KANSAS v. CRANE

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ORAL ARGUMENT OF CARLA J. STOVALL ON BEHALF OF THE PETITIONER

Chief Justice Rehnquist: We'll hear argument next in No. 00-957, Kansas v. Michael Crane.

General Stovall.

Mr. Stovall: Mr. Chief Justice, thank you, and may it please the Court:

The Kansas Supreme Court has erroneously read this Court's decision in Kansas v. Hendricks as requiring a showing that a potentially sexually violent predator cannot control his behavior and that such a requirement has supplemented the two requisites for civil commitment that this Court has approved in and since the Addington case.

Those two requirements, as you know, are mental illness and dangerousness.

The volitional impairment that the Kansas Supreme Court has ruled was constitutionally required for civil commitment ignores the fact that psychological disorders, such as antisocial personality, can impair an individual in behavior, cognitive, perceptual, emotional, and even intellectual capacities.

This Court has never indicated that there's anything constitutionally significant about a volitional impairment.

Unidentified Justice: There was a good deal of reference in our Hendricks opinion to the... to the apparent fact that the person there had what was volitionally impaired.

You're saying that was descriptive rather than essential to the holding?

Mr. Stovall: I'm saying it was descriptive.

Mr. Hendricks had apparently, and according to himself only, an inability to control his own behavior.

So, when the majority wrote about Mr. Hendricks, they used that kind of a description.

Unidentified Justice: Well, but we also relied on prior authority that made some reference to lack of control.

I don't think that what was done by the court below was totally off the wall in light of what was said in our prior cases.

What if there is some element but perhaps not to that extent?

How would you draw the line?

Mr. Stovall: Well, if this Court says that there needs to be some volitional impairment displayed, we would suggest that it just be merely some impairment.

To have a total impairment is something that the psychiatrists will even tell us is an impossible standard to show.

Unidentified Justice: You think that's the standard adopted in the court below that we're reviewing?

Mr. Stovall: I do.

Unidentified Justice: Total impairment?

Mr. Stovall: I do.

Unidentified Justice: Do you acknowledge that lack of ability to control one's unlawful conduct and volitional impairment are one and the same thing?

Mr. Stovall: No, I do not.

Unidentified Justice: Suppose I'm delusional and... and I think that... that people I see are Satan.

I'm fully able to control myself and... and do not attack people who are not Satan, but I think that some people are Satan.

Mr. Stovall: Your Honor, that's--

Unidentified Justice: Do you call that a lack of volitional control or delusion?

Mr. Stovall: --I would consider that delusional and not a... a lack of volitional control.

And the problem with the Kansas Supreme Court's decision is that it says the only thing that we consider is volitional impairment, but there are many kinds of impairments individuals have that are the result of their mental disorder, and so the Kansas court is necessarily limiting the psychiatric diagnosis to say only volitional impairment--

Unidentified Justice: What is there... I thought there could be cognitive impairments.

I think Justice Scalia has described one.

There could be emotional impairments.

Mr. Stovall: --Yes, sir.

Unidentified Justice: And there could be volitional impairments.

Now, is there any other category?

Mr. Stovall: Perceptual, intellectual.

There... there are many kinds that are talked about within the psychiatric material.

Unidentified Justice: But are these--

--Is there any kind relevant here other than volition?

Mr. Stovall: Yes.

I think they all are, all of those that we mentioned, and perhaps even those--

Unidentified Justice: But in this case?

Mr. Stovall: --Not... yes.

Unidentified Justice: I'm saying is there any one relevant to the particular individual at issue here other than volition.

Mr. Stovall: I don't believe psychiatrists can tell us what it is that... what kind of impairment Mr. Crane has.

They're not... the... the literature will say that psychiatrists can't tell whether or not Justice Scalia was acting because he's hallucinating or because it's some other volitional impairment, if it's an irresistible impulse, if you will, whether it's emotional, perceptual, intellectual.

They can't tell.

They can't get in somebody's mind.

And what they have to do then is simply rely on what the individual says.

Mr. Crane told this... the court below... he told the experts below, rather.

He didn't testify.

He told the experts below that he could control his behavior.

Mr. Hendricks had testimony that you refer to in the Hendricks decision that said he couldn't control his behavior.

So, because the psychiatrist can't make a determination objectively, we're left with a potential predator telling us who applies... who's eligible for this law and who isn't.

The other point I would make to this Court is that Mr. Hendricks said I can't control my urge to molest children.

But he could.

He never molested little children in front of their parents, never in front of his wife, never in front of law enforcement--

Unidentified Justice: Well, but that's not the premise that Hendricks proceeded upon.

Now you're... now you're saying that Hendricks rested on an insecure factual assumption.

Mr. Stovall: --I'm sorry, Your Honor.

I don't understand.

Unidentified Justice: Well, you're... are you trying to say that what we said in Hendricks was... was dictum or--

Mr. Stovall: I--

Unidentified Justice: --just was... was wrong in the... in the context of that case?

Mr. Stovall: --I'm certainly not saying you were wrong, Your Honor.

I'm saying that you did not create a third constitutional standard, that the impairments that I--

Unidentified Justice: Well, was the Court under some misimpression as... as to Hendricks' ability to control himself?

Mr. Stovall: --There wasn't evidence before this Court that would say whether or not Hendricks suffered from a volitional impairment or not.

All we have is what he himself said.

Unidentified Justice: But then, it seems to me, that we're back to square one.

I... one reading of Hendricks... and tell me if this is wrong... is that we want to find some measure of determining how dangerous this person is to society because that's in the statute.

And because many criminals are... have personality disorders and are dangerous to society, we want to narrow it somewhat.

So, we... so the Court added this volitional control aspect.

Is that a fair reading of Hendricks?

Mr. Stovall: Your Honor, I don't believe it is because Mr. Hendricks, in particular, didn't suffer from a personality disorder.

He had what is classified under the Kansas statute as an abnormality mentally and that was being pedophilia.

The Kansas statute specifically says there are two kinds of impairment that we could look at.

They're emotional as well as volitional.

Unidentified Justice: Well, is the test... are there different requirements if you proceed based on a personality disorder than if you proceed from a mental abnormality?

Mr. Stovall: Well, the Kansas court seems to think there is because there is no definition in the statute of a personality disorder.

It wasn't defined--

Unidentified Justice: Well, I was... I was suggesting that you thought there was based on the answer you gave to me.

Mr. Stovall: --No, Your Honor.

