KANSAS v. LEROY HENDRICKS; LEROY HENDRICKS v. KANSAS



95-1649, 95-9075



SUPREME COURT OF THE UNITED STATES



518 U.S. 1004; 116 S. Ct. 2522; 135 L. Ed. 2d 1047; 1996 U.S. ; 64 U.S.L.W. 3837; 96 Cal. Daily Op. Service 4294; 96 Daily Journal DAR 6932



June 17, 1996, Decided



PRIOR HISTORY: [*1] Petition for writ of certiorari to the Supreme Court of Kansas.



JUDGES: Rehnquist, Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer.



OPINION:

The motions of Leroy Hendricks for leave to proceed in forma pauperis and the petitions for writs of certiorari are granted. The cases are consolidated and a total of one hour is allotted for oral argument.

IN RE CARE & TREATMENT OF HENDRICKS, 259 Kan. 246, 912 P.2d 129 (Kan. 03/01/1996)

[1] Supreme Court of Kansas


[2] 73, 039


[3] 259 Kan. 246, 912 P.2d 129, 1996


[4] March 1, 1996.


[5] In the Matter of the Care and Treatment of LEROY HENDRICKS, Appellant.


[6] Thomas J. Weilert, of Wichita, argued the cause, and E.J. Greeno, of Greeno & Boohar, of Wichita, and Laura B. Shaneyfelt, of Focht, Hughey & Calvert, of Wichita, were with him on the brief for appellant. David Lowden, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Carla Stovall, attorney general, were with him on the brief for appellee. Andrew L. Warren, of Overland Park, was on the brief for amicus curiae American Civil Liberties Union. David Gottlieb, of Lawrence, Jessica R. Kunen, chief appellate defender, Rebecca E. Woodman, assistant appellate defender, and Elizabeth Seale Cateforis, assistant appellate defender, were on the brief for amici curiae Kansas Defender Project/Appellate Defender Office. Page 247


[7] The opinion of the court was delivered by


[8] Leroy Hendricks appeals from a jury finding that he is a sexually violent predator as defined in the Sexually Violent Predator Act (the Act), K.S.A. 59-29a01 et seq., and from the district court's order of commitment, which was issued pursuant to that finding. The Act establishes a procedure, which is stated to be civil, for involuntarily committing sexually violent predators for long-term care and treatment. Hendricks challenges the constitutionality of the Act and also raises various other grounds for reversing the finding and order of the district court. The case was transferred to this court from the Court of Appeals pursuant to K.S.A. 20-3018 (c).


[9] This case was initiated by the district attorney's filing on August 17, 1994, of a petition in the district court seeking commitment of Leroy Hendricks as a sexually violent predator under the Act. The petition recited that it anticipated Hendricks' release from confinement on September 11, 1994, and stated the following criminal history:
"That on the 26th day of November, 1984 respondent Leroy v. Hendricks was convicted in the Eighteenth Judicial District, District court, Sedgwick County, Kansas, case No. 84CR1463 of a sexually violent offenses [sic] involving two victims as defined by law, to wit: K.S.A. 21-3503 Indecent Liberties with a Child; and K.S.A. 21-3503 Indecent Liberties with a Child; and has a history of prior sexual offenses from other jurisdictions, to wit: 1960 Spokane, Washington, Indecent Liberties with a Child; Seattle, Washington (1963 and 1967) Indecent Liberties with a Child (two separate cases)."
The petition further alleged that Hendricks "suffers from a mental abnormality or personality disorder which makes him likely to engage in predatory acts of sexual violence."


[10] At the time the petition was filed, Hendricks was serving a sentence of 5 to 20 years' imprisonment. The sentence had been imposed in accordance with the State's recommendation pursuant to a plea agreement. Under the agreement, Hendricks pled guilty in November 1984 to two counts of indecent liberties with a child. The State dismissed a third count of indecent liberties and refrained from requesting imposition of the Habitual Criminal Act.


