Foreshadowing the Future of Kansas v. Hendricks ... - SSRN papers

LEGAL STUDIES RESEARCH PAPER SERIES Accepted Paper

Foreshadowing the Future of Kansas v. Hendricks: Lessons from Minnesota's Sex Offender Commitment Litigation Northwestern University Law Review, 92, 1998 Eric Janus Dean and Professor of Law

William Mitchell College of Law 875 Summit Avenue St. Paul, Minnesota 55105-3076 www.wmitchell.edu (651) 227-9171

Reprinted by special permission of Northwestern University School of Law, Northwestern University Law Review

Electronic copy available at: http://ssrn.com/abstract=1689742

Copyright 1998 by Norhwestern Northwestern Univcity, University, School 1998 by School of of Law Law Northwestern University University Law Review Review Northwestern

Printed Printed in U.S.A. U.S.A.

4 Vol. 92, No. Vol. 92, No.4

V FORESHADOWING THE FUTURE OF KANSAS KANSAS V. FORESHADOWING LESSONS FROM MINNESOTA'S HENDRICKS: HENDRICKS: LESSONS MINNESOTA'S LITIGATION COMMITMENT LITIGATION SEX OFFENDER COMMITMENT EricS. S. Janus* Eric Janus *

INTRODUCTION I. INTRODUCTION Sex offender offender commitment commitment laws prevent prevent sexual violence violence by institutiontermination of their alizing the "most dangerous" dangerous" sex offenders beyond the termination danger--of these preventive criminal sentences.! power-and the danger--of preventive desentences.1 The power-and constitutional contention laws is that they unshackle the state from the constitutional straints on the criminal law.22 The central dispute about these laws is safeguards which the law adopts in the "great safeguards whether this breach in the "great justice, ''3 is a limited and principunishment of crime and the upholding of justice,,,3 punishment protecswallows those protecexpansion swallows expediency whose logical expansion pled one, or an expediency tions. Hendricks4 decision leaves this central disThe Supreme Court's 1997 Hendrichl pute unresolved. The Court upheld Kansas's broadly worded sex offender offender scheme, thus suggesting commitment suggesting that it had given such preventive preventive decommitment scheme, tention a green light. The Court emphasized, however, that civil commitcriminal law, ment is a narrowly confined departure departure from the primacy primacy of the criminallaw, pointing repeatedly to Hendricks's impulses Hendricks's inability to control his sexual impulses

1973. cum laude laude 1973. School, J.D. Law. Harvard Mitchell College College of of Law, Law, William Professor of •* Professor William Mitchell of Law. Harvard Law Law School, J.D. cum (Linehan ()), re Linehan Linehan (Linehan (I)), 518 N.W.2d N.W.2d 609 (Minn. 1994), author was was co-counsel for Linehan in In re The author remandedfor reconsidvacated and remanded/or (11)),557 1996), vacated reconsid), 557 N.W.2d 171 (Minn. 1996), (Linehan (11) and In re re Linehan (Linehan (1997). S.Ct. 596 (1997). eration in light o/Hendricks Linehan v. Minnesota, Minnesota, 18 S. of Hendricks sub nom. Linehan eration in for Predictions Legal Standard I1 Eric S. Janus & & Paul E. Meehl, Assessing the Legal Standard/or Predictions of 0/Dangerousness Dangerousness in & L. 33 (describing Proceedings,2 PSYCHOL., PSYCHOL., PUB. PUB. POL'Y. POL'y. & (describing claims that sex Sex Offender Commitment Proceedings, offender commitment commitment schemes incarcerate only the "most "most dangerous"); dangerous"); see Lucy Berliner, Sex Offendoffender (1998). ers: Policy nn.122-52 and accompanying accompanying text (1998). REV. 1203, 1203, nn.122-52 Practice,92 Nw. U. L. REv. Policy and and Practice, ers: 2 Civil commitment laws deprive people of their liberty, but do not demand the strict procedural and 2 Civil commitment laws deprive people of their liberty, but do not demand the strict procedural substantive protections protections of the criminal law. Most notably, civil commitment laws are exempt from the substantive prohibitions against ex post facto laws and double punishments, punishments, and they do not violate the constiturestraints against punishing for a status. See Eric S. Janus, Sex Offender Commitments: Debunktional restraints (1997) 71, 71-74 (1997) & POL'y POL:Y REV. Rules-in-Use, 8 STAN. L. & and Revealing the Rules-in-Use, ing REv. 71,71-74 Narrativeand ing the Official Official Narrative (describing manner manner in which which sex offender offender commitment schemes schemes claim exemption from the constraints constraints imposed upon the criminal law). Cooper v. Oklahoma, Oklahoma, 116 116 S. Ct. 1373, 1373, 1383 1383 (1996) (1996) (quoting 33 Cooperv. S. Ct. (quoting United United States v. Chisolm, Chisolm, 149 F. 284, 1906)). 288 (S.D. Ala. 1906)). 4 Kansas v. v. Hendricks, 117 S. S.Ct. 2072 (1997). (1997). 4 Kansas Hendricks, 117

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principle that limits, and justifies, the use of civil commitment. The as a principle control" language language is subsubkey ambiguity is whether the Court's "inability to control" stantive holding or window-dressing window-dressing dictum. stantive Minnesota's Minnesota's sex offender commitment litigation foreshadows foreshadows the fuHendricks because it puts the Court's control-incapacity control-incapacity language to ture of Hendricks dangerous sex offenders the test. Minnesota law claims the right to commit dangerous who are "mentally disordered," disordered," even if they are able fully to control their Minnesota litigation as its lesson, this Article sexual behavior. Using the Minnesota argues that such a law is neither neither a limited, nor a justified, exception to the primacy of the criminal law. Examining the alternate theories advanced by the Minnesota Minnesota court, the Article Article demonstrates that they neither limit nor justify justify the use of civil commitment. Instead, the Minnesota Minnesota court adopts adopts a "exradical justification justification for the use of civil commitment-mental commitment-mental disorder "explains" sexual violence. This justification justification may seriously undermine undermine important societal efforts to contain sexual violence. To avoid this result, post-Hendricks cases must either either give the control-incapacity control-incapacity test substanpost-Hendricks tive content, or abandon the conceit that civil commitment is legitimated by the narrowness of its application. Faced with constitutional constitutional challenges to sex offender commitment statutes, the Supreme Court has three times upheld them, most recently in KanSupreme Court Hendricks.ss Despite this historical historical embrace of prevention, the sas v. Hendricks. preventive detention as a limited, painted consistently has Court's rhetoric to the primacy of the criminal nonthreatening criminal law. extraordinary nonthreatening remedy, extraordinary Thus, in its 1940 Pearson Pearson v. Probate Probate Court Court decision, the Court warned that preventive detention detention might be "of doubtful validity." validity.,,66 broad application application of preventive 7 Twenty-six years later in Allen v. Illinois, fllinois/ the Court emphasized emphasized that civil Twenty-six commitment was an exercise in the state's benign parens parens patriae patriae powerpowercommitment criminal law. an alternate, rather than supplement, to the criminal Hendricks poses a much The sex offender commitment scheme in Hendricks more direct threat to the constitutional constitutional constraints on the criminal justice justice punishment," 88 system. Instead of targeting offenders "too sick to deserve punishment," from prison. dangerous" to be released .from the Kansas law targets those "too dangerous" precisely those gaps in the Under the Kansas law, civil commitment fills precisely constitutional limits on the social control control system that are created by the constitutional criminal law. In upholding this law against constitutional challenge, the Court may be read as having given approval to an aggressive of aggressive program of preventive "civil" detention, unfettered by the strict constraints constraints of the "civil" detention, preventive criminal system.

(1986); Minnesota Illinois, 478 U.S. 55 117 s. (1997); see also Allen Allen v. IlJinois, U.S. 364 (1986); Minnesota ex. ex. rel. rei. Pearson S.Ct. 2072 (1997); (1940). v. Probate Court, 309 U.S. 270 (1940). 6 Pearson,309 U.S. 270, 274 (1940). 6 Pearson, 309 U.S. 270, 274 (1940). 7 364, 373 (1986). (1986). 7 478 478 U.S. U.S. 364, 8 Millard v. Harris, 406 F.2d 964, 969 (D.C. Cir. 1968). 8 Millard v. Harris, 406 F.2d 964, 969 (D.C. Cir. 1968).

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Foreshadowingthe Future Futurea/Kansas of Kansas v. Hendricks Foreshadowing

But the Court's rhetoric is much more conservative. Adopting what I exception" test, the Hendricks Hendricks Court justifies the call the "principled narrow exception" characterizing it as an exception to the primacy of the crimiKansas law by characterizing nal law that is both extremely narrow and justified by reference to principle. nallaw Justice Thomas's opinion suggests that states cannot predicate civil com"dangerousness" alone; may be obliged to limit commitments mitment on "dangerousness" 0 "narrow subcategories," to "narrow subcategories,,,99 defined in reliance on professional expertise; expertise;lO treatment;" and may be required to have some duty to provide available available treatment;ll "particularly dangerous dangerous individuals.,,12 individuals." 2 limit commitment to "particularly Of the potential limiting principles, one stands out as most clearly enunciated by the Court. Repeatedly Repeatedly throughout throughout majority and dissenting control-incapacity-the notion that opinions, the justices ring the bell of control-incapacity-the Kansas's statute is legitimate civil commitment commitment because its aim is limited to Court individuals who are unable to control their sexual violence.1133 The Court characterizes the historical historical use of civil commitment as aimed at "people characterizes who are unable to control their behavior and who thereby pose a danger to the public health and safety."I4 safety."' 14 It characterizes characterizes its own precedent precedent as upholding holding "such" involuntary involuntary commitment commitment statutes. The Court suggests that the legitimizing legitimizing role of "mental disorder" in civil commitment is to "narrow[ ] the class of persons persons eligible for confinement confinement to those who are unable 15 "lack of volitional control, couIt is this "lack to control their dangerousness." dangerousness."I5 pled with a prediction of future dangerousness," dangerousness," that "adequately "adequately distinguishes Hendricks from other dangerous persons who are perhaps perhaps more properly exclusively through criminal proceedings.,,16 proceedings.6 properly dealt with exclusively In short, Hendricks Hendricks stands for two propositions. propositions. First, police power commitments may be but a limited commitments limited and justified justified departure from the strict control-incapacity is a constitutional confines of the criminal criminal law. Second, control-incapacity

9 Hendricks, 117 S.Ct. at 2080 ("It thus cannot be said that the involuntary civil confinement of a 9 Hendricks, 117 s. Ct. at 2080 ("It thus cannot be said that the involuntary confinement limited dangerous persons is contrary to our our understanding understanding of ordered ordered liberty."). liberty."). limited subclass subclass of dangerous 10 In concurrence, Justice Kennedy points out that the mental abnormality issue, pedophilia, 10 In concurrence, Justice Kennedy points out that the abnormality at issue, pedophilia, is inincluded abnormality-pedophilia-is cluded in the official nomenclature nomenclature ofpsychiatry: psychiatry: "In "In this case, case, the mental abnormality-pedophilia-is at least least described described in the DSM-IV. DSM-IV. American American Psychiatric Psychiatric Association, Diagnostic and and Statistical Statistical Manual Manual of 524-525, 527-528 1994)." Id. of Mental Mental Disorders Disorders 524-525, 527-528 (4th ed. 1994)." [d. at at 2087 (Kennedy, (Kennedy, J., J., concurring). concurring). This This is also a factor specifically specifically listed listed by the dissent. See id. id. at 2088 2088 (Breyer, J., J., dissenting) dissenting) (listing professional disorder" as one circumstances" that support of three "sets "sets of circumstances" sional classification classification as a "serious "serious mental mental disorder" one of constitutionality). constitutionality). IISee Hendricks, 117 S.Ct. at 2084. II See Hendricks, 117 S. Ct. at 2084. 12 CompareHendricks, 117 S.Ct. at 2085, with Jones v. United States, 463 U.S. 354,363-65 (1983) 12 Compare Hendricks, 117 S. Ct. at 2085, with Jones v. United States, 463 U.S. 354, 363-65 (1983) (permitting (permitting minimal showing ofdangerousness dangerousness as a predicate predicate for insanity-acquitee insanity-acquitee commitments). commitments). 13 The Court mentions lack of control or opin13 The Court mentions lack of control or volitional volitional impairment impairment no no fewer fewer than than 10 10 times in its opinion. Hendricks, 117 S. S. Ct. Ct. 2072. The dissent dissent focuses focuses directly directly on the notion, notion, mentioning mentioning it four four ion. See Hendricks, times. J., dissenting). times. See id. (Breyer, J., 14 Hendricks, 117 S. Ct. 14 Hendricks, 117 S. Ct. at at 2079. 2079. "s IS Id. [d. at at 2080. 2080. 36 Id. at 2081. 16 [d. at 2081.

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limiting commitment precisely because it performs predicate for civil commitment perfonns this limiting and justificatory role. on This Article examines the lessons taught by the Minnesota litigation on sex offender offender commitments. Minnesota Minnesota has traveled the same path path as the Supreme Court, for fifty-seven years announcing announcing its allegiance to controlincapacity as a limiting principle for civil commitment. In 1994, the Minincapacity nesota Legislature challenged this tradition, enacting a commitment law control-incapacity test." rejected the traditional control-incapacity test. 17 Upholding this law in that rejected 18 (H) decision,t8 decision, the Minnesota its 1996 1996 In re Linehan Linehan (II) Minnesota Supreme Supreme Court disavowed any limiting or justificatory justificatory role for control-incapacity. control-incapacity.199 significance of control-incapacity, the Rejecting Rejecting the constitutional constitutional significance Minnesota court proposed proposed a series of five principles to justify justify the use of of Minnesota preventive detention. I argue that these principles principles do not justify the abropreventive gation of the traditional constitutional constitutional limits on criminal criminal law. Instead, the causes and cures of the court abets abets fundamental fundamental misperceptions misperceptions cures of sexual use of forced widespread countenances that reasoning countenances violence, adopting reasoning end, I argue, to psychiatric hospitalization prevent criminal behavior. In the hospitalization psychiatric prevention by devaluing harm the cause of prevention devaluing both the Court's rhetoric may hann responsibility for sexual violence. the individual's, and the society's, responsibility Minnesota Supreme The United States Supreme Court has vacated the Minnesota of Hendricks. in light reconsideration for remanded Court's decision, and remanded reconsideration Hendricks.202o As this Article goes to press, the Minnesota Supreme Court hears oral arguments on the remand. The ensuing litigation will pit one of the traditional limits on civil commitment--control-incapacity-against commitment--control-incapacity-against the radical "explains" sexual and harmful line adopted adopted by the Minnesota Minnesota court, which "explains" violence by reference to mental disorder. II of the Article sets the context by discussing the historical cenPart IT llI.A. discusses the constitutrality of the control-incapacity control-incapacity rubric. Part Ill.A. (II) litigation. In Part III.B Ill.B I tional framework adopted in the Linehan (II) "principled narrow excepdemonstrate Minnesota Court adopts adopts the "principled demonstrate that the Minnesota tion" justification justification for civil commitment. In Part Ill.C, I address each of the five limiting principles proposed by the Minnesota court to replace the recontrol-incapacity test. I show that none of the five provides a prinjected control-incapacity limitation for civil commitment. Part IV discusses the lessons cipled limitation post-Hendricks litigation and policymaking. Linehan policymaking. (I) teaches for post-Hendricks Linehan (II) offender commitcontemporary sex the only Persons Act Dangerous Persons Sexually Dangerous 17 The The Minnesota Minnesota Sexually Act is is the only contemporary sex offender commitexemption from the traditional control-impairment control-impairment test of mental ment scheme that explicitly claims exemption (1996) ("For purposes MINN. STAT. STAT. § 253B.02. purposes of this provision, provision. it is not neces253B.02, subd. 18b(b) (1996) disorder. MiNN. sary tv impulses."). to prove that the person has an inability to control the person's sexual impulses."). reconsiderationin remandedfor reconsideration 1996), vacated and remanded/or 18 In re Linehan (II), (II), 557 N.W.2d 171 (Minn. 1996). 18 Minnesota, 118 S. Ct. 596 (1997). o/Hendricks (1997). light of Hendricks sub nom. Linehan v. Minnesota. N.W.2d 171. (concluding that there is "no princi171, 196 (Minn. 1996) (concluding (II), 557 N.W.2d re Linehan (II). 19 See In re with, and those without, significant distinction" between commitments commitments with. without. the the distinction" between constitutionally significant pled and constitutionally Pearson Pearson uncontrollability uncontrollability test). 20 See Linehan v. Minnesota, 118 S. Ct. 596 (1997). 20 See Linehan v. Minnesota. 118 S. Ct. 596 (1997). 17


