

the State with other options” to confine a person like

Hendricks—e.g., maximum sentences; consecutive (as op-

posed to concurrent) sentences; or tripling of sentences

under the recidivism statute. Jd. at 16a.

SUMMARY OF ARGUMENT

Under the governing substantive due process principles

most recently stated in Foucha, confinement under the

Kansas Act must be justified as a criminal sanction, as

5 The Kansas Supreme Court relied in part on a federal district

court decision striking down Washington’s sexual predator statute,

which is similar to the Kansas Act, Young v. Weston, 898 F. Supp.

744 (W.D. Wash. 1995). The Supreme Court of Washington had

earlier upheld the Washington statute. Jn re Young, 122 Wash. 2d

1, 857 P.2d 989 (1993).

7

preventive detention, or as a parens patriae measure to

provide care and treatment. But, given Hendricks’s prior

criminal punishment for his only acts, which pre-date the

Kansas Act, his confinement could not be deemed crimi-

nal without violating the double jeopardy and ex post

facto clauses of the Constitution. Nevertheless, the crimi-

nal character of the Kansas Act is strong, and neither the

highly limited categories of permitted preventive deten-

tion nor the traditional standards for parens patriae com-

mitment of the mentally ill encompass the Kansas Act.

Far from providing an optional alternative to criminal

remedies, the Act improperly creates an essentially in-

definite involuntary extension of criminal incarceration.

The structure of the Kansas Act, including its predica-

tion on a criminal act and its exclusive remedy of secure

confinement, give it a strong criminal cast. So, too, does

the fact that Kansas has not disavowed any interest in

criminal punishment of the conduct targeted by this Act.

The State’s plain interest is in simple involuntary incapaci-

tation of certain convicted criminals. But that interest is

a traditional criminal aim, one that could in fact be served

still more effectively if Kansas wished. It cannot be

deemed non-criminal, when standing alone, without funda-

mentally undermining the tradition of tight limits on pre-

ventive detention in our Nation and allowing an end-run

around the constitutional bars on multiple and retroactive

punishment. This Court’s decision in Allen v. Illinois,

478 U.S. 364 (1986), did not authorize such a breach of

basic principle, because the petitioner was unquestionably

in need of treatment for a psychosis and the State had

disclaimed its punitive interest and otherwise put forward

a facially well-grounded parens patriae interest.

The Kansas Act cannot be upheld as a form of preven-

tive detention under the decisions authorizing limited pre-

trial confinement as an adjunct to imminent criminal

processes or involving special governmental powers in

times of war or other extraordinary contexts. Nor, given

the uncertainties of relevant mental-health predictions of

violence, can the Kansas Act be analogized to a quaran-

tine for a known contagious disease. Validity of the

8

Kansas Act would instead require a general state power

to confine people indefinitely based on predictions that

they would “likely” cause serious harm. Such a power

_ has never been approved by this Court and would

threaten our most basic traditions of liberty.

The Kansas Act, implicitly recognizing those traditions,

tries to wrap itself in the special tradition of civil commit-

ment of the mentally ill, but the State has missed the

essential point behind that tradition. “Mental illness” can

mean different things for different purposes, but for pur-

poses of involuntary confinement under this traditionally

distinctive authority, the critical condition is an impair-

ment that supports a well-grounded parens patriae interest

in the individual’s care and treatment. Whatever the

precise limits on such an interest—whether the individ-

ual’s incompetence is a prerequisite, or whether even a

competent individual may be subject to a parens patriae

state intervention when truly for his or her good—the

requisite parens patriae interest is lacking here.

Hendricks evidently suffers from no incompetence to

care for himself or to make rational decisions; and his

risk of committing another sex offense is precisely that,

a risk. Given the distinctly limited knowledge of avail-

able appropriate treatments and their effectiveness, the

essentially indefinite confinement of persons like Hendricks

cannot fairly be deemed in their interest. The Kansas Act

therefore cannot rest on the parens patriae interest it in-

vokes, but should candidly be assessed as a public-safety

measure—one that would vastly expand the categories

of permitted preventive detention even when criminal

remedies are available to address the targeted problem.

ARGUMENT

THE CONFINEMENT OF HENDRICKS UNDER THE

KANSAS STATUTE WAS UNCONSTITUTIONAL

BECAUSE IT LACKED AN ADEQUATE NON-

CRIMINAL BASIS

“In our society liberty is the norm... .” United States

v. Salerno, 481 U.S. 739, 755 (1987); see Foucha, 504

U.S. at 83. And “[f]reedom from bodily restraint has

9

always been at the core of the liberty protected by the

Due Process Clause from arbitrary governmental action.”

Foucha, 504 U.S. at 80. Thus, commitment under the

Kansas statute involves a “massive curtailment of liberty.”

Humphrey v. Cady, 405 U.S. 504, 509 (1972); Vitek v.

Jones, 445 U.S. 480, 491 (1980). As Justice Kennedy

summarized the interests at stake in his dissent in Foucha,

“incarceration of persons is . . . one of the most feared

instruments of state oppression and . . . freedom from

this restrau.* is essential to the basic definition of liberty in

the Fifth and Fourteenth Amendments.” 504 U.S. at 90.

Given these stakes, the Court in Foucha made clear

that the permissible grounds for stripping someone of the

core freedom to move about are distinctly limited. Jd.

at 80.° Confinement is permissible as a sanction for violat-

ing a valid criminal law proscribing conduct. Jd. Con-

finement has also been narrowly permitted, as a form of

preventive detention, to protect against a danger presented

by the individual—but only in very limited circumstances.

Id. at 81-83. And confinement is permissible to care for

the mentally ill. Jd. at 80.

Unlike Louisiana in Foucha, Kansas here cannot even

begin to defend its regime by characterizing it as a proper

criminal sanction for those like Hendricks. Compare

Foucha, 504 U.S. at 90-102 (Kennedy, J., dissenting)

® State actions that are aimed specifically and directly at depriv-

ing an individual of what is virtually the definition of “liberty”—

freedom from bodily restraint—would seem more immediately in-

trusive than virtually any rule that “merely” proscribes particular

conduct (e.g., use of birth control) but otherwise leaves an individ-

ual free to engage in other activities. Given that even such restric-

tions on conduct are sometimes subject to strict scrutiny, it is hard

to see why a lesser standard should govern constitutional analysis

of state action directed specifically at indefinitely locking up an

individual in a “secure” facility, where he is separated from

family and friends, stripped of normal employment and other life

opportunities, and subjected to the restrictive rules of institutions.

