Sexual Predator Ruling Raises Ethical, Moral Dilemma

August 1, 1997

In Kansas v. Hendricks, the Supreme Court upheld by a narrow 5-4 margin a Kansas law that permits the civil commitment of individuals who, due to a "mental abnormality" or "personality disorder," are likely to engage in "predatory acts of sexual violence." Justice Clarence Thomas said the Kansas statute "comports with due process requirements and neither runs afoul of double jeopardy principles nor constitutes an exercise in impermissible ex post facto lawmaking."

Leroy Hendricks, 62, a convicted child molester, never set out to become the center of a civil liberties controversy, nor did he ever intend to instigate a national debate over what constitutes mental illness. But after a long-awaited U.S. Supreme Court ruling handed down in June, he ended up the focal point in a decision that has rocked the mental health community by putting psychiatry at odds with what is now the law of the land.

In Kansas v. Hendricks (Case No. 95-1649), the Supreme Court upheld by a narrow 5-4 margin a Kansas law that permits the civil commitment of individuals who, due to a "mental abnormality" or "personality disorder," are likely to engage in "predatory acts of sexual violence." Kansas' Sexually Violent Predator Act creates procedures for the institutionalization of sex offenders whose past conduct and current mental condition renders them likely to commit more crimes in the future.Writing for the majority, Justice Clarence Thomas overturned a Kansas Supreme Court decision that previously held the law to be unconstitutional. Brushing aside constitutional objections, Thomas said the Kansas statute "comports with due process requirements and neither runs afoul of double jeopardy principles nor constitutes an exercise in impermissible ex post facto lawmaking."

But Herbert Sacks, M.D., APA president, saw the court's ruling differently and his view, shared by many in the psychiatric profession, portends a struggle for the ethical and moral high ground that won't be determined easily.

"The civil commitment of sexual predators to a mental hospital for purposes of social control is an abuse of the mental health care system," Sacks said. "It saddles already underfunded public mental hospitals with a potential lifetime warehousing of people whom the state says do not have a mental illness, only a 'mental abnormality.'"

But despite an amicus curiae brief filed by the APA urging the court to reject the notion that sex offenses should be treated as a mental illness for which commitment is a solution, the court focused on the professional disagreements surrounding illnesses such as paraphilias to carve its own remedy.

"...[T]he very presence and vigor of this debate is important," Thomas wrote. "The constitution permits a State to follow one reasonable professional view while rejecting another. The psychiatric debate, therefore, helps to inform the law by setting the bounds of what is reasonable, but what it cannot here decide is just how States must write their laws within these bounds."

What the Supreme Court approved is a set of laws that permits a prosecutor in Kansas to decide whether to pursue involuntary commitment proceedings against convicted sex offenders just prior to their release from prison. If a trial judge or jury then determines beyond a reasonable doubt that a person is a sexually violent predator-someone who "suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence"-the individual is then institutionalized for "control, care and treatment until such time as the person's mental abnormality or personality disorder has so changed that the person is safe to be at large."

What this amounts to, according to many psychiatrists and civil libertarians, is actually life imprisonment using mental illness as a pretext to fill in the void left by inadequate sentences imposed by the criminal justice system. Reminiscent of Soviet policies that institutionalized dissidents, critics claim that policymakers in a growing number of states are willing to abuse commitment proceedings as a way of coping with public outrage over notorious sex offenses."The danger is the term 'mental abnormality' could be used to reach all kinds of behavior that may have no relation to mental illness," said Michael Allen of the Bazelon Center for Mental Health Law in Washington, D.C., in a June 1997 Chicago Tribune article. "The law would permit commitment of someone who was just maladjusted."

Howard V. Zonana, M.D., chair of the APA's task force on sexually dangerous offenders and medical director of the American Academy of Psychiatry and the Law, agrees that the Supreme Court's decision reflects a sea change in the way civil commitment proceedings are viewed.

"We in the psychiatric profession have never regarded antisocial personality disorder as a mental disorder sufficient to qualify for civil commitment," said Zonana, who is also a Yale University School of Medicine professor of psychiatry. "These statutes are clearly changing the predicate of civil commitment, but only at the moment for sex offenders. But one could take hit men who have an antisocial personality disorder and say these people, too, are a public menace and how could you let them back out on the street?

"By using such a category of mental disorder where people have no cognitive disorder and do have an appreciation that what they're doing is wrong, the Supreme Court also ran roughshod over the issue of volition," Zonana added. "[The majority of Supreme Court justices] said in this case that since [the defendant] offended several times it means he's totally out of control. That's such a distortion of both what psychiatry says about impulse disorders and what previous jurisprudence has said about volition, that it's in my view a bit of a travesty."

Nevertheless, it's too early to call for psychiatrists to engage in a form of civil disobedience by refusing to engage in mental health evaluations required by sexual predator laws, according to Zonana. "Some of these questions are going to have to be put a bit more on the front burner for active consideration...But there may well be a point where psychiatry ought to say this is not permissible from a medical point of view."

Zonana said it will take some time for professional organizations and other policymakers to evaluate the issues raised by the sexual predator laws, and to determine whether there is a workable solution that is consistent with ethical medical practice.

Justice Stephen Breyer, in a dissent joined by Justices Stevens, Souter and Ginsburg, essentially viewed the Kansas state law as a ruse by the state to impose additional punishment after Hendricks had already served his sentence. "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," Breyer wrote.