This is the U.S. Supreme Court decision in the case involving the Kansas sexual
predator law. The state law, passed in response to various horrible crimes committed
by persons released from prison, sought to use civil commitment to keep dangerous
sex offenders incarcerated after their prison sentence had expired. The Kansas
law requires prisoners convicted of sexual offenses to be screened for dangerousness
before being released from prison. If the state believes the prisoner is still
dangerous, it goes through a civil commitment proceeding, including a jury trial,
to determine if the prisoner should be confined in a mental institution after
release from prison. As the majority opinion held, the due process provided
in this proceeding certainly met or exceeded the constitutional standard for
civil commitment. The majority saw this as a classic police power case, even
citing Jacobson v. Massachusetts, 197 U.S. 11 (1905), case upholding the right
to force people to have smallpox immunizations.
The dissent saw the case differently. Justice Breyer, joined by 3 other justices, did agree that the state had the right to confine such dangerous individuals, and that in other circumstances the procedure that Kansas used would be proper. In the situation of a prisoner who is only evaluated for dangerousness at the time of release, he was concerned that this was really an ex post facto law intended to add the punishment originally meted by the jury or judge. His argument was based on two factors: 1) while Kansas represented that this was treatable condition, it had not made any arrangements to provide treatment after the civil commitment; and 2) if Kansas really was concerned with the prisoner's mental illness, why didn't it diagnose his illness earlier and treat him in prison? Breyer saw these factors as defeating the claim that this was civil statute, making it punitive in nature. Since the ex post facto clause only applies to criminal law, recharacterizing this as a criminal law would make it unconstitutional.
Breyer also raises the least restrictive argument, claiming that the state
should have considered post-release supervision and other alternatives. The
U.S. Supreme Court has never made this a standard for preventive detentions.
Breyer presents it as having been discussed in Bell v. Wolfish, 441 U.S. 520
(1979), but neglects to mention that it was rejected. He also refers to several
state laws that require it.
It is hard to say what this case means. The Kansas law was clearly passed as
a response to public hysteria and was intended to be a way to keep certain prisoners
locked up, with little regard for treatment. The dissent is correct that the
intent of the legislature was to get around the ex post facto clause and use
civil commitment to do what they could not do under the criminal law. That the
state was so short-sighted as to not even make a pretense of providing treatment
certainly undermines it claim that this is just another mental health law. However,
Breyer's view that the court should go back to the days of In Re Gault and start
looking behind the motives of the legislature is also troubling. Such a standard
could further weaken public health laws and make it more difficult for the state
to deal with dangerous individuals.
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