Supreme Court of the United States
Syllabus
KANSAS
v. HENDRICKS
Certiorari to the supreme
court of Kansas
No. 95-1649. Argued December 10, 1996 --Decided June 23, 1997
Kansas' Sexually Violent Predator Act
establishes procedures for the civil commitment of persons who, due to a
"mental abnormality" or a "personality disorder," are
likely to engage in "predatory acts of sexual violence." Kansas filed
a petition under the Act in state court to commit respondent (and cross
petitioner) Hendricks, who had a long history of sexually molesting children
and was scheduled for release from prison. The court reserved ruling on
Hendricks' challenge to the Act's constitutionality, but granted his request
for a jury trial. After Hendricks testified that he agreed with the state
physician's diagnosis that he suffers from pedophilia and is not cured and that
he continues to harbor sexual desires for children that he cannot control when
he gets "stressed out," the jury determined that he was a sexually
violent predator. Finding that pedophilia qualifies as a mental abnormality
under the Act, the court ordered him committed. On appeal, the State Supreme
Court invalidated the Act on the ground that the precommitment condition of a
"mental abnormality" did not satisfy what it perceived to be the
"substantive" due process requirement that involuntary civil commitment
must be predicated on a "mental illness" finding. It did not address
Hendricks' ex post-facto and double jeopardy claims.
Held:
1. The Act's definition of
"mental abnormality" satisfies "substantive" due process
requirements. An individual's constitutionally protected liberty interest in
avoiding physical restraint may be overridden even in the civil context.
Jacobson
v. Massachusetts,197 U.S. 11, 26. This Court has consistently upheld
involuntary commitment statutes that detain people who are unable to control
their behavior and thereby pose a danger to the public health and safety,
provided the confinement takes place pursuant to proper procedures and
evidentiary standards. Foucha v. Louisiana,504 U.S. 71, 80. The Act unambiguously requires a
precommitment finding of dangerousness either to one's self or to others, and
links that finding to a determination that the person suffers from a
"mental abnormality" or "personality disorder." Generally,
this Court has sustained a commitment statute if it couples proof of dangerousness
with proof of some additional factor, such as a "mental illness" or
"mental abnormality," see, e.g., Hellerv.
Doe,509 U.S. 312, 314-315, for
these additional requirements serve to limit confinement to those who suffer
from a volitional impairment rendering them dangerous beyond their control. The
Act sets forth comparable criteria with its precommitment requirement of
"mental abnormality" or "personality disorder." Contrary to
Hendricks' argument, this Court has never required States to adopt any particular
nomenclature in drafting civil commitment statutes and leaves to the States the
task of defining terms of a medical nature that have legal significance. Cf.
Jones v. United States,463 U.S. 354, 365, n. 13. The
legislature is therefore not required to use the specific term "mental
illness" and is free to adopt any similar term. Pp. 8-13.
2. The Act does not
violate the Constitution's double jeopardy prohibition or its ban on ex
post-facto lawmaking. Pp. 13-24.
(a) The Act does not establish criminal proceedings, and involuntary confinement under it is not punishment. The categorization of a particular proceeding as civil or criminal is a question of statutory construction. Allenv. Illinois,478 U.S. 364, 368. Nothing on the face of the Act suggests that the Kansas Legislature sought to create anything other than a civil commitment scheme. That manifest intent will be rejected only if Hendricks provides the clearest proof that the scheme is so punitive in purpose or effect as to negate Kansas' intention to deem it civil. United States v. Ward,448 U.S. 242, 248-249. He has failed to satisfy this heavy burden. Commitment under the Act does not implicate either of the two primary objectives of criminal punishment: retribution or deterrence. Its purpose is not retributive: It does not affix culpability for prior criminal conduct, but uses such conduct solely for evidentiary purposes; it does not make criminal conviction a prerequisite for commitment; and it lacks a scienter requirement, an important element in distinguishing criminal and civil statutes. Nor can the Act be said to act as a deterrent, since persons with a mental abnormality or personality disorder are unlikely to be deterred by the threat of confinement. The conditions surrounding confinement--essentially the same as conditions for any civilly committed patient--do not suggest a punitive purpose. Although the commitment scheme here involves an affirmative restraint, such restraint of the dangerously mentally ill has been historically regarded as a legitimate nonpunitive objective. Cf. United Statesv. Salerno,481 U.S. 739, 747. The confinement's potentially indefinite duration is linked, not to any punitive objective, but to the purpose of holding a person until his mental abnormality no longer causes him to be a threat to others. He is thus permitted immediate release upon a showing that he is no longer dangerous, and the longest he can be detained pursuant to a single judicial proceeding is one year. The State's use of procedural safeguards applicable in criminal trials does not itself turn the proceedings into criminal prosecutions. Allen, supra, at 372. Finally, the Act is not necessarily punitive if it fails to offer treatment where treatment for a condition is not possible, or if treatment, though possible, is merely an ancillary, rather than an overriding, state concern. The conclusion that the Act is nonpunitive removes an essential prerequisite for both Hendricks' double jeopardy and ex post-facto claims. Pp. 13-21.
(b) Hendricks' confinement does not amount to a second prosecution and punishment for the offense for which he was convicted. Because the Act is civil in nature, its commitment proceedings do not constitute a second prosecution. Cf. Jones, supra. As this commitment is not tantamount to punishment, the detention does not violate the Double Jeopardy Clause, even though it follows a prison term. Baxstrom v. Herold,383 U.S. 107. Hendricks' argument that, even if the Act survives the "multiple punishments" test, it fails the "same elements" test of Blockburger v. United States,284 U.S. 299, is rejected, since that test does not apply outside of the successive prosecution context. Pp. 22-23.
