Petitioner was charged in an Illinois Circuit Court with
committing the crimes of unlawful restraint and deviate sexual
assault, and the State filed a petition to have him declared a
sexually dangerous person within the meaning of the Illinois
Sexually Dangerous Persons Act (Act). Pursuant to the Act, the
court ordered petitioner to submit to two psychiatric examinations.
At the bench trial on the petition, the State presented the
examining psychiatrists' testimony, over petitioner's objection
that they had elicited information from him in violation of his
privilege against self-incrimination. Based on that testimony, as
well as that of the victim of the sexual assault, the court found
petitioner to be a sexually dangerous person under the Act. The
Illinois Appellate Court reversed, holding that the trial court had
improperly relied on testimony in violation of petitioner's
privilege against self-incrimination. The Illinois Supreme Court
reversed, holding that that privilege was not available in sexually
dangerous person proceedings because they are "essentially civil in
nature."
Held:
1. Proceedings under the Act are not "criminal" within the
meaning of the Fifth Amendment's guarantee against compulsory
self-incrimination. The Act's aim is to provide treatment, not
punishment, for persons adjudged sexually dangerous. That the State
cannot file a sexually dangerous person petition under the Act
unless it has already filed criminal charges against the person in
question, and thus has chosen not to apply the Act to the larger
class of mentally ill persons who might be found sexually
dangerous, does not transform a civil proceeding into a criminal
one. The State must prove more than just the commission of a sexual
assault. It must prove the existence of a mental disorder for more
than one year and a propensity to commit sexual assaults, in
addition to showing that propensity through sexual assault. The
fact that the Act provides some of the safeguards applicable in
criminal proceedings -- rights to counsel, to a jury trial, and to
confront and cross-examine witnesses, and the requirement that
sexual dangerousness be proved beyond a reasonable doubt -- cannot
itself turn the proceedings under the Act into criminal proceedings
requiring the full panoply of rights applicable there. And the fact
that a person adjudged sexually dangerous under the Act is
committed to a maximum security institution that also
Page 478 U. S. 365
houses convicts needing psychiatric care does not make the
conditions of that person's confinement amount to "punishment," and
thus render "criminal" the proceedings that led to confinement.
In re Gault, 387 U. S. 1,
distinguished. Pp.
478 U. S.
374-375.
2. The Fourteenth Amendment's guarantee of due process does not
require application of the Fifth Amendment's privilege against
self-incrimination to proceedings under the Act. That privilege is
not designed to enhance the reliability of a factfinding
determination, but stands in the Constitution for entirely
independent reasons. Pp.
478 U. S.
374-375.
107 Ill. 2d
91,
481 N.E.2d
690, affirmed.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER C.J., and WHITE, POWELL, and O'CONNOR, JJ., joined. STEVENS,
J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and
BLACKMUN, JJ., joined,
post, p.
478 U. S.
375,
JUSTICE REHNQUIST delivered the opinion of the Court.
The question presented by this case is whether the proceedings
under the Illinois Sexually Dangerous Persons Act (Act),
Ill.Rev.Stat., ch. 38, � 105-1.01
et seq. (1985), are
"criminal" within the meaning of the Fifth Amendment's guarantee
against compulsory self-incrimination.
Petitioner Terry B. Allen was charged by information in the
Circuit Court of Peoria County with committing the crimes of
unlawful restraint and deviate sexual assault. Shortly thereafter,
the State filed a petition to have petitioner declared a sexually
dangerous person within the meaning of
Page 478 U. S. 366
the Act. [
Footnote 1] After
a preliminary hearing on the information, the criminal charges were
dismissed for lack of probable cause, and the petition was
apparently dismissed as well. Petitioner was then recharged by
indictment, and the petition to declare him sexually dangerous was
reinstated.
Pursuant to the Act, with petitioner and counsel present, the
trial court ordered petitioner to submit to two psychiatric
examinations; the court explained the procedure, as well as
petitioner's rights under the Act, and petitioner indicated that he
understood the nature of the proceedings. At the bench trial on the
petition, the State presented the testimony of the two examining
psychiatrists, over petitioner's objection that they had elicited
information from him in violation of his privilege against
self-incrimination. The trial court ruled that petitioner's
statements to the psychiatrists were not themselves admissible, but
allowed each psychiatrist to give his opinion based upon his
interview with petitioner. Both psychiatrists expressed the view
that petitioner was mentally ill and had criminal propensities to
commit sexual assaults. Petitioner did not testify or offer other
evidence at the trial. Based upon the testimony of the
psychiatrists, as well as that of the victim of the sexual assault
for which petitioner had been indicted, the trial court found
petitioner to be a sexually dangerous person under the Act.
Consistent with the requirements of Illinois case law,
see
People v. Pembrock, 62 Ill. 2d
317, 321-322,
342 N.E.2d
28, 29-30 (1976), the court made three specific findings: that,
at the time of trial, petitioner had been suffering from a mental
disorder for not less than one year; that he had propensities to
commit
Page 478 U. S. 367
sex offenses; and that, by his actions, he had demonstrated such
propensities.
