CIVIL COMMITMENT OF SEXUALLY VIOLENT PREDATORS: A Misguided Attempt to Solve a Serious Problem
by Robert Bilbrey
Synopsis: This article explores the Missouri statute authorizing the civil commitment of sexually violent predators. The history of the Supreme Court's treatment of civil commitment is examined, showing the foundation upon which its decision in upholding these statutes was based. The procedures involved in the Missouri statute are shown. Finally, alternative solutions are shown that use resources are already in place, without incurring the time and expense of creating an entirely new system to deal with the problem of what to do with sexually violent predators.
Introduction
On January 1, 1999, a new Missouri law went into effect that attempts to protect the state from sexually violent predators.1 The new law revised Missouri's sex offender registration statute as and provided for the civil commitment of sexually violent predators.2 The civil commitment portion allows the state to commit persons who are convicted of certain crimes of a sexual nature and place them in state mental facilities after they have served their criminal sentence, so long as they are found to have a mental defect which makes them predisposed to commit sexually violent offenses.3 The law is patterned after a Kansas statute passed in 1994.4 The United States Supreme Court found this statute constitutional in Kansas v. Hendricks.5
While legislatures may find acts such as these to be a positive step in removing sexually violent predators from society, the task could be accomplished with laws and resources already available. While the Supreme Court has found these statutes to be constitutional, civil commitment of sexually violent predators creates an unnecessary system of trials, investigations, examinations, and pseudo-incarceration that could be accomplished under the system currently in place through the use changes in the law and increased prison terms -- all at less cost.
Sex Offender Statutes
The increase in the number of different approaches to addressing the problem of sexually violent predators is not surprising when considering a case like that of Larry Don McQuay. McQuay is currently serving a 20-year prison sentence for child molestation in Texas.6 He estimates that he has molested approximately 240 children over his 34-year lifetime.7 Among his victims were up to 75 children who rode on the school bus he drove for 18 months in the San Antonio area, as well two of the children of a woman McQuay had been dating.8 McQuay claimed that if he was ever released, he would molest children again.9 He desired to follow a previous Texas child molester, Steven Allen Butler, and be surgically castrated in order to protect society from any further harm from him.10 This desire lead to the passage of a new Texas law allowing the voluntary castration of certain convicted sex offenders.11
One of the most infamous, and influential, of all sex offender cases resulted in the 1994 death of 7-year-old Megan Kanka.12 Megan was sexually assaulted and strangled to death by a convicted sex offender, Jesse Timmendequas, living in a house with two other convicted sex offenders across the street from Megan's home.13 The public pressure on the legislature of New Jersey, as well as those of other states, was tremendous, resulting in the passing of sex offender notification statutes around the country.14 These laws require individuals who have been convicted of certain crimes to register with local law enforcement officials whenever they move into a community.15 Similarly, many states adopted community notification programs requiring certain groups or members of a community to be notified when a sex offender relocates into their area.16
Leroy Hendricks had spent a large part of his life in the custody of authorities when he made history as the first man to be committed under the Kansas statute allowing for the civil commitment of sexually violent predators. At his trial to determine whether he should be civilly committed, he admitted to a long history of sexual offenses.17 Included in his convictions were indecent exposure in 1955, lewdness in 1957, two molestation charges of children between 1960 and 1965, molestation of a young boy and girl in 1967, and "taking indecent liberties" with two young teenage boys in 1984.18 In addition, he also confessed to forcing his two step-children to engage in sex with him during his parole in the 1970's.19 Hendricks admitted that the only way to ensure that he did not sexually molest another child was "to die."20 Since Leroy Hendricks felt that he was still a threat to society, the state had little difficulty proving that he was a prime candidate to be civilly committed.21 It was his case that proceeded to the United States Supreme Court in 1997, resulting in the Court upholding the constitutionality of these statutes.22
History Of Civil Commitment Statutes
Much of the criticism of these statutes stems from the fact that the laws seem to violate constitutionally protected interests, including due process, double jeopardy, and ex post facto. However, the history of Supreme Court decisions in this area shows that the Court has long allowed for the civil commitment of certain individuals who possess both a mental defect and present a danger to themselves or society.
