OCTOBER TERM, 1996
Syllabus
KANSAS
v. HENDRICKS
CERTIORARI TO THE SUPREME COURT OF KANSAS No. 95-1649. Argued
December 10, 1996-Decided June 23,1997*
Kansas' Sexually Violent Predator Act 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." Kansas filed a petition under the Act in
state court to commit respondent (and cross-petitioner) Hendricks,
who had a long history of sexually molesting children and was
scheduled for release from prison. The court reserved ruling on
Hendricks' challenge to the Act's constitutionality, but granted
his request for a jury trial. After Hendricks testified that he
agreed with the state physician's diagnosis that he suffers from
pedophilia and is not cured and that he continues to harbor sexual
desires for children that he cannot control when he gets "stressed
out," the jury determined that he was a sexually violent predator.
Finding that pedophilia qualifies as a mental abnormality under the
Act, the court ordered him committed. On appeal, the State Supreme
Court invalidated the Act on the ground that the pre commitment
condition of a "mental abnormality" did not satisfy what it
perceived to be the "substantive" due process requirement that
involuntary civil commitment must be predicated on a "mental
illness" finding. It did not address Hendricks'
ex post
facto and double jeopardy claims.
Held:
1. The Act's definition of "mental abnormality" satisfies
"substantive" due process requirements. An individual's
constitutionally protected liberty interest in avoiding physical
restraint may be overridden even in the civil context.
Jacobson v.
Massachusetts, 197 U. S. 11, 26. This
Court has consistently upheld involuntary commitment statutes that
detain people who are unable to control their behavior and thereby
pose a danger to the public health and safety, provided the
confinement takes place pursuant to proper procedures and
evidentiary standards.
Foucha v.
Louisiana, 504 U. S. 71,80. The Act
unambiguously requires a pre commitment finding of dangerousness
either to one's self or to others, and links that finding to a
determination that the person suffers from a "mental abnormality"
or "personality disorder." Generally, this Court has sustained a
commitment statute if it couples proof of dangerousness
*Together with No. 95-9075,
Hendricks v.
Kansas,
also on certiorari to the same court.
347
with proof of some additional factor, such as a "mental illness"
or "mental abnormality," see,
e. g., Heller v.
Doe,
509 U. S. 312,
314-315, for these additional requirements serve to limit
confinement to those who suffer from a volitional impairment
rendering them dangerous beyond their control. The Act sets forth
comparable criteria with its pre commitment requirement of "mental
abnormality" or "personality disorder." Contrary to Hendricks'
argument, this Court has never required States to adopt any
particular nomenclature in drafting civil commitment statutes and
leaves to the States the task of defining terms of a medical nature
that have legal significance. Cf.
Jones v.
United
States, 463 U. S.
354, 365, n. 13. The legislature is therefore not required to
use the specific term "mental illness" and is free to adopt any
similar term. Pp. 356-360.
2. The Act does not violate the Constitution's double jeopardy
prohibition or its ban on
ex post facto lawmaking. pp.
360-371.
(a) The Act does not establish criminal proceedings, and
involuntary confinement under it is not punishment. The
categorization of a particular proceeding as civil or criminal is a
question of statutory construction.
Allen v.
Illinois, 478
U. S. 364, 368. Nothing on the face of the Act suggests that
the Kansas Legislature sought to create anything other than a civil
commitment scheme. That manifest intent will be rejected only if
Hendricks provides the clearest proof that the scheme is so
punitive in purpose or effect as to negate Kansas' intention to
deem it civil.
United States v.
Ward, 448 U. S. 242, 248-249.
He has failed to satisfy this heavy burden. Commitment under the
Act does not implicate either of the two primary objectives of
criminal punishment: retribution or deterrence. Its purpose is not
retributive: It does not affix culpability for prior criminal
conduct, but uses such conduct solely for evidentiary purposes; it
does not make criminal conviction a prerequisite for commitment;
and it lacks a scienter requirement, an important element in
distinguishing criminal and civil statutes. Nor can the Act be said
to act as a deterrent, since persons with a mental abnormality or
personality disorder are unlikely to be deterred by the threat of
confinement. The conditions surrounding confinement-essentially the
same as conditions for any civilly committed patient-do not suggest
a punitive purpose. Although the commitment scheme here involves an
affirmative restraint, such restraint of the dangerously mentally
ill has been historically regarded as a legitimate nonpunitive
objective. Cf.
United States v.
Salerno, 481 U. S. 739, 747. The
confinement's potentially indefinite duration is linked, not to any
punitive objective, but to the purpose of holding a person until
his mental abnormality no longer causes him to be a threat to
others. He is thus permitted immediate release upon a showing that
he is no longer dangerous, and the longest
348
Syllabus
he can be detained pursuant to a single judicial proceeding is
one year. The State's use of procedural safeguards applicable in
criminal trials does not itself turn the proceedings into criminal
prosecutions.
Allen, supra, at 372. Finally, the Act is not
necessarily punitive if it fails to offer treatment where treatment
for a condition is not possible, or if treatment, though possible,
is merely an ancillary, rather than an overriding, state concern.
The conclusion that the Act is nonpunitive removes an essential
prerequisite for both Hendricks' double jeopardy and
ex post
facto claims. Pp. 360-369.
(b) Hendricks' confinement does not amount to a second
prosecution and punishment for the offense for which he was
convicted. Because the Act is civil in nature, its commitment
proceedings do not constitute a second prosecution. Cf.
Jones,
supra. As this commitment is not tantamount to punishment, the
detention does not violate the Double Jeopardy Clause, even though
it follows a prison term.
Baxstrom v.
Herold,
383 U. S. 107.
Hendricks' argument that, even if the Act survives the "multiple
punishments" test, it fails the "same elements" test of
Blockburger v.
United States, 284 U. S. 299, is
rejected, since that test does not apply outside of the successive
prosecution context. Pp. 369-370.
(c) Hendricks'
ex post facto claim is similarly flawed.
The
Ex Post Facto Clause pertains exclusively to penal
statutes.
California Dept. of Corrections v.
Morales,
514 U. S. 499,
505. Since the Act is not punishment, its application does not
raise
ex post facto concerns. Moreover, the Act clearly does
not have retroactive effect. It does not criminalize conduct legal
before its enactment or deprive Hendricks of any defense that was
available to him at the time of his crimes. Pp.370-371.
259 Kan. 246, 912 P. 2d 129, reversed.
THOMAS, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, and KENNEDY, JJ., joined.
KENNEDY, J., filed a concurring opinion,
post, p. 371.
BREYER, J., filed a dissenting opinion, in which STEVENS and
SOUTER, JJ., joined, and in which GINSBURG, J., joined as to Parts
II and III,
post, p. 373.
Carla J.
Stovall, Attorney General of Kansas,
argued the cause for the petitioner in No. 95-1649 and respondent
in No. 95-9075. With her on the briefs were
Stephen R. MeAll
ister, Special Assistant Attorney General,
Bernard Nash,
James van R. Springer, and
Laura B. Feigin.
349
Thomas J.
Weilert argued the cause for Hendricks
in both cases. With him on the briefs were
James W Ellis and
David Gottlieb.t
tBriefs of
amici curiae urging reversal were filed for
the State of Washington et al. by
Christine Q Gregoire,
Attorney General of Washington, and
Sarah Blackman
Sappington, Assistant Attorney General,
Charles F. C.
Ruff, Corporation Counsel of the District of Columbia,
Sebastian Aloot, Acting Attorney General of the Northern
Mariana Islands, and by the Attorneys General for their respective
jurisdictions as follows:
Jeff Sessions of Alabama, Malaetasi Togafu of American Samoa,
Grant Woods of Arizona, Winston Bryant of Arkansas, Daniel E.
Lungren of California, Gale A. Norton of Colorado, M. Jane Brady of
Delaware, Robert A. Butterworth of Florida, Calvin E. Holloway,
Sr., of Guam, Margery S. Bronster of Hawaii, Alan G. Lance of
Idaho, James E. Ryan of Illinois, Pamela Fanning Carter of Indiana,
Thomas J. Miller of Iowa, A. B. Chandler III of Kentucky, Richard
P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Hubert
H. Humphrey III of Minnesota, Mike Moore of Mississippi, Jeremiah W
(Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg
of Nebraska, Frankie Sue Del Papa of Nevada, Jeffrey R. Howard of
New Hampshire, Peter Verniero of New Jersey, Tom Udall of New
Mexico, Dennis C. Vacco of New York, Michael F. Easley of North
Carolina, Heidi Heitkamp of North Dakota, Betty D. Montgomery of
Ohio, W A. Drew Edmondson of Oklahoma, Thomas W Corbett, Jr., of
Pennsylvania, Pedro R. Pierluisi of Puerto Rico, Jeffrey B. Pine of
Rhode Island, Charles Molony Condon of South Carolina, Mark W
Barnett of South Dakota, Jan Graham of Utah, Jeffrey L. Amestoy of
Vermont, Julio A. Brady of the Virgin Islands, James S. Gilmore III
of Virginia, and William U. Hill of Wyoming; for the State of
Wisconsin by James E. Doyle, Attorney General, and Sally L. Wellman
and Mary E. Burke, Assistant Attorneys General; for the Menninger
Foundation et al. by Philip Allen Lacovara, James C. Geoly, and
Robert Teir; and for the Washington Legal Foundation et al. by
Daniel J. Popeo and Richard A. Samp.
Briefs of
amici curiae urging affirmance were filed for
the American Civil Liberties Union et al. by
Scott A. W Johnson,
Laura J.
Buckland, Steven R. Shapiro, Christopher A.
Hansen, and
Bruce Winick; for the American Psychiatric
Association by
Richard G.
Taranto; for the N ational
Association of Criminal Defense Lawyers et al. by
David A.
Reiser, Jennifer P. Lyman, Barbara E. Bergman, and
James
F.
Vano; for the National Mental Health Association by
Ira A. Burnim; for the SeattleKing County Defender
Association et al. by
Robert C.