The Appellate Court of Illinois for the Third District reversed,
over one dissent. Relying on
Estelle v. Smith,
451 U. S. 454
(1981), the court held that the trial court had improperly relied
upon testimony obtained in violation of petitioner's privilege
against self-incrimination. 123 Ill.App.3d 669, 463 N.E.2d 135
(1984). [
Footnote 2]
The Supreme Court of Illinois unanimously reversed the Appellate
Court and reinstated the trial court's finding that petitioner was
a sexually dangerous person.
107 Ill. 2d
91,
481 N.E.2d
690 (1985). It held that the privilege against
self-incrimination was not available in sexually dangerous person
proceedings, because they are "essentially civil in nature," the
aim of the statute being to provide "treatment, not punishment."
Id. at 99-101, 481 N.E.2d at 694-695. The court also found
support for its ruling in
Mathews v. Eldridge,
424 U. S. 319
(1976). Observing that the State's interest in treating, and
protecting the public from, sexually dangerous persons would be
"almost totally thwarted" by allowing those persons to refuse to
answer questions posed in psychiatric interviews, and that the
privilege would be "of minimal value in assuring reliability," the
court concluded that "due process does not require the application
of the privilege." 107 Ill. 2d at 102-103, 481 N.E.2d at 696.
Finally, the court held that
"a defendant's statements to a psychiatrist in a compulsory
examination under the provisions here involved may not be used
against him in any subsequent
Page 478 U. S. 368
criminal proceedings."
Id. at 104, 481 N.E.2d at 696. We granted certiorari,
474 U.S. 979 (1985), and now affirm.
The Self-Incrimination Clause of the Fifth Amendment, which
applies to the States through the Fourteenth Amendment,
Malloy
v. Hogan, 378 U. S. 1 (1964),
provides that no person "shall be compelled in any criminal case to
be a witness against himself." This Court has long held that the
privilege against self-incrimination
"not only permits a person to refuse to testify against himself
at a criminal trial in which he is a defendant, but also
'privileges him not to answer official questions put to him in any
other proceeding, civil or criminal, formal or informal, where the
answers might incriminate him in future criminal proceedings.'"
Minnesota v. Murphy, 465 U. S. 420,
465 U. S. 426
(1984) (quoting
Lefkowitz v. Turley, 414 U. S.
70,
414 U. S. 77
(1973));
McCarthy v. Arndstein, 266 U. S.
34,
266 U. S. 40
(1924). In this case, the Illinois Supreme Court ruled that a
person whom the State attempts to commit under the Act is protected
from use of his compelled answers in any subsequent criminal case
in which he is the defendant. What we have here, then, is not a
claim that petitioner's statements to the psychiatrists might be
used to incriminate him in some future criminal proceeding, but
instead his claim that, because the sexually dangerous person
proceeding is itself "criminal," he was entitled to refuse to
answer any questions at all.
The question whether a particular proceeding is criminal for the
purposes of the Self-Incrimination Clause is, first of all, a
question of statutory construction.
See United States v.
Ward, 448 U. S. 242,
448 U. S. 248
(1980);
One Lot Emerald Cut Stones and One Ring v. United
States, 409 U. S. 232,
409 U. S.
236-237 (1972). Here, Illinois has expressly provided
that proceedings under the Act "shall be civil in nature," �
105-3/01, indicating that, when it files a petition against a
person under the Act it intends to proceed in a nonpunitive,
noncriminal manner, "without regard to the procedural protections
and restrictions available in criminal prosecutions."
Page 478 U. S. 369
Ward, supra, at
448 U. S. 249.
As petitioner correctly points out, however, the civil label is not
always dispositive. Where a defendant has provided "the clearest
proof " that "the statutory scheme [is] so punitive either in
purpose or effect as to negate [the State's] intention" that the
proceeding be civil, it must be considered criminal, and the
privilege against self-incrimination must be applied. 448 U.S. at
448 U. S.
248-249. We think that petitioner has failed to provide
such proof in this case.
The Illinois Supreme Court reviewed the Act and its own case law
and concluded that these proceedings, while similar to criminal
proceedings in that they are accompanied by strict procedural
safeguards, are essentially civil in nature. 107 Ill. 2d at
100-102, 481 N.E.2d at 694-695. We are unpersuaded by petitioner's
efforts to challenge this conclusion. Under the Act, the State has
a statutory obligation to provide "care and treatment for [persons
adjudged sexually dangerous] designed to effect recovery," � 105-8,
in a facility set aside to provide psychiatric care,
ibid.
[
Footnote 3] And "[i]f the
patient is found to be no longer dangerous, the court shall order
that he be discharged." � 105-9. While the committed person has the
burden of showing that he is no longer dangerous, [
Footnote 4] he may apply for release at any
time.
Ibid. [
Footnote
5]
Page 478 U. S. 370
In short, the State has disavowed any interest in punishment,
provided for the treatment of those it commits, and established a
system under which committed persons may be released after the
briefest time in confinement. The Act thus does not appear to
promote either of "the traditional aims of punishment --
retribution and deterrence."