Traditional civil commitment—based on parens patriae interests

and typically short term—readily satisfies strict scrutiny (if that

standard applies), because it serves compelling interests through

narrowly drawn means.

10

(confinement under Louisiana statute, based on criminal

act not already punished, may be valid as criminal meas-

ure); cf. id. at 123-24 & n.17 (Thomas, J., dissenting).

Hendricks has already been criminally punished, under

pre-existing statutes, for the only conduct that triggers

the new confinement regime: certain sex offenses. The

addition of further criminal confinement for that conduct,

based on a statute enacted after the conduct, would vio-

late both the double jeopardy and ex post facto clauses

of the Constitution.”

For the Kansas statute to pass muster, then, it must fit

into either of the two permissible justifications for non-

criminal confinement. The Kansas Act, however, in pro-

viding for indefinite confinement unrelated to criminal

proceedings on a showing of “likelihood” of future of-

fenses, does not come within the narrow categories of

preventive detention approved by this Court. Likewise,

Hendricks’s confinement under the Kansas Act cannot be

justified, under present knowledge, as an exercise of Kan-

sas’s parens patriae power to care for the mentally ill.

7 The only difference between the original offense and the new

“sexually violent predator” standard is a status (a potential for

future acts), not any act. See State Br. in Kansas Supreme Court

at 24 (only element additional to prior sexual act is a “current

mental status”). The Constitution does not permit criminal punish-

ment of status. See Foucha, 504 U.S. at 80; Powell v. Texas, 392

U.S. 514, 532-833 (1968) (plurality); id. at 542-43 (Harlan, J., con-

curring) (“Punishment for a status is particularly obnoxious . . .

because it involves punishment for a mere propensity, a desire to

commit an offense .... This is a situation universally sought to

be avoided in our criminal law... .”); Robinson v. California,

370 U.S. 660 (1962). Thus, even aside from any “lesser included

offense” analysis, the Kansas Act punishes the same offense as the

previously punished offense and does so, in this case, for an offense

that pre-dates the new Act. That result is impermissible under

double jeopardy principles. See Schiro v. Farley, 114 S. Ct. 783,

789 (1994); Department of Revenue of Montana v. Kurth Ranch,

114 S. Ct. 1987, 1941 n.1 (1994); id. at 1952-53 (O'Connor, J.,

dissenting). It is also impermissible under ex post facto princi-

ples. See California Dep’t of Corrections v. Morales, 115 S. Ct. 1597,

1601 (1995) ; Collins v. Youngblood, 497 U.S. 37, 40 (1990) ; Miller

v. Florida, 482 U.S. 423, 480 (1987).

ll

Under substantive due process principles, therefore,

Hendricks’s involuntary civil confinement is invalid."

The same conclusion of invalidity can be reached by

another, though ultimately similar, route. Confinement

under the Kansas Act violates Hendricks’s double-jeopardy

and ex post facto rights if it is criminal in character. See

note 7, supra. This Court has repeatedly insisted on look-

ing beyond labels in determining the criminal or civil

character of a state imposition. Here, the insufficient

grounding of the Act in parens patriae interests or in the

narrow bases of permitted preventive detention render the

Act ultimately criminal under familiar standards.”

§ Statutes that provide for voluntary alternatives to valid criminal

sanctions, as well as those which apply to persons who successfully

(and voluntarily) raise an insanity defense, would require a dif-

ferent constitutional analysis, taking into account the general valid-

ity of openly criminal sanctions in such cases.

*In Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963),

the Court defined the analysis as follows: “Whether the sanction

involves an affirmative disability or restraint, whether it has his-

torically been regarded as punishment, whether it comes into play

only on a finding of scienter, whether its operation will promote the

traditional aims of punishment—retribution and deterrence, whether

the behavior to which it applies is already a crime, whether an

alternative purpose to which it may rationally be connected is

assignable for it, and whether it apears excessive in relation to the

alternative purpose assigned ... .” (footnotes omitted). See

Schall v. Martin, 467 U.S. 258, 264, 269 (1984); Bell v. Wolfish,

441 U.S. 520, 534 (1979). The Kansas Act involves a severe

affirmative restraint (confinement) that historically has been re-

garded as punitive, except under the special conditions identified in

Foucha (parens patriae and narrow preventive detention), and

that serves the criminal purpose of specific deterrence (i.e., inca-

pacitation) ; and the predicate sex offenses are by definition crimes,

typically requiring scienter. That the Kansas scheme appears crimi-

nal in all of those ways should trigger a heavy burden of estab-

lishing a weighty non-criminal! alternative basis.

In contexts not involving confinement, such as forfeiture of

property or imposition of penalties, the Court has, in similar

fashion, asked whether the legislature intended the sanction to be

civil and, if so, “whether the statutory scheme was so punitive

either in purpose or effect as to negate [the legislature’s} intention

to establish a civil remedial mechanism.” United States v. Ursery,

12

A. The State’s Confinement Scheme Has a Strongly

Criminal Character

1. The basic features of the Kansas Act, and related

Kansas law, lend the Act a strongly criminal cast. A

crime is the essential precondition for application of the

Act. Only the prosecutor, representing the State, can

bring the action, which then has all the outward appear-

ance of a criminal trial. The proceeding is aimed at plac-

ing the defendant in “secure” confinement, which may

actually be under the control of the state prison authori-

ties. No discretion is vested in non-correctional authorities

to make individualized judgments about less restrictive

alternatives to suit the individual's medical needs. And,

at least at the time of Hendricks’s initial confinement, the

Kansas Supreme Court concluded, no significant treatment

was taking place in the secure facility. Pet. App. 16a.

Normal civil commitment of the mentally ill, in con-

trast, is not predicated on a criminal act (even when

“danger” must be proved). Civil commitment proceed-

ings, moreover, are not under prosecutors’ control, but

commonly are initiated by mental-health professionals or

family members, i.e., those with an expected genuine in-

terest in the individual's welfare. See S. Brakel et al.,

The Mentally Disabled and the Law 31-33 (3d ed. 1985).

