1 In re Linehan, 518 N.W.2d 609, 616 (Minn. 1994) (Gardebring, J., dissenting).

2 In re Young, 857 P.2d 989, 1019 (Wash. 1993) (Johnson, J., dissenting).

3 See Durham, Mary L., Civil Commitment of the Mentally III: Research, Policy and Practice, in Mental Health and Law 17, 17Google Scholar (Bruce D. Sales & Saleem A. Shah eds., 1996). Civil commitment is defined as “the process by which individuals with mental illness or mental impairments … are compelled to receive care and treatment… either in inpatient or outpatient settings.” See John Parry, Mental Disability Law: A Primer 57 (5th ed. 1995). The confinement may be temporary, as for emergency commitments or commitments for evaluation and observation, or it may last for an extended time period. See id.

4 See Dan W. Brock, Involuntary Civil Commitment, in Mental Illness: Law and Public Policy 147, 164 (Baruch A. Brody & H. Tristram Engelhard:, Jr. eds., 1980).

5 See id. at 157.

6 See Stephen J. Morse, A Preference for Liberty: The Case Against Involuntary Civil Commitment of the Mentally Disordered, 70 Cal. L. Rev. 54, 58 (1982).

7 See id. at 58-59.

8 See PARRY, supra note 3, at 57.

9 See Brian MacQuarrie, Celluci Bill Targets Sexual Predators, BOSTON GLOBE, Feb. 5, 1999, at B2; Wilson Signs Measure Designed to Clarify Law for Post-Prison Civil Commitment of Sex Offenders, Metropolitan News-Enterprise, Jan. 29, 1996, at 11, available in LEXIS, News Library, Metnews File; Yumi Wilson, New Laws on Sex Offenders: More time possible for some inmates, S.F. CHRON., Oct. 11, 1995, at A13, available in LEXIS, News Library, SFCHRON File; Donna Halvorsen, Sexual Predator Bill OK'd, signed, Star Tribune, Sept. 1, 1994, at 1A, available in LEXIS, News Library, BUSDTL File; Thompson Signs Sex Crime Bill, Capital Times, May 27, 1994, at 3A, available in LEXIS, News Library, CAPTMS File.

10 See Erin Gunn, Comment, Washington's Sexually Violent Predator Law: The Predatory Requirement, 5 Ucla Women's L.J. 277, 279-80 n.13 (1994). Wisconsin, Kansas, Iowa and Minnesota have recently enacted laws permitting civil commitment of sex offenders. See id. Other states have followed this lead. See id. Washington, for example, enacted a new sex crime law in response to gruesome crimes against women and children, such as one in which a seven-year-old boy was kidnapped, raped orally and anally, stabbed in the back, strangled with a cord and mutilated. See Alexander D. Brooks, The Incapacitation by Civil Commitment of Pathologically Violent Sex Offenders, in Law, Mental Health, and Mental Disorder 384, 385 (Bruce D. Sales & Daniel W. Shuman eds., 1996). The statute increases sentences for convicted sex offenders, mandates registration and permits involuntary civil commitment for those likely to repeat their crimes. See id.

11 Kansas's statute targets: (1) a person who “has been convicted of or charged with a sexually violent offense” and (2) a person who “suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence.” See Kan. Stat. Ann. § 59-29a02(a) (Supp. 1997). Washington's statute is virtually identical. See Wash. Rev. Code § 71.09.020(1) (1998).

12 See Brooks, supra note 10, at 386.

13 See Kansas v. Hendricks, 521 U.S. 346, 388 (1997) (Breyer, J., dissenting). States with “Sexual Offense Commitment Statutes” include Arizona, California, Colorado, Connecticut, Illinois, Iowa, Kansas, Massachusetts, Minnesota, Nebraska, New Jersey, New Mexico, Oregon, Tennessee, Utah, Washington and Wisconsin. See id. at 397-98 (appendix to Justice Breyer's dissenting opinion).

14 See id. at 356. Justice Thomas delivered the opinion of the Court, in which Justices Kennedy, O'Connor, Rhenquist and Scalia joined. Justice Kennedy filed a concurring opinion. Justice Breyer filed a dissenting opinion, in which Justices Stevens and Souter joined, and Justice Ginsburg joined in part.

15 See id. at 353-54.

16 See id. at 356.

17 See id.

18 See id. 371.

19 See id. at 358. Prior to Hendricks, the Supreme Court held that for a person to be involuntarily committed, the Due Process Clause required a court's finding, by clear and convincing evidence, that a person had a mental illness and was dangerous. See Louisiana, Foucha v., 504 U.S. 71, 75 (1992)Google Scholar.

20 See Hendricks, 521 U.S. at 353-54.

21 See id. at 355-56.

22 See Joshua Dressler, Understanding Criminal Law § 10.01, at 101 (2d ed. 1995) [hereinafter UNderstanding Criminal Law]. The mens rea component refers to the state of mind of the defendant at the time the criminal act was committed. See id.

23 See id. § 9.01, at 69. The concept of actus reus includes both a voluntary act (or the failure to act when there is a duty to do so) and social harm resulting from that action. See id.

24 See id. § 1.01, at 2 (stating generally that a person is not criminally responsible for causing harm unless acting voluntarily, with a mentally wrongful state of mind, and in the absence of justification or excuse).

25 Even if Leroy Hendricks acted voluntarily and with a mentally wrongful state of mind, his conduct may be excused under an insanity defense. Justice Breyer asserted that “[t]he law has considered [Hendricks's] kind of abnormality akin to insanity for purposes of confinement.” See Hendricks, 521 U.S. at 375. Thus, Hendricks would lack moral blameworthiness and should have been excused from criminal responsibility.

26 The Due Process Clause states in relevant part: “No state shall … deprive any person of life, liberty, or property, without due process of law.” U.S. CONST., amend. XIV, § 1.

27 See The Supreme Court, 1996 Term, 111 HARV. L. Rev. 197, 267 (1997); Joan Biskupic, Court Gives States Leeway in Confining Sex Offenders, WASH. POST, June 24, 1997, at Al (quoting Lynn S. Branham, an Illinois attorney and professor of sentencing law, as saying “[t]his notion of ‘mental abnormality’ has the potential to dramatically expand the types of persons who can be confined”). Defense lawyers, civil libertarians and mental health professionals believe that Hendricks permits states to commit individuals who do not present a danger to society. See id.

28 See Kan. Stat. Ann. § 59-29a02(a) (Supp. 1997).

29 See Kansas v. Hendricks, 521 U.S. 346, 360 (1997).

30 See American Psychiatric Association, Diagnostic & Statistical Manual of Mental Disorders 16-17 (4th ed. 1994) [hereinafter DSM-IV] (classifying alcohol-, cocaine-, hallucinogenicand cannabis-related disorders).