(c) Hendricks' ex post-facto claim is similarly flawed. The Ex Post-Facto Clause pertains exclusively to penal statutes. California Dept. of Correctionsv. Morales, 514 U.S. 499, 505. Since the Act is not punishment, its application does not raise ex post-facto concerns. Moreover, the Act clearly does not have retroactive effect. It does not criminalize conduct legal before its enactment or deprive Hendricks of any defense that was available to him at the time of his crimes. Pp. 23-24.
259 Kan. 246, 912 P. 2d 129, reversed.
Thomas, J.,
delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor,
Scalia, and Kennedy, JJ., joined. Kennedy, J., filed a
concurring opinion. Breyer, J., filed a dissenting opinion, in which Stevens
and Souter, JJ., joined, and in which Ginsburg, J.,
joined as to Parts II and III.
* Together with No. 95-9075, Hendricks v. Kansas,
also on certiorari to the same court.
SUPREME COURT OF THE UNITED STATES
Nos. 95-1649 and 95-9075
KANSAS, PETITIONER 95-1649 v. LEROY HENDRICKS LEROY HENDRICKS,
PETITIONER 95-9075
On writs of certiorari to the supreme court of
Kansas
[June 23, 1997]
Justice Thomas delivered the opinion of the
Court.
In 1994, Kansas enacted
the Sexually Violent Predator Act, which establishes procedures for the civil
commitment of persons who, due to a "mental abnormality" or a
"personality disorder," are likely to engage in "predatory acts
of sexual violence." Kan. Stat. Ann. §59-29a01 et seq.
(1994). The State invoked the Act for the first time to commit Leroy
Hendricks, an inmate who had a long history of sexually molesting children, and
who was scheduled for release from prison shortly after the Act became law.
Hendricks challenged his commitment on, inter alia,
"substantive" due process, double jeopardy, and ex post-facto
grounds. The Kansas Supreme Court invalidated the Act, holding that its
pre-commitment condition of a "mental abnormality" did not satisfy
what the court perceived to be the "substantive" due process
requirement that involuntary civil commitment must be predicated on a finding
of "mental illness." In re Hendricks, 259 Kan. 246,
261, 912 P. 2d 129, 138 (1996). The State of Kansas petitioned for
certiorari. Hendricks subsequently filed a cross petition in which he
reasserted his federal double jeopardy and ex post-facto claims. We granted
certiorari on both the petition and the cross petition, 518 U. S. __ (1996),
and now reverse the judgment below.
The Kansas
Legislature enacted the Sexually Violent Predator Act (Act) in 1994 to grapple
with the problem of managing repeat sexual offenders. [n.1] Although Kansas already
had a statute addressing the involuntary commitment of those defined as
"mentally ill," the legislature determined that existing civil
commitment procedures were inadequate to confront the risks presented by
"sexually violent predators." In the Act's preamble, the legislature
explained:
"[A] small but
extremely dangerous group of sexually violent predators exist who do not have a
mental disease or defect that renders them appropriate for involuntary
treatment pursuant to the [general involuntary civil commitment statute] . . .
. In contrast to persons appropriate for civil commitment under the [general
involuntary civil commitment statute], sexually violent predators generally
have anti social personality features which are unamenable to existing mental
illness treatment modalities and those features render them likely to engage in
sexually violent behavior. The legislature further finds that sexually violent
predators' likelihood of engaging in repeat acts of predatory sexual violence
is high. The existing involuntary commitment procedure . . . is inadequate to
address the risk these sexually violent predators pose to society. The
legislature further finds that the prognosis for rehabilitating sexually
violent predators in a prison setting is poor, the treatment needs of this
population are very long term and the treatment modalities for this population
are very different than the traditional treatment modalities for people
appropriate for commitment under the [general involuntary civil commitment
statute]." Kan. Stat. Ann. §5929a01 (1994).
As a result, the
Legislature found it necessary to establish "a civil commitment procedure
for the long term care and treatment of the sexually violent predator." Ibid. The Act defined a "sexually violent
predator" as: "any person who has been convicted of or charged with a
sexually violent offense and who suffers from a mental abnormality or
personality disorder which makes the person likely to engage in the predatory
acts of sexual violence." §59-29a02(a).
A "mental
abnormality" was defined, in turn, as a "congenital or acquired
condition affecting the emotional or volitional capacity which predisposes the
person to commit sexually violent offenses in a degree constituting such person
a menace to the health and safety of others." §59-29a02(b).
As originally
structured, the Act's civil commitment procedures pertained to: (1) a presently
confined person who, like Hendricks, "has been convicted of a sexually
violent offense" and is scheduled for release; (2) a person who has been
"charged with a sexually violent offense" but has been found
incompetent to stand trial; (3) a person who has been found "not guilty by
reason of insanity of a sexually violent offense"; and (4) a person found
"not guilty" of a sexually violent offense because of a mental
disease or defect. § 59-29a03(a), §22-3221 (1995).
The initial version
of the Act, as applied to a currently confined person such as Hendricks, was
designed to initiate a specific series of procedures. The custodial agency was
required to notify the local prosecutor 60 days before the anticipated release
of a person who might have met the Act's criteria. §59-29a03. The prosecutor
was then obligated, within 45 days, to decide whether to file a petition in
state court seeking the person's involuntary commitment. §59-29a04. If such a
petition were filed, the court was to determine whether "probable
cause" existed to support a finding that the person was a "sexually
violent predator" and thus eligible for civil commitment. Upon such a
determination, transfer of the individual to a secure facility for professional
evaluation would occur. §59-29a05. After that evaluation, a trial would be held
to determine beyond a reasonable doubt whether the individual was a sexually
violent predator. If that determination were made, the person would then be
transferred to the custody of the Secretary of Social and Rehabilitation
Services (Secretary) for "control, care and treatment until such time as
the person's mental abnormality or personality disorder has so changed that the
person is safe to be at large." §59-29a07(a).