And civil commitment places individuals in the care of

mental-health professionals (rather than correctional au-

thorities), typically leaving substantial treatment discre-

tion in their hands to decide on appropriate less restrictive

alternatives for particular individuals.

Kansas also has not in any meaningful way disclaimed

an interest in criminal punishment of persons like

Hendricks. The Kansas Act does not route individuals

into its proceedings as an alternative to criminal measures:

116 S. Ct. 2135, 2142 (1996) (internal quotation marks omitted) ;

see Kurth Ranch, 114 8. Ct. at 1953 (O’Connor, J., dissenting) ;

United States v. Halper, 490 U.S. 485 (1989); United States v.

One Assortment of 8° Firearms, 465 U.S. 354, 365 (1984) ; United

States v. Ward, 448 U.S. 242, 249 (1980). This formulation also

focuses on non-criminal purposes, which might be less difficult to

establish for state measures short of bodily confinement.

13

criminal charges are not dropped for those subjected to

the present regime; instead, confinement occurs after serv-

ice of the criminal sentence for the predicate sex offense

(except in cases of insanity acquittals or incompetence to

stand trial, not involved here). Moreover, Kansas con-

tinues to impose criminal sanctions on the very conduct

that the new Act targets: following the M’Naghten test

for insanity, Kansas holds individuals criminally responsi-

ble for their criminal acts without regard to the sort of

volitional (“irresistible impulse”) impairments invoked by

the present Act. See Pet. App. 45a (insanity defense

available only if defendant “does not know the nature and

quality of his act or where he does not know right from

wrong with respect to that act”). Under Kansas law,

therefore, there is no question that persons like Hendricks

are criminally responsible for their acts, because they have

a rational appreciation of the choices they face and the

rightness or wrongness of those choices. See J.A. 141,

156-58, 160, 166, 172, 176, 184, 185 (Hendricks testi-

mony); see also Kan. Stat. Ann. § 21-4716 (“predatory

sex offender” receives enhanced criminal sentence).”

2. The intent behind the Kansas Act, far from a

parens patriae purpose focused on serving the interests of

those subject to it, unmistakably focuses on incapacitation

of such criminals to neutralize their potential for doing

harm to others. The label “predator” connotes a purpose-

ful actor to whom the State’s attitude is hostility and a

desire to restrain for others’ sake, hardly empathic con-

cern. The Attorney General of Kansas, testifying in sup-

port of the Act, never mentioned any interest in treat-

ment, but instead touted the law as providing for con-

tinued “incarceration” :

Most new laws against criminal conduct tend to pro-

vide punishment after the victimization has occurred.

%” The State of Washington follows the same test for insanity,

requiring cognitive rather than volitional] incapacity; that is, Wash-

ington requires that the defendant be unable “to perceive the nature

and quality of the act with which he is charged” or “to tell right

from wrong with reference to the particular act charged.” Wash.

Rev. Code Ann. § 9A.12.010.

14

Senate Bill 525 will act prospectively and be pre-

ventative of criminal conduct and not just punitive.

You have a rare opportunity to pass a law that will

keep dangerous sex confined past their

scheduled prison sentence. As I am convinced none

of them should ever be released, I believe you, as leg-

islators, have an obligation to enact laws that will

protect our citizens through incapacitation of dan-

gerous offenders.

J.A. 468-69. This is the language not of parens patriae

concern, but of intent to continue crimina! imprisonment.

Incapacitation (or specific deterrence) of the defendant

is, along with retribution and general deterrence, a well-

established purpose of criminal law. See 4 W. Blackstone,

Commentaries *11-12 (punishment serves “as a precau-

tion against future offences” by, for example, “the amend-

ment of the offender himself” or “depriving the party in-

juring of the power to do future mischief”); id. at *249;

Montana v. Egelhoff, 116 S. Ct. 2013, 2020 (1996)

(plurality) (criminal-law rule “also serves as a specific

deterrent, ensuring that those who prove incapable of con-

trolling violent impulses while voluntarily intoxicated go

to prison”); Foucha, 504 U.S. at 99 (Kennedy, J., dis-

senting); 18 U.S.C. § 3553(4)(2)(C). Indeed, in Specht

v. Patterson, 386 U.S. 605 (1967), this Court concluded

that a state sex-offender statute inflicted “criminal punish-

ment even though it is designed not so much as retribu-

tion as it is to keep individuals from inflicting future

harm.” Jd. at 608-09 (footnote omitted); see United

States v. Brown, 381 U.S. 437, 458 (1965) (“One of the

reasons society imprisons those convicted of crimes is to

keep them from inflicting future harm, but that does not

make imprisonment any the less punishment.” ).

A state measure predicated on criminal conduct and

resting exclusively on an interest in indefinite preventive

incapacitation of the offender must generally be on the

“criminal” side of the constitutional ledger. Otherwise,

as Foucha warned, little would be left to the general rule

that criminal acts by competent adults are left to the crim-

eee

15

inal process (with its double-jeopardy, ex post facto, and

other restrictions) under the Constitution. 504 U.S. at

82-83. If preventive incapacitation based on criminal

conduct, standing alone, counted es a civil purpose, then

any person for whom a criminal act and dangerousness

could be proved—as was assumed, for example, in the

substantive due process portion of Foucha—could be

locked up until no longer dangerous. Such a result is

hardly consistent with the tight limits on civil preventive

detention, and constraints on multiple and retroactive pun-

ishment, recognized by this Court.

3. If the Kansas Act serves traditionally criminal pur-

poses and targets acts that Kansas would criminally pun-

ish, it is also clear, as the Kansas Supreme Court observed,

that additional, openly criminal measures are available to

pursue still further the public-safety purposes served by the

Act. A State may seek to sentence an offender to the full

authorized sentence rather than plea bargain for shorter

confinement, may seek consecutive rather than concurrent

sentences, or may invoke recidivism statutes to lengthen

imprisonment; it may enact longer sentences or further

recidivism statutes if necessary and may use criminal pro-

scriptions on attempts and threats to attack incipient mis-

conduct; and it may use parole or probation to place

severely enforced restrictive conditions on post-release be-

havior. See Pet. App. 16a. In the present case, indeed,

Kansas apparently has powers of supervision over Hen-

dricks, who was released after 10 years of a 5-20 year

sentence under a form of parole. See Kan. Stat. Ann.

