Petitioners Brief — Kansas v. Hendricks

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Nos. 95-1649 and 95-9075 CLERK ;

In THE

Supreme Court of the United States

OCTOBER TERM, 1996

STATE OF KANSAS,

Petitioner and Cross Respondent

Vv.

LEROY HENDRICKS,

Respondent and Cross Petitioner

On Writs of Certiorari to the

Supreme Court of Kansas

BRIEF FOR LEROY HENDRICKS CROSS-PETITIONER

THOMAS J. WEILERT

Counsel of Record

250 N. Water, Suite 215

Wichita, Kansas 67202

(316) 263-9323

Counsel for Respondent

and Cross Petitioner

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QUESTIONS PRESENTED

1. Is the Kansas Act providing for long term, indefi-

nite confinement of sexually violent predators, K.S.A. 59-

29a01 et seqg., even though labeled a civil proceeding, so

punitive either in purpose or effect as to require that it

must be considered criminal?

2. Does the Kansas Sexually Violent Predator Act

violate the constitutional prohibition against ex post facto

laws?

3. Does the Kansas sexually violent predator act vio-

late the constitutional prohibition against double jeopardy?

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED ................................ andiitinniidi

TABLE OF AUTHORITIES .................c.c-.c-ccesceesssseeeneees

GHEE IID cessetenmnssteenteientittipencnintinemmenen

CONSTITUTIONAL AND STATUTORY PROVI-

SRI CC CRIT ED ccenatineitncecnsntincntntagenadage

STATEMENT OF THI CAGIB ..............<..cccccccccecoeccccess-s-

SE PT ES PSE A EIS ES na

I. COMMITMENT OF A “SEXUALLY VIOLENT

PREDATOR” ON THE BASIS OF CRIMINAL

CONDUCT AND FOR THE PURPOSE OF IN-

CAPACITATION, IS PUNISHMENT ................

A. The Primary Objective of the SVP Act is to

Incapacitate, Not to Provide Treatment ........

B. Imprisonment Following Adjudication of

Guilt is Historically Deemed Punishment ......

(iii)

_—

BIRR B

ie)

TABLE OF CONTENTS—Continued

1. Confinement for the purpose of incapaci-

tation is punishment ..................................

2. The conditions of the “commitment” un-

der the SVP Act are indistinguishable

from a prison sentence ..............................--

3. Adjudication as a sexually violent preda-

tor is at least as stigmatizing, if not more,

than a criminal conviction —........................

4. Commitment is triggered by the finding

beyond a reasonable doubt that a criminal

offense has been committed —.......................

ll. THE SEXUALLY VIOLENT PREDATOR ACT

Ill.

VIOLATES THE CONSTITUTIONAL PRO-

HIBITION AGAINST EX POST FACTO

RESPONDENT'S ADJUDICATION AND IN-

CAPACITATION AS SEXUAL PREDATOR

CONSTITUTES A SECOND PROSECUTION

AND PUNISHMENT, IN VIOLATION OF

DOUBLE JEOPARDY ................-0.0---0--cse-ccsessseesee

i FD eericentnictinicinectibentetnncicecces

TABLE OF AUTHORITIES

Cases: Page

Allen v. Illinois, 478 U.S. 364 (1986) —......... 17, 18, 19, 25,

26, 27, 31

Blockburger v. United States, 284 U.S. 299 (1932)... 40

Breed v. Jones, 421 U.S. 519 (1975) —........ BA, 39, 43, 44

Brown v. Ohio, 432 U.S. 161 (1977) —................. 41

Calder v. Bull, 3 Dall. 386 (1798) ................... 36

California Department of Corrections v. Morales,

115 S.Ct. 1597 (1996) ...................... .21, 37, 38

Collins v. Youngblood, 497 U.S. 87 (1990) .......... 37, 38

Cummings v. Missouri, 71 U.S. (4 Wall.) 277

ES Se ee 22, 23

Ex Parte Lange, 85 U.S. (18 Wall.) 333 (1874)... 42

Fletcher v. Peck, 6 Cranch 137 (1810) 0.00... 38

Foucha v. Louisiana, 504 U.S. 71 (1992) ........... 15, 20, 31,

$2, 35

Green v. United States, 355 U.S. 184 (1957) .......... 39

Harris v. Oklahoma, 433 U.S. 682 (1977) (per

EEL ENE EM Le 41

Illinois v. Vitale, 477 U.S. 410 (1980) 000 41

In Re Garland, 71 U.S. (4 Wall.) 333 — _ & 23

In Re Gault, 387 U.S. 114 .. re" 25

Jones v. Thomas, 491 U.S. 376 (1989) . eT es 43

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

ES RSs ae «<A eS 23, 24

Landgraf v. USI Film Products, 114 S.Ct. 1483

Eee ts Se 37

Lipke v. Lederer, 259 U.S. 557 (1922) ..0000000000.. 23, 36

Miller v. Florida, 482 U.S. 423 (1987) 00000. 36, 37

Montana Department of Revenue v. Kurth Ranch,

8 GF RE Fe Te 22, 23, 35

Nizon v. Administrator of General Services, 433

ar aaa recs, te NNR 32

North Carolina v. Pearce, 395 U.S. 711 (1969) _... 89, 42

Powell v. Texas, 392 U.S. 514 (1968) 32

Reitman v. Mulkey, 387 U.S. 369 (1967) 18, 30

Romer v. Evans, 116 S.Ct. 1620 (1996) _....18, 20, 25, 30

Specht v. Patterson, 386 U.S. 605 (1967) 17, 31, $2,

33, 43

TABLE OF AUTHORITIES—Continued

Page

State of Minnesota v. Probate Court of Ramsey

County, Minnesota, 309 U.S. 270 (1940) ............ 26

United States v. Assortment of 89 Firearms, 465

OF ey 23

United States v. Brown, 381 U.S. 487 (1965) ae 20, 32, 33

United States v. Constantine, 296 U.S. 287, 56 S.Ct.

223 (1985) ............ sininthdembcoctithnanatialiaintiapipiiabpecneniieatinintantes 23

United States v. Dizon, 509 U.S. 688 (1993) ...... 40, 41, 42

United States v. Halper, 490 U.S. 435 (1989) ......... 21, 23,

39, 43

United States v. La Franca, 282 U.S. 568 (1931)... 23, 36

United States v. Lovett, 328 U.S. 303 (1946) ........ 23

United States v. Ursery, Slip Op. No. 95-345, June

Se ees See ees 22, 23, 31

Weaver v. Graham, 405 U.S. 24 (1981) —................ 37

Whalen v. United States, 445 U.S. 684 (1980) _....... 41

Witte v. United States, 115 S.Ct. 2199 (1995) ....... 39, 42

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OPINIONS BELOW

The opinion of the Supreme Court of Kansas (Pet.

App. la-59a) is reported at 259 Kan. 246, 912 P.2d 129

(1996).

JURISDICTION

The judgment of the Supreme Court of Kansas was en-

tered on March 1, 1996.

The petition for a writ of certiorari was filed on April

12, 1996. The conditional cross petition for a writ of

certiorari was filed on May 13, 1996. Both were granted

on June 17, 1996. The jurisdiction of the Court rests

on 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The ex post facto clause of the United States Constitu-

tion states, “No state shall... pass any .. . ex post facto

law.” U.S, Const. Art. 1, Sec. 10.

The double jeopardy clause of the United States Con-

stitution states, “. . . nor shall any person be subject for

the same offense to be twice put in jeopardy of life or

limb;” U.S. Const. Amend. V.

The Kansas Sexually Violent Predator Act is set forth

in its entirety in Pet. App.

Other Kansas statutes cited are set forth in the Ap-

pendix to this Brief.

STATEMENT OF THE CASE

Introduction

Leroy Herricks was the first person committed to an

indefinite tern of secure confinement under a statute en-

acted by the Kansas legislature in 1994. The Sexually

Violent Predator Act (“SVP Act”), like the Washington

Statute after which it was modeled, was a sharp departure

from previous sex offenders commitment statutes designed

to provide a disposition alternative to a traditional crimi-

nal prosecution and sentencing. The SVP Act was aimed

at preventing the release into the community of dangerous

sex offenders who had completely served sentences of

imprisonment.

Mr. Hendricks was about to be released after serving

the sentence recommended by the State as part of a plea

agreement and imposed by the court following his con-

victions for taking indecent liberties with children in 1984,

when the District Attorney responsible for criminal pros-

ecutions in Sedgwick County, Kansas—the same office that

prosecuted Mr. Hendricks and negotiated his plea agree-

ment—filed a petition seeking commitment under the

SVP Act. Mr. Hendricks is not mentally ill, and he does

not suffer from a personality disorder as that term is used

by mental health professionals. As a result of a jury trial

finding him a “sexually violent predator,” Mr. Hendricks

has been confined at the Larned Correctional Mental

Health Facility, a facility operated by the State Depart-

ment of Corrections. The director of the State’s sex of-

fender treatment program admitted, however, at a hearing

held several months after Mr. Hendricks’ commitment,

that he and the others committed under the SVP Act were

receiving “essentially no treatment.” J.A. 393. On review

of Mr. Hendricks’ commitment, the Kansas Supreme

Court concluded that “fi]t is clear that the primary ob-

jective of the Act is to continue incarceration and not to

provide treatment.” Pet. App. 17a.

This case is before the Court on the State’s petition

challenging the Kansas Supreme Court’s ruling that the

SVP Act violates the due process clause of the Fourteenth

Amendment and Mr. Hendricks’ cross-petition challeng-

ing his commitment on the additional grounds presented

to but not reached by the Kansas Supreme Court that his

confinement is punishment in violation of the ex post

facto and double jeopardy clauses.’

1 Mr. Hendricks’ cross-petition also sought review of his equal

protection challenge to the statute. This claim will be subsumed

in his substantive due process argument, and will not be separately

briefed.

The 1984 Plea Agreement

In 1984, Leroy Hendricks was charged with three

counts of taking indecent liberties with a child for

fondling three thirteen year old boys who came into the

electronics shop where he worked. Each charge carried

a maximum penalty of 5 to 20 years imprisonment. Pet.

App. 3a, K.S.A. 21-3503. The court was authorized to

impose consecutive sentences for each count and could

have tripled each sentence under the habitual criminal

act because of Mr. Hendricks’ prior convictions. The

maximum allowable sentence for the offenses charged was

therefore a total of 45 to 180 years. K.S.A. 21-4504.