In addition to placing the
burden of proof upon the State, the Act afforded the individual a number of
other procedural safeguards. In the case of an indigent person, the State was
required to provide, at public expense, the assistance of counsel and an
examination by mental health care professionals. §59-29a06. The individual also
received the right to present and cross examine witnesses, and the opportunity
to review documentary evidence presented by the State. §59-29a07.
Once an individual was
confined, the Act required that "[t]he
involuntary detention or commitment . . . shall conform to constitutional
requirements for care and treatment." §59-29a09. Confined persons were
afforded three different avenues of review: First, the committing court was
obligated to conduct an annual review to determine whether continued detention
was warranted. §5929a08. Second, the Secretary was
permitted, at any time, to decide that the confined individual's condition had
so changed that release was appropriate, and could then authorize the person to
petition for release. §59-29a10. Finally, even without the Secretary's
permission, the confined person could at any time file a release petition. §59-29a11.
If the court found that the State could no longer satisfy its burden under the
initial commitment standard, the individual would be freed from
confinement.
In 1984, Hendricks
was convicted of taking "indecent liberties" with two 13-year old
boys. After serving nearly 10 years of his sentence, he was slated for release
to a halfway house. Shortly before his scheduled release, however, the State
filed a petition in state court seeking Hendricks' civil confinement as a
sexually violent predator. On August 19, 1994, Hendricks appeared before the
court with counsel and moved to dismiss the petition on the grounds that the Act
violated various federal constitutional provisions. Although the court reserved
ruling on the Act's constitutionality, it concluded that there was probable
cause to support a finding that Hendricks was a sexually violent predator, and
therefore ordered that he be evaluated at the Larned
State Security Hospital.
Hendricks
subsequently requested a jury trial to determine whether he qualified as a
sexually violent predator. During that trial, Hendricks' own testimony revealed
a chilling history of repeated child sexual molestation and abuse, beginning in
1955 when he exposed his genitals to two young girls. At that time, he pleaded
guilty to indecent exposure. Then, in 1957, he was convicted of lewdness
involving a young girl and received a brief jail sentence. In 1960, he molested
two young boys while he worked for a carnival. After serving two years in
prison for that offense, he was paroled, only to be rearrested for molesting a
7year old girl. Attempts were made to treat him for his sexual deviance, and in
1965 he was considered "safe to be at large," and was discharged from
a state psychiatric hospital. App. 139-144.
Shortly thereafter,
however, Hendricks sexually assaulted another young boy and girl--he performed
oral sex on the 8-year old girl and fondled the 11-year old boy. He was again
imprisoned in 1967, but refused to participate in a sex offender treatment
program, and thus remained incarcerated until his parole in 1972. Diagnosed as
a pedophile, Hendricks entered into, but then abandoned, a treatment program.
He testified that despite having received professional help for his pedophilia,
he continued to harbor sexual desires for children. Indeed, soon after his 1972
parole, Hendricks began to abuse his own stepdaughter and stepson. He forced the
children to engage in sexual activity with him over a period of approximately
four years. Then, as noted above, Hendricks was convicted of "taking
indecent liberties" with two adolescent boys after he attempted to fondle
them. As a result of that conviction, he was once again imprisoned, and was
serving that sentence when he reached his conditional release date in September
1994.
Hendricks admitted
that he had repeatedly abused children whenever he was not confined. He
explained that when he "get[s] stressed out," he "can't control
the urge" to molest children. Id., 172. Although
Hendricks recognized that his behavior harms children, and he hoped he would
not sexually molest children again, he stated that the only sure way he could
keep from sexually abusing children in the future was "to die." Id., at 190. Hendricks readily agreed with the state
physician's diagnosis that he suffers from pedophilia and that he is not cured
of the condition; indeed, he told the physician that "treatment is
bull----." Id., at 153, 190. [n.2] The
jury unanimously found beyond a reasonable doubt that Hendricks was a sexually
violent predator. The trial court subsequently determined, as a matter of state
law, that pedophilia qualifies as a "mental abnormality" as defined
by the Act, and thus ordered Hendricks committed to the Secretary's custody.
Hendricks appealed, claiming, among other things, that application
of the Act to him violated the Federal Constitution's Due Process, Double
Jeopardy, and Ex Post FactoClauses. The Kansas
Supreme Court accepted Hendricks' due process claim. In re
Hendricks, 259 Kan., at 261, 912 P. 2d, at 138. The court declared that
in order to commit a person involuntarily in a civil proceeding, a State is
required by "substantive" due process to prove by clear and
convincing evidence that the person is both (1) mentally ill, and (2) a danger
to himself or to others. Id., at 259, 912 P. 2d, at
137. The court then determined that the Act's definition of "mental
abnormality" did not satisfy what it perceived to be this Court's
"mental illness" requirement in the civil commitment context. As a
result, the court held that "the Act violates Hendricks' substantive due
process rights." Id., at 261, 912 P. 2d, at 138.
The majority did not
address Hendricks' ex post-facto or double jeopardy claims. The dissent,
however, considered each of Hendricks' constitutional arguments and rejected
them. Id., at 264-294, 912 P. 2d, 140-156 (Larson, J.,
dissenting).