§ 22-3718." What the Court said in Foucha about inmate

violence is equally applicable here (504 U.S. at 82):

[T}he State does not explain why its interest would

not be vindicated by the ordinary criminal processes

involving charge and conviction, the use of enhanced

sentences for recidivists, and other permissible ways

11 Even outside the criminal context, means well short of confine-

ment—e.g., court orders to avoid schools or children, community-

notice provisions—may be available as well.

16

of dealing with patterns of criminal conduct. These

are the normal means of dealing with persistent crim-

inal conduct.

4. In Allen v. Illinois, which involved a statute (Illi-

nois’ Sexually Dangerous Persons Act) that had some of

the characteristics that give a criminal cast to the Kansas

scheme, this Court rejected the defendant’s claim that the

proceeding was criminal (for purposes of the self-

incrimination clause). 478 U.S. 364. The confinement

of Hendricks under the Kansas Act, however, is signifi-

cantly different. The key factors that supported the non-

criminal assessment in Allen are missing here.

First, Allen, unlike the present case, involved an indi-

vidual who was severely mentally ill in the classic sense

relevant to traditional civil commitment, i.e., he had

schizophrenia, a fact stressed by the State.” As a result,

the State’s asserted interest in offering truly needed treat-

ment was entirely plausible on the facts of Allen, and

there was no other record showing that, more generally,

the State’s asserted interest in treatment was hollow.

Second, unlike Kansas, the State in Allen had “disavowed

any interest in punishment” (478 U.S. at 370)—and

simultaneously reinforced its non-criminal, parens patriae

interests—by the very structure of the statute. Unlike

Kansas here, the State in Allen was required to “elect be-

tween a criminal prosecution and a sexually dangerous

persons proceeding,” dropping any criminal charges once

the election of the latter option had been made, thus pro-

viding for “treatment in lieu of prosecution.” Brief for

Respondent Illinois in Allen at 12; see Allen, 478 U.S.

at 369 n.5. And the Illinois statute, unlike the Kansas

Act, provided for conditional release under the super-

12 See Allen, 478 U.S. at 366 (State’s psychiatrists testified that

Allen was “mentally ill”); Brief for Respondent Illinois in Allen

at 3 & 11 n.3 (Allen “was diagnosed as psychotic, or ‘out of touch

with reality’, and suffering from a schizophrenia characterized by

aggressive and abnormal behavior’; “diagnosed as being schizo-

phrenic”) ; id. at 13 n.4 (insisting that Ilinois statute was different

from “[s]tatutes which do not require proof of mental illness’).

it

17

vision of the State’s mental-health authorities. Jd, at

369 n.4. In Allen, then, this Court concluded that, not

only were criminal interests disavowed by the State, but

the State’s public-safety concerns were no more than a

“supplement [to] its parens patriae concerns.” 478 U.S.

at 373. In this case, the Kansas Supreme Court properly

rejected such a view of the Kansas Act. Pet. App. 16a.

B. The State’s Confinement Regime Does Not Fall Into

One of the Narrow Categories of Permitted Preventive

Detention -

In Foucha, this Court confirmed that a detention regime

designed entirely to prevent potential harm to others has

been upheld only in narrow circumstances. 504 U.S. at

80-82. Thus, preventive detention has been upheld when

brief in duration and tied closely to an impending crim-

inal proceeding. See, e.g., United States v. Salerno, 481

U.S. 739 (1987); Schall v. Martin, 467 U.S. 253 (1984)

(additional factor: power over juveniles); cf. County of

Riverside v. McLaughlin, 500 U.S. 44 (1991) (detention

of crime suspect before arraignment). The Kansas Act

in no sense provides such a short-term, pretrial adjunct

to the criminal process: it provides for indefinite confine-

ment where no criminal proceeding is permissible. The

Kansas Act thus serves as an evasion of the limits on the

criminal process, not as an adjunct to that process.

Preventive confinement has also occurred with this

Court’s approval, or at least without its disapproval, in

certain extraordinary contexts—in times of war or insur-

rection (Ludecke v. Watkins, 335 U.S. 160 (1948);

Moyer v. Peabody, 212 U.S. 78 (1909)) and with respect

to aliens in the immigration context (Shaughnessy v.

United States ex rel. Mezei, 345 U.S. 206 (1953); Carl-

son v. Landon, 342 U.S. 524, 537-42 (1952)). But

special, self-limiting government powers exist in those

contexts. No such power can be called on to justify the

Kansas Act, which would require a general state power

to confine individuals for preventive purposes—a power

that would transform our tradition of liberty.

18

A general police power would seem to be available to

confine individuals where unavoidably necessary to pre-

vent an imminent, known hazard, such as the spread of

highly contagious diseases. Cf. Jacobson v. Massachu-

setts, 197 U.S. 11 (1905) (compulsory vaccination). But

the most presumptively valid exercises of such power in-

volve situations where the threat is compellingly clear, the

harm is effected through means other than voluntary

human action, and the detention is the least restrictive

means to address the urgent problem. The Kansas Act

cannot come within such a standard without so loosening

the standard as to leave few limits on preventive detention.

In addition to the fact that human action is the mecha-

nism of harm in the present context, there is, in the area

of psychiatric prediction of violence by the mentally ill,

nothing like the level of certainty applicable to a con-

tagious disease. This Court has noted as much. See Hel-

ler v. Doe by Doe, 113 S. Ct. 2637, 2644 (1993) (“diag-

nosis of mental illness is difficult” and “psychiatric pre-

dictions of future violent behavior by the mentally ill are

inaccurate”); Addington v. Texas, 441 U.S. 418, 429

(1979) (“Given the lack of certainty and the fallibility of

psychiatric diagnosis, there is a serious question as to

whether a state could ever prove beyond a reasonable

doubt that an individual is both mentally ill and likely to

be dangerous.”). And, as relevant here, the research liter-

ature shows that mental health professionals can generally

make sound expert predictions of violence only as matters

of probabilities, which are “rarely above 50%” and often

substantially less. Grisso & Appelbaum, Js Jt Unethical

to Offer Predictions of Future Violence?, 16 L. & Human

Behavior 621, 626 (1992). ‘With respect to pedophilia

18 See, e.g., Menzies et al., The Dimensions of Dangerousness

Revisited, 18 L. & Human Behavior 1, 25 (1994) (despite recent

improvements in knowledge, “on the critical question—namely,

whether experts or instruments can reliably and validly differenti-

ate between potentially violent and innocuous human subjects—the

overwhelming body of empirical evidence remains highly equivo-

cal”); J. Monahan & H. Steadman eds., Violence and Mental Dis-

19

particularly, the rates of sex-offense recidivism documented

in studies vary widely, seemingly all below 50%.”