[259 Kan. 248]





[11] On August 19, 1994, Hendricks appeared with counsel in district court. At the beginning of the hearing, Hendricks presented a motion to dismiss the petition. Counsel argued the following grounds for dismissal: insufficient factual allegations, failure to serve Hendricks with the petition, unconstitutionality of the Act, and breach of the plea agreement. The district court allowed the State to present evidence. In a journal entry filed on August 23, 1994, the district court found no fatal flaws in the petition or its service and reserved ruling on the constitutionality of the Act and the argument that the State was estopped by virtue of the plea agreement. The district court concluded that there was probable cause to believe that Hendricks is a sexually violent predator as defined in the Act and that he should be evaluated at Larned State Security Hospital to determine if he is.


[12] Upon advice of counsel, Hendricks did not participate in the evaluation at the state hospital. As a result, the first report issued by the hospital was based on available records and behavioral observations during his stay. After ruling that the nature of the Act is civil rather than criminal or quasi-criminal so that the privilege against self-incrimination does not apply, the district court granted the State's request for an order compelling discovery. The district court ordered another evaluation and ordered Hendricks to cooperate in it.


[13] A jury trial was conducted October 3-5, 1994. Hendricks was called as a witness by the State. He testified that he was 60 years old, that his history of sexual involvement with children began with his exposing himself to two girls in 1955, and that he had spent approximately half the time since then in prison or in psychiatric institutions. He explained that when he gets "stressed out," he is unable to control the urge to engage in sexual activity with a child. Hendricks agreed that he is a pedophile and that he is not cured of the condition.


[14] The State also called Charles Befort, the chief psychologist at Larned State Hospital. He testified that a personality disorder consists of traits or characteristics which tend to produce in most situations predictable but unacceptable or abnormal behavior. He testified that a pedophile is predisposed to commit sexual acts with


[259 Kan. 249]


children and that pedophilia in and of itself is not considered to be a personality disorder. Dr. Befort testified that during the previous week he had performed an evaluation of Hendricks. Dr. Befort believed it likely that Hendricks would engage in predatory acts of sexual violence or sexual activity with children if permitted to do so. The factors upon which he based this opinion were the aphorism that "behavior is a good predictor of future behavior," his professional knowledge that pedophiles tend to repeat their behavior, and Hendricks' poor understanding of his behavior. He testified that he did not believe Hendricks was mentally ill or had a personality disorder but that, as he interpreted the Act, pedophilia was a mental abnormality. He agreed that his interpretation of the statute was open to debate.


[15] William Logan, a forensic psychiatrist, testified on behalf of Hendricks. He testified about re-offense rates for sex offenders, as shown by various studies. Re-offense rates for persons who had received treatment ranged from 3 to 37 1/2 percent; for untreated persons the range was 10 to 40 percent. Dr. Logan expressed the opinion that, based on current knowledge, "a psychiatrist or psychologist cannot predict whether an individual is more likely than not to engage in a future act of sexual predation."


[16] The jury found that Hendricks is a sexually violent predator. He was committed to the custody of the Secretary of Social and Rehabilitation Services (SRS). Hendricks filed a motion to dismiss or, in the alternative, for a new trial which was based in part on evidence that apart from the regular staff of Larned State Hospital, professionals specifically dedicated to a treatment program for sexually violent predators were not available at the hospital. Although it had negotiated with two bidders who proposed to provide care and treatment under the Act, as of October 20, 1994, SRS had not entered into a contract with either. The motion was denied, and the district court ordered that Hendricks be transported to Larned State Security Hospital.


[17] The Act is a product of the 1994 legislative session. It is patterned on a very similar statutory scheme enacted in the state of Washington in 1990. Wash. Rev. Code § 71.09.010 et seq. (1992). A divided Washington Supreme Court held that that state's act was


[259 Kan. 250]


constitutional in Personal Restraint of Young, 122 Wn.2d 1, 857 P.2d 989 (1993). Thereafter, the United States District Court for the Western District of Washington disagreed with the Washington Supreme Court and granted Young's petition for writ of habeas corpus. Young v. Weston, 898 F. Supp. 744 (W.D. Wash. 1995). The district court concluded that the Washington act "violates the substantive due process component of the Fourteenth Amendment, the Ex Post Facto Clause, and the Double Jeopardy Clause." Young, 898 F. Supp. at 754. We will revisit these cases later in this opinion.