31 The Supreme Court, supra note 27, at 268.

32 See id. at 267.

33 See O'Connor v. Donaldson, 422 U.S. 563, 575 (1975).

34 See id. at 575-76.

35 See Paul S. Appelbaum, Almost A Revolution: Mental Health Law and the Limits of Change 20 (1994).

36 See Gerald N. Grob, the Mad Among US: A History of the care of America's Mentally II I 14(1994).

37 See id. at 5.

38 See id. at 6. Colonial medical literature seldom mentioned mental illness. See id. at 7. Explanations of “madness” included both the natural and supernatural causes. See id. at 8.

39 See id. at 6.

40 Historically, the mentally ill were regarded as “insane,” “mad,” “lunatics” or “distracted” persons. See id.

41 See id. at 17.

42 See id. at 6-7.

43 See id. at 6. For example, when a “distracted” person wandered into one Massachusetts town during severe weather conditions, local public officials placed her with a local family at public expense until her original place of residence could be discovered. See id.

44 See id. at 16-17.

45 See id. at 16. A colonial soldier who killed his mother was acquitted by reason of insanity, but confined for life to a “small place” erected by his father in his home. See id.

46 See id. at 17.

47 See id.

48 See id. at 18.

49 See id. at 25.

50 See id.

51 See id.

52 See Michael L. Perlin, Law and Mental Disability § 1.01B (1994). Benjamin Franklin launched a colony-wide effort to raise funds. See GROB, supra note 36, at 19. His application to the provincial assembly illustrates justifications based both on protection of the public and providing care to mentally ill persons in need:

THAT some of them going at large, are a Terror to their Neighbors, who are daily apprehensive of the Violences they may commit; and others are continually wasting their Substance, to the great injury of themselves and Families, ill disposed Persons wickedly taking Advantage of their unhappy Condition, and drawing them into unreasonable Bargains, &c.

Id. at 19.

53 See Perlin, supra note 52, § 1.0IB. The Virginia act authorizing the public hospital reflects the dual policy bases of public safety and public welfare. On the one hand, the facility was designed “'to make provision for the support and maintenance of ideots, lunatics, and other persons of unsound minds.'” See GROB, supra note 36, at 20 (quoting 8 The Statutes at Large: Being A Collection of all the Laws of Virginia From the First Session of the Legislature in the Year 1619 378-81 (William W. Hening ed., 1809-1823)). At the same time, the legislation was justified on the basis that ‘"several persons of insane and disordered minds have been frequently found wandering in different parts of this colony’ and that ‘no certain provision’ had ‘yet [been] made either towards effecting a cure of those whose cases are not become quite desperate, nor for restraining others who may be dangerous to society.'” Id.

54 See GROB, supra note 36, at 19. Between 1752-54, the Philadelphia hospital admitted only 18 of 117 persons who were classified as insane. See id. That number grew to 34 by 1787. See id. Between 1786-90, Virginia's mental hospital only admitted 36 patients. See id. at 20-21.

55 See id. at 40. In Massachusetts, a state asylum was founded in 1830 and began a movement toward making state hospitals the center of mental health policy. See id. at 43. In contrast to the Philadelphia and Virginia hospitals, the Massachusetts asylum admitted relatively large numbers of patients, with 359 patients in 1846. See id. at 45. Similar institutions were established by other states as a “cult of asylum swept the country.” See David J. Rothman, the Discovery of the Asylum: Social Order in the New Republic 131 (1971).

56 See Appelbaum, supra note 35, at 19.

57 See GROB, supra note 36, at 48.

58 See id.

59 See id. at 49.

60 See Appelbaum, supra note 35, at 20. Until the second quarter of the nineteenth century, however, there were no specific legislative safeguards to protect a person from wrongful commitment. See id. Without any legal protections, the commitment procedures at the first hospitals were no more than simple record keeping. See id. Though some states regulated involuntary hospitalization, the laws were viewed only as administrative procedures. See id.

61 See id. at 19. Unfortunately, the rationale for judicial intervention may have been a mechanism to control costs rather than to protect individual rights. See id. For example, states tried to exclude the most chronic cases of mental illness. See id. If the family assumed the costs of treatment, however, judicial certification was not required. See id.

62 See id. at 20.

63 See id. Consequently, it was expected that most patients would be admitted involuntarily. See id.

64 See id. Such abuses are disputed by some critics who believed that wrongful commitment was relatively rare. See GROB, supra note 36, at 81. In 1860, one of the most prominent critics, Mrs. E.P.W. Packard, was committed for three years by her husband after refusing to obey him and for expressing ideas of religious mysticism. See id. at 84. She was later declared sane in a trial that received national publicity. See id.

65 See Perlin, supra note 52, § 1.01B.

66 See id.

67 See Appelbaum, supra note 35, at 20. Viewing such legislation as an attack on their professional competence and autonomy, the psychiatric community reacted negatively. See Perlin, supra note 52, § 1.01B.

68 See Perlin, supra note 52, § 1.01B; National Institute of Mental Health, Pub. NO. 51, A Draft Act Governing Hospitalization of the Mentally II I (1952), reprinted in The Mentally Disabled and the Law 397 (F.T. Lindman & D.M. Mclntyre eds., 1961). Two alternative grounds were offered for commitment: “(1) [t]he likelihood that the individual will injure himself or others if he is not confined, and (2) need of hospitalization and lack of sufficient insight or capacity to make responsible decisions with respect to the question of hospitalization.” See PERLIN, supra note 52, § 1.01B.

69 See Perlin, supra note 52, § 1.01C.

70 See id. As recently as 1974, 15 states allowed commitment on a finding of mental illness that rendered the individual in need of care and treatment. See id.