Kansas, presumably recognizing the problems of predic-

tion, has required no more than that the defendant be

“likely” to engage in sexual offenses some time in the fu-

ture. Kan. Stat. Ann. § 59-29a02. No more was found

by the jury (J.A. 359) or asserted by the State’s expert

(J.A. 248, 254) in this case. Consistent with the common

meaning of this standard, the State’s expert twice con-

firmed his understanding that it required only that Hen-

dricks have a 50% probability of committing a future act

of sexual violence. J.A. 260-61, 279. See also page 28

& note 25, infra (“safe” standard for release).

In the normal civil-commitment context, where the es-

sential condition for commitment is a parens patriae in-

terest in providing care and treatment (typically short-

term) for the good of the patient, there often is a second-

ary “dangerousness” requirement, which is subject to

“clear and convincing” proof. See Addington, supra. If

no parens patriae purpose is present, and prediction is the

sole basis for confinement (in a “secure” facility), “likely

harm” as a ground for detention is unprecedented, and it-

self dangerous to the principles of a free society. If “likely

harm” were enough, detention might be justified for any

number of classes of individuals, such as alcoholics and

substance abusers, whose characteristics are significantly

associated with violence (and with difficulties of being

“cured”).*° Moreover, if courts were required to focus on

order (1994). Cases under the Kansas Act do not involve what may

be the different situation of predicting immediate violence in

psychosis-based emergencies.

™ The leading survey of the literature, aside from noting the

grave methodological limits on existing studies and the likely under-

reporting of recidivism, summarizes a wide range of sex-offense

recidivism rates—from 6% to 40%. See Furby, Weinrott, & Black-

shaw, Sex Offender Recidivism: A Review, 105 Psychological Bull.

8, 12-19 (1989) (studies separately focusing on pedophiles: num-

bers 5, 6, 14, 22, 27, 30, 33, 38).

1%5“A large number of crimes, especially violent crimes, are

committed by intoxicated offenders; modern studies put the num-

20

making accurate predictions, they would risk being faced

with overt reliance on various human characteristics that

might be asserted to provide statistically significant infor-

mation about offense rates and yet raise independent legal

and other issues. See, e.g., Furby et al., supra, at 5, 27;

Swanson, Mental Disorder, supra, at 120-21. Upholding

the Kansas Act without a well-grounded parens patriae in-

terest thus would dramatically break with our Nation’s

strong tradition against preventive confinement based on

uncertain predictions.

C. The State’s Asserted Parens Patriae Interest in Treat-

ment Is Not Well Grounded and So Does Not Alter

the Character of the Confinement

1. This Court made clear in Foucha that civil confine-

ment, when not falling within one of the narrow cate-

gories of permissible detention for public safety alone,

must be based on “mental ill[ness].” 504 U.S. at 80;

see id. at 94 (Kennedy, J., dissenting) (“beyond ques-

tion” that “in civil proceedings the Due Process Clause

requires the State to prove both insanity and dangerous-

ness by clear and convincing evidence”). The Kansas

Act seeks to cloak itself in this traditional state power.

But mere invocation is not enough to come within this

distinctive power, whose scope must be defined by the

tradition and the fundamental conception of personal

autonomy behind it.

Historically, the essential condition for confinement of

the mentally ill has been a parens patriae justification,

even when supplemented by police-power interests in pro-

tecting the public. See Foucha, 504 U.S. at 96 (Kennedy,

bers as high as half of all homicides, for example.” Montana v.

Egelhof, 116 8S. Ct. at 2020 (plurality) (citing Third Special

Report to the U.S. Congress on Alcohol and Health from the Secre-

tary of Health, Education, and Welfare 64 (1978) and Note, Alcohol

Abuse and the Law, 94 Harv. L. Rev. 1660, 1681-1682 (1981)). The

research literature demonstrates that substance abusers present

very high risks of violence and recidivism. See Swanson, Mental

Disorder, Substance Abuse, and Community Violence: An Epidemi-

ological Approach, in J. Monahan & H. Steadman eds., Violence and

Mental Disorder at 101-36 (1994).

21

J., dissenting) (“[iJn the civil context, the State acts in

large part on the basis of its parens patriae power to pro-

tect and provide for an ill individual, while in the crimi-

nal context, the State acts to ensure the public safety”)."

“Mental illness” as a ground for involuntary confinement

may require, as a prerequisite, that the individual lack

rational capacity to make his own treatment decisions;

more broadly, it may justify a confinement even of a com-

petent individual when otherwise truly for his own good.

But whichever standard governs—and the Court need not

decide here, because neither standard is met, as explained

below—confinement based on “mental illness” must rest

on the State’s parens patriae power to override the in-

dividual’s autonomy to act for his own good.

When a State invokes this power, the reality of the

confinement must support the claim that it is in the in-

dividual’s interest. If “mental illness” were freely subject

to legislative definition (through new terms like “mental

abnormality” or otherwise), or if anyone “crazy” or

“sick” enough to engage in repeated serious offenses could

be civilly confined for that reason, the limits on depriva-

tions of liberty to protect the public safety would quickly

disappear. When an assertion of a parens patriae interest

is not well grounded, the State either is acting to punish

the individual, and thus has to meet the requirements

for a valid criminal sanction, or is acting to serve others’

interests by preventive detention, and thus has to meet

the stringent standards for such action—neither of which

Kansas can do."

16 See also Allen, 478 U.S. at 373 (public-safety concern “supple-

ments” the State’s parens patriae concerns in commitment for

treatment) ; Addington, 441 U.S. at 426 (noting that parens patriae

basis is present in normal civil commitment, along with police

power) ; Mentally Disabled and the Law 24-25; 1 M. Perlin, Mental

Disability Law §§ 2.02-2.05 (1989).