Had he received the maximum sentence, Mr. Hendricks

would have first been eligible for parole in 2007, at age

73, and would have been entitled to mandatory release

with good time in 2074. K.S.A. 22-3717(a), (c)(1);

22-2718.

For reasons that do not appear of record, the State

elected not to request consecutive sentences or enhance-

ment under the habitual offender provision. Instead, the

State reached a plea agreement with Mr. Hendricks, un-

der which it dismissed one count, did not request habitual

offender sentencing, and recommended a sentence of 5

to 20 years on the remaining counts, asking the court to

impose concurrent sentences. Mr. Hendricks entered a

guilty plea on the basis of that agreement, and the court

imposed the agreed upon sentence. Pet. App. 16a-17a.

Mr. Hendricks was therefore eligible for parole after three

years, and entitled to mandatory release if he earned all

possible good time credits, after serving ten years. K.S.A.

22-3717(a)(c)(1); K.S.A. 22-3718.

The State also chose to forego the option of referring

Mr. Hendricks to a psychiatric facility for evaluation and

treatment, if appropriate. Had an evaluation found him

in need of treatment, Mr. Hendricks could have been

placed in a secure psychiatric facility until treatment was

no longer helpful, at which time he would have been re-

turned to court for sentencing. Time spent in the hospital

under this provision would have counted towards any

sentence imposed. The length of hospitalization could

not have exceeded the maximum possible sentence. K.S.A.

22-3429-3431.

Mr. Hendricks served his sentence without incident. He

earned all possible good time and was scheduled for re-

lease at the expiration of his sentence, on September 11,

1994. J.A. 5. Mr. Hendricks would have been sixteen

days shy of his 60th birthday. While on release, he would

have been under parole supervision requiring him to live

in a halfway house and participate in group and individual

treatment. J.A. 183, 186; Certificate of Conditional Re-

lease (Lodged Document).

The Kansas Sexually Violent Predator Act

In July 1993, a young woman named Stephanie Schmidt

was raped and murdered by a co-worker who had recently

been paroled from a sentence of rape. Her death inspired

an ad hoc task force that lobbied for legislation intended

to prevent similar crimes from happening in the future.

The task force included legislators, law enforcement per-

sonnel, members of the parole board, probation officers,

and concerned citizens. It did not include any mental

health professionals. Pet. App. 25a-26a.

The Schmidt Task Force proposed the SVP Act to the

1994 legislature. The same legislature passed proposals

that increased the sentences for some violent crimes and

permitted an upward departure from the state sentencing

guidelines for a defendant found to be a “predatory sex

offender”. That term is defined as one who “suffers from

a mental condition or personality disorder which makes

the offender likely to engage in additional acts” constitut-

ing serious sexual crimes, following conviction for a crime

of extreme sexual violence. K.S.A. 21-4716. That defini-

tion is nearly identical to that of a “sexually violent

predator”.

Unlike these stiffer penalties, the SVP Act specifically

targeted sex offenders already convicted and in custody

who were thought to be too dangerous to be released at

the end of their terms. The SVP Act proposed to allow

the continued custody of those persons, after the expira-

tion of their sentences, by imposing a “civil” commitment

upon them. Pet. App. 26a, 27a.

The history of the SVP Act in the Kansas legislature

offers insight into the Act’s purpose. The proponents of

the legislation had the benefit of the Washington Supreme

Court’s opinion upholding its virtually identical statute

and discussing a number of constitutional challenges. The

principal sponsor, Senator Bob Vancrum, therefore stressed

that, “like the statute upheld by the Washington Supreme

Court, the bill does not serve any punitive goal. It is

civil in nature and thus does not offend the double jeop-

ardy clause, which applies to criminal matters.” J.A. 462.

However, other testimony from supporters of the legisla-

tion demonstrates that their objective was incapacitative

confinement, not treatment. For example, then State At-

torney General Robert Stephan testified:

From the therapeutic perch as legislators, you have

an opportunity to pass what might be the most sig-

nificant preventive criminal justice legislation to be

presented in this 1994 session of the Kansas Legis-

lature. Most new laws against criminal conduct tend

to provide punishment after the victimization has oc-

curred. Senate Bill 525 will act prospectively and be

preventative of criminal conduct and not just puni-

tive. You have a rare opportunity to pass a law that

will keep dangerous sex offenders confined past their

scheduled prison sentence. As 1 am convinced none

of them should ever be released, 1 believe, as legisla-

tors, have an obligation to enact laws that will pro-

tect our citizens through incapacitation of dangerous

offenders.

Under the provisions of the sentencing and parole

system in effect prior to July 1, 1993, a violent sex

offender could serve the full sentence and be released

without any relevant safeguards for the public. In

the same manner under the sentencing guidelines, a

violent, sex offender will be released at the end of

the sentence imposed. With either system, there has

been no adequate legal provision to continue incar-

ceration of violent sexual predators past the period

of mandatory incarceration. J.A. 468-69. (Emphasis

added )

Special Assistant Attorney General, now Attorney General

Carla Stovall, urged enactment of the bill on the basis

of her experience as a member of the Kansas Board of

Parole:

Because of the nature of sexually violent crimes and

the psychological makeup of those who are prone to

commit them, we must take extraordinary precau-

tions to protect society from them. We cannot open

our prison doors and iet these animals back into our

communities. If we do—we are accomplices to the

atrocities which they will surely commit.

Let me share with you for a moment the utter frus-

tration I experienced as a member of the Kansas

Parole Board. I would routinely see sex offenders

and pass them as long as possible... But when the

inmates reached their conditional release date. . .

they had to be set free.

The file would come to the board only for the purpose

of setting conditions for their release... As I would

write out those conditions, a knot would always grow

in my stomach. I knew the rapists or child molesters

were being turned loose on an unsuspecting public

to reoffend. .. And there was nothing I could do to

prevent it. J.A. 475-76 (Emphasis added).

Neither General Stephan nor General Stovall so much

as paid lip service to the goal of treating those committed

as sexually violent predators. Rather, as General Stovall

put it in her concluding remarks, “[i]t would allow us

to keep the sexually violent offenders locked up indefi-

nitely.” J.A. 478.

Mental health professionals confirmed that the result

of commitment would be prolonged confinement, rather

than treatment leading to release. For example, Tom

Locke, on behalf of the Kansas Psychological Association,

warned that, “I believe the probability that a professional

would take the position that an individual once found to

be a SVP is no longer dangerous is very low. Our ability

to change an individual’s sexual preference for children

or eliminate the urge to express sexual and violent im-

pulses together is limited. Lengthy periods of commit-

ment with little likelihood of release are almost inevitable.

Perhaps that is the goal of the statute.” J.A. 483. James

Karlan, director of the Southwest Guidance Center, a sex

offender treatment program, echoed this concern:

Recognizing the potential for a lawsuit should such

an offender be released from a mental health in-

patient facility and then perpetuate a sexual crime

on another victim, no psychiatrist working in a state

inpatient hospital will certify that someone in his or

her care has essentially been “cured” of being a sex-

ually violent predator as defined in Section 2 and

recommend the offender’s release into the community.

As a result, state inpatient mental health facilities will

begin to warehouse offenders . . . state psychiatric

hospitals will essentially be turned into prisons, . . .

J.A. 509 (Emphasis added)

Similarly, in writen testimony on behalf of the Secretary

of the Department of Social and Rehabilitation Services

(SRS), the agency responsible for providing treatment un-

der the Act, George Vega, the Commissioner of Mental

Health and Retardation Services told the Kansas House

Judiciary Committee that, “[i]f the process requires pro-

fessionals to state a sexual predator is cured or not likely

to repeat acts of violence before a person is discharged,

the professionals will not make such statements which

might place their reputations and licenses on the line.

This means the patients may never be released.” J.A.

567. A member of the Schmidt Task Force reported that

the group had studied sex offender treatment, and were

aware of doubts about its effectiveness. Although they

concluded that because there was no effective treatment

the commitment would amount to a life sentence, the re-

sponse was: “SO BE IT.” J.A. 503 (Emphasis in

original ).

In addition to learning of doubts in the mental health

professions about the efficacy of treatment and the likeli-

hood of release, the Kansas House and Senate committees

considering the SVP Act heard specific concerns about the

availability of treatment in Kansas. Dr. Locke opined

that, “adequate facilities to address this pattern of deviant

behavior does not exist within the Department of Social

and Rehabilitation Services.” J.A. 483, 484. Dr. Mani

Lee, Superintendent of the Larned State Hospital voiced

similar reservations. Dr. Lee noted that the Hospital had

no one currently on staff with expertise in treating sexually

violent predators and that the training for new staff was

not available in Kansas. He also expressed concerns

about whether funding would be available to pay for

needed equipment. J.A. 552. The written testimony sub-

mitted on behalf of SRS confirmed these fears. J.A. 569.

Reservations about treatment had no effect, however,

on the legislature’s willingness to enact a bill that promised

to remove dangerous sex offenders from the community.

The lobbying efforts of the task force were rewarded

with the passage of the Sexually Violent Predator Act.

Pet. App. 60a-68a, K.S.A. 59-29a01 et seq. The Act was

patterned after a Washington State statute that was passed

in 1990. J.A. 460, 461. Unlike prior sex offender com-

mitment statutes adopted by other states, the Kansas

statute, like Washington's legislation, was designed not as

an alternative to criminal sentencing but as a way to pro-

long confinement of persons who have been prosecuted

and sentenced. The Act provides for a “civil commit-

ment” of persons who according to the legislative “find-

ings” comprise a “small but extremely dangerous group”

of “predators” who do not have a mental defect or disease

that renders them appropriate for involuntary treatment

under the existing involuntary treatment statutes. The

SVP Act applies only to persons prosecuted for sex of-

fenses who are convicted and sentenced, found not guilty

by reason of insanity after proof that the person com-

mitted the offense, or found incompetent to stand trial

and later proved to have committed the charged offense

beyond a reasonable doubt in a special hearing. K.S.A.

59-29a03. Members of this group are found to have

“antisocial personality features” which are unamenable

to existing mental health treatment modalities and are

likely to engage in future acts of sexual violence. The

legislature also determined that the prognosis for re-

habilitating such persons was “poor” and the treatment

needs are “very long term”. Pet. App. 60a, K.S.A. 59-

29a01.