The Supreme Court ruled long ago that the right of an individual to live without physical restraint is not absolute, and can be denied even in a civil context.23 "There are manifold restraints to which every person is necessarily subject for the common good."24 The civil commitment of persons is covered by the police power of the state.25 The power includes protecting society and punishing criminals, as well as compelling treatment of a person, be it through "quarantine, confinement, or sequestration."26 The difference between civil commitment and criminal incarceration is that civil commitment seeks to protect both the person being committed and society from future danger, while criminal detention has as its primary goal the punishment of a person for prior acts.27
The first instance in which the Supreme Court upheld a statute that provided for civil commitment was in Minnesota ex rel. Pearson v. Probate Court.28 The statute provided for the commitment of people, who had shown a pattern of sexual misconduct, possessed no power to control their behavior, and were likely to commit future harm.29 The Court found that since certain classes of people posed a greater threat to society than others, they could be dealt with as a whole in a different manner without violating their right to equal protection.30 Because the law was administrable, and required that proof be shown for each element of the statute, the Court found the law was not unconstitutionally vague.31 The Court also found that the procedural due process safeguards found within the statute, such as the right to counsel and the right to a hearing, were adequate to protect the rights of those being committed.32
The decision in Pearson did not usher in an era in which the Court endorsed every civil commitment statute concerning sex offenders. In Baxstrom v. Herold,33 the Supreme Court struck down a New York civil commitment statute that provided for a hearing, after the completion of a prison sentence, to determine if the offender should be committed to a mental health facility.34 The flaw in this process was the absence of a provision allowing for a jury to decide whether or not the person should be committed.35 The Court found that the fact that a jury was used in the conviction of the crime was not sufficient to protect the due process rights of the person at the hearing to determine whether or not they should be committed.36
The Court also overruled a state law that allowed for the commitment of mentally ill persons who were not a danger to themselves or to anyone else in O'Connor v. Donaldson.37 The Court stated that a civil commitment of someone based only upon mental illness is insufficient to justify a person being committed against their will.38 The fact that the public is intolerant or holds an animosity toward people because they are "socially eccentric," is not a constitutionally proper ground to confine someone.39 Even if the original commitment was based upon an adequately founded basis, it may not constitutionally continue once the basis no longer exists.40 The Court concluded that without a threat of danger by the person being committed, either to them or to others around them, involuntary civil commitment is constitutional infringement on that person's liberty interest.41 Therefore, the commitment must be based upon a legitimate state interest, and the commitment must take place in a constitutionally sufficient proceeding.42
In Jackson v. Indiana, the Court addressed a statute allowing for the commitment of persons accused of crimes for an evaluation of their competency for trial, and if they were found to be incompetent, whether they would be fit by the time of trial.43 The Court allowed this provision, without a showing of dangerousness or mental illness, so long as it is done for a "reasonable" time period.44
The Court also upheld a statute whereby persons acquitted of criminal charges because of a mental illness were automatically civilly committed in Jones v. United States.45 The Court reasoned that the generally held view was "that insanity acquittees constitute a special class that should be treated differently from other candidates for commitment."46 The Court opined that a jury verdict of insanity indicated that evidence of both dangerousness and a mental defect had been established.47 However, once the committed person is either no longer dangerous or insane, they are entitled to be released.48 The Court ruled that it was only proper to hold someone who is both dangerous and mentally ill, but once one of those factors was no longer present, then the person must be released.49 The Court relied on its reasoning in O'Connor, which found that it was unconstitutional to hold a mentally ill person who did not pose a danger to themselves or society.50
The next major case in which the Court addressed the issue of committing mentally ill persons was Foucha v. Louisiana.51 In that case, Foucha was found not guilty by reason of insanity of the charges of aggravated burglary and illegal discharge of a firearm.52 After serving a period of time at a state mental facility, the superintendent of the facility recommended that Foucha be released.53 A commission at the facility found no evidence of a mental illness present in Foucha, and the two court-appointed doctors who conducted the pre-trial examination found the mental illness to be "in remission."54 However, the court-appointed doctors could not state with any certainty that Foucha did not present a danger to either himself or others.55 The Louisiana court found that a possibility existed that Foucha still presented a danger and that he should remain confined to the mental facility.56
The Supreme Court, relying on its previous opinions in O'Connor and Jones, found that Louisiana did not have an adequate basis for continuing to hold Foucha in the state facility, based upon the fact that no assertion was made that Foucha remained mentally ill at his release hearing.57 The state based its contention that confinement to the mental institution should continue based on the fact that Foucha exhibited an "antisocial personality."58 The Court found three problems with the state's contention.59
First, without a showing of mental illness, the state could not keep Foucha in a mental health facility.60 The Constitution demands that the "nature of the commitment bear some reasonable relation to the purpose for which the individual is committed."61 Since Foucha was not suffering from a mental illness, continued confinement at the mental facility was not related to why he was being detained.62