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OFFENDER COMMITMENT COMMITMENT LAWS: A PRINCIPLED II. THE HISTORY OF SEX OFFENDER CONTROL IMPAIRMENT IMPAIRMENT ROLE FOR CONTROL

(H!), MinFor the fifty-seven years preceding the decision in Linehan Linehan (11), control-incapacity as if it were a princinesota courts treated the notion of control-incapacity pled, constitutional limit on police power commitments?1 commitments.2 ' Minnesota's Minnesota's original sex offender offender commitment commitment law, one of the first in a trend that at its height claimed laws in a majority of the states and the District of Columhei~ht bia, was passed in 1939. This law authorized the civil commitment of of bia,2 persons with "psychopathic personalities," setting out a broad definition for 23 "psychopathic personalities," label.23 the label. 24 immediately challenged Charles Pearson, one of its first targets, targets,24 immediately challenged the 25 face. The Minnesota Supreme Court acsex psychopath statute on its face?S knowledged "imperfectly drawn," and set out to remedy knowledged that the act was "imperfectly imperfection by giving the statutory language a narrowing construction. this imperfection Adopting terminology terminology that would echo fifty-seven years later in Hendricks, Hendricks, the Minnesota Minnesota court held that the law applied only to sex offenders who ex26 hibited an "utter lack of power to control" control" their sexual impulses.26 The 1939 1939 Minnesota Minnesota Supreme Court almost certainly viewed the "utter ''utter lack of power to control" control" requirement requirement as constitutionally constitutionally significant, rooted rooted deeply, though ambivalently, in notions of criminal nonresponsibility nonresponsibility and

21 Most contemporary civil commitment statutes require a cognitive impairment. See, e.g., MINN. 21 Most contemporary civil commitment statutes require a cognitive impairment See, e.g., MINN. STAT. § 253B.02, Subd. "organic disorder of the brain disorder subd. 13 (requiring "organic brain or a substantial psychiatric psychiatric disorder capacof thought, mood, perception, perception, orientation, or memory memory which grossly impairs impairs judgment, behavior, capacity to to recognize recognize reality, reality, or to reason reason or understand," understand," as predicate for civil commitment). commitment). However, most most not suffer suffer from such mental mental disorders, disorders, so this traditional traditional justification justification is not available available to sex offenders do not justify commitment schemes. justify sex sex offender offender commitment schemes. 22 See GROUP ADVANCEMENT OF PSYCHIATRY, PSYCHIATRY, PUB. No. 98, PSYCHIATRY AND AND SEX GROUP FOR THE THE ADVANCEMENT 98, PSYCHIATRY PSYCHOPATH LEGISLATION: THE 30s TO THE 80s (1977) (1977) [hereinafter [hereinafter GAP REPORT]; REpORT]; William William D. Erick"Northern Lights". Minnesota's Experience with Sex Offender Legislation, Lights"; Minnesota's Legislation, AM. ACAD. ACAD. son, "Northern PSYCHIATRY & L. NEWSL., NEWSL., Apr. 1995, 1995, at 3 [hereinafter PSYCHIATRY & [hereinafter Erickson, Erickson, Northern Northern Lights]. 23"Psychopathic personality means the any person 23 "Psychopathic personality means the existence existence in in any person of of such such conditions conditions of emotional ininstability, or or impulsiveness impulsiveness of behavior, behavior, or or lack of customary customary standards standards of good good judgment, or failure to appreciate appreciate the consequences consequences of ofpersonal personal acts, or a combination combination of any of these conditions, conditions, which renders the person irresponsible matters." 1939 Minn. Laws irresponsible for personal conduct conduct with with respect respect to sexual matters." Laws §§ I1 n.269. 24 Pearson "was a fifty-three-year-old man who who had who was accused 24 Pearson "was a fifty-three-year-old man had been been married married since since 1911, 191 I, and and who accused by a number of of girls, ranging from thirteen thirteen to fifteen fifteen years of of age, of taking taking liberties with them. The The police said that he had had made aa said that that numerous numerous young young girls had been been loitering loitering in in his sheet-metal sheet-metal shop shop and that practice Irresponsitaking them riding riding in his automobile." automobile." James E. Hughes, The Minnesota Minnesota 'Sexual 'Sexuallrresponsipractice of taking bles MENTAL HYGIENE 77. (1940); hIes Law, Law', 25 25 MENTAL HYGIENE 76, 76,77. (1940); see also Erickson, Erickson, Northern Northern Lights, supra supra note note 22, 22, at 3. 3. 25 Pearson challenged the law by a petition mandamus, filed 2S Pearson challenged the law by a petition for for aa writ writ of of mandamus, filed before before any proceedings proceedings on the petition petition were were undertaken. undertaken. See Minnesota Minnesota ex relPearson Pearson v. v. Probate Court, 287 N.W. 297,298 297, 298 (Minn. (Minn. 1939), (1940). 1939), affd, affd, 309 309 U.S. U.S. 270 270 (1940). 26 See Pearson,287 N.W. at 302. 26 See Pearson, 287 N.W. at 302.

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NORTHWESTERN NORTHWESTERN UNIVERSITY UNIVERSITY LAW LA W REVIEW REVIEW 2 7 Though incompetence?7 Though the the Pearson Pearson opinion opinion offers offers the "lack "lack of of power power to to incompetence. control" language language without without explanation explanation as to to its its pedigree, pedigree, the the record record reveals reveals control" possible sources sources for for the control-incapacity control-incapacity language. language. These These sources sources two possible criminal impaired identified the the "inability "inability to control" control" rubric rubric with with impaired criminal responsiresponsiidentified bility and incompetence. incompetence. The The first first source source is is the the sole sole medical medical authority authority cited cited bility 28 identifies by the the court, court, an article article by by Dr. Paul A. Draper. Draper?S Draper Draper identifies the inby 29 The second ability to to control control impulses impulses as a criminally criminally excusing excusing condition. condition?9 The second ability Supreme Minnesota a 1909 ofMorris, Morris, 1909 Minnesota Supreme Court case case source is is Leavitt Leavitt v. City of source of inebriates. upholding commitment inebriates. This This case, case, repeatedly repeatedly cited cited in the the commitment the upholding 30 held that commitment of Minnesota attorney attorney general's general's Pearson Pearson brief, brief/o commitment of Minnesota "inebriates" is limited limited "to "to persons who who have lost the the power power or or will to to concon"inebriates" ' 31 and are thus "of "of trol their appetite appetite for intoxicating intoxicating liquors or narcotics, narcotics,,,31 unsound mind," mind," "helpless "helpless and deficient," deficient," and suitable for the the guardianship guardianship ofthe 32 of the state. 32 sources from which which the the Pearson Pearson court might have have borrowed borrowed Thus, the sources squarely the "utter "utter lack of power power to control" control" test placed placed control-incapacity control-incapacity squarely context of criminal criminal excuse and parens parens patriae patriae incompetence. incompetence.333 Both in the context control" test was not a ranstrongly that the "utter lack of power power to control" suggest strongly arbitrary line, but one related related quite closely to the invocation invocation of the dom or arbitrary state's police and and parens parens patriae patriae powers. state's set Further, it is clear that the Pearson Pearson court thought thought that the limits it set the Repeatedly, unprincipled were constitutional arbitrary, unprincipled ones. Repeatedly, not limits, constitutional were court emphasized obligation in construing an overbroad statute statute was emphasized that its obligation to give full effect to the legislative intent to the limits of the constitution. 344 This understanding understanding of the "utter lack of power to control" test informed the Minnesota court's court's 1978 1978 decision in Johnson Noot.3355 There, the court Johnson v. Noot. applied the test to reverse the commitment of an individual with antisocial antisocial personality disorder. The court explained that a disorder without the "inpersonality

27 This theme is echoed in the Hendricks dissent. See Kansas v. Hendricks, 117 S. Ct. 2072, 2089 27 This theme is echoed in the Hendricks dissent. See Kaflsas v. Hendricks, 117 S. Ct. 2072, 2089 (1997) J., dissenting) (interpreting (interpreting control-impairment impulse" test "irresistible impulse" control-impairment in terms of the "irresistible (1997) (Breyer, J., for criminal excuse). 28 See Pearson,287 N.W. at 300. 28 See Pearson, 287 N.W. at 300. 29 See Pearson,287 N.W. at 299; Paul A. Draper, Mental Abnormality in Relation to Crime, 2 AM. 29 See Pearson, 287 N.W. at 299; Paul A. Draper, Mental Abnormality in Relation to Crime, 2 AM. J. MED. JURISPRUDENCE, No.3, 1939). (Mar.-Apr., 1939). 162-63 (Mar.-Apr., 3, 161, 161, 162-63 JURISPRUDENCE, No. J. for Minnesota, in Brief Brief for quoted in 1980), quoted (Minn. 1980), 393, 395 395 (Minn. N.W. 393, 117 N.W. of Morris, Morris, 117 v. City City of Leavitt v. 30 Leavitt 30 Minnesota, Pearson, Pearson,287 N.W. 297 (emphasis added). 31 See See Brief Brief for for Minnesota, Minnesota, Pearson, Pearson,at 14 14 (quoting Leavitt, Leavitt, 117 117 N. N.W. 395). 31 W. at 395). 32 /d. Id. at 12-14. 12-14. 32 33 See See Note, Note, Confinement Confinement of ofthe the Sexually Sexually Irresponsible, Irresponsible,32 32 J.J. CRIM. L. & & CRIMINOLOGY. CRIMINOLOGY. 196, 196, 199 199 33 the 'guardi'guardiare the (1941) ("The usual theory of these cases [upholding commitment laws] laws] is that the courts are [upholding of these (1941) .. "). "). irresponsible.... ans' the mentally mentally irresponsible ans' of the 34 See See Minnesota Minnesota ex ex reI. rel. Pearson Pearson v. v. Probate Probate Court, Court, 287 287 N.W. N.W. 297, 297, 302 (Minn. 1939) (holding (holding that 34 to not obnoxious obnoxious to assembly not general assembly the general every enactment of the courts full force force and effect to[ ]] every must "give full courts must constitutional prohibitions"). constitutional 35 323 323 N.W.2d N.W.2d 724, 724,727 (Minn. 1982). 35 727 (Minn.

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ability... ho way impairs his ability ability to control" control" "in no . . . to be responsible responsible for [his actions]." actions]." . In 1992, Phillip Blodgett brought a renewed renewed challenge challenge to the constitutionality of the sex psychopath psychopath act. In a badly split vote, the Minnesota Minnesota Sutionality constitutionality of the law. The "utter lack of preme Court upheld the constitutionality of preme control" test played played a central role in In re Blodgett. The court arpower to control" gued that those who suffer from uncontrollable sexual impulses have a mental disorder whose severity parallels parallels that required for standard standard mental 36 36 control-incapacity to criminal illness commitments. commitments. Further, the court tied control-incapacity 37 excuse, though in a rather imprecise manner. manner.37 fifty-six-year Soon after its Blodgett decision, for the first time in the fifty-six-year history of the law, the Minnesota Supreme Court reversed a sex psychopath 38 (1). Linehan (1).38 commitment in Linehan commitment The reversal rested on the grounds that the control" elestate had failed to prove the Pearson Pearson "utter lack of power to control" ment. The outcome of Linehan (1) is difficult difficult to understand understand except on a theLinehan (1) constitutionally mandated. ory that the Blodgett/Pearson Blodgett/Pearson limitation was constitutionally mandated. the elements of the sex psychopath There was no question that the· psychopath act as literPearson commanded (). Pearson been proved in Linehan Linehan (I). commanded that ally construed construed had been the court enforce the legislative legislative intent to the maximum extent of the constitution. Since Linehan's Linehan's circumstances circumstances certainly fit within the legislative Linehan () language of the sex psychopath act, the Linehan (1) court should have reinlanguage terpreted the act to include him if it could constitutionally constitutionally have done so. terpreted The fact that the court did not do so, but rather reversed reversed his commitment, is and Blodgett to strong evidence evidence that the 1994 court considered considered Pearson Pearson and boundaries of commitment. Justice Page, part constitutional boundaries mark the outer constitutional () dissent. of the Blodgett majority, confirms confirms this reading reading in his Linehan (II) My reading of Blodgett is that the "inability "inability to control" sexual impulses has constitutional constitutional significance and represents a substantive due process threshpreventive detention. That is the basis on which I joined the court's old ~or for ~§eventive ol~ opinion. oplOlon. 36 See In re Blodgett, 510 N.w. 2d 910,913 (Minn. 1994).