[18] The legislature's stated reasons for enacting a comprehensive scheme for commitment of sexually violent predators appear in K.S.A. 59-29a01:
"The legislature finds that a small but extremely dangerous group of sexually violent predators exist who do not have a mental disease or defect that renders them appropriate for involuntary treatment pursuant to the treatment act for mentally ill persons defined in K.S.A. 59-2901 et seq. and amendments thereto, which is intended to provide short-term treatment to individuals with serious mental disorders and then return them to the community. In contrast to persons appropriate for civil commitment under K.S.A. 59-2901 et seq. and amendments thereto, sexually violent predators generally have antisocial personality features which are unamenable to existing mental illness treatment modalities and those features render them likely to engage in sexually violent behavior. The legislature further finds that sexually violent predators' likelihood of engaging in repeat acts of predatory sexual violence is high. The existing involuntary commitment procedure pursuant to the treatment act for mentally ill persons defined in K.S.A. 59-2901 et seq. and amendments thereto is inadequate to address the risk these sexually violent predators pose to society. The legislature further finds that the prognosis for rehabilitating sexually violent predators in a prison setting is poor, the treatment needs of this population are very long term and the treatment modalities for this population are very different [from] the traditional treatment modalities for people appropriate for commitment under the treatment act for mentally ill persons defined in K.S.A. 59-2901 et seq. and amendments thereto, therefore a civil commitment procedure for the long-term care and treatment of the sexually violent predator is found to be necessary by the legislature."
This section is virtually identical to Wash. Rev. Code § 71.09.010 (1992).


[19] In K.S.A. 59-29a02, terms are defined as they are used in the Act. The following are relevant to our determination:


[259 Kan. 251]





[20] "(a) `Sexually violent predator' means any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence.
"(b) `Mental abnormality' means a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.
. . . .
"(e) `Sexually violent offense' means:
. . . .
(2) indecent liberties with a child as defined in K.S.A. 21-3503 and amendments thereto."
The legislature apparently anticipated that the principal use of the commitment procedure would follow incarceration. K.S.A. 59-29a03 provides that 60 days before the anticipated release of a person who may meet the criteria of a sexually violent predator, the agency with authority over the release must notify the prosecutor in the county where the person was charged. K.S.A. 59-29a04 prescribes initiation of the commitment procedure:
"When it appears that the person presently confined may be a sexually violent predator, the prosecuting attorney of the county where the person was convicted or charged or the attorney general if requested by the prosecuting attorney may file a petition, within 45 days of the date the prosecuting attorney received the written notice . . . alleging that the person is a sexually violent predator and stating sufficient facts to support such allegation."
In the next step, a judge determines whether probable cause exists to believe that the person named in the petition is a sexually violent predator. If so, the person is transferred to an appropriate facility for a professional evaluation. K.S.A. 59-29a05.


[21] K.S.A. 59-29a06 provides that "[w]ithin 45 days after the filing of a petition. . . the court shall conduct a trial to determine whether the person is a sexually violent predator." It further provides that the person is entitled to counsel and professionals "to perform an examination [on] such person's behalf" Last, it provides that trial will be to the court in the absence of a jury demand but that a written jury demand filed at least 4 days before trial by petitioner, respondent, or the judge will be honored. K.S.A.