Boruchowitz,
Addie
350
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." Kan. Stat. Ann. §
59-29a01
et seq. (1994). 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,
inter alia, "substantive" due
process, double jeopardy, and
ex post facto grounds. The
Kansas Supreme Court invalidated the Act, holding that its
precommitment 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."
In re Hendricks, 259 Kan.
246, 261, 912 P. 2d 129, 138 (1996). 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 on both the petition and
the cross-petition, 518 U. S. 1004 (1996), and now reverse the
judgment below.
I A
The Kansas Legislature enacted the Sexually Violent Predator Act
(Act) in 1994 to grapple with the problem of managing repeat sexual
offenders.1 Although Kansas al-
Hailstorks, John Stuart, Eric Janus, John T. Philipsborn, and
Bernadette Foley; and for the Washington State Psychiatric
Association by David A. Summers.
David B. Robbins filed a brief for the Association for
the Treatment of Sexual Abusers as
amicus curiae.
1 Subsequent to Hendricks' commitment, the Kansas Legislature
amended the Act in ways not relevant to this action. See,
e.
g., Kan. Stat.
351
ready had a statute addressing the involuntary commitment of
those defined as "mentally ill," the legislature determined that
existing civil commitment procedures were inadequate to confront
the risks presented by "sexually violent predators." In the Act's
preamble, the legislature explained:
"[A] small but extremely dangerous group of sexually violent
predators exist who do not have a mental disease or defect that
renders them appropriate for involuntary treatment pursuant to the
[general involuntary civil commitment statute] .... In contrast to
persons appropriate for civil commitment under the [general
involuntary civil commitment statute], sexually violent predators
generally have anti-social personality features which are
unamenable to existing mental illness treatment modalities and
those features render them likely to engage in sexually violent
behavior. The legislature further finds that sexually violent
predators' likelihood of engaging in repeat acts of predatory
sexual violence is high. The existing involuntary commitment
procedure ... is inadequate to address the risk these sexually
violent predators pose to society. The legislature further finds
that the prognosis for rehabilitating sexually violent predators in
a prison setting is poor, the treatment needs of this population
are very long term and the treatment modalities for this population
are very different than the traditional treatment modalities for
people appropriate for commitment under the [general involuntary
civil commitment statute]." Kan. Stat. Ann. § 59-29a01 (1994).
As a result, the legislature found it necessary to establish "a
civil commitment procedure for the long-term care and
Ann. § 59-29a03 (Supp. 1996) (changing notification period from
60 to 90 days); § 59-29a04 (requiring state attorney general to
initiate commitment proceedings).
352
treatment of the sexually violent predator."
Ibid. The
Act defined a "sexually violent predator" as:
"any person who has been convicted of or charged with a sexually
violent offense and who suffers from a mental abnormality or
personality disorder which makes the person likely to engage in the
predatory acts of sexual violence." § 59-29a02(a).
A "mental abnormality" was defined, in turn, as a "congenital or
acquired condition affecting the emotional or volitional capacity
which predisposes the person to commit sexually violent offenses in
a degree constituting such person a menace to the health and safety
of others." § 59-29a02(b).
As originally structured, the Act's civil commitment procedures
pertained to: (1) a presently confined person who, like Hendricks,
"has been convicted of a sexually violent offense" and is scheduled
for release; (2) a person who has been "charged with a sexually
violent offense" but has been found incompetent to stand trial; (3)
a person who has been found "not guilty by reason of insanity of a
sexually violent offense"; and (4) a person found "not guilty" of a
sexually violent offense because of a mental disease or defect. §
5929a03(a), § 22-3221 (1995).
The initial version of the Act, as applied to a currently
confined person such as Hendricks, was designed to initiate a
specific series of procedures. The custodial agency was required to
notify the local prosecutor 60 days before the anticipated release
of a person who might have met the Act's criteria. § 59-29a03. The
prosecutor was then obligated, within 45 days, to decide whether to
file a petition in state court seeking the person's involuntary
commitment. § 5929a04. If such a petition were filed, the court was
to determine whether "probable cause" existed to support a finding
that the person was a "sexually violent predator" and thus eligible
for civil commitment. Upon such a determination, transfer of the
individual to a secure facility for professional evaluation would
occur. § 59-29a05. After that evaluation,
353
a trial would be held to determine beyond a reasonable doubt
whether the individual was a sexually violent predator. If that
determination were made, the person would then be transferred to
the custody of the Secretary of Social and Rehabilitation Services
(Secretary) for "control, care and treatment until such time as the
person's mental abnormality or personality disorder has so changed
that the person is safe to be at large." § 59-29a07(a).
In addition to placing the burden of proof upon the State, the
Act afforded the individual a number of other procedural
safeguards. In the case of an indigent person, the State was
required to provide, at public expense, the assistance of counsel
and an examination by mental health care professionals. § 59-29a06.
The individual also received the right to present and cross-examine
witnesses, and the opportunity to review documentary evidence
presented by the State. § 59-29a07.
Once an individual was confined, the Act required that "[t]he
involuntary detention or commitment ... shall conform to
constitutional requirements for care and treatment." § 59-29a09.
Confined persons were afforded three different avenues of review:
First, the committing court was obligated to conduct an annual
review to determine whether continued detention was warranted. §
59-29a08. Second, the Secretary was permitted, at any time, to
decide that the confined individual's condition had so changed that
release was appropriate, and could then authorize the person to
petition for release. § 59-29a10. Finally, even without the
Secretary's permission, the confined person could at any time file
a release petition. § 59-29a11. If the court found that the State
could no longer satisfy its burden under the initial commitment
standard, the individual would be freed from confinement.
B
In 1984, Hendricks was convicted of taking "indecent liberties"
with two 13-year-old boys. After serving nearly 10 years of his
sentence, he was slated for release to a halfway
354
house. Shortly before his scheduled release, however, the State
filed a petition in state court seeking Hendricks' civil
confinement as a sexually violent predator. On August 19, 1994,
Hendricks appeared before the court with counsel and moved to
dismiss the petition on the grounds that the Act violated various
federal constitutional provisions. Although the court reserved
ruling on the Act's constitutionality, it concluded that there was
probable cause to support a finding that Hendricks was a sexually
violent predator, and therefore ordered that he be evaluated at the
Larned State Security Hospital.
Hendricks subsequently requested a jury trial to determine
whether he qualified as a sexually violent predator. During that
trial, Hendricks' own testimony revealed a chilling history of
repeated child sexual molestation and abuse, beginning in 1955 when
he exposed his genitals to two young girls. At that time, he
pleaded guilty to indecent exposure. Then, in 1957, he was
convicted of lewdness involving a young girl and received a brief
jail sentence. In 1960, he molested two young boys while he worked
for a carnival. After serving two years in prison for that offense,
he was paroled, only to be rearrested for molesting a 7-year-old
girl. Attempts were made to treat him for his sexual deviance, and
in 1965 he was considered "safe to be at large," and was discharged
from a state psychiatric hospital. App. 139-144.
Shortly thereafter, however, Hendricks sexually assaulted
another young boy and girl-he performed oral sex on the 8-year-old
girl and fondled the ll-year-old boy. He was again imprisoned in
1967, but refused to participate in a sex offender treatment
program, and thus remained incarcerated until his parole in 1972.
Diagnosed as a pedophile, Hendricks entered into, but then
abandoned, a treatment program. He testified that despite having
received professional help for his pedophilia, he continued to
harbor sexual desires for children. Indeed, soon after his 1972
parole, Hendricks began to abuse his own stepdaughter and stepson.
He forced the children to engage in sexual activity with him
355
over a period of approximately four years. Then, as noted above,
Hendricks was convicted of "taking indecent liberties" with two
adolescent boys after he attempted to fondle them. As a result of
that conviction, he was once again imprisoned, and was serving that
sentence when he reached his conditional release date in September
1994.
Hendricks admitted that he had repeatedly abused children
whenever he was not confined. He explained that when he "get[s]
stressed out," he "can't control the urge" to molest children.
Id., at 172. Although Hendricks recognized that his behavior
harms children, and he hoped he would not sexually molest children
again, he stated that the only sure way he could keep from sexually
abusing children in the future was "to die."
Id., at 190.
Hendricks readily agreed with the state physician's diagnosis that
he suffers from pedophilia and that he is not cured of the
condition; indeed, he told the physician that "treatment is
bull--."
Id., at 153, 190.2
The jury unanimously found beyond a reasonable doubt that
Hendricks was a sexually violent predator. The trial court
subsequently determined, as a matter of state law, that pedophilia
qualifies as a "mental abnormality" as defined by
2 In addition to Hendricks' own testimony, the jury heard from
Hendricks' stepdaughter and stepson, who recounted the events
surrounding their repeated sexual abuse at Hendricks' hands. App.
194-212. One of the girls to whom Hendricks exposed himself in 1955
testified as well.
Id., at 191-194. The State also presented
testimony from Lester Lee, a licensed clinical social worker who
specialized in treating male sexual offenders, and Dr. Charles
Befort, the chief psychologist at Larned State Hospital. Lee
testified that Hendricks had a diagnosis of personality trait
disturbance, passive-aggressive personality, and pedophilia.
Id., at 219220. Dr. Befort testified that Hendricks suffered
from pedophilia and is likely to commit sexual offenses against
children in the future if not confined.
Id., at 247-248. He
further opined that pedophilia qualifies as a "mental abnormality"
within the Act's definition of that term.
Id., at 263264.
Finally, Hendricks offered testimony from Dr. William S. Logan, a
forensic psychiatrist, who stated that it was not possible to
predict with any degree of accuracy the future dangerousness of a
sex offender.
Id., at 328-331.
356
the Act, and thus ordered Hendricks committed to the Secretary's
custody.
