Kansas v. Crane, Michael (01/22/2002)

Questions presented: Does the 14th Amendment's due process clause require a state to prove that a sexually violent predator "cannot control" his criminal sexual behavior before the state can civilly commit him for residential care and treatment?

BY JESSICA EISENBERG, MEDILL NEWS SERVICE

Sexual assaults are often categorized as psychological crimes. In the case against Kansas sex offender Michael T. Crane, now 39, a psychologist in 1994 diagnosed him as suffering from antisocial personality disorder and exhibitionism.

In the psychologist's opinion, the combination of the two disorders makes Crane a sexual predator.

Crane was convicted of attacking a Leawood, Kan. video store clerk in 1993, and served five years in prison. At the time of his parole in 1998, the state argued that Crane was a sexual predator and therefore needed to be committed to a mental institution for rehabilitation.

The judge advised the jury that in order to commit Crane, they must find he had previous violations, and because of his mental state, was likely to re-offend. Based on those instructions, the jury found him in violation of Kansas sexually violent predator act.

But in the summer of 2000, the Kansas Supreme Court reversed, holding unanimously that the judge had misinterpreted a 1997 Supreme Court opinion, also out of Kansas, which compels the state to prove Crane suffers a volitional impairment rendering him dangerous beyond his control.

The Kansas attorney general's office disagrees with that interpretation of the 1997 Supreme Court decision, arguing it is impossible to determine with complete certainty that a person lacks total control over his behavior.

But what constitutes a sexual predator, and how can such an offender be distinguished from other dangerous persons?

The 1997 Supreme Court case in question involved a convicted pedophile, Leroy Hendricks. Hendricks had served almost 10 years of his sentence and was being released when the state filed a petition to commit him to a mental institution.

In a 5-4 ruling, the Supreme Court reversed a Kansas lower court ruling, and found that Hendricks could be civilly committed according to the sexually violent predator act because he suffered from pedophilia, a mental abnormality, and it had been shown that he could not stop molesting children if freed.

Hendricks admitted that when he got stressed out, he had thoughts of molesting children, and that his death was the only absolute way to prevent repeat attacks.

The Hendricks ruling has since caused some confusion about how sexually violent predator acts should be interpreted and applied to specific cases.

For example, under what circumstances should an offender, who has already served a criminal sentence, be indefinitely confined?

During oral arguments in Hendricks, Justice Anthony Kennedy asked why a sex offender is treated differently from a sociopath or arsonist. Like a pedophile, a sociopath (serial murderer) also poses a threat to society. So, where does the state draw the line?

In Hendricks, the state argued that sexual predators are a rare group of offenders, who because of their mental state, pose a threat to society and need ongoing psychological counseling.

Four years before the Supreme Court decision in Hendricks, Crane went into a tanning salon and exposed himself to the attendant. Thirty minutes later, he walked into a video store, waited for all the customers to leave and then attempted to rape, sodomize and kidnap the female clerk, while exposing himself to her and demanding she perform oral sex.

Unlike Hendricks, who admitted he suffered from an inability to control his behavior, Crane contends he can choose to refrain from re-offending.

But prosecutors argue it should be enough to show that because of his mental condition, Crane is likely to commit other sexual assaults.

Missouri State Solicitor James R. Layton, whose office filed a motion in support of Kansas' request for review by the U.S. Supreme Court, compared the issue in Crane to whether a serial rapist, who is capable of choosing when to attack, should remain on the streets.

"Defense would argue that under the standard, the rapist is making a conscious choice everyday. But we think he should be put away whether or not it's a conscious decision," Layton said.

Many states have similar predator laws. Washington was the first state to enact a sexual predator statute in 1990. According to Kansas' assistant attorney general Peggy Graham, Kansas adopted the statute almost word for word in 1994. Since then, many other states have written similar laws. In fact, in March 2001, Layton's office argued a similar case before the Missouri Supreme Court.

Almost 10 percent of the state prison population in 1994 were sex offenders, an increase from 6.9 percent in 1980, according to the Bureau of Justice Statistics. The majority of those predators are paroled and allowed back into society after serving time.

In addition, by August 1995, 43 states had enacted statutes that require sex offenders to register with a central registry agency or with the law enforcement agency in their community, according to the National Institute of Justice.

In Kansas, the sexually violent predator act was put into effect to ensure offenders receive the proper psychological treatment after parole to prevent repeat attacks.

"[If convicted of violating the sexually violent predator act], the perpetrator would go straight from prison to rehabilitation and would stay there until he is no longer a threat to society," Graham said.

There is a fine line in determining who is in violation of the act because there are various degrees of psychological disorders and reasons for committing sex offenses.

Some people are strictly criminals and are punished by the criminal justice system, while others cannot help themselves and once back in society are unable to stop themselves from sexually assaulting, Graham said.

"But there is a truly dangerous group of people who can't choose not to offend and this is where the concern is," Graham added.

Graham said she believes the Hendricks ruling essentially found that the state should prove that a sex offender has some lack of control but not necessarily a total lack of control.

"[Making an exact diagnosis] puts a lot of pressure on the psychologist. In the psychological world, that degree of certainty cant be reached," she said.

On April 2, 2001, the U.S. Supreme Court granted certiorari in the case and allowed Crane to proceed in forma pauperis.

While the state argued for the Court to uphold the Kansas law, which requires that mentally impaired sex offenders be rehabilitated, Crane argued that this interpretation of the sexually violent predator act makes it too easy to regard offenders as sexual predators and retain them indefinitely.

As the case pended before the U.S. Supreme Court, Crane remained confined to a mental institution.

On Jan. 22, 2002, the Court, by a 7-2 vote, held that Kansas can keep violent sex offenders locked up beyond their prison terms so long as the state proves the offenders lack some self-control.

Justice Stephen Breyer wrote the majority opinion. Justice Antonin Scalia wrote a dissent, with Justice Clarence Thomas joining, that criticized the majority for failing to advise states on how to address the issue of an inmate's lack of control.

"It is irresponsible to leave the law in such a state of utter indeterminacy," Scalia wrote.