[259 Kan. 252]


59-29a07 (a) provides that a determination that the person is a sexually violent predator must be made "beyond a reasonable doubt" or the person must be released. Where the court or jury is satisfied beyond a reasonable doubt that the person is a sexually violent predator,
"the person shall be committed to the custody of the secretary of social and rehabilitation services for control, care and treatment until such time as the person's mental abnormality or personality disorder has so changed that the person is safe to be at large. Such control, care and treatment shall be provided at a facility operated by the department of social and rehabilitation services." K.S.A. 59-29a07 (a).
[22] K.S.A. 59-29a08 requires an annual "examination of the person's mental condition" and an annual court review of the status of the committed person for the purpose of determining whether "probable cause exists to believe that the person's mental abnormality or personality disorder has so changed that the person is safe to be at large and will not engage in acts of sexual violence if discharged." If so, the court will schedule a hearing at which the burden of proof "shall be upon the state to prove beyond a reasonable doubt that the committed person's mental abnormality or personality disorder remains such that the person is not safe to be at large and if released is likely to engage in acts of sexual violence."


[23] Another means of release is set out in K.S.A. 59-29a10:
"If the secretary of the department of social and rehabilitation services determines that the person's mental abnormality or personality disorder has so changed that the person is not likely to commit predatory acts of sexual violence if released, the secretary shall authorize the person to petition the court for release. . . . The hearing shall be before a jury if demanded by either the petitioner or the county or district attorney or attorney general."
The burden of proof is the same as it would be at a hearing on an annual review. K.S.A. 59-29a10. The committed person may file a petition seeking release at any time, but broad restrictions apply to petitioning for discharge without approval of the Secretary of SRS and make release through this avenue seem improbable. See K.S.A. 59-29a11.


[24] K.S.A. 59-29a13 provides that "prior to the release of a person committed under this act, the secretary of the department of social


[259 Kan. 253]


and rehabilitation services shall give written notice of such release to any victim of the person's activities or crime."


[25] Hendricks challenges the constitutionality of the Act on various grounds, alleging the Act violates both the United States and Kansas Constitutions. He argues the Act violates the prohibition against double jeopardy and ex post facto laws, fails to provide equal protection and procedural or substantive due process, and is void as overly broad and vague.


[26] We first consider Hendricks' substantive due process challenge. In so doing, we must presume the Act is constitutional and resolve all doubts in favor of the Act's validity. If there is any reasonable way to construe the Act as constitutionally valid, we must do so. The Act must clearly violate the Constitution before it may be struck down. See Sedlak v. Dick, 256 Kan. 779, 793, 887 P.2d 1119 (1995); Chiles v. State, 254 Kan. 888, 897, 869 P.2d 707, cert. denied 130 L. Ed. 2d 88 (1994); Boatright v. Kansas Racing Comm'n, 251 Kan. 240, 243, 834 P.2d 368 (1992). The burden of proof is on the party challenging the constitutionality of the Act.


[27] The Due Process Clause of the Fourteenth Amendment to the United States Constitution prohibits a State's depriving any person of liberty "without due process of law." It "contains a substantive component that bars certain arbitrary, wrongful government actions `regardless of the fairness of the procedures used to implement them.'" Zinermon v. Burch, 494 U.S. 113, 125, 108 L.Ed. 2d 100, 110 S.Ct. 975 (1990).


[28] Hendricks contends that his substantive due process liberty interest is violated by indefinite confinement under K.S.A. 59-29a01 et seq. He relies on Foucha v. Louisiana, 504 U.S. 71, 118 L.Ed. 2d 437, 112 S.Ct. 1780 (1992). He represents the case as holding that due process prohibits a person's being involuntarily committed by a civil proceeding absent a finding that the person is both mentally ill and dangerous. It is his contention that the Act's requirement of a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence falls short of a finding of mental illness. He points out that "[t]he express purpose of the statutory scheme . . . is to confine persons `who do not have a mental disease or defect that renders them


[259 Kan. 254]


appropriate for involuntary treatment pursuant to the treatment act for mentally ill persons. . . .' K.S.A. 59-29a01."