What--

Unidentified Justice: You think they're both one and the same.

You have no different requirements for mental abnormality or personality disorder.

In... in either case, the test for civil commitment is the same.

Mr. Stovall: --Based on the Kansas Supreme Court decision or based on the--

Unidentified Justice: Based on what you think the law ought to be and what the... and how the statute is properly interpreted.

Mr. Stovall: --We believe there is no distinction.

There should be no distinction between mental abnormality and personality disorder, that as long as we... we show that mental condition and the dangerousness, that there should not be a distinction.

Unidentified Justice: So, anybody with a personality disorder that's a danger to himself or others can be... can be civilly committed regardless of volitional control.

That's... that's your position.

Mr. Stovall: Right.

They have to have some sort of impairment in order to have the diagnosis of a personality disorder.

That's part and parcel of a diagnosis of the DSM.

But it would be our position it's not limited to volitional control, but could be that laundry list of emotional capacity... emotional impairment, which is even what the Kansas statute contemplates for mental--

Unidentified Justice: --the DSM that you're mentioning, if you look at the definition of personality disorder and they say pick three out of a list of seven, you could pick out habitually doesn't work, doesn't pay debts, is reckless, irritable.

That's something... I mean, it's considerably less than what is defined as an abnormality like pedophilia.

There are a lot of ordinary people who would fit that description.

Mr. Stovall: --What... what I want to be able to do today, Your Honors, is to convince you that actually that's not true, that an antisocial personality disorder is a severe mental pathology that really does give us sociopaths and psychopaths that cannot conform to our rules.

There are a lot of individuals in this country and certainly in our prisons that break the law, and they may suffer from antisocial personality traits, but that's entirely separate and distinct from having a full-blown diagnosis of an antisocial personality disorder.

Unidentified Justice: Well, your statute itself, when you're talking about a sexually violent predator, you say mental abnormality or personality disorder, which makes the person likely to engage in repeat acts of sexual violence.

So, that certainly qualifies the personality disorder.

It's not any personality disorder that would do that.

Mr. Stovall: That's exactly right, Your Honor.

The point is that it's a severe diagnosis, for one thing, and then secondly, it has to tie directly to the kind of dangerous behavior that we believe these individuals will commit if they don't have the treatment.

Unidentified Justice: And I take it what your... what your statute is trying to get at is... is something more than mere repetitive conduct, mere recidivism.

Is that fair to say?

Mr. Stovall: Absolutely.

Unidentified Justice: And... and is the element that distinguishes this kind of behavior from mere repetitiveness some element of lack of control, not necessarily volitional control, but some element of lack of control, perhaps lack of control resulting from delusion, perceptual difficulties and so on, but... but some... some aspect of the personality that... that gives that individual a... a lesser chance of controlling behavior in... in a way that avoids committing crimes.

Is that fair to say?

Mr. Stovall: With a slight exception.

It's the dangerousness, the risk of recidivism tied to a mental disorder.

To get the diagnosis of a mental disorder, there will be an impairment that's part and parcel of that.

Unidentified Justice: Right.

Mr. Stovall: But I want to be clear that we don't think there needs to be a... a third separate, very distinguishable constitutional element--

Unidentified Justice: I guess what I'm... I guess what I'm getting at is it... it seems sensible to call somebody who is just an habitual offender at some dangerous crime or serious crime dangerous.

And I take it that what the Kansas statute and other statutes like it is trying to get at, by speaking of mental disorder or personality disorder, is some extra element beyond the mere probability of doing an act which society has called dangerous.

And I think... I think--

Mr. Stovall: --That's 100 percent accurate.

That's exactly where we are, Your Honor.

And we think that having that mental abnormality or mental disorder gets us away from just predicting who's going to be dangerous.

Unidentified Justice: --But what is that... what is that?

That's exactly the issue.

What is it that you... how... what form of words will you use to define what counts as a mental disorder that will distinguish the people whom you want to civilly commit from your mine-run recidivist criminal?

Mr. Stovall: That they have to have a mental--

Unidentified Justice: Yes, but what... that's the problem in the case.

The problem is what counts as a mental disorder.

And the Kansas court thought what counts as a mental disorder is a total inability to control behavior.

Mr. Stovall: --That's correct.

Unidentified Justice: You say that's not the right definition.

Very well.

What is?

Mr. Stovall: What is in the statute, a severe mental--

Unidentified Justice: No, no.

What is the definition of the word, mental disorder, that appears in the statute?

If a person were to say every person who commits a crime, 15 times running, is a sociopath and thereby falls within DSM-IV, you're not going to permit that.

You want to distinguish that sociopath from a person who is really mentally disordered and he isn't your mine-run criminal.

All right.

Give me the form of words that will do it.

Mr. Stovall: --I believe they are there now, that--

Unidentified Justice: All that's there now is mental disorder.

Mr. Stovall: --Well, actually it's mental abnormality and personality disorder.

You and this Court in the Hendricks decision said that pedophilia certainly qualifies as a--

Unidentified Justice: Well, and here we have... we have here an antisocial personality disorder.

That... that was the diagnosis.

Mr. Stovall: --That's right.

Along with exhibitionism.

Unidentified Justice: And the State's own expert said in Mr. Crane's trial that approximately 75 percent of the prison population has antisocial personality disorder.

Now, this is an unusual statute where after the person serves a sentence for the crime, the State can then proceed again and get them locked up for a very long time because of his dangerousness.

Mr. Stovall: And the mental disorder.

Unidentified Justice: We're trying... okay.

But most of them... 75 percent of them was the testimony... suffer from antisocial personality disorder.

So, is the State going to be able to proceed again against 75 percent of the prison population?

What is the added element beyond an antisocial personality disorder?

Mr. Stovall: I would suggest to you that there doesn't need to be an additional element.

While I acknowledge the expert said 75 percent suffers from that in the deposition, he wasn't... he certainly didn't quote empirical studies to demonstrate that.

I would suggest that probably 90-95 percent of the prison population suffer from antisocial personality traits, but that's different than a disorder.

The antisocial personality disorder, psychopaths and sexual... psychopaths and sociopaths with actual diagnosis... and Ted Bundy is the best example of that.

These are really serious individuals not 75 percent of the population.

Unidentified Justice: What is it... what is it about them that we can isolate that shows that they are really serious beyond the mere repetition of their crime?

In other words, let me put the question this way.