Secondly, since the state could not hold Foucha at a mental facility, it was required that he undergo constitutionally proper procedures establishing the basis for his commitment.63 In order to continue holding Foucha beyond the reason for his initial commitment, the state must provide a constitutionally proper hearing as a basis for the continued confinement.64
Finally, the Court found that substantive due process barred the state from certain actions that were arbitrary and wrongful, no matter what the amount of due process.65 One of the central liberty interests the Court has found protected by the due process clause is the right to be free from confinement. While the state's police power includes the ability to incarcerate certain people found to have violated its laws, there are limitations on the type of conduct the state may criminalize.66 In this case, the Court found that the state did not possess that power.67 Since Foucha was not convicted of any crime, he was not subject to the state power to punish, and the state could not take his liberty interest through civil commitment.68
The Hendricks Case
The Kansas statute at issue in Hendricks arose largely from a 1993 incident involving the rape and murder of a University of Kansas student by a man who had previously been convicted of rape.69 The Kansas Legislature passed a law in reaction to this crime that provided for the civil commitment of certain sexually violent felons.70 This act allows the state to commit persons who are prone to commit acts of sexual violence due to either a "mental abnormality" or a "personality disorder."71 The statute defines a "sexually violent predator" as "any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence."72
The statute provides for a commitment hearing in which the state has the burden of proving beyond a reasonable doubt the person's status as a sexually violent predator.73 The state must provide the person involved in the hearing with legal counsel,74 and the person is entitled to a jury trial to determine if commitment is appropriate.75
Leroy Hendricks was the first person the state attempted to commit under this statute.76
At his civil commitment trial, a state psychologist from the hospital where Hendricks was examined testified that Hendricks suffered from pedophilia, which was a "mental abnormality."77 Testimony was offered by another state physician relating to the pedophilia, along with testimony from his stepchildren concerning their molestation by Hendricks, and testimony from a clinical social worker as to Hendricks' personality disorder.78
The case was appealed on several constitutional grounds, including due process, double jeopardy, and ex post facto law.79 At the state level, the Kansas Supreme Court ruled that the law was constitutionally flawed, and overturned Hendricks' commitment.80 The United States Supreme Court overruled the state court in a 5-4 decision, stating that the law was constitutionally proper.81
In its decision, the Court examined the term "mental abnormality" as used in the Kansas statute.82 As used in the statute, the term satisfies the substantive due process requirements of the Constitution.83 The Court found that this instance is one of the "narrow circumstances" in which a state may physically restrain someone due to their inability to control their behavior, thus posing a danger to society.84 Kansas' statute clearly met the standard the Court has consistently required be present in any civil commitment statute.85 The statute went beyond requiring a "mere predisposition to violence" and required evidence of "past sexually violent behavior."86
The Court stated that this finding of violence alone was insufficient, however, and went on to examine the requirement of a "mental abnormality."87 The Court first noted that the Kansas statute required a finding of dangerousness that was linked to the existence of a "mental abnormality" or "personality disorder" that made it difficult for the person to control their behavior.88 Hendricks argued that the finding of a "mental illness" was required, and the statute's requirement was less than this standard.89
The Court addressed this by noting that "the term 'mental illness' is devoid of any talismanic significance."90 The Court said that "psychiatrists disagree widely and frequently on what constitutes mental illness," and the Court has used a wide variety of terms to describe the type of "mental condition" required to civilly commit an individual.91 The Court stated that the title assigned to the condition is not the issue, but rather the definition of the term.92 These legal definitions differ from their medical counterparts, because they must factor in such issues as the amount of responsibility an individual shows and the level of competency demonstrated, thus differing from the medical definitions for mental illness.93
The Court found that the Kansas act required these criteria and that Hendricks satisfied these standards.94 Hendricks was diagnosed as a pedophile, which is defined by the psychiatric community as a "serious mental illness."95 Hendricks himself admitted that he lacked control over his desire to molest children.96 Hendricks asserted that the only way to absolutely prevent him from molesting another child was for him to die.97 Hendricks felt that he was a pedophile and that his condition was not treatable.98 A unanimous jury found that Hendricks was a pedophile, that he was not cured, that he posed a danger to society, and that he was a sexually violent predator.99
The Missouri Law
Missouri's new civil commitment statute presents several new procedures that must be preformed in order to place a sexually violent predator into a mental facility. The process begins with written notice to the attorney general, by either the Department of Corrections or the Department of Mental Health, within 180 days of the release of a person who may meet the criteria of a sexually violent predator.100 This notice is to include the person's name, the history of their offense, and any treatment either administered to or refused by the convicted sex offender.101