Kansas argues that the Act's definition of
"mental abnormality" satisfies "substantive" due process
requirements. We agree. Although freedom from physical restraint "has
always been at the core of the liberty protected by the Due Process Clause from
arbitrary governmental action," Foucha v. Louisiana,504
U.S. 71, 80 (1992), that liberty interest is not
absolute. The Court has recognized that an individual's
constitutionally protected interest in avoiding physical restraint may be
overridden even in the civil context:
"[T]he liberty
secured by the Constitution of the United States to every person within its
jurisdiction does not import an absolute right in each person to be, at all
times and in all circumstances, wholly free from restraint. There are manifold
restraints to which every person is necessarily subject for the common good. On
any other basis organized society could not exist with safety to its
members." Jacobsonv. Massachusetts,197 U.S. 11, 26 (1905).
Accordingly, States
have in certain narrow circumstances provided for the forcible civil detainment
of people who are unable to control their behavior and who thereby pose a
danger to the public health and safety. See, e.g., 1788 N. Y. Laws, ch. 31 (Feb. 9, 1788) (permitting confinement of the
"furiously mad"); see also A. Deutsch, The Mentally Ill in America
(1949) (tracing history of civil commitment in the 18th and 19th centuries); G.
Grob, Mental Institutions in America: Social Policy
to 1875 (1973) (discussing colonial and early American civil commitment
statutes). We have consistently upheld such involuntary commitment statutes
provided the confinement takes place pursuant to proper procedures and
evidentiary standards. See Foucha, supra, at 80; Addington v. Texas,441 U.S. 418, 426-427 (1979). It thus
cannot be said that the involuntary civil confinement of a limited subclass of
dangerous persons is contrary to our understanding of ordered liberty. Cf. id.,
at 426.
The challenged Act
unambiguously requires a finding of dangerousness either to one's self or to
others as a prerequisite to involuntary confinement. Commitment proceedings can
be initiated only when a person "has been convicted of or charged with a
sexually violent offense," and "suffers from a mental abnormality or
personality disorder which makes the person likely to engage in the predatory acts
of sexual violence." Kan. Stat. Ann. §59-29a02(a)
(1994). The statute thus requires proof of more than a mere predisposition to
violence; rather, it requires evidence of past sexually violent behavior and a
present mental condition that creates a likelihood of such conduct in the
future if the person is not incapacitated. As we have recognized, "[p]revious instances of violent behavior are an important
indicator of future violent tendencies." Hellerv. Doe,509 U.S. 312, 323 (1993); see also
Schall v. Martin,467 U.S. 253, 278 (1984)
(explaining that "from a legal point of view there is nothing inherently
unattainable about a prediction of future criminal conduct"). A finding of
dangerousness, standing alone, is ordinarily not a sufficient ground upon which
to justify indefinite involuntary commitment. We have sustained civil
commitment statutes when they have coupled proof of dangerousness with the
proof of some additional factor, such as a "mental illness" or
"mental abnormality." See, e.g.,Heller,
supra, 314315 (Kentucky statute permitting commitment of "mentally
retarded" or "mentally ill" and dangerous individual); Allen v.
Illinois,478 U.S. 364, 366 (1986)
(Illinois statute permitting commitment of "mentally ill" and
dangerous individual); Minnesota ex rel. Pearsonv. Probate Court of Ramsey Cty.,309 U.S. 270, 271272 (1940) (Minnesota statute permitting commitment of
dangerous individual with "psychopathic personality"). These added
statutory requirements serve to limit involuntary civil confinement to those
who suffer from a volitional impairment rendering them dangerous beyond their
control. The Kansas Act is plainly of a kind with these other civil commitment
statutes: It requires a finding of future dangerousness, and then links that
finding to the existence of a "mental abnormality" or
"personality disorder" that makes it difficult, if not impossible,
for the person to control his dangerous behavior. Kan. Stat. Ann. §59-29a02(b) (1994). The precommitment requirement of a
"mental abnormality" or "personality disorder" is
consistent with the requirements of these other statutes that we have upheld in
that it narrows the class of persons eligible for confinement to those who are
unable to control their dangerousness.
Hendricks nonetheless argues that our earlier
cases dictate a finding of "mental illness" as a prerequisite for
civil commitment, citing Foucha, and Addington. He then asserts that a
"mental abnormality" is not equivalent to a "mental
illness" because it is a term coined by the Kansas Legislature, rather
than by the psychiatric community. Contrary to Hendricks' assertion, the term
"mental illness" is devoid of any talismanic significance. Not only
do "psychiatrists disagree widely and frequently on what constitutes
mental illness," Ake v. Oklahoma,470
U.S. 68, 81 (1985), but the Court itself has used a variety of
expressions to describe the mental condition of those properly subject to civil
confinement. See, e.g.,Addington,
441 U. S., at 425-426 (using the terms "emotionally disturbed" and
"mentally ill"); Jackson, 406 U. S., at 732, 737 (using the terms
"incompetency" and "insanity"); cf. Foucha, 504 U. S., at
88 (O'Connor, J., concurring in part and concurring in judgment) (acknowledging
State's authority to commit a person when there is "some medical
justification for doing so").