See In re Blodgett, 510 N.W. 2d 910, 913 (Minn. 1994). 37 The court stated: The court Is uncontrollable sex drive to be given an enhanced prison Is it better for a person with 9an uncontrollable necessary committed civilly? legislature which must provide the necessary sentence or to be committed ....For the legislature civilly .... sentence answers. Nor are there easy answers for society prison cells or hospital beds, there are no easy answers. which, ultimately, must decide to what extent criminal blame is to be assigned to people who are what they are. 36

37

Id. Id. at 913. 38 The court reversed aa sex sex psychopath re Rickmyer, 38 The court simultaneously simultaneously reversed psychopath commitment commitment in In re Rickrnyer. 519 N.W.2d reversed two sex psychopath psychopath com188 (Minn. 1994). The Minnesota Minnesota Court of Appeals had previously reversed Rodriguez, 506 N.W.2d 660 (Minn. Ct. App. 1993); In re Stilinovich, 479 N.W.2d N.W.2d mitments. See In re re Rodriguez, 731 (Minn. Ct. App. 1992). In all three of these cases, the ground for reversal was an inadequate inadequate showing of dangerousness. 39 See See In In re re Linehan Linehan (II), 557 N.W.2d 171,201 (Minn. 1996). 39 (II), 557 N.W.2d 171,201

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Within Within two months of Linehan Linehan I, the Minnesota Legislature Legislature met in Dangerous Persons special session and unanimously unanimously passed the Sexually Sexually Danferous Act psychopath act.4 The SDP Act Act Act440 (SDP Act) as a supplement to the sex psychopath control-incapacity test: "For purposes of specifically eschews the Pearson Pearson control-incapacity specifically eschews of this provision, it is not necessary to prove that the person has an inability inability to of impulses. ' 42 The four-element four-element proof standard of control the person's sexual impulses.'>42 43 disorder"-the SDP Act is bottomed on the premise that naked "mental disorder"control-incapacity test-is sufficient unqualified by a control-incapacity sufficient to support civil commitment. The Ramsey County Attorney's office office promptly promptly filed a petition seeking seeking Linehan's commitment commitment under the new statute. After a five-week trial, the committed Linehan as a sexually dangerous person. 44 The district court committed court held that Linehan Linehan manifested an antisocial personality disorder and as a result was highly likely to engage in future sexual violence. The court made no finding that Linehan Linehan satisfied satisfied the Pearson Pearson "utter lack of power to control" standard, was incompetent incompetent or lacked criminal responsibility. responsibility. Nor control" standard, "needed" treatdid the court make any finding to the effect that Linehan "needed" ment or that treatment could be provided efficaciously efficaciously to him. (I1) DECISION Ill. THE LINEHAN (II) III. ProcessFramework A. A. Substantive Substantive Due Process Framework

Linehan (II) (II) litigation thus presented The Linehan presented to the Minnesota Minnesota Supreme Court a question of some clarity. The posture of the case focused the question quite specifically whether an antisocial personality personality disorder, unspecifically on whether

40 House of Representatives, State of Minnesota, Special Session of the Seventy-Eighth Legislature, 40 House of Representatives, State of Minnesota, Special Session of the Seventy-Eighth Legislature, Special 7 JOURNAL OF THE HOUSE HOUSE OF REpRESENTATIVES 8821, 8823 8823 (1994); (1994); Senate, State of of Minnesota, Minnesota, Special REPRESENTATIVES 8821, Session ofthe Seventy-Eighth Legislature, Legislature, 5 JOURNAL JOURNAL OF THE SENATE SENATE 1, 8 (1994). Session 41 The sex psychopath Act remained on the books, but was recodified. In addition, the legislature 41 The sex psychopath Act remained on the books, but was recodified. In addition, the legislature control" language. MINN. STAT. ANN. § 253B.02, Pearson "utter codified the Pearson "utter lack of power to control" 253B.02, subd. subd. 18b (West Supp. 1998). 18b 42 MINN. STAT. ANN. § 253B.02, subd. 18c(b) (West Supp. 1998). 42 MINN. STAT. ANN. § 253B.02, subd. 18c(b) (WestSupp. 1998). 43 The SDP SDP Act requires "clear "clear and convincing" proof 43 The Act requires and convincing" proof of four elements: 253B.02, l.The engaged in a course of harmful harmful sexual conduct." conduct." MINN. STAT. ANN. § 253B.02, I .The person "has "has engaged subd. 18c 18c (West Supp. 1998). "Harmful "Harmful sexual sexual conduct" conduct" means "sexual that creates a substan"sexual conduct that emotional harm to another." another." MINN. MINN. STAT. ANN. § 253B.02, subd. subd. tiallikelihood tial likelihood of serious physical or emotional 7a(a) (West Supp. 1998). The Act creates creates a ''rebuttable sexual conduct, vioviopresumption" that criminal sexual "rebuttable presumption" Id. at subd. lative of enumerated sections sections of the law, satisfies the harm harm requirement. Id. subd. 7a(b). dysfunction." 2.The individual "has manifested manifested a sexual, sexual, personality, or other mental disorder or dysfunction." 1998). (West Supp. 1998). MINN. STAT. ANN. § 253B, subd. 18c (WestSupp. MINN. of(1) (2), 3."As a result" (1) and (2), result" of Id. individual "is likely to engage in acts of harmful sexual conduct." conduct." Id. 4. The individual 44 See In re 44 See In re Linehan, Linehan, No. No. P8-94-0382 P8-94-0382 (Ramsey (Ramsey County County District Court, 1995). 1995).

1286 1286


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Kansas v. Hendricks Foreshadowing Foreshadowing the the Future Future of a/Kansas Hendricks

adorned by by the the Pearson/Blodgett Pearson/Blodgett "utter "utter lack lack of of power power to to control" control" rubric, rubric, adorned could constitutionally constitutionally support support aa police police power power commitment. commitment. could Linehan (0) (II) Substantive due process process provides provides the framework framework for the the Linehan Substantive 4s court's analysis. analysis.45 Since civil civil commitment commitment trenches trenches on liberty liberty in in aa massive massive Since court's and way, the state must must demonstrate demonstrate that that it has a compelling compelling interest interest and that that its way, 46 intervention is "narrowly "narrowly tailored" tailored" to to achieving achieving that that interest. interest.46 intervention For For the the most part, part, sex sex offender offender commitment commitment courts courts have have failed failed fully to to engage this rule. In In Blodgett, Blodgett, Young and State State v. Post, Post, the skeletal skeletal reasonreasonengage ing of the courts courts amounted amounted to little little more than than their (reasonable) (reasonable) assertions assertions the states' states' interests interests in in protecting protecting the the public against sexual sexual violence violence that the Since the the sex offender offender commitment commitment schemes schemes aimed only only were compelling. Since sexually dangerous dangerous individuals, individuals, the the courts courts concluded concluded that they were were "narat sexually rowly tailored" tailored" to vindicating vindicating that that interest. This almost almost tautological tautological rearowly however, could could not not explain the role role of "mental "mental disorder" in the soning, however, constitutional calculus, calculus, and, consequently, consequently, could could not not explain explain why the the Suconstitutional

45 challenging sex 45 Litigation Litigation challenging sex offender offender commitment commitment statutes statutes has raised raised four constitutional constitutional theories. exercise The substantive substantive due process process theory asserts that sex offender offender commitments commitments are not a legitimate legitimate exercise The the state's power. Equal protection protection theories theories argue that that it is improper improper to select select mentally mentally disordered disordered sex sex of the non-disordered sex offendoffendoffenders for civil civil commitment when other other mentally disordered disordered criminals, or non-disordered ers, are not not similarly at risk. The The double jeopardy jeopardy and ex post facto arguments arguments assert that sex offender offender commitments reality punishments. punishments. Committing sex offenders offenders after they have served served criminal commitments are in reality sentences constitutes a retroactive violating retroactive increase in punishment and a successive punishment, thus violating Criminal Defense Lawyers and the these provisions. See, e.g., eg., Brief for the National Association of Criminal support of Leroy Hendricks at at Kansas Association of Criminal Criminal Defense Lawyers as Amicus Curiae in support 25,26-27, 95-1649, 95-9075). (1997) (Nos. 95-1649, 25, 26-27, Kansas v. Hendricks, 117 S. Ct. 2072 (1997) Though each of these theories theories brings a slightly different focus, all tend to be bottomed on the conconstates' mental disorder predicate. This is, essentially, the substantive due stitutional adequacy of the states' process question. Thus, the equal protection theory asks whether it is permissible to distinguish between disorder. This those dangerous individuals who do, and those who do not, have the requisite mental disorder. translates directly into the the substantive due process question. Similarly, the ex post facto and double offender commitment statutes has jeopardy analyses establish that the incarceration incarceration imposed by sex offender jeopardy "altemamany of the characteristics the key issue is whether the state has a proper "alternacharacteristics of punishment. But the This, 168-69 (1963). This, tive purpose" U.S. 144, 168-69 Mendoza-Martinez, 372 U.S. the confinement. confinement. Kennedy v. Mendoza-Martinez, purpose" for the "mental health" power can be stretched constitutionally too, is another way of asking whether the state's "mental to fit Hendricks confirms the analysis in Hendricks Court's analysis Supreme Court's The Supreme schemes. The offender commitment schemes. fit the sex offender "[i]f an instates, "[i]f centrality opinion states, Thomas' majority opinion due process question. Justice Thomas' the substantive due centrality of the dividual civil commitment, the State is under no oblifor involuntary civil requirements for otherwise meets the requirements dividual otherwise incarceration," follow a period of incarceration," gation because the detention would follow to release that individual simply because gation to of suggesting that the central question in the ex post post facto analyses is the legitimacy of the double jeopardy and ex "the dissent says that "the Breyer's dissent the civil commitment. Justice Breyer's Similarly, Justice 2086. Similarly, Ct. at at 2086. Hendricks, 117 S. Ct. commitment. Hendricks, discussion. of" the ex post facto discussion. heart of' basic question" is also "at the heart basic substantive due process treatment question" at 2090. Id. Id.at 46 See See In In re re Young, Young, 857 857 P.2d P.2d 989,1020 989, 1020 (Wash. (Wash. 1993) 1993) (Johnson, (Johnson, J., dissenting) (''For ("For the statute statute to to 46 achieve that tailored to achieve narrowly tailored be must be narrowly interest and must further aa compelling state interest constitutional, itit must further be constitutional, chalthe chalscrutiny, the pass strict strict scrutiny, interest.''); ("In order to pass 1995) ("In (Wis. 1995) 122 (Wis. 541 N.W.2d 115, 122 v. Post, Post, 541 interest."); State v. that interest."); to serve serve that and be narrowly narrowly tailored to lenged state interest interest and compelling state further aa compelling must further statute must lenged statute be legislation must be see challenged legislation scrutiny, challenged strict scrutiny, 181 ("Under ("Under strict 557 N.W.2d N.W.2d at 181 (II), 557 In re re Linehan Linehan (II), see also In narrowly interest."). state interest."). compelling state serve a compelling to serve narrowly tailored to


NORTHWESTERN LAW NORTHWESTERN UNIVERSITY UNIVERSITY LA W REVIEW decision 1992 Foucha preme Court in the 1992 F oucha v. Louisiana Louisiana decision had overturned a 47 47 commitment. civil "dangerousness-only" "dangerousness-only" civil commitment. B. The "Principled "PrincipledNarrow Narrow Exception Exception"" Rule. Rule. The Minnesota court's analysis, prefiguring the Hendricks Hendricks reasoning, comes much closer to developing developing a workable framework for analyzing the interest/narrow tailoring compelling interest/narrow tailoring standard. The key insight of the Minarguments, 48 Linehan (II), adopted directly from Linehan's arguments,48 nesota court in Linehan nesota exception to the priis that the civil commitment system must be a narrow exception criminal justice system. That is, the central imperative for civil macy of the criminal justice system commitment is that it must remain secondary to the criminal justice (II) court holds that Foucha, the Linehan Linehan (II) as a tool for social social control. Citing Foucha, [s]ubstantive [s]ubstantive due process forecloses the substitution substitution of preventive preventive detention schemes for the criminal criminal justice system, and the judiciary has a constitucommitment becomes the norm and tional duty to intervene intervene before civil commitment prosecution the exception. criminal prosecution

Linehan's arguments, the Court states that the methodAgain tracking Linehan's preventive detention ology to insure that preventive detention does not breach its proper bounds "demand sound reasons for departing is to "demand departing from the criminal justice system 49 Hendricks In short, foreshadowing public protection." protection.'>49 foreshadowing the Hendricks in the name of public "principled nardecision six months later, the Minnesota Minnesota court adopted the "principled decision row exception" exception" test for police power commitments. These commitments pass constitutional constitutional muster only to the extent that they are exceptions to the criminal justice system that are not only rare, but also justified or princicriminal reasons." "sound reasons." pled-supported pled-supported by "sound Linehan argued that the Blodgett decision fit the "principled limited commitments to individuals exhibiting exception" exception" rubric because it limited commitments Properly applied, an "utter lack of power to control" control" their sexual violence. Properly satisfying the numerical numerical this test ought to be met only very rarely, thus satisfying test limitation. Further, if control-incapacity test if it were properly applied, the control-incapacity 47 II develop at greater length in in Eric S.Janus, 47 develop this this theme theme at greater length Eric S. Janus, Preventing Preventing Sexual Violence: Setting PrinPrinCommitments, 72 IND. Boundarieson Sex Offender Commitments, cipled Constitutional IND. L.J. L.J. 157 (1996). (1996). ConstitutionalBoundaries 48 See Brief for Appellant at 13, In re Linehan (II), 557 N.W.2d 171 (Minn. 1996) (No. CI-9548 See Brief for Appellant at 13, In re Linehan (II), 557 N.W.2d 171 (Minn. 1996) (No. CI-952022); see also 79-S1 (describing principle of criminal interstitiality); Janus, susupra note 2, at 79-81 also Janus, supra application of this principle in Minnesota cases). 208-14 (tracing application pra note 47, at 20S-14 cases). 49 In re Linehan Linehan (11), 557 N.W.2d N.W.2d at Hendricks Court acknowledges acknowledges this principle as well, 49 In re (II), 557 at 183. IS3. The The Hendricks well, disorder is to provide provide a constitutionally constitutionally adequate adequate suggesting that at least part of the role of mental disorder boundary around the use of civil confinement confinement to accomplish social control control goals:

dangerousness, admitted lack of volitional volitional control, coupled with a prediction of future dangerousness, This admitted adequately Hendricks from other dangerous dangerous persons who are perhaps perhaps more properly properly adequately distinguishes Hendricks dealt with exclusively through criminal criminal proceedings. proceedings. Hendricks' Hendricks' diagnosis as a pedophile, pedophile, which which abnormality" under the Act, thus plainly qualifies as a "mental "mental abnormality" plainly suffices for due process purposes. S.Ct. at20S1. at 2081. Hendricks, Hendricks, 117 117 S.


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Foreshadowingthe the Future Futureo/Kansas of Kansas v. Hendricks Foreshadowing

would identify individuals whose mental impairments excuse their criminal of the criminal actions, thus placing their violent behavior beyond the reach of system, 50 and providing the "sound reason" for the state's use of the justice system,50 civil commitment system to vindicate its social control interests. Elseinterstitiality.5 ' On this where, I have called this the principle of criminal interstitiality.51 legitimacy by being limited principle, police power commitments achieve legitimacy law.. to the interstices of the criminal law attractive, 2 it rejected his Though the court found Linehan's Linehan's proposal attractive,52 attempt to draw a constitutional constitutional line between his facts and the Blodgett commitments are not limited to persons whose mental case. Police power commitments stated impairments excuse them from criminal responsibility. The court stated "[W]e believe that some overlap "[W]e overlap between between the two systems is justified to adequately serve the interests of public protection and treatment.,,53 treatment."53 adequately

C. The Minnesota Minnesota Court Court~' Unsuccessful Unsuccessful Search Searchfor LimitingPrinciple. Principle. C. for a Limiting "principle of criminal interstitiality," interstitiality," the court court In rejecting Linehan's "principle necessarily took on the task of articulating articulating a principled limit of its own. necessarily The burden on the court was to demonstrate demonstrate a principle principle that is robust enough enough to perform two functions: First, it must produce a system of civil preventive detention that is exceptional, exceptional, rather than normal. Second, it preventive must incorporate incorporate "sound reasons for departing from the criminal criminal justice Linehan (II) (Y) system in the name of public protection." protection." On these tests, the Linehan court fails. The court offers up five candidates. None is a principle that limits preventive preventive detention to an exceptional exceptional status, and none comprises comprises reasons showing the necessity necessity of departing departing from the criminal justice system. In the end, the court finds itself declaring declaring broadly that sexual violence is "explained" by disorder. Like assertion "explained" by mental mental disorder. Like the the other other candidates, candidates, this assertion narrow commitment. Worse, it gives gives official official imprimatur imprimatur does not limit or narrow to an interpretation interpretation that may harm harm societal societal efforts to curb sexual sexual violence. controlled violence is "most dangerous"-The dangerous"--The court 1. Volitionally controlled court begins by offering an afortiori offenders who retain a fortiori argument. Sex offenders retain enough control to plan their violence violence are even more dangerous dangerous than those who can-

See Janus, supranote 47, at 208-14. See Janus, supra nore 47, at 208-14. See id.; see also Janus, supra note 2, at 75. See id.: see also Janus, supra nore 2, at 75. The court suggested that this "substantive due process theory might avoid difficult constitutional 52 The court suggested that this "substantive due process theory might avoid difficult constitutional issues," issues," because because it would eliminate eliminate the the need need for the judiciary judiciary to determine determine "whether "whether a particular particular mental disorder, dysfunction, illness is acceptable acceptable under under substantive substantive due due process." process." In In re Linehan Linehan (II), 557 557 dysfunction, or illness N.W.2d at 183. 183. N.W.2d at 53 Id. I discuss the issue of Toward aa Conceptual 53 Id. I discuss the issue of overlap overlap in in Eric Eric S. S. Janus, Janus, Toward Conceptual Frameworkfor Framework for AssessAssessing Police Police Power Power Commitment Legislation: Legislation: A Critique Critique of of Schopp's and Winick's Explications Explications ofLegal Legal Mental 9 (1997). Mental Illness, Illness, 76 NEB. NEB. L. REV. REV. 1, 1,9 (1997). 50 51 51 52 50