71 See Appelbaum, supra note 35, at 28. Although not containing an explicit dangerousness requirement, some civil commitment statutes were drafted broadly to allow consideration of dangerousness as a relevant factor. See generally, Developments in the Law, 87 HARV. L. Rev. 1190 (1974) (discussing civil commitment statutes effective at the time of the article's publication). For example, a 1957 Wisconsin civil commitment law authorized commitment of a person for compulsory treatment if the court or jury found that the person was mentally ill and a proper subject for custody and treatment. See Humphrey v. Cady, 405 U.S. 504, 509 n.4 (1972) (citing Wis. Stat. Ann. §§ 51.02(5), 51.03 (West 1957)). This statute defined mental illness as “mental disease to such extent that a person so afflicted requires care and treatment for his own welfare, or the welfare of others, or of the community.” See id. (quoting Wis. Stat. Ann. § 51.75 (West Supp. 1971)). Similarly, Indiana's 1972 general civil commitment law omitted explicit reference to dangerousness, but in practice allowed such consideration. See Jackson v. Indiana, 406 U.S. 715, 728 (1972). The statute first considered whether the individual had a “psychiatric disorder which substantially impairs his mental health.” See id. (quoting Ind. Code § 22-1201(1) (1971)). Psychiatric disorders included mental illness or disease, mental deficiencies, epilepsy, alcoholism or drug addiction. See id. (citing Ind. Code § 22-1201(2) (1971)). Next, the statute considered the effect of such mental illness. See id. The state could commit an individual so long as the individual needed treatment, training or detention, or confinement was in the welfare of the individual or welfare of the individual's community. See id.

72 See Appelbaum, supra note 35, at 20.

73 Jackson v. Indiana, 406 U.S. 715, 736 (1972). In 1845, for example, the Massachusetts Supreme Judicial Court upheld the commitment of an elderly man whose family sought to hospitalize him after he married an “unsavory” woman a few days after the death of his wife. See 8 Law Reporter 123, 127-29 (1846). Some regard this case as the first American case that endorsed “the therapeutic justification for restraint.” See Albert Deutsch, the Mentally Ill in America: A History of Their Care and Treatment From Colonial Times 423 (2d ed. 1949). The Court stated that “[t]he right to restrain an insane person of his liberty is found in that great law of humanity, which makes it necessary to confine those who going at large would be dangerous to themselves or others.” See 8 LAW REPORTER, supra, at 124. Most important, the Court described the scope of the powers as extremely far reaching:

Id. Accordingly, the state had the power to commit a person as long as he remained dangerous or in need of care. See id.

74 See Perlin, supra note 52, § 1.01B; Addington v. Texas, 441 U.S. 418, 426 (1979).

75 See Robert M. Levy & Leonard S. Rubenstein, the Rights of People With Mental Disabilities: the Authoritative Aclu Guide to the Rights of People With Mental Illness and Mental Retardation 16 (1996).

76 See id. Public health Codes mandating vaccinations or quarantines of people are another example of the state's police power. See id.

77 See Prochaska v. Brinegar, 102 N.W.2d 870, 872 (Iowa 1960).

78 See Appelbaum, supra note 35, at 23; PARRY, supra note 3, at 57 (noting that the civil commitment process received close constitutional scrutiny during the 1960s, 70s and 80s).

79 See Appelbaum, supra note 35, at 23. The Warren Court principally relied on the Equal Protection and Due Process Clauses of the Fourteenth Amendment. See id.

80 See Cady, Humphrey v., 405 U.S. 504, 509 (1972)Google Scholar.

81 See Appelbaum, supra note 35, at 23. The first series of opinions addressed those whose status “straddled the criminal justice and mental health systems.” See id. The second string of cases addressed civil commitment of juvenile delinquents. See id. at 24; see also, e.g., Baxstrom v. Herold, 383 U.S. 107 (1996) (addressing whether equal protection was denied where petitioner was committed to a mental institution at the expiration of his criminal sentence); Jackson v. Indiana, 406 U.S. 715 (1972) (discussing the constitutionality of certain aspects of Indiana's criminal system that permits the pretrial commitment of an accused).

82 See Baxstrom, 383 U.S. at 110.

83 See Specht v. Patterson, 386 U.S. 605, 610 (1967). The Court declared that Colorado's Sex Offender Act was not predicated on the commission of a specified crime. See id. at 608. Instead, the Court claims that one conviction serves as the basis for commencing another proceeding to determine whether a person constitutes a threat of bodily harm to the public, or is a habitual offender and mentally ill. See id. “The punishment under the second Act is criminal punishment even though it is designed not so much as retribution as it is to keep individuals from inflicting future harm.” Id. at 608-09.

84 See Jackson, 406 U.S. at 720.

85 See id. at 737. Justice Harry Blackmun noted the paucity of cases defining the scope of the civil commitment power: “[considering the number of persons affected, it is perhaps remarkable that the substantive constitutional limitations on this power have not been more frequently litigated.” Id. The defendant in Jackson was a twenty-seven-year-old mentally retarded person, who was deaf and could not communicate except through limited sign language. See id. at 717. In 1968, he was charged with two robberies: the first involved property valued at four dollars and the second concerned five dollars in money. See id. Although an evaluating psychiatrist testified that it was unlikely that the defendant could ever learn to communicate, the trial court committed him until he became “sane.” See id. at 719. Thereafter, the defendant's counsel filed a motion for a new trial, contending that the defendant was not insane and that the defendant was committed to what amounted to a life sentence without having been convicted of a crime. See id. The trial court denied the defendant's motion and the Supreme Court of Indiana affirmed. See id.

86 Id. at 738. The Court referred to a 1970 federal petition for habeas corpus involving an eightysix-year-old defendant committed for nearly 20 years after being found incompetent to stand trial. See id. at 735 (citing United States ex rel. Wolfersdorf v. Johnston, 317 F. Supp. 66 (S.D.N.Y. 1970)). The Wolfersdorf defendant had been found “not dangerous” and suitable for civil commitment. See id. The district court in Wolfersdorf granted relief, holding that the petitioner's incarceration in an institution for the criminally insane constituted cruel and unusual punishment, and that the “shocking circumstances” of his commitment violated the Due Process Clause. See id. at 735.

87 Chief Justice Warren Burger's concurrence in O'Connor v. Donaldson states the standard of review more explicitly: “[c]ommitment must be justified on the basis of a legitimate state interest,’ and the reasons for committing a particular individual must be established in an appropriate proceeding …. [Confinement must cease when those reasons no longer exist.” See 422 U.S. 563, 580 (1975).

88 See Jackson, 406 U.S. at 738. The Court noted that the statutory bases for commitment have included “dangerousness to self, dangerousness to others, and the need for care or treatment or training.” Id. at 737. In this case, the Court determined that the defendant's commitment did not relate to any of the purposes for which Indiana predicates “its power of indefinite commitment.” See id. at 737-38.

89 422 U.S. 563 (1975). Kenneth Donaldson's father initiated his commitment, claiming that his son suffered from “delusions.” See id. at 565. Donaldson was found to suffer from “paranoid schizophrenia,” and was committed for “care, maintenance, and treatment.” See id. at 565-66. At trial, there was uncontroverted testimony that Donaldson had posed no danger to others during his 15-year confinement, or at any point in his life. See id. at 568. No evidence at trial demonstrated that he had ever been suicidal or been thought likely to inflict injury on himself. See id. Prior to commitment, Donaldson had attended college and earned a living for 14 years. See id. at 568-69.

