521 U.S. 346 (1997), argued 10 Dec. 1996, decided 23 June 1997 by vote of 5 to 4; Thomas for the Court, Kennedy in dissent. Kansas in 1994 passed the Sexually Violent Predator Act that required the indeterminate confinement in mental hospitals of persons deemed to be violent sex offenders suffering from a mental abnormality. The act established a mental abnormality as an inability to control sexual conduct to such an extent that the person became a menace to the health and safety of others.
Leroy Hendricks was an avowed pedophile with a forty-year history of molesting children. Only death, Hendricks had said, would end his practice of sexually abusing children. In 1984 he was convicted of taking indecent liberties with two thirteen-year-old boys. When his prison sentence for that crime ended, Kansas authorities sought to commit him under the act. Hendricks argued that such treatment was tantamount to being punished twice for the same crime and being subjected to an ex post facto law, both practices prohibited under the Due Process Clause of the Fourteenth Amendment. Kansas authorities, however, argued that placing Hendricks in a mental hospital was an involuntary civil rather than a criminal commitment. The Kansas Supreme Court sided with Hendricks, finding that in order for a person to be committed to a mental hospital he had to have a mental illness and not just a mental abnormality.
The United States Supreme Court reversed that decision by a vote of 5 to 4, a vote that suggests more division among the justices than actually existed. Both sides disagreed with the analysis of the Kansas Supreme Court and both turned instead directly to the arguments by Hendricks's counsel that the state court had ignored. Moreover, even the dissenters, led by Justice Stephen G. Breyer, went out of their way to offer guidance about how Kansas and other states could fashion laws that were constitutional. Justice Clarence Thomas, speaking for the Court's majority, made that effort unnecessary.
The majority relied on the Court's past decisions involving involuntary civil commitments to find that all the state had to do was establish an individual's dangerousness and mental incapacity, whether that incapacity resulted from mental illness or mental abnormality. Since Hendricks had readily admitted that the only way he would stop preying on children was to die, the Court found that the state of Kansas had grounds to commit him. The majority also rejected Hendricks's claim that he was being punished twice. Involuntary civil commitment to a mental hospital, Thomas concluded, was not punishment but a form of treatment. That there was no known cure for his condition did not mean that the self-admitted pedophile should be able to live outside a mental hospital. If anything, Justice Thomas argued, it meant that there was no more appropriate place for him. Thomas also noted that the state had erected a considerable degree of procedural protection, including the use of legal counsel to present evidence and cross-examine witnesses, that prevented inappropriate commitments.
The dissenters found the Kansas law unacceptable because it offered no treatment to Hendricks. As such, the decision to commit Hendricks could only be understood as a form of punishment. In order for the law in Kansas and similar measures in other states to stand, there had to be a treatment component to go along with the incarceration of the individual.