A seven-member multidisciplinary panel appointed by the director of the Department of Mental Health and the director of the Department of Corrections then investigates the matter to determine if the person qualifies to be committed as a sexually violent predator.102 The panel has 30 days to make its determination, and must inform the attorney general of its findings.103 If the panel determines that the person meets the criteria as a sexually violent predator, the attorney general then sends the report to a prosecutor's review committee appointed by the attorney general, which conducts another investigation to determine if civil commitment should be pursued.104 The review committee then presents its findings to the attorney general.105
If the review committee recommends by a majority vote that the person in question qualifies to be civilly committed as a sexually violent predator, the attorney general may file a petition in the probate division of the circuit court in which the person was convicted.106 The petition must be filed within 45 days of the date the attorney general received written notice from either of the state agencies.107 The judge in the probate court then must determine whether or not probable cause exists as to whether or not the person is a sexually violent predator.108 The judge then is to order the person in question to be taken into custody and confined to a secure facility.109
Within three days of the person being taken into custody, he or she is entitled to notice of a hearing to contest the finding of probable cause as to whether they are a sexually violent predator.110 At the hearing, the person accused of being a sexually violent predator is entitled to be represented by an attorney, to present evidence, to cross-examine witnesses, and to view and copy all reports that have been filed with the court.111 At this hearing, the court determines whether there should be a full hearing on the matter.112
If probable cause is found that the person is a sexually violent predator, the person in question is to be held in a secure facility, where they are to remain while the director of the Department of Mental Health appoints a psychiatrist or psychologist to conduct an examination.113 The exam must be conducted within 60 days of the date on which the director of the Department of Mental Health received the order from the court.114 In addition, the person may request that another psychiatrist or psychologist examine the person on his or her behalf, and at his or her expense.115
A trial is conducted within 60 days of the completion of the examination.116 Again, the person in question has the right to counsel and, if they are indigent, a lawyer is to be appointed for them by the court.117 The person in question has the right to request a trial by jury.118 Otherwise, the evidence is heard and a verdict is rendered by the judge.119 In order to be civilly committed, the court or the jury must find beyond a reasonable doubt that the person in question is a sexually violent predator.120 If such a finding is made, the person is then committed to the Department of Mental Health, to be held in their custody, and to receive treatment, until it is determined that the person's mental abnormality has sufficiently changed that he or she no longer presents a danger to society.121 While the person is in the care and custody of the Department of Mental Health, they are to remain in a secure facility, segregated from other patients who have not been determined to be sexually violent predators.122
Once a person is committed under this statute, an annual examination is made to determine their mental condition, to be performed by the director of the Department of Mental Health.123 The court is also to conduct an annual review of the status of the committed person.124
In addition, the committed person has the right to petition the court for their release.125 If the director of the Department of Mental Health finds that the committed person's mental abnormality has so changed that they no longer present a threat to society, the director can authorize the person to petition the court for release.126 A hearing on the petition is to be held within 30 days of the petition being filed, and can be before a jury if either the petitioner or the attorney general request.127 If the state fails to show, beyond a reasonable doubt, that the person still suffers from a mental abnormality and remains a threat to society, they are to be released.128
Cost of Civil Commitment
Since Missouri's civil commitment law has just become effective, it is too early to determine the exact cost of implementing the provisions of the statute. However, other states have enacted similar laws, and the costs these states have incurred are substantial, especially when compared with the cost of housing criminals. In Minnesota, for example, $120,000 is spent per year for each person committed under their sexually violent predator law.129 By contrast, $30,000 per year is spent on housing regular prison inmates.130 In Florida, the state has budgeted only $30,000 per person for the inmates who became eligible for civil commitment when the statute went into effect at the beginning of this year, while estimates have shown it will cost at least three times as much.131 California's civil commitment statute went into effect in 1996.132 For the fiscal year 1996-1997, the state budgeted $10.8 million to administer the program.133 After one year of the program, the budget went up more than 53% to $16.8 million in 1997-1998.134
Washington was the first state to implement a civil commitment statute for sexually violent predators, and has the most experience with the costs of implementing such a program.135 The costs Washington has incurred include the expense of the new bureaucracies created by the statute, the cost of a facility to house the committed offenders, the housing costs, treatment costs, record keeping costs, and legal and trial costs.136 The Missouri law features the same procedures and requires the same facilities as the other states, and will incur similar costs.
Alternative Solutions
Keeping the public safe from persons who have a history of sexually violent offenses is the job of the state. How the state goes about protecting society is the question. Statutes such as the one recently instituted in Missouri appear to be effective, but the question remains whether or not these are the best method to address the problem. Other options are available that address the problem prior to the person being released from prison, and do not incur the costs that the newly implemented law does.