Hendricks appealed, claiming, among other things, that
application of the Act to him violated the Federal Constitution's
Due Process, Double Jeopardy, and
Ex Post Facto Clauses. The
Kansas Supreme Court accepted Hendricks' due process claim. 259
Kan., at 261, 912 P. 2d, at 138. The court declared that in order
to commit a person involuntarily in a civil proceeding, a State is
required by "substantive" due process to prove by clear and
convincing evidence that the person is both (1) mentally ill, and
(2) a danger to himself or to others.
Id., at 259, 912 P.
2d, at 137. The court then determined that the Act's definition of
"mental abnormality" did not satisfy what it perceived to be this
Court's "mental illness" requirement in the civil commitment
context. As a result, the court held that "the Act violates
Hendricks' substantive due process rights."
Id., at 261, 912
P. 2d, at 138.
The majority did not address Hendricks'
ex post facto or
double jeopardy claims. The dissent, however, considered each of
Hendricks' constitutional arguments and rejected them.
Id.,
at 264-294, 912 P. 2d, 140-156 (Larson, J., dissenting).
II A
Kansas argues that the Act's definition of "mental abnormality"
satisfies "substantive" due process requirements. We agree.
Although freedom from physical restraint "has always been at the
core of the liberty protected by the Due Process Clause from
arbitrary governmental action,"
Foucha v.
Louisiana,
504 U. S. 71, 80
(1992), 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:
"[T]he liberty secured by the Constitution of the United States
to every person within its jurisdiction does not
357
import an absolute right in each person to be, at all times and
in all circumstances, wholly free from restraint. There are
manifold restraints to which every person is necessarily subject
for the common good. On any other basis organized society could not
exist with safety to its members." Jacobson v.
Massachusetts, 197 U. S. 11, 26
(1905).
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. See,
e. g., 1788 N. Y. Laws, ch.
31 (Feb. 9, 1788) (permitting confinement of the "furiously mad");
see also A. Deutsch, The Mentally III in America (1949) (tracing
history of civil commitment in the 18th and 19th centuries); G.
Grob, Mental Institutions in America: Social Policy to 1875 (1973)
(discussing colonial and early American civil commitment statutes).
We have consistently upheld such involuntary commitment statutes
provided the confinement takes place pursuant to proper procedures
and evidentiary standards. See
Foucha, supra, at 80;
Addington v.
Texas, 441 U. S. 418, 426-427
(1979). 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. Cf. id., at 426.
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." Kan. Stat. Ann. §
59-29a02(a) (1994). 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 inca-
358
pacitated. As we have recognized, "[p]revious instances of
violent behavior are an important indicator of future violent
tendencies."
Heller v.
Doe, 509 U. S. 312, 323
(1993); see also
Schall v.
Martin, 467 U. S. 253, 278 (1984)
(explaining that "from a legal point of view there is nothing
inherently unattainable about a prediction of future criminal
conduct").
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." See,
e. g., Heller, supra, at 314-315
(Kentucky statute permitting commitment of "mentally retarded" or
"mentally ill" and dangerous individual);
Allen v.
Illinois, 478
U. S. 364, 366 (1986) (Illinois statute permitting commitment
of "mentally ill" and dangerous individual);
Minnesota ex rel.
Pearson v.
Probate Court of Ramsey Cty., 309 U. S. 270, 271-272
(1940) (Minnesota statute permitting commitment of dangerous
individual with "psychopathic personality"). 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. Kan. Stat. Ann. § 59-29a02(b) (1994). 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,
citing
Foucha and
Addington. He then as-
359
serts 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,"
Ake v.
Oklahoma, 470
U. S. 68,81 (1985), but the Court itself has used a variety of
expressions to describe the mental condition of those properly
subject to civil confinement. See,
e. g., Addington, supra,
at 425-426 (using the terms "emotionally disturbed" and "mentally
ill");
Jackson v.
Indiana, 406 U. S. 715, 732, 737
(1972) (using the terms "incompetency" and "insanity"); cf.
Foucha, 504 U. S., at 88 (O'CONNOR, J., concurring in part
and concurring in judgment) (acknowledging State's authority to
commit a person when there is "some medical justification for doing
so").
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.
Cf.
Jones v.
United States, 463 U. S. 354, 365, n. 13
(1983). 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. See,
e.
g., Gerard, The Usefulness of the Medical Model to the Legal
System, 39 Rutgers L. Rev. 377, 391394 (1987) (discussing differing
purposes of legal system and the medical profession in recognizing
mental illness). Legal definitions, however, which must "take into
account such issues as individual responsibility ... and
competency," need not mirror those advanced by the medical
profession. American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders xxiii, xxvii (4th ed.
1994).
360
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. See,
e. g., id., at 524-525, 527528; 1 American
Psychiatric Association, Treatments of Psychiatric Disorders
617-633 (1989); Abel & Rouleau, Male Sex Offenders, in Handbook
of Outpatient Treatment of Adults 271 (M. Thase, B. Edelstein,
& M. Hersen eds. 1990).3 Hendricks even conceded that, when he
becomes "stressed out," he cannot "control the urge" to molest
children. App. 172. 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.
B
We granted Hendricks' cross-petition to determine whether the
Act violates the Constitution's double jeopardy
3We recognize, of course, that psychiatric professionals are not
in complete harmony in casting pedophilia, or paraphilias in
general, as "mental illnesses." Compare Brief for American
Psychiatric Association as
Amicus Curiae 26 with Brief for
Menninger Foundation et al. as
Amici Curiae 22-25. These
disagreements, however, do not tie the State's hands in setting the
bounds of its civil commitment laws. In fact, it is precisely where
such disagreement exists that legislatures have been afforded the
widest latitude in drafting such statutes. Cf.
Jones v.
United States, 463 U. S. 354, 365, n. 13 (1983). As we have
explained regarding congressional enactments, when a legislature
"undertakes to act in areas fraught with medical and scientific
uncertainties, legislative options must be especially broad and
courts should be cautious not to rewrite legislation."
Id.,
at 370 (internal quotation marks and citation omitted).
361
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."
Allen, 478 U. S., at 368. 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 Act within the Kansas probate
code, Kan. Stat. Ann., Art. 29 (1994) ("Care and Treatment for
Mentally III Persons"), instead of the criminal code, as well as
its description of the Act as creating a
"civil commitment
procedure," § 59-29a01 (emphasis added). 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,"
Allen, supra, at 369, 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,"
United States v.
Ward, 448 U.
S. 242, 248-249 (1980). 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
362
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."
Allen, supra, at 371. 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. See Kan. Stat.
Ann. § 59-29a03(a) (1994). 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."
United States v.
Ursery, 518 U. S. 267 (1996).
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. See
Kennedy v.
Mendoza-Martinez, 372 U. S. 144, 168
(1963). 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
363
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. App. 50-56, 59-60. 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."
United States v.
Salerno,
481 U. S. 739,
746 (1987). 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. Cf.
id., at 747. 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.
Id., at
748749. 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. Cf.
Jones, 463 U. S., at 368 (noting with approval that "because
it is impossible to predict how long it will take for any given
individual to recover [from insan-
364
ity]-or indeed whether he will ever recover-Congress has chosen
... to leave the length of commitment indeterminate, subject to
periodic review of the patient's suitability for release"). If, at
any time, the confined person is adjudged "safe to be at large," he
is statutorily entitled to immediate release. Kan. Stat. Ann. §
59-29a07 (1994).
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.
§ 59-29a08. 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.
Ibid. 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. In Allen, we
confronted a similar argument. There, the petitioner "place[d]
great reliance on the fact that proceedings under the Act are
accompanied by procedural safeguards usually found in criminal
trials" to argue that the proceedings were civil in name only. 478
U. S., at 371. We rejected that argument, however, explaining that
the State's decision "to provide some of the safeguards applicable
in criminal trials cannot itself turn these proceedings into
criminal prosecutions."
Id., at 372. 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
365
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, explaining:
"It is clear that the overriding concern of the legislature is
to continue the segregation of sexually violent offenders from the
public. Treatment with the goal of reintegrating them into society
is incidental, at best. The record reflects that treatment for
sexually violent predators is all but nonexistent. The legislature
concedes that sexually violent predators are not amenable to
treatment under [the existing Kansas involuntary commitment
statute]. If there is nothing to treat under [that statute], then
there is no mental illness. In that light, the provisions of the
Act for treatment appear somewhat disingenuous." 259 Kan., at 258,
912 P. 2d, at 136.
It is possible to read this passage as a determination that
Hendricks' condition was
untreatable under the existing
Kansas civil commitment statute, and thus the Act's sole purpose
was incapacitation. Absent a treatable mental illness, the Kansas
court concluded, Hendricks could not be detained against his
will.
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
366
may be a legitimate end of the civil law. See
Allen,
supra, at 373;
Salerno, 481 U. S., at 748-749.
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, 259 Kan., at 258, 912 P. 2d, at 136,
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, see
Allen, supra, 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.
Accord,
Compagnie Francaise de Navigation a Vapeur v.
Louisiana Bd. of Health, 186 U. S. 380 (1902) (permitting
involuntary quarantine of persons suffering from communicable
diseases). 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. Cf.
Greenwood v.
United States, 350 U. S. 366, 375 (1956)
("The fact that at present there may be little likelihood of
recovery does not defeat federal power to make this initial
commitment of the petitioner");
O'Connor v.
Donaldson, 422
U. S. 563, 584 (1975) (Burger, C. J., concurring) ("[I]t
remains a stubborn fact that there are many forms of mental illness
which are not understood, some which are untreatable in the sense
that no effective therapy has yet been discovered for them, and
that rates of 'cure' are generally low").