Kennedy v. Mendoza-Martinez,
372 U. S. 144,
372 U. S. 168
(1963).
Cf. Addington v. Texas, 441 U.
S. 418,
441 U. S. 428
(1979) (in Texas, "civil commitment state power is not exercised in
a punitive sense");
French v. Blackburn, 428 F.
Supp. 1351, 1358-1359 (MDNC 1977), summarily
aff'd,
443 U.S. 901 (1979) (State need not accord privilege against
self-incrimination in civil commitment proceeding).
Petitioner offers several arguments in support of his claim
that, despite the apparently nonpunitive purposes of the Act, it
should be considered criminal as far as the privilege against
self-incrimination is concerned. He first notes that the State
cannot file a sexually dangerous person petition unless it has
already brought criminal charges against the person in question. �
105-3. In addition, the State must prove that the person it seeks
to commit perpetrated "at least one act of or attempt at sexual
assault or sexual molestation." 107 Ill. 2d at 105, 481 N.E.2d at
697. To petitioner, these factors serve to distinguish the Act from
other civil commitments, which typically are not tied to any
criminal charge and which petitioner apparently concedes are not
"criminal" under the Self-Incrimination Clause. Tr. of Oral Arg.
23-24. We disagree. That the State has chosen not to apply the Act
to the larger class of mentally ill persons who might be found
sexually dangerous does not somehow transform a civil proceeding
into a criminal one. And, as the State points out, it must prove
more than just the commission of a sexual assault: the Illinois
Supreme Court, as we noted above, has construed the Act to require
proof of the existence of a mental disorder for more than one year
and a propensity to commit sexual
Page 478 U. S. 371
assaults, in addition to demonstration of that propensity
through sexual assault.
See supra, at
478 U. S.
366-367.
The discussion of civil commitment in
Addington, supra,
in which this Court concluded that the Texas involuntary commitment
scheme is not criminal insofar as the requirement of proof beyond a
reasonable doubt is concerned, fully supports our conclusion
here:
"[T]he initial inquiry in a civil commitment proceeding is very
different from the central issue in either a delinquency proceeding
or a criminal prosecution. In the latter cases, the basic issue is
a straightforward factual question -- did the accused commit the
act alleged? There may be factual issues to resolve in a commitment
proceeding, but the factual aspects represent only the beginning of
the inquiry. Whether the individual is mentally ill and dangerous
to either himself or others and is in need of confined therapy
turns on the
meaning of the facts which must be
interpreted by expert psychiatrists and psychologists."
Id. at
441 U. S. 429
(emphasis in original). While here the State must prove at least
one act of sexual assault, that antecedent conduct is received not
to punish past misdeeds, but primarily to show the accused's mental
condition and to predict future behavior. 107 Ill. 2d at 105, 481
N.E.2d at 697.
In his attempt to distinguish this case from other civil
commitments, petitioner places great reliance on the fact that
proceedings under the Act are accompanied by procedural safeguards
usually found in criminal trials. In particular, he observes that
the Act provides an accused with the right to counsel, � 105-5, the
right to demand a jury trial,
ibid., and the right to
confront and cross-examine witnesses,
People v.
Nastasio, 19 Ill. 2d
524, 529-530,
168 N.E.2d
728, 731 (1960). At the conclusion of the hearing, the trier of
fact must determine whether the prosecution has proved the person's
sexual dangerousness beyond a reasonable doubt.
Page 478 U. S. 372
� 105-3.01;
People v. Pembrock, 62 Ill. 2d
317,
342 N.E.2d 28
(1976). But as we noted above, the State has indicated quite
clearly its intent that these commitment proceedings be civil in
nature; its decision nevertheless to provide some of the safeguards
applicable in criminal trials cannot itself turn these proceedings
into criminal prosecutions requiring the full panoply of rights
applicable there.
See People v. English, 31 Ill. 2d
301, 304,
201 N.E.2d
455, 458 (1964).
Relying chiefly on
In re Gault, 387 U. S.
1 (1967), petitioner also urges that the proceedings in
question are "criminal" because a person adjudged sexually
dangerous under the Act is committed for an indeterminate period to
the Menard Psychiatric Center, a maximum security institution that
is run by the Illinois Department of Corrections and that houses
convicts needing psychiatric care as well as sexually dangerous
persons. Whatever its label and whatever the State's alleged
purpose, petitioner argues, such commitment is the sort of
punishment -- total deprivation of liberty in a criminal setting --
that
Gault teaches cannot be imposed absent application of
the privilege against self-incrimination. We believe that
Gault is readily distinguishable.
First,
Gault's sweeping statement that
"our Constitution guarantees that no person shall be 'compelled'
to be a witness against himself when he is threatened with
deprivation of his liberty,"
id. at
387 U. S. 50, is
plainly not good law. Although the fact that incarceration may
result is relevant to the question whether the privilege against
self-incrimination applies,
Addington demonstrates that
involuntary commitment does not itself trigger the entire range of
criminal procedural protections. Indeed, petitioner apparently
concedes that traditional civil commitment does not require
application of the privilege. Only two Terms ago, in
Minnesota
v. Murphy, 465 U.S. at
465 U. S. 435,
n. 7, this Court stated that a person may not claim the privilege
merely because his answer might result in revocation of his
probationary status.
