Sex offenders, mental illness and criminal responsibility: The constitutional boundaries of civil commitment after Kansas v. Hendricks

American Journal of Law and Medicine

Volumn 25, Issue 1, 1999, Pages 117-147

  Falk, Adam J ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

CRIMINAL BEHAVIOR; FORENSIC PSYCHIATRY; LAW; MENTAL DISEASE; NOTE; RESPONSIBILITY; SEXUAL CRIME;

CIVIL RIGHTS; COMMITMENT OF MENTALLY ILL; FORENSIC PSYCHIATRY; HUMANS; INTERNAL-EXTERNAL CONTROL; KANSAS; LIABILITY, LEGAL; MENTAL DISORDERS; SEX OFFENSES; STATE GOVERNMENT;

EID: 0032937694     PISSN: 00988588     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (22)

1. In re Linehan, 518 N.W.2d 609, 616 (Minn. 1994) (Gardebring, J., dissenting).
2. In re Young, 857 P.2d 989, 1019 (Wash. 1993) (Johnson, J., dissenting).
3. See Mary L. Durham, Civil Commitment of the Mentally Ill: Research, Policy and Practice, in MENTAL HEALTH AND LAW 17, 17 (Bruce D. Sales & Saleem A. Shah eds., 1996). Civil commitment is defined as "the process by which individuals with mental illness or mental impairments ... are compelled to receive care and treatment ... either in inpatient or outpatient settings." See JOHN PARRY, MENTAL DISABILITY LAW: A PRIMER 57 (5th ed. 1995). The confinement may be temporary, as for emergency commitments or commitments for evaluation and observation, or it may last for an extended time period. See id.
4. See Mary L. Durham, Civil Commitment of the Mentally Ill: Research, Policy and Practice, in MENTAL HEALTH AND LAW 17, 17 (Bruce D. Sales & Saleem A. Shah eds., 1996). Civil commitment is defined as "the process by which individuals with mental illness or mental impairments ... are compelled to receive care and treatment ... either in inpatient or outpatient settings." See JOHN PARRY, MENTAL DISABILITY LAW: A PRIMER 57 (5th ed. 1995). The confinement may be temporary, as for emergency commitments or commitments for evaluation and observation, or it may last for an extended time period. See id.
5. See Mary L. Durham, Civil Commitment of the Mentally Ill: Research, Policy and Practice, in MENTAL HEALTH AND LAW 17, 17 (Bruce D. Sales & Saleem A. Shah eds., 1996). Civil commitment is defined as "the process by which individuals with mental illness or mental impairments ... are compelled to receive care and treatment ... either in inpatient or outpatient settings." See JOHN PARRY, MENTAL DISABILITY LAW: A PRIMER 57 (5th ed. 1995). The confinement may be temporary, as for emergency commitments or commitments for evaluation and observation, or it may last for an extended time period. See id.
6. See Dan W. Brock, Involuntary Civil Commitment, in MENTAL ILLNESS: LAW AND PUBLIC POLICY 147, 164 (Baruch A. Brody & H. Tristram Engelhardt, Jr. eds., 1980).
7. See id. at 157.
8. See Stephen J. Morse, A Preference for Liberty: The Case Against Involuntary Civil Commitment of the Mentally Disordered, 70 CAL. L. REV. 54, 58 (1982).
9. See id. at 58-59.
10. See Brian MacQuarrie, Celluci Bill Targets Sexual Predators, BOSTON GLOBE, Feb. 5, 1999, at B2; Wilson Signs Measure Designed to Clarify Law for Post-Prison Civil Commitment of Sex Offenders, METROPOLITAN NEWS-ENTERPRISE, Jan. 29, 1996, at 11, available in LEXIS, News Library, METNEWS File; Yumi Wilson, New Laws on Sex Offenders: More time possible for some inmates, S.F. CHRON., Oct. 11, 1995, at A13, available in LEXIS, News Library, SFCHRON File; Donna Halvorsen, Sexual Predator Bill OK'd, signed, STAR TRIBUNE, Sept. 1, 1994, at 1A, available in LEXIS, News Library, BUSDTL File; Thompson Signs Sex Crime Bill, CAPITAL TIMES, May 27, 1994, at 3A, available in LEXIS, News Library, CAPTMS File.