The Missouri law allows for the confinement of persons under this law to take place in a prison, jail, or other facility operated by the Department of Corrections, so long as the person is kept in separate quarters from the rest of the prison population.137 The Supreme Court found that the ability to treat these people was not required to make these statutes constitutionally valid.138 The Court stated that "we have never held that the Constitution prevents a State from civilly detaining those for whom no treatment is available, but who nevertheless pose a danger to others."139 Further, the Court stated that "if we accept this determination that the provision of treatment was not the Kansas Legislature's 'overriding' or 'primary' purpose in passing the Act, this does not rule out the possibility that an ancillary purpose of the Act was to provide treatment, and it does not require us to conclude that the Act is punitive."140
The Missouri statute provides that while committed to this facility, the civilly committed person is under the control of the Department of Mental Health, which provides for the person's control, custody, and care until the person is released.141 The wording of this implies the Department of Mental Health is to provide treatment for the person in an attempt to rehabilitate the person so they are able to be released into society. However, there are conflicting opinions within the psychiatric community as to not only whether pedophilia is a mental disorder, but whether it is treatable.142
The conflict in the psychiatric community indicates that, if pedophilia is either not a mental disorder or, if it is, is not treatable, Missouri may be spending money on a program that will never be successful. Money spent to treat persons committed under this statute would be wasted in that nobody would ever be cured of their "disorder." If it is decided that treatment is not a viable option, the statute still provides that money be spent on facilities to separate persons committed as sexually violent predators from other individuals in the control of either the Department of Corrections or the Department of Mental Health.143
As an alternative to the civil commitment statute, current criminal laws committed could be amended to provide for stricter penalties that do not allow those convicted to be released as early or as often. Leroy Hendricks was a five-time convicted child molester who had been in and out of prison for nearly 40 years when he was committed under the Kansas civil commitment statute. Had he committed those same crimes in Missouri today, he would not face any different fate than he did in Kansas. The current statutes of Missouri provide for seemingly inadequate punishment for many sexually related crimes, especially sexual crimes committed against children.
For example, committing the crime of child molestation in the first degree in Missouri is punishable as a class C felony.144 The crime consists of subjecting "another person who is less than twelve years of age to sexual contact."145 Sexual contact means that the person has touched "another person with the genitals or any touching of the genitals or anus of another person, or the breast of a female person, for the purpose of arousing or gratifying sexual desire of any person."146 As a class C felony, the maximum sentence the person may face is 10 years.147 While the penalty may or may not be adequate, Leroy Hendricks would not have had to face this charge the last time he was convicted.
In 1984, Leroy Hendricks was convicted of molesting two 13 year-old boys.148 Under Missouri law, subjecting a child 12 or 13 years of age to sexual contact is child molestation in the second degree.149 A first time offender of this statute faces a punishment of more than six months in prison, since it is a class A misdemeanor.150 Leroy Hendricks, however, was a repeat offender and would have faced less than 10 years in prison, because the crime is punishable as a class D felony.151 Had the children been 14, Hendricks could not even be charged with child molestation, because there is no molestation statute for children over 13. At most, he could have been convicted of first degree sexual misconduct, which carries the same punishment options as second degree child molestation.152 Persons convicted of sexual misconduct are not subject to the civil commitment statute, however.153
The definition of each crime is also an area that can be changed. As noted above, a person who subjects a minor above the age of 13 to sexual contact is not guilty of any form of molestation. In order to be convicted of the above-mentioned crime of first degree sexual misconduct, the sexual contact has to be without the consent of the object of the touching.154 This assumes that a 14-year-old is capable of giving consent to be touched in a sexual manor. That assumption is inconsistent with other criminal statutes, such as second degree statutory rape155 and second degree statutory sodomy,156 both of which apply to sexual acts with a person under the age of 17 by someone over the age of 21. Consent by the minor is not a defense to either of the crimes.157
Changing the child molestation law to include a provision using the "above 21 perpetrator, below 17 victim" approach closes this apparent loophole in the law.158 This would not violate the apparent policy of not criminalizing sexual behavior between consenting teenagers who have apparently reached an age where they are mature enough to make a reasonable decision regarding sex. It would, however, criminalize the adult who preys upon adolescents who happen to be above the age stated in the child molestation statute. The policy behind the second degree statutory rape and second degree statutory sodomy seems to be that a person is capable of making sexual decisions at the age of 14 if they are dealing with a peer. If, however, it is an adult, who is presumably able to influence and manipulate a person under the age of 17, then the act is criminal and should be punished.
Additions to current statutes are another method that could be used to further control the problem of sexually violent predators. Crimes that are apparently less serious, due to the given title and subsequent punishment, such as child molestation in the second degree,159 carry more stringent penalties for repeat offenders. Applying this same approach to all crimes of a sexual nature serves to keep repeat offenders away from society.