Cf. Middendorf v. Henry, 425 U. S.
25,
425 U. S. 37
(1976) ("[F]act that a proceeding
Page 478 U. S. 373
will result in loss of liberty does not
ipso facto mean
that the proceeding is a
criminal prosecution' for purposes of
the Sixth Amendment").
The Court in
Gault was obviously persuaded that the
State intended to
punish its juvenile offenders, observing
that, in many States, juveniles may be placed in "adult penal
institutions" for conduct that, if committed by an adult would be a
crime. 387 U.S. at
387 U. S. 49-50.
Here, by contrast, the State serves its purpose of
treating, rather than punishing, sexually dangerous
persons by committing them to an institution expressly designed to
provide psychiatric care and treatment. That the Menard Psychiatric
Center houses not only sexually dangerous persons but also
prisoners from other institutions who are in need of psychiatric
treatment does not transform the State's intent to treat into an
intent to punish. Nor does the fact that Menard is apparently a
maximum security facility affect our analysis:
"The state has a legitimate interest under its
parens
patriae powers in providing care to its citizens who are
unable because of emotional disorders to care for themselves; the
state also has authority under its police power to protect the
community from the dangerous tendencies of some who are mentally
ill."
Addington, 441 U.S. at
441 U. S. 426.
Illinois' decision to supplement its
parens patriae
concerns with measures to protect the welfare and safety of other
citizens does not render the Act punitive.
Petitioner has not demonstrated, and the record does not
suggest, that "sexually dangerous persons" in Illinois are confined
under conditions incompatible with the State's asserted interest in
treatment. Had petitioner shown, for example, that the confinement
of such persons imposes on them a regimen which is essentially
identical to that imposed upon felons with no need for psychiatric
care, this might well be a different case. But the record here
tells us little or nothing about the regimen at the psychiatric
center, and it certainly
Page 478 U. S. 374
does not show that there are no relevant differences between
confinement there and confinement in the other parts of the maximum
security prison complex. Indeed, counsel for the State assures us
that, under Illinois law, sexually dangerous persons must not be
treated like ordinary prisoners. Tr. of Oral Arg. 32-33. We
therefore cannot say that the conditions of petitioner's
confinement themselves amount to "punishment," and thus render
"criminal" the proceedings which led to confinement.
Our conclusion that proceedings under the Act are not "criminal"
within the meaning of the Fifth Amendment's guarantee against
compulsory self-incrimination does not completely dispose of this
case. Petitioner rather obliquely suggests that, even if his
commitment proceeding was not criminal, the Fourteenth Amendment's
guarantee of due process nonetheless required application of the
privilege. In particular, petitioner contends that the Illinois
Supreme Court "grossly miscalculated" in weighing the interests set
out in
Mathews v. Eldridge, 424 U.
S. 319 (1976). This Court has never held that the Due
Process Clause, of its own force, requires application of the
privilege against self-incrimination in a noncriminal proceeding,
where the privilege claimant is protected against his compelled
answers in any subsequent criminal case. We decline to do so
today.
We think that the parties, and to some extent the Supreme Court
of Illinois, have, in their reliance on
Mathews v.
Eldridge, misconceived that decision.
Mathews dealt
with the procedural safeguards required by the Due Process Clause
of the Fifth Amendment before a person might be deprived of
property, and its focus was on such safeguards as were necessary to
guard against the risk of erroneous deprivation. As the Supreme
Court of Illinois and the State have both pointed out, it is
difficult, if not impossible, to see how requiring the privilege
against self-incrimination in these proceedings would in any way
advance reliability. Indeed, the State takes the quite plausible
view that denying the evaluating
Page 478 U. S. 375
psychiatrist the opportunity to question persons alleged to be
sexually dangerous would decrease the reliability of a finding of
sexual dangerousness. As in
Addington, "to adopt the
criminal law standard gives no assurance" that States will reach a
"better" result. 441 U.S. at
441 U. S.
430-431.
The privilege against self-incrimination enjoined by the Fifth
Amendment is not designed to enhance the reliability of the
factfinding determination; it stands in the Constitution for
entirely independent reasons.
Rogers v. Richmond,
365 U. S. 534,
365 U. S.
540-541 (1961) (involuntary confessions excluded "not
because such confessions are unlikely to be true, but because the
methods used to extract them offend an underlying principle in the
enforcement of our criminal law: that ours is an accusatorial, and
not an inquisitorial, system"). Just as, in a "criminal case," it
would be no argument against a claim of the privilege to say that
granting the claim would decrease the reliability of the
factfinding process, the privilege has no place among the
procedural safeguards discussed in
Mathews v. Eldridge,
which are designed to enhance the reliability of that process.