‘7 This is not a case where history resolves the constitutional

issues, because sex psychopath laws like the Kansas Act do not

reflect a long-established societal judgment that effectively perma-

nent civil preventive confinement of already-punished offenders,

based only on “likely” harm, is reasonable. Many States enacted

22

2. Just as state legislative dictates cannot control the

standard of “mental illness” justifying involuntary con-

finement, so, too, the standard cannot be controlled by

the categories set forth in the APA’s Diagnostic and

Statistical Manual of Mental Disorders (4th ed. 1994)

(DSM-IV) (or in the various editions of the related

International Classification of Diseases). Such catalogues

include a vast range of disorders that vary widely in

severity and type of impairment (e.g., cognitive, mood,

sexual, eating, learning, sleep, adjustment, etc.). The

classification schemes are developed and _ periodically

altered, through comprehensive field trials, research, and

analysis, to serve diagnostic and statistical functions,

forming a common (and always imperfect) language for

gathering clinical data and for communication among

mental health professionals. DSM-IV at xv-xxv. These

schemes are designed to identify the full range of mental

disorders, each (according to the inevitably imprecise

definition )

sex psychopath laws during the middle decades of this Century,

but they evidently were not put to wide-spread use (except in

California) ; sometimes enacted at times of public panic and then

quickly forgotten, they were generally justified by the asserted,

and often well-motivated, parens patriae interest in providing

effective and caring treatment as an alternative to criminal pun-

ishment; yet by the 1970s such laws had been widely repealed

as a failed experiment, with the recognition that effective and

truly needed treatment was not meaningfully available. See

Swanson, Serual Psychopath Statutes: Summary and Analysis, 51

J. Crim. L., Criminology, & Police Sci. 215, 225 (1960) ; Mentally

Disabled and the Law 739-43; see generally Group for the Advance-

ment of Psychiatry, Psychiatry and Sex Psychopath Legislation:

The 30s to the 80s (1977); ABA, Criminal Justice Mental Health

Standards 455-61 (1984) (Standard 7-8.1, urging repeal of remain-

ing sex psychopath laws; discussing history). This experience is

not enough to justify what amounts to a regime of preventive

detention, particularly for convicted offenders, in the absence

of available, effective, needed treatment. This Court's decision in

Minnesota v. Probate Court, 309 U.S. 270 (1940), which rejected

vagueness, equal-protection, and procedural-due-process challenges

to a sex psychopath law (whose application “was not triggered by a

criminal conviction,” Specht, 386 U.S. at 610 n.3), is not to the

contrary.

23

a clinically significant behavioral or psychological

syndrome or pattern that occurs in an individual and

that is associated with present distress (e.g., a pain-

ful symptom) or disability (i.e., impairment in one

or more important areas of functioning) or with a

significantly increased risk of suffering death, pain,

disability, or an important loss of freedom."*

Such comprehensive classification schemes are not re-

stricted to identifying those persons who warrant involun-

tary treatment, let alone confinement. Nor are they de-

signed to identify those subject to various legal standards,

such as those for involuntary confinement. Thus, the

authors of DSM-IV caution that “[i]n most situations, the

clinical diagnosis of a DSM-IV mental disorder is not

sufficient to establish the existence for legal purposes of

a ‘mental disorder,’ ‘mental disability,’ ‘mental disease,’

or ‘mental defect.’” DSM-IV at xxiii. The authors fur-

ther caution that “a DSM-IV diagnosis does not carry any

necessary implication regarding the individual’s degree of

control over the behaviors that may be associated with

the disorder.” Jd. Not all individuals who come within

a DSM-IV category suffer an impairment that diminishes

their autonomy, much less one justifying involuntary con-

finement for the individual’s own good.

Indeed, this Court held in Foucha that “antisocial per-

sonality disorder’—one of the “personality disorders”

catalogued in DSM-IV, characterized by “a pervasive pat-

tern of disregard for and violation of the rights of others

occurring since age 15 years” (id. at 649)—#is not the

sort of “mental illness” that permits a parens patriae civil

commitment.

[T jhe State asserts that because Foucha once com-

mitted a criminal act and now has an antisocial per-

sonality that sometimes leads to aggressive conduct,

a disorder for which there is no effective treatment.

18 DSM-IV at xxi. The definition adds that “[nleither deviant

behavior (e.g., political, religious, or sexual) nor conflicts that are

primarily between the individual and society are mental disorders

unless the deviance or conflict is a symptom of a dysfuncton in the

individual.” Jd. at xxii.

24

he may be held indefinitely. This rationale would

permit the State to hold indefinitely any other in-

sanity acquittee not mentally ill who could be shown

to have a personality disorder that may lead to crim-

inal conduct. The same would be true of any con-

victed criminal, even though he has completed his

prison term. It would also be only a step away from

substituting confinements for dangerousness for our

present system which, with only narrow exceptions

and aside from permissible confinements for mental

illness, incarcerates only those who are proved be-

yond reasonable doubt to have violated a criminal

law.

Foucha, 504 U.S. at 82-83. The same circularity problem

would be present if the Constitution allowed confinement

based on a “mental abnormality” whose defining char-

acteristic was a pattern of “abnormal” acts. See Pet.

App. 19a (State’s witness noted circularity of statutory

definition of “mental abnormality”).”” Such a standard

for “disorder” would substantially destroy any limits on

state power to provide for preventive civil detention, be-

cause it would not “enable a court to differentiate those

who suffer such disorders from those who simply want to

engage in proscribed conduct.” Schopp & Sturgis, supra,

at 451.

3. Kansas has effectively set the limits on its own

parens patriae interest, through its civil commitment laws:

Kansas does not displace autonomous decisionmaking by

subjecting individuals to involuntary confinement under

such laws unless they lack reasonable capacity to make

19 See Schopp & Sturgis, Sexual Predators and Legal Mental

Illness for Civil Commitment, 13 Behav. Sci. & L. 437, 451 (1995)

(allowing confinement based on “any emotional state that motivated

deviant conduct, including strong desires to engage in such be-

havior, . .. would . . . include virtually anyone who engages in

seriously antisocial conduct”). The American Law Institute, in

adopting its insanity-defense standard as part of the Model Pena!

Code, was careful to note that the required “ ‘mental disease or

defect’ do[es] not include an abnormality manifested only by re-

peated criminal or otherwise anti-social conduct.” Model Penal

Code §4.01(2) (1962).