The Act defines “sexually violent predator” as:

“any person who has been convicted of or

with a sexually violent offense and who suffers from

mental abnormality or personality disorder which

makes the person likely to engage in aw acts

of sexual violence.” Pet. App. 60a, K.S.A. 59-29a

O2(a).

The Act defines “mental abnormality” as:

“a congenital or acquired condition affecting the emo-

tional or volitional capacity which i the per-

son to commit sexually violent offenses in a degree

constituting such person a menance to the health and

safety of others.” Pet. App. 60a, K.S.A. 59-29a

02(b).

“Predatory” is defined as:

“acts directed towards strangers or individuals with

whom relationships have been established or pro-

moted for the primary purpose of victimization.”

K.S.A. 59-29a01(c).

“Sexually violent offense” is defined to include nine spe-

cific offenses, as well as attempts, conspiracies and solici-

tations to commit those offenses. It also includes any

cTense which is determined at sentencing or during the

commitment proceeding to have been sexually motivated.

K.S.A. 59-29a01(e).

The Act provides procedural safeguards paralleling

those in a criminal case. K.S.A. 59-29a06. The commit-

ment procedures only apply to those who are about to be

released from total confinement. K.S.A. 59-29a03. The

petition to have a person declared a sexually violent

predator is filed shortly before release. K.S.A. 59-29a04.

After the filing, a probable cause finding is required. The

matter then proceeds to a trial where either party or the

judge may request a jury trial. K.S.A. 59-29a05, 29a06.

If the person is found to be a sexually violent predator,

the court must order commitment to the custody of the

Secretary of Social and Rehabilitation Services. SRS, in

turn, is empowered to enter into an agreement with the

State Department of Corrections to provide a facility.

The person is segregated from mentally ill persons. Un-

like those civilly committed for mental illness, there are

no specific guarantees of rights and privileges accorded

the committees.”

Once committed, the person’s mental condition is ex-

amined each year and a report is sent to the court. The

court then conducts a review without the committee’s pres-

ence to determine if there is probable cause to believe

that the person’s mental abnormality or personality dis-

order is so changed that the person is safe to be at large

will not engage in acts of sexual violence if discharged.

If probable cause is found, the court orders a hearing at

2 The Act for Care and Treatment of Mentally Ill Persons spe-

cifically restricts the use of mediation without consent, K.S.A. 59-

2927a: restrictions use of restraints, K.S.A. 59-2928; allows use

of the patient’s own clothes, personal possessions and money, allows

confidential telephones, allows for conjugal visits if facilities are

available, allows reception of visitors daily, permits the refusal of

involuntary labor and requires payment for work performed, pro-

hibits use of various treatment procedures, requires an explanation

of all medications, provides for confidential mail and visitations

with those agencies or persons directly involved with the commit-

ment. K.S.A. 59-2929.

The Secretary of SRS may authorize a committee to

petition for release upon a determination that the per-

sons’ mental abnormality or personality disorder has so

changed that the person is not likely to commit predatory

ment. K.S.A, 59-29a10. The committee also may peti-

tion the court for release without authorization from the

secretary. In such cases, the court shall vor when-

ever possible to review the petition and determine if the

petition is based upon frivolous grounds and if so shall

deny the petition without hearing.*

On August 17, 1994, the State filed a petition alleging

the Respondent was a sexually violent predator. J.A. 4.

Two days later, a hearing was held to determine if there

was probable cause to believe the allegation was true.‘

*In civil commitments of mentally ill persons, a patient is en-

titled to request a hearing each 90 days during the first six months

of treatment and every 180 days thereafter. Upon receipt of a

request, the matter is set for hearing. 59-2919, The mental! illness

commitments also allow for conditional release and total release

at the direction of the head of the treatment facility. K.S.A. 59-2924.

* The State presented evidence from Dan Crask, a licensed spe-

cialist clinical social worker. Based on reports compiled in 1985,

he opined that Respondent had pedophilia and that people with

pedophilia may stop their behavior occasionally after incarceration,

but tend to repeat that behavior over time. J.A. 24-26. He fur-

ther testified that pedophilia is not a personality disorder. He

could not give the court a definition of “mental abnormality”.

-A. 28. Based upon that testimony, the court found probable

and ordered a further evaluation of the Respondent. J.A. 34.

Respondent moved for dismissal of the petition on the

grounds that the procedure violated constitutional provi-

sions including the ex post facto, double jeopardy, sub-

stantive due proces and equal protection. J.A. 32-35.

The Court deferred ruling on the motion. J.A. 36-43.

In a pretrial hearing on Respondent’s motions to dis-

miss, Terry E. Davis, an SRS official in charge of imple-

menting the program for the treatment of persons com-

mitted under the Act, acknowledged that persons com-

mitted under the Act would be housed in a Department of

Corrections (DOC) facility. In addition to perimeter

security, DOC would also provide security inside the

building central control area. Persons committed under

the Act would share outdoor recreation areas, weight

rooms, libraries and gyms with DOC convicts. The SVP

ward would have the same type of rooms, the same type

of shower facilities, the same food service, the same laun-

dry service and the same medical facilities as provided

to DOC inmates. J.A. 77-81. Mr. Davis stated he was

not aware of any programs dealing with sexual offenders

that are successful in modifying behavioral outcomes on

an involuntary commitment basis. J.A. 91.

At the same hearing, William Cummings, a Depart-

ment of Corrections official, testified that the Larned Cor-

rectional Mental Health Facility is a maximum security

facility. He further testified that treatment programs for

sex offenders convicted of sexually violent crimes are

available at minimum security facilities. J.A. 106-108.

Following further hearing and briefing, the trial court

found the commitment procedure to be civil in nature.

J.A. 89-94. The evaluation proceeded and the matter

came to trial on October 3, 1994.

At the commitment trial, the State began its case by

calling Respondent to testify. Mr. Hendricks outlined

5 As consequence of its ruling that the commitment proceeding

was civil, the district court concluded that Mr. Hendricks had no

privilege against self incrimination. J.A. 42.

his family background, J.A. 126-130, as well as his pre-

vious sexual offenses against children.” J.A. 130-172.

He stated that during his latest incarceration he had re-

ceived no treatment for any sexual disorder.’ J.A. 179-

180. He stated that he had not had any urge to have

sexual contact with children since 1985, and he was

aware that if he re-offended, he would spend the rest of

his life in prison. J.A, 187. He acknowledged however,

that he was a “pedophile” and while he hoped that he

would not re-offend, the only way he could “guarantee”

that he never would was to die. J.A. 190.

Dr. Charles Befort, the chief psychologist at Larned

State Hospital, testifying for the State, maintained that

Mr. Hendricks was neither mentally ill nor suffering from

a personality disorder. J.A. 256-257. He also stated that

the term “mental abnormality” was not a diagnostic term.

He acknowledged that the term “mental abnormality” was

circular, in that the behavior was used both to identify

the condition and to predict future behavior. J.A. 263-

264. Dr. Befort labeled Mr. Hendricks as a pedophile

and stated that, in his interpretation of the statute, pedo-

philia was a “mental abnormality”. He also acknowl-

edged that his interpretation was open to debate. J.A.

271-272. He further opined that Respondent would en-

gage either in acts of sexual violence or sex acts with

children if permitted to do so, based in large part on his

belief that behavior is a good predictor of behavior. J.A.

247-248. He interpreted the term “likely” in the SVP

* Although Mr. Hendricks did not deny committing sexual of-

fenses, including fondling of genitals and oral sex with both boys

and girls, against children, including his stepdaughter and stepson,

the State also called witnesses to testify to specific instances of

sexual abuse. J.A. 192, 196, 206.

7™Mr. Hendricks testified that he had been offered treatment in

»rison but had not enrolled in it. He said his reasons included the

desire to work, which would not have been possible in treatment,

and that he had been told that there was no cure for his type.

J.A. 148, 235. He also told Dr. Befort that he believed the treat-

Act to mean more probable than not. J.A. 260-61, 279.

Dr. Befort never hazarded a guess about when in the

future Respondent's sexual conduct might occur.

Following instructions and closing arguments, the jury

found the Respondent to be a sexually violent predator.

J.A. 358. Respondent filed a motion to dismiss, or in the

alternative for a new trial, which was heard on October

20, 1994. At that hearing, the Respondent presented evi-

dence that SRS had not entered into any contacts with

a provider to furnish sexual predator treatment. No new

treatment staff had been hired to provide treatment for

committees under the SVP Act, J.A. 366-372. The mo-

tion was overruled.

Following the finding that he was a sexual predator.

Respondent was committed to Larned State Security Hos-

pital. In February, 1995, he was moved to the Larned

Correctional Mental Health Facility, which is maintained

by the State Department of Corrections. Dr. Befort, now

acting Clinical Director of the Sexual Predator Treatment

Program, testified in a subsequent state habeas corpus

hearing that persons committed under the Act were re-

ceiving “essentially no treatment” J.A. 393. Indeed, Dr.

Befort acknowledged that he did not feel fully qualified

to head the sexual predator treatment program, J.A.

394. Dr. Befort stated that the primary contact he had

with Respondent and others committed under the Act

was in a group session that he attempted when his sched-

ule permitted. He said the focus of the sessions was the

lack of treatment and that there was little if any discus-

sion of the sexual deviancy issues which had led to the

commitments. J.A. 399. Dr. Befort concluded that the

Respondent and the other persons committed under the

Act had received virtually no treatment. J.A. 400. The

court ruled that while the petition for relief had alleged no

treatment was being provided, there was “ward milieu”

therapy being given and therefore denied release even

though Dr. Befort testified that “ward milieu” therapy

would never result in a committee’s release. J.A. 417.

Decision of the Kansas Supreme Court

Respondent appealed the commitment. He argued that

the Act, though labeled “civil”, was punitive in purpose

and effect and therefore violated the prohibition against

double jeopardy and ex post facto laws. He also argued

that he had been denied equal protection of the law be-

cause those committed under the SVP Act were subject

to more onerous conditions and greater difficulty of re-

lease than persons committed under the State civil com-

mitment laws. Respondent further asserted that the Act,

by requiring indefinite incarceration of persons without

a finding of both dangerousness and mental illness, vio-

lated substantive due process, Pet. App. 10a. The Kansas

Supreme Court agreed that the Act violated substantive

due process without reaching the ex post facto and double

jeopardy issues.