NORTHWESTERN LAW NORTHWESTERN UNIVERSITY UNIVERSITY LA W REVIEW

not.5544 Since commitment of the latter is constitutional, constitutional, it follows that comis as well. of the former mitment The "planned-therefore-enhanced "planned-therefore-enhanced danger" argument directly directly contra55 Further, it dicts the arguments arguments previously previously made by this and other courts. COurtS.55 fails to provide provide a principled principled limitation on commitment. It does not provide "sound reasons" any "sound reasons" for excusing the state from the confines of criminal "greater danger" described by the court court is precisely precisely the procedure. The "greater kind of danger that is of central central concern concern to the criminal criminal justice system, and and is the most severely punished because it is thought to be the most blameworthy. The principle provides no guidance guidance as to the role of mental disorcharacteristic of "Planned" der in justifying commitments. commitments. "Planned" violence is a characteristic of a mental disorder. and without those both with available social The court's assertion is contradicted contradicted by the available social science, which shows that sex offenders offenders with less planning planning ("high impulsivity") impulsivity") are offenses more likely to recidivate56 and to fail at treatment than those whose offenses planned and deliberate. 577 Finally, the available available social scihave been more planned "planned-therefore-dangerous" principle, far from ence indicates the court's "planned-therefore-dangerous" from

54 See In re Linehan (II), 557 557 N.W.2d at 182 (quoting In re Linehan Linehan (II), 544 N.W.2d 308, 318 318 54 See In re Linehan (II), N.W.2d at 182 (quoting In re 1996)): (Minn. Ct. App. 1996»: In fact, the SDP Act is an attempt to protect protect the public public by treating treating sexual predators even more dangerous than those reached psychopath] Act-the mentally disordered disordered who rereached by the [sex psychopath] tain enough control control to "plan, "plan, wait, and delay the indulgence of their maladies maladies until presented presented with probability of success." success." a higher probability 55 See Minnesota ex rel. v. Probate Probate Court, Court, 309 U.S. 270,275 270, 275 (1940) (1940) (rejecting equal pro55 See Minnesota ~ reI. Pearson Pearson v. 309 U.S. procontrol" test, on ground that the state tection challenge to the "utter ''utter lack of power to control" state "may confine its restrictions to those classes of cases where the need is deemed to be clearest"). The Minnesota Supreme Blodgett, 510 N.W.2d N.W.2d 910, 913, 917 (Minn. (Minn. 1994), Court quoted this passage verbatim in Blodgett, In re re Blodgett, Blodgett, In "utter lack of power power to control" control" test as posing "a danger that is unlike referring to those identified by the ''utter "lack of control" control" of those with mental disorders The Wisconsin Supreme Supreme Court points to the "lack any other." other." The 1995) v. Post, Post, 541 N.W.2d 115, 115, 130, 131 (Wis. 1995) as the source source of their "distinctive" "distinctive" dangerousness. State v. identifying "lack (characterizing class as "distinctively "distinctively dangerous" dangerous" and identifYing "lack of control over their violent be(characterizing [predators] so dangerous..."). havior" as "exactly "exactly what makes [predators] dangerous ..."). havior" 56 See Mamie E. Rice & Grant T. Harris, Harris, Cross-validation of Actuarial 56 See Mamie E. Rice & Grant T. Cross-validation of Actuarial Predictions, Predictions, 12 RES. REs. REP., REp., No.2, 1995) (identifying "lack self-control" "lack of self-control" Penetanguishene, Ontario 1995) No. 2, at 18 (Mental Health Centre, Penetanguishene, as a risk factor for rapists). 57 See Janice Janice K. Marques et et aI., al., Findings and Recommendations Recommendations from California'sExperimental 57 See K. Marques Findings and from California's Experimental 1993) Nagayama Hall et al. 197, 209 (Gordon in SEXUAL AGGRESSION, Treatment Program, in AGGRESSION, 197,209 (Gordon C. Nagayama al. eds., 1993) Treatment Program, management" may move impulsive and have problems (commenting that rapists who "are impUlsive problems with affect management" move (commenting Rapists: Reinterpretation very Treatment of Rapists: Reinterpretation of of very quickly quickly to "full-blown ''full-blown relapse"); relapse"); William D. Pithers, Pithers, Treatment Data and Exploratory Exploratory Constructs Constructs to Enhance Enhance Therapeutic Therapeutic Efficacy, in SEXUAL Early Outcome Data AGGRESSION, supra, supra, at 167, 176-77 (reporting on study by Prentky finding that high impulsivity rapists AGGRESSION, convicted of new were "approximately "approximately three times more likely than low impulsivity impulsivity rapists to have been convicted were of Lifesex offenses" offenses" during a 25 year follow-up period); Robert A. Prentky et aI., al., Predictive Predictive Validity of (1995) ("It ("It is reasonable 106, 124-25 (1995) for Rapists, CRIM. JUST. & reasonable to specustyle Impulsivity & BEHAV. 106,124-25 Rapists, 22 CRIM. Impulsivityfor of late that the high impulsive impulsive subgroup subgroup among treated rapist samples samples constitutes constitutes a large proportion of treatment failures in the follow-up follow-up studies.").


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Foreshadowing Future ofKansas v. Hendricks Hendricks Foreshadowingthe Future

identifying a limited subset of sex offenders, offenders, in fact describes describes the majority 8 of sex offenders. offenders.558

limiting principle-A disorder" is a limiting 2. "Mental "Mental disorder" principle-A second theme advanced by the court is that the mere presence presence of a mental or personality disorder justifies preventive preventive detention. However, this category category casts too wide meaningful limit on the state's ability to use preconsidered a meaningful a net to be considered ventive detention. Antisocial personality personality disorder, for example, is a diagnosis that is applicable applicable to more than seventy seventy percent of all prisoners.5599 At least one study found that ninety percent of male felons have a psychiatric psychiatric disorder,60 and another disorder,60 another found that twenty-eight twenty-eight percent of the adult populaof tion of the United States are suffering from a mental disorder (meet all of 61 time.61 any given for aa mental the official diagnostic diagnostic criteria criteria for mental disorder) disorder) at at any given time. One study reports that sixty-nine percent of all convicted sex offenders offenders have confinement to those preventive civil confmement a "personality "Limiting" preventive "personality disorder.,,62 disorder." 62 "Limiting" dangerous persons persons diagnosed with a mental disorder would allow the transformation of civil commitment into the norm rather than the exception. exception. "nexus" to treatment, 3. "Mental "Mental disorder" disorder" provides a "nexus" treatment, a "medical principle advanced "for commitment.-The third principle justification advanced by the court is justification "for that the presence of mental disorder provides a "medical justification" justification" for civil commitment by establishing a nexus between the conditions for con"[T]he state's interest in finement and the state's purpose purpose for confinement: confinement: "[T]he

et al., A Three-TieredApproach to the Rehabilitation of lncarceratedSex Offend58 W.L. Marshall Marshall et 58 W.L. aI., A Three-Tiered Approach to the Rehabilitation ofIncarcerated Sex Offend& L. 441, 441, 442 (1993) (1993) ("Child molesters and rapists typically typically carefully carefully plan their their ers, 11 BEHAV. SCI. & probability that they can offenses can enact their desired desired behavior while minimizing the offenses to maximize the probability "fantasize" "majority" of sex offenders "fantasize" punishment." The "majority" possibility of detection, apprehension and punishment" about their plans, and "many plans to offend."). "many make explicit plans about 59 See Samuel B. Guze Guze et et al., PsychiatricDisorders Criminality,227 JAMA 641-42 (1974); 59 See Samuel B. aI., Psychiatric Disorders and and Criminality, (1974); Clinicians 103, Stephen D. Hart et aI., Psychopathy Checklist: An Overview for for Researchers Researchers and Clinicians Checklist: An al., The The Psychopathy 1991) (75McReynolds eds., 1991) IN PSYCHOLOGICAL ASSESSMENT 105, 105, in 8 ADVANCES ADVANCES IN AsSESSMENT (J. Rosen & & P. McReynolds REP. 843, Waters ofPsychopathy, Fresh Look at the Muddy Waters A Fresh Psychopathy, 63 PSYCHOL. REp. 843, 846 80%); Rosalie Wells, A Diagnosing the DSM-III Antisocial Personality Disorder, Disorder, 14 PROF. (1988) (80%); James S. Wulach, Diagnosing Antisocial Personality (1988) (80%); & PRAC. 330, 331 (1983) PSYCHOL.: PSYCHOL.: RES. & (1983) (75-80%) (75-80%) 60 See R. Kunjukrishnan & & J.M.W. J.M.W. Bradford, Bradford, Interface 60 See R. Kunjukrishnan Interface Between Between the the Criminal Criminal Justice Justice System and the 24, 25 (citing SAMUEL PSYCHIATRIC J. U. OnAWA, SAMUEL B. OTTAWA, Mar. 1985, 1985, at 24,25 Health System in Canada, Canada,PSYCHIATRIC Mental Health (1976) (diagnosed 90% DISORDERS (1976) CRIMINALITY AND PSYCHIATRIC GUZE, GUZE, CRIMINALITY PSYCHIATRIC DISORDERS 90% of male male felons as having a "sociopathic"). described as "sociopathic"). psychiatric disorder, 70% of whom were descnoed psychiatric 61 See Darrel A. Regier Regier et al., The The de de Facto US. Mental Mental and andAddictive DisordersService System, 50 61 See Darrel A. et aI., Facto U.S. Addictive Disorders ARCHIVES GEN. PSYCHIATRY PSYCHIATRY 85 (1993) criteria for (1993) (28% of the adult US population meets diagnostic criteria mental disorder). 62 Joseph J. Romero Williams, Recidivism Recidivism Among Among Convicted Convicted Sex Offenders: Offenders: A 62 Joseph J. Romero & & Linda Linda Meyer Meyer Williams, A 101985, at 58, 58; see also Followup Study, FED. FED. PROBATION, PROBATION, Mar. 1985, 58,58; also Leonore MJ. Simon, The Myth Year Followup CONFINEMENT CRIM. & CIV. CONFINEMENT ofSex Offender Specialization: Specialization: An Empirical Empirical Analysis, 23 NEW NEW ENG. J. ON CRiM. personality disorder diag18% of incarcerated 387,397 (1997) (nearly 18% 387, 397 (1997) incarcerated child molesters had an antisocial personality ofpedophilia, nosis, 14% a diagnosis of pedophilia, and 28% a diagnosis of alcohol abuse). abuse).


NOR THWESTERN UNIVERSITY UNIVERSITY LA W REVIEW NORTHWESTERN LAW treating treating sexual predators is served by confining the scope of the SDP Act to

63 those with mental disorders." disorders.,,63 The court's reasoning entails two steps. First, it is mental mental disorders at which treatment is directed. Second, the provision of "treatment" "treatment" justifies civil commitment. Thus, the mental disorder requirement requirement helps produce produce a because it insures the requisite connection "narrowly tailored" intervention intervention insures connection to a legitimate legitimate purpose of commitment.6 cornmitment. 644 misapprehends the nature The first step of the court's court's reasoning reasoning misapprehends nature of sex offender offender treatment, resting on the thoroughly discredited medical model for sexual violence. Under this model, violence violence is caused by disorders, which, 65 Treatment, in this if sufficiently sufficiently severe, severe, necessitate hospitalization.65 offenders' model, aims to "cure" "cure" disorders, producing changes in offenders' producing "enduring "enduring chanfes personalities, personalities, thereby ameliorating ameliorating their danger danger to others." others.,,6 This assumption, according "dramatically according to William D. Pithers, is "dramatically 68 The fact that a 67 Sexual violence is not caused mistaken.,,67 caused by sickness. siclmess.68 mistaken., person's person's violence is associated with a mental disorder appears at best irrelevant, and at worst negatively related, to the appropriateness appropriateness of treatment treatment for 69 Although many sex offenders offenders may be diagnosable with a the individual. 69 In re Linehan (II), (II), 557 2d 171, 187 (Minn. (Minn. 1996). In re Linehan 557 N.W. N.W. 2d 171, 187 1996). See, e.g., Jackson v. Indiana, 406 715, 738 (1972) ("[D]ue ("[D]ue process requires See, e.g., Jackson v. Indiana, 406 U.S. U.S. 715, 738 (1972) requires that the nature reasonable relation to the purpose for which the individual individual is and duration duration of commitment bear some reasonable committed."); State v. Post, N.W.2d 115, 115, l30 treatment needs of sexually Post, 541 N.W.2d 130 (Wis. 1995) ("[U]nique treatment sexually violent persons persons justify justifY distinct legislative approaches."). approaches."). 65 See William D. Pithers, Relapse Prevention with Sexual Aggressors: A A Method 65 See William D. Pithers, Relapse Prevention with Sexual Aggressors: Method for for Maintaining Maintaining HANDBOOK OF SEXUAL SEXUAL ASSAULT: Therapeutic Gain Gain and and Enhancing EnhancingExternal Supervision, in HANDBOOK Therapeutic External Supervision, ASSAULT: ISSUES, ISSUES, TREATMENT OF THE OFFENDER THEORIES & & TREATMENT OFFENDER 343, 343, 345 (William L. Marshall et al. eds., 1990) [hereinaf(describing the underlying medical model model as a failure, outmoded and based on false aster HANDBOOK] (describing sumptions). 66 Id.. 66 Id 67 Id. Some sex offender treatment is aimed at changing sexual arousal patterns through physical 67 Id. Some sex offender treatment is aimed at changing sexual arousal patterns through physical researchers are not optimistic (chemical) intervention. Most of the most influential researchers (chemical) optimistic about about such intervenintervenBarbaree, Outcome of Comprehensive William L. Marshall Marshall & & Howard E. Barbaree, Comprehensive CognitiveCognitivetions. See William HANDBOOK, supra supra Behavioral Marshall & Programs [hereinafter [hereinafter Marshall & Barbaree, Outcome], in HANDBOOK, Behavioral Treatment Treatment Programs Minnesota treatment program. note 65, at 363. Such chemical chemical treatment treatment is not a part of the Minnesota 68 Marshall et al. al. state: 68 Marshall et state: Sexual Sexual offending is not a "sickness." "sickness." We believe that a disease model, which guides guides far too many treatment outmoded and based treatment programs, is outmoded based on false assumptions. It is our view that sexual offenders are not suffering from any disease disease and their behavior is not out of their control, control, as such a offenders medical medical model would imply. In fact, it is clear clear from from an examination of the behavior behavior of these men that their offending is controlled. very well controlled. Directions,in Handbook, supranote 65, at 389, William L. Marshall et al., PresentStatus Status and Future aI., Present Future Directions, Handbook, supra Care, 23 J. OFFENDER 391; cf. cf. Eli Coleman al., The Treatment Offenders: Standards Standardsof Care, Coleman et aI., Treatment of Adult Adult Sex Offenders: .... [S]ex crimes REHABILITATION (1995) (consensus that "paraphilias are psychosexual disorders .... REHABILITATION 5, 5, 6 (1995) biomedical/psychiatric/psychological illnesses for which people must manifestations of biomedicaVpsychiatric!psychological can also be the manifestations be treated, rather than simply simply punished"). 69 Marshall and Barbaree report that aa number number of programs specifically ex69 Marshall and Barbaree report that of sex sex offender offender treatment treatment programs specifically exOutcome, supra & Barbaree, Barbaree, Outcome, damaged. See Marshall Marshall & supra note clude individuals who are psychotic or brain damaged. 63 6 64