Indeed, we have
never required State legislatures to adopt any particular nomenclature in
drafting civil commitment statutes. Rather, we have traditionally left to
legislators the task of defining terms of a medical nature that have legal
significance. Cf. Jonesv. United States,463 U.S. 354, 365, n. 13 (1983). As a
consequence, the States have, over the years, developed numerous specialized
terms to define mental health concepts. Often, those definitions do not fit
precisely with the definitions employed by the medical community. The legal
definitions of "insanity" and "competency," for example,
vary substantially from their psychiatric counterparts. See, e.g., Gerard, The
Usefulness of the Medical Model to the Legal System, 39 Rutgers L. Rev. 377,
391-394 (1987) (discussing differing purposes of legal system and the medical
profession in recognizing mental illness). Legal definitions, however, which
must "take into account such issues as individual responsibility . . . and
competency," need not mirror those advanced by the medical profession.
American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders xxiii, xxvii (4th ed. 1994) .
To the extent that the civil
commitment statutes we have considered set forth criteria relating to an
individual's inability to control his dangerousness, the Kansas Act sets forth
comparable criteria and Hendricks' condition doubtless satisfies those
criteria. The mental health professionals who evaluated Hendricks diagnosed him
as suffering from pedophilia, a condition the psychiatric profession itself
classifies as a serious mental disorder. See, e.g., id., at 524-525, 527-528; 1
American Psychiatric Association, Treatments of Psychiatric Disorders, 617-633
(1989); Abel & Rouleau, Male Sex Offenders, in Handbook of Outpatient
Treatment of Adults 271 (M. Thase, B. Edelstein,
& M. Hersen, eds. 1990). [n.3] Hendricks even conceded
that, when he becomes "stressed out," he cannot "control the
urge" to molest children. App. 172. This admitted
lack of volitional control, coupled with a prediction of future dangerousness,
adequately distinguishes Hendricks from other dangerous persons who are perhaps
more properly dealt
with exclusively through
criminal proceedings. Hendricks' diagnosis as a pedophile, which qualifies as a
"mental abnormality" under the Act, thus plainly suffices for due
process purposes.
We granted Hendricks' cross petition to
determine whether the Act violates the Constitution's double jeopardy
prohibition or its ban on ex post-facto lawmaking. The thrust of Hendricks'
argument is that the Act establishes criminal proceedings; hence confinement
under it necessarily constitutes punishment. He contends that where, as here,
newly enacted "punishment" is predicated upon past conduct for which
he has already been convicted and forced to serve a prison sentence, the
Constitution's Double Jeopardy and Ex Post-FactoClauses
are violated. We are unpersuaded by Hendricks' argument that Kansas has
established criminal proceedings.
The categorization of a
particular proceeding as civil or criminal "is first of all a question of
statutory construction." Allen, 478 U. S., at 368. We must initially
ascertain whether the legislature meant the statute to establish
"civil" proceedings. If so, we ordinarily defer to the legislature's
stated intent. Here, Kansas' objective to create a civil proceeding is
evidenced by its placement of the Sexually Violent Predator Act within the
Kansas probate code, instead of the criminal code, as well as its description
of the Act as creating a "civil commitment procedure." Kan. Stat.
Ann., Article 29 (1994) ("Care and Treatment for Mentally Ill
Persons"), §59-29a01 (emphasis added). Nothing on the face of the statute
suggests that the legislature sought to create anything other than a civil
commitment scheme designed to protect the public from harm.
Although we recognize that
a "civil label is not always dispositive," Allen,supra, at 369, we will reject the legislature's
manifest intent only where a party challenging the statute provides "the
clearest proof" that "the statutory scheme [is] so punitive either in
purpose or effect as to negate [the State's] intention" to deem it "civil."
United States v. Ward,448 U.S. 242, 248-249 (1980). In those
limited circumstances, we will consider the statute to have established
criminal proceedings for constitutional purposes. Hendricks, however, has
failed to satisfy this heavy burden.
As a threshold matter, commitment
under the Act does not implicate either of the two primary objectives of
criminal punishment: retribution or deterrence. The Act's purpose is not
retributive because it does not affix culpability for prior criminal conduct.
Instead, such conduct is used solely for evidentiary purposes, either to
demonstrate that a "mental abnormality" exists or to support a
finding of future dangerousness. We have previously concluded that an Illinois
statute was nonpunitive even though it was triggered by the commission of a
sexual assault, explaining that evidence of the prior criminal conduct was
"received not to punish past misdeeds, but primarily to show the accused's
mental condition and to predict future behavior." Allen,
supra, at 371. In addition, the Kansas Act does not make a criminal
conviction a prerequisite for commitment--persons absolved of criminal
responsibility may nonetheless be subject to confinement under the Act. See
Kan. Stat. Ann. §59-29a03(a) (1994). An absence of the
necessary criminal responsibility suggests that the State is not seeking
retribution for a past misdeed. Thus, the fact that the Act may be "tied
to criminal activity" is "insufficient to render the statut[e] punitive." United Statesv. Ursery, 518 U. S. __ (1996) (slip op., at 24).
Moreover, unlike a
criminal statute, no finding of scienter is required to commit an individual
who is found to be a sexually violent predator; instead, the commitment
determination is made based on a "mental abnormality" or
"personality disorder" rather than on one's criminal intent. The
existence of a scienter requirement is customarily an important element in
distinguishing criminal from civil statutes. See Kennedyv.
Mendoza-Martinez,372 U.S. 144, 168 (1963). The absence
of such a requirement here is evidence that confinement under the statute is
not intended to be retributive.