[29] As a criminal defendant charged with aggravated burglary and illegal discharge of a firearm, Foucha, in 1984, had been found by a Louisiana trial court not guilty by reason of insanity. Under Louisiana law he was committed to a psychiatric hospital, whether or not he was then insane, absent proof that he was not dangerous. Release under the Louisiana law depended on proof by Foucha that he was not dangerous. In the United States Supreme Court it was Foucha's contention "that this scheme denies him due process and equal protection because it allows a person acquitted by reason of insanity to be committed to a mental institution until he is able to demonstrate that he is not dangerous to himself and others, even though he does not suffer from any mental illness." 504 U.S. at 73.


[30] In 1988, the superintendent of the facility in which Foucha was confined recommended that he be discharged or released. A three-member panel recommended that he be conditionally discharged. The two doctors appointed by the trial judge as a "sanity commission" agreed that Foucha's psychosis probably had been drug-induced, that he had recovered from that temporary condition, and that he showed no signs of psychosis or neurosis, but that he has "an antisocial personality, a condition that is not a mental disease and that is untreatable." 504 U.S. at 74. Thus, the doctors declined to certify that Foucha would not be a danger to himself or others. His confinement, therefore, was continued.


[31] The Supreme Court's analysis began with Addington v. Texas, 441 U.S. 418, 60 L.Ed.2d 323, 99 S.Ct. 1804 (1979), in which it was
"held that to commit an individual to a mental institution in a civil proceeding, the State is required by the Due Process Clause to prove by clear and convincing evidence the two statutory preconditions to commitment: that the person sought to be committed is mentally ill and that he requires hospitalization for his own welfare and protection of others." Foucha, 504 U.S. at 75-76.
A person who has been found not guilty of a criminal offense by reason of insanity, however, may be committed by a State "without satisfying the Addington burden with respect to mental illness and dangerousness." 504 U.S. at 76, citing Jones v. United States,


[259 Kan. 255]


463 U.S. 354, 363, 77 L.Ed.2d 694, 103 S.Ct. 3043 (1983), where the Supreme Court reasoned that guilt by reason of insanity established that (1) because of mental illness, (2) the defendant committed an act which constituted a criminal offense. Therefore, the Foucha Court held, it "could be properly inferred that at the time of the verdict, the defendant was still mentally ill and dangerous and hence could be committed." 504 U.S. at 76. Under the Constitution, confinement could continue until the person regained his sanity or no longer presented a danger to himself or others. See 504 U.S. at 77-78; Jones, 463 U.S. at 368.


[32] Foucha had regained his sanity; the basis for confining him as a defendant who was not guilty by reason of insanity no longer existed. The State perpetuated his confinement on the basis of his potentially being dangerous due to his antisocial personality. The Supreme Court concluded that Foucha's liberty interest in being freed from indefinite confinement in a mental facility could not be defeated on that basis.


[33] In distinguishing United States v. Salerno, 481 U.S. 739, 95 L. Ed. 2d 697, 107 S.Ct. 2095 (1987), the Supreme Court emphasized the strict limitations of pretrial detention of persons who pose a danger. Foucha, 504 U.S. at 82. In this context the Court stated:
"Here, in contrast, the State asserts that because Foucha once committed a criminal act and now has an antisocial personality that sometimes leads to aggressive conduct, a disorder for which there is no effective treatment, he may be held indefinitely. This rationale would permit the State to hold indefinitely any other insanity acquittee not mentally ill who could be shown to have a personality disorder that may lead to criminal conduct. The same would be true of any convicted criminal, even though he has completed his prison term. It would also be only a step away from substituting confinements for dangerousness for our present system which, with only narrow exceptions and aside from permissible confinements for mental illness, incarcerates only those who are proved beyond reasonable doubt to have violated a criminal law." (Emphasis added.) 504 U.S. at 82-83.
[34] The Washington Supreme Court found that Washington's sexual predator statute conformed to the due process standard of Addington and Foucha clear and convincing proof of mental illness and dangerousness. Personal Restraint of Young, 122 Wn.2d 1, 27, 857 P.2d 989 (1993). The requirement that commitment be predicated on dangerousness is said to be satisfied under the


[259 Kan. 256]


definition of sexually violent predator. Wash. Rev. Code § 71.09.020 (1) (1992) defines a sexually violent predator as a person "likely to engage in predatory acts of sexual violence."