90 See Levy & Rubenstein, supra note 75, at 27.

91 See O'Connor, Ml U.S. at 566 n.2. The U.S. Supreme Court found that Florida's commitment law did not clearly specify grounds for commitment. See id. at 566-67. Although Florida law authorized persons adjudged mentally incompetent to be confined if they were dangerous to themselves or others, it also implied that “harmless incompetents” could be committed if treatment was necessary or beneficial. See id. at 566 n.2.

92 See id. at 573.

93 See id. at 574 (“the jury found that none of the above grounds for continued confinement was present in Donaldson's case”).

94 See id. at 574-75.

95 See id. at 574.

96 See id. at 573-74. The Court stated that We need not decide whether, when, or by what procedures, a mentally ill person may be confined by the State on any of the grounds which, under contemporary statutes, are generally advanced to justify involuntary confinement of such a person—to prevent injury to the public, to ensure his survival or safety, or to alleviate or cure his illness.

Id. By deferring discussion of purpose, the Court avoided the reasonableness standard of review it had developed only three years earlier. The Court's decision in Jackson v. Indiana established that “due process requires that nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.” 406 U.S. 715, 738 (1972). Had the Court desired to, it could have found that Donaldson's commitment did not reasonably relate to the state's purpose. However, the Court did not take this approach.

97 See O'Connor, 411 U.S. at 576.

98 Cf. id. at 575 (stating that “[e]ven if his involuntary confinement was initially permissible, it could not constitutionally continue after that basis no longer existed”). O'Connor cites a portion of Jackson v. Indiana in which that Court found that Theon Jackson's commitment did not “purport to bring into play, indeed did not even consider relevant, any of the articulated basis for exercise of Indiana's power of indefinite commitment.” See Jackson, 406 U.S. at 738-39 (emphasis added). Thus, the citation suggests that the O'Connor Court decided the case on procedural due process grounds.

99 O'Connor, 422 U.S. at 575. The Court “assum[es] that that term “mental illness” can be given a reasonably precise content and that the “mentally ill” can be identified with reasonable accuracy.” Id. The Court's assumption was unfortunate because there is no one definition of mental illness and involuntary civil commitment statutes present “a bewildering array of broad, narrow, and even circular definitions of mental illness.” See Perlin, supra note 52, § 1.02.

The Court offered two reasons against using “mental illness” as the sole criterion for civil commitment. See O'Connor, All U.S. at 575. First, confinement may not be used simply to raise the living standard of the mentally ill. See id. The Court's reasoning reflects a recognition for a mental ill person's dignity and self-determination. “[T]he mere presence of mental illness does not disqualify a person from preferring his home to the comforts of an institution.” Id. Moreover, in dismissing confinement as a “necessary condition for raising the living standards of those capable of surviving safely in freedom,” the Court's language suggests that commitment statutes should be subject to a more heightened standard of review. See id. Although a requirement of something more than mental illness seems to reject the “treatment” purpose that had been used to justify civil commitment, the Court deferred reaching that conclusion. See id. at 574 n.10. As the Court noted, “[t]here is … no occasion in this case to decide whether the provision of treatment, standing alone, can ever constitutionally justify involuntary confinement or, if it can, how much or what kind of treatment would suffice for that purpose.” Id. Second, confinement cannot be used to shield the public from exposure to the mentally ill. See id. at 575. “Mere public intolerance or animosity cannot constitutionally justify the deprivation of a person's physical liberty.” Id.

100 See Appelbaum, supra note 35, at 28.

101 463 U.S. 354 (1983). In Jones, the District of Columbia police arrested Jones for attempting to steal a jacket from a department store, a misdemeanor punishable by a maximum prison sentence of one year. See id. at 359. The lower court ordered that Jones be committed to a public hospital for the mentally ill for a competency determination. See id. Almost six months later, the hospital's psychiatrist submitted a report stating that Jones was competent to stand trial. See id. Accepting the psychiatric report, the court ruled Jones competent to stand trial, but found him not guilty by reason of insanity and recommitted him to the mental hospital. See id. at 360. After Jones had been hospitalized for more than one year, which exceeded the time period he could have been imprisoned had he been convicted, Jones demanded that he be released or recommitted under general civil commitment standards, which required proof by clear and convincing evidence of mental illness and dangerousness. See id.

102 Id. at 362.

103 Justice Powell cited Addington v. Texas in support of the Court's proposition in Jones. See id. However, the citation appears inapposite for two reasons. First, in Addington, Chief Justice Burger refers to a finding of mental illness and dangerousness as the statutory requirements of Texas's civil commitment statute, not as a function of the Due Process Clause. See Texas, Addington v., 441 U.S. 423, 426 (1979)Google Scholar. Second, Addington's appeal to the Supreme Court did not challenge the substantive merits of the Texas statute, but rather the standard of proof required for civil commitment. See id. at 421-22. Although Justice Powell stated in Jones that the Due Process Clause required clear and convincing evidence, see Jones v. United States, 463 U.S. at 363, Addington's holding was narrower, holding only that the Due Process Clause required a burden more than the preponderance of evidence standard, see Addington v. Texas, 441 U.S. at 432-33. Instead of specifically defining the precise standard, Chief Justice Burger remanded Addington to the Texas Supreme Court to determine the formulation of the standard. See id. at 433.

104 The legal standard was not created by an application of rational basis review or strict scrutiny. The Court did not explain how the requirement of mental illness and dangerousness related to the state's legitimate purposes of civil commitment. Moreover, the Court did not attempt to justify its introduction of substantive requirements for civil commitment.

105 See Louisiana, Foucha v., 504 U.S. 71, 76 (1992)Google Scholar.

106 See Brooks, supra note 10, at 385-86.

107 1994 Kan. Sess. LAWS 316, available in LEXIS, Legis Library, KSALS File (codified as amended at Kan. Stat. Ann. §§ 59-29a01 to -29al7 (Supp. 1994 & 1997)).

108 Kan. Stat. Ann. §§ 59-29a03 to -29al4 (Supp. 1994 & 1997).

109 See Kan. Stat. Ann. § 59-29a03 (Supp. 1997). In 1995, the Kansas legislature amended the Sexually Violent Predator Act (the Act), changing the notification period from 60 to 90 days and requiring the state attorney general to initiate commitment proceedings. See 1995 Kan. SESS. LAWS 251, § 33, available in LEXIS, Legis Library, KSALS File (codified as amended at Kan. Stat. Ann. § 59-29a03 (Supp. 1997)).