Nor can it be said that the legislature
intended the Act to function as a deterrent. Those persons committed under the
Act are, by definition, suffering from a "mental abnormality" or a
"personality disorder" that prevents them from exercising adequate
control over their behavior. Such persons are therefore unlikely to be deterred
by the threat of confinement. And the conditions surrounding that confinement do
not suggest a punitive purpose on the State's part. The State has represented
that an individual confined under the Act is not subject to the more
restrictive conditions placed on state prisoners, but instead experiences
essentially the same conditions as any involuntarily committed patient in the
state mental institution. App. 50-56, 59-60. Because none of the parties argues
that people institutionalized under the Kansas general civil commitment statute
are subject to punitive conditions, even though they may be involuntarily
confined, it is difficult to conclude that persons confined under this Act are
being "punished."
Although the civil
commitment scheme at issue here does involve an affirmative restraint,
"the mere fact that a person is detained does not inexorably lead to the
conclusion that the government has imposed punishment." United
Statesv. Salerno,481 U.S. 739, 746 (1987). The State may take measures to restrict the freedom
of the dangerously mentally ill. This is a legitimate non punitive governmental
objective and has been historically so regarded. Cf. id.,at 747. The Court has, in fact, cited the
confinement of "mentally unstable individuals who present a danger to the
public" as one classic example of nonpunitive detention. Id.,at 748-749. If detention for
the purpose of protecting the community from harm necessarilyconstituted
punishment, then all involuntary civil commitments would have to be considered
punishment. But we have never so held.
Hendricks focuses on his confinement's potentially indefinite duration
as evidence of the State's punitive intent. That focus, however, is misplaced.
Far from any punitive objective, the confinement's duration is instead linked
to the stated purposes of the commitment, namely, to hold the person until his
mental abnormality no longer causes him to be a threat to others. Cf. Jones,463
U. S., at 368 (noting with approval that "because it is impossible to
predict how long it will take for any given individual to recover [from
insanity]--or indeed whether he will ever recover--Congress has chosen . . . to
leave the length of commitment indeterminate, subject to periodic review of the
patients's suitability for release"). If, at any
time, the confined person is adjudged "safe to be at large," he is
statutorily entitled to immediate release. Kan. Stat. Ann. §59-29a07
(1994).
Furthermore,
commitment under the Act is only potentially indefinite. The maximum amount of
time an individual can be incapacitated pursuant to a single judicial proceeding
is one year. §59-29a08. If Kansas seeks to continue the detention beyond that
year, a court must once again determine beyond a reasonable doubt that the
detainee satisfies the same standards as required for the initial confinement. Ibid.This requirement again demonstrates that Kansas does
not intend an individual committed pursuant to the Act to remain confined any
longer than he suffers from a mental abnormality rendering him unable to
control his dangerousness.
Hendricks next
contends that the State's use of procedural safeguards traditionally found in
criminal trials makes the proceedings here criminal rather than civil. In
Allen, we confronted a similar argument. There, the petitioner "place[d]
great reliance on the fact that proceedings under the Act are accompanied by
procedural safeguards usually found in criminal trials" to argue that the
proceedings were civil in name only. 478 U. S., at 371.
We rejected that argument, however, explaining that the State's decision
"to provide some of the safeguards applicable in criminal trials cannot
itself turn these proceedings into criminal prosecutions." Id., at 372. The numerous procedural and evidentiary
protections afforded here demonstrate that the Kansas Legislature has taken
great care to confine only a narrow class of particularly dangerous
individuals, and then only after meeting the strictest procedural standards.
That Kansas chose to afford such procedural protections does not transform a
civil commitment proceeding into a criminal prosecution.
Finally, Hendricks argues that the Act is necessarily punitive
because it fails to offer any legitimate "treatment." Without such
treatment, Hendricks asserts, confinement under the Act amounts to little more
than disguised punishment. Hendricks' argument assumes that treatment for his
condition is available, but that the State has failed (or refused) to provide
it. The Kansas Supreme Court, however, apparently rejected this assumption,
explaining:
"It is clear that the
overriding concern of the legislature is to continue the segregation of
sexually violent offenders from the public. Treatment with the goal of
reintegrating them into society is incidental, at best. The record reflects
that treatment for sexually violent predators is all but nonexistent. The
legislature concedes that sexually violent predators are not amenable to
treatment under [the existing Kansas involuntary commitment statute]. If there
is nothing to treat under [that statute], then there is no mental illness. In
that light, the provisions of the Act for treatment appear somewhat
disingenuous." 259 Kan., at 258, 912 P. 2d, at 136.
It is possible to
read this passage as a determination that Hendricks' condition was untreatable
under the existing Kansas civil commitment statute, and thus the Act's sole
purpose was incapacitation. Absent a treatable mental illness, the Kansas court
concluded, Hendricks could not be detained against his will.
Accepting the Kansas
court's apparent determination that treatment is not possible for this category
of individuals does not obligate us to adopt its legal conclusions. We have
already observed that, under the appropriate circumstances and when accompanied
by proper procedures, incapacitation may be a legitimate end of the civil law.
See Allen,supra, at 373;
Salerno, 481 U. S., at 748-749. Accordingly, the Kansas court's determination
that the Act's "overriding concern" was the continued
"segregation of sexually violent offenders" is consistent with our
conclusion that the Act establishes civil proceedings, 259 Kan., at 258, 912 P.
2d, at 136, especially when that concern is coupled with the State's ancillary
goal of providing treatment to those offenders, if such is possible. While we
have upheld state civil commitment statutes that aim both to incapacitate and
to treat, see Allen, supra, we have never held that the Constitution prevents a
State from civilly detaining those for whom no treatment is available, but who
nevertheless pose a danger to others. A State could hardly be seen as
furthering a "punitive" purpose by involuntarily confining persons
afflicted with an untreatable, highly contagious disease. Accord
Compagnie Francaise de
Navigation a Vapeurv. Louisiana Bd. of Health,186 U.S. 380 (1902) (permitting
involuntary quarantine of persons suffering from communicable diseases).
