How Little Control? Volition and the Civil Confinement of Sexually Violent Predators. (Case Note‪)‬

Traditionally, civil confinement has been employed for the treatment and incarceration of non-responsible, non-culpable actors such as the severely mentally ill or the legally and criminally insane. (1) Due to concern about the danger repeat sexual offenders pose to public safety, many states, including Kansas, have passed statutes that permit civil confinement of sexually violent predators after completion of a criminal sentence. (2) In 1997, the Supreme Court upheld the Kansas civil confinement statute in Kansas v. Hendricks. (3) The Court decided that a state could civilly confine a previously incarcerated sexually violent predator, due to the likelihood that the offender could engage in future criminal acts. Hendricks, however, left open the issue of whether civil confinement under that statute requires a finding that the defendant cannot control his dangerous behavior. Last term, in Kansas v. Crane, (4) the Supreme Court held that Hendricks did not establish a requirement of a determination of total or complete lack of control, but that the Constitution would not permit commitment of a dangerous sexual offender without any lack-of-control determination. (5) By trying to draw a fine line between the actual Kansas statute, (6) which does not mandate a volitional control requirement, and the prior determination of the Kansas Supreme Court, which read Hendricks as requiring a total volitional impairment for civil confinement, (7) the Court failed to provide a workable standard for the civil confinement of violent sexual predators. The holding of the Court is impermissibly vague and ultimately infringes upon both the precedent set by Hendricks and the right of a state legislature to establish its own standards on such matters. On January 6th, 1993, Michael Crane engaged in two incidents that led to his arrest and imprisonment. First, he exposed himself to a tanning salon attendant. (8) Thirty minutes later, at a video store, Crane, waiting until he was the only customer in the store, grabbed the clerk from behind with his genitals exposed, ordered her to perform a sexual act, and threatened to rape her, before running out. (9) Crane was eventually convicted of lewd and lascivious behavior and pled guilty to aggravated sexual battery for these two incidents. (10)