[35] With regard to the requirement of mental illness, the court reasoned that the terms "mental abnormality," "mental disorder," and "mental illness" "are largely synonymous." 122 Wn. 2d at 27 n. 3. Thus, the reasoning continues, by defining a sexually violent predator as a person who suffers from a mental abnormality or personality disorder, the requirement is satisfied. At the heart of the court's reasoning is a selective and inconsistent use of the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (3d ed. rev. 1987) (hereafter cited as DSM-III-R). On the one hand, the court reasons that because "anti-social personality disorder" is defined in the DSM-III-R, it is a mental disorder, 122 Wn. 2d at 30, and on the other hand, that "mental abnormality" is a mental disorder, notwithstanding that it is not defined as such in the DSM-III-R. Simply stated, mental illness means whatever the Washington court says it means; it is this reasoning which was the basis for the court's conclusion that the Washington act did not conflict with Foucha.


[36] The apparent inconsistency with Foucha's having an antisocial personality rather than being mentally ill was at first glossed over by the Washington majority, which noted that Young suffered from an antisocial personality disorder, which "is classified as a mental disorder in the DSM-III-R." 122 Wn. 2d at 30. In a subsequent footnote, the majority offered the following justification:


[37] "Petitioners raise the issue that, under Foucha, it is impermissible to civilly commit someone who has an `antisocial personality,' because that condition is not a mental disorder. According to petitioners, the sex predator Statute violates this holding. This argument belies a careless reading of the Foucha facts. First, the condition in Foucha was an `antisocial personality.' This condition falls within the DSM-III-R section entitled `V Codes for Conditions Not Attributable to a Mental Disorder' and is formally designated `antisocial behavior'; it is not a mental disorder. As such, antisocial behavior cannot form the basis for civil commitment. Foucha v. Louisiana (112 S.Ct. 1780). The sex predator Statute, however, requires proof of a `personality disorder' as one of the alternative means of commitment. (Italics ours.) RCW 71.09.020. Unlike `antisocial behavior,' an `antisocial


[259 Kan. 257]


personality disorder' is a recognized mental disorder which is defined in the DSM-III-R, at 342." Young, 122 Wn. 2d at 37 n. 12.


[38] The Washington court's dissenters disputed this rationale. Their precept was that "the Statute . . . fails to meet the mental illness requirement." 122 Wn. 2d at 61. Thus, "[l]ike the statute in Foucha, [the Washington statute] violates substantive due process because it requires only dangerousness and not mental illness as a prerequisite to commitment." 122 Wn. 2d at 63. It was suggested in the dissenting opinion that the majority indulged in "psychiatric incantations." 122 Wn. 2d at 65. The dissenting justices warned that "by authorizing the indefinite confinement in mental facilities of persons who are not mentally ill, the Statute threatens not only the liberty of certain sex offenders, but the liberty of us all." 122 Wn. 2d at 60. The dissenting justices recognized the insidious effect of sanctioning the separation of the commitment of sexually violent predators from the statutory procedure for the commitment of the mentally ill. Once that is accomplished, the same reasoning could be applied to anyone who commits any designated offense and is labeled "mentally abnormal" or suffering from an "anti-social personality disorder."


[39] Foucha also was a focus for the federal district court in Young, which agreed with the dissenting Washington justices that there is no mental illness requirement in the statute. 898 F. Supp. at 749. The district court noted:
"The absence of a mental illness requirement is apparent both in the statutory language and in its legislative history. First, the legislature's findings expressly disavow the notion that the targeted group of persons are mentally ill. As explained in Wash. Rev. Code § 71.09.010, the target group is made up of individuals `who do not have a mental disease or defect that renders them appropriate for the existing involuntary treatment act.' Unlike persons with serious mental disorders the legislature concluded, sexual predators `have antisocial personality features which are unamenable to existing mental illness treatment modalities,' and for which the prognosis of cure is poor." 898 F. Supp. at 749.
After examining the statutory language and legislative history, the district court concluded


[40] "that the Sexually Violent Predator Statute, allowing as it does the indefinite confinement of persons who are not mentally ill, violates the substantive protections


[259 Kan. 258]


of the Due Process Clause. Predictions of dangerousness alone are an insufficient basis to continue indefinitely the incarceration of offenders who have completed their prison terms." 898 F. Supp. at 751.


