High Court Tries to Clarify Sex Offender Ruling

In 1997 the U.S. Supreme Court—much to the chagrin of most psychiatrists—ruled that states have a legal right to confine potentially dangerous sex offenders in psychiatric hospitals once they are released from prison. Instead of settling the matter, however, that ruling just introduced a new realm of uncertainty and confusion.

On January 22 the Court issued a follow-up ruling to clarify the confinement criteria it expects states to apply in deciding which sex offenders can be committed to psychiatric hospitals once they complete their prison terms.

In the original case, Kansas v. Hendricks, the justices rejected arguments that Kansas’s first-in-the-nation law, which allowed it to confine dangerous sex offenders in psychiatric hospitals once they had served their sentence, was unconstitutional.

The court’s 5-to-4 majority was not swayed by arguments from APA, civil libertarians, and others that the state was violating the ex-prisoners’ right to due process and subjecting them to double jeopardy when, absent a diagnosis of mental illness and effective treatments, it locks them up indefinitely in a psychiatric facility. The majority also was unmoved by arguments that using psychiatric hospitals as de facto prisons amounted to an abuse of psychiatry.

It said that the Kansas Sexually Violent Predator Act met constitutional muster since it required that an offender must show evidence of “mental abnormality or personality disorder” before he or she could be committed to a psychiatric hospital. It did not mandate the showing of a specific DSM-IV diagnosis.

After the Court’s 1997 ruling, 16 states enacted similar involuntary commitment laws for sex offenders. As of January about 1,200 sex offenders were being held in psychiatric hospitals under these statutes, according to the New York Times.

Kansas and other states had interpreted the 1997 decision to mean that they had a green light to confine sex offenders after prison if state officials believed that the offender was still dangerous due to a mental abnormality (Psychiatric News, July 18, 1997).

Volitional Assessment Required

Justice Stephen Breyer, writing for the 7-to-2 majority in the case decided in January, indicated that the state’s belief in an offender’s future dangerousness could not be the defining standard for this type of commitment. Instead, Breyer said, the state has to believe that the individual shows “serious difficulty in controlling behavior.” The ruling indicates that an assessment of volitional factors must be part of the evaluation.

The recent case, Kansas v. Crane, arose when Michael Crane was about to complete his four-year prison term for sexually assaulting a female clerk in a video store. He had 18 previous arrests, charges, or convictions for criminal activities, some of which involved sexual assaults or attempted assaults. In prison he participated in group therapy, but the sessions did not involve discussion of the sexual behavior that landed him in prison. He never received therapy specifically directed at eliminating his predatory sexual behavior.

Following an evaluation by a psychologist and psychiatrist prior to the end of this sentence, Crane was determined to qualify for a diagnosis of exhibitionism and antisocial personality disorder according to DSM-IV criteria.

This “diagnostic” information was presented during a state-initiated civil commitment procedure as Crane’s prison term was coming to an end. A jury agreed with prosecutors that Crane was a sexually violent predator and should thus be confined in a state psychiatric hospital.

The Kansas Supreme Court reversed this decision on an appeal from Crane. That court’s interpretation of the 1997 ruling was that the commitment criteria had to include a finding that the offender is completely unable to control his violent sexual proclivities and thus poses a danger to the community—a stricter standard than the one the district court applied in allowing Crane to be committed.

The U.S. Supreme Court reversed the Kansas Supreme Court, using the case as its opportunity to clarify what standard it expected states to use when it ruled in Kansas v. Hendricks five years earlier.

In his majority opinion, Breyer emphasized that the trial court was correct in its interpretation that the Supreme Court’s Hendricks decision did not require a showing of “total or complete lack of control” over sexual behavior. But that is not to say, Breyer pointed out, that there does not have to be “any lack-of-control determination.”

The high court’s previous decision should be read as saying that Kansas’s sexual predator law requires the state to show “an abnormality or disorder that makes it ‘difficult, if not impossible, for the [dangerous] person to control his dangerous behavior.’ The word ‘difficult’ indicates that the lack of control was not absolute,” Breyer said. To mandate an absolutist approach to volition and dangerousness would be “unworkable and would risk barring the civil commitment of highly dangerous persons suffering severe mental abnormalities,” he wrote.

‘Mathematical Precision’ Not Needed

He added that in deciding Hendricks in 1997, the Court did not intend to assign so narrow a standard for “lack of control” or “inability to control behavior” that “mathematical precision” would be required to determine whether a person met the commitment criteria.

The Court’s Hendricks ruling considered the issue of “volitional disabilities” because Hendricks was a pedophile who admitted that he would likely be unable to control his sexual impulses in the future. When considering constitutional standards involving civil commitment, however, the Supreme Court has not “distinguished. . .between volitional, emotional, and cognitive impairments,” Breyer explained. (Crane, unlike Hendricks, did not acknowledge that he would probably be unable to control his illegal sexual impulses after leaving prison.)

In declining to require certainty about inability to control sexual behavior, Breyer quoted from APA’s 1983 statement on the insanity defense in his ruling, saying that psychiatrists recognize that there may be “considerable overlap between a. . .defective understanding or appreciation and. . .[an] ability to control. . .behavior.”

In saying that states that want post-prison psychiatric confinements for sexual predators must consider ability to control behavior when they assess an offender’s “mental abnormality,” the Supreme Court set a stricter standard than the state of Kansas wanted to use. (Nineteen other states had filed amicus briefs in support of Kansas’s position that a looser standard should be sufficient.)

APA Reacts

Despite the court’s ruling, APA continues to maintain that “civil commitment is meant for individuals who are mentally ill and not for violent criminals without a mental illness,” Renee Binder, M.D., chair of the APA Commission on Judicial Action, told Psychiatric News.

Binder was pleased that the justices studied the arguments in APA’s Hendricks brief and recognized that “there needs to be some limits set on who is committable under the Kansas Sexually Violent Predator Act.”

In what amounted to a mixed verdict, however, the justices did not indicate any second thoughts about the right of states to pass laws that would confine convicted sex offenders in psychiatric hospitals upon release from prison. Nor did they insist that states with sexual predator commitment laws had to be absolutely sure of an offender’s dangerousness before they could confine that person in a psychiatric facility.

The Supreme Court’s decision in Kansas v. Crane can be read on the Web at www.supct.law.cornell.edu/supct/htm/00-957.ZO.html. ▪