Similarly, it would be of little value to require treatment as a precondition
for civil confinement of the dangerously insane when no acceptable treatment
existed. To conclude otherwise would obligate a State to release certain
confined individuals who were both mentally ill and dangerous simply because
they could not be successfully treated for their afflictions. Cf. Greenwoodv. United States,350 U.S. 366, 375 (1956) ("The fact that at present there may be little
likelihood of recovery does not defeat federal power to make this initial
commitment of the petitioner"); O'Connorv.
Donaldson,422 U.S. 563, 584 (1975)
(Burger, C. J., concurring) ("[I]t remains a stubborn fact that there are
many forms of mental illness which are not understood, some which are
untreatable in the sense that no effective therapy has yet been discovered for
them, and that rates of `cure' are generally low").
Alternatively, the
Kansas Supreme Court's opinion can be read to conclude that Hendricks' condition
is treatable, but that treatment was not the State's "overriding
concern," and that no treatment was being provided (at least at the time
Hendricks was committed). 259 Kan., at 258, 912 P. 2d, at 136. See also ibid.("It is clear that the primary objective of the Act is
to continue incarceration and not to provide treatment"). Even if we
accept this determination that the provision of treatment was not the Kansas
Legislature's "overriding" or "primary" purpose in passing
the Act, this does not rule out the possibility that an ancillary purpose of
the Act was to provide treatment, and it does not require us to conclude that
the Act is punitive. Indeed, critical language in the Act itself demonstrates
that the Secretary of Social and Rehabilitation Services, under whose custody
sexually violent predators are committed, has an obligation to provide
treatment to individuals like Hendricks. §59-29a07(a)
("If the court or jury determines that the person is a sexually violent
predator, the person shall be committed to the custody of the secretary of
social and rehabilitation services for control, care and treatment until such
time as the person's mental abnormality or personality disorder has so changed
that the person is safe to be at large" (emphasis added)). Other of the
Act's sections echo this obligation to provide
treatment for committed persons. See, e.g., §59-29a01 (establishing civil
commitment procedure "for the long term care and treatment of the sexually
violent predator"); §59-29a09 (requiring the confinement to "conform
to constitutional requirements for care and treatment"). Thus, as in
Allen, "the State has a statutory obligation to provide `care and
treatment for [persons adjudged sexually dangerous] designed to effect
recovery,'" 478 U. S., at 369 (quoting Ill. Rev. Stat., ch. 38, ¶ 105-8 (1985)), and we may therefore conclude that
"the State has . . . provided for the treatment of those it commits."
478 U. S., at 370.
Although the treatment program initially offered Hendricks may
have seemed somewhat meager, it must be remembered that he was the first person
committed under the Act. That the State did not have all of its treatment
procedures in place is thus not surprising. What is significant, however, is
that Hendricks was placed under the supervision of the Kansas Department of
Health and Social and Rehabilitative Services, housed in a unit segregated from
the general prison population and operated not by employees of the Department
of Corrections, but by other trained individuals. [n.4] And,
before this Court, Kansas declared "[a]bsolutely"
that persons committed under the Act are now receiving in the neighborhood of
"31.5 hours of treatment per week." Tr. of Oral Arg.
14-15,
16. [n.5]
Where the State has "disavowed any
punitive intent"; limited confinement to a small segment of particularly
dangerous individuals; provided strict procedural safeguards; directed that
confined persons be segregated from the general prison population and afforded
the same status as others who have been civilly committed; recommended
treatment if such is possible; and permitted immediate release upon a showing
that the individual is no longer dangerous or mentally impaired, we cannot say
that it acted with punitive intent. We therefore hold that the Act does not
establish criminal proceedings and that involuntary confinement pursuant to the
Act is not punitive. Our conclusion that the Act is nonpunitive thus removes an
essential prerequisite for both Hendricks' double jeopardy and ex post-facto
claims.
The Double Jeopardy
Clause provides: "[N]or shall any person be subject for the same offence
to be twice put in jeopardy of life or limb." Although generally
understood to preclude a second prosecution for the same offense, the Court has
also interpreted this prohibition to prevent the State from "punishing
twice, or attempting a second time to punish criminally, for the same
offense." Wittev. United States, 515
U.S. 389, 396 (1995) (emphasis and internal quotation marks omitted).
Hendricks argues that, as applied to him, the Act violates double jeopardy
principles because his confinement under the Act,
imposed after a conviction and a term of incarceration, amounted to both a
second prosecution and a second punishment for the same offense. We
disagree.
Because we have
determined that the Kansas Act is civil in nature, initiation of its commitment
proceedings does not constitute a second prosecution. Cf. Jones v. United
States,463 U.S. 354 (1984) (permitting
involuntary civil commitment after verdict of not guilty by reason of
insanity). Moreover, as commitment under the Act is not tantamount to
"punishment," Hendricks' involuntary detention does not violate the
Double Jeopardy Clause, even though that confinement may follow a prison term.
Indeed, in Baxstromv. Herold,383 U.S. 107 (1966), we expressly recognized that civil commitment could
follow the expiration of a prison term without offending double jeopardy
principles. We reasoned that "there is no conceivable basis for
distinguishing the commitment of a person who is nearing the end of a penal
term from all other civil commitments." Id., at 111-112. If an individual
otherwise meets the requirements for involuntary civil commitment, the State is
under no obligation to release that individual simply because the detention
would follow a period of incarceration.