Alternatively, the Kansas Supreme Court's opinion can be read to
conclude that Hendricks' condition is treatable, but
367
that treatment was not the State's "overriding concern," and
that no treatment was being provided (at least at the time
Hendricks was committed). 259 Kan., at 258, 912 P. 2d, at 136. See
also ibid. ("It is clear that the primary objective of the Act is
to continue incarceration and not to provide treatment"). 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, under whose custody sexually violent predators are
committed, has an obligation to provide treatment to individuals
like Hendricks. § 59-29a07(a) ("If the court or jury determines
that the person is a sexually violent predator, the person shall be
committed to the custody of the secretary of social and
rehabilitation services for
control, care and treatment
until such time as the person's mental abnormality or personality
disorder has so changed that the person is safe to be at large"
(emphasis added)). Other of the Act's sections echo this obligation
to provide treatment for committed persons. See,
e. g., §
59-29a01 (establishing civil commitment procedure "for the
long-term care and treatment of the sexually violent predator"); §
59-29a09 (requiring the confinement to "conform to constitutional
requirements for care and treatment"). Thus, as in
Allen,
"the State has a statutory obligation to provide 'care and
treatment for [persons adjudged sexually dangerous] designed to
effect recovery,'" 478 U. S., at 369 (quoting Ill. Rev. Stat., ch.
38, , 105-8 (1985)), and we may therefore conclude that "the State
has ... provided for the treatment of those it commits," 478 U. S.,
at 370.
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
368
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.4 And, before this Court, Kansas declared
"[a]bsolutely" that persons committed under the Act are now
receiving in the neighborhood of "31-'l2 hours of treatment per
week." Tr. of Oral Arg. 14-15, 16.5
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
4 We have explained that the States enjoy wide latitude in
developing treatment regimens.
Youngberg v.
Romeo,
457 U. S. 307,
317 (1982) (observing that the State "has considerable discretion
in determining the nature and scope of its responsibilities"). In
Allen v.
Illinois, 478 U. S. 364 (1986), for
example, we concluded that "the State serves its purpose of
treating rather than punishing sexually dangerous persons by
committing them to an institution expressly designed to provide
psychiatric care and treatment."
Id., at 373 (emphasis
deleted). By this measure, Kansas has doubtless satisfied its
obligation to provide available treatment.
5 Indeed, we have been informed that in an August 28, 1995,
hearing on Hendricks' petition for state habeas corpus relief, the
trial court, over admittedly conflicting testimony, ruled: "[T]he
allegation that no treatment is being provided to any of the
petitioners or other persons committed to the program designated as
a sexual predator treatment program is not true. I find that they
are receiving treatment." App. 453-454. Thus, to the extent that
treatment is available for Hendricks' condition, the State now
appears to be providing it. By furnishing such treatment, the
Kansas Legislature has indicated that treatment, if possible, is at
least an ancillary goal of the Act, which easily satisfies any test
for determining that the Act is not punitive.
369
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.
1
The Double Jeopardy Clause provides: "[N]or shall any person be
subject for the same offence to be twice put in jeopardy of life or
limb." Although generally understood to preclude a second
prosecution for the same offense, the Court has also interpreted
this prohibition to prevent the State from "punishing twice, or
attempting a second time to punish criminally, for the same
offense."
Witte v.
United States, 515 U. S. 389, 396 (1995)
(emphasis and internal quotation marks omitted). 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. Cf.
Jones v.
United
States, 463 U. S.
354 (1983) (permitting involuntary civil commitment after
verdict of not guilty by reason of insanity). 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. Indeed, in
Baxstrom v.
Herold, 383 U. S. 107 (1966), we
expressly recognized that civil commitment could follow the
expiration of a prison term without offending double jeopardy
principles. We reasoned that "there is no conceivable basis for
distinguishing the commitment of a person who is nearing the end of
a penal
370
term from all other civil commitments."
Id., at 111-112.
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,
284 U. S. 299
(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."
Id., at 304. 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.
2
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.
California
Dept. of Corrections v.
Morales, 514 U. S. 499, 505 (1995)
(quoting
Lindsey v.
Washington, 301 U. S. 397, 401
(1937)). As we have previously determined, the Act does not impose
punishment; thus, its application does not raise
371
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.
III
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.
It is so ordered.
JUSTICE KENNEDY, concurring.
I join the opinion of the Court in full and add these additional
comments.
Though other issues were argued to us, as the action has matured
it turns on whether the Kansas statute is an
ex post facto
law. A law enacted after commission of the offense and which
punishes the offense by extending the term of confinement is a
textbook example of an
ex post facto law. If the object or
purpose of the Kansas law had been to provide treatment but the
treatment provisions were adopted as a sham or mere pretext, there
would have been an indication of the forbidden purpose to punish.
The Court's opinion gives a full and complete explanation why an
ex post facto challenge based on this contention cannot
succeed in the action before us. All this, however, concerns
Hendricks alone. My brief, further comment is to caution against
dangers in-
372
herent when a civil confinement law is used in conjunction with
the criminal process, whether or not the law is given retroactive
application.
It seems the dissent, too, would validate the Kansas statute as
to persons who committed the crime after its enactment, and it
might even validate the statute as to Hendricks, assuming a
reasonable level of treatment. As all Members of the Court seem to
agree, then, the power of the State to confine persons who, by
reason of a mental disease or mental abnormality, constitute a
real, continuing, and serious danger to society is well
established.
Addington v.
Texas, 441 U. S. 418, 426-427
(1979). Confinement of such individuals is permitted even if it is
pursuant to a statute enacted after the crime has been committed
and the offender has begun serving, or has all but completed
serving, a penal sentence, provided there is no object or purpose
to punish. See
Baxstrom v.
Herold, 383 U. S. 107, 111-112
(1966). The Kansas law, with its attendant protections, including
yearly review and review at any time at the instance of the person
confined, is within this pattern and tradition of civil
confinement. In this action, the mental abnormality-pedophilia-is
at least described in the DSM-IV. American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders
524-525,527-528 (4th ed. 1994).
Notwithstanding its civil attributes, the practical effect of
the Kansas law may be to impose confinement for life. At this stage
of medical knowledge, although future treatments cannot be
predicted, psychiatrists or other professionals engaged in treating
pedophilia may be reluctant to find measurable success in treatment
even after a long period and may be unable to predict that no
serious danger will come from release of the detainee.
A common response to this may be, "A life term is exactly what
the sentence should have been anyway," or, in the words of a Kansas
task force member, "SO BE IT." Testimony of Jim Blaufuss, App. 503.
The point, however, is not
373
how long Hendricks and others like him should serve a criminal
sentence. With his criminal record, after all, a life term may well
have been the only sentence appropriate to protect society and
vindicate the wrong. The concern instead is whether it is the
criminal system or the civil system which should make the decision
in the first place. If the civil system is used simply to impose
punishment after the State makes an improvident plea bargain on the
criminal side, then it is not performing its proper function. These
concerns persist whether the civil confinement statute is put on
the books before or after the offense. We should bear in mind that
while incapacitation is a goal common to both the criminal and
civil systems of confinement, retribution and general deterrence
are reserved for the criminal system alone.
On the record before us, the Kansas civil statute conforms to
our precedents. If, however, civil confinement were to become a
mechanism for retribution or general deterrence, or if it were
shown that mental abnormality is too imprecise a category to offer
a solid basis for concluding that civil detention is justified, our
precedents would not suffice to validate it.
JUSTICE BREYER, with whom JUSTICE STEVENS and JusTICE SOUTER
join, and with whom JUSTICE GINSBURG joins as to Parts II and III,
dissenting.
I agree with the majority that the Kansas Sexually Violent
Predator Act's "definition of 'mental abnormality'" satisfies the
"substantive" requirements of the Due Process Clause.
Ante,
at 356. 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 pro-
374
hibits the Act's application to Hendricks, who committed his
crimes prior to its enactment.
I
I begin with the area of agreement. This Court has held that the
civil commitment of a "mentally ill" and "dangerous" person does
not automatically violate the Due Process Clause provided that the
commitment takes place pursuant to proper procedures and
evidentiary standards. See
Foucha v.
Louisiana,
504 U. S. 71, 80
(1992);
Addington v.
Texas, 441 U. S. 418, 426-427
(1979). The Kansas Supreme Court, however, held that the Due
Process Clause forbids application of the Act to Hendricks for
"substantive" reasons, i.
e., irrespective of the procedures
or evidentiary standards used. The court reasoned that Kansas had
not satisfied the "mentally ill" requirement of the Due Process
Clause because Hendricks was not "mentally ill."
In re
Hendricks, 259 Kan. 246,260-261,912 P. 2d 129, 137-138 (1996).
Moreover, Kansas had not satisfied what the court believed was an
additional "substantive due process" requirement, namely, the
provision of treatment.
Id., at 257-258, 912 P. 2d, at 136.
I shall consider each of these matters briefly.
A
In my view, the Due Process Clause permits Kansas to classify
Hendricks as a mentally ill and dangerous person for civil
commitment purposes.
Allen v.
Illinois, 478 U. S. 364, 370-371,
373-375 (1986). I agree with the majority that the Constitution
gives States a degree of leeway in making this kind of
determination.
Ante, at 359;
Foucha, supra, at 87
(O'CONNOR, J., concurring in part and concurring in judgment);
Jones v.
United States, 463 U. S. 354, 365, n. 13
(1983). But, because I do not subscribe to all of its reasoning, I
shall set forth three sets of circumstances that, taken together,
convince me that Kansas has acted within the limits that the Due
Process Clause substantively sets.
375
First, the psychiatric profession itself classifies the kind of
problem from which Hendricks suffers as a serious mental disorder.
E. g., American Psychiatric Assn., Diagnostic and Statistical
Manual of Mental Disorders 524-525, 527-528 (4th ed. 1994)
(describing range of paraphilias and discussing how stress
aggravates pedophilic behavior); Abel & Rouleau, Male Sex
Offenders, in Handbook of Outpatient Treatment of Adults 271 (M.