[41] It is clear that the overriding concern of the legislature is to continue the segregation of sexually violent offenders from the public. Treatment with the goal of reintegrating them into society is incidental, at best. The record reflects that treatment for sexually violent predators is all but nonexistent. The legislature concedes that sexually violent predators are not amenable to treatment under K.S.A. 59-2901 et seq. If there is nothing to treat under 59-2901, then there is no mental illness. In that light, the provisions of the Act for treatment appear somewhat disingenuous. The federal district court in Young observed:
"The Statute forecloses the possibility that offenders will be evaluated and treated until after they have been punished, of course, it defies reason to suggest that the mental abnormalities or personality disorders causing violent sexual predation surface only at the termination of a prison term. Common sense suggests that such mental conditions, if they are indeed the cause of sexual violence, are present at the time the offense is committed. Setting aside the question of whether a prison term exacerbates or minimizes the mental condition of a sex offender, it plainly delays the treatment that must constitutionally accompany commitment pursuant to the Statute. The failure of the Statute to provide for examination or treatment prior to the completion of the punishment phase strongly suggests that treatment is of secondary, rather than primary, concern." 898 F. Supp. at 753.
[42] It is clear that the primary objective of the Act is to continue incarceration and not to provide treatment. Protecting the public is a legitimate exercise of the State's police power. Although the Act is a well-intentioned attempt by the legislature to accomplish that objective, it cannot be done in a constitutionally impermissible manner. Having said that, we need to point out that the legislature has provided the State with other options to achieve that objective and, in addition, has the authority to increase the penalty for sex crimes committed against children.


[43] The record indicates that Hendricks had at least three felony convictions prior to being charged in the present case. Under the Habitual Criminal Act, Hendricks' sentence could have been tripled. Also, Hendricks could have been sentenced to the maximum rather than the minimum sentence. Additionally, the sentences


[259 Kan. 259]


could have been ordered to run consecutively rather than concurrently. The State chose not to pursue any of these options. Instead, the State opted to enter into a plea bargain with Hendricks. The State agreed to dismiss one count, to recommend the statutory minimum sentence of 5 to 20 years, and to not seek imposition of the Habitual Criminal Act.


[44] The State now chooses to pursue the option under the Act to continue Hendricks' incarceration. The State contends that commitment under the Act requires "a finding of mental illness and dangerousness . . . consistent with Foucha." The only authority cited by the State is a passage from Young in which the Washington Supreme Court addresses only the element of dangerousness, never mentioning mental illness.


[45] We find no support in the Act that a finding of mental illness is required. As noted by the federal district court in Young, there is an absence of a mental illness requirement in the language of the Washington act. K.S.A. 59-29a01 states that sexually violent predators do not have a mental illness which "renders them appropriate for involuntary treatment pursuant to the treatment act for mentally ill person defined in K.S.A. 59-2901 et seq." The statute then contrasts sexually violent predators with "persons appropriate for civil commitment under K.S.A. 59-2901 et seq." in that they have "antisocial personality features which are unamenable to existing mental illness treatment modalities." By such language, the legislature recognizes that sexually violent predators are not mentally ill but, rather, have an "antisocial personality feature" or a "mental abnormality."


[46] Hendricks takes the position that, on the record in this case, the reasoning employed by the Washington court in upholding the constitutionality of its statute has no support. In other words, the record in this case will not support a finding that the statutory requirement of a mental abnormality or a personality disorder is equivalent to the constitutional standard of mental illness. We agree.