11. See Brian MacQuarrie, Celluci Bill Targets Sexual Predators, BOSTON GLOBE, Feb. 5, 1999, at B2; Wilson Signs Measure Designed to Clarify Law for Post-Prison Civil Commitment of Sex Offenders, METROPOLITAN NEWS-ENTERPRISE, Jan. 29, 1996, at 11, available in LEXIS, News Library, METNEWS File; Yumi Wilson, New Laws on Sex Offenders: More time possible for some inmates, S.F. CHRON., Oct. 11, 1995, at A13, available in LEXIS, News Library, SFCHRON File; Donna Halvorsen, Sexual Predator Bill OK'd, signed, STAR TRIBUNE, Sept. 1, 1994, at 1A, available in LEXIS, News Library, BUSDTL File; Thompson Signs Sex Crime Bill, CAPITAL TIMES, May 27, 1994, at 3A, available in LEXIS, News Library, CAPTMS File.
12. See Brian MacQuarrie, Celluci Bill Targets Sexual Predators, BOSTON GLOBE, Feb. 5, 1999, at B2; Wilson Signs Measure Designed to Clarify Law for Post-Prison Civil Commitment of Sex Offenders, METROPOLITAN NEWS-ENTERPRISE, Jan. 29, 1996, at 11, available in LEXIS, News Library, METNEWS File; Yumi Wilson, New Laws on Sex Offenders: More time possible for some inmates, S.F. CHRON., Oct. 11, 1995, at A13, available in LEXIS, News Library, SFCHRON File; Donna Halvorsen, Sexual Predator Bill OK'd, signed, STAR TRIBUNE, Sept. 1, 1994, at 1A, available in LEXIS, News Library, BUSDTL File; Thompson Signs Sex Crime Bill, CAPITAL TIMES, May 27, 1994, at 3A, available in LEXIS, News Library, CAPTMS File.
13. See Brian MacQuarrie, Celluci Bill Targets Sexual Predators, BOSTON GLOBE, Feb. 5, 1999, at B2; Wilson Signs Measure Designed to Clarify Law for Post-Prison Civil Commitment of Sex Offenders, METROPOLITAN NEWS-ENTERPRISE, Jan. 29, 1996, at 11, available in LEXIS, News Library, METNEWS File; Yumi Wilson, New Laws on Sex Offenders: More time possible for some inmates, S.F. CHRON., Oct. 11, 1995, at A13, available in LEXIS, News Library, SFCHRON File; Donna Halvorsen, Sexual Predator Bill OK'd, signed, STAR TRIBUNE, Sept. 1, 1994, at 1A, available in LEXIS, News Library, BUSDTL File; Thompson Signs Sex Crime Bill, CAPITAL TIMES, May 27, 1994, at 3A, available in LEXIS, News Library, CAPTMS File.
14. See Brian MacQuarrie, Celluci Bill Targets Sexual Predators, BOSTON GLOBE, Feb. 5, 1999, at B2; Wilson Signs Measure Designed to Clarify Law for Post-Prison Civil Commitment of Sex Offenders, METROPOLITAN NEWS-ENTERPRISE, Jan. 29, 1996, at 11, available in LEXIS, News Library, METNEWS File; Yumi Wilson, New Laws on Sex Offenders: More time possible for some inmates, S.F. CHRON., Oct. 11, 1995, at A13, available in LEXIS, News Library, SFCHRON File; Donna Halvorsen, Sexual Predator Bill OK'd, signed, STAR TRIBUNE, Sept. 1, 1994, at 1A, available in LEXIS, News Library, BUSDTL File; Thompson Signs Sex Crime Bill, CAPITAL TIMES, May 27, 1994, at 3A, available in LEXIS, News Library, CAPTMS File.
15. See Erin Gunn, Comment, Washingion's Sexually Violent Predator Law: The Predatory Requirement, 5 UCLA WOMEN'S L.J. 277, 279-80 n.13 (1994). Wisconsin, Kansas, Iowa and Minnesota have recently enacted laws permitting civil commitment of sex offenders. See id. Other states have followed this lead. See id. Washington, for example, enacted a new sex crime law in response to gruesome crimes against women and children, such as one in which a seven-year-old boy was kidnapped, raped orally and anally, stabbed in the back, strangled with a cord and mutilated. See Alexander D. Brooks, The Incapacitation by Civil Commitment of Pathologically Violent Sex Offenders, in LAW, MENTAL HEALTH, AND MENTAL DISORDER 384, 385 (Bruce D. Sales & Daniel W. Shuman eds., 1996). The statute increases sentences for convicted sex offenders, mandates registration and permits involuntary civil commitment for those likely to repeat their crimes. See id.