110 See Kan. Stat. Ann. § 59-29a03. The Act 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.” Id. § 59-29a02(a). Mental abnormality is defined as “a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.” Id. § 59-29a02(b). The definition of a sexually violent offense includes “indecent liberties with a child.” See id. § 59-29a02(e)(2).

111 See id. §59-29a04.

112 See id. § 59-29a05.

113 See id. §59-29a06.

114 Id. § 59-29a07(a).

115 See id. § 59-29a08.

116 Id.

117 See id.

118 See id. §59-29a10.

119 See id.

120 See id.

121 See Kan. Stat. Ann. § 59-29all (1994). The Kansas Supreme Court found this avenue of release “improbable.” See In re Hendricks, 912 P.2d 129, 133 (Kan. 1996).

122 See Kan. Stat. Ann. § 59-29al 1.

123 In re Hendricks, 912 P.2d at 130. Hendricks was scheduled for release on September 11, 1994, for serving a prison term of 5 to 20 years. See id.

124 Kansas v. Hendricks, 521 U.S. 346, 354 (1997).

125 See id.

126 See id.

127 See id.

128 See id. at 353.

129 See In re Hendricks, 912 P.2d 129, 136-37 (Kan. 1996).

130 See id. at 130.

131 See id.

132 See id. The state could have sought consecutive, rather than concurrent, sentences. See id. at 137.

133 See id. at 130. In the context of national sentencing patterns, Hendricks's light sentence is typical. Sentences for sexual offenses, even violent ones, are reportedly lenient. See Brooks, supra note 10, at 385. For example, although Montana's rape statute provides for sentences up to 40 years, 41% of convicted rapists served less than two years and 24% served no prison time. See id. at 385. One possible explanation for the short prison terms is that victims often refuse to testify at trial, thereby encouraging plea bargaining. See id. One study reported that 75% of rape convictions resulted from guilty pleas. See id. at 386 (citing B.M. Yarnold, A Political Court's Rape Sentencing in Montana, 12 BEHAV. SCI. & L. 299-312 (1994)). Plea bargaining also reduces serious sexual crimes to minor nonsexual offenses, rendering the offender's record inaccurate. See id. On a subsequent conviction, a judge will be unaware of the offender's criminal history, thereby reducing the severity of future sentences. See id. at 385-86.

134 See Hendricks, Kansas v., 521 U.S. 346, 353 (1997)Google Scholar.

135 See In re Hendricks, 912 P.2d at 130.

136 See id. The court reserved ruling on Hendricks's other grounds for dismissal. See id.

137 See id.

138 See id.

139 See Hendricks, 521 U.S. at 355-56.

140 See id. at 356.

141 See In re Hendricks, 912 P.2d at 133 (Kan. 1996).

142 See id. at 138. The court did not consider the other issues raised by Hendricks on appeal. See id.

143 See Hendricks, 521 U.S. at 350.

144 See id.

145 See id. This Note limits its analysis to Hendricks's due process claim.

146 See id. at 356.

147 See id.

148 See id. at 357.

149 See id.

150 Id.

151 See id.

152 See id.

153 See id. at 356-57.

154 See id. Under the Act, a person charged with a sexually violent offense, but not convicted, may be defined as a sexually violent predator (SVP). See Kan. Stat. Ann. § 59-29a02(a) (Supp. 1997). Thus, a person acquitted of a sexually violent offense could nonetheless be committed under the Act. The Hendricks opinion, however, does not explain how such an acquittal could result in an unambiguous finding of dangerousness.

155 See Hendricks, 521 U.S. at 357.

156 See id. at 358.

157 Id.

158 See id. at 359-60.

159 See Leslie Gielow Jacobs, Even More Honest Than Ever Before: Abandoning Pretense and Recreating Legitimacy in Constitutional Interpretation, 1995 U. ILL. L. Rev. 363, 369 (1995) (explaining that the “crux of interpretive legitimacy is that constitutional decision makers stay within their authorized role of interpreting the meaning of the Constitution”). For example, a court's power to strike down laws repugnant to the Constitution flows from Article III of the same document. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803) (holding that “a law repugnant to the Constitution is void”). Judicial review allows the courts to invalidate decisions of Congress and the President, subject only to the constitutional amendment process. See GEOFFREY R. STONE ET AL., CONSTITUTIONAL LAW 37 (3d ed. 1996). Chief Justice John Marshall, writing for the Court, established the court's power to ensure that legislatively enacted laws conform to the U.S. Constitution: “[i]t is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.” Marbury, 5 U.S. (1 Cranch) at 177.

160 505 U.S. 833, 865 (1992). In a plurality opinion, the Court affirmed the central holding of Roe v. Wade, 410 U.S. 113, 153-54 (1973), that the liberty guaranteed in the Fourteenth Amendment's Due Process Clause includes a woman's right to choose to have an abortion. See id. at 869. The Court stated that the “underlying substance of [the Court's] legitimacy is of course the warrant for the Court's decisions in the Constitution and the lesser sources of legal principle on which the Court draws.” See id. at 865.

161 See Hendricks, 521 U.S. at 356-60.

162 See Washington v. Glucksberg, 117 S. Ct. 2258, 2267-75 (1997); Bowers v. Hardwick, 478 U.S. 186, 189-96 (1986). Finding that fundamental rights were not at stake, Glucksberg and Bowers rejected the due process challenge based on rational basis review. See Bowers, 478 U.S. at 189-96; Glucksberg, 117 S. Ct. at 2267-75. As Justice Clarence Thomas asserted in his dissenting opinion in Foucha v. Louisiana: “I had thought that the analytical framework for evaluating substantive due process claims was relatively straightforward. Certain substantive rights we have recognized as ‘fundamental’; legislation trenching upon these is subjected to ‘strict scrutiny,’ and generally will be invalidated unless the State demonstrates a compelling interest and narrow tailoring.” See 504 U.S. 71, 115 (1992) (Thomas J., dissenting). As noted below, Justice Thomas did not resolve the substantive due process attack in Hendricks by the analytical framework he described in Foucha. See discussion infra Part IV.A (discussing the Foucha analytical framework).

163 See Hendricks, 521 U.S. at 356-60 (making no reference to fundamental rights, strict scrutiny or rational basis review). This is surprising because Justice Thomas, who wrote the Hendricks majority opinion, had previously chastised the Court for “ignoring” the “well-established analytical framework” for resolving substantive due process cases in his dissenting opinion in Foucha v. Louisiana. See 504 U.S. at 116 (Thomas, J., dissenting). Criticizing the majority's approach in Foucha, Justice Thomas observed: “[fjirst, the Court never explains whether we are dealing here with a fundamental right, and, if so, what right. Second, the Court never discloses what standard of review applies.” See id.