Conclusion
Using the approach of revamping the criminal statutes to make the punishments stronger, to criminalize conduct in a different way, and to make punishment more stringent for repeat offenders better utilizes the current resources without creating the need for more action on the part of the government. Persons convicted of sexual crimes are already put on trial and, in most cases, are already sent to prison. Changes to the criminal law do not require new committees, new investigations, new trials, and new facilities, as the civil commitment statutes do. If treatment is truly a goal of these statutes, then provisions could be implemented to make persons convicted of sexual crimes eligible for earlier parole if they voluntarily enter and successfully complete a treatment program. These combined efforts would serve the same purpose as the civil commitment statutes, without developing new programs, requiring new facilities, and creating new procedures that cost more time and money.
Endnotes
1 Mo. Rev. Stat. §§ 632.480-632.513, RSMo Supp. 1998.
2 Id.
3 Id. The statute defines sexually violent offenses to include forcible rape, rape, first degree statutory rape, sodomy, first degree sodomy, attempting any of the preceding, or first or second degree child molestation, sexual abuse, sexual assault, deviate sexual assault, or child abuse involving sexual contact as defined in § 632.480(4), RSMo Supp. 1998.
4 Kan. Stat. Ann. § 59-29a01 to -29a17 (1997).
5 521 U.S. 346 (1997). The court affirmed the statute in a 5-4 decision. The court found the act to provide adequate due process, and that it did not violate either the double jeopardy or ex post facto provisions of the Constitution. Id. For analysis of the double jeopardy and ex post facto aspects of the decision, see Steven I. Friedland, On Treatment, Punishment, and the Civil Commitment of Sex Offenders, 70 U. Colo. L. Rev. 73 (1999); Christine A. Cestaro, A Second Incarceration for Forced "Treatment" of Pedophiles: Leroy Hendricks' Battle Against the State of Kansas, 8 Geo. Mason U. Civ. Rts. L.J. 197 (1998).
6 John Makeig, Child Molester McQuay may get Wish to be Castrated, Hous. Chron., April 19, 1998, at 37.
7 Id.
8 Id.
9 Id.
10 Id.
11 Id. See Tex. Gov't Code Ann. § 501.061-501.062 (West 1998). The law allows a person convicted of a listed sexual offense to voluntarily choose to undergo an Orchiectomy (the clinical term for castration, or removal of the testicles) so long as they meet a list of guidelines, such as admitting committing the offense they are incarcerated for, undergoing a psychiatric and psychological evaluation, and being above the age of 21. Tex. Gov't Code Ann. §501.061(a) (West 1998). The law also provides for a study of the rate of recidivism among inmates who have undergone the procedure. Tex. Gov't Code Ann. § 501.062 (West 1998). The inmate may not present evidence during their sentencing that they are considering undergoing the procedure, and the fact that the inmate will undergo the procedure is to have no effect on a parole determination. Tex Crim. P. Code Ann. art. 37.07, 42.12 (West Supp. 1998).
12 Patricia L. Petrucelli, Megan's Law: Branding the Sex Offender or Benefitting the Community?, 5 Seton Hall Const. L.J. 1127 (1995).
13 Id.
14 See Ernie Allen and Nadine Strossen, Megan's Law and the Protection of the Child in the On-Line Age, 35 Am. Crim. L. Rev. 1319, 1321 (1998). Between the time of Megan's death and the first court challenge to the resulting New Jersey legislation entitled Megan's Law, 49 states had passed sex offender registration laws. Id.
15 See §§ 589.400(2), RSMo Supp. 1998. The law requires that anyone convicted of kidnapping, promoting prostitution, incest, abuse of a child, or using a child in a sexual performance by a child to "register with the chief law enforcement official of the county in which the person resides" within 10 days of moving into that county.
16 Ernie Allen and Nadine Strossen, Megan's Law and the Protection of the Child in the On Line Age, 35 Am. Crim. L. Rev. 1319, 1321 (1998). Between the time of Megan's death and the initial court challenge, 37 states had passed notification laws. Id. These figures had risen to all 50 states having sex offender registration laws by the summer of 1998, and 45 states having a form of community notification. Id. at 1322.
17 Kansas v. Hendricks, 521 U.S. 346, 354 (1997). Both the Kansas and Missouri laws provide that a sexually violent predator is a "person who . . . suffers from a mental abnormality . . . which makes the person likely to engage in the predatory acts of sexual violence" if not confined to a secure facility and has been convicted or found not guilty by reason of mental defect of a sexual offense. See also Kan. Stat. Ann. 59-29a02 (1997).
18 Id.
19 Id.
20 Id. (quoting App. at 190).
21 Id. at 355.
22 Id.
23 Id. at 356.
24 Id. (Quoting Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905)).
25 Robinson v. California, 370 U.S. 660, 666 (1962).
26 Id.
27 Steven I. Friedland, On Treatment , Punishment, and the Civil Commitment of Sex Offenders, 70 U. Colo. L. Rev. 73, 91 (1999). (Citing Foucha v. Louisiana, 504 U.S. 71, 95-96 (1992).)
