Kansas v. Hendricks,
521 U.S. 346 (1997)

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CERTIORARI TO THE SUPREME COURT OF KANSAS No. 95-1649. Argued December 10, 1996-Decided June 23,1997*

Kansas' Sexually Violent Predator Act establishes procedures for the civil commitment of persons who, due to a "mental abnormality" or a "personality disorder," are likely to engage in "predatory acts of sexual violence." Kansas filed a petition under the Act in state court to commit respondent (and cross-petitioner) Hendricks, who had a long history of sexually molesting children and was scheduled for release from prison. The court reserved ruling on Hendricks' challenge to the Act's constitutionality, but granted his request for a jury trial. After Hendricks testified that he agreed with the state physician's diagnosis that he suffers from pedophilia and is not cured and that he continues to harbor sexual desires for children that he cannot control when he gets "stressed out," the jury determined that he was a sexually violent predator. Finding that pedophilia qualifies as a mental abnormality under the Act, the court ordered him committed. On appeal, the State Supreme Court invalidated the Act on the ground that the pre commitment condition of a "mental abnormality" did not satisfy what it perceived to be the "substantive" due process requirement that involuntary civil commitment must be predicated on a "mental illness" finding. It did not address Hendricks' ex post facto and double jeopardy claims.


1. The Act's definition of "mental abnormality" satisfies "substantive" due process requirements. An individual's constitutionally protected liberty interest in avoiding physical restraint may be overridden even in the civil context. Jacobson v. Massachusetts, 197 U. S. 11, 26. This Court has consistently upheld involuntary commitment statutes that detain people who are unable to control their behavior and thereby pose a danger to the public health and safety, provided the confinement takes place pursuant to proper procedures and evidentiary standards. Foucha v. Louisiana, 504 U. S. 71,80. The Act unambiguously requires a pre commitment finding of dangerousness either to one's self or to others, and links that finding to a determination that the person suffers from a "mental abnormality" or "personality disorder." Generally, this Court has sustained a commitment statute if it couples proof of dangerousness

*Together with No. 95-9075, Hendricks v. Kansas, also on certiorari to the same court.


with proof of some additional factor, such as a "mental illness" or "mental abnormality," see, e. g., Heller v. Doe, 509 U. S. 312, 314-315, for these additional requirements serve to limit confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control. The Act sets forth comparable criteria with its pre commitment requirement of "mental abnormality" or "personality disorder." Contrary to Hendricks' argument, this Court has never required States to adopt any particular nomenclature in drafting civil commitment statutes and leaves to the States the task of defining terms of a medical nature that have legal significance. Cf. Jones v. United States, 463 U. S. 354, 365, n. 13. The legislature is therefore not required to use the specific term "mental illness" and is free to adopt any similar term. Pp. 356-360.

2. The Act does not violate the Constitution's double jeopardy prohibition or its ban on ex post facto lawmaking. pp. 360-371.

(a) The Act does not establish criminal proceedings, and involuntary confinement under it is not punishment. The categorization of a particular proceeding as civil or criminal is a question of statutory construction. Allen v. Illinois, 478 U. S. 364, 368. Nothing on the face of the Act suggests that the Kansas Legislature sought to create anything other than a civil commitment scheme. That manifest intent will be rejected only if Hendricks provides the clearest proof that the scheme is so punitive in purpose or effect as to negate Kansas' intention to deem it civil. United States v. Ward, 448 U. S. 242, 248-249. He has failed to satisfy this heavy burden. Commitment under the Act does not implicate either of the two primary objectives of criminal punishment: retribution or deterrence. Its purpose is not retributive: It does not affix culpability for prior criminal conduct, but uses such conduct solely for evidentiary purposes; it does not make criminal conviction a prerequisite for commitment; and it lacks a scienter requirement, an important element in distinguishing criminal and civil statutes. Nor can the Act be said to act as a deterrent, since persons with a mental abnormality or personality disorder are unlikely to be deterred by the threat of confinement. The conditions surrounding confinement-essentially the same as conditions for any civilly committed patient-do not suggest a punitive purpose. Although the commitment scheme here involves an affirmative restraint, such restraint of the dangerously mentally ill has been historically regarded as a legitimate nonpunitive objective. Cf. United States v. Salerno, 481 U. S. 739, 747. The confinement's potentially indefinite duration is linked, not to any punitive objective, but to the purpose of holding a person until his mental abnormality no longer causes him to be a threat to others. He is thus permitted immediate release upon a showing that he is no longer dangerous, and the longest