164 See Hendricks, 521 U.S. at 356-60.

165 See id. at 356-57.

166 See supra note 163.

167 See Foucha, 504 U.S. at 75-83.

168 If the Court chose to apply a new or different framework to these claims, then it should have indicated what reasons justified this change.

169 See id. at 80. Terry Foucha had been charged with aggravated burglary and illegal discharge of a firearm. See id. at 73. Initially, the lower court had found that Foucha lacked the mental capacity to proceed with trial, but later found him competent to stand trial. See id. At trial, Foucha was found not guilty by reason of insanity and committed to a mental institution. See id. at 74. Four years later, doctors at the institution reported that Foucha was no longer mentally ill and recommended him for discharge. See id. The trial judge, however, ruled that Foucha remained dangerous to others and ordered him returned to the mental institution. See id. at 75. On appeal, the Louisiana Supreme Court held that the Due Process and Equal Protection Clauses of the U.S. Constitution did not forbid the confinement of a defendant found not guilty by reason of insanity based solely on dangerousness. See id.

170 See id. at 78-79.

171 See id. at 79.

172 Id. at 80.

173 Id.

174 Id.

175 See id.

176 See id. at 86 (emphasis added). Only Justices Blackmun, Stevens and Souter joined Justice White in the discussion of Foucha's equal protection claim. See id. at 72.

177 See Bush v. Vera, 517 U.S. 952, 976 (1996). The Fourteenth Amendment “forbids the government to infringe on certain ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” See Flores, Reno v., 507 U.S. 292, 301-02 (1993)Google Scholar.

178 See Foucha, 504 U.S. at 79-83. Justice Thomas correctly points out the majority's error. See id. at 116-17 (Thomas, J., dissenting). Because the Court does not state a standard of review, it precludes the opportunity of working backward to deduce whether the Court considers freedom from physical or bodily restraint to be a fundamental right.

179 See id. at 80-83.

180 See id. First, the Court concluded that Foucha could not be imprisoned because he was not convicted of a crime. See id. at 80. Second, the Court concluded that Foucha could not be civilly committed because he was not presently mentally ill. See id. Third, the Court concluded that Foucha could not be confined as a dangerous person because his confinement, unlike the limited confinement to which persons who “pose a danger to others or the community” may be subject, could be indefinite. See id. at 80, 82.

181 See id. at 80 (noting that commitment of any kind should trigger due process protection).

182 Cf. id. at 117 (Thomas, J., dissenting).

183 See id. at 80 (citing Brandenburg v. Ohio, 395 U.S. 444 (1969) and Robinson v. California, 370 U.S. 660(1962)).

184 United States v. Salerno, 481 U.S. 739 (1987). In Salerno, the district court committed two defendants for pretrial detention pursuant to the Bail Reform Act (BRA) after concluding that “no condition or combination of conditions of release would ensure the safety of the community or any person.” See id. at 744. On appeal, the U.S. Court of Appeals for the Second Circuit concluded that pretrial detention on the ground of future dangerousness offended substantive due process. See id. The U.S. Supreme Court, however, reversed, holding that the BRA did not violate substantive due process. See id. at 751.

185 See Foucha, 504 U.S. at 81.

186 See id.

187 See id. at 80-83.

188 463 U.S. 354 (1983). In Jones, the Court concluded that a finding of not guilty by reason of insanity is sufficient to infer mental illness and dangerousness as the basis for civil commitment. See id. at 364.

189 See Foucha, 504 U.S. at 80.

190 See id. at 77.

191 See id. at 82-83.

This rationale would permit the State to hold indefinitely any other insanity acquittee not mentally ill who could be shown to have a personality disorder that may lead to criminal conduct. The same would be true of any convicted criminal, even though he has completed his prison term.

Id.

192 Id. at 83. The Court noted that Louisiana law did not allow for continuing confinement based merely on dangerousness, but instead controls dangerous persons by other means, such as punishment, deterrence and supervised release. See id.

193 See id. at 85.

194 See id. at 80.

195 See id. at 80-83.

196 The Act's preamble conceded that SVPs did not have a mental disease or defect that triggered confinement under the state's general involuntary commitment laws. See Kan. Stat. Ann. § 59-29a01 (1994). Further, the Act's terms “mental abnormality” and “personality disorder” were not universally supported by the psychiatric community. See Kansas v. Hendricks, 521 U.S. 346, 358-60 (1997).

197 Justice Kennedy conceded that “the practical effect of the Kansas law may be to impose confinement for life.” See Hendricks, 521 U.S. at 372.

198 See id. at 358-60. The Court noted that civil commitment must couple proof of dangerousness with “some additional factor.” See id. at 358. Moreover, the Court observed that terms of medical nature having legal significance are generally left to the legislators and do not always fit precisely with definitions given by the medical community. See id. at 359. Among the majority, only Justice Anthony Kennedy voiced concerns about the new standard. See id. at 373 (Kennedy, J., concurring). He stated that “[i]f, however, civil confinement were to become a mechanism for retribution or general deterrence, or if it were shown that mental abnormality is too imprecise a category to offer a solid basis for concluding that civil detention is justified, our precedent would not suffice to validate it.” Id.

199 See id. at 373-74. Justice Ruth Bader Ginsburg, without explanation, did not join the dissent in finding that the Act satisfied substantive due process. See id. at 373.

200 See id. at 374 (Breyer, J., dissenting)

201 See id. at 358-59 (noting that the Court has sustained civil commitment statutes requiring the presence of dangerousness and mental illness); id. at 374 (Breyer, J., dissenting) (indicating that civil commitment of a mentally ill and dangerous person satisfies the Due Process Clause).

202 See supra Part II.B.

203 Washington v. Glucksberg, 117 S. Ct. 2258, 2268 (1997) (citations admitted).

204 Id.; see also Reno v. Flores, 507 U.S. 292, 302 (1993) (stating that a careful description of the liberty interest is required); Collins v. Harker Heights, 503 U.S. 115, 125 (1992) (same); Cruzan v. Missouri Dep't of Health, 497 U.S. 261, 277-78 (1990) (same). This careful description is required because by labeling a right as fundamental, the Court “places the matter outside of the arena of public debate and legislative action.” See Glucksberg, 117 S. Ct. at 2268.

205 Addington v. Texas, 441 U.S. 418, 425 (1979).

206 See Foucha v. Louisiana, 504 U.S. 71, 86 (1992); see also Glucksberg, 117 S. Ct. at 2267 (noting that the “liberty” protected by due process is more than, but necessarily includes, freedom from physical restraint).