Under... under the rule you want us to adopt in which, as you put it, there is no third element, why aren't you free to go after, let's say, every second offender of a sexual crime at the time of release and say, this person is dangerous within... sufficiently dangerous within the meaning of the statute to... to commit here?

Now, you're not claiming you can do that, but I want to know what it is that you have to prove that stands in the way of your being able to do that.

Mr. Stovall: We have to show a mental illness.

Unidentified Justice: And... and--

Mr. Stovall: And that's a psychiatrically approved condition that--

Unidentified Justice: --No, but--

Mr. Stovall: --you can get an expert--

Unidentified Justice: --anything in the DSM.

Mr. Stovall: --Right.

Unidentified Justice: Then you're--

Mr. Stovall: I'm sorry.

Not anything in the DSM.

Unidentified Justice: --Then you're back to Justice Ginsburg's question, which... which is very much like Justice O'Connor's.

If all you've got to do is satisfy one criterion in the DSM, you're going to pick up, in Justice O'Connor's reference to the experts, 75 percent probably of your prison population and... and based on the... the categorization Justice Ginsburg described, it would seem to me you would pickup a substantial part of the population outside of prison.

Now, I know you don't want to do that, but on your theory that there is... there is no third element 7 beyond this categorization, what stands in the way of your 8 doing that?

Mr. Stovall: The actual diagnosis that those folks actually have those diagnosis and are sexually violent.

Being sexually violent absolutely limits that.

What I would--

Unidentified Justice: All right.

Are you saying then that in the example Justice Ginsburg gave you... what was it... four out of seven in the list?

Mr. Stovall: --Three of seven.

Unidentified Justice: That... that as... as long as... as the... the expert witness says, yes, this person is subject to four out of those seven personality traits, that that person, if a sexual offender, could be locked up under the statute?

Mr. Stovall: They could be committed for treatment under this... this statute, yes, Your Honor.

Unidentified Justice: Wow.

Mr. Stovall: And Mr. Crane... what... what I would want you to know, though, is that it is not a... just because these individuals have committed crimes doesn't mean they have an antisocial personality disorder.

Of the seven criteria that are listed, that can certainly be supplemented by independent judgment of psychiatrists, of the--

Unidentified Justice: But it would be very... it... it would be... on Justice Ginsburg's example, it would be very easy to prove.

Mr. Stovall: --It could be if they actually have that diagnosis and have those personality traits and have done that behavior.

If I... although it is not in the record, what I would like this Court to know is that out of 5,000 individuals that have been screened in this process in Kansas, a mere 1... less than and a half percent have actually been civilly committed.

And we have--

Unidentified Justice: --the prosecutor then, but I mean, that's not something that... that we would generally do.

I mean, if we thought of all prosecutors as being wise and kind and good, then there would be a whole lot of rights that we wouldn't have to worry about.

Mr. Stovall: --I understand.

Unidentified Justice: But Justice Kennedy brought up in... in Hendricks a concern, and this case seems to fit that.

That is, this man entered a plea bargain.

Mr. Stovall: I'm sorry?

Unidentified Justice: He entered a plea bargain.

Right?

And he got a relatively short time.

And then, through this civil process, without beyond a reasonable doubt as the standard, just a preponderance--

--No.

There is a reasonable... beyond a reasonable doubt, yes.

Mr. Stovall: It is beyond a--

Unidentified Justice: But it is a civil proceeding.

Mr. Stovall: --It is but we have that higher standard.

Unidentified Justice: May I--

--Still, you could... you could get to where you were or even beyond.

You could get to the full amount of time that the person could have been sentenced if there had been no plea bargain, and if you... the maximum penalty because this is indefinite.

Right?

Mr. Stovall: It's indefinite with annual reviews, and they are allowed to be released when they have been determined safe to be at large.

And while it is not part of the record, I would want you to know that Mr. Crane is in transitional release now, after about years in this treatment program.

Unidentified Justice: What do the annual reviews... what do they deal with?

Is it possible at... at the end of an annual review for the person to be released?

Mr. Stovall: Yes.

Could go to the transitional release phase and then the conditional release phase and then ultimately to final discharge.

The annual release ensures... the annual review, rather, ensures that they're not warehoused, that they have an opportunity to come to the court on an annual basis.

Unidentified Justice: What does the court have to find in order to release them?

It is no longer beyond a reasonable doubt that--

Mr. Stovall: Then it's... the State has to show... I'm sorry.

The... the respondent has to show probable cause that they have changed.

The State, as a matter of policy, never objects when there are psychiatrists say they're safe to be in the next phase of the program or the next.

We've never objected to that.

We have six that are actually out of the facility now and in either transitional and/or conditional release.

Unidentified Justice: --And isn't it a frequent case, though, that the psychiatrists say, well, we can't tell until we clinically re-observe him and we can't clinically observe him until he's in a normal environment?

I mean, can psychiatrists--

Mr. Stovall: It hasn't happened in the six so far that... that have... have been released.

Unidentified Justice: --The American Psychiatric Association says in their brief that the, quote, antisocial personality disorder, end quote, which is DSM-IV at 701-706, applies to 40 to 60 percent among the male-sentenced population.

So, are you saying that 40 to 60 percent of the male-sentenced population could be committed for life civilly?

Are you saying that DSM-IV is not the standard, or are you saying that the American Psychiatric Association is wrong when it tells us 40 percent to 60 percent fit within the DSM-IV definition?

Mr. Stovall: In terms of the antisocial personality disorder alone, I don't know.

What I would say is that certainly 40 to 60 percent--

Unidentified Justice: All right.

Did they say how they know?

I... I... you know, I could--

--I... I don't know if they know or not.

If... if they stated--

--But I know they know better than I do.

Did they say that 40 to 60 percent are beyond a reasonable doubt suffering from an antisocial personality disorder?

Mr. Stovall: --I doubt that, and I doubt that... that it applies to--

Unidentified Justice: The reason... the point of my question is, is DSM-IV the standard and if DSM-IV is not the standard, what is?

That's what I think all of us, or several of us anyway, are trying to get to.

And it may be you... you cannot address that further, but if you could.

Mr. Stovall: --The DSM-IV absolutely is the standard in the psychiatric profession, but it is not the Bible and is not the only thing psychiatrists use.

They very much can supplement that with their own judgment, and in fact, that's part of the prefatory language in the DSM.

Unidentified Justice: May I ask you this question?

And I'm concerned about whether the instructions were adequate and whether you think the instructions were adequate.

And one of the reasons I have the question is they do not seem, on their face, to require any finding of volitional impairment.