28 309 U.S. 270 (1940).
29 Id. at 274.
30 Id. at 275.
31 Id. at 274.
32 Id. at 275-277.
33 383 U.S. 107 (1966).
34 Id. at 110.
35 Id.
36 Id. at 114-115.
37 422 U.S. 563 (1975).
38 Id. at 575.
39 Id.
40 Id. at 574.
41 Id. at 575.
42 Id. at 580 (J. Burger, concurring).
43 406 U.S. 715 (1972).
44 Id. at 738.
45 463 U.S. 354 (1983).
46 Id. at 370.
47 Id. at 364-366.
48 Id. at 368.
49 Id.
50 O'Connor v. Donaldson, 422 U.S. 563, 575 (1975).
51 504 U.S. 71 (1992).
52 Id. at 73.
53 Id. at 74.
54 Id.
55 Id. at 74-75.
56 Id. at 74
57 Id. at 78.
58 Id.
59 Id.
60 Id.
61 Id. at 79. (citing Jones v. United States, 463 U.S. 354, 368(1983)).
62 Id.
63 Id. (Citing Jackson v. Indiana, 416 U.S. 715, 738 (1972)).
64 Id.
65 Id. at 80. (Citing Zinermon v. Burch, 494 U.S. 113, 125 (1990)).
66 Id.
67 Id.
68 Id.
69 Steven I. Friedland, On Treatment, Punishment, and the Civil Commitment of Sex Offenders, 70 U. Colo. L. Rev. 73, 94 (1999). (citing In re Hendricks, 912 P.2d 129, 138 (Kan. 1996, Larson, J. dissenting), State v. Meyers, 923 P.2d 1024, 1031-32 (Kan. 1996).
70 Kan. Stat. Ann. §§ 59-29a01 to -29a19 (Supp. 1998).
71 Kan. Stat. Ann. § 59-29a02(a) (Supp. 1998).
72 Id.
73 Kan. Stat. Ann. § 59-29a03(a) (Supp. 1998).
74 Kan. Stat. Ann. § 59-29a06 (Supp. 1998).
75 Id.
76 Steven I. Friedland, On Treatment, Punishment, and the Civil Commitment of Sex Offenders, 70 U. Colo. L. Rev. 73, 95 (1999).
77 Hendricks, 521 U.S. at 355 n.2.
78 Id.
79 Id. at 346-47.
80 In re Care and Treatment of Hendricks, 912 P.2d 129 (Kan. 1996).
81 Kansas v. Hendricks, 521 U.S. 346 (1997).
82 Id. at 356.
83 Id.
84 Id. at 357.
85 Id.
86 Id.
87 Id. at 358.
88 Id. (Citing Kan. Stat. Ann. § 59-29a02(b) (1994)).
89 Id. at 359.
90 Id.
91 Id. (Quoting Ake v. Oklahoma, 470 U.S. 68, 81.).
92 Id.
93 Id. (Citing American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders xxiii, xxvii (4th ed. 1994).
94 Id. at 360
95 Id. (citing American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders xxiii, xxvii at 524-525, 527-528 (4th ed. 1994); American Psychiatric Association, Treatments of Psychiatric Disorders, 617-633 (1989); Abel & Rouleau, Male Sex Offenders, in Handbook of Outpatient Treatment of Adults 271 (M. Thase, B. Edelstein, & M. Hersen, eds. 1990)) The Court noted that not all psychiatrists classifying pedophilia as a "mental illness." Id. n. 3. (comparing Amicus Briefs from the American Psychiatric Association as Amicus Curiae 26 with Brief for Menninger Foundation et al. As Amici Curiae 22-25). The Court stated that these are the types of disagreements that allowed legislatures the latitude needed in drafting the statute. Id. n. 3 (citing Jones v. United States, 463 U.S. 354 (1983)).
96 Id.
97 Id.
98 Id.
99 Id.
100 Section 632.483(1)(1), RSMo 1999.
101 Section 632.483(2)(1-2), RSMo 1999. This notice is to be provided by the agency currently in charge of the sex offender. Id. The potential agencies are either the department of corrections, which is in charge of persons convicted of the listed crimes, or the department of mental health, which supervises any persons found not guilty by reason of mental defect of a listed offense, or those already committed to a mental facility. Id.
102 Section 632.483(4), RSMo 1999.
103 Id.
104 Section 632.483(5), RSMo 1999. The prosecutor's review committee is to be made up of five prosecutors, no more than three of which can be from urban counties (a term not defined in the statute). Id. The prosecutor from the county in which the person was convicted is to be one of the members of the committee. Id.