63


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disorder," the purpose of treatment is not to "cure" the disorder. "mental disorder," "Treatment is seen as training or education rather than therapy ..... . . .,,70 Treatment is aimed at changing changing a particular set of behaviors, skills71 and atTreatment titudes,72 through education education and information,73 information,73 rather than at curing a partitudes,72 "underlying" mental disorder.7744 ticular "underlying" supranote 65; see also also A.L. Brody & & R. Green, Washington Washington State's Unscientific Ap67 in HANDBOOK, supra State's Unscientific proach to the the Problem Problem ofRepeat Sex Offenders, 22 BULL. AM. ACAD. PSYCHIATRY PSYCHIATRY L. 343, 356 (1994) (1994) proach "selects poor candidates (criticizing the Washington state sex offender commitment law because it "selects candidates for al., Predictive PredictiveValidity Validity ofLifestyle Impulsivity Impulsivityfor Rapists, 22 CRIM. treatment"); Raymond A. Knight et aI., for Rapists, CRIM. JUST. & & BEHAv. BEHAV. 106, 106, 128 128 (1995) (1995) (stating that "[i]t "[i]t is reasonable reasonable to speculate that the high impulsive impulsive treatment failures in the followsubgroup among treated rapist samples constitutes constitutes a large proportion of treatment up studies"); & Barbaree, Outcomes, supra, supra, note 67, in in HANDBOOK, supra supra note 65, at 372, studies"); Marshall & Barbaree, Outcomes, 375, 376; Saleem A. Shah, Recent Research Research on Crime Crime and and Mental MentalDisorder: Implicationsfor for Pro375,376; Disorder: Some Implications Programs and Policies Policies [hereinafter [hereinafter Shah, Recent Research], Research], in in MENTAL grams MENTAL DISORDER AND CRIME (Hodgins, ed. 1993) 1993) 303, 303, 311 (citing "poor, even negative results" from attempts to treat "psychopaths"); T.A. Shaw et al., Treatment Completion Completion and and Predicted Outcome Among Incarcerated aI., Examination Examination of Treatment Predicted Outcome Incarcerated Sex Offenders, 23 BULL. AM. ACAD. PSYCHIATRY L. L. 35 (1995) (1995) (antisocial personality disorder not predicOffenders, outcome); Leonore M. J. Simon, Criminal Offender Offender Treatment Treatment Work? 19 (un(untreatment outcome); Simon, Does Criminal tive of treatment published published manuscript, on file with author) (citing, but criticizing, studies that show that antisocial antisocial personality "negative predictor psychotherapy outcome"). personality disorder is a "negative predictor of psychotherapy 70 William L. Marshall et al., Present Status and FutureDirections, in HANDBOOK, supra note 65, 70 William L. Marshall et aI., Present Status and Future Directions, in HANDBOOK, supra 65, at 389; see also, Lana CulturalFactors Factorsin Sexual Assault, in HANDBOOK, HANDBOOK, Lana E. Stermac Stermac et al., aI., Social and Cultural supra note 65, supra 65, at 143, 143, 155-56 (emphasizing (emphasizing the need need to see sexual sexual violence not in terms of sexual deviance cultural etiologies. "Treatment "Treatment interance or psychopathology, but rather in the context of its social and cultural ventions ventions must consider consider the context of sexual sexual violence as a socially constructed constructed and socially legitimized phenomenon."). phenomenon."). 71 See Richard M. McFall, The Enhancement ofSocial Skills, in HANDBOOK, supranote 65, at 311, 71 See Richard M. McFall, The Enhancement ofSocial Skills, in HANDBOOK, supra note 65, at 311, 317, characteristics asas317, 326 ("deficits in decoding skills" for social information related to "many "many of the characteristics sociated with with sexual sexual aggression;" aggression;" noting the "widespread "widespread belief that social-skills training is an an effective effective sociated belief that social-skills training treatment Cognitive DistorModification of of Cognitive Distortreatment for sex offenders"); offenders"); William William D. Murphy, Assessment and Modification tions in Sex Offenders, Offenders, in HANDBOOK, HANDBOOK, supra supra note 65, at 332 (referring (referring to "correction "correction of of thinking thinking errors" errors" as a "major aspect treatment".); see also Pithers, supra supra note 65, at 355 355 (noting that sex sex offender offender aspect of treatment".); treatment relationships, anger management, treatment can target interpersonal interpersonal relationships, management, problem problem solving, stress stress tolerance, tolerance, sexual knowledge, knowledge, interpersonal interpersonal empty, or basic basic survival survival skills). 72 See See William IntegratedTheory Theory of of Sexual 72 William L. L. Marshall Marshall & & Howard Howard E. E. Barbaree, Barbaree, An An Integrated of the the Etiology Etiology of Sexual Offending, in HANDBOOK, 264 (particular societal attitudes, passed on to child HANDBOOK, supra supra note 65, at 257, 257,264 societal attitudes, child by by parents, "may facilitate sexual offending"); offending"); William and Modification Cogparents, "may William D. Murphy, Murphy, Assessment and Modification of of Cognitive Distortions Distortions in Sex Offenders, in HANDBOOK, HANDBOOK, supra note 65, at 331, 331, 332 332 (a "feminist "feminist perspective" perspective" "have etiological significance on rape identifies identifies attitudes attitudes supportive supportive of rape, rape, implies implies that these beliefs beliefs "have etiological significance and the causative causative factors in sexual sexual aggression"). and may may be one of the 73 See Murphy, supra, note 72, at 336 ("Therapy" "corrective information 73 See Murphy, supra, note 72, at 336 ("Therapy" consists consists of of "corrective information and and educaeducadistortions." Approach used is tion" and and "exercises "exercises to assist patients patients in challenging challenging and exploring their distortions." is "Socratic."). "Socratic."). 74 Marshall & Barbaree, Outcome, supra note 67, in HANDBOOK, supra note 65, at 370, 373 (cogni74 Marshall & Barbaree, Outcome, supra note 67, in HANDBOOK, supra note 65, at 370, (cognitive-behavioral not presuppose presuppose the the existence existence of a "disorder;" "disorder;" individuals individuals with certain certain tive-behavioral programming programming does not disorders be "particularly "particularly difficult difficult to to treat"); see also also Robert Robert A. Prentky et al., aI., Predictive Predictive Validity disorders would would be of Lifestyle Lifestyle Impulsivityfor Impulsivity for Rapists, Rapists, 22 CRIM. CRIM. JUST. JUST. & & BEHAV. BEHAv. 106, 106, 128 128 (1995) (1995) (some (some forms of of "mental disorder" are indicators that poor candidate candidate for treatment). that the individual individual will be a poor Some treatment treatment in in some some programs programs is is addressed addressed to changing changing deviant deviant sexual sexual preferences. preferences. See Marshall Outcome, supra shall & & Barbaree, Barbaree, Outcome, supra note note 67, 67, at at 364. 364. However, However, "as "as a group" group" rapists rapists and and child child molesters molesters do do not deviance is not exhibit exhibit such such deviance. deviance. It It may may make make sense, sense, where where such such deviance is present, present, to to speak speak of of treatments treatments


NORTHWESTERN UNIVERSITY UNIVERSITY LAW REVIEW NORTHWESTERN

Moving to the court's second step---that the provision of treatment justifies civil commitment-it is important to distinguish between parens parens patriaecommitment and police power commitment. In a beneficent parens patriae patriae context, it is the incompetent incompetent individual's inability to make selfselfpatriae 75 Parenspatriae regarding decisions that justifies state intervention. 75 Parens patriae commitments are unjustified if they result in no net benefit to the individual, so effective treatment may be a prerequisite for parens effective parens patriae patriae commitments. In addition, the existence of effective effective treatment may be a sufficient condition for parens parens patriae patriae commitment, since the state has the right to act in the "best interests" interests" of the individual. Thus, the existence of beneficial treatment may be both a necessary sufficient condition for parens necessary and a sufficient parens patriae patriae commitment. (II) court, like the Hendricks However the Linehan Hendricks Court, claims no However Linehan (II) commitment role for the parens parens patriae patriae power of the state in justifying civil commitment of competent sex offenders. According to the Minnesota court, the purpose of the treatment is to advance the police power interests of the state: "Treating sexual predators for the disorders that explain their dangerousness dangerousness serves serves and falls within the state's interest in protecting the public from sex76 ual assault," assault," the court wrote.76 In this police power context, the justificatory role of treatment treatment is problematic. Some argue, broadly, that the provision of treatment sufficient treatment is sufficient to constitutionalize constitutionalize preventive confinement. Under this theory, to justify the civil commitment of a "dan.ferous" "danerous" individual, the state need show only that it will provide constitutional role provide treatment. 7 Others claim a weaker constitutional for treatment in police power commitments. commitments. The state has an obligation obligation to provide treatment to those it confines, but the fundamental justification for confinement is calculated the confinement calculated without regard to treatment. If civil commitavailable treatment ment is used to protect the public, available treatment must be provided. But the provision treatment does insulate the state from a claim of treatment not of provision of 78 unconstitutionality. unconstitutionality.78 Linehan (II) (II) court's claim The Linehan claim is ambiguous, and the court court never clarifies whether it claims claims the broad or the weak role for treatment. Neither Neither theaimed at the deviance, deviance, which which may be be labeled a disorder. But, as Marshall Marshall and Barbaree Barbaree note, there there are no data to support treatment directed support the notion notion that that treatment directed at deviant sexual preferences preferences is necessary necessary or efficacious. See id. id. at 365. 75 See generally ALLEN DAN. W. W. BROCK, FOR OTHERS: 7S See generally ALLEN E. E. BUCHANAN BUCHANAN & & DAN. BROCK, DECIDING DECIDING FOR OTHERS: THE ETHICS ETHICS OF OF SURROGATE DECISION MAKING and the Structure of SURROGATE MAKING 329 329 (1989); (1989); Robert F. Schopp, Schopp, Sexual Predators Predators and Structure 0/ TherapeuticJurisprudence, the Mental Health Health System: System: Expanding Expanding the Normative Normative Focus Focus of o/Therapeutic Jurisprudence, 1 PSYCHOL. PSYCHOL. PUB. POL'y POL'Y&& L. 161, 173 (1995). L. 161, (1995). 76 In re Linehan (II), 557 557 N.W.2d 181. 76 In re Linehan (II), N.W.2d at 181. 77 See, e.g., John Kip Comwell, Protectionand Treatment: The PermissibleCivil Detention of Sex77 See, e.g., John Kip Cornwell, Protection and Treatment: The Permissible Detention o/Sexual Predators, 1293, 1329 Predators, 53 WASH. WASH. & & LEE LEE L. REv. REv. 1293, 1329 (arguing (arguing that that provision provision of of treatment treatment provides provides aa "le"legitimate Winick, Ambiguities in the Legal Meaning Meaning and Signicance Significance gitimate basis for commitment"); commitment"); Bruce Bruce J. Winick, of Mental Illness, 33 PSYCHOL. PUB. o/Mental PUB. POL'Y POL'y & & L. 534, 534, 585 585 (1995) (1995) (arguing (arguing that "therapeutic "therapeutic basis basis for... for ... hospitalization commitment"). hospitalization might might justify justify ... ... involuntary involuntary commitment"). 78 See Janus, supranote 53, at 12. 78 See Janus, supra note 53, at 12.


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ory provides a principled limitation for police power commitments. The 79 weak version imposes only the obligation to "program" for treatment.79 suggestion that effecThe Minnesota Minnesota court has consistently rejected any suggestion 80 Thus, the weak vertiveness of treatment is a condition for commitment.80 sion of the the principle prohibits the commitment commitment of none except those for "program" available treatment. whom the state is unwilling to "program" treatment-treatment as sufficient condition for The broad role for treatment-treatment commitment-provides commitment-provides no meaningful limits either. Treatment is com8t but monly provided in prison settings, not only for sexual misconduct, misconduct,81 offender treatment treatment also for a broad range of criminal criminal behaviors. 82 Most sex offender facilities,83 and much programs are in prisons rather than in mental health facilities,83 techniques "more often seen in "treatment" for sex offenders includes techni~ues "treatment" settings." 44 The provision of treatcriminal justice than in psychotherapy settings." ment to correct antisocial behavior is a defining feature 86 of modem penol85 commitment.86 civil commitment. of civil feature of not a distinguishing feature ogy, ogy,8S "sound reaFurther, neither the strong nor the weak principle offers a "sound departure from the confining rules of criminal proceson" for the state's departure dure. As indicated, treatment may be, and most often is, provided provided in a 79 "So long as civil commitment is programmed to provide treatment and periodic review, due proc79 "So long as civil commitment is programmed to provide treatment and periodic review, due provided." In re Blodgett, 510 ess is provided." 510 N.W.2d at 917. so See id. at 922; see also Kansas v. Hendricks, 117 S. Ct. 2072,2081 (1997). 80 See id. at 922; see also Kansas v. Hendricks, 117 S. Ct. 2072, 2081 (1997). 81 See ALASKA DEPARTMENT OF CORRECTIONS OFFENDER PROGRAMS, SEX OFFENDER 81 See ALAsKA DEPARTMENT OF CORRECfIONS OFFENDER PROGRAMS, SEX OFFENDER (1996) [hereinafter [hereinafter STUDY, EXECUTIVE SUMMARY RECIDIVISM STUDY, TREATMENT PROGRAM: PROGRAM: INITIAL REClDlVlSM SUMMARY (1996) "relapse prevention" ALASKA REpORT] REPORT] (describing successful ''relapse ALASKA prevention" sex offender treatment offered offered in Alaska Treatment, prisons); & Terry prisons); Arthur Gordon Gordon & Teny Nicholaichuk, Nicholaichuk, Applying the Risk Principle Principle to Sex Offender Treatment, RES. 36 (1996) (1996) ("Many 8 FORUM ON CORRECTIONS CORRECfIONS REs. ("Many correctional correctional jurisdictions include include treatment treatment as a component of a comprehensive risk management management plan for sex offenders."); offenders."); W.L. Marshall, Marshall, A Revised component Female, in SEXUAL SEXUAL AGGRESSION, AGGRESSION, supra Approach to Treatment Treatment of Men Who Sexually Assault Adult Female, supra Canadian Penitentiary Services system); note 57, 57, at 143 (describing (describing three-tier treatment program in the Canadian Simon, supra note note 62, 62, at 403 (questioning (questioning the the wisdom wisdom of separate separate treatment programs programs for sex offenders; offenders; Simon, supra "enhancing current treatment suggesting suggesting that the public public would would be better served by "enhancing treatment programs programs for all a1l offenders"). fenders"). 82 See D.A. Andrews et al., Does Correctional Treatment Work? A Clinically Relevant and Psy82 See D.A. Andrews et at., Does Correctional Treatment Work? A Clinically Relevant and chologically Informed Meta-Analysis, Meta-Analysis, 38 CRIMINOLOGY CRIMINOLOGY 369 (1990); (1990); William William D. Pithers, Pithers, Treatment of of Exploratory Constructs Rapists: Rapists: Reinterpretation Reinterpretation of of Early Outcome Data Data and Exploratory Constructs to Enhance Enhance Therapeutic Therapeutic "represent AGGRESSION, supra supranote (speculating that Efficacy, in SEXUAL SEXUAL AGGRESSION, note 57, at 167, 167, 174 (speculating that some rapists "represent criminals" rather general general criminals" rather than than "sex "sex offenders," and reflecting reflecting on the "relative ''relative ineffectiveness ineffectiveness of treating treating specifically for individuals experiencing problems general criminals criminals with techniques techniques designed designed specifica1ly individuals experiencing problems such such as offender" treatment not as effective effective where preponderance of abusive abusive sexual sexual fantasies"); fantasies"); id. id. at 181 ("sex offender" preponderance of criminality" rather than rape rape attributable attributable to to "career "career criminality" than sexual sexual deviance). Most sex offenders offenders are not "specialists." cialists." See Simon, Simon, supra supra note 62, 62, at at 389 ("mhe ("[T]he pure pure sex offender offender is a rarity; rarity; instead, instead, sex sex offenses offenses are infrequent and often are are embedded embedded in an an extensive extensive criminal criminal history of of property property and violent violent single or infrequent crime."). 83 See Marques et al., 83 See Marques et at., supra supra note note 57, 57, at 197, 197, 209. '84 Id. Id. at at 208. 208. 85 See Andrews et al., 85 See Andrews et at., supra supra note 82. 82. 86 See Marshall et al., supra note 58, at 443 ("[P]unishment (by way of prison sentence) and treat86 See Marsha1l et at., supra note 58, at 443 ("[p]unishment (by way of prison sentence) ment are not not incompatible incompatible so long long as as certain certain conditions conditions are are met.").