And it seems to me we might look at volitional impairment in three different ways, one that has to be total inability to comply, some inability to comply, or that it's totally irrelevant to the issue.

Which of those three positions is yours?

Mr. Stovall: The last, that it's irrelevant to a diagnosis.

Unidentified Justice: There's no need to show any volitional impairment in order to obtain a commitment under this statute, so the instruction is correct.

Mr. Stovall: That... that is absolutely the State's position.

Unidentified Justice: And I think it's also unnecessary to show any other kind of impairment in addition to the two elements that you're describing.

Mr. Stovall: In order to get a... in terms of the instructions, that's true because to get a diagnosis, you have to have an impairment.

You can't be diagnosed with anything under DSM without having an impairment.

So, it's part and parcel.

Unidentified Justice: --the actual difficulty in controlling, not... not utter inability to control conduct, but difficulty in controlling conduct.

Don't you have to show that?

She said... she didn't say that.

Mr. Stovall: I don't believe we have to show that.

Unidentified Justice: How could the person be dangerous--

Mr. Stovall: Because they have this--

Unidentified Justice: --by reason of the personality disorder if the personality disorder does not produce a difficulty in... in controlling conduct?

Mr. Stovall: --In order to link together the--

Unidentified Justice: I must say, I thought... I thought you conceded that you have to show difficulty in controlling conduct, and if you don't, this is a quite different case from what I thought.

Mr. Stovall: --And I misspoke, Your Honor.

The... within the definition of the mental abnormality itself, we don't have to show lack of control, but the statutory language then leads us into that you have this mental abnormality or disorder that makes you likely or that predisposes you.

So, there is the connection that we have to show.

Unidentified Justice: Well, no--

--In other words--

--It predisposes you to do things you want to do.

Yes.

So that, it seems to me, doesn't answer the question.

Mr. Stovall: Our--

Unidentified Justice: Where is it in the statutory language that talks about volitional control?

It doesn't.

Mr. Stovall: --The mental abnormality is defined in the statute and it does mention both volitional and emotional capacity--

Unidentified Justice: A personality disorder does not.

Mr. Stovall: --It is not defined and I think that's because it's such a common term, the legislature didn't define it.

Mental abnormality was a very unique term.

So, I think they chose to define it, but they include emotional as well as volitional impairments there.

And if the Kansas Supreme Court is right, then you must strike out emotional because we could prove it under the statute by an emotional impairment that they say is not valid.

Only a volitional impairment is allowed.

And... and so--

Unidentified Justice: But you say emotional is, and... and I guess emotional impairment I suppose would describe every sociopath in the country.

I mean, I thought a sociopath by definition was somebody who just didn't care about society's standards.

Mr. Stovall: --That is absolutely one part--

Unidentified Justice: That would satisfy as an emotional impairment, wouldn't it?

Mr. Stovall: --It is an emotional impairment, yes, Your Honor.

That's true.

Unidentified Justice: So--

Mr. Stovall: But the Kansas court would say that--

Unidentified Justice: --in fact, we... I think we get back to the point that on your theory any sociopath who has committed a... a sexual offense can be committed under this statute upon release.

Mr. Stovall: --But it takes more than having the likelihood of committing more sex crimes and/or not having any empathy before you could be diagnosed with an antisocial personality disorder.

And so, there--

Unidentified Justice: It would take... it would take four out of seven on Justice Ginsburg's list.

Mr. Stovall: --It takes three, actually three of seven.

But it does make a significant diagnosis.

It is a mental pathology.

It isn't something that--

Unidentified Justice: Beyond a reasonable doubt.

Mr. Stovall: --Again, Your Honor, you're exactly right.

Beyond a reasonable doubt we have to be able to--

Unidentified Justice: If we take just those three things beyond a reasonable doubt, that definition doesn't say trait.

It says antisocial personality disorder, and you're familiar with this list.

You could be a liar.

You could be a malingerer and you could not pay your debts, and you'd make those three.

Mr. Stovall: --I would suggest to you that's part of the evaluative process of a psychologist then in saying this is someone who is likely to continue to be sexually violent.

If that's all they've done--

Unidentified Justice: The prosecutor says, DCM, this category fits, antisocial personality disorder, any three of... and I just gave you three from the list.

Mr. Stovall: --Right, but that doesn't mean that one of the experts would say that makes them fit under this law to be sexually violent predators.

They may have an antisocial personality disorder, but not that it makes them likely to re-offend, not that the... the psychiatrists at Larned would suggest they need to be civilly committed.

Unidentified Justice: General Stovall, you have read Hendricks, as all of us have.

And... and the part that's on substantive due process is not long.

It's four pages, and in those four pages, there are six references to people... not Hendricks, but people who are unable to control their behavior, confinement for those who are unable to control their dangerousness.

Are you... you're essentially saying we should just read out that language.

It was incautious.

Is that what you're telling us?

Mr. Stovall: I am because I don't believe that was central or necessary to the holding.

What I believe is in the majority opinion, you were using that to describe the mental abnormality, just to talk about... it's a substitute.

On... on page 360 of the--

Unidentified Justice: The holding... the holding was, indeed, described differently.

It at one point said... it did mention volitional impairment, but it said the following.

The Kansas act is plainly of a kind... these other civil commit... and statutes.

It requires a finding of future dangerousness and then links that finding to the existence of a mental abnormality or personality disorder that makes it difficult, if not impossible for the person to control his dangerous behavior.

That seems to me--

Mr. Stovall: --That's... that's exactly--

Unidentified Justice: --the crux of the holding of the case and that portion does not say anything about volitional impairment, just inability or difficulty in controlling behavior.

Mr. Stovall: --And what I would suggest to you is on page 360 of... of the opinion, it becomes very clear the way that that phrase and those phrases were being used.

This admitted lack of volitional control, coupled with prediction of future dangerousness adequately distinguish Hendricks from other dangerous people who are perhaps more properly dealt with through the criminal proceedings.

The way of saying admitted lack of volitional control is another way of simply talking about the mental impairment.

Couple that with dangerousness, and then you get the two historic requirements of mental illness and dangerousness that you've always required.

Unidentified Justice: If... if a jury instruction were couched in the terms that Justice Scalia just quoted, as stating the holding in Hendricks, would you find that jury instruction correct and satisfactory?

Mr. Stovall: I would find it longer than it needed to be and more inclusive than it needed to be because--

Unidentified Justice: Would it be... would it be constitutionally erroneous?