25

their own treatment decisions. See Kan. Stat. Ann. § 59-

2902(e), (h); note 2, supra. This “competence” standard

for parens patriae confinement is also embodied in the

APA's Guidelines for Legislation on the Psychiatric Hos-

pitalization of Adults, 140 Amer. J. Psychiatry 672 (1983),

which require lack of “capacity to make an informed deci-

sion concerning treatment,” i.e., inability “to engage in a

rational decision-making process regarding such hospitali-

zation or treatment, as evidenced by inability to weigh the

possible risks and benefits.” /d. at 673.” This view is

reflected as well in the historical definition of “lunatics”

( subject to involuntary commitment) as persons lacking

reason,” that is, “incapable of conducting their own

affairs.” 1 W. Blackstone, Commentaries *294™

This standard finds its counterpart in Kansas’s standard

for relieving individuals of criminal responsibility under

the insanity defense—cognitive impairment, not volitional

impairment. See page 13, supra.” The connection

* See Stone & Stromberg, A Model State Law on Civil Commit-

ment of the Mentally Ill, 20 Harv. J. Legis. 59, 64 rood “The

Model Law [which led to the APA Guidelines} seeks to put the

patients’ interests first. It therefore rejects the idea that danger-

ousness is the only valid basis for commitment, and instead makes

the provision of treatment the indispensable element justifying

commitment. Under the Model Law, parens patriae commitment

requires that the patient suffers from a severe mental disorder,

lacks ‘capacity to make a reasoned decision concerning treatment,’

is treatable, and is likely to harm himself or others.”’).

*! This notion embodies what seems the most familiar common-

sense me. ing of the phrase “mentally ill.” See M. Moore, Law

and Psychiatry 197 (1984): “[T)he mental abilities of perception,

memory, imagination, and particularly reasoning are necessary in

the acquisition of rational beliefs and in maintaining consistency

between belief sets and desire sets. Rationality is one of the funda-

mental properties by which we understand ourselves as persons,

that is, as creatures capable of adjusting our actions as reasonably

efficient means to rational ends. Being mentally ill means being

incapacitated from acting rationally in this fundamental sense.”

“This is the traditional common-law standard (see, e.g., 4

W. Blackstone, Commentaries *21, *24; Mentally Disabled and the

Law 709) and, more recently, has been re-established as the insanity-

defense standard under federal law (18 U.S.C. § 17) based on the

26

between the criminal standard and the standard for per-

missible involuntary civil confinement under a parens

patriae power is natural, if not inevitable: lack of sub-

stantial responsibility for one’s own actions has tradi-

tionally been the central justification both for excusing

criminal liability and for allowing state intervention for

the parens patriae purpose of taking care of “persons in-

capable of looking after the:r ce wn interests.” Zinermon v.

Burch, 494 U.S. 113, 133 (1990). Not surprisingly, an

equation of the “mental illness” standard for civil commit-

ment and the criminal-law concept of “insanity” not only

has historical roots (see 4 W. Blackstone, Commentaries

*24 (using same term “lunatics” and equating concepts) )

but also has sometimes been assumed in this Court. F.¢.,

Heller, 113 S. Ct. at 2646; Foucha, 504 U.S. at 94

(Kennedy, J., dissenting ).

Under this test of the relevant parens patriae meaning

of “mental illness” for confinement purposes, confinement

of Hendricks under the Kansas Act cannot be justified.

The statutory “mental abnormality” or “personality dis-

order” creating a propensity for sex offenses does not de-

mand any impairment of competence—any “[i}mpair-

ment undermining the capacity to direct one’s behavior

through the process of practical reasoning.” Schopp &

Sturgis, supra, at 450, 455. More particularly, Hendricks’s

widespread recognition that “[t)he line between an irresistible

impulse and an impulse not resisted” is indeterminate in practice

and profoundly problematic in theory. APA Statement on the

Insanity Defense, 140 Amer. J. Psychiatry 681, 685 (1983); see

S. Rep. 98-225, 98th Cong., Ist Sess. 225-29 (1983) (testimony

from Professor Bonnie stating: “‘there is no scientific basis for

measuring a person’s capacity for self-control or for calibrating

the impairment of such capacity. There is, in short, no objective

basis for distinguishing between offenders who were undeterrable

and those who were merely undeterred, between the impulse that

was irresistable and the impulse not resisted, or between substan-

tial impairment of capacity and some lesser impairment.’”); see

also Powell v. Texas, 392 U.S. at 525-26 (plurality); Schopp &

Sturgis, supra, at 446-47; Morse, Culpability and Control, 142

U. Penn. L. Rev. 1587, 1601 (1994); Mentally Disabled and the

Law 709-19.

27

pedophilia, like other “paraphilias,” presents no such im-

pairment of cognitive abilities. See DSM-IV at 522-23.

“Neither sexual assault nor the paraphilias, including

pedophilia, entail psychological aberration apart from the

desire to perform such conduct and the willingness to act

on that desire.” Schopp & Sturgis, supra, at 451 (foot-

note omitted). Confinement of individuals like Hendricks,

then, cannot rest on a parens patriae assertion of incom-

petence such as would justify substituted judgment in the

absence of informed consent to treatment.

4. Nor can Hendricks’s confinement be justified under

a broader parens patriae state power simply to act in

what is clearly the patient's best interest (notwithstanding

a competent refusal of treatment). The ease with which

hollow state invocations of treatment interests may mask

a real interest in mere incapacitation makes it important

to demand a substantial basis in fact for any state claim

that an individual’s confinement is for the purpose of

treatment for his benefit.“ And in this case, the Kansas

Supreme Court concluded that, whatever the State’s

aspirations, Kansas had essentially no treatment actually

available to Hendricks when he was confined. See Jack-

*3 See Allen, “Criminal Justice, Legal Values and the Rehabilita-

tive Ideal,” in Crime, Law, and Society 271, 276-78 (A. Goldstein

& J. Goldstein eds. 1971) (“Certain measures, like the sexual

psychopath laws, have been advanced and supported as therapeutic

in nature when, in fact, such a characterization seems highly dubi-

ous. Too often the vocabulary of therapy has been exploited to

serve a public-relations function. .. . [T)here is a strong tendency

for the rehabilitative ideal to serve purposes that are essentially

incapacitative rather than therapeutic in character.”).