he can be detained pursuant to a single judicial proceeding is one year. The State's use of procedural safeguards applicable in criminal trials does not itself turn the proceedings into criminal prosecutions. Allen, supra, at 372. Finally, the Act is not necessarily punitive if it fails to offer treatment where treatment for a condition is not possible, or if treatment, though possible, is merely an ancillary, rather than an overriding, state concern. The conclusion that the Act is nonpunitive removes an essential prerequisite for both Hendricks' double jeopardy and ex post facto claims. Pp. 360-369.

(b) Hendricks' confinement does not amount to a second prosecution and punishment for the offense for which he was convicted. Because the Act is civil in nature, its commitment proceedings do not constitute a second prosecution. Cf. Jones, supra. As this commitment is not tantamount to punishment, the detention does not violate the Double Jeopardy Clause, even though it follows a prison term. Baxstrom v. Herold, 383 U. S. 107. Hendricks' argument that, even if the Act survives the "multiple punishments" test, it fails the "same elements" test of Blockburger v. United States, 284 U. S. 299, is rejected, since that test does not apply outside of the successive prosecution context. Pp. 369-370.

(c) Hendricks' ex post facto claim is similarly flawed. The Ex Post Facto Clause pertains exclusively to penal statutes. California Dept. of Corrections v. Morales, 514 U. S. 499, 505. Since the Act is not punishment, its application does not raise ex post facto concerns. Moreover, the Act clearly does not have retroactive effect. It does not criminalize conduct legal before its enactment or deprive Hendricks of any defense that was available to him at the time of his crimes. Pp.370-371.

259 Kan. 246, 912 P. 2d 129, reversed.

THOMAS, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, SCALIA, and KENNEDY, JJ., joined. KENNEDY, J., filed a concurring opinion, post, p. 371. BREYER, J., filed a dissenting opinion, in which STEVENS and SOUTER, JJ., joined, and in which GINSBURG, J., joined as to Parts II and III, post, p. 373.

Primary Holding

Convicted sex offenders who have mental disorders or other psychological conditions that make them likely to repeat their crimes may be assigned to civil commitment and long-term treatment.


Despite several spans of incarceration, Hendricks continued to molest children over a long period. He was convicted of taking indecent liberties with two teenage boys and scheduled for release after serving 10 years of his sentence. Near the same time, the state legislature sought to address the problem of repeat sex offenders by passing the Sexually Violent Predator Act. Based on this law, the state sought his civil commitment at the time of his scheduled release. Hendricks did not challenge his diagnosis of pedophilia or argue that it was treatable. A jury found beyond a reasonably doubt that he was a sexually violent predator, but Hendricks succeeded in a constitutional challenge to the Act in the Kansas Supreme Court.



  • Clarence Thomas (Author)
  • William Hubbs Rehnquist
  • Sandra Day O'Connor
  • Antonin Scalia
  • Anthony M. Kennedy

There is no violation of substantive due process here because states have the authority to forcibly restrain their citizens who pose a threat to those around them because they are unable to control their behavior. The Act does not implicate a double jeopardy issue because it does not impose prison sentences and does not have a punitive goal related to retribution or deterrence. Instead, it is therapeutic in nature and limited to civil commitment. The lack of a mental state requirement is permissible because it is focused on people with mental abnormalities rather than those who are conscious of their actions.


  • Anthony M. Kennedy (Author)


  • Stephen G. Breyer (Author)
  • John Paul Stevens
  • David H. Souter
  • Ruth Bader Ginsburg

Case Commentary

The Supreme Court declined to find that civil commitment constituted another criminal penalty after an individual has served his or her sentence. These supplementary penalties are permissible because they do not serve the retributive or deterrent principles of the criminal justice system and thus do not implicate double jeopardy.

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