Would you--

Mr. Stovall: --Yes.

I... I would say that it... that it would be--

Unidentified Justice: --So, we--

Mr. Stovall: --because it goes beyond--

Unidentified Justice: --That's the holding in Hendricks.

We've got to pull back from Hendricks then in your view.

Mr. Stovall: --My view is that what you said in Hendricks was mental illness that makes somebody dangerous in sexually violent ways.

Unidentified Justice: Yes.

But if Justice Scalia's quotations correctly stated the holding in Hendricks, I think you are telling us we have got to draw back from Hendricks.

Mr. Stovall: Again, what I'm saying, the mental illness makes them likely to re-offend in sexually violent ways.

Unidentified Justice: --why you say we have... you say we have to draw back from that statement.

What... what in that statement is wrong?

Mr. Stovall: That... that we have to... that we have to show the... the difficulty of maintaining their behavior, of controlling their behavior.

Unidentified Justice: The statement said--

Mr. Stovall: I don't have the exact--

Unidentified Justice: --it requires a finding of future dangerousness and links that finding to the existence of a mental abnormality or personality disorder that makes it difficult, if not impossible, for the person to control his dangerous behavior.

What is wrong in that, other than leaving out beyond a reasonable doubt, which your statute contains?

Mr. Stovall: --Right.

Unidentified Justice: What is... what is wrong in it?

Mr. Stovall: Only that if... if we have to require the finding of that makes it difficult, if not impossible, for them to control behavior.

Unidentified Justice: You're concerned that the last sentence--

--that finding?

How are they future... wow.

Mr. Stovall: It's... it's because they're... they have a mental abnormality.

They've committed the past acts.

They're likely to do it in the future.

They have this diagnosis.

And so, it's part and parcel, and common sense would tell you that there's a link and a bridge, but not that it's a separate statutory term that needs to be shown and certainly not a constitutional one.

Unidentified Justice: Thank you, General Stovall.

We'll hear from you, Mr. Donham.

ORAL ARGUMENT OF JOHN C. DONHAM ON BEHALF OF THE RESPONDENT

Mr. Donham: Mr. Chief Justice, may it please the Court:

I think the major disagreement between the State... the State's view of this and Mr. Crane's view is not how dangerous is an individual, but why are they dangerous.

The Kansas Sexual Predator Act was clearly written to limit the application to those who are dangerous on account of their mental illness.

Unidentified Justice: You have a nice speaking voice, but could you raise it just a little bit?

Mr. Donham: I'm sorry, Judge.

I'm sorry, Your Honor.

Excuse me.

Is that better?

Okay.

Mr. Crane sought a jury instruction at his trial that was consistent with this Court's decision in Hendricks.

There is or was known to Mr. Crane at that time only three forms of a mental abnormality or a mental illness that historically satisfied involuntary, indefinite civil commitments, and that was the inability to care for oneself, the absolution of criminal responsibility or incompetency, and the inability to exercise self-control.

Now, that term, inability to exercise self-control, is defined in the passage of volitional control, the ability to exercise choice and to make a decision concerning your behavior.

Unidentified Justice: You say it's defined.

Where do we find that definition, Mr. Donham?

Mr. Donham: Your Honor, in the Kansas statute itself.

It's 59-29a02.

The definitional portion defines what a sexually violent predator is.

Unidentified Justice: Can you tell us where we find that in... in the papers?

It's the first page of the appendix to the petitioner's brief I think.

Mr. Donham: Your Honor, joint appendix... excuse me.

Joint appendix, page 157.

That would have been instruction number 9 that was given to the jury.

Unidentified Justice: We're not talking about the instruction.

We're talking about the statute.

What is the statutory provision that's in question that... that makes... that requires... you say this Kansas statute requires a volitional impairment.

Isn't that what you said?

Mr. Donham: No.

I'm sorry.

The... it's... it's our opinion that the Kansas Sexually Violent Predator Act must be limited to that narrow subgroup of recidivists, those individuals who cannot control their behavior.

Unidentified Justice: So that a recidivist who will be a recidivist because he's delusional and he thinks that every woman he meets is inviting crude sexual behavior... he's fully able to control himself if he doesn't think that the woman is inviting crude sexual behavior, but he happens to think that every woman he meets is inviting him, and he would not be covered because that is not a volitional impairment.

He cannot constitutionally be covered.

Mr. Donham: I agree with that, and... and may I... may I follow that up with perhaps... the Kansas Sexual Predator Act has a number of subsections, one of which is directly... directly focused on the type of individual you just mentioned in your hypothetical.

Unidentified Justice: Which one is that?

Subsection.

Mr. Donham: Your Honor, in the definition of a... sorry.

I'm sorry.

I don't have that.

It is the Kansas statute on the sexually violent predator--

Unidentified Justice: Well, I have it here with a number.

You referred to one subsection.

I'm asking you what subsection that is.

Mr. Donham: --Your Honor, it's in the statute.

I don't believe it's in any of the briefs or in the joint appendix.

But the Kansas Sexual Predator Act reaches those who have been absolved of criminal irresponsibility, those found--

Unidentified Justice: Well, but you're telling us now what the Kansas Sexual Predator Act does.

Cite us to some sections.

I don't... we're not interested in some general summary.

Mr. Donham: --Your Honor, I'm sorry.

I don't have the statute number at my fingertips.

Unidentified Justice: I thought your submission here was not that the act didn't cover your client, but you're... you're supporting the holding of the Kansas Supreme Court that the act does cover your client, but inasmuch as... insofar as it does, it's unconstitutional if it goes beyond volitional impairment.

Isn't... isn't that what this case is about?

Mr. Donham: Your Honor, this... the facts of the Crane case dealt specifically with Mr. Crane and Mr. Crane alone.

Prior to his criminal trial, he sought a defense of insanity, and that was ruled out by the State.

That left him with only one feasible mental illness which might qualify him for commitment under the Sexual Predator Act, as understood by Mr. Crane, following your decision in Hendricks.

And that was that he was unable to control his dangerous sexual behavior.

Unidentified Justice: Does not--

--Excuse me.

Can I just... I really don't know what we have before us here.

I understood the issue before this Court to be the fact that the Kansas Supreme Court held the Sexually Violent Predators Act, which we had just said in Hendricks was constitutional... the Kansas Supreme Court held it unconstitutional, yet again, as applied to someone who, like your client, has only an emotional or personality disorder rather than a volitional disorder.