NORTHWESTERN UNIVERSITY NORTHWESTERN UNIVERSITY LAW REVIEW REVIEW

state's hospitalization is not necessary to meet the state's correctional setting, so hospitalization correctional interests in providing treatment. Further, treatment does not provide a benefit competent patient to offset the deprivation of rights entailed benefit to the cOIl?-petent entailed effective,8 7 not uniformly is not in commitment. Treatment Treatment for sexual violence violence is uniformly effective,87 and commitment commitment is not limited to those individuals who are likely to benefit. Thus, in the constitutional calculus, the provision of treatment often often fit. adds nothing to the state's interest and subtracts nothing from the individcompetent ual's burden. In some subset of cases treatment is effective. But competent efindividuals are entitled to make their own medical decisions," decisions,88 so even efoffective treatment cannot count as a "benefit" to the nonconsenting nonconsenting sex offender patient. dangerousness.-Fourth,the court 4. "Mental "Mentaldisorder" disorder" helps predict 4. predict dangerousness.-Fourth, court of seeks to show that the SDP Act is a limited exception to the primacy of criminal law by arguing that the mental disorder requirement helps predict predict dangerousness. 89 Enhanced dangerousness. Enhanced ability to predict predict violence does not provide any If reason for the state's abandonment abandonment of the criminal justice system. If commitment, 90 then "well"dangerousness alone" is insufficient to support commitment,90 "dangerousness dangerousness is, for the same reason, insufficient. predicted" dangerousness Current research shows that mental disorder is at best a modest predictor of violence. With respect respect to personality personality disorders, disorders, a recent study personality disorder are "inade"inadeconcluded concluded that categorical categorical definitions of personality understanding and pre"modeling personality for the understanding quate" quate" for the task of "modeling 91 Recent research behavior.,,91 research generally generally holds that it is diction of violent behavior." 92 active symptomatology, rather than diagnosis, that is related to violence.92 In a statutorily mandated effort, the Minnesota Department Department of Corrections developed a screening screening tool to identify sex offenders offenders who present present a

87 See ALASKA REPORT, supra note 81, at 5 (reporting on diversity of sex offender population and 87 See ALASKA REPORT, supra note 81, at 5 (reporting on diversity of sex offender population and consequent "different levels of outcome" consequent "different outcome" after treatment). 8s See Jarvis v. Levine, 418 N.W.2d 139, 147-48 (Minn. 1988); BUCHANAN & BROCK, supra note 88 See Jarvis v. Levine, 418 N.W.2d 139, 147-48 (Minn. 1988); BUCHANAN & BROCK, supra note Health System: ExPredatorsand the Structure the Mental 75, at 359; 359; Robert F. Schopp, Schopp, Sexual Predators Structure of the Mental Health POL'Y & 1. L. 161 (1995). panding the Normative Focus of Therapeutic (1995). TherapeuticJurisprudence, Jurisprudence,11 PSYCHOL. PUB. POL'y panding NormativeFocus 89 See In re Linehan (II), 557 N.W.2d 171, 186 (Minn. 1996) ("[A]pplying civil commitment to 89 See In re Linehan (11), 557 N.W.2d 171, 186 (Minn. 1996) ("[A]pplying civil commitment to sexually dangerous those others in the those with mental disorders helps isolate isolate sexuaIIy dangerous persons most likely to harm others future."). 90 Kansas v. Hendricks, 117 S. Ct. 2072, 2080 (1997); In re Blodgett, 510 N.W.2d 910, 921 (Minn. 90 Kansas v. Hendricks, 117 S. Ct 2072, 2080 (1997); In re Blodgett, 510 N.W.2d 910, 921 (Minn. 1994). & TIMOTHY TRULL, Personality 91 THOMAS A. WIDIGER & 91 TIMOTHY J. TRULL, Personality Disorders Disorders And And Violence, in VIOLENCE VIOLENCE & Henry J. AND MENTAL MENTAL DISORDER: DISORDER: DEVELOPMENTS DEVELOPMENTS IN RISK ASSESSMENT 203, 216 (John Monahan & 1994). Steadman eds., 1994). 92 See E.P. Mulvey, the Evidence Evidence of Link Between Mental Illness and Violence, 45 92 See E.P. Mulvey, Assessing Assessing the of aa Link Mental Illness HOSP. & COMMUNITY Hosp. COMMUNITY PSYCHIATRY, PSYCHIATRY, 645, 663, 663, 665 665 (1994) (1994) ("Active ("Active symptoms are probably more impattern of their portant identifiable disorder disorder...... .. The pattem portant as a risk factor than is simply the presence of an identifiable symptomatology rather than simply to the presence presence of a findings points to the importance importance of active symptomatology mental mental disorder as a risk factor for violence."). violence.").


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93 The resultant twenty-one item Sex Of"high risk" of sexual violence. violence.93 Offender Screening Screening Tool includes no mental or personality disorders among among 94 Although "multiple paraphilias" was a the factors used to determine Although "multiple determine risk.94 in the literature as a presupport as having identified factor the researchers researchers its low reliability tool because from the that item dropped dictor, they reliability made it one of the "weakest items." 95 "weakest items.,,95 Many studies do not find antisocial personality personality disorder to be predic96 association berecidivism.96 Other studies have found an association tive of sexual recidivism. it as a have identified but and tween sexual violence personality disorder, identified 97 Others "weak" predictor. predictor. 97 list personality Others list personality disorder disorder as one among a number "weak" of predictors of sexual sexual recidivism.9"98 93 See Stephen J. Huot, Huot, Screening by the the Department 93 See Stephen J. Screening and and Referral Referral by Department of Corrections, Corrections, in MINN. INST. LEGAL EDUC., EDUC., PSYCHOPATHIC PERSONALITIES AND SEXUALLY SEXUALLY DANGEROUS DANGEROUS PERSONS 1 (1995). (1995). 94 See Douglas Epperson et al., Risk of Recidivism for IncarceratedSex Offenders: Offenders: Up94 See Douglas Epperson et aI., Predicting Predicting Risk of Recidivism for Incarcerated (SOSI) 3 (paper presented Screening Tool (SOS1) presented at the Fourteenth daled Offender Screening dated Development Development on the Sex Offender Annual Research and Treatment Treatment Conference Conference of the Association Association for the Treatment of Sexual Abusers, Abusers, 1995). 1995). 95 The item reliability, and and was related to subsequent 9S The item had had poor poor reliability, was not not significantly significantly related subsequent sexual offending. this. 1-2. id. at tbls. See id. , 96 See, e.g., e.g., Howard Barbaree & & William DeviantSexual Arousal, 96 See, Howard E. E. Barbaree William L. Marshall, Marshall, Deviant Arousal, Offense History, History, & L. Sci. & as Predictors Demographic Variables Predictors of Reoffense among Child Molesters, Molesters, 6 BEHAV. BEHAV. SCI. Variables as and Demographic correlated with 267,275-76 tested; deviant sexual arousal arousal found to be correlated 275-76 (1988) (1988) (personality disorder not tested; 267, subjects predicted predicted to recidivate did not); R. Gauthier et al., aI., Long-term Rerecidivism, but two-thirds of subjects (1993) (identifying of Child & CLINICAL PSYCHOL. 646, 646, 649 (1993) (identifying CONSULTING & Molesters, 61 J. CONSULTING Child Molesters, cidivism of "several risk indicators indicators that that have have long being important important for child molesters ... ... : previ"several risk long been been identified identified as as being Antisocial personality personality disorder disorder was not ous sexual offenses ...•..,, never being married, and victim type." Antisocial between the personality measures and relation.., identified as a risk factor, and the study found "little relation ... between and recidivism."); Marques Marques et aI., supra note 57, at 205 tbl. 2 (antisocial personality among prepersonality disorder not among al., supra recidivism."); dictors listed); listed); Robert Robert A. Prentky et al., aI., Risk Factors Factors Associated with Recidivism Among Extrafamilial Extrafamilial & CLINICAL CLINICAL PSYCHOL. PSYCHOL. 141, 142, 143 (1997) (1997)(study (study of "range ''range of risk Child Molesters, Molesters, 65 J. CONSULTING & 141,142, Child factors that the empirical and c1inicalliterature molesclinical literature had identified as critical to recidivism for child molesOfPredictingSexual Ofters" aI., Predicting ters" did not include personality disorders as factor); Vernon L. Quinsey et al., BATTERS, AND CHILD OFFENDERS, BATTERS, SEXUAL OFFENDERS, DANGEROUSNESS: VIOLENCE BY SEXUAL fenses, fenses, in AsSESSING ASSESSING DANGEROUSNESS: ABUSERS (Jacquelyn C. Campbell ed., 1995) (personality disorder not listed listed among 1995) (personality ABUSERS 114, 126-27, 130 (Jacquelyn recidivism;" "psychopathy" ''psychopathy'' but not antisocial per"reliably related to the probability of recidivism;" factors that are "reliably reconviction). sonality disorder listed as having having "significant correlation" with sexual reconviction). "significant correlation" 97 eg., R. MONIQUE BUSSIERE, BUSSIERE, PREDICTORS OF SEXUAL 97 See, See, e.g., R. KARL KARL HANSON HANSON & & MONIQUE SEXUAL OFFENDER CANADA, MINISTRY RECIDIVISM: A META-ANALYSIS, SOLICITOR GENERAL OF CANADA, MONOGRAPH OF THE SOLICITOR META-ANALYSIS, MONOGRAPH RECIDIVISM: of SECRETARIAT (CaL (Cat No. JS4-111996-4E ("Sexual recidivism recidivism was also associated with indices of 1996) ("Sexual JS4-1/1996-4E 1996) SECRETARIAT general criminality, such as prior nonsexual offenses and antisocial personality disorder, but these corgeneral relations were weaker than the correlations deviance."); Robert A. Prentky correlations with the measures of sexual deviance."); relations sociopathy et aI., supra note 96, 96, at 141, 142 ("weaker ("weaker support for predictive efficacy of... of ... diagnosis of sociopathy 141, 142 al., supra Violence, 18 INT'L Criminal Violence, Explanation of Criminal or psychopathy"); Vernon Quinsey, The Prediction INT'L and Explanation Prediction and Vemon L. Quinsey, "weakest" of identified risk 1.L. PSYCHIATRY 117, (1995) ("personality disorder" among the "weakest" 117, 123-24 (1995) J.L. & & PSYCHIATRY "psychopathy" to be a useHare's construct of ''psychopathy'' factors for criminal violence). Some studies have found Hare's ful predictor of sexual violence when used in combination combination with clinically measured measured deviant sexual arousal. See Vernon L. Quinsey Quinsey et aI., Prediction of Sexual Recidivism, 10 J. INTERPERSONAL INTERPERSONAL al., Actuarial ActuarialPrediction ActuarialPrediction]; VIOLENCE aI., Actuarial Prediction]; Vernon Vernon L. Quin(1995) [hereinafter Quinsey et al., 85, 86-87, 94, 102 (1995) VIOLENCE 85,86-87,94, Predicting Sexual Offenses, in ASSESSING AsSESSING DANGEROUSNESS: DANGEROUSNESS: VIOLENCE BY SEXUAL sey et aI., al., Predicting OFFENDERS, BATTERERS, CHILD ABUSERS 114, 119 (Jacquelyn C. Campbell ed., ed., 1995). However, However, 114, 119 BATTERERS, AND CHILD OFFENDERS,


NORTHWESTERN NORTHWESTERN UNIVERSITY UNIVERSITY LAW LA W REVIEW REVIEW

In the the largest largest study study of of its its kind, R.K. Hanson Hanson and and M.T. Bussiere Bussiere conconIn of sixty-one sixty-one different different studies studies involving involving sex sex offender offender ducted a meta-analysis meta-analysis of ducted recidivism of of 28,972 28,972 sexual sexual offenders. offenders. 99 99 These These authors authors found found a small small corcorrecidivism relation between between antisocial antisocial personality personality disorder disorder and and sexual sexual recidivism recidivism (be(berelation tween .14 and .17), significant relationship relationship between between "sexual "sexual preference preference for for 17), a significant 14 and. tween. children as measured measured by by phallometric phallometric methods" methods" and and recidivism, recidivism, and and no no sigchildren nificant relationship relationship between between sexual sexual preference preference for rape rape and and recidivism. recidivism. nificant They concluded: concluded: "No "No single single factor, however, however, was was sufficiently sufficiently correlated correlated They recidivism to justify justify its use in in isolation." isolation." with recidivism The "mental disorder" disorder" as an aid aid to prediction, then, then, does does not not The use of "mental produce the "narrow "narrow tailoring" tailoring" the the court court claims. claims. Because Because mental mental disorder disorder produce associated with with recidivist recidivist sexual sexual violence, violence, mental mental is, at best, only weakly associated disorder is highly highly likely to be be present in in many many cases cases where where recidivism recidivism is not not disorder 0 0 In fact, the Linehan Linehan (1) (11) court court itself itself acknowledges acknowledges properly predicted. predicted. loo properly mental disorder, that it is the dangerousness dangerousness requirement, requirement, independent independent of mental that work in limiting limiting commitments. commitments.10IOI1 which does the real work The most telling criticism criticism of of the court's court's "helps-prediction" "helps-prediction" argument argument is is that it does not provide provide a principled principled limitation limitation on sex offender commitbetween mental disorder and violence ments. The The rather weak association between 1,235 correlameta-analysis found 1,235 Bussiere's meta-analysis is not unique. Hanson and Bussiere's characteristics and recidivism. Coltions in the literature between various characteristics lapsing those characteristics characteristics into sixty-nine categories, categories, the researchers researchers lapsing found approximately twenty-three different factors to have significant significant corapproximately twenty-three relations with sexual recidivism. For example, the study found the followrelationship with "predictors" of sexual recidivism: negative relationship ing to be "predictors" DSM IV diagnosis of "antisocial the psychopathy construct than, the OSM construct is different from, and narrower than, personality disorder." disorder." Stephen Stephen O. aI., The Psychopathy Over(PCL-R): An OverChecklist-Revised (PCL-R): Psychopathy Checklist-Revised D. Hart et al., 103, 105 105 (1992) (1992) (individuals view for Clinicians,8 ADVANCES PSYCHOL. ASSESSMENT 103, and Clinicians, for Researchers Researchersand the personality personality traits diagnosed with antisocial personality personality disorder are heterogeneous respect to the heterogeneous with respect that define psychopathy). psychopathy). 98 See See Mamie Mamie E. E. Rice Rice & Grant T. T. Harris, Cross-Validationand and Extension Extension of of the the Violence Violence Risk ApAp98 & Grant Harris, Cross-Validation (1997) praisal Guidefor Child Molesters and Rapists, 21 & HUM. BEHAV. 231, 232 (1997) (listing per& LAW and Rapists, Child Molesters praisal Guidefor victim sonality disorder along status, alcohol abuse, victim gender, and relationship to victim along with age, marital status, as predictors). 99 See HANSON & "statistically analyze[s] the statistics "meta-analysis" "statistically supranote 97. A "meta-analysis" BuSSiERE supra & BUSSIERE, 1, at nn.39-69 and accompanying reported by other researchers." supranote 1, See also also Berliner, supra Id. at 5. See researchers." ld. text. text. Rice and Harris, the rate of personality disorder diagnosis among the study by Rice 100 100 For example, in a study recidivism rapists engaged engaged in sexual recidivism the rapists rapists twice the rate at which the was about about twice the study (76%) was in the rapists in 234, 237. 98, at 234,237. supranote note 98, (approximately Harris, supra Rice & & Harris, 35%). See Rice (approximately 35%). to commitments to limits commitments SDP Act limits pointing out that the SOP to this this argument by pointing court responds to 101 The court 101 those that the the Act might be overinclusive also asserts that "[Amicus] also to be dangerous: "[Amicus] those who are highly likely to unconvincis unconvincThis argument is because many not dangerous. dangerous. This with personality disorders are not offenders with sex offenders many sex others." harm others." to sexually harm likely to ing are highly likely those who are application to those confines its application the SOP SDP Act confines ing because the point. the point. simply proves the rejoinder simply this rejoinder 1996). But this In 186 n.12 (Minn. 1996). 171, 186 (II), 557 N.W.2d 171, reLinehan Linehan (II), In re "narrowly that commitments commitments are "narrowly insuring that work of of insuring The of the the work does none of requirement does The mental disorder requirement limited. or highly highly limited. tailored" tailored" or