Thase, B. Edelstein, & M. Hersen eds. 1990). I concede that
professionals also debate whether or not this disorder should be
called a mental "illness." See R. Slovenko, Psychiatry and Criminal
Culpability 57 (1995) (citing testimony that paraphilias are not
mental illnesses); Schopp & Sturgis, Sexual Predators and Legal
Mental Illness for Civil Commitment, 13 Behav. Sci. & The Law
437, 451-452 (1995) (same). Compare Brief for American Psychiatric
Association as
Amicus Curiae 26 (mental illness requirement
not satisfied) with Brief for Menninger Clinic et al. as
Amici
Curiae 22-25 (requirement is satisfied). But the very presence
and vigor of this debate is important. The Constitution permits a
State to follow one reasonable professional view, while rejecting
another. See
Addington v.
Texas, supra, at 431. The
psychiatric debate, therefore, helps to inform the law by setting
the bounds of what is reasonable, but it cannot here decide just
how States must write their laws within those bounds. See
Jones,
supra, at 365, n. 13.
Second, Hendricks' abnormality does not consist simply of a long
course of antisocial behavior, but rather it includes a specific,
serious, and highly unusual inability to control his actions. (For
example, Hendricks testified that, when he gets "stressed out," he
cannot "control the urge" to molest children, see
ante, at
355.) The law traditionally has considered this kind of abnormality
akin to insanity for purposes of confinement. See,
e. g.,
Minnesota ex rel. Pearson v.
Probate Court of Ramsey
Cty., 309 U. S.
270, 274 (1940) (upholding against a due process challenge the
civil confinement of
376
a dangerous person where the danger flowed from an "'utter lack
of power to control ... sexual impulses''') (quoting
State ex
rel. Pearson v.
Probate Court of Ramsey Cty., 205 Minn.
545, 555, 287 N. W. 297, 302 (1939)); 1788 N. Y. Laws, ch. 31
(permitting confinement of those who are "furiously mad");
In re
Oakes, 8 Law Rep. 122, 125 (Mass. 1845) (Shaw, C. J.); A.
Deutsch, The Mentally III in America 419-420 (1949) (tracing
history of commitment of furiously mad people in 18th and 19th
centuries); Dershowitz, The Origins of Preventative Confinement in
Anglo-American Law-Part II: The American Experience, 43 U. Cin. L.
Rev. 781 (1974). Indeed, the notion of an "irresistible impulse"
often has helped to shape criminal law's insanity defense and to
inform the related recommendations of legal experts as they seek to
translate the insights of mental health professionals into workable
legal rules. See also American Law Institute, Model Penal Code §
4.01 (insanity defense, in part, rests on inability "to conform ...
conduct to the requirements of law"); A. Goldstein, The Insanity
Defense 67-79 (1967) (describing "irresistible impulse" test).
Third, Hendricks' mental abnormality also makes him dangerous.
Hendricks "has been convicted of ... a sexually violent offense,"
and a jury found that he "suffers from a mental abnormality ...
which makes" him "likely to engage" in similar "acts of sexual
violence" in the future. Kan. Stat. Ann. §§ 59-29a02, 59-29a03
(1994). The evidence at trial favored the State. Dr. Befort, for
example, explained why Hendricks was likely to commit further acts
of sexual violence if released. See,
e. g., App. 248-254.
And Hendricks' own testimony about what happens when he gets
"stressed out" confirmed Dr. Befort's diagnosis.
Because (1) many mental health professionals consider pedophilia
a serious mental disorder; and (2) Hendricks suffers from a classic
case of irresistible impulse, namely, he is so afflicted with
pedophilia that he cannot "control the urge" to molest children;
and (3) his pedophilia presents a serious
377
danger to those children, I believe that Kansas can classify
Hendricks as "mentally ill" and "dangerous" as this Court used
those terms in
Foucha.
The Kansas Supreme Court's contrary conclusion rested primarily
upon that court's view that Hendricks would not qualify for civil
commitment under Kansas' own state civil commitment statute. The
issue before us, however, is one of constitutional interpretation.
The Constitution does not require Kansas to write all of its civil
commitment rules in a single statute or forbid it to write two
separate statutes each covering somewhat different classes of
committable individuals. Moreover, Hendricks apparently falls
outside the scope of the Kansas general civil commitment statute
because that statute permits confinement only of those who "lac[k]
capacity to make an informed decision concerning treatment." Kan.
Stat. Ann. § 59-2902(h) (1994). The statute does not tell us why it
imposes this requirement. Capacity to make an informed decision
about treatment is not always or obviously incompatible with severe
mental illness. N either Hendricks nor his
amici point to a
uniform body of professional opinion that says as much, and we have
not found any. See,
e. g., American Psychiatric Assn.,
Guidelines for Legislation on the Psychiatric Hospitalization of
Adults, 140 Am. J. Psychiatry 672, 673 (1983); Stromberg &
Stone, A Model State Law on Civil Commitment of the Mentally Ill,
20 Harv. J. Legis. 275, 301-302 (1983); DeLand & Borenstein,
Medicine Court, II,
Rivers in Practice, 147 Am. J.
Psychiatry 38 (1990). Consequently, the boundaries of the Federal
Constitution and those of Kansas' general civil commitment statute
are not congruent.
B
The Kansas Supreme Court also held that the Due Process Clause
requires a State to provide treatment to those whom it civilly
confines (as "mentally ill" and "dangerous"). It found that Kansas
did not provide Hendricks with significant
378
treatment. And it concluded that Hendricks' confinement violated
the Due Process Clause for this reason as well.
This case does not require us to consider whether the Due
Process Clause
always requires treatment-whether, for
example, it would forbid civil confinement of an
untreatable
mentally ill, dangerous person. To the contrary, Kansas argues that
pedophilia is an "abnormality" or "illness" that can be treated.
See Tr. of Oral Arg. 12 (Kansas Attorney General, in response to
the question "you're claiming that there is some treatability ...
?" answering "[a]bsolutely"); Brief for Petitioner 42-47. Two
groups of mental health professionals agree. Brief for Association
for the Treatment of Sexual Abusers as
Amicus Curiae 11-12
(stating that "sex offenders can be treated" and that "increasing
evidence" shows that "state-of-the-art treatment programs ...
significantly reduce recidivism"); Brief for Menninger Foundation
et al. as
Amici Curiae 28. Indeed, no one argues the
contrary. Hence the legal question before us is whether the Clause
forbids Hendricks' confinement unless Kansas provides him with
treatment
that it concedes is available.
Nor does anyone argue that Kansas somehow could have violated
the Due Process Clause's
treatment concerns had it provided
Hendricks with the treatment that is potentially available (and I
do not see how any such argument could succeed). Rather, the basic
substantive due process treatment question is whether that Clause
requires Kansas to provide treatment that it concedes is
potentially available to a person whom it concedes is treatable.
This same question is at the heart of my discussion of whether
Hendricks' confinement violates the Constitution's
Ex Post
Facto Clause. See
infra, at 383-395. For that reason, I
shall not consider the substantive due process treatment question
separately, but instead shall simply turn to the
Ex Post
Facto Clause discussion. As JUSTICE KENNEDY points out,
ante, p. 371, some of the matters there discussed may later
prove relevant to substantive due process analysis.
379
II
Kansas' 1994 Act violates the Federal Constitution's prohibition
of "any ...
ex post facto Law" if it "inflicts" upon
Hendricks "a greater punishment" than did the law "annexed to" his
"crime[sJ" when he "committed" those crimes in 1984.
Calder
v.
Bull, 3 Dall. 386, 390 (1798) (opinion of Chase, J.); U.
S. Const., Art. I, § 10. The majority agrees that the Clause"
'forbids the application of any
new punitive measure to a
crime already consummated.'"
California Dept. of Corrections
v.
Morales, 514 U. S. 499, 505 (1995)
(citation omitted; emphasis added).
Ante, at 370-371. But it
finds the Act is not "punitive." With respect to that basic
question, I disagree with the majority.
Certain resemblances between the Act's "civil commitment" and
traditional criminal punishments are obvious. Like criminal
imprisonment, the Act's civil commitment amounts to "secure"
confinement, Kan. Stat. Ann. § 5929a07(a) (1994), and
"incarceration against one's will,"
In re Gault, 387 U. S. 1, 50 (1967). See
Testimony of Terry Davis, SRS Director of Quality Assurance, App.
52-54, 78-81 (confinement takes place in the psychiatric wing of a
prison hospital where those whom the Act confines and ordinary
prisoners are treated alike). Cf.
Browning-Ferris Industries of
Vt., Inc. v.
Kelco Disposal, Inc., 492 U. S. 257, 298 (1989)
(O'CONNOR, J., concurring in part and dissenting in part). In
addition, a basic objective of the Act is incapacitation, which, as
Blackstone said in describing an objective of criminallaw, is to
"depriv[eJ the party injuring of the power to do future mischief."
4 W. Blackstone, Commentaries *11-*12 (incapacitation is one
important purpose of criminal punishment); see also
Foucha,
504 U. S., at 99 (KENNEDY, J., dissenting) ("Incapacitation for the
protection of society is not an unusual ground for incarceration");
United States v.
Brown, 381 U. S. 437, 458 (1965)
("Punishment serves several purposes: retributive, rehabilitative,
deterrent-and preventative. One of the reasons society imprisons
those convicted
380
of crimes is to keep them from inflicting future harm, but that
does not make imprisonment any the less punishment"); 1 W. LaFave
& A. Scott, Substantive Criminal Law § 1.5, p. 32 (1986); 18 u.
S. C. § 3553(a); United States Sentencing Guidelines, Guidelines
Manual, ch. 1, pt. A (Nov. 1995).
Moreover, the Act, like criminal punishment, imposes its
confinement (or sanction) only upon an individual who has
previously committed a criminal offense. Kan. Stat. Ann. §§
59-29a02(a), 59-29a03(a) (1994). Cf.
Department of Revenue of
Mont. v.
Kurth Ranch, 511 U. S. 767, 781 (1994)
(fact that a tax on marijuana was "conditioned on the commission of
a crime" is "'significant of [its] penal and prohibitory intent'"
(citation omitted));
Lipke v.