16. See Erin Gunn, Comment, Washingion's Sexually Violent Predator Law: The Predatory Requirement, 5 UCLA WOMEN'S L.J. 277, 279-80 n.13 (1994). Wisconsin, Kansas, Iowa and Minnesota have recently enacted laws permitting civil commitment of sex offenders. See id. Other states have followed this lead. See id. Washington, for example, enacted a new sex crime law in response to gruesome crimes against women and children, such as one in which a seven-year-old boy was kidnapped, raped orally and anally, stabbed in the back, strangled with a cord and mutilated. See Alexander D. Brooks, The Incapacitation by Civil Commitment of Pathologically Violent Sex Offenders, in LAW, MENTAL HEALTH, AND MENTAL DISORDER 384, 385 (Bruce D. Sales & Daniel W. Shuman eds., 1996). The statute increases sentences for convicted sex offenders, mandates registration and permits involuntary civil commitment for those likely to repeat their crimes. See id.
17. See Erin Gunn, Comment, Washingion's Sexually Violent Predator Law: The Predatory Requirement, 5 UCLA WOMEN'S L.J. 277, 279-80 n.13 (1994). Wisconsin, Kansas, Iowa and Minnesota have recently enacted laws permitting civil commitment of sex offenders. See id. Other states have followed this lead. See id. Washington, for example, enacted a new sex crime law in response to gruesome crimes against women and children, such as one in which a seven-year-old boy was kidnapped, raped orally and anally, stabbed in the back, strangled with a cord and mutilated. See Alexander D. Brooks, The Incapacitation by Civil Commitment of Pathologically Violent Sex Offenders, in LAW, MENTAL HEALTH, AND MENTAL DISORDER 384, 385 (Bruce D. Sales & Daniel W. Shuman eds., 1996). The statute increases sentences for convicted sex offenders, mandates registration and permits involuntary civil commitment for those likely to repeat their crimes. See id.
18. Kansas's statute targets: (1) a person who "has been convicted of or charged with a sexually violent offense" and (2) a person who "suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence." See KAN. STAT. ANN. § 59-29a02(a) (Supp. 1997). Washington's statute is virtually identical. See WASH. REV. CODE § 71.09.020(1) (1998).
19. Kansas's statute targets: (1) a person who "has been convicted of or charged with a sexually violent offense" and (2) a person who "suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence." See KAN. STAT. ANN. § 59-29a02(a) (Supp. 1997). Washington's statute is virtually identical. See WASH. REV. CODE § 71.09.020(1) (1998).
20. See Brooks, supra note 10, at 386.
21. See Kansas v. Hendricks, 521 U.S. 346, 388 (1997) (Breyer, J., dissenting). States with "Sexual Offense Commitment Statutes" include Arizona, California, Colorado, Connecticut, Illinois, Iowa, Kansas, Massachusetts, Minnesota, Nebraska, New Jersey, New Mexico, Oregon, Tennessee, Utah, Washington and Wisconsin. See id. at 397-98 (appendix to Justice Breyer's dissenting opinion).
22. See Kansas v. Hendricks, 521 U.S. 346, 388 (1997) (Breyer, J., dissenting). States with "Sexual Offense Commitment Statutes" include Arizona, California, Colorado, Connecticut, Illinois, Iowa, Kansas, Massachusetts, Minnesota, Nebraska, New Jersey, New Mexico, Oregon, Tennessee, Utah, Washington and Wisconsin. See id. at 397-98 (appendix to Justice Breyer's dissenting opinion).