"There's No Success Like Failure/and Failure's No Success at All": Exposing the Pretextuality of Kansas v. Hendricks

• NCJ Number: 178847
• Journal: Northwestern University Law Review Volume: 92 Issue: 4 Dated: Summer 1998 Pages: 1247-1277
• Author(s): Michael L. Perlin
• Date Published: 1998
• Length: 31 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America
• Note: From a symposium; for other papers, see NCJ-178846, 178848- 53.

Annotation

This article examines erroneous legal and scientific reasoning regarding mental illness in the U.S. Supreme Court's decision in Kansas v. Hendricks (1997), which upheld Kansas' law that allows the long-term institutionalization of "sexually violent predators."

Abstract

Kansas enacted its Sexually Violent Predator Act in 1994 as a means of institutionalizing that "small but extremely dangerous group of sexually violent predators...who do not have a mental disease or defect that renders them appropriate for involuntary treatment pursuant to the [general involuntary civil commitment statute.]". It establishes a separate commitment process for "the long-term care and treatment of the sexually violent predator," statutorily defined 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." It is this statute that was challenged in the Hendricks case. After briefly discussing the historical roots that led to a world in which "Hendricks" could be litigated, this article explains "pretextuality" and discusses how pretextuality permeates all mental disability law. "Pretextuality" is the circumstance under which courts accept, either implicitly or explicitly, testimonial dishonesty and engage similarly in dishonest decisionmaking. Pretextual devices -- such as condoning perjured testimony, distorting readings of trial testimony, subordinating statistically significant social science data, and enacting prophylactic civil rights laws that have no "real world" impact - - dominate the administration of mental disability law. This article discusses "Hendricks'" particular pretextual bases and then considers the implications of this pretextuality for both past and possible subsequent developments in mental disability law. 196 footnotes