Kansas v. Hendricks

United States Supreme Court

521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d. 501 (1997)

In this case the Court considers the constitutionality of state legislation that permits violent sexual predators to be confined even after their prison sentences are completed.

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.” . . . 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 . . . “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.” . . . 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 . . . and now reverse the judgment below. . . .

. . . Although freedom from physical restraint “has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action,” . . . 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. . . .

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. . . . We have consistently upheld such involuntary commitment statutes provided the confinement takes place pursuant to proper procedures and evidentiary standards. . . . 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. . . .

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.” . . . 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.” . . . 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.” . . . 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. . . .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. … 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,” . . . but the Court itself has used a variety of expressions to describe the mental condition of those properly subject to civil confinement. . . .

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. . . . 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. . . . Legal definitions, however, which must “take into account such issues as individual responsibility . . . and competency,” need not mirror those advanced by the medical profession. . . .

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. . . . Hendricks even conceded that, when he becomes “stressed out,” he cannot “control the urge” to molest children. . . . 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-Facto Clauses 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.” . . . 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.” . . . 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,” . . . 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.” . . . 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.” . . . 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. . . . 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.” . . .

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. . . . 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. . . . 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.” . . . The State may take measures to restrict the freedom of the dangerously mentally ill. This is a legitimate nonpunitive governmental objective and has been historically so regarded. . . .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. . . . If detention for the purpose of protecting the community from harm necessarily constituted 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. . . . If, at any time, the confined person is adjudged “safe to be at large,” he is statutorily entitled to immediate release. . . .

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. . . . 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. . . . 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. . . . 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. …

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. . . . 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, . . . 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, . . . 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. . . . 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. . . .

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). . . . 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. . . . Other of the Act’s sections echo this obligation to provide treatment for committed persons. . . . Thus . . . “the State has a statutory obligation to provide ‘care and treatment for [persons adjudged sexually dangerous] designed to effect recovery,’ ” . . . and we may therefore conclude that “the State has . . . provided for the treatment of those it commits.”

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. 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.” . . .

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.

…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. . . . 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. . . . 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 Blockburger v. United States . . . (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.” 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-Facto Clause, which “ ‘forbids the application of any new punitive measure to a crime already consummated,’ ” has been interpreted to pertain exclusively to penal statutes. . . . 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.

Justice Kennedy, concurring. . . .

Justice Breyer, [joined by Justices Stevens, Souter and Ginsburg] dissenting.

I agree with the majority that the Kansas Act’s “definition of ‘mental abnormality’ ” satisfies the “substantive” requirements of the Due Process Clause. . . . Kansas, however, concedes that Hendricks’ condition is treatable; yet the Act did not provide Hendricks (or others like him) with any treatment until after his release date from prison and only inadequate treatment thereafter. These, and certain other, special features of the Act convince me that it was not simply an effort to commit Hendricks civilly, but rather an effort to inflict further punishment upon him. The Ex Post-Facto Clause therefore prohibits the Act’s application to Hendricks, who

committed his crimes prior to its enactment. . . .

The statutory provisions before us do amount to punishment primarily because . . . the legislature did not tailor the statute to fit the nonpunitive civil aim of treatment, which it concedes exists in Hendricks’ case. The Clause in these circumstances does not stand as an obstacle to achieving important protections for the public’s safety; rather it provides an assurance that, where so significant a restriction of an individual’s basic freedoms is at issue, a State cannot cut corners. Rather, the legislature must hew to the Constitution’s liberty protecting line. . . .