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Kansas V. Hendricks: Marking the Beginning of a Dangerous New Era in Civil Commitment

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Kansas V. Hendricks: Marking the Beginning of a Dangerous New Era in Civil Commitment DePaul Law Review Volume 48 Issue 1 Fall 1998 Article 5 Kansas v. Hendricks: Marking the Beginning of a Dangerous New Era in Civil Commitment Kimberly A. Dorsett Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Kimberly A. Dorsett, Kansas v. Hendricks: Marking the Beginning of a Dangerous New Era in Civil Commitment, 48 DePaul L. Rev. 113 (1998) Available at: https://via.library.depaul.edu/law-review/vol48/iss1/5 This Notes is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. KANSAS v. HENDRICKS: MARKING THE BEGINNING OF A DANGEROUS NEW ERA IN CIVIL COMMITMENT This law reflects confused thinking. ... They make today's mental health providers and psychiatric hospitals into tomorrow's wardens and jails.' INTRODUCTION 2 The nation gasped in horror over the story of Earl Shriner. Shriner was a repeat sex offender, who began his life of violent crimes at sixteen when he killed a schoolmate.3 After his release from a mental institution, Shriner then kidnapped and assaulted two teenage girls.4 While serving his sentence for those crimes, Shriner disclosed to a cellmate that he wanted a van equipped with cages so that he could capture, molest, and kill children.5 Eager about his pending re- lease from prison, Shriner began a diary that carefully outlined his plans for the torture and murder of children. 6 Although the state wanted desperately to involuntarily commit Shriner, current laws in the state did not allow it because he was not mentally ill and had not recently committed an overt act.7 After the state reluctantly released Shriner, he committed his most brutal crime on an innocent seven- year-old boy who was riding his bike near his home in Tacoma, Wash- ington.8 Shriner kidnapped him, raped him, strangled him, and sev- ered his penis. 9 Recent media attention over heinous crimes by sex offenders such as Shriner have roused feelings of rage and hatred for sex offenders. As a result, demands from people nationwide have compelled several states to enact legislation allowing for involuntary civil commitment of sexually violent predators, even after they have fully served their 1. Stephen Lally, Steel Beds v. Iron Bars: New Laws Muddle How to Handle Sex Offenders, WASH. POST, July 27, 1997, at Cl. 2. Barry Siegel, Locking Up Sexual Predators, L.A. TIMES, May 10, 1990, at Al. 3. Id. at A30. 4. Id. 5. Id. 6. Id. 7. Id. 8. Siegel, supra note 2, at Al. 9. Id. DEPAUL LAW REVIEW [Vol. 48:113 criminal sentences.' 0 In 1994, Kansas joined those states by enacting the Sexually Violent Predator Act ("SVP Act")." While many argue that such commitment schemes are necessary to protect communities from these predators,1 2 the constitutionality of these acts is still highly 13 scrutinized. The most recent constitutional challenge came before the United States Supreme Court in Kansas v. Hendricks.'4 This Note analyzes that controversial decision in four parts. Part I discusses the history of sexual predator laws and summarizes the history of the Kansas stat- ute. 15 Part II explains in detail the Court's decision in Kansas v. Hen- dricks.16 Part III analyzes and critiques the justifications advanced by the Court in its decision to uphold the Kansas SVP Act as it applied to Leroy Hendricks.17 Finally, Part IV assesses the impact this case will have on both the legal and mental health communities and on sexual predators who will be confined under these statutes in the future.' 8 10. ARIZ. REV. STAT. ANN. § 13-4601 to 13-4614 (West Supp. 1997); CAL. WELF. & INST. CODE ANN. § 6600-6603 (West Supp. 1997); COLO. REV. STAT. § 16-11.7-101 (Supp. 1997); CONN. GEN. STAT. § 17a-566 (Supp. 1997); FLA. STAT. ANN. § 775.21(1-9) (West Supp. 1997); 725 ILL. COMP. STAT. ANN. § 205/0.01 (West Supp. 1997); IOWA CODE ANN. § 901A (West Supp. 1997); MASS. GEN. LAWS ANN. ch. 123A (West Supp. 1997); MINN. STAT. ANN. § 253B.185 (West Supp. 1997); NEE. REV. STAT. § 29-2923 (West 1997); N.J. STAT. ANN. § 30:4-82.4 et seq. (West 1997); N.M. STAT. ANN. § 43-1-1, 13 (Michie 1993); OR. REV. STAT. § 426.080, .090, .095, .100, .110, .120 (1995); TENN. CODE. ANN. § 33-6-301 (Supp. 1997); UTAH CODE ANN. § 77-16-1 (Supp. 1997); WASH. REV. CODE ANN. § 71.09 (West Supp. 1997); WIs. STAT. ANN. § 980.01 (West Supp. 1997). 11. KAN. STAT. ANN. § 59-29a (West Supp. 1996). 