In making that decision, the Kansas Supreme Court

explained:

We must determine if Hendricks is denied substan-

tive due process based not on his lack of character

but, rather, on the merits of his challenge. Mental

illness is defined by K.S.A. 59-2902(h) as meaning

any person who (1) [is] suffering from a severe men-

tal disorder to the extent that such person is in need

of treatment; (2) lacks capacity to make an informed

decision concerning treatment; and (3) is likely to

cause harm to self or others. Here, neither the /an-

guage of the Act nor the State’s evidence supports

a finding that ‘mental abnormality or personality dis-

order’ as used in 59-29a92(a), is a ‘mental illness’

as defined in 59-2902(h). Absent such a finding, the

Act does not satisfy the constitutional standard set

out in Addington and Foucha. Justice White, speak-

ing for the majority of the United States Supreme

Court in Foucha, clearly stated that to indefinitely

confine as dangerous one who has a personality dis-

order or antisocial personality but is not mentally

ill is constitutionally impermissible. 504 U.S. at 78.

Similarly, to indefinitely confine as dangerous one who

has a mental abnormality is constitutionally imper-

missible.

In addition, the State’s own evidence is that Hen-

dricks was being committed even though he does not

suffer from mental illness. Hendricks is not mentally

ill, and the criminal! offenses for which he was im-

prisoned were not the result of mental illness. There-

fore, as applied to Hendricks, the constitutionality

of the Act depends upon a showing of dangerousness

without a finding of mental illness. Clearly, the duc

process standard of Addington and Foucha is not met

by the Act as applied to Hendricks. We conclude that

the Act violates Hendricks’ substantive due process

rights. Pet. App. 20a.

While the Kansas Supreme Court did not directly ad-

dress the issues of double jeopardy, ex post facto, and

equal protection, it did make findings which are relevant

to them. The majority concluded:

It is clear the overriding concern of the legislature is

to continue segregation of sexually violent offende7s

from the public. Treatment with the goal of reinte-

grating them into society is incidental, at best. The

record reflects that treatment for sexually violent

predators is all but nonexistent. The legislature con-

cedes that sexually violent predators are not amen-

able to treatment under K.S.A. 59-2901 et seq. If

there is nothing to treat under 59-2901, then there is

not mental illness. Pet. App. 16a.

The Court concluded,

It is clear that the primary objective of the Act

is to continue incarceration and not provide treat-

ment”. Protecting the public is a legitimate exercise

of the State’s police power. Although the Act is a

well-intentioned attempt by the legislature to ac-

complish that objective, it canont be done in a con-

stitutionally impermissible manner. Having said that.

we need to point out that the legislature has pro-

vided the State with other options to achieve that

objective and, in addition, has the authority to in-

crease the penalty for sex crimes committed against

children.” Pet. App. 17a. Justice Larson, joined

by Justices McFarland and Six, dissented.

SUMMARY OF ARGUMENT

In 1994, Kansas adopted a statute that applies a severe

regime of extended incarceration against individuals al-

ready convicted of and punished for criminal offenses.

Responding to a public outcry which contended that

already-convicted sex offenders posed a danger if released,

the State passed a bill requiring potentially life-long incar-

ceration for such individuals found to be “sexually violent

predators.” The statute applies to individuals who have

been held criminally responsible for their conduct and can

be imposed upon a person, like Respondent, who the

State’s own expert asserts is not mentally ill.

This Court has never before confronted such a statute.

Unlike the sexually dangerous persons provision consid-

ered in Alien y. lilinois, 478 U.S. 364 (1986), this stat-

ute does not attempt to divert individuals from the crimi-

nal process, “disavow punishment,” and impose, in lieu

of punishment, a commitment to treatment. Rather, the

SVP Act only comes into operation after the individual

has been criminally convicted and punished. Indeed, the

commitment for “treatment” in this statute may occur

years after the acts giving rise to the need for commitment

have occurred. Nor is this procedure intended as a sepa-

rate indeterminate criminal sentencing statute (see Specht

v. Patterson, 386 U.S. 605 (1967)), since Respondent's

sentence occurred more than a decade ago.

Rather, the purpose and effect of this statute is to pro-

long the incarceration of individuals whose criminal con-

duct occurred long before the enactment of the statute.

Because that “purpose and effect” is unquestionably

punitive, the penalty imposed upon Respondent violates

the Constitution’s prohibition against ex post facto laws.

Moreover, because Respondent is being prosecuted and

punished again for criminal offenses adjudicated in 1984,

the proceedings violate the Constitution’s protections

against double jeopardy.

1. Although it would be hard for a layperson or law-

yer to contend that labeling a convicted criminal a

“predator” and imposing upon him a consecutive indeter-

minate sentence in maximum security confinement could

be anything but punishment, the State argued below that

the statute was a legitimate exercise of the State’s civil

parens patriae power, designed to promote “treatment” of

sexual predators. However, the conclusion of the Kansas

Supreme Court, which is entitled to deference (see Romer

vy. Evans, 116 S.Ct. 1620 (1996); Reitman v. Mulkey,

387 U.S. 369 (1967)), is that the purpose of the statute

“is to continue incarceration and not to provide treat-

ment.” Pet. App. 17a. That conclusion is fully justified

by the language of the statute, the history surrounding its

enactment, and the implementation of the commitment

regime.

The statute is punitive in that it targets only incar-

cerated individuals ready for release. Whatever treatment

interest the state allegedly possesses is confined to these

convicts and is also deferred for decades until the convict

has served every day of confinement prescribed for the

crime. The language of the statute itself demonstrates

that incarceration is the goal. In its preamble, it acknow!-

edges that long-term confinement of sexual predators is

required and that such people are not amenable to cur-

rent treatment. In contrast to the dangerous sexual of-

fender statute approved in Allen, the Act requires incar-

ceration in a secure facility, and does not permit treatment

in a range of facilities appropriate to the individual. That

long-term incarceration was the goal of the statute was

also evident in the legislative history. The Attorney Gen-

eral urged that Sexual Predators “should [nJever be re-

leased.” The task force that proposed the legislation ac-

knowledged that no existing treatment was effective, urged

that the statute would, in effect, create a life sentence, and

urged support for the legislation on that basis. Mental

health professionals confirmed this reading by assuring

the legislature that “no psychiatrist” would ever certify

that a mentally responsible sexually violent predator would

be suitable for release.

The legislature was repeatedly informed by govern-

mental officials that the Department of Social and Re-

habilitation Services had no resources to develop a treat-

ment program. However, since incarceration, rather than

treatment, was the goal of the statute, it is no surprise

that the legislature made no effort to provide funds or

resources to develop a treatment program. Today, Re-

spondent is being visited by a program director who has

asserted he is not fully competent to provide treatment

and who has acknowledged that Respondent is receiving

“essentially no treatment,” a finding echoed by the Kansas

Supreme Court. Instead of receiving treatment in a

therapeutic setting, respondent is incarcerated in a De-

partment of Corrections facility, in a setting indistinguish-

able from his former convict status, and denied the privi-

leges routinely given to civilly committed inmates in

Kansas.

Since the Kansas Supreme Court was correct in its de-

termination that this is not a commitment for treatment,

this case is utterly unlike Allen v. Illinois, supra, where

this Court upheld the Supreme Court of Illinois’s char-

acterization of its Sexually Dangerous Persons Act as

“essentially civil in nature.” 478 U.S. at 367. In Allen,

this Court properly deferred to the Illinois Supreme

Court’s characterization that the statute provided for civil

proceedings in lieu of a criminal prosecution, because the

state disavowed any interest in punishment, because it

provided for release “after the briefest time in confine-

ment,” id., at 370, and because the defendant had failed

to show that the confinement imposed a regimen similar

to that of convicts. In all relevant respects, the Sexually

Violent Predator Act differs from its very distant Illinois

cousin. In Kansas, the State has embraced punishment,

not disavowed it, and required service of a criminal sen-

tence before release, and, indeed, has only targeted those

already incarcerated for the commitment. Unlike Illinois,

the Kansas Supreme Court was aware that under its stat-

ute, release would not occur after the “briefest time in

confinement” but would rarely if ever occur. Unlike

Illinois, in Kansas, the State has disavowed treatment and

imposes a regimen equivalent to that imposed on convicts

in a facility administered by the Department of Correc-

tions.

2. Once the pretense of treatment is stripped from

the statute, there can be no doubt its “purpose and effect”

is punitive. The statute imposes involuntary incarceration

of a person upon proof that he or she committed a crimi-

nal act, the very paradigm of punishment. That one of

the reasons for this incarceration is incapacitation of the

offender does not render the statute non-punitive. In-

capacitation for the protection of society has always been

recognized as a core function of the criminal law (see

United States v. Brown, 381 U.S. 437, 458 (1985);

Foucha v. Louisiana, 504 U.S. 99 (Kennedy, J., dissent-

ing)), and this court has explicitly found in Specht v.

Patterson, 386 U.S. 605, 608, 609 (1967), that incapaci-

tation as a sexual psychopath may be criminal punishment

even though designed more as incapacitation than

retribution.

In addition to the fact of imprisonment, the very lan-

guage of the Act is punitive. The finding that the individ-

ual is a “predator” is, if anything, more stigmatizing than

a designation of the individual as criminal, and the sub-

jects of this act were referred to as “animals” during the

legislative debate. While such designations may be ap-

propriate for those the state seeks to condemn, they are

highly inappropriate for those supposedly the subjects of

a therapeutic, non-punitive commitment.

Finally, the criminal nature of this statute is evidenced

by its procedural mechanisms. Like a criminal trial, it

is commenced by the district attorney and it requires proof

beyond a reasonable doubt that the individual has com-

mitted a criminal offense.

3. Because the Sexually Violent Predator Law is, in

essence, a punitive statute, its application to Respondent

violates the constitutional prohibition against ex post

facto laws. The Constitution “forbids the application of

any new punitive measure to a crime already consum-

mated.” California Dept. of Corrections v. Morales, 115

S.Ct. 1597, 1601 (1995). The SVP Act obviously con-

stitutes a new punitive measure, in effect imposing a con-

secutive life sentence upon Respondent. It is also clearly

retrospective, since the most recent criminal conduct al-

leged in the proceeding was Respondent’s 1984 conviction,

which occurred a decade before enactment of the SVP

law.

4. Finally, the SVP proceeding constitutes both a sec-

ond prosecution and a second punishment, prohibited by

double jeopardy. This Court has he!d on numerous occa-

sions that the Double Jeopardy Clause protects an individ-

ual against being prosecuted a second time after conviction

for the same offense. In every sense, the SVP proceeding

was a second prosecution for Respondent’s offense of

indecent liberties.