Lederer, 259 U. S. 557, 561-562
(1922). And the Act imposes that confinement through the use of
persons (county prosecutors), procedural guarantees (trial by jury,
assistance of counsel, psychiatric evaluations), and standards
("beyond a reasonable doubt") traditionally associated with the
criminal law. Kan. Stat. Ann. §§ 59-29a06, 59-29a07 (1994).
These obvious resemblances by themselves, however, are not
legally sufficient to transform what the Act calls "civil
commitment" into a criminal punishment. Civil commitment of
dangerous, mentally ill individuals by its very nature involves
confinement and incapacitation. Yet "civil commitment," from a
constitutional perspective, nonetheless remains civil.
Allen
v.
Illinois, 478 U. S., at 369-370. Nor does the fact that
criminal behavior triggers the Act make the critical difference.
The Act's insistence upon a prior crime, by screening out those
whose past behavior does not concretely demonstrate the existence
of a mental problem or potential future danger, may serve an
important noncriminal evidentiary purpose. Neither is the presence
of criminal law-type procedures determinative. Those procedures can
serve an important purpose that in this context one might consider
noncriminal, namely, helping to prevent judgmental
381
mistakes that would wrongly deprive a person of important
liberty.
Id., at 371-372.
If these obvious similarities cannot by themselves prove that
Kansas' "civil commitment" statute is criminal, neither can the
word "civil" written into the statute, § 59-29a01, by itself prove
the contrary. This Court has said that only the "clearest proof"
could establish that a law the legislature called "civil" was, in
reality, a "punitive" measure.
United States v.
Ward,
448 U. S. 242,
248-249 (1980). But the Court has also reiterated that a "civil
label is not always dispositive,"
Allen v.
Illinois,
supra, at 369; it has said that in close cases the label is
"'not of paramount importance,'"
Kurth Ranch, supra, at 777
(citation omitted); and it has looked behind a "civil" label fairly
often,
e. g., United States v.
Halper, 490 U. S. 435, 447
(1989).
In this circumstance, with important features of the Act
pointing in opposite directions, I would place particular
importance upon those features that would likely distinguish
between a basically punitive and a basically nonpunitive purpose.
United States v.
Ursery, 518 U. S. 267, 278 (1996)
(asking whether a statutory scheme was so punitive "'either in
purpose or effect'" to negate the legislature's "'intention to
establish a civil remedial mechanism'" (citations omitted)). And I
note that the Court, in an earlier civil commitment case,
Allen v.
Illinois, 478 U. S., at 369, looked
primarily to the law's concern for treatment as an important
distinguishing feature. I do not believe that
Allen means
that a particular law's lack of concern for treatment, by itself,
is enough to make an incapacitative law punitive. But, for reasons
I will point out, when a State believes that treatment does exist,
and then couples that admission with a legislatively required delay
of such treatment until a person is at the end of his jail term (so
that further incapacitation is therefore necessary), such a
legislative scheme begins to look punitive.
In
Allen, the Court considered whether, for Fifth
Amendment purposes, proceedings under an Illinois statute were
382
civil or "criminal." The Illinois statute, rather like the
Kansas statute here, authorized the confinement of persons who were
sexually dangerous, who had committed at least one prior sexual
assault, and who suffered from a "mental disorder."
Id., at
366, n. 1. The
Allen Court, looking behind the statute's
"civil commitment" label, found the statute civilin important part
because the State had "provided for the treatment of those it
commits."
Id., at 370 (also referring to facts that the
State had "disavowed any interest in punishment" and that it had
"established a system under which committed persons may be released
after the briefest time in confinement").
In reaching this conclusion, the Court noted that the State
Supreme Court had found the proceedings "'essentially civil'"
because the statute's aim was to provide" 'treatment, not
punishment.'"
Id., at 367 (quoting
People v.
Allen, 107 Ill. 2d 91, 99-101, 481 N. E. 2d 690, 694-695
(1985)). It observed that the State had "a statutory obligation to
provide 'care and treatment ... designed to effect recovery'" in a
"facility set aside to provide psychiatric care." 478 U. S., at 369
(quoting Ill. Rev. Stat., ch. 38, , 105-8 (1985)). And it referred
to the State's purpose as one of
"treating rather than
punishing sexually dangerous persons." 478 U. S., at 373; see also
ibid. ("Had petitioner shown, for example, that the
confinement ... imposes ... a regimen which is essentially
identical to that imposed upon felons with no need for psychiatric
care, this might well be a different case").
The
Allen Court's focus upon treatment, as a kind of
touchstone helping to distinguish civil from punitive purposes, is
not surprising, for one would expect a nonpunitive statutory scheme
to confine, not simply in order to protect, but also in order to
cure. That is to say, one would expect a nonpunitively motivated
legislature that confines
because of a dangerous mental
abnormality to seek to help the individual himself overcome that
abnormality (at least insofar as professional treatment for the
abnormality exists and is
383
potentially helpful, as Kansas, supported by some groups of
mental health professionals, argues is the case here, see
supra, at 378). Conversely, a statutory scheme that provides
confinement that does not reasonably fit a practically available,
medically oriented treatment objective, more likely reflects a
primarily punitive legislative purpose.
Several important treatment-related factors-factors of a kind
that led the five-Member
Allen majority to conclude that the
Illinois Legislature's purpose was primarily civil, not punitive-in
this action suggest precisely the opposite. First, the State
Supreme Court here, unlike the state court in
Allen, has
held that treatment is not a significant objective of the Act. The
Kansas court wrote that the Act's purpose is "segregation of
sexually violent offenders," with "treatment" a matter that was
"incidental at best." 259 Kan., at 258, 912 P. 2d, at 136. By way
of contrast, in
Allen the Illinois court had written that"
'treatment, not punishment,'" was "the aim of the statute."
Allen, supra, at 367 (quoting
People v.
Allen,
supra, at 99-101, 481 N. E. 2d, at 694-695).
We have generally given considerable weight to the findings of
state and lower federal courts regarding the intent or purpose
underlying state officials' actions, see
U. S.
Term
Limits, Inc. v.
Thornton, 514 U. S. 779,829 (1995)
(ordinarily "[w]e must ... accept the state court's view of the
purpose of its own law");
Romer v.
Evans, 517 U. S. 620, 626
(1996);
Hernandez v.
New York, 500 U. S. 352, 366-370
(1991) (plurality opinion);
id., at 372 (O'CONNOR, J.,
concurring);
Edwards v.
Aguillard, 482 U. S. 578, 594, n. 15
(1987); but see
Department of Revenue of Mont. v.
Kurth
Ranch, 511 U. S., at 776, 780, n. 18;
Stone v.
Graham, 449 U.
S. 39, 40-43 (1980)
(per curiam); Consolidated Edison Co.
of N.
Y. v.
Public Servo Comm'n of N.
Y.,
447 U. S. 530,
533, 535-537 (1980), although the level of deference given to such
findings varies with the circumstances,
Crawford v.
Board
of Ed. of Los Angeles, 458 U. S. 527, 544, n. 30
(1982), and is not always as conclusive as a state court's
construction of one of its stat-
384
utes, see,
e. g.,
R. A. v: v.
St. Paul,
505 U. S. 377,
381 (1992). For example,
Allen's dissenters, as well as its
majority, considered the state court's characterization of the
state law's purpose an important factor in determining the
constitutionality of that statute.
Allen, 478 U. S., at 380
(STEVENS, J., dissenting) (describing the state court as "the final
authority on the ... purpose" of the statute).
The record provides support for the Kansas court's conclusion.
The court found that, as of the time of Hendricks' commitment, the
State had not funded treatment, it had not entered into treatment
contracts, and it had little, if any, qualified treatment staff.
See 259 Kan., at 249, 258, 912 P. 2d, at 131, 136; Testimony of Dr.
Charles Befort, App. 255 (acknowledging that he has no specialized
training); Testimony of John House, SRS Attorney, id., at 367 (no
contract has been signed by bidders); Testimony of John House, SRS
Attorney, id., at 369 (no one hired to operate sexually violent
predator (SVP) program or to serve as clinical director,
psychiatrist, or psychologist). Indeed, were we to follow the
majority's invitation to look beyond the record in this case, an
invitation with which we disagree, see
infra, at 391-393, it
would reveal that Hendricks, according to the commitment program's
own director, was receiving "essentially no treatment." Dr. Charles
Befort in State Habeas Corpus Proceeding, App. 393; 259 Kan., at
249, 258, 912 P. 2d, at 131, 136. See also App. 421 ("[T]he
treatment that is prescribed by statute" is "still not available");
id., at 420-421 (the "needed treatment" "hasn't been delivered yet"
and "Hendricks has wasted ten months" in "terms of treatment
effects"); id., at 391-392 (Dr. Befort admitting that he is not
qualified to be SVP program director).
It is therefore not surprising that some of the Act's official
supporters had seen in it an opportunity permanently to confine
dangerous sex offenders,
e. g., id., at 468 (statement of
Attorney General Robert Stephan); id., at 475-476, 478 (statement
of Special Assistant to the Attorney General
385
Carla Stovall). Others thought that effective treatment did not
exist, id., at 503 (statement of Jim Blaufuss) ("Because there is
no effective treatment for sex offenders, this Bill may mean a life
sentence for a felon that is considered a risk to women and
children. SO BE IT!")-a view, by the way, that the State of Kansas,
supported by groups of informed mental health professionals, here
strongly denies. See
supra, at 378.
The Kansas court acknowledged the existence of "provisions of
the Act for treatment" (although it called them "somewhat
disingenuous"). 259 Kan., at 258, 912 P. 2d, at 136. Cf. Kan. Stat.
Ann. § 59-29a01 (1994) (legislative findings that "prognosis for
rehabilita[tion] ... in a prison setting is poor, ... treatment
needs ... long term" and "commitment procedure for ... long term
care and treatment ... necessary"); § 59-29a09 ("commitment ...
shall conform to constitutional requirements for care and
treatment"). Nor did the court deny that Kansas could later
increase the amount of treatment it provided. But the Kansas
Supreme Court could, and did, use the Act's language, history, and
initial implementation to help it characterize the Act's primary
purposes.