For the reasons stated, we conclude that the Illinois
proceedings here considered were not "criminal" within the meaning
of the Fifth Amendment to the United States Constitution, and that
due process does not independently require application of the
privilege. Here, as in
Addington,
"[t]he essence of federalism is that states must be free to
develop a variety of solutions to problems, and not be forced into
a common, uniform mold"
of the sort urged by petitioner. 441 U.S. at
441 U. S. 431.
The judgment of the Supreme Court of Illinois is therefore
Affirmed.
[
Footnote 1]
The Act defines sexually dangerous persons as follows:
"All persons suffering from a mental disorder, which mental
disorder has existed for a period of not less than one year,
immediately prior to the filing of the petition hereinafter
provided for, coupled with criminal propensities to the commission
of sex offenses, and who have demonstrated propensities toward acts
of sexual assault or acts of sexual molestation of children, are
hereby declared sexually dangerous persons."
� 105-1.01
[
Footnote 2]
The Appellate Court interpreted the Act to require specific
proof of more than one act of sexual assault. It therefore
concluded that the State had relied on the psychiatrists to make
its entire case, because the victim had only testified about one
act. The Supreme Court of Illinois thereafter interpreted the Act
to require proof of only one act, and concluded that the victim's
testimony was sufficient to satisfy the State's burden in this
case.
107 Ill. 2d
91, 105-106,
481 N.E.2d
690, 697 (1985).
[
Footnote 3]
Under Illinois Department of Corrections regulations, the
progress of persons confined at such facilities is reviewed at
least every six months by a staff psychiatrist, and a request for a
review hearing may be made at any time. 8 Ill.Reg. 14501
(1984).
[
Footnote 4]
Even if he fails to meet his burden, the committed person may
nonetheless be conditionally released:
"If the court finds that the patient appears no longer to be
dangerous but that it is impossible to determine with certainty
under conditions of institutional care that such person has fully
recovered, the court shall enter an order permitting such person to
go at large subject to such conditions and such supervision by the
Director as in the opinion of the court will adequately protect the
public."
� 105-9.
[
Footnote 5]
The Act further provides that,
"[u]pon an order of discharge every outstanding information and
indictment, the basis of which was the reason for the present
detention, shall be quashed."
Ibid.
JUSTICE STEVENS, with whom JUSTICE BRENNAN, JUSTICE MARSHALL,
and JUSTICE BLACKMUN join, dissenting.
Paragraph 105 of the Illinois Criminal Code authorizes a special
procedure for the involuntary commitment of individuals
Page 478 U. S. 376
found to be "sexually dangerous persons." [
Footnote 2/1] In many respects, the proceeding is
virtually identical to Illinois' proceeding for prosecution of
sex-related crimes. When the criminal law casts so long a shadow on
a putatively civil proceeding, I think it clear that the procedure
must be deemed a "criminal case" within the meaning of the Fifth
Amendment. [
Footnote 2/2]
I
As the Court reaffirms today, the fact that a State attaches a
"civil" label to a proceeding is not dispositive.
Ante at
478 U. S. 369.
Such a label cannot change the character of a criminal proceeding.
In re Gault, 387 U. S. 1,
387 U. S. 49-50
(1967). Moreover, the words "criminal case" in the Fifth Amendment
have been consistently construed to encompass certain proceedings
that have both civil and criminal characteristics. [
Footnote 2/3] And, of course, a State's duty to
respect the commands in the Fifth Amendment cannot be avoided by
the names it applies to its procedures or to the persons whom it
accuses of wrongful conduct. It is the substance of the Illinois
procedure, rather than its title, that is relevant to our inquiry.
[
Footnote 2/4] Neither
Page 478 U. S. 377
the word "civil" nor the unsettling term applied by the State --
"sexually dangerous person" -- should be permitted to obscure our
analysis.
The impact of an adverse judgment against an individual deemed
to be a "sexually dangerous person" is at least as serious as a
guilty verdict in a typical criminal trial. In
Humphrey v.
Cady, 405 U. S. 504
(1972), we referred to the potentially indefinite commitment to the
"sex deviate facility" located in the Wisconsin State Prison,
id. at
405 U. S. 506,
as "a massive curtailment of liberty."
Id. at
405 U. S. 509.
In a case arising under the Illinois statute we review today,
United States ex rel. Stachulak v. Coughlin, 520 F.2d 931
(1975), the Court of Appeals for the Seventh Circuit noted that the
sexually dangerous person proceeding authorizes far longer
imprisonment than a mere finding of guilt on an analogous criminal
charge. [
Footnote 2/5] Moreover,
the stigma associated with an adjudication as a "sexually dangerous
person" is at least as great as that associated with most criminal
convictions, and "is certainly more damning than a finding of
juvenile delinquency."
Id. at 936.
The distinctive element of Illinois' "sexually dangerous person"
proceeding, however, is its relationship to Illinois' criminal law.
