Further Reading

Pick One
** The Orwell Court

July 2002

The Orwell Court
Sex confounds justices

In civil commitment proceedings, volitional impairment is now the key issue. In January 2002, the United States Supreme Court ruled in Kansas v. Crane that it is unconstitutional to hold a person prisoner as "mentally abnormal" or "dangerous" unless the state can prove that the person is volitionally disordered-- has trouble controlling his impulses. Michael Crane, an exhibitionist diagnosed with "antisocial personality disorder," was convicted in 1993 of exposing himself to two women, one of whom he grabbed. Though state experts were unable to certify that Crane could not control his behavior, he was civilly committed as a sexually violent predator. The Supreme Court ruling set him free.

The Crane case tightens the standards for civil commitment established by the 1997 Hendricks decision in which the high court upheld Kansas's "sex predator" law. The case arose from a lawsuit brought by Leroy Hendricks who, upon completion of a ten-year sentence for sexual contact with two 13-year-old boys, became the first person to be committed under the 1994 statute. In deciding the case, the US Supreme Court reversed the Kansas Supreme Court's 1996 finding that the primary reason for Hendricks's civil commitment was to prolong incarceration, and that the state's Sexually Violent Predator Act violated due process by ignoring the "mental illness" standard for commitment.

The mental illness test came from one of the US Supreme Court's own rulings. It was formulated in Foucha, a 1992 case involving a dispute over Louisiana's efforts to continue holding a burglar alleged to have been mentally ill at the time of his crime. In Hendricks, however, the Supreme Court backtracked and broadened its criteria for civil commitment, ruling 5-4 in favor of incarceration for simple "dangerousness"-- whatever that might mean.

Archconservative Bush-père appointee Clarence Thomas, the lone dissenter in the 8-1 Foucha decision, wrote the majority opinion in Hendricks (one of the few opinions Thomas has written). With Orwellian logic, Thomas wrote, "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.... A state could hardly be seen as furthering a `punitive' purpose by involuntarily confining persons afflicted with an untreatable, highly contagious disease."

Justices Breyer, Stevens, Souter and Ginsburg disagreed and noted that-- Fifth Amendment protections notwithstanding-- Hendricks was, in effect, being punished twice for the same crime.

On June 10, 2002, the court revisited Kansasan sex offender statutes for the second time in six months, deciding 5-4 in McCune v. Lile that protections against coerced self-incrimination did not extend to sex offenders-- and thereby completing its program of gutting the Fifth Amendment. Lile, a convicted rapist who, like Al Baker, maintains that the sexual encounter leading to his rape charge was consensual, sued because he was being pressured into participating in the Kansas Sexual Abuse Treatment Program under threat of being moved to a maximum security prison. Citing the state's "vital interests in rehabilitation goals and procedures within the prison system," Justice Anthony Kennedy, writing for the majority, called sex offenders "a serious threat to our nation" whose criminal status justifies abridgments of constitutional rights.