In addition, the SVP proceeding constitutes a second

punishment prohibited by the Double Jeopardy Clause.

This Court has consistently interpreted double jeopardy

as prohibiting the imposition of multiple punishments in

separate proceedings. As this Court has noted, “when

the Government already has imposed a criminal penalty

and seeks to impose additional punishment in a second

proceeding, the Double Jeopardy Clause protects against

the possibility that the Government is seeking the second

punishment because it is dissatisfied with sanction obtained

in the first proceeding.” United States v. Halper, 490

U.S. 435, 451 n.10 (1989). The SVP proceeding against

Mr. Hendricks is a thinly-veiled attempt to seek an addi-

tional term of incarceration against a defendant it believes

it may have treated too leniently more than a decade ago.

Its attempt at imposing a consecutive lifetime incarcera-

tion clearly violates doube jeopardy. .

ARGUMENT

I. COMMITMENT OF A “SEXUALLY VIOLENT

PREDATOR” ON THE BASIS OF CRIMINAL CON-

DUCT AND FOR THE PURPOSE OF INCAPACITA-

TION, IS PUNISHMENT

When the 1994 Kansas Legislature passed the Sexually

Violent Predator Act, it stated it was establishing “a civil

commitment procedure for the long term care of the sex-

ually violent predator.” Pet. App. 60a KSA 59-29a01.

But “[t}]he Constitution deals with substance not shadows.

The inhibition was labeled at the thing, not the name.”

Cummings v. Missouri, 71 U.S. (4 Wall) 277, 325

(1867). The label attached to a penalty by the legisla-

ture is not controlling. “[T]he Constitution constrains the

State’s ability to denominate proceedings as civil and so

dispense with the criminal procedure protections provided

by the Bill of Rights.” Montana Department of Revenue

v. Kurth Ranch, 114 §. Ct. 1937, 1953 (1944) (O’Con-

nor, J., dissenting)

This Court has consistently used a two step approach

to determine whether legislation is subject to constitu-

tional restrictions applicable in criminal proceedings, most

recently in United States v. Usery, Slip Op., June 24,

1996 at 20. First, the Court determines whether the

legislature intended the proceedings to be criminal or civil.

Id. Since the legislators who proposed this statute were

fully aware that they could not accomplish their objective

of keeping sex offenders locked up after expiration of

their sentences through the criminal law, it is no surprise

that they attempted to affix a civil label to the proceeding.

However, a legislature’s description of a statute as civil

does not foreclose the possibility that it has a punitive

character. Kurth Ranch, 114 S. Ct. at 1945."

The second step is to consider whether the commitment

proceedings are so punitive either in purpose or effect that

they may not legitimately be viewed as civil in nature,

despite the legislature’s intent. United States v. Ursery,

Slip Op. 20, 22 n.3 (quoting United States v. Assortment

of 89 Firearms, 465 U.S. 354, 365, 366 (1984)). In

making the determination of whether a nominally civil

Statute is penal or regulatory in character, the Court has

frequently invoked the test set out in Kennedy v.

Mendoza-Martinez, 372 U.S. 144, 168, 169 (1963):

Whether the statute involves an affirmative disability

or restraint, whether it has historically been regarded

as punishment, whether it comes into play only on a

finding of scienter, whether its operation will pro-

mote the traditional aims of punishment—retribu-

tion 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 appears excessive in

relation to the alternative purpose assigned.

Respondent submits that the Kennedy factors can be

distilled into three inquiries. The first two relate to the

* The Court has consistently refused to put off by civil labels

when the purpose or effect of legislation is punitive. Cummings v.

Missouri, supra (disqualification from office or from the pursuits

of a lawful avocation, is a punishment) ; Jn re Garland, 4 Wall 333

(1867) (disbarment from practicing law in federal courts) ; Lipke

v. Lederer, 269 U.S. 557, 51 S. Ct. 549 (1922) (tax on dealer for

violating liquor control laws); United States v. La Franca, 282

U.S. 568, 51 S.Ct. 278 (1931) (double tax on illegal sale of liquor) ;

United States v. Constantine, 296 U.S. 287 (1985) (excise tax on

conducting a retail liquor business; United States v. Lovett, 328

U.S. 303 (1946) (ban from government employment, stigmatiza-

tion of reputation and serious impairment of ability to earn

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

civil penalties); Kurth Ranch, supra (tax on possession of mari-

juana). None of these sanctions even approaches the involuntary

indefinite confinement pro-ided for by the SVP Act.

idea that punishment is the imposition of a sanction to

express society’s condemnation of forbidden conduct and

moral blameworthiness of the actor. They are: 1) is the

sanction historically a form of punishment; 2) is the im-

position of the sanction triggered by finding the commis-

sion of a criminal offense. The third factor is whether the

sanction is adequately explained by a regulatory or reme-

dial purpose, rather than punishment.

Whether a sanction is historically considered punish-

ment is important objective evidence that a person sub-

jected to the sanction will view himself, and be viewed by

society, as blameworthy and criminal. Moreover, history

helps to define the types of sanctions to which the Framers

intended the Bill of Rights and the ex post facto clause

to apply. A link between the imposition of the sanction

and proof that a person’s conduct meets the definition of

a crime is also strong objective evidence that the sanction

is imposed for blameworthy, criminal acts. Finally, the

inquiry into proportionality asks whether the alternative

civil purpose sufficiently justifies the severity of the sanc-

tion imposed to explain away the objective evidence that

the sanction is punishment.

In this simplified form, Respondent believes the Kennedy

test to a large extent explains this Court’s many decisions

distinguishing punishments from civil remedies. As the

Kennedy Court acknowledged, in some cases “this prob-

lem has been extremely difficult and elusive of solution.”

372 U.S. at 168. Here, however, as in Kennedy, Respond-

ent believes “(t]he punitive nature of the sanction is evi-

dent.” Id. The striking objective parallels between crimi-

nal prosecution and sentencing and commitment under the

SVP Act certainly answer the first two questions of the

simplified Kennedy test affirmatively, as will be demon-

strated in detail later in the brief. To begin with Respond-

ent will show that “civil” commitments under the Act can-

not be justified by civil interest in treatment.

A. The Primary Objective of the SVP Act is to In-

capacitate, Not to Provide Treatment

The Kansas Supreme Court found it “clear that the

primary <djective of the Act is to continue incarceration

and not provide treatment.” Pet. App. 17a. The State

Supreme Court’s understanding of the purpose of state law

should be “authoritative” here, just as it was in Romer y.

Evans, 116 S.Ct. 1620, 1624 (1996). The text of the

Act, its legislative history and the history of its implemen-

tation offer the “clearest proof” that the civil remedial

objective of treatment for mental illness on which this

Court relied in Allen vy. Illinois, 478 US. 364 (1986),

was, as the Kansas Supreme Court recognized, “incidental,

at best” Pet. App. 16a to a statutory scheme intended to

confine repeat sex offenders. The Kansas Supreme Court

agreed that incapacitation of dangerous offenders was a

“legitimate exercise of the State’s police power,” Pet. App.

17a which Kansas could certainly achieve by adopting a

repeat sex offender sentencing provision. What Kansas

cannot do, by attaching a “civil label of convenience,” Jn

re Gault, 387 U.S. at 114, is to extend its police powers

beyond the bounds of the Constitution to reach those who

have already been punished for their crimes and who com-

mitted their offenses before the enactment of the SVP

Act. A State cannot defeat the ex post facto and double

jeopardy prohibitions by cloaking an incapacitative pur-

pose behind the State’s parens patriae power to provide

treatment.

1. Text

Several features of the SVP Act demonstrates that com-

mitment under the Act bears no resemblance to past sex-

ual offender commitment schemes or to ordinary civil

commitment of mentally ill. In contrast to sexual offender

statutes this Court has previously considered, the SVP Act

is not an alternative to criminal prosecution or to a tradi-

tional criminal sentence.’ The Act applies only to persons

who have already been prosecuted for sex offenses and

confined as a result of those prosecutions. K.S.A. 59-

29a02 (SVP limited to “any person convicted or charged

with a sexually violent offense”); 59-29a03(a) (commit-

ment procedures triggered by anticipated release of con-

victed offenders, (a)(1), or persons confined as a result

of a finding of not guilty by reason of insanity, (a) (2), or

incompetency (a)(3)).

Commitment is cumulative to other punishment, not an

option for treatable offenders. Moreover, the Act requires

the State to defer the “treatment” that is allegedly the

purpose of the statute for up to decades after the appear-

ance of the “mental abnormality” that caused the offenses.

If in fact that criminal conduct is caused by a mental

abnormality that can be treated, and if treatment is indeed

the goal of the Act, it would be absurd for the State delib-

erately to delay the treatment until the punishment had

been fully served.”

The SVP Act is also not targeted at persons suffering

from treatable mental illness. Compare Allen, 478 U.S.

* The commitment scheme in Allen v. Illinois, for example, was

triggered by an arrest and prosecution, but the State was required

to elect prosecution or commitment. 478 U.S. at 370. In Specht v.

Patterson, the sexual phychopath statute provided an alternate

form of disposition for a convicted sex offender. 386 U.S. 605

(1967). In State of Minnesota ez rel. Pearson v. Probate Court of

Ramsey County, Minn., 309 U.S. 270 (1940), it is not set out

whether the commitment procedure followed a criminal arrest. In

any event, that fact did not enter into the Court’s decision.

treatment were available to the State prior to the criminal sen-

tencing. The State could have requested that the Respondent be

committed for “mental examination, evaluation and report” to a

state psychiatric hospital. If the report showed a need for pyschi-

atric care and treatment, that such treatment might materially

aid in a person's rehabilitation and that society and that defend-

ant are not likely to be endangered by said treatment in lieu of

confinement or imprisonment, the person could be committed to

the state security hospital.

at 370 (recognizing that committees charged with offenses

are a subset of the “larger class of mentally ill persons

who might be found to be sexually dangerous.”) The

Kansas Supreme Court noted “[tJhe legislature concedes

that sexually violent predators are not amenable to treat-

ment under K.S.A. 59-2901 et seg. If there is nothing to

treat under 59-2901, then there is no mental illness. In

that light, the provisions of the Act for treatment appear

to be somewhat disingenuous.” Pet. App. 16a. Indeed,

the State’s expert witness conceded that Leroy Hendricks

does not suffer from a mental illness or a recognized per-

sonality disorder. J.A. 256. Although the SVP Act requires

proof of a “mental abnormality”, the abnormality consists

of nothing more or less than a pattern of sexually deviant

conduct. J.A. 263, 264. Therefore, the mental condition

that triggers commitment is simply the commission of one

Or more serious crimes, rather than a condition recognized

as amenable to treatment by professionals in any field.