Quite simply, criminal law occupies a central role in the sexually
dangerous person proceeding. Like the prosecution for a criminal
offense, the procedure may only begin "when any person is charged
with a criminal offense." [
Footnote
2/6]
Page 478 U. S. 378
Like the prosecution for a criminal offense, the decision
whether to initiate the procedure is entrusted "to the Attorney
General or to the State's Attorney of the county wherein such
person is so charged." [
Footnote
2/7] Like the prosecution for a criminal offense,
"the burden of proof required to commit a defendant to
confinement as a sexually dangerous person shall be the standard of
proof required in a criminal proceeding of proof beyond a
reasonable doubt. [
Footnote
2/8]"
Like the prosecution for a criminal offense, if the prosecutor
sustains his burden of proof,
"the court shall appoint the Director of Corrections guardian of
the person found to be sexually dangerous and such person shall
stand committed to the custody of such guardian. [
Footnote 2/9]"
Indeed, the Act even defines a "sexually dangerous person" with
respect to criminal law, or rather, with respect to "criminal
propensities:"
"All persons suffering from a mental disorder, which mental
disorder has existed for a period of not less than one year,
immediately prior to the filing of the petition hereinafter
provided for, coupled with criminal propensities to the commission
of sex offenses, and who have demonstrated propensities toward acts
of sexual assault or acts of sexual molestation of children, are
hereby declared sexually dangerous persons. [
Footnote 2/10]"
According to the Illinois Supreme Court's interpretation of this
definition, moreover, the prosecutor must prove that the individual
charged with being a sexually dangerous person committed a criminal
offense:
"It is clear . . . that the statute requires more than the proof
of mere 'propensity;' it also requires that the State prove that
the defendant has 'demonstrated' this propensity. This language can
only mean that the State must prove at least one act of or attempt
at sexual
Page 478 U. S. 379
assault or sexual molestation."
107 Ill. 2d
91, 105,
481 N.E.2d
690, 697 (1985).
Thus, the Illinois "sexually dangerous person" proceeding may
only be triggered by a criminal incident; may only be initiated by
the sovereign State's prosecuting authorities; may only be
established with the burden of proof applicable to the criminal
law; may only proceed if a criminal offense is established; and has
the consequence of incarceration in the State's prison system -- in
this case, Illinois' maximum security prison at Menard. It seems
quite clear to me, in view of the consequences of conviction and
the heavy reliance on the criminal justice system -- for its
definition of the prohibited conduct, for the discretion of the
prosecutor, for the standard of proof, and for the Director of
Corrections as custodian -- that the proceeding must be considered
"criminal" for purposes of the Fifth Amendment. [
Footnote 2/11]
II
The principal argument advanced by the State -- and accepted by
the Court,
ante at
478 U. S.
369-370 -- is that the statute has a benign purpose. The
State points out that the statute, in appointing the Director of
Corrections as guardian, requires that the Director provide "care
and treatment for the person committed to him designed to effect
recovery;" [
Footnote 2/12]
requires
Page 478 U. S. 380
that the Director place his ward "in any facility in the
Department of Corrections or portion thereof set aside for the care
and treatment of sexually dangerous persons;" [
Footnote 2/13] and requires that the individual be
released if "found to be no longer dangerous." [
Footnote 2/14]
The Illinois Supreme Court has stated unambiguously that
"treatment, not punishment, is the aim of the statute." 107 Ill. 2d
at 100-101, 481 N.E.2d at 695. The Illinois court, of course, is
the final authority on the meaning and the purpose of Illinois
legislation. Nevertheless, the ultimate characterization of the
sexually dangerous person proceeding for Fifth Amendment purposes
remains a federal constitutional question.
A goal of treatment is not sufficient, in and of itself, to
render inapplicable the Fifth Amendment, or to prevent a
characterization of proceedings as "criminal." With respect to a
conventional criminal statute, if a State declared that its goal
was "treatment" and "rehabilitation," it is obvious that the Fifth
Amendment would still apply. The sexually dangerous person
proceeding similarly may not escape a characterization as
"criminal" simply because a goal is "treatment." If this were not
the case, moreover, nothing would prevent a State from creating an
entire corpus of "dangerous person" statutes to shadow its criminal
code. Indeterminate commitment would derive from proven violations
of criminal statutes, combined with findings of mental disorders
and "criminal propensities," and constitutional protections for
criminal defendants would be simply inapplicable. The goal would be
"treatment;" the result would be evisceration of criminal law and
its accompanying protections.
The Illinois Attorney General nevertheless argues that the
importance of treatment in the Act has a special significance.
Page 478 U. S. 381
The State contends that recognizing a right to silence would
make it impossible to reach a correct diagnosis concerning the
existence of a mental disorder and the need for treatment. However,
the Illinois General Assembly has squarely rejected this argument
in other civil commitment proceedings. Illinois' civil commitment
procedure expressly protects the individual's right to silence.
[
Footnote 2/15] Quoting the
Governor's Commission for the Revision of the Mental Health Code of
Illinois, the Illinois Appellate Court explained this unequivocal
State policy:
"Experience in the public and private sectors has shown that
application of the privilege against self-incrimination does not
seriously impair the State's ability to achieve the valid
objectives of civil commitment."
