Published on January 1, 2008
Kansas v Hendricks: Kansas v Hendricks Kansas’ Sexually Violent Predator’s Act Commitment Requirements: 1. Danger to self or others 2. Mental abnormality not amenable to treatment/prognosis is poor antisocial tendencies sexually aggressive and violent needs long term care/treatment Procedural Requirements: Screened by prison mental health evaluators Probable cause for sexually violent predator behavior found Eligible for civil commitment Transferred to hospital Evaluation by hospital staff Procedural Requirements (cont): Procedural Requirements (cont) Commitment hearing a. beyond a reasonable doubt standard b. prove sexually violent predator c. right to attorney d. right to independent mental health evaluation e. right to cross examine witnesses History of Sexual Predator Commitment Laws: History of Sexual Predator Commitment Laws · Laws have been around for more than fifty years. · In the 1960s there were the sexual psychopath laws. The focus was upon sex offenders’ diagnosis and treatment. · The 1970s optimism burned out and the laws fell out of favor. The Group for the Advancement of Psychiatry argued against the laws; saying the laws had failed. It was naïve to assume that a heterogeneous group was susceptible to diagnosis and treatment. · By the end of the 1980s no one in favor of these laws. Now the laws are back. Washington State has taken the lead. It enacted the first sexual predator law in 1990. Washington State Case Example: Washington State Case Example 1. It was based upon Earl Shriner, who was released from prison and promptly raped a seventeen year old boy, cutting off his penis. The state enacted the community protection act. It increased the penalties by more than 50%, and established a new form of civil commitment if the person was dangerous following incarceration. 2. It was necessary because sexual offenders did not have the diagnosable mental disorder covered by the mental health laws. Rather these sexual predators had antisocial features that were not amenable to treatment. 3. The law provided for confinement, not treatment. Indefinite confinement for one who is convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality of a sexual disorder. The procedure kicks in at the time of release from serving the sentence. Other States with Predator Laws: Other States with Predator Laws Other states include Arizona, California, Colorado, D.C., Illinois, Kansas, Massachusetts, Minnesota, Nebraska, etc. Kansas v. Hendricks: Kansas v. Hendricks The Supreme Court held the law was constitutional. It is a limited opinion on June 24, 1997. It is a 5 to 4 decision, and Justice Kennedy wrote an ambivalent decision. Violent child molesters may be confined in mental institutions indefinitely after serving their prison sentences. 1994 Sexual predator statute is a copy of Washington State’s law enacted in 1990, and that of four others states in Arizona, California, Minnesota, and Wisconsin It was a response to a number of unusually violent, well publicized sex crimes committee by men who had served time previously for other sex crimes Law allows the state to screen offenders coming out of prison and those deemed likely to strike again may be referred for commitment; Also screened are those with incompetent to stand trial, NCR, Kansas v. Hendricks (cont): Kansas v. Hendricks (cont) · permit commitment indefinitely to a locked facility where they would receive intensive therapy, and if made progress they can get out · purpose is not punitive: according to Attorney General Carla Stovall law is a balanced attempt to impose therapy on a carefully screened group of violent, disturbed and recalcitrant offenders. · Sexually violent predator: 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 engaged in the predatory acts of sexual violence Critics of the Law: Critics of the Law Critics of the law · APA regards law as an attempt to extend prison sentences; illicit punitive intent · Law transforms civil commitment rules: side step requirements of severe mental disorder (schizophrenia, psychosis) and immediate danger to self/others · Other diagnoses never previously considered a basis for commitment; such as personality disorders, nicotine addiction, narcissistic personality disorder which do not affect a person’s basic rationality or reality may form the basis for commitment · With the threshold for mental disorder lowered, Justice White noted, “you could indefinitely lock into psychiatric wards practically any prisoner, because most people in jail have a personality disorder. And every prisoner is dangerous by virtue of having committed crimes.” · Kansas Attorney General Carla Stoval insisted that the aim of the program for sex predators was therapeutic and non punitive; but ten months earlier, before the Judiciary Committee of Kansas Senate, she called the law an ineffectual “game.” She had been testifying in favor of legislation to stiffen sentences for sex crimes. Opinion Background: Opinion Background Kansas v. Hendricks opinion Justice Clarence Thomas wrote the opinion. Justice Thomas had previously offered a dissenting opinion in Foucha, which foretold the opinion that he took in this case. Stephen McAllister, law professor at U. Kansas had played a role in his capacity as Judge Thomas’ law clerk when Foucha was decided: He knew Thomas strongly opposed the majority in that decision. When the Kansas Supreme Court used Foucha to strike down the predator law, McAllister figured the state had a sympathetic ear with Judge Thomas. Judge Thomas’ Opinion Reasons: Judge Thomas’ Opinion Reasons 1. indefinite civil commitment is not punishment, it is treatment 2. locking up persons in mental hospital afar they have served a prison sentence for a crime is not double jeopardy 3. invoking a law passed years after a person’s conviction to confine him when his sentence ends is not ex post factor punishment 4. making indefinite confinement contingent on having a mental abnormality or personality disorder does not violate due process 5. no obligation on the part of states to provide treatment What did Hendricks Do?: What did Hendricks Do? · What did Hendricks's do 1. guilty of “bad touch” crimes; no penetrative 2. 1954 conviction: exposing himself to two girls 3. 1960 conviction: he fondled two boys, ages 7 and 8 at a carnival that he worked 4. 1963 conviction: touched the genitals of a 7 year old girl who was a friend of his family 5. 1963 conviction: lewd conduct—for playing strip poker with a teenage girl 6. 1967 conviction: guilty of fondling a boy and fondling and licking the genitals of a girl, friends of the family with whom he went camping 7. 1970s incident: fondled and had oral sex with stepson and stepdaughter in exchange for letting them smoke cigarettes and drive his truck, but no criminal charges….filed 8. 1984 conviction: touching through their pants, the crotches of two 13 year old boys, customers at the electronics store where he worked Hendricks Trial: Hendricks Trial · Hendricks's trial in 1984, touching two boys 1. faced life imprisonment as recidivist felon 2. plea bargain agreed to for 5-20 years maximum sentence in 10 years, with good behavior Hendricks Civil Commitment: Hendricks Civil Commitment · Hendricks's civil commitment hearing, October 1994 1. Screened for probable cause found that he was violent sexual predator; Referred to hospital as eligible for commitment; evaluation. 2. Hendricks said he was not going to molest children anymore 3. He had no desire to touch children since 1985 4. He learned his lesson 5. Told prosecutor, “only way to prove he won’t do it again, would be I he were dead.” 6. 62 year old who said, only death would guarantee a change in his behavior 7. sympathetic defendant; court held he was dangerous, and suffered from mental abnormality, not otherwise specified... 8. procedural rights: beyond reasonable doubt standard to prove sexually violent predator; right to attorney; right to mental health evaluation; right to cross exam witnesses 9. after commitment, right to annual review Policy consequences: Policy consequences Of the 618 people released from Kansas prisons, only 9 were screened into the program. There are 9 predators locked in Lanard State Hospital charged with indecent liberties, indecent solicitation, lewd and lascivious behavior. The cost is $100,000 per defendant, per year Conclusion: Conclusion Ultimately, we are dealing with a difficult issue of how to remedy a sentencing guideline failure; alternative to seek stiffer sentence. There are violent offenders who are getting out, and we don’t have an effective method to change their behaviors. We should rely upon the criminal justice authority, extended sentences, rather than rely upon mental health professionals. Ultimately, many individuals who pass through this system will create a whole new set of legal problems, and appeals.