207 Foucha, 504 U.S. at 80.

208 See Brock, supra note 4, at 157.

209 See 1 F. Wharton, Criminal Law § 2, at 3 (12th ed. 1932).

If the [preventative] theory be correct, and be logically pursued, then punishment should precede, and not follow, crime. The State must explore for guilty tendencies, and make a trial to consist in the psychological investigation of such tendencies. This contradicts one of the fundamental maxims of English common law, by which not a tendency to crime, but simply crime itself, can be made the subject of a criminal issue.

Id.; see also Proctor v. State, 176 P. 771, 774 (Okla. Crim. App. 1918) (holding that punishing the mere intent to sell alcohol is “condemned by the due process provision of the Constitution”).

210 See generally Alan M. Dershowitz, Preventive Confinement: A Suggested Framework for Constitutional Analysis, 51 Tex. L. Rev. 1277, 1278-79 (1973) (noting historical authorities in favor and against the practice of preventive confinement). See also, e.g., Proctor, 176 P. at 772 (“Some overt act is the only sufficient evidence of criminal intent.”); State v. Painter, 67 Mo. 84, 89 (Mo. 1877) (“A bare intent to commit an offense is not punishable by our laws.”).

211 Recognizing criminal intent without the display of some external behavior is virtually impossible. See Understanding Criminal Law, supra note 22, § 9.02, at 71. “All mankind would be criminals, and most of their lives would be passed in trying and punishing each other … .” 2 James F. Stephen, A History of the Criminal Law of England 78 (1883).

212 See, e.g., 2 Stephen, supra note 211, at 78 (condemning individuals for simply evil thoughts would be “intolerable”); Gerald Dworkin & David Blumenfeld, Punishment for Intentions, 75 MIND 396, 401 (1966) (worrying over whether our thoughts were crimes would “impoverish and stultify the emotional life”); Understanding Criminal Law, supra note 22, § 9.01, at 70 (criminalizing thoughts would have little deterrent value).

213 Herbert Packer, the Limits of the Criminal Sanction 76 (1968).

214 See John Kaplan et al., Criminal Law 119 (3d ed. 1996).

215 See Bush v. Vera, 517 U.S. 952, 976 (1996).

216 See id.

217 See Brock, supra note 4, at 162-64.

218 See Kan. Stat. Ann. § 59-29a01 (1994).

219 See Redhail, Zablocki v., 434 U.S. 374, 388 (1978)Google Scholar (finding that the state's interest is not compelling when the methods of furthering those interests unnecessarily interfered with the fundamental right to marry); Griswold v. Connecticut, 381 U.S. 479, 479 (1965) (Goldberg, J., concurring) (“The law must be shown necessary, and not merely rationally related, to the accomplishment of a permissible state policy.” (quoting McLaughlin v. Florida, 379 U.S. 184, 196 (1964))); Shelton v. Tucker, 364 U.S. 479, 488 (1960) (noting that even when a government purpose is legitimate and substantial, “that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved”).

220 Shelton, 364 U.S. at 488. See. e.g., Zablocki, 434 U.S. at 389-90 (noting that the state could have used less drastic compliance methods to assure that support payments were made).

221 See Foucha v. Louisiana, 504 U.S. 71, 85-86 (1992). The Foucha Court observed that state law controls antisocial behavior of criminals who have completed their prison terms by relying on punishment, deterrence and supervised release. See id. at 85. Moreover, as the Court indicated, the criminal law incarcerates only those who are proved beyond reasonable doubt to have violated the law. See id. at 83.

222 See Hendricks, Kansas v., 521 U.S. 346, 360 (1997)Google Scholar. By confining only “a limited subclass of dangerous persons” who “suffer from a volitional impairment rendering them dangerous beyond their control,” the Hendricks Court explains that these persons are distinguished from “other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings.” Id. at 358-60.

223 Although both civil commitment and criminal incarceration result in confinement, the criminal law is a less drastic approach for dealing with dangerous persons because it confines individuals on the basis of prior acts and not future conduct. See id. at 361-65 (stating that civil commitment serves to prevent future behavior and, unlike criminal punishment, does not punish past misdeeds).

224 As Justice Kennedy has stated, “Mental illness may bear upon criminal responsibility, as a general rule, in either of two ways: [f]irst, it may preclude the formation of mens rea, if the disturbance is so profound that it prevents the defendant from forming the requisite intent as defined by state law; second, it may support an affirmative plea of legal insanity.” Foucha, 504 U.S. at 91 (Kennedy, J., dissenting).

225 Cf. Kansas v. Hendricks, 521 U.S. 346, 360 (1997) (“This admitted lack of volitional control, coupled with a prediction of future dangerousness, adequately distinguishes Hendricks from other dangerous persons who are perhaps more properly dealt with through criminal proceedings.”).

226 These standards include: (1) mental illness and dangerousness (the Foucha standard), see supra note 179 and accompanying text, (2) volitional impairment and dangerousness (the Hendricks standard), see supra note 198 and accompanying text, or (3) “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,” see Kan. Stat. Ann. § 59-29a02(a) (1994).

227 See Stone et al., supra note 159, at 567-70 (applying the inclusiveness tests to equal protection claims).

228 See LA. Rev. Stat. Ann. § 14 (West 1998). “If the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question, the offender shall be exempt from criminal responsibility.” See id. This standard is also known as the M'Naghten test. See Understanding Criminal Law, supra note 22, § 25.04, at 319.

229 The Foucha standard arguably passes the underinclusiveness test because both mental illness and dangerousness are inferred to all insanity acquittees whether or not the individuals have cognitive or volitional disorders. See United, Jones v. States, 463 U.S. 354, 363-64 (1983)Google Scholar.

230 See State v. Baker, 819 P.2d 1173, 1187 (Kan. 1991). Under the M'Naghten test for criminal insanity, a defendant is to be held “not criminally responsible (1) where he does not know the nature and quality of his act, or, in the alternative, (2) where he does not know right from wrong with respect to that act.” See id. Kansas has not adopted the “irresistible impulse” test, which some states and federal courts have formulated to encompass mental illness that affect volitional capacity. See Understanding Criminal Law, supra note 22, § 25.04, at 321.

231 See State v. Massey, 742 P.2d 802, 805 (Kan. 1987) (noting that “[i]t is a basic tenet of criminal law that the State punishes only voluntary acts”). The Model Penal Code exempts certain involuntary acts from criminal responsibility. See Model Penal Code § 2.01 (1985). These acts include a reflex or convulsion, bodily movement during unconsciousness or sleep, conduct during hypnosis or resulting from hypnotic suggestion, or a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual. See id. § 2.01(a)-(d).