In re Rizer, 87 Ill.App.3d 795, 799, 409 N.E.2d 383,
386 (1980).
The Attorney General's emphasis on the interference with
treatment that the right of silence would create thus indeed has a
significance, but not the one he suggests. For not only would a
characterization of the proceeding as "criminal" lead to a right to
silence under the Fifth Amendment, but a characterization of the
proceeding as "civil" would also lead to a right to silence under
state law. It is only in the "sexually dangerous person" proceeding
that the individual may be compelled to give evidence that will be
used to deprive him of his liberty. The fact that this proceeding
is unique -- neither
Page 478 U. S. 382
wholly criminal nor civil -- surely cannot justify the unique
deprivation of a constitutional protection.
III
It is, of course, true that "the State has a substantial
interest in . . . protecting the public from sexually dangerous
persons." 107 Ill. 2d at 102, 481 N.E.2d at 696. But the fact that
an individual accused of being a "sexually dangerous person" is
also considered a danger to the community cannot justify the denial
of the Fifth Amendment privilege; if so, the privilege would never
be available for any person accused of a violent crime. The fact
that it may be more difficult for the State to obtain evidence that
will lead to incarceration similarly cannot prevent the
applicability of the Fifth Amendment; if so, the right would never
be justified, for it could always be said to have that effect. Nor
can the fact that proof of sexual dangerousness requires evidence
of noncriminal elements -- the continuing requirement that a future
criminal "propensity" be proved, for instance -- prevent the
applicability of the Fifth Amendment; if anything, that requirement
should be the subject of greater, rather than lesser, concern.
[
Footnote 2/16]
In the end, this case requires a consideration of the role and
value of the Fifth Amendment. The privilege sometimes does serve
the interest in making the truthseeking function of a trial more
reliable. [
Footnote 2/17] Indeed,
a review of the
Page 478 U. S. 383
psychiatrists' reports in this very case suggests the propriety
of that concern. [
Footnote 2/18]
The basic justification for the constitutional protection, however,
also rests on the nature of our free society. As a distinguished
leader of the Bar stated more than 30 years ago:
"[T]he Fifth Amendment can serve as a constant reminder of the
high standards set by the Founding Fathers, based on their
experience with tyranny. It is an ever-present reminder of our
belief in the importance of the individual, a symbol of our highest
aspirations. As such, it is a clear and eloquent expression of our
basic opposition to collectivism, to the unlimited power of the
state. It would never be allowed by communists, and thus it may
well be regarded as one of the signs which sets us off from
communism."
E. Griswold, The Fifth Amendment Today 81 (1955). [
Footnote 2/19]
Page 478 U. S. 384
For the Court, these concerns are not implicated today because
the prosecution-initiated and prison-destined, sexually dangerous
person proceeding is not "criminal" in nature. In my opinion,
permitting a State to create a shadow criminal law without the
fundamental protection of the Fifth Amendment conflicts with the
respect for liberty and individual dignity that has long
characterized, and that continues to characterize, our free
society.
I respectfully dissent.
[
Footnote 2/1]
Ill.Rev.Stat., ch. 38, � 105-1.01
et seq. (1985).
[
Footnote 2/2]
The Fifth Amendment provides that no person "shall be compelled
in any criminal case to be a witness against himself."
[
Footnote 2/3]
See Boyd v. United States, 116 U.
S. 616,
116 U. S.
633-634 (1886) ("We are . . . clearly of opinion that
proceedings instituted for the purpose of declaring the forfeiture
of a man's property by reason of offences committed by him, though
they may be civil in form, are in their nature criminal");
United States v. United States Coin & Currency,
401 U. S. 715,
401 U. S. 718
(1971) ("From the relevant constitutional standpoint there is no
difference between a man who
forfeits' $8,674 [to the
Government in a nominally "civil" proceeding] because he has used
the money in illegal gambling activities and a man who pays a
`criminal fine' of $8,674 as a result of the same course of
conduct").
[
Footnote 2/4]
"It is well settled that realities, rather than benign motives
or noncriminal labels, determine the relevance of constitutional
policies.
In re Winship, 397 U. S. 358,
397 U. S.
365-366 (1970).
See In re Gault, 387 U. S. 1,
387 U. S. 21,
387 U. S.
27,
387 U. S. 50 . . . (1967);
Breed
v. Jones, 421 U.S. [519,
421 U. S.
528 (1975)]."
United States ex rel. Stachulah v. Coughlin, 520 F.2d
931, 936 (CA7 1975).
[
Footnote 2/5]
"The instant case illustrates the potential disparity in the
magnitude of the loss. Stachulak was originally charged with
Indecent Solicitation of a Child in violation of Ill.Ann.Stat., ch.
38, § 11-6 (Smith-Hurd 1969). That offense carried a maximum
penalty of a $500 fine and less than one year imprisonment in a
penal institution other than a penitentiary. Instead of prosecuting
him on that charge, the state brought a proceeding, which
culminated in an indeterminate commitment, under the Sexually
Dangerous Persons Act. For the last five years, Stachulak has been
confined at the Psychiatric Division of the Illinois State
Penitentiary at Menard, a maximum security penal institution."