The SVP Act also requires confinement in a secure facility,

K.S.A. 59-29a07(a), in contrast to civil commitments for

mental illness and the statute before the Court in Allen,

which allowed treatment in a range of different setting

appropriate to the needs of the individual and the risk to

the community through conditional release. 478 U.S. at

369 n.4. Indeed, it is an irony of this case that the State

chose to intervene to commit Respondent for treatment at

precisely the time that he was scheduled for release that

in fact included treatment.

In addition, the Act explicitly contemplates long term

confinement, K.S.A. 59-29a01, in contrast to the statute in

Allen, which “provided for the treatment of those it com-

mits, and established a system under which the committed

persons may be released after the briefest time in confine-

ment.” 478 U.S. at 370.

2. Legislative history

The hearings in the Kansas legislature emphatically

bolster the strong inference from the statute itself that

incarceration, not treatment, was the legislative goal. The

proponents of the legislation for the most part ignored the

treatment of committees under the Act. Instead, they

viewed the Act as—in the Attorney General’s words—an

“opportunity to pass a law that will keep dangerous sex

offenders confined past their scheduled prison sentence.”

J.A. 468. Both the current and former Attorneys General

viewed this confinement as effectively permanent. Attorney

General Stephan stated “none of them should ever be

released,” J.A. 468, while his successor hoped the Act

would keep sex offenders “locked up indefinitely.” J.A.

478. One of the members of the task force that proposed

the legislation bluntly informed the legislature that there

were no treatment programs that had been found to be

effective, that the effect of the legislation would be life-

time incarceration, and that such an outcome was ex-

plicitly contemplated by the task force recommending the

legislation. J.A. 503.

The legislature was also well aware, from the testimony

it heard, that the release standards in the bill were unlikely

ever to be met by those committed as sexual predators.

Over and over again, witnesses explained that mental

health professionals would not be willing to certify that

“sexually violent predators” had been cured and were safe

to be released to the community. J.A. 483, 509, 567.

Without such certification, committees cannot hope for a

release hearing at which they could place the burden of

proving their continuing dangerousness on the State. In-

stead, those committed under the Act face the very real

possibility of spending a lifetime behind bars without ever

having the right to appear in person before a judge for a

commitment hearing.”

11 The release procedures for those committed under the SVP

Act stand in stark contrast to the procedures for those committed

under the State’s mental illness commitment provisions. In the

case of a commitment under the mental illness law, the patient is

entitled to petition for release every ninety days during the first

—

Finally, the legislative history also shows that the Kan-

has legislature was aware that the State did not have the

capacity to offer treatment to persons committed under

the Act. Warnings about the inadequacy of treatment

came directly from the government officials who would be

responsible for implementation of the Act. They informed

the legislature that that there were no persons on the state

hospital staff with the expertise to offer the treatment, that

no training for any programs was available in the State

and that no funds were provided to obtain supplies or

expertise. J.A. 569. The fact that the legislature pro-

ceeded to authorize commitment without acting to insure

adequate treatment demonstrates that treatment was unim-

portant, “incidental”, to the real purpose of the Act. Even

improvements in treatment cannot alter the probative force

of the warnings the Kansas legislature seemingiy ignored

as evidence of the legislature’s intent to punish, not to

cure.

3. Implementation

The history of the SVP Act after its adoption only reaf-

firms that unmistakable conclusion from the history of the

legislation and its text: what was important is that sex

offenders were not released at the end of their sentences,

insanity or competency commitments. The legislature did

not provide funding for the SVP treatment. J.A. 541. The

State did not enter into contracts to provide treatment

before initiating commitments. J.A. 367. And, once Mr.

Hendricks entered State custody as the first committed

SVP, the State left responsibility for the treatment pro-

six months of treatment and every 180 days thereafter. K.S.A.

59-2919a. Upon receipt of the request, the matter is set for hearing.

Mental illness commitments also allow for conditional release and

total release at the direction of the treatment facility without any

court involvement. K.S.A. 59-2924. In contrast, those committed

under the SVP Act may never receive a hearing at which they

appear in person, unless the court first finds probable cause or the

SRS so recommends, and a person committed under the SVP Act

may never be released without court involvement.

gram in the hands of a clinical director who admitted he

was unqualified, and who acknowledged under oath that

Mr. Hendricks and the other committees were receiving

“essentially no treatment”. J.A. 392, 393. Moreover, be-

cause there was no real treatment, there could be no way

to satisfy the court that a committees’ progress justified

release. J.A. 400.

The fact that the confinement under the SVP Act is in

a DOC facility in which the daily regimen closely resem-

bles that of DOC inmates is further proof that the intent

of the legislature was not to treat. The SVP Act begins

with the legislature’s determination that “the prognosis for

rehabilitating sexualiy violent predators in a prison setting

is poor” K.S.A. 59-29a01. But treatment in a prison

setting is precisely what the State elected to give them.

The Kansas Supreme Court found from the record that

“treatment of sexually violent predators is all but non-

existent.” Pet. App. 16a. Instead of treatment, the record

shows that SVP committees received maximum security

confinement indistinguishable in most respects from the

conditions of convicted and sentenced prisoners also as-

signed to the Larned Correctional Mental Health Facility.

The two types of inmates have the same kind of rooms,

shower facilities, food service, laundry service and medical

care. They also share the same outdoor recreation areas,

weight rooms, libraries and gym. J.A. 78-81."

This Court should give deference to the “authoritative

construction” Romer v. Evans, 116 S.Ct. 1620, 1624

(1996), Reitman v. Mulkey, 387 U.S. 369, 373 (1967),

12 Ry contrast, civil committees in Kansas are guaranteed many

specific rights. They are guaranteed the right to wear their own

clothing, to use their own possessions, to communicate by phone,

to receive conjugal visits if facilities are available, to receive

visitors each day, to refuse involuntary labor and to be paid for

work. K.S.A. 59-2929. None of these rights are specifically pro-

vided for by the SVP Act. The differences in the manner of incar-

ceration provided for by the two schemes clearly indicates that the

commitment under the Act is punitive rather than rehabilitative.

of the Kansas Supreme Court’s interpretation of the pur-

pose and effect of the SVP Act just as it did to the Illinois

Supreme Court in Allen and find that, unlike in Allen,

“the primary objective of the SVP Act is to continue in-

carceration and not provide treatment.”

B. Imprisonment Following Adjudication of Guilt is

Historically Deemed Punishment

Once the pretense of treatment is stripped from the

SVP Act, its punitive character is unmistakable. History

teaches that the ex post facto clause and Double Jeopardy

Clause must apply to Mr. Hendricks’ commitment because

it is indistinguishable from a prison sentence. The involun-

tary incarceration of a person upon proof that he or she

committed a criminal act is our paradigm of punishment.

To treat imprisonment following adjudication for criminal

conduct as a civil remedy “would only be a step away from

substituting confinements for dangerousness for our pres-

ent system which, with only narrow exceptions and aside

from permissible confinements for mental illness, incarcer-

ates only those who are proved beyond a reasonable doubt

to have violated a criminal law.” Foucha v. Louisiana,

504 U.S. at 83.

In contrast to Ursery, where the Court relied on the

long history of a in rem forfeiture as a civil sanction that

could be imposed separately from and in addition to crimi-

nal punishment, the Kansas SVP Act has no comparable

lineage. Unlike sex offender commitment statutes offered

as an alternative to criminal prosecution and punishment,

see Allen, 478 U.S. 364 (1986), or special sex offender

treatment programs offered as an alternative disposition

following a conviction, see Specht, 386 U.S. 605 (1967),

the Kansas statute is explicitly designed not to divert sex

offenders in need of treatment from ordinary criminal

punishment but rather to add incapacitative confinement

on top of punishment already imposed. The Kansas SVP

Act is descended directly from legislation enacted in

Washignton State in 1990, which, like the Kansas Statute,

was precipitated by public outcry over a heinous offense

committed by a released sex offender. Although the Court

has decided a number of cases involving “dangerous sex

offender” or “sexual psychopath” statutes, none of these

cases involved a statute that resembles the SVP in purpose

or effect.

1. Confinement for the purpose of incapacitation is

punishment

The historically recognized purposes of punishment are

served by the Act. “It would be archaic to limit the

definition of ‘punishment’ to ‘retribution.’ Punishment

serves several purposes; retributive, rehabilitative, deter-

rent—and preventive. One of the reasons society im-

prisons those convicted of crimes is to keep them from

inflicting future harm, but that does not make imprison-

ment any the less punishment.” United States v. Brown,

381 U.S. 437, 458 (1965). Accord, Nixon v. Adminis-

trator of General Services, 433 U.S. 425 (1977). “Inca-

pacitation for the protection of society is not an unusual

ground for incarceration. ‘[I]solation of the dangerous has

always been considered an important function of the crimi-

nal law.’” Foucha v. Louisiana, 504 U.S. at 99 (Kennedy,

J., dissenting) (quoting Powell v. Texas, 329 U.S. 514,

539 (1968) (Black, J., concurring) ).

Indeed, this Court has already explicitly held that

incarceration as a sexual psychopath following an adjudi-

cation of guilt for the purpose of incapacitation is criminal

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

In Specht, this Court reviewed whether the imposition of

sentence under the Colorado sexual psychopath law vio-

lated due process since it was accomplished without a full

hearing. Under that act, the State filed criminal charges

and proceeded to trial. If a conviction was had, a separate

sentencing procedure was initiated to sentence the person

convicted, not under the statute for which he stood con-

victed, but rather, under the sexual psychopath statutes.