Second, the Kansas statute, insofar as it applies to previously
convicted offenders such as Hendricks, commits, confines, and
treats those offenders
after they have served virtually
their entire criminal sentence. That time-related circumstance
seems deliberate. The Act explicitly defers diagnosis, evaluation,
and commitment proceedings until a few weeks prior to the
"anticipated release" of a previously convicted offender from
prison. Kan. Stat. Ann. § 5929a03(a)(1) (1994). But why, one might
ask, does the Act not commit and require treatment of sex offenders
sooner, say, soon after they begin to serve their sentences?
An Act that simply seeks confinement, of course, would not need
to begin civil commitment proceedings sooner. Such an Act would
have to begin proceedings only when an
386
offender's prison term ends, threatening his release from the
confinement that imprisonment assures. But it is difficult to see
why rational legislators who seek treatment would write the Act in
this way-providing treatment years after the criminal act that
indicated its necessity. See,
e. g., Wettstein, A
Psychiatric Perspective on Washington's Sexually Violent Predators
Statute, 15 U. Puget Sound L. Rev. 597, 617 (1992) (stating that
treatment delay leads to "loss of memory" and makes it "more
difficult for the offender" to "accept responsibility," and that
time in prison leads to attitude hardening that "engender[s] a
distorted view of the precipitating offense"). And it is
particularly difficult to see why legislators who specifically
wrote into the statute a finding that "prognosis for rehabilitating
... in a prison setting is poor" would leave an offender in that
setting for months or years before beginning treatment. This is to
say, the timing provisions of the statute confirm the Kansas
Supreme Court's view that treatment was not a particularly
important legislative objective.
I recognize one possible counterargument. A State, wanting both
to punish Hendricks (say, for deterrence purposes) and also to
treat him, might argue that it should be permitted to postpone
treatment until after punishment in order to make certain that the
punishment in fact occurs. But any such reasoning is out of place
here. Much of the treatment that Kansas offered here (called "ward
milieu" and "group therapy") can be given at the same time as, and
in the same place where, Hendricks serves his punishment. See,
e. g., Testimony of Leroy Hendricks, App. 142-143, 150, 154,
179-181 (stating that Washington and Kansas had both provided group
therapy to Hendricks, and that he had both taken and refused such
treatment at various points); Testimony of Terry Davis, SRS
Director of Quality Assurance, id., at 78-81 (pointing out that
treatment under the Act takes place in surroundings very similar to
those in which prisoners receive treatment); Testimony of John
House, SRS
387
Attorney, id., at 375-376. See also Task Force on Community
Protection, Final Report to Booth Gardner, Governor State of
Washington II-2 (1989) (findings of task force that developed the
Washington State Act, which served as a model for Kansas' Act,
stating that "[s]ex offenders can be treated during
incarceration"). The evidence adduced at the state habeas
proceeding, were we to assume it properly before the Court, see
infra, at 392-393, supports this conclusion as well. See
Testimony of Dr. Befort at State Habeas Proceeding, App. 399,
406-408 (describing treatment as ward milieu and group therapy);
id., at 416-417 (stating that Kansas offers similar treatment, on a
voluntary basis, to prisoners). Hence, assuming,
arguendo,
that it would be otherwise permissible, Kansas need not postpone
treatment in order to make certain that sex offenders serve their
full terms of imprisonment, i.
e., to make certain that they
receive the entire punishment that Kansas criminal law provides. To
the contrary, the statement in the Act itself, that the Act aims to
respond to special "long term" "treatment needs," suggests that
treatment should begin during imprisonment. It also suggests that,
were those long-term treatment needs (rather than further
punishment) Kansas' primary aim, the State would require that
treatment begin soon after conviction, not 10 or more years later.
See also Vt. Stat. Ann., Tit. 18, § 2815 (1959) (providing for
treatment of sexual psychopaths first, and punishment
afterwards).
Third, the statute, at least as of the time Kansas applied it to
Hendricks, did not require the committing authority to consider the
possibility of using less restrictive alternatives, such as
postrelease supervision, halfway houses, or other methods that
amici supporting Kansas here have mentioned. Brief for
Menninger Foundation et al. as
Amici Curiae 28; Brief for
Association for the Treatment of Sexual Abusers as
Amicus
Curiae 11-12. The laws of many other States require such
consideration. See Appendix,
infra.
388
This Court has said that a failure to consider, or to use,
"alternative and less harsh methods" to achieve a nonpunitive
objective can help to show that legislature's "purpose ... was to
punish." Bell v. Wolfish,
441 U. S. 520, 539, n. 20
(1979). And one can draw a similar conclusion here. Legislation
that seeks to help the individual offender as well as to protect
the public would avoid significantly greater restriction of an
individual's liberty than public safety requires. See Keilitz,
Conn, & Gianpetro, Least Restrictive Treatment of Involuntary
Patients: Translating Concepts into Practice, 29 St. Louis U. L. J.
691, 693 (1985) (describing "least restrictive alternativ[eJ"
provisions in the ordinary civil commitment laws of almost all
States); Lyon, Levine, & Zusman, Patients' Bill of Rights: A
Survey of State Statutes, 6 Mental Disability L. Rep. 178, 181-183
(1982) (same). Legislation that seeks almost exclusively to
incapacitate the individual through confinement, however, would not
necessarily concern itself with potentially less restrictive forms
of incapacitation. I would reemphasize that this is not a case in
which the State claims there is no treatment potentially available.
Rather, Kansas, and supporting
amici, argue that pedophilia
is treatable. See
supra, at 378.
Fourth, the laws of other States confirm, through comparison,
that Kansas' "civil commitment" objectives do not require the
statutory features that indicate a punitive purpose. I have found
17 States with laws that seek to protect the public from mentally
abnormal, sexually dangerous individuals through civil commitment
or other mandatory treatment programs. Ten of those statutes,
unlike the Kansas statute, begin treatment of an offender soon
after he has been apprehended and charged with a serious sex
offense. Only seven, like Kansas, delay "civil" commitment (and
treatment) until the offender has served his criminal sentence (and
this figure includes the Acts of Minnesota and New Jersey, both of
which generally do not delay treatment). Of these seven, however,
six (unlike Kansas) require consideration of less re-
389
strictive alternatives. See Ariz. Rev. Stat. Ann. §§ 13-4601,
4606B (Supp. 1996-1997); Cal. Welf. & Inst. Code Ann. §§ 6607,
6608 (West Supp. 1997); Minn. Stat. § 253B.09 (1996); N. J. Stat.
Ann. § 30:4-27.11d (West 1997); Wash. Rev. Code Ann. § 71.09.090
(Supp. 1996-1997); Wis. Stat. § 980.06(2)(b) (Supp. 1993-1994).
Only one State other than Kansas, namely Iowa, both delays civil
commitment (and consequent treatment) and does not explicitly
consider less restrictive alternatives. But the law of that State
applies prospectively only, thereby avoiding
ex post facto
problems. See Iowa Code Ann. § 709C.12 (Supp. 1997) (Iowa SVP Act
only "applies to persons convicted of a sexually violent offense on
or after July 1, 1997"); see also Appendix,
infra. Thus the
practical experience of other States, as revealed by their
statutes, confirms what the Kansas Supreme Court's finding, the
timing of the civil commitment proceeding, and the failure to
consider less restrictive alternatives, themselves suggest, namely,
that for
Ex Post Facto Clause purposes, the purpose of the
Kansas Act (as applied to previously convicted offenders) has a
punitive, rather than a purely civil, purpose.
Kansas points to several cases as support for a contrary
conclusion. It points to
Allen-which is, as we have seen, a
case in which the Court concluded that Illinois' "civil commitment"
proceedings were not criminal. I have explained in detail, however,
how the statute here differs from that in
Allen, and why
Allen's reasoning leads to a different conclusion in this
litigation. See
supra, at 381-388 and this page.
Kansas also points to
Addington v.
Texas, where
the Court held that the Constitution does not require application
of criminal law's "beyond a reasonable doubt" standard in a civil
commitment proceeding. 441 U. S., at 428. If some criminal law
guarantees such as "reasonable doubt" did not apply in
Addington, should other guarantees, such as the prohibition
against
ex post facto laws, apply here? The answer to this
question, of course, lies in the particular statute at issue in
Addington-a Texas statute that, this Court ob-
390
served, did "not exercis[e]" state power "in a punitive sense."
Ibid. That statute did not add civil commitment's
confinement to imprisonment; rather civil commitment was, at most,
a substitute for criminal punishment. See Tex. Rev. Civ. Stat. Ann.
§ 5547-41 (Vernon 1958) (petition must state "proposed patient is
not charged with a crime or [is] charged [but] transferred ... for
civil commitment proceedings"). And this Court, relying on the
Texas Supreme Court's interpretation, wrote that the "State of
Texas confines only for the purpose of providing care designed to
treat the individual."
Addington, supra, at 428, n. 4
(citing
State v.
Turner, 556 S. W. 2d 563, 566
(1977)). Cf.
Specht v.
Patterson, 386 U. S. 605,
608-609 (1967) (separate postconviction sexual psychopath
commitment/sentencing proceeding held after conviction for serious
sex crime, imposes a "criminal punishment even though ... designed
not so much as retribution as ... to keep individuals from
inflicting future harm"). Nothing I say here would change the reach
or holding of
Addington in any way. That is, a State is free
to commit those who are dangerous and mentally ill in order to
treat them. Nor does my decision preclude a State from deciding
that a certain subset of people are mentally ill, dangerous, and
untreatable, and that confinement of this subset is therefore
necessary (again, assuming that all the procedural safeguards of
Addington are in place). But when a State decides offenders
can be treated and confines an offender to provide that treatment,
but then refuses to provide it, the refusal to treat while a person
is fully incapacitated begins to look punitive.