Isn't that what the Kansas Supreme Court opinion said?

There has to be a volitional disorder or else it is unconstitutional to apply the Kansas statute.

Mr. Donham: That's what the Kansas Supreme Court said.

Unidentified Justice: All right.

Now tell us why... why it is constitutional to commit someone who... who makes sexual advances to women because of a volitional impairment, but not constitutional to commit someone who is delusional.

He is just as dangerous.

He is just as mentally impaired, and the only difference is he's delusional rather than cannot control his... his will.

Why is the one unconstitutional and the other constitutional?

I don't understand it.

Mr. Donham: Your Honor, if... if I have to fault the opinion in the... of the Kansas Supreme Court is... it is that it expanded its decision that was directly for Mr. Crane under the specific subsection of the Kansas Sexual Predator Act that dealt with individuals who had been found criminally responsible.

And it expanded that and its terminology to give effect to all commitments.

The... the Sexual Predator Act is and should be available for individuals such as your hypothetical, individuals who, because of some psychosis or hallucinations, have in effect lost their ability to control their behavior as well, although perhaps through some better recognized form.

There is... there are specific subsections of the Kansas Sexual Predator Act that would pull those people in for a commitment proceeding even though they don't go forward... forward with a trial or if they've been found not guilty by reason of insanity.

Mr. Crane, however, was in that unique section of people who have... who have been found legally responsible, who are competent to stand trial, who are imprisoned, and upon release this... this new group of individuals that are now subject to involuntary commitment for some mental disorder this Court found that the appropriate level of... of mental illness, if you will, for Mr. Hendricks was his professed inability to control his behavior, and that--

Unidentified Justice: You say we... we found that.

I realize that the opinion refers to the fact that he was unable to control his behavior.

Are you saying that was... that was the holding of the case?

Mr. Donham: --Your Honor, as... as I read... Hendricks stands for the proposition that the Kansas act is constitutional because, as with Mr. Hendricks, what it determined was that the State was not seeking to involuntarily commit people based on dangerousness alone, which would have been absolutely unconstitutional under Foucha v. Louisiana.

It seized upon this additional element which separated and distinguished Mr. Hendricks from the larger class of just garden variety recidivists.

It held that given that limiting factor--

Unidentified Justice: Which... which limiting factor was difficulty or impossibility of controlling behavior.

Right?

Mr. Donham: --The... I think the exact language of the Kansas statute, or at least of Mr. Hendricks... I'm sorry.

The opinion of Mr. Hendricks was that he admitted that he was unable to control his behavior.

The only way he himself could be sure he would never offend again was for him to die.

Unidentified Justice: I just read... I just read the portion of the... of the opinion that I think the most relevant, and what it says is difficult, if not impossible, to control behavior.

To show utter impossibility to control behavior would be very difficult.

That's... that's what it said.

Now... now, you equate that difficulty or if not impossibility to control behavior with volitional impairment.

Why do you... why do you equate that, as I think the Kansas Supreme Court did?

They... they seemed to say that if there's no volitional impairment, there cannot be this difficulty or impossibility of controlling behavior.

But that doesn't seem to me to be true.

Mr. Donham: Well, when Mr. Hendricks professed that he could not control his behavior, that's an indication that when confronted with temptation, he was unable to exercise his free will.

Unidentified Justice: That's right.

In Hendricks it happened to be a volitional impairment.

But why do you assert that that is the only reason for which one can say a person is unable to control his behavior?

Why isn't delusion a reason why a person can't control his behavior?

He doesn't know what he's confronted with.

Mr. Donham: Your Honor, I'm not trying to limit the... what a psychiatrist or a psychologist might be able to say affects the ability of an individual to conform his behavior to society's requirements.

I'm not standing here today as a psychiatrist or a psychologist.

It's a murky subject at best, and even those who work in it disagree.

The principal distinction that I take from the Hendricks decision is that Mr. Hendricks could not have been constitutionally involuntarily committed absent that additional element that set him apart from others who simply behave out of clear choice because they lack any respect or moral value.

Unidentified Justice: Well, I would have thought, really, that that is not what we limited it to in Hendricks, that a delusional lack of control would be entirely sufficient constitutionally as... as it relates to a lack of control, that it could be volitional or delusional, that the Kansas court went too far in requiring only volitional as a constitutional standard.

Mr. Donham: Your Honor, I would agree with that.

Unidentified Justice: Yes, so if you--

--You think the court erred.

Mr. Donham: I... I agree with that and I hope I haven't misled the Court.

I... I've been acting on behalf of Mr.--

Unidentified Justice: So, you agree that the Kansas Supreme Court went too far.

Mr. Donham: --I agree that they perhaps imposed too strict a limit on these additional elements that have to be found in order to involuntarily commit.

Unidentified Justice: But that there has to be some additional elements.

Mr. Donham: Absolutely.

Unidentified Justice: And the most appropriate one at hand in this case was volitional.

Were there any other additional elements that might have been argued in your case?

And if not, what are the additional elements that might... we might encounter in cases somewhat like this?

Mr. Donham: Your Honor, to the first part of your question, the only available argument that we could have made, the only conceivable jury instruction that would have been consistent with the contradictory evidence at trial and this Court's opinion in Hendricks was a... a demand for a jury instruction, requiring the jury to find that it was his mental abnormality or his personality disorder that made him be likely to re-offend because it interfered with his ability to control his behavior.

Unidentified Justice: So, what are the words that you want there?

That is, imagine I'm talking about the set of people who are very dangerous.

Imagine I'm talking about the set of people who are very dangerous because of a mental problem.

In defining mental problem, we could have one subset that has a cognitive disorder well beyond the normal person, including the normal prisoner.

We could have a set of people who have an emotional disorder well beyond what the ordinary prisoner recidivist has, and we could be talking about what the Kansas Supreme Court thought it was talking about in this case, the set of people who arguably have a volitional disorder.

In respect to that, it sounded to me, if that's the subject of this case, that the Kansas court used the word cannot control, whereas our Court used the word difficult, if not impossible, to control.

The only argument here being if there is some difference between those two, and I would think there is.

But how should we put that in your opinion?

Would it satisfy you if we said this case is about volitional disorders, and there the Constitution permits us to take a dangerous person and commit him civilly if his ability to control his behavior is significantly, a lot, quite a lot less than the ordinary person, including the ordinary prisoner sentenced in a... in a penitentiary?

How do you want... in other words, I'm looking for the proper standard.