232 See Massey, 742 P.2d at 807 (holding that unconsciousness caused by alcohol abuse renders an individual's act involuntary).

233 The Kansas insanity statute excludes individuals who cannot appreciate their act or distinguish right from wrong. See Baker, 819 P.2d at 1187.

234 See Kansas v. Hendricks, 521 U.S. 346, 358 (1997).

235 Kan. Stat. Ann. § 59-29a02(a) (Supp. 1997).

236 See id. § 59-29a02(a), (e).

237 This overlap causes a normative conflict. See supra notes 20-25 and accompanying text.

238 See Robert F. Schopp & Barbara J. Sturgis, Sexual Predators and Legal Mental Illness for Civil Commitment, 13 Behav. Sci. & L. 437, 449-53 (1995); Morse, supra note 6, at 58-87; Clifford D. Stromberg & Alan A. Stone, A Model State Law on Civil Commitment of the Mentally III, 20 HARV. J. ON LEGIS. 275, 275-86 (1983).

239 See PERL1N, supra note 52, at § 1.02.

240 See Schopp & Sturgis, supra note 238, at 446-49 (contrasting insanity, competence to stand trial and civil competence standards).

241 See id. at 447.

242 For example, insanity standards are generally based on a finding of mental disease or defect that prevents an individual from understanding the nature and quality of his conduct, or that his conduct is wrongful. See id. at 446. Similarly, competence to stand trial is based on whether a person's mental condition interferes with his capacity to understand the nature of the proceedings, consult with counsel and assist in preparing a defense. See Drope v. Missouri, 420 U.S. 162, 171 (1975); Schopp & Sturgis, supra note 238, at 447. Thus, legal standards focus on functional impairment that require a normative judgment. See id. at 446-47.

243 See Schopp & Sturgis, supra note 238, at 447.

244 See id. at 446.

245 See Robert F. Schopp & Michael R. Quattrocchi, Predicting the Present: Expert Testimony and Civil Commitment, 13 BEHAV. Sci. & L. 159, 167 (1995) (describing the role of mental health professionals in civil commitment proceedings and how courts should utilize clinicians’ professional opinions).

246 See id. at 166-70 (describing the clinician's role).

247 See id. at 166. The argument that individuals with mental illness are per se dangerous lacks empirical support. See id. at 164-66.

248 See id. at 167.

249 See id. Further, the reliability of a clinician's ability to determine dangerousness has also been criticized. See id. at 159-60 n.2.

250 See id. at 159.

251 See Schopp & Sturgis, supra note 238, at 450.

252 Id. at 452.

253 See id. These standards still do not explain the relationship between an individual's functional impairment and dangerousness. See id. For example, an individual's mild depression may make adherence to standard work hours difficult, causing the individual to become a thief because stealing does not require waking up at a regular time. See id. Alternatively, an individual with a learning disability who is ridiculed for not being able to read may lash out violently. See id. at 452-53.

254 See id. at 453.

255 See The Supreme Court, supra note 27, at 267.

256 See Kansas v. Hendricks, 521 U.S. 346, 358 (1997).

257 See DSM-IV, supra note 30, at 16-23.

258 See The Supreme Court, supra note 27, at 268.

259 See Robert F. Schopp, Sexual Predators and the Structure of the Mental Health System: Expanding the Normative Focus of Therapeutic Jurisprudence, 1 PSYCHOL. PUB. POL'Y & L. 161, 168-69(1995).

260 See id. at 162.

261 See id. at 167. The mental health system is a component of the system of social control, protecting the public from the injurious conduct of some members of society. See Schopp & Sturgis, supra note 238, at 453.

262 See Schopp & Sturgis, supra note 238, at 456.

263 See id.

264 See Schopp, supra note 259, at 166. By appealing to individuals who possess the capacity to comprehend a rule-based system and comply with the rules, the system is self-enforcing. See id. at 167.

265 See The Supreme Court, supra note 27, at 259.

266 See Schopp, supra note 259, at 169.

267 See supra note 228.

268 See supra Part V.B.

269 See Washington v. Glucksberg, 117 S. Ct. 2258, 2268 (1997).

270 See Foucha v. Louisiana, 504 U.S. 71, 72 (1992).

271 See supra Part IV.B.

272 See Bush v. Vera, 517 U.S. 952, 976 (1996).

273 See, e.g., Kan. Stat. Ann. § 59-29a01 (1994).

274 See cases cited in supra note 219.

275 Zablocki v. Redhail, 434 U.S. 374, 389 (1978) (noting that the state could have used less drastic compliance methods to assure that support payments were made); see also Shelton v. Tucker, 364 U.S. 479, 488 (1960) (observing that “the breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose”).

276 See Foucha, 504 U.S. at 85 (commenting that the criminal justice system protects society from nonmentally ill dangerous persons).

277 See STONE ET AL., supra note 159, at 567-70.

278 See discussion supra Part IV.B.

279 See discussion supra Part V.A.

280 See Schopp & Quattrocchi, supra note 245, at 167.

281 See Schopp & Sturgis, supra note 238, at 456

282 In 1996, Missouri passed a law mandating life sentences for sex offenders. See Bell, Bill, Governor Signs Law to Keep Sexual Predators Locked Up; Offenders May be Forced to Undergo Treatment, St. Louis Post-Dispatch, July 3, 1993Google Scholar, at B3, available in 1998 WL 7921524. Last year, the Colorado Sex Offender Lifetime Supervision Act proposed sentencing sex offenders to indefinite terms and requiring lifetime probation. See Lifetime Parole Urged for Abusers, Rocky Mtn. News, Jan. 15, 1998, at A21, available in LEXIS, News Library, RMTNEW File. Similarly, a Nebraska bill proposes tougher mandatory sentences, including the imposition of life sentences for sex offenders. See Robynn Tysver, Bills Target Habitual Rapists Measures Call for Tougher Sentences, Mental-Health Evaluation, Omaha World-Herald, Jan. 15, 1999, at 11, available in LEXIS, News Library, OMWHLD File.

283 See e.g., Man Gets Maximum for Raping 12-Year-Old; Allentown ‘Predator’ Gets 7 Years to Life in Jail, THE MORNING CALL, Feb. 5, 1998, at B4, available in LEXIS, News Library, MRNCLL File (finding by State Sex Offender Assessment Board that a 39-year-old rapist was sexual predator, enabling the court to sentence him to life imprisonment).