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mother, juvenile delinquency, an aggregate aggregate measure of general general problems problems in the family of origin (nonsexual abuse, family disruptions), youth, being unmarried, number of prior offenses admissions to corrections, corrections, and di10 2 and admissions versity of sex crimes crimes committed. committed. 102 twenty-three factors identified in the study "helps predict" Each of the twenty-three sexual recidivism. A uniform application application of the court's principle principle would would justify civil commitment commitment for sexually dangerous individuals who had, for justify example, negative negative relationships relationships with their mothers, mothers, or general problems problems in their families of origin, since these factors would perform the same role that performs in the court's analysis. In sum, the court's "helps"helpsmental disorder performs of prediction" theory does not provide a principled principled limitation on the use of prediction" civil commitment.

sexual violence.-The most persistent explains sexual disorder" explains 5. 5. "Mental "'Mentaldisorder" limited theme in Linehan Linehan (L (II) is that sex offender commitments commitments are suitably limited theme by mental that is "explained" violence because they are focused on sexual violence "explained" because concluits articulates the court opinion, disorder. In a key paragraph paragraph in the conclusufficiently narrow to satisfy strict scrutiny as apsion that the SDP Act "is sufficiently plied to Linehan."lo3 argument outlined in this paragraph paragraph Linehan."1 °3 The thrust of the argument psychopath is that the SDP Act partakes of the same legitimacy legitimacy as the sex psychopath approved in Blodgett. court idenBlodgett. To make this point, the court act that had been approved considers to be the key similarity, the essential legitimizing legitimizing tifies what it considers psychopath] act apply apply feature of both acts: "Both the SDP Act and the [sex psychopath] only if a person suffers from a mental disorder that explains and helps . . suffers person. ... person's dangerousness." dangerousness." Later, the court directly links the "expredict that person's appropriateness as a basis for planatory" nature nature of mental disorder disorder to its appropriateness planatory" civil commitment: "[W]e identifying "[We give the legislature due regard in identifying medically recognized recognized mental disorders, such as APD [antisocial personality medically disorder], that explain a person's dangerousness appropriate dangerousness and that are appropriate In all, the court court repeats repeats the treatment." 1°4 In bases for civil commitment and treatment."l04 "mental disorder explains violence" violence" theory four times in the opinion. Despite this emphasis, the court never never clearly explicates explicates the meaning meaning or significance of the "explanation" principle. I suggest there are three ways to "explanation" principle. understand the notion of explanation in this context: scientific, scientific, moral, and sociological. sociological. 102 See HANSON & BUSSiERE, supra note 97, at thl. 1. Similarly, discussing the relationship be102 See HANSON & BUSSIERE, supra note 97, at tbl. 1. Similarly, discussing the relationship bemental disorder disorder identifies a threat of danger to the tween mental disorder and violence, Shah states that mental or crime, substance abuse abuse problems, or community that is much smaller than that identified identified by recidivistic crime, community 303, 312; see also multiple arrests for drunken driving. See Shah, supra note 69, at 303,312; also Research, supra Shah, Recent Research, multiple Disorder and MENTAL DISORDER AND AND CRIME and Violence: Violence: Another Look, in MENrAL Mental Disorder John Monahan, Mental of associated with the combination (Hodgins, ed. 1993) 287, 299 ("Compared combination of ("Compared to the magnitude of risk associated 1993) 287, male gender, young age, and lower socioeconomic socioeconomic status, status, for example, example, the risk of violence violence presented by mental disorder is modest:'). modest."). 557 N.W.2d at 182. 103 In re Linehan (11), 103 In re Linehan (II), 557 N.W.2d at 182. 104 Id. at 184. 104 Id. at 184.


NORTHWESTERN UNIVERSITY LA LAW NORTHWESTERN UNIVERSITY W REVIEW REVIEW Scientific "explanation" describes the causal mechanism underlying a Scientific "explanation" °5 phenomenon.'lOS In this sense, to say that the mental phenomenon. mental disorder disorder "explains" "explains" the sexual violence is to say that the mental disorder "caused" the sexual vioviolence mental disorder "caused" lence. Sex offender commitment courts frequently characterize offender characterize the consticonsticommitment as a causal connection tutional predicate for commitment connection between between mental 10 6 As I have argued elsewhere,107 elsewhere,10 7 the landisorder and violent behavior. 106 guage of causation causation lends legitimacy to sex offender commitments because because it evokes the notion that the dangerous behavior is beyond the volitional volitional concriminal law.'0l088 trol of the individual, individual, and perhaps beyond the reach of the criminallaw. Given the posture of the Linehan Linehan (11) (Il) case, however, the court court needed to 09 avoid these connotations. 1109 I conclude, conclude, then, that the court did not use use "explanation" its scientific "explanation" in in its scientific sense. by Moral explanation seeks to explain actions such such as sexual violence by 110 reference to reasons, intentions, or motives of the actor. l1O reference In this sense, mental disorder "explains" "explains" sexual violence in the same sense that, say, greed greed explains robbery. This approach approach to sexual violence violence is diametrically diametrically at at contemporary notions underlying odds with contemporary underlying the treatment of sexual sexual violence. Contemporary Contemporary treatment programs view such explanations explanations as evasions of responsibility responsibility by the offender offender that must be challenged and and changed. II I Even where it is acknowledged changed."' acknowledged that there is some form of dis-

105 See Vernon L. Quinsey, The Predictionand Explanation of Criminal Violence, 18 INT'L J.L. &

lOS

See Vernon L. Quinsey, The Prediction and Explanation of Criminal Violence, 18 INT'L J.L. &

PSYCHIATRY PSYCHIATRY 117 (1995). (1995). 106 See, e.g., State v. Post, 541 N.W.2d 115, 124 (Wis. 1995) (limiting commitment to mental disor106 See, e.g., State v. Post, 541 N.W.2d lIS, 124 (Wis. 1995) (limiting commitment to mental disorder that "specifically causes" individual to be dangerous).

der that "specifically causes" individual to be dangerous). 107 See Janus, supra note 2, at 71. 107 See Janus, supra note 2, at 71. 108 See MICHAEL BAVIDGE, MIND MATTERS-MAD OR BAD? 25 (1989) (presenting argument that 108 See MICHAEL BAVIDGE, MIND MATTERS-MAD OR BAD? 25 (1989) (presenting argument that "causation" at the of criminal criminal excuse). the core core of excuse). "causation" is is at If one thinks of If of the accused's accused's behaviour behaviour in pathological pathological terms, one is thinking of it as caused in him, in a way way closely analogous to the way the symptoms of a physical disease are caused in the patient. The conclusion, behavior than conclusion, of course, is that the accused is no more responsible for his behavior patients patients are for their symptoms. Id. !d.

excusing condition, condition, but only that it is commonly understood understood to I do not argue that "causation" "causation" is an excusing be. J. Morse, Causation, Causation, Compulsion, Compulsion, and Involuntariness, Involuntariness, 22 BULL. AM. ACAD. be. See Stephen Stephen J. 159, 159 (1994) (1994) (identifYing (identifying "the "the notion that if if behavior is caused account PSYCHIATRY L. 159, caused or a causal causal account can behavior is fully or partially excused," excused," as "the fundamental conceptual error in in can be given, then the behavior forensic forensic psychiatry and psychology"). 109 The trial 109 trial court court had made no findings regarding any causal causal connection connection between antisocial personpersonality disorder and predicted predicted sexual sexual violence. The Court of Appeals explicitly explicitly rejected the notion that the state "causal" connection between the disorder state must must prove a "causal" disorder and the violence, and seemed to equate "causation" 544 N.W.2d 171,315 171, 315 (Minn. 1996). "causation" with with excuse. excuse. See See In In re re Linehan Linehan (II), (II), 544 1996). 110 See F. SCHOPP, SCHOPP, AUTOMATISM, AUTOMATISM, INSANITY, CRIMINAL 110 See ROBERT ROBERT F. INSANITY, AND AND THE THE PSYCHOLOGY PSYCHOLOGY OF OF CRIMINAL Explanation, in THE BLACKWELL DICTIONARY OF RESPONSIBILITY 110 (1991); Peter Halfpenny, REsPONSIBILITY Halfpenny, Explanation, OF TWENTIETH-CENTURY SOCIAL THOUGHT 217, 218 (William Outhwaite & Tom BoUomore Bottomore eds., 1993) 1993) TwENTIETH-CENTURY [hereinafter THE BLACKWELL [hereinafter BLACKWELL DICTIONARY] (characterizing (characterizing explanation explanation in the social social sciences as appealing "intentions, reasons, motives" motives" and so on of the actors involved). involved). pealing to "intentions, 111 See Marshall & Barbaree, Outcome, supra note 67, at 370: III See Marshall & Barbaree, Outcome, supra note 67, at 370:


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ordered mental process associated with sexual violence, such as a deviant sexual arousal pattern, cognitive distortions, or lowered empathy, contemporary thought emphasizes the explanation that focuses on personal choice.' 2 We ought not assume that the court intended a justification justification for choice.lI2 commitment so totally at odds with the announced purpose of commitment, commitment the provision of treatment. "explanaLastly, the court may have intended a sociological use of "explanation": one that focuses on an interpretation interpretation of the meaning meaning of sexual vio13 This view of explanation understands that there lence in a social context. 113 are various schemas vying to be the "explanation" "explanation" of any social phenome"Explanation" entails interpretation, or the non, such as sexual violence. "Explanation" attachment attachment of meaning to these contested phenomena. explanations of of For example, scholars advance all of the following as eXflanations sexual violence: political and economic forces in the society; society;'11 exposure to to "aspects of of culture culture that that foster foster male attitudes in in which which aggression, domina"aspects male attitudes fused;" 115 social learning theory;116 theory;" 6 misogynist tion, and sexuality become fused;"llS 7 attitudes;" brain chemistry;118 chemistry;"' evolutionary evolutionary predispositions;119 predispositions;" 9 values and attitudes;117 0 deficient skills; 120 anger and rage;'' rage; 121 deviant sexual preferdeficient behavioral behavioral skills; 2 23 24 25 impulsivity; ences; 122 impulsivity;1123 low self-esteem; 124 and bad moral choices. choices.1125

In our view offenders typically typicalJy deny or minimize minimize their responsibility responsibility for sexual sexual abuse. They attribute offense(s) 10 to other people ... control. or ... or to factors outside their control. attribute responsibility responsibility for the offense(s) states .... cognitive-behavioral therapists to the influence of current current [mental] [mental] states . . " Other cognitive-behavioral therapists agree with to be changed responsibility need 10 changed if if treatment treatment is to be efour claim that these denials of harm and responsibility fective." (emphasis (emphasis added). 112 See infra note 125. For examples of this perspective, see Elizabeth Mertz & Kimberly A. Lon1\2 See infra note 125. For examples of this perspective, see Elizabeth Mertz & Kimberly A. Lonsway, and Cultural CulturalConstructions Child Sexual Abuse, 92 Nw. U. L. Power of Denial: Denial: Individual Individual and Constructions of Child sway, The Power (1998); Cynthia Bowman, The Manipulation REV. 1415 (1998); Cynthia Grant Grant Bowman, Manipulation ofLegal Remedies to Deter Deter Suits by by SurSurvivors of Childhood ChildhoodSexual Abuse, 92 NW. Nw. U. L. REv. REV. 1481 (1998). (1998). For the contrary contrary perspective, perspective, see J. Michael Michael Bailey Bailey & Aaron Greenberg, Greenberg, The Science and Ethics of of Castration: Castration: Lessons from the Morse Case, Case, 92 Nw. U. L. REV. REV. 1225 (1998). (1998). 113 See, e.g., Tom Bottomore, Sociology, in THE BLACKWELL DICTIONARY, supranote 110, at 632, 113 See, e.g., Tom Bottomore, Sociology, in THE BLACKWELL DICTIONARY, supra note 110, at 632, 636. 114 See Lee Ellis, Rape as aa Biosocial 114 See Lee Ellis, Rape as Biosocial Phenomenon, Phenomenon, in in SEXUAL SEXUAL AGGRESSION, AGGRESSION, supra supra note note 57, at 17, 17, 18. 18. 115 Id. at 20. 20. liS Id. at 116 See Marshall & Barbaree, supra note 72; see also David M. Greenberg et al., A Comparison of 116 See Marshall & Barbaree, supra note 72; see also David M. Greenberg et aI., A Comparison of Victimization in the Childhoods Childhoods of Pedophilesand Hebephiles, Sci. 432 Sexual Victimization of Pedophiles Hebephiles, 38 J. FORENSIC SCI. 432 (1993) (1993) ("Although of child molestation molestation remains undetermined undetermined these results results support support social social learning learning ("Although the cause of and modeling modeling theories."). theories."). 117 See Marshall & Barbaree, Outcome, supra 67, at Mary E. 117 See Marshall & Barbaree, Outcome, supra note note 67, at 363; 363; Mary E. Becker, Becker, The The Abuse Abuse Excuse Excuse and the Patriarchal 1475-80 (1998). Patriarchal Narratives, Narratives, 92 Nw. U. L. REV. 1459, 1459,1475-80 (1998). 118 See Ellis, supranote 114, at 17, 24 (examining how rape may be "neurohormonally motivated"). 118 See Ellis, supra note 114, at 17, 24 (examining how rape may be ''neurohormonally motivated"). 119 See generally RANDY THORNHILL & NANCY WILMSEN THORNHILL, HUMAN RAPE: AN 119

See generally RANDy THORNHILL & NANCY WILMSEN THORNHILL, HUMAN RAPE: AN

EVOLUTIONARY 21. EVOLUTIONARY ANALYSIS, ANALYSIS, ETHOLOGY ETHOLOGY AND SOCIOBIOLOGY SOCIOBIOLOGY 137-73 137-73 (1983); (1983); Ellis, Ellis, supra supra note note 114, 114, at at2!. 120 See Pithers, supranote 65, at 343-44. 120 See Pithers, supra note 65, at 343-44. 121 See Margit C. Henderson & Seth C. Kalichman, Sexually Deviant Behavior and Schizotypy: A 121 See Margit C. Henderson & Seth C. Kalichman, Sexually Deviant Behavior and Schizotypy: A Theoretical 273, 274 (1990) Supportive Data, Data, 61 61 PSYCHIATRIC PSYCHIATRIC Q. Q. 273, (1990) (describing (describing four four Theoretical Perspective Perspective with Supportive