Id. at 936, n. 4.
[
Footnote 2/6]
Ill.Rev.Stat., ch. 38, � 105-3 (1985).
[
Footnote 2/7]
Ibid.
[
Footnote 2/8]
� 105-3.01
[
Footnote 2/9]
� 105-8.
[
Footnote 2/10]
� 105-1.01.
[
Footnote 2/11]
The "sexually dangerous person" proceeding shares other
characteristics with criminal law as well. The statute requires
that the individual "have the right to demand a trial by jury and
to be represented by counsel." � 105-5. Under the Illinois Supreme
Court's construction, moreover, an individual has the right to
confront and cross-examine witnesses.
People v.
Nastasio, 19 Ill. 2d
524, 529-530,
168 N.E.2d
728, 731 (1960). Significantly, as with the latter set of
requirements, many of the criminal law procedures that have been
found applicable to the "sexually dangerous person" proceeding have
been imposed by courts because of the nature of the proceeding.
See, e.g., United States ex rel. Stachulak v. Coughlin,
520 F.2d 931 (CA7 1975) (requiring proof beyond a reasonable
doubt);
People v. Pembrock, 62 Ill. 2d
317,
342 N.E.2d 28
(1976) (same); Ill.Rev.Stat., ch. 38, � 105-3.01 (1985) (codifying
requirement).
[
Footnote 2/12]
� 105-8.
[
Footnote 2/13]
Ibid.
[
Footnote 2/14]
� 105-9.
See also � 105-8 ("The Director of Corrections
as guardian shall keep safely the person so committed until the
person has recovered and is released as hereinafter provided").
[
Footnote 2/15]
See Ill.Rev.Stat., ch. 91 1/2, � 3-208 (1985)
("Whenever a petition has been executed pursuant to Section 3-507,
3-601, or 3-701, and prior to this examination for the purpose of
certification of a person 12 or over, the person conducting this
examination shall inform the person being examined in a simple
comprehensible manner of the purpose of the examination; that he
does not have to talk to the examiner; and that any statements he
makes may be disclosed at a court hearing on the issue of whether
he is subject to involuntary admission. If the person being
examined has not been so informed, the examiner shall not be
permitted to testify at any subsequent court hearing concerning the
respondent's admission").
[
Footnote 2/16]
See O. Holmes, The Common Law 65 (1923 ed.) ("Intent to
commit a crime is not itself criminal. There is no law against a
man's intending to commit a murder the day after tomorrow. The law
only deals with conduct");
Thompson v.
Bowie, 4 Wall. 463,
71 U. S. 471
(1866) ("When trying a prisoner on an indictment, for a particular
crime, proof that he has a general disposition to commit the crime
is never permitted").
[
Footnote 2/17]
"It has long been recognized that the eliciting and use of
confessions or admissions require careful scrutiny. Dean Wigmore
states:"
" The ground of distrust of confessions made in certain
situations is, in a rough and indefinite way, judicial experience.
There has been no careful collection of statistics of untrue
confessions, nor has any great number of instances been even
loosely reported . . . but enough have been verified to fortify the
conclusion, based on ordinary observation of human conduct, that,
under certain stresses, a person, especially one of defective
mentality or peculiar temperament, may falsely acknowledge guilt.
This possibility arises wherever the innocent person is placed in
such a situation that the untrue acknowledgment of guilt is at the
time the more promising of two alternatives between which he is
obliged to choose; that is, he chooses any risk that may be in
falsely acknowledging guilt in preference to some worse alternative
associated with silence."
In re Gault, 387 U. S. 1,
387 U. S. 44-45
(1967) (quoting 3 J. Wigmore, Evidence § 822 (3d ed.1940)).
[
Footnote 2/18]
One of the psychiatrist's reports stated, in part:
"The defendant wanted to be found sexually dangerous, and did so
because he felt that it was a better alternative than a trial
trying to be found not guilty. . . . I have the definite impression
that he is unreliable, and that sometimes he is not telling the
truth."
App. 36-37.
That doctor reported that the defendant admitted that he had
"sexual intercourse" with the victim -- a fact that she denied.
None of the other incidents described in the doctor's report (the
first of which occurred when the defendant was 10 years old) had
any corroboration or involved an identified partner or victim.
[
Footnote 2/19]
Cf. Amnesty International, Political Abuse of
Psychiatry in the USSR, reprinted in Abuse of Psychiatry in the
Soviet Union, Hearing before the Subcommittee on Human Rights and
International Organizations of the House Committee on Foreign
Affairs, 98th Cong., 1st Sess., 72-73 (1983) (In the Soviet Union,
"[t]wo formal procedures are most commonly used to commit
individuals to mental hospitals against their will: the civil and
the criminal. . . . The criminal procedure for compulsory
confinement is applicable to those who have been accused of a
criminal offense, and whose mental health is called into question.
. . . Under this procedure, the accused loses virtually all of his
or her procedural rights, and is left only with the passive right
to an honest psychiatric examination and a fair court hearing")