* Pet. App. 15a (“Treatment with the goal of reintegrating

them into society is incidental, at best. The record reflects that

treatment for sexu«lly violent predators is all but nonexistent... .

[T)he provisions of the Act for treatment appear somewhat disin-

genuous.”) ; cf. J.A. 392-455 (later hearing on the treatment avail-

able at the Kansas institution).

If Hendricks’s initial confinement was illegal, and if he had been

released at that time, the Kansas Act would not have furnished

any evident mechanism for bringing him back into custody to face

“sexually violent predator” charges. See Kan. Stat. Ann. § 59-29a03

28

son v. Indiana, 406 U.S. 715, 728 (1972) (“it is prob-

lematical whether commitment for ‘treatment’ or ‘training’

would be appropriate since the record establishes that

none is available for Jackson’s condition at any state

institution”). More generally, the Kansas Act is not

tailored to a real parens patriae treatment interest.

A parens patriae interest would require an individual-

ized, flexible approach to the provision of treatment, with

a range of options available, including hospitalization and

outpatient treatment, to serve the individual’s needs best.

Yet the Kansas statute provides instead for a stark rule

of confinement in a secure facility and requires continued

confinement until a judge or jury, based on professional

testimony, concludes that the risk of recidivism has been

so reliably and substantially reduced that the individual

is “safe to be at large.” Kan. Stat. Ann. §§ 59-29a07,

59-29a08, 59-29a10, 59-29a11.” The State seeks a

“ ‘guarantee.’ Kansas Opening Br. 11. Where such a

guarantee is impossible, the result is an essentially life-

time confinement of a person who, if given the oppor-

tunity, presents a substantial chance of living in freedom

without relapse (like alcoholics or substance abusers).

See J.A. 478 (Act “would allow us to keep the sexually

violent offenders locked up indefinitely” ).

In fact, it is just such life-time confinement that Kansas

must justify, because the standard of effective treatment

demanded by the Kansas Act cannot be met today. Cur-

rent treatments for pedophilia include various types of

psychotherapy, cognitive-behavioral therapies, and phar-

macological treatments; and such treatments, in varying

degrees and for particular individuals, provide benefits

(statute providing for initiation of proceedings only as to certain

persons prior to release from state custody) .

% If the evidence in this case was legally sufficient to support

initial and continued confinement under the Kansas Act, then the

Act’s legal requirements, coupled with the natural tendency to be

risk-averse in cases like this, effectively set a standard of near-zero

tolerance of relapse. See J.A. 356, 483, 509, 567.

29

that make them important to pursue.” But they cannot

today do what Kansas demands: even when promising,

the available treatments are far from proven, for known

classes of patients, to be not only safe but also so effec-

tive at reducing risk as to lead to release under the Kan-

sas Act. As the GAO recently summarized the current

state of learning, “(t]he most optimistic reviews [of re-

search] concluded that some treatment programs showed

promise for reducing deviant sexual behavior,” but “little

is certain about whether, and to what extent, treatments

work with certain types of offenders, in certain settings, or

under certain conditions.” GAO Report at 11, 3. See

also Furby, et al., supra, at 27 (“There is as yet no evi-

dence that clinical treatment reduces rates of sex reof-

fenses in general and no appropriate data for assessing

whether it may be differentially effective for different types

of offenders.” ); J.A. 328-29.”

26 These treatment methods are summarized in the recent General

Accounting Office report, Sex Offender Treatment: Research Results

Inconclusive About What Works to Reduce Recidivism at 20-21

(June 1996) (“GAO Report”). See also G. Abel & C. Osborn,

Pedophilia, in 2 G. Gabbard ed., Treatments of Psychiatric Dis-

orders ch. 70 (2d ed. 1995); Bradford, Pharmacological Treatment

of the Paraphilias, in Review of Psychiatry vol. 14, at ch. 29

(1995) ; H. Kaplan & B. Sadock, eds., Comprehensive Textbook of

Psychiatry 1346-47 (6th ed. 1995).

Psychotherapy in this context seeks to alter behavior through

self-understanding. Cognitive-behavioral treatments include, among

other techniques, different kinds of therapies designed to create,

through psychological or physical means, aversion toward the

pedophilic impulses. Pharmacological treatments being studied,

some of which are sometimes referred to as “chemical castration,”

include several medications that dampen the sex drive by reducing

testosterone—cyproterone acetate, or CPA (which is not approved

for general use in the United States); medroxyprogesterone, or

MPA; and leuprolid acetate, or LPA. Another new pharmacological

approach, whose mechanism is not understood, seeks to inhibit

“serotonin reuptake,” through medications that are principally used

for obsessive-compulsive disorders and depressions. Surgical castra-

tion and psychosurgery, however effective, are highly invasive and

would not be ethically condoned in an involuntary procedure.

27 See GAO Report at 3 (“Psychotherapy was generally viewed as

not being effective except, in certain cases, when administered in

30

[n sum, the Kansas Act’s effort to justify confinement

by invoking a parens patriae interest in treatment “goes

much too far on the basis of too little knowledge.”

Powell v. Texas, 392 U.S. at 521 (plurality). With to-

day’s knowledge, confinement under the Kansas Act is

effectively permanent. As applied to a person like

Hendricks, who is not mentally incompetent and who may

well live free of relapse, such confinement cannot rest on

an assertion that it is in his best interest—that it serves

his “treatment needs” (Kan. Stat. Ann. § 59-29a01). The

Kansas Act should be candidly defended as a simple

public-safety measure and assessed accordingly under the

demanding constitutional standards applicable to preven-

tive detention.

CONCLUSION

The judgment of the Supreme Court of Kansas should

be affirmed.

Respectfully submitted,

RICHARD G. TARANTO

(Counsel of Record)

FARR & TARANTO

2445 M Street, NW

Washington, DC 20037

Dated: August 16, 1996 (202) 775-0184

combination with another treatment approach.”); id. at 7 (“there

was no consensus even among [the reviewers discussing pharma-

cological treatments} about a particular drug being most effective,

nor about the duration of positive effects from such interventions” ) ;

id. (1990 report by the Canadian Solicitor General on overall treat-

ment programs: “‘A reasonable conclusion . . . is that treatment

can be effective in reducing recidivism from about 25% to

10-15%.’”’) ; W. Marshall, D. Laws, & H. Barbaree eds., Handbook

of Sexual Assault (1992).