APA filed an amicus curiae brief in the United States Supreme Court case Kansas v. Hendricks to oppose a state's involuntary commitment of a convicted pedophile after completion of his criminal sentence. The case was heard last month and a decision is expected this spring.

APA's president, speaker, and medical director in an executive action authorized the Commission on Judicial Action last July to prepare and file the brief. The case drew APA's interest because it involves issues of psychiatric diagnosis, civil commitment, treatment of sex offenders, and predictions of dangerous behavior, according to Richard Ciccone, M.D., chair of APA's Commission on Judicial Action.

The Board of Trustees ratified the executive action in September and Ciccone updated the Trustees in December.

The Supreme Court is expected to rule on the controversial issue of whether a state is allowed under the Constitution to detain a repeat sex offender in a mental hospital after he serves his sentence for a criminal conviction.

APA argues that Kansas's commitment of Leroy Hendricks under the 1994 Kansas Sexually Violent Predator Act is unconstitutional because it lacks a noncriminal basis. The state petitioned for commitment shortly before Hendricks was due to be released in 1994 after serving a 10-year sentence for molesting children.

The Kansas law does not refer to a mental disease or disorder, which would allow for civil commitment of incompetent individuals, said Ciccone. Instead, the law refers to a mental abnormality which it defines "as having been convicted of committing or attempting to commit sexual crimes and being likely to commit the act again based on a preponderance of evidence," said Ciccone. Likelihood only refers to a 51 percent chance, which is the lowest standard of legal proof, according to a December 11 New York Times article referred to by Ciccone.

Moreover, "the law violates constitutional issues of due process, double jeopardy and equal protection," said Ciccone.

The state appealed the case after the Kansas Supreme Court ruled last year that the law "violates federal substance of due process. It provides, outside the criminal process, the definite locking up of people who do not have a mental illness," according to Ciccone's report.

APA agrees with that ruling and noted that Kansas could have sought imprisonment of up to 20 years under the state recidivism statute when it sentenced Hendricks, but plea bargained instead.

APA also argues that Kansas's asserted interest in treatment is not strong enough to overcome the predominantly criminal character of this confinement. Ciccone commented, "Instead of sending Hendricks to a treatment facility, the state sent him to a secure facility that is shared with inmates from a jail." Moreover, "the director of the facility said on deposition that he had no knowledge or experience in treating sex offenders."

"We also disagree with the oral argument by Kansas's attorney general that the state provided 32 hours of treatment to Mr. Hendricks," said Ciccone.

Richard Taranto, legal counsel to APA's Commission on Judicial Action, described the justices' reactions to oral arguments heard December 10. "There was a strong sense on the part of the court to consider collectively that we have a very bad man in Hendricks, and the best thing to do is to keep him locked up."

"It also troubled the court that if Kansas could lock this man up permanently and effectively by predicting future criminal acts based on his past 40-year history, then how broad a category of preventive detention would be permitted under that rationale?"

Preventive detention is designed to prevent harm to others and has been upheld only in very limited circumstances, according to APA's brief.

Taranto could not predict how the justices would answer that question, but offered, "it would not surprise me if we get a set of less than majority opinions picking at little pieces of the statute, like the burden of proof. This would delay any definitive resolution of the larger issue of what it means to lock people up before they commit crimes in a free society."

The case is being closely watched by states with similar laws_ Arizona, Washington, Minnesota, Wisconsin, and California. Thirty-seven states filed an amicus brief urging the justices to uphold the law, noted the New York Times article.

(Psychiatric News, January 3, 1997)