The petitioner in that case could have been sentenced for

up to 10 years for the original crime. Under the sexual

psychopath provisions he stood to be incarcerated from

1 day to life. In that situation, this Court held, “The pun-

ishme {t under the second Act (the sexual psychopath act)

is criminal punishment even though it is designed not so

much as retribution as it is to keep individual from inflict-

ing harm. 305 U.S. at 608-609. [Footnote omitted; citing

United States v. Brown, 481 U.S. at 458] From the Court’s

determination that the incarceration in Specht, which was

imposed immediately after conviction, was criminal punish-

ment, it follows that the commitment here, which occurred

ten years after the adjudication of guilt and after Hen-

dricks had served the sentence imposed must also be

considered punishment.” ™

2. The conditions of the “commitment” under the

SVP Act are indistinguishable from a prison

sentence

An examination of the Act and its consequences leaves

no doubt that it imposes what would historically be re-

That incarceration as a sexually violent predator is criminal

punishment is also evident from the actions of the same Kansas

legislature that passed the SVP Act in passing a criminal sentenc-

ing enhancement mandating additional criminal punishment for

individuals found to be “dangerous sexual predators”. K.S.A.

21-4716 (a) (G) (i) (b), (ii). More generally, the sentencing provi-

sions of the Kansas criminal code in effect at the time of Mr.

Hendricks sentencing recognize that criminal incarceration serves

the purposes of incapacitation, as well as retribution.

This article shall be liberally construed to the end that persons

convicted of a crime shall be dealt with in accordance with

their individual characteristics, circumstances, needs and po-

tentialities as revealed by case studies; that dangerous offend-

ers shall be correctively treated in custody for long terms as

needed; and that other offenders shall be dealt with by proba-

tion, suspended sentence, fine or assignment to a community

correctional services program whenever such disposition ap-

pears practicable and not detrimental to the needs of public

safety and the welfare of the offender, or shall be committed

for at least a minimum term within the limits provided by

law. K.S.A. 21-4601.

garded as punishment. The legislative findings expect the

incarceration under the Act to be “very long term” and

require that the confinement be accomplished in a “secure

facility”. K.S.A. 59-29a01. The facility in this case, the

Larned Correctional Mental Health Facility, is operated

by the Department of Corrections. It is a maximum secu-

rity facility where committees under the Act have the same

rooms, shower facilities, food service, laundry service and

medical facilities as DOC inmates. They also share the

same outdoor recreation areas, weight rooms, library and

gym with DOC inmates.

The DOC provides the facility, perimeter security and

internal security to the point of entering the actual quar-

ters of the Sexually Violent Predator area. While under

an agreement specifically authorized by the Act, the jail-

ers inside the unit are nominally employees of SRS rather

than the Department of Corrections, the name on the

uniform of the keeper does not alter the regimen or condi-

tions. As this Court held in Breed v. Jones, 421 US.

530, 528 (1975), even confinement under the auspices

of juvenile authorities is punishment when it is tried, as it

is under the Act, to proof that a person has committed

a crime.

3. Adjudication as a sexually violent predator is at

least as stigmatizing, if not more, than a crim-

inal conviction

This Court recognizes the consequences of being found

to have committed a criminal act “include both the stigma

inherent in such a determination and the deprivation of

liberty for many years.” Breed v. Jones, 421 U.S. at 529.

There can be no doubt that labeling a person a “Sexually

Violent Predator” serves to publicly stigmatize, disgrace

and humiliate a person. The image conjured up by the

phrase is of a horrific and inhuman creature. Given the

general understanding given to the words, it is not surpris-

ing that the individuals who supported the bill described

the people who were its subjects as “animals” and “mon-

sters.” J.A. 473.

4. Committment is triggered by the finding beyond

a reasonable doubt that a criminal offense has

been committed

The procedures for adjudication under the SVP Act

also indicate that from a historical perspective, the SVP

adjudication is punitive, for the proceeding closely mirrors

that of a criminal trial. The procedure is initiated by the

prosecuting attorney (now the Attorney General). There

is a probable cause determination. The respondent has

the right to counsel and jury trial as provided in criminal

cases. Most significantly, without proof beyond a reason-

able doubt of the commission of a criminal offense there

can be no commitment under the Act. “The compliance

with the standard of proof beyond a reasonable doubt is

the defining, controlling feature in criminal adjudication,

unique to the criminal law”. Foucha, 501 U.S. at 93

(Kennedy, J., dissenting).

Under the SVP Act, a person must have either been

found guilty of a criminal offense, have been found to

have committed the offense, but not guilty by reason of

insanity, K.S.A. 22-3220, 3221 or must be proven to have

committed the offense beyond a reasonable doubt at the

commitment hearing if he is incompetent to stand trial

in a criminal proceeding. K.S.A. 59-29a07(b). As a re-

sult, a factual determination that a person has committed

a crime is a precondition of commitment under the SVP

Act. |

The fact that the commitment is conditioned upon

proof of the commission of a crime is “significant of penal

and prohibitory intent.” Kurth Ranch, 114 S.Ct. at 1947.

In Kurth, only an arrest for possession of an illegal drug

was required to impose the tax. In proceedings under the

SVP Act, a much closer connection is required. A person

must have been found beyond a reasonable doubt to have

committed a criminal act for the sanction to be imposed.

The link between the commission of a criminal act and

the imposition of a second sanction has been used by the

Court in earlier decisions as a factor in determining that

the second sanction violated constitutional protections.

In Lipke v. Lederer, 259 U.S. 557 (1922), the Court

examined the requirement that, “[e]vidence of a crime

(Section 29) is essential to assessment under section 35”

in determining that the “tax” levied for illegal manu-

facture or sale of liquor was a penalty. The same exam-

ination and the same ‘result occurred in United States v.

La Franca, 282 U.S. 568 (1931).

The SVP Act serves the purposes of punishment by in-

capacitating persons committed under its provisions, Tis

confinement is in a DOC facility where the regimen

closely resembles that of DOC inmates. The stigmatizing

label of “sexually violent predator” is applied to commit-

tees. Only those who have been found beyond a reason-

able doubt to have committed a criminal act are subject

to the Act. With the procedural, factual and historical

parallels to a criminal punishment, this Court should find

that commitment under the Act is punishment.

Il. THE SEXUALLY VIOLENT PREDATOR ACT VIO-

LATES THE CONSTITUTIONAL PROHIBITION

AGAINST EX POST FACTO LAWS

Article 1, Section 9 of the Constitution of the United

States provides, “No State shall . . . pass any . . . ex post

facto law.”

An ex post facto law has been defined as:

Ist. Every law that makes an action done before

the passing of the law, and which was innocent when

done, criminal; and punishes such action. 2d.

Every law that aggravates a crime, or makes it

greater than it was, when committed. 3d. Every law

that changes the punishment, and inflicts a greater

punishment, than the law annexed to the crime, when

committed. 4th. Every law that alters the /egal rules

of evidence, and receives less, or different, testimony,

than the law required at the time of the commission

of the offence, in order to convict the offender.”

Miller v. Florida, 482 U.S. 423, 429 (1987), quoting

Calder vy. Bull, 3Dall. 386, 390 (1798). (Emphasis in

original )

One purpose of the clause is to restrain legislatures

from enacting arbitrary, vindictive or oppressive legisla-

tion. Weaver v. Graham, 450 U.S. 24, 29 (1981); Mil-

ler v. Florida, 482 U.S. at 429; Collins v. Youngblood,

497 U.S. 37, 43 (1990). A legislature’s “responsivity to

political pressures poses a risk that [it] may be tempted

to use retroactive legislation as a means of retribution

against unpopular groups or individuals.” Landgraf v.

USI Film Products, 114 S.Ct. 1483, 1497 (1994)."*

As we have demonstrated, the 1994 Kansas Legislature

was inundated with demands to keep persons who were

in prison for convictions of sex crimes locked up indefi-

nitely. The legislature was spurred on by a terrible crime

and a demand for protection of the public. While the

criminal law could constitutionally provide for that pro-

tection by threatening severe sanctions for individuals

who might commit crimes in the future, it could not sat-

isfy the concern that those already sentenced had been

dealt with too leniently. The SVP Act was passed to

insure that already sentenced individuals would be further

punished. The legislative history leaves no doubt that

vindictiveness against the ever unpopular class of sex

offenders led to legislative overreaching.

Another of the abuses sought to be guarded against by

the ex post facto clause is that of punishing an individual

when no fair warning is given about the consequences of

his actions. Miller, 482 U.S. at 430; Weaver, 450 U.S. at

28. At the time of the commission of his 1984 crimes,

Mr. Hendricks had no warning that he could be incar-

cerated in a prison mental facility indefinitely, after he

served whatever sentence was imposed. He had every

reason to believe that after serving whatever sentence was

“In California Department of Corrections v. Morales, 115 S.Ct.

1597, 1609 (1995), Justice Stevens in his dissent noted: “The

danger of legislative overreaching against which the ex post facto

clause protects is particularly acute when the target of the legisla-

tion is a narrow group as unpopular (to put it mildly) as multiple

murderers.”

imposed, he would be free from any more restraints on

his liberty arising out of those actions. He has committed

no other acts on which the State can base his continued

The Constitution “forbids the application of any new

punitive measure to a crime already consummated.”

California Department of Corrections v. Morales, 115

S.Ct. 1597, 1601 (1995). The Sexually Violent Preda-

tor Act applies to events occurring before its enactment.

The basis for its application to Respondent is his 1984

conviction. The Act obviously operated to increase the

sentence of the Respondent. The adjudication operated

to transform a sentence with a release date in September,

1994, which Respondent had earned by accumulation of

all possible good time, into an indefinite and probable

lifelong confinement.

For the reasons stated earlier, the Court should find the

Act is punitive in purpose and effect. Because the Act

is also both retrospective in application and operates to

the increase Respondent's punishment, it must be over-

turned as a violation of the ex post facto clause.”

Ill. RESPONDENT'S ADJUDICATION AND INCAPACI-

TATION AS SEXUAL PREDATOR CONSTITUTES

A SECOND PROSECUTION AND PUNISHMENT,

IN VIOLATION OF DOUBLE JEOPARDY

In 1984, Respondent entered into a plea agreement

with the State of Kansas in which he admitted his guilt

to two counts of indecent liberties. In return for Mr.

Hendricks’ waiver of his constitutional rights, the State

agreed to recommend that the defendant receive concur-

rent terms of 5-20 years imprisonment. Ten years later,

15 Even if the Court does not find the Act as a whole to be a

criminal scheme, the ex post facto clause may still be offended by

a “civil” law. Such a[n ex post facto] law may inflict penalties

on the person. .. “ Fletcher v. Peck, 6 Cranch 137, 138, 162 (1810).

