KANSAS v. HENDRICKS
No. 95-1649
Supreme Court of the United States
Argued December 10, 1996—Decided June 23, 1997
521 U.S. 346
*Together with No. 95-9075, Hendricks v. Kansas, also on certiorari to the same court.
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. McAllister, Special Assistant Attorney General, Bernard Nash, James van R. Springer, and Laura B. Feigin.
†Briefs of amici curiae urging reversal were filed for the State of Washington et al. by Christine O. 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 National 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 Seattle-King County Defender Association et al. by Robert C. Boruchowitz, Addie
David B. Robbins filed a brief for the Association for the Treatment of Sexual Abusers as amicus curiae.
JUSTICE THOMAS delivered the opinion of the Court.
In 1994, Kansas enacted the
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-
“[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
“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.”
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.
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.
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.
Once an individual was confined, the Act required that “[t]he involuntary detention or commitment . . . shall conform to constitutional requirements for care and treatment.”
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
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 11-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
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
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
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 Ill 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.”
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.
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-
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, 391-394 (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).
B
We granted Hendricks’ cross-petition to determine whether the Act violates the Constitution‘s double jeopardy
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,
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
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
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 748-749. 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-
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.
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
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
Alternatively, the Kansas Supreme Court’s opinion can be
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
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
1
The
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
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
2
Hendricks’ ex post facto claim is similarly flawed. The
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
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
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
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.
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
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.
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
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.”
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
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.
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[s]” when he “committed” those crimes in 1984. Calder v. Bull, 3 Dall. 386, 390 (1798) (opinion of Chase, J.);
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,
Moreover, the Act, like criminal punishment, imposes its confinement (or sanction) only upon an individual who has previously committed a criminal offense.
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
If these obvious similarities cannot by themselves prove that Kansas’ “civil commitment” statute is criminal, neither can the word “civil” written into the statute,
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
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
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
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 Serv. 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-
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
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.
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.
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
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
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 Amici Curiae 11-12. The laws of many other States require such consideration. See Appendix, infra.
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
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
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
“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. Neither 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
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
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 P. 2d, at 136.
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
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
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.
SELECTED SEXUAL OFFENSE COMMITMENT STATUTES
(Kansas is the only State that answers “yes” to all three categories)
| State | Delays Treatment | Fails to Consider Less Restrictive Alternatives | Applies to Pre-Act Crimes |
|---|---|---|---|
| Yes | No | * | |
| Yes | No | Yes | |
| No | Yes | Sometimes | |
| No | * | * | |
| No | No | * | |
| Yes | Yes | No | |
| Yes | Yes | Yes | |
| No | * | * | |
| Sometimes | No | Yes | |
| No | No | Generally not | |
| Sometimes | No | * | |
| No | No | * | |
| No | Yes | Generally not | |
| No | Yes | * | |
| No | Yes | Generally not | |
| Yes | No | Yes | |
| Yes | No | Yes |
(* = designation that the statute does not specify)