Cannot sounds too tough.

Difficult, if not impossible, maybe that's all right.

But that's caused confusion.

So, what's your standard?

Mr. Donham: Your Honor, I know the State has touted the... the descriptive adjective adequate control.

I'm not sure if I know how to answer that.

I would think that if you perform the criminal act, your control was not adequate.

And so, it would seem that what the medical personnel are going to have to end up testifying and what eventually will be a question for the jury to decide is whether or not, given the opportunity and the chance for success at committing a criminal act, this individual chose to do that as an exercise of his or her free will or whether or not some overriding mental condition compelled them to act or disabled their capacity to refrain from acting.

Unidentified Justice: I don't... I really don't understand where we are now.

You're... you're objecting, as I understand it now, just to the jury instruction.

I mean, we didn't take this case to decide whether the jury instruction was right under the statute or not.

You don't challenge the statute.

You think the statute is fine.

It's just a bad jury instruction that occurred?

Mr. Donham: Your Honor, as... as I read the... the Kansas statute, the legislative body intended that the mental defect caused the individual to be likely to commit future predatory acts of violence.

Unidentified Justice: No.

It... it says exactly that, and you think that's okay.

Mr. Donham: Yes, and this Court--

Unidentified Justice: And the Kansas Supreme Court didn't think it was okay.

Mr. Donham: --I disagree with that.

I... I think... and allow me to follow up.

This Court in Hendricks reinforced the notion that the Kansas act is constitutional because there did exist, at least with Mr. Hendricks, an additional element that because of that, because of his mental illness, he was likely to offend.

The State... or the Kansas Supreme Court was presented simply the fact pattern in Mr. Crane's case, and... and that fact pattern was essentially... at the least the State's position was we don't have to prove any kind of additional element whatsoever.

Unidentified Justice: Well, they have to prove the causality.

You're saying they don't have to prove causality.

I mean, the way the statute reads is: who suffers from a mental abnormality or personality disorder which makes the person likely to engage in repeat acts of sexual violence.

It's not just that he's likely to... to commit future acts of sexual violence, but it also must be shown that the reason he's likely to do it is because that is caused by a mental abnormality or personality disorder.

I mean, it seems to me, the statute says exactly what you think it ought to say, and you're just... you're now complaining about the jury instruction?

Mr. Donham: We did object to the jury instruction because we felt it did not adequately address the theme that the State carried to the jury.

What the State presented to the jury, through all four of its expert witnesses, is that Mr. Crane satisfied the definition of a sexually violent predator because of his prior repetitive history of criminal offenses.

Their own expert, Dr. Mabugat, even testified on the stand that if... that in satisfying this definition, if the jurors only take his current mental status, coupled with his instant offense for the aggravated sexual battery, he's not a sexually violent predator.

Dr. Mabugat went on to testify--

Unidentified Justice: Well, just... just a minute, Mr. Donham.

The question presented by the State is... in its petition for certiorari is... is a very general one, whether the Fourteenth Amendment requires the State to prove that... and I think if you're going to bring up a jury instruction, you're required to cross petition for certiorari and raise that yourself.

You didn't do that, did you?

Mr. Donham: --Yes, sir, I did.

I... I filed in my response an objection to the--

Unidentified Justice: The Kansas Supreme Court held the jury instruction bad, did it not?

Mr. Donham: --I'm sorry.

I... I... on the petition?

Unidentified Justice: Just answer Justice Stevens' question.

Mr. Donham: I'm sorry, Your Honor.

On the--

Unidentified Justice: Is it not correct that the Kansas Supreme Court held that the jury was not properly instructed?

Mr. Donham: --That's correct.

Unidentified Justice: It was not properly instructed not because it was not instructed in accordance with the Kansas statute, but because if it had been instructed in accordance with the Kansas statute, that would have been unconstitutional.

Wasn't that the basis of the holding?

And you're saying the Kansas statute is not unconstitutional.

I mean, the whole basis for the Kansas Supreme Court thinking that the jury instruction, which followed the statute, was unconstitutional was, of course, that the statute was unconstitutional.

But it seems to me what you're saying here is that the statute is okay.

Didn't you say the statute is okay now?

Mr. Donham: What I said, Your Honor, is that the statute requires that an individual susceptible to being involuntarily committed must have a mental illness that makes him or her likely to re-offend.

Unidentified Justice: What it says, right?

Mr. Donham: That's correct.

What we ask... our jury instruction was intended to... to clarify or to put a face to what is intended by this word make.

The term make has a lot of definitions, and our... our version of it was that Crane's antisocial personality disorder had to compel him to behave in a certain way or--

Unidentified Justice: The Kansas Supreme Court appeared to hold that a person must be completely unable to control his behavior in order to meet what it thought the constitutional standard is under the Due Process Clause.

That's how I read the Kansas opinion, that it thought that there had to be a total, complete lack of control, not just substantial, not just adequate lack, a complete lack in order to meet U.S. constitutional standards.

Mr. Donham: --I agree with that.

It--

Unidentified Justice: Well, I don't think I do.

I don't think that's what Hendricks said was the constitutional standard.

Some lack of control, but I hadn't thought it had to be 100 percent or complete.

I thought the Kansas court got it wrong and went too far.

There has to be something there, but probably not complete.

Mr. Donham: --Your Honor, I suppose the difference may lie in... in what is meant by total or absolute lack of control.

No doubt an individual who has certain designs to commit an act may exercise at times some degree of control over his or her behavior.

The... the essential element in these involuntary commitment statutes that must be kept in mind is, number one, they're... they're civil.

They're not... they're not criminal.

Number two, it's to commit the person to a mental hospital for treatment of the mental disease or defect, and this mental disease or defect must be significant enough to warrant depriving this person of their liberty.

Unidentified Justice: Yes.

A... a significant or substantial lack of control, but to try to move toward an irresistible impulse standard would fly in the face of what the American Psychiatric Association thinks is likely.

I mean, it just... it seemed to me the Kansas court went somewhat too far in establishing the... what it thought the constitutional requirement was.

Mr. Donham: I'm sorry.

Was that a question?

Excuse me.

[Laughter]

Unidentified Justice: You can interpret it as you wish.

[Laughter]

You're free to dispute my interpretation of that--

Mr. Donham: Well, some of these terms are... are pretty slippery, and of course, they're all taken in context of what does a psychiatrist mean by them.