The majority suggests that this is the very case I say it is
not, namely, a case of a mentally ill person who is
untreatable.
Ante, at 365. And it quotes a long excerpt from the Kansas
Supreme Court's opinion in support. That court, however, did not
find that Hendricks was
untreatable; it found that he was
untreated-quite a different matter. Had the Kansas Supreme Court
thought that Hendricks, or oth-
391
ers like him, are untreatable, it could not have written the
words that follow that excerpt, adopting by reference the words of
another court opinion:
"'The statute forecloses the possibility that offenders will be
evaluated and treated until after they have been punished ....
Setting aside the question of whether a prison term exacerbates or
minimizes the mental condition of a sex offender, it plainly delays
the treatment that must constitutionally accompany commitment
pursuant to the Statute. The failure of the Statute to provide for
examination or treatment prior to the completion of the punishment
phase strongly suggests that treatment is of secondary, rather than
primary, concern.'" 259 Kan., at 258, 912 P. 2d, at 136 (quoting
Young v. Weston, 898 F. Supp. 744, 753 (WD Wash. 1995)).
This quotation, and the rest of the opinion, make clear that the
court is finding it objectionable that the statute, among other
things, has not provided adequate treatment to one who, all parties
here concede,
can be treated.
The majority suggests in the alternative that recent evidence
shows that Kansas is now providing treatment.
Ante, at
366-368. That evidence comes from two sources: First, a statement
by the Kansas Attorney General at oral argument that those
committed under the Act are now receiving treatment,
ante,
at 368; and second, in a footnote, a Kansas trial judge's
statement, in a state habeas proceeding nearly one year after
Hendricks was committed, that Kansas is providing treatment.
Ante, at 368, n. 5. I do not see how either of these
statements can be used to justify the validity of the Act's
application to Hendricks at the time he filed suit.
We are reviewing the Kansas Supreme Court's determination of
Hendricks' case. N either the majority nor the lengthy dissent in
that court referred to the two facts that the majority now seizes
upon, and for good reason. That court denied a motion to take
judicial notice of the state
392
habeas proceeding, see Order of Kansas Supreme Court, No.
94-73039, Mar. 1, 1996. The proceeding is thus not part of the
record, and cannot properly be considered by this Court. And the
Kansas Supreme Court obviously had no chance to consider Kansas'
new claim made at oral argument before this Court. There is simply
no evidence in the record before this Court that comes even close
to resembling the assertion Kansas made at oral argument. It is the
record, not the parties' view of it, that must control our
decision. See
Russell v.
Southard, 12 How. 139,
158-159 (1851);
Adickes v. S.
H. Kress &
Co., 398 U. S.
144, 157-158, n. 16 (1970);
Hopt v.
Utah,
114 U. S. 488,
491-492 (1885);
Witters v.
Washington Dept. of Servs. for
Blind, 474 U. S.
481, 489, n. 3
(1986); New Haven Inclusion Cases,
399 U. S. 392,
450, n. 66 (1970); R. Stern, E. Gressman, S. Shapiro, & K.
Geller, Supreme Court Practice 555-556, 594 (7th ed. 1993); Fed.
Rule Evid. 201(b).
The prohibition on facts found outside the record is designed to
ensure the reliability of the evidence before the Court. For
purposes of my argument in this dissent, however, the material that
the majority wishes to consider, when read in its entirety, shows
that Kansas was
not providing treatment to Hendricks. At
best, the testimony at the state hearing contained general and
vague references that treatment was about to be provided, but it
contains
no statement that Hendricks
himself was
receiving treatment. And it provides the majority with no support
at all in respect to that key fact. Indeed, it demonstrates the
contrary conclusion. For example, the program's director, Dr.
Befort, testified that he would have to tell the court at
Hendricks' next annual review, in October 1995, that Hendricks "has
had no opportunity for meaningful treatment." App. 400. He also
stated that SVP's were receiving "essentially no treatment" and
that the program does not "have adequate staffing."
Id., at
393, 394. And Dr. Befort's last words made clear that Hendricks has
"wasted ten months ... in terms of treatment
393
effects" and that, as far as treatment goes, "[t]oday, it's
still not available."
Id., at 420-421. Nor does the
assertion made by the Kansas Attorney General at oral argument help
the majority. She never stated that
Hendricks, as opposed to
other SVP's, was receiving this treatment. And we can find no
support for her statement in the record.
We have found no other evidence in the record to support the
conclusion that Kansas was in fact providing the treatment that all
parties agree that it could provide. Thus, even had the Kansas
Supreme Court considered the majority's new evidence-which it did
not-it is not likely to have changed its characterization of the
Act's treatment provisions as "somewhat disingenuous." 259 Kan., at
258, 912
Regardless, the Kansas Supreme Court did so characterize the
Act's treatment provisions and did find that treatment was "at
best" an "incidental" objective. Thus, the circumstances here are
different from
Allen, where the Illinois Supreme Court
explicitly found that the statute's aim was to provide treatment,
not punishment. See
supra, at 382-384. There is no evidence
in the record that contradicts the finding of the Kansas court.
Thus,
Allen's approach-its reliance on the state court-if
followed here would mean the Act as applied to
Leroy
Hendricks (as opposed to others who may have received treatment
or who were sentenced after the effective date of the Act) is
punitive.
Finally, Kansas points to
United States v.
Salerno,
481 U. S. 739 (1987), a case in which this Court held
preventive detention of a dangerous accused person pending trial
constitutionally permissible.
Salerno, however, involved the
brief detention of that person, after a finding of "probable cause"
that he had committed a crime that would justify further
imprisonment, and only pending a speedy judicial determination of
guilt or innocence. This Court, in
Foucha, emphasized the
fact that the confinement at issue in
Salerno was "strictly
limited in duration." 504 U. S., at 82. It described
394
that "pretrial detention of arrestees" as "one of those
carefully limited exceptions permitted by the Due Process Clause."
Id., at 83. And it held that
Salerno did not
authorize the indefinite detention, on grounds of dangerousness, of
"insanity acquittees who are not mentally ill but who do not prove
they would not be dangerous to others." 504 U. S., at 83. Whatever
Salerno's "due process" implications may be, it does not
focus upon, nor control, the question at issue here, the question
of "punishment" for purposes of the
Ex Post Facto
Clause.
One other case warrants mention. In
Kennedy v.
Mendoza-Martinez, 372 U. S. 144 (1963),
this Court listed seven factors that helped it determine whether a
particular statute was primarily punitive for purposes of applying
the Fifth and Sixth Amendments. Those factors include whether a
sanction involves an affirmative restraint, how history has
regarded it, whether it applies to behavior already a crime, the
need for a finding of scienter, its relationship to a traditional
aim of punishment, the presence of a nonpunitive alternative
purpose, and whether it is excessive in relation to that purpose.
Id., at 169. This Court has said that these seven factors
are "neither exhaustive nor dispositive," but nonetheless
"helpful."
Ward, 448 U. S., at 249. Paraphrasing them here,
I believe the Act before us involves an affirmative restraint
historically regarded as punishment; imposed upon behavior already
a crime after a finding of scienter; which restraint, namely,
confinement, serves a traditional aim of punishment, does not
primarily serve an alternative purpose (such as treatment), and is
excessive in relation to any alternative purpose assigned. 372 U.
S., at 168-169.
This is not to say that each of the factors the Court mentioned
in
Martinez-Mendoza on balance argues here in favor of a
constitutional characterization as "punishment." It is not to say
that I have found "a single 'formula' for identifying those
legislative changes that have a sufficient effect on
395
substantive crimes or punishments to fall within the
constitutional prohibition,"
Morales, 514 U. S., at 509; see
also
Halper, 490 U. S., at 447;
id., at 453 (KENNEDY,
J., concurring). We have not previously done so, and I do not do so
here. Rather, I have pointed to those features of the Act itself,
in the context of this litigation, that lead me to conclude, in
light of our precedent, that the added confinement the Act imposes
upon Hendricks is basically punitive. This analysis, rooted in the
facts surrounding Kansas' failure to treat Hendricks, cannot answer
the question whether the Kansas Act, as it now stands, and in light
of its current implementation, is punitive toward people other than
he. And I do not attempt to do so here.
III
To find that the confinement the Act imposes upon Hendricks is
"punishment" is to find a violation of the
Ex Post Facto
Clause. Kansas does not deny that the 1994 Act changed the legal
consequences that attached to Hendricks' earlier crimes, and in a
way that significantly "disadvantage[d] the offender,"
Weaver v.
Graham, 450 U. S. 24, 29 (1981).
See Brief for Respondent State of Kansas 37-39.
To find a violation of that Clause here, however, is not to hold
that the Clause prevents Kansas, or other States, from enacting
dangerous sexual offender statutes. A statute that operates
prospectively, for example, does not offend the
Ex Post
Facto Clause.
Weaver, 450 U. S., at 29. Neither does it
offend the
Ex Post Facto Clause for a State to sentence
offenders to the fully authorized sentence, to seek consecutive,
rather than concurrent, sentences, or to invoke recidivism statutes
to lengthen imprisonment. Moreover, a statute that operates
retroactively, like Kansas' statute, nonetheless does not offend
the Clause
if the confinement that it imposes is not
punishment-if, that is to say, the legislature does not simply
add a later criminal punishment to an earlier one.
Ibid.
396
The statutory provisions before us do amount to punishment
primarily because, as I have said, 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. See The Federalist No. 78, p. 466 (C.
Rossiter ed. 1961) (A. Hamilton).
I therefore would affirm the judgment below.
397
APPENDIX TO OPINION OF BREYER, J.
SELECTED SEXUAL OFFENSE COMMITMENT STATUTES (Kansas is the only
State that answers "yes"
to all three categories)
398
Appendix to opinion of BREYER, J.
SELECTED SEXUAL OFFENSE COMMITMENT STATUTES-Continued
(* = designation that the statute does not specify)
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