[47] The State's principal evidence concerning Hendricks' mental state was the testimony of Charles Befort, the chief psychologist at Larned State Security Hospital. He testified that he did not believe


[259 Kan. 260]


Hendricks was mentally ill or had a personality disorder. Dr. Befort described a person with a personality disorder as
"an individual who has a set of characteristics or traits that are enduring; that is, traits or characteristics that tend to result in their behaving in fairly standard predictable ways through most situations. Now, we all have those things, those traits and characteristics. It becomes a disorder when those traits and characteristics result in the person behaving or thinking, perhaps, or otherwise acting in such a way that it causes them trouble, causes society trouble, is considered abnormal, then it becomes a disorder."
Dr. Befort testified that an example of a personality disorder is antisocial personality. He described persons with antisocial personalities as


[48] "individuals who have disregard for social expectations, social values, social norms. Their behavior indicates that disrespect or unconcern about staying within acceptable boundaries of behavior. Usually these behaviors include disregard for others' rights. They may exploit other people to those persons' detriment. In the worst cases, of course, they turn to crime, criminal behavior. In non-criminal things, they tend to be untrustworthy. They're egocentric, those types of things."
He testified that pedophilia is not considered a personality disorder, but is considered a mental abnormality. As already noted, in Dr. Befort's opinion, Hendricks does not have a personality disorder. Personality disorder is not defined in the Act.


[49] With regard to the term "mental abnormality," Dr. Befort said that it is a phrase used by clinicians to discuss abnormality or deviance, but that it is not a diagnosis. The term is not defined in DSM-III-R. It therefore could not be used appropriately in a formal diagnosis. "Mental abnormality" is not a psychiatric or medical term but, rather, a legal term defined in the Act. K.S.A. 59-29a02 (b) provides: "`Mental abnormality' means a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others." Dr. Befort testified that this definition is circular in that certain behavior defines the condition which is used to predict the behavior. In a similar regard, the federal district court in Young stated that in the Washington statute's use of "personality


[259 Kan. 261]


disorder," "the only observed characteristic of the disorder is the predisposition to commit sex crimes." 898 F. Supp. at 750.


[50] We must determine if Hendricks is denied substantive due process based not on his lack of character but, rather, on the merits of his challenge. Mental illness is defined in K.S.A. 59-2902 (h) as meaning any person who: "(1) [i]s suffering from a severe mental disorder to the extent that such person is in need of treatment; (2) lacks capacity to make an informed decision concerning treatment; and (3) is likely to cause harm to self or others." Here, neither the language of the Act nor the State's evidence supports a finding that "mental abnormality or personality disorder," as used in 59-29a02 (a), is a "mental illness" as defined in 59-2902 (h). Absent such a finding, the Act does not satisfy the constitutional standard set out in Addington and Foucha. Justice White, speaking for the majority of the United States Supreme Court in Foucha, clearly stated that to indefinitely confine as dangerous one who has a personality disorder or antisocial personality but is not mentally ill is constitutionally impermissible. 504 U.S. at 78. Similarly, to indefinitely confine as dangerous one who has a mental abnormality is constitutionally impermissible.


[51] In addition, the State's own evidence is that Hendricks was being committed even though he does not suffer from mental illness. Hendricks is not mentally ill, and the criminal offenses for which he was imprisoned were not the result of mental illness. Therefore, as applied to Hendricks, the constitutionality of the Act depends upon a showing of dangerousness without a finding of mental illness. Clearly, the due process standard of Addington and Foucha is not met by the Act as applied to Hendricks. We conclude that the Act violates Hendricks' substantive due process rights.


[52] We hold that the Kansas Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Having so held, we need not consider the other issues raised by Hendricks in this appeal. We note that the dissenters have chosen to consider and decide those issues, notwithstanding that they have not been addressed or decided by the majority. That part of the dissent is dicta and for that reason does not warrant a response.


[259 Kan. 262]





[53] The judgment of the district court is reversed.