105 Id.
106 Section 632.486, RSMo 1999.
107 Id.
108 Section 632.489(1), RSMo 1999.
109 Id.
110 Section 632.489(2)(1-2), RSMo 1999.
111 Section 632.489(3)(1-4), RSMo 1999.
112 Id.
113 Section 632.489(4), RSMo 1999. The appointed person cannot have been part of the multidisciplinary team that made the previous determination as to whether the person was a candidate to be committed as a sexually violent predator. Id.
114 Id.
115 Id.
116 Section 632.492, RSMo 1999.
117 Id. While the previous section of the act does not include the right to have counsel appointed if one cannot be afforded, this section mentions that the right to have counsel appointed applies to the entire procedural process.
118 Id.
119 Id.
120 Section 632.495, RSMo 1999. If it is a jury trial, the jury verdict must be unanimous. Id.
121 Id.
122 Id. The statute authorizes the Department of Mental Health to house persons found to be sexually violent predators within the Department of Corrections. Id. During any time these persons are in the control of the Department of Corrections, they are not to be kept with any offenders who are under the control of the Department of Corrections. Id.
123 Section 632.498, RSMo Supp. 1998. The director may designate another person to perform the examination. Id.
124 Id.
125 Id. The director of the Department of Mental Health is to provide written notice to the committed person of this right each year. The notice is to be forwarded to the court with the director's annual report. If such a petition is filed, the person has the right to be represented by counsel at the hearing of the petition. However, the committed person does not have the right to be in attendance. The initial hearing determines if probable cause exists that the person's mental condition has changed, and they are no longer a danger to society. A later hearing is then scheduled, which the committed person is entitled to attend. At this hearing, all of the previous rights the committed person had (right to counsel, cross-examine witnesses, etc.) at the trial are still present. The attorney general represents the state and has the right to ask for a jury trial. An independent mental health exam is to be done on the committed person. The burden of proof is on the state to prove beyond a reasonable doubt that the person still suffers from a mental defect and is not safe to be in society.
126 Section 632.501, RSMo Supp. 1998.
127 Id.
128 Id.
129 Kevin Johnson, Sex Offenders Held After Prison Terms, USA Today, April 12, 1999, at A14.
130 Id.
131 Id.
132 John Q. La Fond, The Costs of Enacting a Sexual Predator Law, Psychology, Public Policy, and Law, 468 at 482 (1998).
133 Id.
134 Id.
135 Id.
136 Id. at 476-479. Among the facility costs are the expenses to maintain a dual facility with both treatment and security features. Id. at 479. The facility must contain treatment programs, staffs, directors, and other treatment related functions, as well as guards, monitoring devices, and other control features.
137 Section 632.495, RSMo 1999.
138 Hendricks, 521 U.S. 346 at 367.
139 Id.
140 Id.
141 Id.
142 Id. at 360 [FN3]. For comparison, see Brief for American Psychiatric Association as Amicus Curiae 26 and Brief for Menninger Foundation et al. as Amici Curiae 22-25.
143 Section 632.495, RSMo 1999.
144 Section 566.067, RSMo 1994.
145 Id.
146 Section 566.010, RSMo 1994.
147 Section 557.021(3)(1)(c), RSMo 1994.
148 Hendricks, 521 U.S. at 353.
149 Section 566.068, RSMo 1994.
150 Id.
151 Id.
152 Section 566.090, RSMo 1994.
153 See § 632.480(4), RSMo Supp. 1998.
154 Id.
155 Section 566.034, RSMo 1994.
156 Section 566.064, RSMo 1994.
157 See § 566.034, RSMo 1994, § 566.064, RSMo 1994. But see also § 566.020(3), which allows for the affirmative defense of mistake of age for any crime where the statute provides that the object of the crime is less than 17.
158 One other apparent loophole remains, however. Under current Missouri law, a 19-year-old person can engage in sexual intercourse with a 14-year-old person without violating any law, provided the relationship is consensual. (Section 566.032, RSMo 1994-"[a] person commits the crime of statutory rape in the first degree if he has sexual intercourse with another person who is less than fourteen years old.") This same couple continues their relationship for two years, when one person is 21 years of age and the other is only 16. The 21-year-old is now guilty of statutory rape in the second degree despite the fact that the conduct the person is engaging in was legal for the previous two years. Section 568.034, RSMo 1994. Either the conduct is criminal from the beginning, when the younger person was 14, or it is not. The younger person did not suddenly become too young to make an decision whether or not to engage in sex simply because the older person turned 21.
159 Section 566.068, RSMo 1994.
Mr. Bilbrey received his J.D. in 1999 from the University of Missouri-Columbia School of Law.