While the new law must be penalizing, there is no requirement

that it be a criminal enactment. Collins, 497 U.S. at 46.

as Respondent was ready to be released from the sentence

recommended by the State, the same District Attorney's

Office that had agreed to the plea bargain filed the sexual

predator petition. The sexual predator statute required

that, in order to be charged, Respondent have suffered

a conviction for a crime of sexual violence, and the

specific conduct charged in the petition was Respondent’s

prior conviction of indecent liberties. The commitment

proceeding was in form and effect indistinguishable from

a criminal procedure resulting in a new criminal sentence,

a second prosecution against Respondent for his crime.

Even if it is not regarded as a second prosecution, his

commitment is clearly a consecutive indeterminate pun-

ishment for his criminal activity. The State’s proceedings

against him violates double jeopardy.

A. The Sexual Predator Proceedings Against Respond-

ent Constituted a Second Prosecution

This Court has held on numerous occasions that the

Double Jeopardy Clause protects a criminal defendant

from being prosecuted a second time after conviction of

the same offense. Witte v. United States, 115 S.Ct. 2199

(1995); United States v. Halper, 490 U.S. at 439, 440

(1989); North Carolina v. Pearce, 395 U.S. 711, 717

(1969). This protection expresses the idea, “deeply in-

grained in at least the Anglo-American system of juris-

prudence, that the State with all its resources and power

should not be allowed to make repeated attempts to con-

vict an individual for an alleged offense, thereby subjecting

him to embarrassment, expense and ordeal and compell-

ing him to live in a continuing state of anxiety and in-

security.”. Green v. United States, 355 US. 184, 187

(1957). Thus, in the analogous case of Breed v. Jones,

421 U.S. 519, 529 (1975), where the court held a “civil”

juvenile proceeding which was then followed by an adult

prosecution for the same crime to violate double jeopardy,

the Court noted that because of the nature and resources

of the State, “such a proceeding imposes heavy pressures

and burdens—psychologica’, physical and financial—on

a person charged” which the individual should only be

required to bear once.

All of these interests were implicated by the State's

conduct in this case. Ten years after Respondent had

been placed in jeopardy, entered a guilty plea, and was

sentenced for an offense, he was charged, detained, sub-

jected to a lengthy hearing, and ultimately remanded to

potentially life-long custody. Since the setting and stakes

were at least the equal of his original criminal adjudica-

tion, and since, as we have demonstrated, the Sexual Pred-

ator Statute is essentially a criminal proceeding, the suc-

cessive prosecution by the same district attorney's office

implicated Respondent's interest in double jeopardy.

B. The Second Prosecution was for the “Same Crime”

as Respondent’s Conviction for Indecent Liberties

In this case, the State secured in 1984 a conviction

against Respondent for indecent liberties, and it then se-

cured a finding that he was a sexual predator, which re-

quired his commission of a crime of “sexual violence”

based upon that indecent liberties conviction. No conduct

committed after the conviction was either charged or was

required to be proved.

In determining whether a second prosecution has oc-

curred for the same offense, the Court has inquired

whether “each offense contains an element not contained

in the other.” United States v. Dixon, 509 U.S. 688, 696

(1993) (quoting Blockburger v. United States, 284 U.S.

299, 302 (1932)). By its terms, the sexually violent

predator act requires that the defendant have been con-

victed or charged with a “sexually violent offense” and

it expressly lists “indecent liberties with a child as de-

fined in K.S.A. 21-3503” as one of the sexually violent

crimes. K.S.A. 59-29a01(a), (e)(2). Proving the de-

fendant’s commission of a sexually violent offense in-

variably proves one of the two requirements of a commit-

ment, with the State being left to prove that the defendant

continued to have a mental abnormality or personality

disorder predisposing him toward se~*«l violence.

In light of this statutory structure, the underlying sex-

ually violent offense is “a species of lesser-included of-

fense”, Illinois v. Vitale, 447 U.S. 410, 420 (1980), with

the greater offense, the sexual predator commitment, in-

corporating and requiring proof of the same elements as

the sexually violent offense. Since the defendant was

already convicted of the lesser crime, conviction on the

greater violates double jeopardy. See Brown v. Ohio, 432

U.S. 161 (1977) (defendant convicted of lesser included

offense of joy riding cannot be reprosecuted for greater

offense of auto theft).

As this Court has repeatedly made clear, the fact that

the State has set forth more than one sexually violent

offense that can potentially trigger a sexual predator hear-

ing does not change the analysis. As long as in the pres-

ent case proof of the lesser crime is necessary, double

jeopardy is implicated. For example, in Whalen y. United

States, 445 U.S. 684 (1980), the Court held that a de-

fendant could not be separately punished for rape and for

felony murder based on killing the victim in the course

of the rape. The government argued that the greater of-

fense (felony murder) does not always require proof of

the lesser (rape), since the predicate offense, according

to the government, could have been some other lesser

felony. The Court rejected the argument, noting that “in

the present case,” proof of the particular lesser crime,

rape, was a necessary element of the felony murder.

Cases both before and after Whalen are fully consistent

with this view. Thus, in Harris v. Oklahoma, 433 US.

682 (1977) (per curiam), the Court held that where the

defendant was convicted of a felony-murder based upon

a robbery with a firearm, he could not thereafter be prose-

cuted for the underlying robbery offense. See also United

States v. Dixon, 509 U.S. 688, 697, 698 (1993): (opin-

ion of Scalia, J., and Kennedy, J.) (where contempt sanc-

tion was based on violating the terms of a conditional

release, and those terms prohibited violating any crim-

inal law, defendant could not subsequently be prosecuted

for violating the drug offense on which the contempt sanc-

tion was based.). Because, in this case, the State was

required to prove a sexually violent offense, and because

the state specifically charged the Respondent with having

been convicted on November 1984, of the sexually violent

offense of indecent liberties, in violation of K.S.A. 21-

3503, precisely the offense of which he had been convicted

10 years before, the predator proceeding constituted a

second prosecution for the same offense, in violation of

double jeopardy.

C. The Sexual Predator Commitment Constitutes a

Second Punishment

Even if the Court does not agree with our submission

that the Sexual Predator proceeding is a second prosecu-

tion, it nevertheless violates double jeopardy because it

consists of a second punishment, indeed a consecutive in-

determinate lifetime commitment, for Respondent's offense

of indecent liberties. This Court has repeatedly empha-

sized that the Double Jeopardy Clause serves the func-

tion of preventing both successive punishment and suc-

cesive prosecution, Witte v. United States, 115 S.Ct.

2199, 2204 (1995); Dixon, 509 U.S. at 704; North Caro-

lina v. Pearce, 395 U.S. 711, 718 (1969) and that “the

Constitution was designed as much to prevent the criminal

from being twice punished for the same offense as being

twice tried for it.” Witte, 115 S.Ct. at 2204 (quoting Ex

Parte Lange, 85 U.S. (18 Wall. 163) 173 (1874)).

In Lange, the defendant had been convicted for a crime

authorizing payment of a fine and or sentence of imprison-

ment. The court mistakenly sentenced him to both and,

after the defendant paid his fine and served five days of

his term, he filed a writ of habeas corpus. The trial court

attempted to vacate its earlier judgment and reimpose a

new sentence of imprisonment. The Supreme Court

ordered the defendant released and held that once he

had served either lawful part of his previously-imposed

sentence, the “power of the court to punish further was

gone.” Jd. at 176. The Court reasoned that the protec-

tion against double jeopardy would be of little value if

after judgment were rendered against a criminal and sen-

tence executed, “he can again be sentenced on that con-

viction to another and different punishment, or to endure

the same punishment a second time.” Jd. at 173.

Succeeding cases have interpreted this principle to pro-

tect a defendant “against additions to a sentence in a sub-

Sequent proceeding that upset a defendant's legitimate ex-

pectation of finality.” Jones v. Thomas, 491 U.S. 376,

385 (1989). Thus, “when the Government already has

imposed a criminal penalty and seeks to impose additional

punishment in a second proceeding, the Double Jeopardy

Clause protects against the possibility that the Govern-

ment is seeking the second punishment because it is dis-

satisfied with the sanction obtained in the first proceed-

ing.” United States v. Halper, 490 U.S. 435, 451 n.10

(1989),

The sanction imposed upon Mr. Hendricks in the sexual

predator proceeding is an attempt, thinly veiled at best,

to seek an additional term of incarceration because the

State now believes it may have been too lenient in its

criminal adjudication. The State fully possessed the

power, in 1984, to seek a lifetime indeterminate sentence

of incarceration, with provision for treatment and the

possibility of release, upon Mr. Hendricks, as a result of

his crime of indecent liberties. The decision of the same

prosecutor’s office that entered into the plea bargain

against Mr. Hendricks to now seek this consecutive inde-

terminate incarceration touches upon the most basic and

long-standing reasons for protection against multiple

punishment.

Despite the “civil label of convenience,” (see Breed v.

Jones, 421 U.S. 519, 529 (1975)) attached to the Sexual

Predator Act, there is simply no question of its punitive

nature. (See Part 1). As this Court recognized in Specht,

there is really no difference between incapacitative confine-

ment pursuant to a criminal offender statute and this type

of “civil” commitment. The consequence of the adjudica-

tion include both the stigma of being labeled a “predator,”

a designation at least as devastating as that of being

labeled a criminal, and the deprivation of liberty for many

years. Compare Breed, 421 U.S. at 529. As in Breed,

the Sexual Predator statu‘e carries the two most telling

features of criminal punishment, the requirement of a find-

ing of guilt for past conduct and incarceration had upon

that finding. Moreover, as the Kansas Supreme Court

correctly found, the State’s alternative purpose assigned

to its statute, that of “treatment”, is “incidental at best”

to its primary purpose of incarceration, and cannot render

the statute remedial.

Respondent was fully punished for his crime committed

in 1984. Respondent never denied he was criminally re-

sponsible, and the State never argued he was mentally ill.

The State does not argue that Respondent’s condition has

changed; indeed, it argues that it has been the same for

decades. Apparently, the State now believes it should

have imposed a greater punishment in 1984 than the sen-

tence it in fact recommended. However, it would be a

violation of the most basic policies underlying double

jeopardy to allow the State to act upon that belief and

incarcerate this 60 year-old, whose sentence has expired,

for the rest of his life.

CONCLUSION

Mr. Hendricks requests that the Court affirm the judg-

ment of the Kansas Supreme Court.

Respectfully submitted,

THOMAS J. WEILERT

Counsel of Record

250 N. Water, Suite 215

Wichita, Kansas 67202

(316) 263-9323

Counsel for Respondent

July 31, 1996 and Cross Petitioner

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