Post-commitment Review and Release Procedures Under SVPA

In Kansas v. Hendricks (1997) 521 U.S. 346, the United States Supreme Court addressed whether the Kansas Sexually Violent Predator Act (SVPA) satisfied "'substantive' due process requirements" (Hendricks, supra, 521 U.S. at p. 356) and whether the law violated the double jeopardy or ex post facto clause. The Kansas statutory scheme defined a sexually violent predator as a 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. at p. 352.) At issue in the court's due process analysis was the statutory definition of a "mental abnormality," which the Kansas statutory scheme defined as a "'congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.' " (Ibid.) The court explained that the Kansas statutory scheme "requires a finding of future dangerousness, and then links that finding to the existence of a 'mental abnormality' or 'personality disorder' that makes it difficult, if not impossible, for the person to control his dangerous behavior. " (Id. at p. 358.) The court found that the definition of "mental abnormality" in the Kansas statutory scheme was consistent with the requirements of other statutes that it had upheld and concluded that the definition satisfied due process requirements. (Id. at pp. 356-360.) Although the Hendricks court described the post-commitment procedures under the Kansas statutory scheme (id. at p. 353), it did not consider these procedures in its due process analysis. Thus Hendricks is inapposite. In Foucha v. Louisiana (1992) 504 U.S. 71, the United States Supreme Court considered the constitutionality of a Louisiana statutory scheme that provided for the commitment in a psychiatric hospital of an individual found not guilty by reason of insanity. The Lousiana law allowed the continued commitment of an individual who was dangerous, but not necessarily mentally ill. (Id. at p. 73.) The Supreme Court explained that "to commit an individual to a mental institution in a civil proceeding, the State is required by the Due Process Clause to prove by clear and convincing evidence the two statutory preconditions to commitment: that the person sought to be committed is mentally ill and that he requires hospitalization for his own welfare and protection of others." (Foucha, supra, 504 U.S. at pp. 75-76.) However, when a person is found not guilty by reason of insanity, a separate hearing establishing mental illness and dangerousness is not required, because these requirements may be "properly inferred" from the verdict. (Id. at p. 76.) Nonetheless, "'the committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous,' ; i. e., the acquittee may be held as long as he is both mentally ill and dangerous, but no longer." (Id. at p. 77.) Because there was no evidence that Terry Foucha was suffering from a mental illness, the Supreme Court determined that due process precluded his continued commitment. (Id. at pp. 77-80.) The Supreme Court also observed that "Foucha is not now entitled to an adversary hearing at which the State must prove by clear and convincing evidence that he is demonstrably dangerous to the community. Indeed, the State need prove nothing to justify continued detention, for the statute places the burden on the detainee to prove that he is not dangerous." (Foucha, supra, 504 U.S. at pp. 81-82.) The court in Foucha explained that a person who poses a danger to others may be subject to limited confinement in "certain narrow circumstances." (Foucha, supra, 504 U.S. at p. 80.) For example, in United States v. Salerno (1987) 481 U.S. 739, the court rejected constitutional challenges to a statute providing for the pretrial detention of dangerous arrestees. The Foucha court explained that the "sharply focused" statute in Salerno provided, among other limitations, that only those arrested for the most serious of crimes (such as violent crimes and those punishable by life imprisonment or death) could be detained, the government had to prove by clear and convincing evidence that the arrestee posed a danger to the community, and the maximum duration of the pretrial detention "was limited by the 'stringent time limitations of the Speedy Trial Act.' " (Foucha, supra, 504 U.S. at p. 81.) In contrasting the confinement scheme described in Salerno with the Louisiana statutory scheme (see id. at p. 73) under which Foucha was confined, the court in Foucha made clear that in order to detain for dangerousness alone, the Louisiana statutory scheme needed to be more "carefully limited" (id. at p. 81) in order to "to defeat Foucha's liberty interest under the Constitution in being freed from indefinite confinement in a mental facility" (id. at p. 82). Further, after summarizing the evidence that had been introduced against Foucha, the court found little evidence that he was dangerous. (Id. at p. 82.) It was in this context that the court objected to placing the burden of proof on Foucha.