Hendricks also argues that
even if the Act survives the "multiple punishments" test, it
nevertheless fails the "same elements" test of Blockburgerv.
United States,284 U.S. 299 (1932). Under Blockburger,
"where the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether there are two
offenses or only one, is whether each provision requires proof of a fact which
the other does not." Id., at 304. The Blockburger
test, however, simply does not apply outside of the successive prosecution
context. A proceeding under the Act does not define an "offense," the
elements of which can be compared to the elements of an offense for which the person
may previously have been convicted. Nor does the Act make the commission of a
specified "offense" the basis for invoking the commitment
proceedings. Instead, it uses a prior conviction (or previously charged
conduct) for evidentiary purposes to determine whether a person suffers from a
"mental abnormality" or "personality disorder" and also
poses a threat to the public. Accordingly, we are unpersuaded by Hendricks'
novel application of the Blockburger test and conclude that the Act does not
violate the Double Jeopardy Clause.
Hendricks' ex post-facto claim is similarly
flawed. The Ex Post-FactoClause, which "`forbids
the application of any new punitive measure to a crime already
consummated,'" has been interpreted to pertain exclusively to penal statutes.
California Dept. of Correctionsv.
Morales,514 U.S. 499, 505 (1995) (quoting Lindseyv. Washington,301 U.S. 397, 401 (1937)). As we have previously determined, the Act does not
impose punishment; thus, its application does not raise
ex post-facto concerns. Moreover, the Act clearly does not have retroactive
effect. Rather, the Act permits involuntary confinement based upon a
determination that the person currently both suffers from a "mental
abnormality" or "personality disorder" and is likely to pose a future
danger to the public. To the extent that past behavior is taken into account,
it is used, as noted above, solely for evidentiary purposes. Because the Act
does not criminalize conduct legal before its enactment, nor deprive Hendricks
of any defense that was available to him at the time of his crimes, the Act
does not violate the Ex Post-Facto Clause.
We hold that the
Kansas Sexually Violent Predator Act comports with due process requirements and
neither runs afoul of double jeopardy principles nor constitutes an exercise in
impermissible ex post-facto lawmaking. Accordingly, the judgment of the Kansas
Supreme Court is reversed.
It isso ordered.
1 Subsequent to Hendricks' commitment, the Kansas
Legislature amended the Act in ways not relevant to this case. See, e.g.,
Kan. Stat. Ann. §59-29a03 (Supp. 1996) (changing notification period from 60 to
90 days); §59-29a04 (Supp. 1996) (requiring state attorney general to initiate
commitment proceedings).
2 In addition to Hendricks'
own testimony, the jury heard from Hendricks' stepdaughter and stepson, who
recounted the events surrounding their repeated sexual abuse at Hendricks'
hands. App. 194-212. One of the girls to whom Hendricks exposed himself in 1955
testified as well. Id.,at
191-194. The State also presented testimony from Lester Lee, a licensed
clinical social worker who specialized in treating male sexual offenders, and
Dr. Charles Befort, the chief psychologist at Larned State Hospital. Lee testified that Hendricks had a
diagnosis of personality trait disturbance, passive aggressive personality, and
pedophilia. Id.,at 219-220.
Dr. Befort testified that Hendricks suffered from
pedophilia and is likely to commit sexual offenses against children in the
future if not confined. Id., at 247-248. He further opined that pedophilia
qualifies as a "mental abnormality" within the Act's definition of
that term. Id.,at 263-264.
Finally, Hendricks offered testimony from Dr. William S. Logan, a forensic
psychiatrist, who stated that it was not possible to predict with any degree of
accuracy the future dangerousness of a sex offender. Id.,at 328-331.
3 We recognize, of course, that psychiatric
professionals are not in complete harmony in casting pedophilia, or paraphilias
in general, as "mental illnesses." Compare Brief for American
Psychiatric Association as Amicus Curiae 26 with Brief for Menninger Foundation
et al. as Amici Curiae 22-25. These disagreements, however, do not tie the
State's hands in setting the bounds of its civil commitment laws. In fact, it
is precisely where such disagreement exists that legislatures have been
afforded the widest latitude in drafting such statutes. Cf. Jonesv.
United States,463 U.S. 354, 365, n. 13 (1983). As we
have explained regarding congressional enactments, when a legislature
"undertakes to act in areas fraught with medical and scientific
uncertainties, legislative options must be especially broad and courts should
be cautious not to rewrite legislation." Id., at 370
(internal quotation marks and citation omitted). 4 We have explained that the States enjoy wide latitude in
developing treatment regimens. Youngbergv. Romeo, 457 U.S. 307, 317 (1982) (observing that the State "has considerable
discretion in determining the nature and scope of its responsibilities").
In Allen, for example, we concluded that "the State serves its purpose of
treating rather than punishing sexually dangerous person by committing them to
an institution expressly designed to provide psychiatric care and treatment."
478 U. S., at 373 (emphasis in original omitted). By
this measure, Kansas has doubtless satisfied its obligation to provide
available treatment.
5 Indeed, we have been informed that an August 28, 1995, hearing on
Hendricks' petition for state habeas corpus relief, the trial court, over
admittedly conflicting testimony, ruled that: "[T]he allegation that no
treatment is being provided to any of the petitioners or other persons
committed to the program designated as a sexual predator treatment program is
not true. I find that they are receiving treatment." App. 453-454. Thus,
to the extent that treatment is available for Hendricks' condition, the State
now appears to be providing it. By furnishing such treatment, the Kansas
Legislature has indicated that treatment, if possible, is at least an ancillary
goal of the Act, which easily satisfies any test for determining that the Act
is not punitive.