12. See John Kip Cornwell, Protection and Treatment: The Permissible Civil Detention of Sex- ual Predators, 53 WASH. & LEE L. REV. 1293, 1336 (1996) (maintaining that sexual predation is a noxious problem and sexual predator laws are a constitutional way to protect the public); Na- thaniel L. Taylor, Abuse of Judicial Review: The Unwarranted Demise of the Sexually Violent Predators Statute By Young v. Weston, 71 WASH. L. REV. 543, 570 (1996) (emphasizing the ex- treme need for civil commitment statutes in order to protect communities); Juliet M. Dupuy, Comment, The Evolution of Wisconsin's Sexual Predator Law, 79 MARQ. L. REV. 873, 892 (1996) (arguing that sexual predator laws are a very effective way to reduce sexually violent crimes). 13. Robert Marquand, Court Lowers Wall Dividing Church, State ... Elevates Public Safety Over Predator's Rights, CHRISTIAN SCI. MONITOR, June 24, 1997, at 1, 18; John P. Zanini, Con- sidering Hendricks v. Kansas for Massachusetts: Can the Commonwealth Constitutionally Detain Dangerous Persons Who Are Not Mentally Ill?, 23 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 427 (1997) (analyzing the Kansas Supreme Court decision and attempting to predict the outcome at the Supreme Court level); Sarah H. Francis, Note, Sexually Dangerous Person Statute: Consti- tutional Protections of Society and the Mentally Ill or Emotionally-Driven Punishment?, 29 SuF- FOLK U. L. REV. 125 (1995); Editorial, The High Court's Mixed Record. Wrong on Sex Offenders, N.Y. TIMES, June 24, 1997, at A18; Gina Kolata, The Many Myths About Sex Offenders, N.Y. TIMES, Sept. 1, 1996, at El0. 14. 117 S. Ct. 2072 (1997). 15. See infra Part I. 16. See infra Part II. 17. See infra Part III. 18. See infra Part IV. 1998] KANSAS v. HENDRICKS I. BACKGROUND A. History of Civil Commitment Laws In the late 1930s, legislatures began enacting "sex psychopath" stat- utes, which were designed to divert sexually dangerous offenders from the criminal justice system to the mental health system.19 These of- fenders were confined until they either fully recovered or were no longer considered a menace to society.20 By 1960, twenty-six states and the District of Columbia had enacted their own "sexual psycho- path" statutes, under which the offenders would be involuntarily com- mitted and treated after their conviction rather than punished by a traditional prison sentence.2' By the 1980s, however, pressure from the growing civil rights movement and concerns over the ability of the mental health professionals to predict dangerousness and to effec- tively treat sexual predators prompted many states to repeal their sex- ual psychopath statutes. 22 By 1990, nearly half of the states had abolished them.23 While no longer referred to as sexual psychopath statutes, states have been reviving and enacting new forms, commonly referred to as sexual predator statutes or sexually dangerous offender statutes. B. The United States Supreme Court's Reaction to Civil Commitment Laws The legislators of the states that ultimately repealed their sexual psychopath statutes were not the only people who questioned their constitutionality. The Supreme Court had been addressing those is- sues as far back as the 1940s, beginning with Pearson v. Probate Court.24 In Pearson, the Court upheld Minnesota's psychopathic per- sonality statute against due process and equal protection challenges and unanimously rejected that a "habitual course of misconduct in sexual matters," an "utter lack of power to control ... [their] sexual impulses," and a likelihood "to attack or otherwise inflict injury, loss, pain, or other evil" were unconstitutionally vague and further held that a state may single out persons for harsher treatment upon a de- 19. Raquel Blacher, Comment, A HistoricalPerspective of the "Sex Psychopath" Statute: From the Revolutionary Era to the Present Federal Crime Bill, 46 MERCER L. REV. 889, 897 (1995). 20. Id. 21. Id. at 903. 22. Brian G. Bodine, Comment, Washington's New Violent Sexual Predator Commitment Sys- tem: An UnconstitutionalLaw and An Unwise Policy Choice, 14 U. PUGET SOUND L. REV. 105, 109-10 (1990). 23. Id. at 110 n.27. 24. 309 U.S. 270 (1940). DEPAUL LAW REVIEW [Vol. 48:113 termination that they pose a greater risk of danger to the public with- out violating equal protection principles.2 5 Furthermore, the Court held that a hearing, right to counsel, and compulsion of witnesses on the defendant's behalf satisfied the necessary due process requirements. 26 In 1966, however, the Court struck down a New York statute that allowed the involuntary psychiatric commitment of prisoners at the end of their prison terms without jury review, rejecting the contention that past criminal conduct was sufficient to support continued commit- ment without further procedures.27 The majority also held that in ad- dition to jury review, there must be a judicial determination that the prisoner was dangerously mentally ill.28 This requirement of danger- ousness was later reiterated in O'Connor v. Donaldson,29 where the Court determined that a mentally ill individual may not be involunta- rily committed unless that person is also proven to be dangerous and unable to live safely in freedom.
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