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The designation of an explanation explanation represents represents a choice among among these of contributes to, a particular schemas. That choice follows from, and contributes particular set of social meanings meanings in our society. By By choosing choosing "mental disorder" as the explanation for sexual sexual violence, violence, the court declares that disordered disordered mental against functioning is a better better way to understand or interpret violence violence against women and children than, say, cultural cultural values or individual choices. I shall shall explanatory choice below. Here, I note that implications for this explanatory discuss the implications the court does not justify justify its choice, and hence does not establish establish that its explanation justifies constraints chosen explanation justifies the abrogation of constitutional constraints around criminal law. (11) IN INTHE POST POST-HENDRICKS IV. THE LESSONS LESSONS OF LINEHAN (II) -HENDRICKS ERA

A. Framing Framing the Constitutional Constitutional Analysis. The most positive contribution in the Minnesota court's Linehan Linehan (II) () analysis is the adoption adoption of a coherent framework framework for analyzing police power power commitment. The state must advance "sound "sound reasons" reasons" for the departure from the constitutional protections protections of the criminal law. The criminal law "exception" in the state's must be the "norm" and civil commitment the "exception" state's "principled quest for social control. These principles must be reflected in "principled limitations" commitment into the criminal law. limitations" on the encroachment of civil commitment Foucha v. Louisiana The Linehan Linehan (11) (II) framework grows out of the Foucha Louisiana case, and helps explain and clarify the Supreme Supreme Court's ruling and reasonHendricks. Hendricks Hendricks rejects the simplistic approach that ing in Kansas Kansas v. Hendricks. "compelling interest" in fighting sexual sexual violence violence justifies justifies civilthe state's "compelling commitment-style police power intervention. Rather, Hendricks Hendricks insists on a commitment-style constitutional role for mental disorder, establishing it as the basis for distin"from other dangerous perguishing legitimate objects of civil commitment "from sons who are perhaps more properly properly dealt with exclusively exclusively through criminal "motivational dynamics" for for rape: rape: "power and control," "express anger," "impul"motivational dynamics" ''power and control," "express anger," "sadistic arousal," arousal," and "impulsivity and antisocial character"). 122 See Quinsey et al., Actuarial Prediction,supra note 96, at 85, 86-87, 94, 102; Bailey & Green122 See Quinsey et aI., Actuarial Prediction, supra note 96, at 85, 86-87, 94, 102; Bailey & Green112, at nn.2-6 and accompanying text. berg, supranote berg, supra note 112, at nn.2-6 and accompanying text. 123 See Prentky et al., supranote 57, at 106. 123 See Prentky et aI., supra note 57, at 106. 124 See W.L. Marshall et al., Self-esteem and Its Relationship to Sexual Offending, 3 PSYCHOL., 124 See W.L. Marshall et aI., Self-esteem and Its Relationship to Sexual Offending, 3 PSYCHOL., maintenance of sexCRIME & & L. 161 (1997) (1997) (proposing that self-esteem self-esteem plays a role role in the etiology and maintenance ual offending). 125 See, e.g., Park Elliot Diet 3, Sex Offenses: BehavioralAspects, in 4 ENCYCLOPEDIA OF CRIME 125 See, e.g., Park Elliot Diet 3, Sex Offenses: Behavioral Aspects, in 4 ENCYCLOPEDIA OF CRIME 1983) ("Failure ("Failure to control 1485, 1490 (Sanford AND JUSTICE 1485, (Sanford H. Kadish ed., 1983) control or find lawful outlets for et confused with incapacity to control these impulses."); Marshall Marshall et deviant sexual impulses impulses must not be confused andFuture Directions,in HANDBOOK, supra al., Present PresentStatus and Future Directions, supra note 65, at 390-91 390-91 ("Sexual ("Sexual offending offending is aI., offenders are not suffering suffering from any disease and their behavior is not out out not a 'sickness' . .. [S]exual [Slexual offenders 'sickness' ..... informed that urges do not concontrol ..."); supra note 65, at 354-55 ("Offenders are infonned of their control. ..."); Pithers, supra urge is an active decision, decision, an intentional choice choice for which he is trol behavior. Rather, giving in to an urge responsible.").


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proceedings." Linehan (L9 (II) articulates articulates the the constitutional constitutional role role for for mental mental disdisproceedings." It is a principled principled limitation limitation on on civil civil commitment commitment that that furnishes order. It "sound "sound reasons" reasons" for for excusing excusing the the state state from from the the shackles shackles of of the criminal criminal justice system. system. justice

B. B. Calling the Control-Incapacity Control-Incapacity Bluff. Bluff. For more more than than fifty-five fifty-five years, years, the the legitimizing legitimizing foundation foundation for sex ofFor of PearPearcommitments has has rested rested on on the the control-incapacity control-incapacity rationale rationale of fender commitments Many prominent prominent scholars scholars and and jurists jurists have have doubted that that the rationale rationale son. Many sufficient meaning meaning to carry carry that, or or any any other important important legal baghas sufficient Pearson test is but window window dressing for the gage. 126 On this view, the Pearson of individuals sordid histories histories of sexual sexual misconduct misconduct commitment of individuals who have sordid commitment that lead lead us to fear similar similar dangerous dangerous conduct conduct in the future. 127 As I have shown elsewhere, elsewhere, the "utter "utter lack of power power to control" control" test is ignored ignored in in shown sex offor justification a providing in no way and practice, drawing no lines lines no way providing justification practice, 128 commitments.128 fender commitments. Yet, as recently as 1994, the Minnesota Minnesota court reaffirmed reaffirmed its "utter ''utter lack lack control" rubric, assuring itself and the world that this test seof power to control" commitment individuals individuals with an "identifiable "identifiable and documentable.. documentable .. lects for commitment . condition or disorder.,,129 Hendricks followed suit. disorder."'129 Hendricks (L1) decision upsets this conceit. It now now turns out that, at The Linehan (II) least in Minnesota, Minnesota, the ''utter power to control" control" test had no princi"utter lack of power pled relationship relationship to the purposes of confinement. There is, according to the Linehan (11) court, co~, no principled distinction between individuals who between those individuals Linehan (T) totally lack the ability to control their behavior, and those whose ability to control is largely unimpaired. control traditional control-incapacity Linehan control-incapacity poses a di(II)'s rejection of the traditional Linehan (11)'s If the United States Supreme rect challenge to the rhetoric of Hendricks. Hendricks. HenCourt goes down the path of the Minnesota court, a major prop in its Henreasoning (1) (11) reasoning no longer dricks rationale becomes insecure. The Linehan Linehan dricks allows courts to invoke control-incapacity control-incapacity as an easy legitimization for civil and surely no uncontroversial satisfactory and that "no "no satisfactory (asserting that at 166 166 (asserting 108, at note 108, supranote See Morse, Morse, supra 126 See 126 surely no uncontroversial account of psychological, philosophical, or legal literain the psychiatric, psychological, of [control-incapacity] [control-incapacity] exists in tures"); Lady Wootton, (1968) (reviewing A. GOLDSTEIN, 1019, 1026-27 (1968) 77 YALE L.J. 1019, Wootton, Book Review, 77 341 STANDARDS 341 HEALTH STANDARDS MENTAL HEALTH JUSTICE MENTAL THE INSANITY quoted in ABA CRIMINAL JUSTICE (1967)), quoted INSANITY DEFENSE (1967», validity of which competence the validity test of volitional competence (1989) to devise aa test short, it is not only difficult to ("In short, (1989) ("In can be objectively established: it impossible."). it is is impossible."). 127 The The Minnesota Minnesota Attorney Attorney General General argued argued for for just just such such aa position position in in Linehan Linehan (/): (1): 127 have if he could have determine ifhe to determine of mind mind to It individual's state of It is unnecessary to delve into the individual's presis what presdid not is that he did the fact fact that or not, not, the acts or to control the acts chose to acted he chose differently. Whether he acted differently. further harm. to prevent prevent further ents and supports state intervention to safety and ofpublic safety issue of the issue ents the 609 (Minn. 518 N.W.2d 609 (I), 518 Linehan (1), In re re Linehan Amicus Brief General at 7-8, In Attorney General Minnesota Attorney of the the Minnesota Brief of 1994). 1994). IV. at Part Part IV. 107, at supranote note 107, Janus, supra See Janus, 128 See 128 (Minn. 1994). 2d 910,915 N.W. 510 Blodgett In re 129 129 In re Blodgett 510 N.W. 2d 910, 915 (Minn. 1994).


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commitment. If, on the other hand, the Supreme Court rejects Linehan (II), it will confirm confIrm that the control-incapacity control-incapacity element must carry real constitutional weight. This will demand demand a fuller articulation articulation of the content and constitutional analysis. control-incapacity in the constitutional function of control-incapacity analysis. Commitments. C. Parsing SocialMeaning Meaningof Sex Offender Commitments. C. Parsing the Social of encourage a wave of The Supreme Court's decision decision in Hendricks Hendricks will encourage 130 These new sex offender offender commitment laws. 130 These laws, and the high court shape the way in which socisociopinions that test their legitimacy, legitimacy, reflect reflect and sha~e control-incapacity ety understands and addresses sexual violence. 1133 The control-incapacity rhetoric Hendricks evokes images of mental disorders rhetoric of Hendricks disorders that are so unusual individuals of control over their behavior. In and severe that they deprive individuals "Hendricks' abnormality does not the words of dissenting Justice Breyer: "Hendricks' not consist simply of a long course course of antisocial behavior, but rather it includes includes actions."' 32 control his inability to unusual inability a specific, specific, serious, and highly unusual to control his actions.,,132 In rejecting control-incapacity control-incapacity as a limiting principle, the Minnesota understanding sexual court embraces a embraces much more radical model for understanding sexual vioLinehan (1) If there is a fundamental message in the Linehan lence. If (II) opinion, it is "explains" that preventive detention is legitimate because mental mental disorder "explains" of sexual violence. The court has chosen chosen "mental disorder" disorder" from a panoply of 33 competing explanations for sexual competing explanations sexual violence. 133 By choosing this justificainterpretation of of tion, the court gives gives its official imprimatur imprimatur to a particular interpretation the nature of sexual violence and its place place in our social context. of Explanations Explanations for human behavior reflect and reinforce theories of 3 4 For example, explanations moral responsibility. responsibility.134 explanations for sexual sexual violence that emphasize emphasize political and economic forces in the society, or exposure to misogynist values values and attitudes, tend to suggest that sexual violence is a responsibility.135 On problem for which the society as a whole bears bears some responsibility.135 explanations that emphasize individual choice the other hand, explanations choice place responsibility squarely on the perpetrators of violence. 130See Matthew Purdy, Purdy, Wave of New Seeks to Confine Sexual Offenders, N.Y. TIMES, 130 See Matthew Wave of New Laws Laws Seeks to Confine TIMES, June June 29, 1997, at Al Al (reporting that "movement "movement to confine those who are considered most likely to strike country" as a result of the Hendricks Hendricksdecision). again is expected expected to spread across the country" 131 See Estelle Freedman, Uncontrolled UncontrolledDesires: Response to to the Sexual Psychopath, 1920-60, 131 See Estelle Freedman, Desires: The The Response the Sexual Psychopath, 1920-60. psychopath laws helped shape American .74 ·74 J. AM. HIST. HIST. 83 (showing that the first generation sex psychopath American attiattitudes towards sexuality and sexual violence). violence). As James James Wilson points out, high profile profile cases have have a "philosophical significance." JAMES JAMES Q. WILSON, (1997). WILSON, MORAL JUDGMENT 46 (1997). "philosophical and and tutelary tutelary significance." 132 Kansas v. Hendricks, Hendricks, 117 117 S. S.Ct. 2072,2088 (1997). 132 Kansas v. Ct 2072, 2088 (1997). 133See supra notes notes 114-125 114-125 and and accompanying text text. 133 See supra 134 See, e.g., DONALD H. J. HERMANN, THE INSANITY DEFENSE 91-93 (1983) (arguing that "the as134 See, e.g., DONALD H. J. HERMANN, THE INSANITY DEFENSE 91-93 (1983) (arguing that "the asencourages a "higher "higher level cription cription of responsibility responsibility promotes ethical and legal values," values," encourages level of awareness, awareness, initiative, independence and complexity," complexity," and strengthens strengthens the resolve persons to obey initiative, achievement, achievement, independence resolve of persons the law) 135 See STEPHEN JAY JAY GOULD, GOULD, THE MISMEASURE OF MAN (1993) (1993) (discussing 135 See STEPHEN THE MISMEASURE OF MAN (discussing the tension among among competing theories competing theories in the explanation of criminal behavior).


Foreshadowing Kansas v. Hendricks Foreshadowing the Future Future of o/Kansas

(1998) 92:1279 (1998)

Linehan (11) (I1) court The explanation adopted by the Linehan court emphasizes emphasizes a broad and amorphous connection connection between mental disorder and sexual violence. violence. This explanation holds neither society nor the individual clearly responsible. By selecting "mental disorder" disorder" as the explanation, the court clearly clearly within the individual individual perpetrator, rather places the source source of sexual violence within 136 In addition, it suggests that than outside the individual in the society. society.136 sexual violence aberrational and different in kind from the normal. This, violence is aberrational too, tends to absolve the society of responsibility for sexual violence. Under this explanation, explanation, sexual violence is disconnected disconnected from societal values. "condition." aberrational; a separate "condition." It is different, aberrational; placement of reFurther, the "mental disorder" explanation explanation dilutes the placement sponsibility sponsibility on the individual perpetrator. perpetrator. Though a mental disorder explaviolence within the individual, it is in that nation places the source of the violence is not fully responsible. he for which part of the individual individual responsible. Thus, while we individuals, the official exand incarcerate these reserve the right to punish incarcerate planation for the behavior dilutes the role of choice and personal personal responsibility. V. V. CONCLUSION

Hendricks, the Supreme Supreme Court carries the Kansas Sexually Violent In Hendricks, well-worn path to constitutional constitutional legitimacy. Evoking Evoking Persons Act down a well-worn purchase a principled control-incapacity, the Court hopes to purchase the rhetoric of control-incapacity, principled limitation primacy of the crimilimitation on the incursion of civil detention into the primacy nal law. nallaw. control-incapacity path has two forks. Linehan (Il) (II) teaches that the control-incapacity Linehan test Construed as a marker marker of impaired criminal responsibility, the control test limits sex offender offender commitments commitments to the interstices interstices of the criminal law and provides higbly highlY principled legitimacy for this alternative to the criminal criminal . . system. justice Justice syst em. f37 On the other path, the control test is simply a rhetorical pretext. (II) illuminates the destination of that path. Finding no "principle" Linehan (Il) "principle" Linehan underlying the control test, the Minnesota Minnesota court abandons it. In its place, underlying "explains" approach in which mental disorder "explains" the court espouses a radical approach sexual violence. But the court's theory provides provides no meaningful limits on on commitments. Instead, it dangerously dangerously shunts responsibility for sexual vioof lence away from both the individual and the larger larger society. The lesson of Linehan (Il) Hendricks must control-incapacity rhetoric of Hendricks Linehan (II) is clear: The control-incapacity serve a real, principled principled role in the division between between civil and criminal intervention.

136 137 137 136

id. See See id. See Janus, note 47. 47. See Janus, supra supra note


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