The Kansas Sexually Violent Predator Act (SVPA 1994) has withstood constitutional challenges and has validated identical laws in numerous other states (Kan. Stat. Ann. 59-29a01 et seq, 1994). The Court characterized the confinement at issue as civil and the confinement was not criminal (Id., at 369). The Court also held that the statutory criterion for confinement embodied in the words “mental abnormality or personality disorder” satisfied “substantive” due process requirements (Id., at 356, 360). This decision invited the expansion of civil commitment laws throughout the United States by the Court upholding that a mental disorder was sufficient for civilly committing a Sexually Violent Predator.
Kansas v. Crane was appealed after the Kansas Supreme Court’s ruling that due process requires that a person suffer from a total lack of volitional control in order to be subject to involuntary commitment. The United State Supreme Court ruled that a total lack of control is not constitutionally required and there must be proof of serious difficulty in controlling one’s behavior. In other words, the Court ruled that there must be proof that the offender has a mental illness causing serious difficulty controlling his behavior. The meaning of “difficult” indicates a lack of control was not absolute (Kansas v. Crane 534 U.S. 407, 122 S.Cir.867 2002).
The U.S. Constitution has always protected freedom from physical restraint under the Fifth and Fourteenth (due process) Amendments; however, that freedom is not absolute and may be abridged when a state possesses an interest in protecting its citizens from dangerous, sexually violent predators.
In Kansas v. Hendricks, the U.S. Supreme Court characterized the confinement as civil rather than criminal and addressed the proof of “dangerousness” and mental illness. Leroy Hendricks claimed he was being punished for past conduct. Punishment is usually a shorter period of time, which imposes no obligation to get better. Kansas argued and the court agreed that the SVP law is a civil law, which while it allows confinement, is not imposing confinement as punishment. Thus if the government is not punishing the individual in the legal sense, then the person is protected by neither ex post facto nor double jeopardy (Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072 138 L.Ed.2d 501 1997).
The Hendricks case also ruled that the rights of the SVPs in the evaluation process should be protected. SVPs should be housed and segregated from the general prison population. The model should be the same as other involuntarily committed clients. The corrections department provides only security and the treatment and operation of the facility is left in the hands of qualified treatment providers.
Additionally Hendricks contested that the SVPA does not require any sex offender treatment; thus it intended to punish him. Justice Clarence Thomas stated that the incapacitation without treatment is permissible based on dangerousness, and there is a statutory right to treatment fashioned in the commitment law. The Court ruled that as long as a State’s ancillary purpose is to treat the sex offender and his due process rights were protected, the State may commit him for an indefinite period as far as the Constitution is concerned.
Several issues contributed to the supposition that SVPA was not punishing Hendricks. The SVPA was found not to implicate retribution or deterrence, two primary objectives in criminal punishment (Schlank and Cohen 2001). The SVPA was found not to implicate retribution because it did not affix culpability for prior conduct and his criminal conduct was only presented solely as evidence of dangerousness (Id.). The SVPA did not deter because the sex offenders targeted had a disorder that prevents them from controlling their sexual deviance.
Hendricks provides the most authoritative statement on the role of inability to control (Schlank and Cohen 2001). By upholding the constitutionality of Kansas’ commitment law, the Court alluded repeatedly to the inability to control and the requisite of a mental disorder that narrowed the eligibility for confinement for those unable to control their dangerousness. The Court found no basis on which to consider whether confinement based solely on “emotional” impairment as opposed to “volitional” impairment, would be constitutional.
In Hubbart v. Superior Court of California, the Court required proof of an “inability to control” dangerous sexual behavior to be consistent with Hendricks (Hubbart v. Superior Court of California 696 P.2d 584 Cal 1999). In Pearson v. Minnesota, the Court upheld the constitutionality and reaffirmed the vitality of the “utter lack of power to control” and stated the condition was a “volitional dysfunction, which grossly impairs judgment and sexual behavior.”(Minnesota ex rel. Pearson v. Probate Court of Ramsey County, 309 U.S. 270, 274 1940; In re Blodgett, 510 N.W.2d 910, 915 Minn. 1994, cert. denied, 513 U.S. 849 1994)
In the Matter of Hay the equal protection claim failed because the distinct category of all sexually violent predators receives identical treatment. Hay contested the initial trial error in the probable cause finding prior to his civil commitment trial. The Court found that any error of probable cause is not detrimental after the trial and a judgment of beyond a reasonable doubt (In the Matter of Hay 953.P2d at 676 Kansas 1998).
In Beasley v. Molett, the Texas Ninth District Court of Appeals upheld that “distinguishing a class of sexually violent predators from violent criminals for the purpose of involuntary commitment did not violate equal protection rights under the U.S. Constitution.” Additionally the Court held that the statutory requirement, that at the biennial review, the judge make a probable cause finding before the person is entitled to a hearing was not a denial of equal protection or due process. Beasley argued that the requirement of “highly likely” is required in order to be consistent with “beyond a reasonable doubt”. The Court defined “likely” as probable: “Something that is probable is beyond a mere possibility or potential for harm. The beyond a reasonable doubt burden is not inconsistent with the element that must be proven—that the person suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence.” Beasley also argued that he should not be deprived of his liberty absent of substantial threat or imminent risk of future harm. The Court noted “by definition, a menace is a threat of imminent danger, and the menace described in the Act is substantial and satisfies any proof requirement of a threat or risk of future harm.” (Beasley v. Molett 95 S.W.3d 590; 2002 Tex. App. LEXIS 8967)
Finally Beasley argued that Art. 4, Texas Health & Safety Code, Title 11, Chapters 841.085 and 841.082 violated the separation of powers doctrine and asserted that the provision authorizing a third degree felony offense for a violation of a commitment requirement violated the separation of powers of the Texas Constitution, because a judge may impose any requirement deemed necessary. The majority of the Court concluded that the legislature has not delegated its power to the trial courts to create a third degree felony but rather has authorized the trial courts to determine requirements that are necessary to ensure compliance of the person committed to treatment and supervision and to protect the community. The Court further concluded, “the legislature, not the judge, has determined the statutory requirements, as well as those necessary requirements set by the judge, are third degree felonies”. (Beasley v. Molett 95 S.W.3d 590; 2002 Tex. App. LEXIS 8967)
In January 2003 the Texas Ninth District Court of Appeals, in the case of Adolf Martinez (#09-02-00199-CV) reaffirmed that the statute is civil and not a criminal/punitive or quasi-criminal statute. The Court also reaffirmed that his due process rights were adequately protected (See Beasley v. Molett, and Boyd Mullens 2002 Tex. App. LEXIS 8962). Martinez also argued that the Order of Commitment was unconstitutionally vague. The Court again rejected this constitutional challenge and found that the order is not impermissibly vague (See Mullens, 2002 Tex. App. LEXIS 8962)
In addition, the right to a “speedy” trial applies only to criminal law and not civil law.