I'm not a psychiatrist or a psychologist, but I think that this Court can set a... a benchmark that can be followed by--

Unidentified Justice: --We're not psychiatrists or psychologists either.

That's... that's part of the problem in--

[Laughter]

--in our setting as precise a benchmark as you would like us to set.

Well, what... did the Kansas Supreme Court quote the very words from Hendricks that Justice Scalia referred to before to make this finding by linking future dangerousness to a mental abnormality, a personality disorder, that makes it difficult, if not impossible, to control his behavior?

That's what the Kansas Supreme Court repeated.

You seemed to have conceded that it went beyond that.

Mr. Donham: --No.

I think my concession to the... to the fact that the Kansas Supreme Court may have expanded its decision for Mr. Crane too far and... and by doing that, it in essence, if you will, limited the application of the act.

By taking the particular fact pattern of Mr. Crane for which the only available and the only reasonable qualifying mental defect would have been the inability to control behavior and saying that it's now required for all persons, what the Kansas Supreme Court did was effectively cut off, I think unfairly, the ability of the State to incapacitate people who have other type of significant mental disorders such as Justice Scalia has pointed out, the hallucinations, the psychoses.

Those are a different breed of mental illnesses with different effects.

Unidentified Justice: Would... would your objections and the... and perhaps the Kansas court's objections have been met if instruction no. 9 at page 156 of the joint appendix said that mental abnormality means a congenital or acquired condition substantially affecting the emotional or volitional capacity?

Mr. Donham: If I were to write the instruction, it would have read it is a acquired or congenital condition that affects the emotional or volitional capacity to the degree that the person is unable to exercise self-control.

Unidentified Justice: Just... what about a person who thinks other people are... are like rocks?

You know?

I mean, he can control himself.

He just has a totally bizarre emotional... totally bizarre emotional situation, an autistic kind of person unable to understand emotions at all.

What do we do with that person, absolutely mad as a hatter, in common parlance, and also dangerous?

Mr. Donham: Well, if he's dangerous because--

Unidentified Justice: Yes.

He's dangerous because he's autistic or has no sense whatsoever of what a feeling is.

All right?

Now, can he control himself?

Absolutely.

He has no volitional impairment.

He just has this bizarre emotional situation.

What do we do about that person?

And, of course, I'll imagine it as bizarre as you want.

[Laughter]

Mr. Donham: --I... I would say that he's an appropriate for an involuntary commitment under the provision--

Unidentified Justice: Right.

So, what standard there do we use?

Mr. Donham: --That he would be unable--

Unidentified Justice: So, they can't do it with control because control has to do with volition.

Mr. Donham: --This would be a person susceptible to commitment because he's unable to care for himself, and therefore poses a danger.

Unidentified Justice: No.

He cares for himself perfectly.

He just has this emotional impairment.

What do we do?

It's a problem.

Mr. Donham: Yes, it is.

It's a significant problem because were talking about depriving people of their liberty, and we're... we're basing it on the testimony of people who don't fully understand their field of expertise at times, which is why this Court should set a high benchmark to preclude the inadvertent commitment of someone who really shouldn't have gone to a mental hospital.

I'm particularly distressed over the use of an antisocial personality disorder in that it is... it is given simply to someone who has a history of offenses.

So, that history of offenses provides the basis for the diagnosis, and it provides the basis for the prediction of future dangerousness.

In effect, the State seeks to involuntarily commit someone because they have a long prior criminal history.

My time is almost up.

If there are no more questions.

Chief Justice Rehnquist: Thank you, Mr. Donham.

The case is submitted.

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: The opinion of the court in No. 00-957, Kansas against Crane will be announced by Justice Breyer.

Argument of Justice Breyer

Mr. Breyer: This court has grievously said that the constitution permits the civil commitment of a Dangerous sexual offender where first, the state applying proper procedures; second, determines that offender remained dangerous; and third, as a result of a mental illness or abnormality.

In this case, which arises under Kansas Sexually Violent Predator Act, we assumed that the procedures are proper and that the offender is dangerous, but what does the constitution require Kansas in order to show that it is a mental illness or abnormality, rather than say, ordinary criminal propensities that make the sexual offender dangerous. We previously considered the same Act in Kansas versus Hendricks, and in that case, we said that the offender’s inability to control his behavior satisfied any kind of constitutional due process requirements.

In this case, the State of Kansas says that the Kansas Supreme Court reading our prior opinion in Hendricks thought it meant that the State had to show he could not control his behavior at all, and Kansas adds that is far too strict to constitutional interpretation that is not what we said.

We agree with Kansas that the constitution does not require a State when it wants to commit civilly a dangerous sexual offender to show that the offender is totally unable to control his sexually dangerous behavior, but we do not agree with the State in so far as it seems to claim that the constitution would permit this kind of civil commitment without any lack of control requirement.

Rather, in our view the constitution requires the state to demonstrate a serious difficulty in controlling behavior and that difficulty when viewed in light of, for example the nature of the psychiatric diagnosis and the severity of the mental abnormality itself must distinguish the dangerous offender whose serious mental abnormality or illness or disorder subjects him to civil commitment.

It must distinguish that kind of a person from a dangerous but typical criminal recidivist convicted in an ordinary criminal case.

We recognize that this standard does not draw a mathematically precised bright line, but the constitution safeguards in the area of mental illness are not always best enforced through bright lines.

Such lines do not take into account the definitional leeway that the constitution grants the states, nor do they take into account the relationship between law and psychiatric, a science that must inform though it cannot control the ultimate legal determination.

A science that makes judgments and distinctions that are related to that which do not precisely mirror legal distinctions and which is a science that changes or evolves as it advances.

Consequently, we have tried to provide constitutional guidance in this area both here and in our earlier case Hendricks by proceeding deliberately and contextually elaborating the general constitutional standards and objectives as circumstances require.

The State also argues that the Kansas Supreme Court wrongly limited the class of individuals that the constitution permits it civilly to commit under this Act to those suffering from volitional defects that we ruled out commitment of those suffering from emotional or cognitive illnesses.

This court has not previously used those particular contexts when it has tried to make concepts when it has tried to make constitutional distinction.

We did not consider in Hendricks whether the constitution would permit civil confinement of the dangerous sexual offender whose illness or abnormality was solely emotional rather volitional and the case before us does not give us an opportunity to decide that either.

Consequently, we vacate the judgment of the Kansas Supreme Court and we remand for further proceeding.

Justice Scalia has filed a dissenting opinion which Justice Thomas has joined.