Judicial Notebook

At least 16 states have enacted statutes — frequently referred to as sexual predator laws — that provide for the involuntary commitment of sexually violent offenders. More than 1,200 people have been committed pursuant to these statutes. Proponents of such commitment typically cite the extremely dangerous nature of such offenders and argue that existing civil and criminal proceedings are inadequate to address the risks they present to society. Opponents often assert that treatment is not made available to such offenders and, when provided, is often ineffective; that release is infrequent; and that such commitment may serve as a de facto life sentence.


In 1997, the U.S. Supreme Court determined that the Kansas Sexually Violent Predator Act was constitutional in Kansas v. Hendricks, 521 U.S. 346 (1997). However, the Supreme Court recently agreed to revisit the constitutionality of such statutes. In Kansas v. Crane 69 USLW 3641(No. 00-957), the Court will consider whether the Fourteenth Amendment's due-process clause requires a state to prove that a sexually violent predator "cannot control" his criminal sexual behavior before the state can civilly commit him for residential care and treatment.

In 1998, near the end of a four-year prison term for aggravated sexual battery, a civil commitment proceeding under the Kansas Sexually Violent Predators Act was initiated against Michael Crane. Crane had physically attacked a video store clerk, attempted to force her to perform oral sex and threatened to rape her. Thirty minutes earlier, he had exposed himself to a tanning salon attendant.

Before this proceeding, an evaluation by a psychologist and a psychiatrist detailed 18 other arrests, charges or convictions dating back to 1979, many of which were sexual in nature. While in prison, Crane completed 30 hours of group therapy but "excluded discussions of his sexual and criminal behavior" and "never participated in sex offender treatment." His evaluators concluded Crane met the Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition) criteria for "Exhibitionism and Antisocial Personality Disorder" and demonstrated a mental abnormality that accounted for his aggression toward women and that "proceeded progressively" from initial exhibitionist behavior. At the close of trial, a jury found Crane to be a sexually violent predator.

On appeal, this determination was reversed. Relying heavily on the majority opinion written by Justice Thomas in Hendricks, the Kansas Supreme Court concluded such commitments could only occur if the state showed the person was unable to control his dangerous behavior. The court noted Crane had been solely diagnosed as having a personality disorder. Because such a disorder did not by definition under the DSM-IV include a volitional impairment, the Kansas Supreme Court reasoned the state had failed to show Crane had an "inability to control his behavior" and thus was not eligible for civil commitment.

On appeal to the U.S. Supreme Court, the state of Kansas is arguing that this decision represents an unwarranted extension of prior U.S. Supreme Court rulings. The U.S. Supreme Court has established that before civil commitment can occur, the state must generally show an individual is both mentally ill and dangerous. Kansas asserts that requiring a finding that an individual is unable to control his behavior would, in effect, add a third prerequisite before an individual could be civilly committed as a sexually violent predator.

Implications for psychologists

Kansas v. Crane includes two arguments of particular interest to psychologists. First, it asserts that some personality disorders are characterized, at least in part, by a degree of volitional impairment and thus the Kansas Supreme Court's opinion that personality disorders per se do not involve volitional impairment is wrong as a matter of medical fact.

Second, it argues that a "cannot control" standard has no basis in mental health diagnosis and treatment. Kansas asserts such a standard is a throwback to the widely discredited "irresistible impulse" standard used in conjunction with the insanity defense. It posits that the "overwhelming weight of mental health authority would view virtually any person's behavior as falling along a continuum of volitional control, with even brutal, murderous sex offenders such as Jeffrey Dahmer and Ted Bundy exercising considerable volitional control over their heinous actions." Kansas concludes that the Kansas Supreme Court ruling could prevent states from reaching any sex offender--regardless of past history and likelihood of re-offending--whose primary or sole diagnosis involves impaired emotional, rather than volitional, capacity. It also asserts that this criterion would prevent states from reaching those offenders most likely to benefit from programs that can teach them to change and control their behavior. Nineteen states have joined in an amicus brief supporting Kansas.

"Judicial notebook" is written by the Courtwatch Committee of APA's Div. 9 (Society for the Psychological Study of Social Issues). This column seeks to encourage involvement by psychologists in judicial decision-making.