by Linda Greenhouse, New York Times
WASHINGTON, Jan. 22 - The Supreme Court set a constitutional limit today on the growing state practice of keeping convicted sexual predators in extended civil confinement after their criminal sentences expire.
Ruling in a case from Kansas, one of 16 states where sex offenders face civil commitment after release from prison, the court said states must prove not only that an offender remained dangerous and was likely to repeat the crime but also that a “serious difficulty in controlling behavior” was part of the psychiatric diagnosis.
Writing for the 7-to-2 majority, Justice Stephen G. Breyer said the Constitution’s guarantee of due process required this additional finding to make certain that an offender subjected to civil confinement was not simply a “typical recidivist convicted in an ordinary criminal case.” Justices Antonin Scalia and Clarence Thomas dissented.
Some 1,200 convicted sex offenders are confined under civil commitment laws.
With this decision, the court did not so much make new law as it refined and explained its ruling in a 1997 case that also concerned the Kansas Sexually Violent Predator Act.
In that case, Kansas v. Hendricks, the court’s first to consider a law of this type, the justices rejected a broad constitutional attack on the statute in part by concluding that the law was limited to sex offenders who were “unable to control their dangerousness.”
In that decision, the court did not define the category more precisely, in part because the lifelong child molester whose case was at issue, Leroy Hendricks, had testified that he would never be able to control himself. The meaning of “unable to control” was consequently not in doubt, at least as it applied to Mr. Hendricks.
But the defendant in the case today, Michael T. Crane, who exposed himself to women who worked in retail establishments and pleaded guilty to sexual battery, argued that the Hendricks decision required the state to show that he had a total lack of control over his sexual behavior. The Kansas Supreme Court, agreeing with that interpretation of the Hendricks decision, overturned Mr. Crane’s civil commitment order on the grounds that the state had not proved a complete lack of control.
The decision today in Kansas v. Crane, No. 00-957, vacated the state court’s ruling, elaborated on the cryptic definition of the Hendricks ruling and ordered Kansas to apply the new definition in a new hearing.
The court expressed no view on how the decision would apply to Mr. Crane. In fact, the opinion invited case-by-case application and development in this area of the law, all but ensuring Supreme Court appeals.
“We have sought to provide constitutional guidance in this area by proceeding deliberately and contextually,” Justice Breyer said, adding: “The Constitution’s safeguards of human liberty in the area of mental illness and the law are not always best enforced through precise bright- line rules.”
In his dissent, Justice Scalia accused the majority of “gutting” the court’s decision in the earlier case and of failing to give states adequate guidance for the future. He said that while Justice Breyer’s opinion “certainly displays an elegant subtlety of mind,” it left the states with “not a clue as to how they are supposed to charge the jury!”
The majority agreed with Kansas that a complete lack of control should not be a prerequisite for civil commitment. Noting that “most severely ill people - even those commonly termed `psychopaths’ - retain some ability to control their behavior,” Justice Breyer said that “an absolutist approach is unworkable.”
Meanwhile, the court rejected the state’s position that the control issue did not even have to be the basis for a separate inquiry.
Kansas had argued that proof of dangerousness, coupled with a mental abnormality, was sufficient. But Justice Breyer said that without tying civil commitment to a psychiatric-based lack of control, civil commitment would not be sufficiently different from criminal punishment.
The premise of the civil commitment statutes is that sex offenders will not only be confined, but treated, although the extent to which effective treatment takes place in these programs is disputed. Given the court’s emphasis on a case-by-case application, the ruling’s impact on those currently confined is unclear and will take some time to play out.
Stephen R. McAllister, dean of the University of Kansas Law School, who worked on the case for Attorney General Carla J. Stovall of Kansas, said he agreed with Justice Scalia that “once you get away from all or nothing, it’s hard to figure out what to do.” Nonetheless, Mr. McAllister said in an interview, the court had suggested a standard that Kansas and the other states were likely to find “pretty manageable.”
States will not need to amend their laws, he said, but rather to make sure that juries are separately instructed on the question of a defendant’s lack of control.
Jody Manier Kris, a lawyer here who filed a brief for the National Association of Criminal Defense Lawyers, said the decision “poses a pretty significant evidentiary standard that can be judicially enforced.” Ms. Kris called the decision positive but predicted that states would be back with more cases.
Stephen J. Morse, a professor of law and psychiatry at the University of Pennsylvania Law School who has written widely in this area, predicted that the decision, which he called “too amorphous,” would prove to be “carte blanche for the states.”
Mr. Morse said that psychiatrists testifying as expert witnesses for the state “will learn to tailor their testimony” to show that the defendant “really can’t control his behavior.”