NCJ Number
181186
Journal
New England Journal on Criminal and Civil Confinement Volume: 25 Issue: 2 Dated: Summer 1999 Pages: 341-366
Date Published
1999
Length
26 pages
Annotation
In the context of the U.S. Supreme Court's decision in Kansas v. Hendricks (1997), this paper considers whether the mental illness criterion for liberty deprivation is indeed a defensible and legitimate one.
Abstract
When Leroy Hendricks, who had been convicted of child molestation, neared the end of his prison term, the Kansas prosecutor's office initiated a procedure under a new Kansas statute, the Sexually Violent Predator Act (SVPA), which allows for the postimprisonment "civil" confinement of Hendricks as "mentally abnormal and dangerous." Hendricks challenged the constitutionality of the SVPA, claiming that because it permitted confinement on the basis of a criminal conviction, it could not be fairly characterized as a "civil" commitment and should therefore be subject to the usual criminal procedural safeguards, notably the double jeopardy standard. Hendricks argued in addition that the nonclinical "mentally abnormal" terminology in the Kansas statute expanded the scope of permissible civil commitments beyond the strictly circumscribed "mentally ill and dangerous" group previously recognized and approved by the U.S. Supreme Court. Unless mentally ill, Hendricks contended, a dangerous person could not be confined other than through the criminal process. The Supreme Court rejected Hendricks' challenge. In doing so, it called into question the continuing vitality of the strictly circumscribed "mental illness" predicate to pre-emptive confinements. The decision in Kansas v. Hendricks has had the effect of making more of us vulnerable to the government's authority to commit "dangerous people." Our vulnerability, however, will have the salutary effect of redirecting attention to a strict definition of dangerousness, one in which predictions must be made with a high degree of confidence and one in which the behavior to be predicted must be serious and substantial enough to warrant the extreme measure of confinement. 108 footnotes