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Construing Crane: Examining How State Courts Have Applied its Lack-of-Control Standard

The Supreme Court recently upheld the constitutionality of a federal statute that authorizes the Department of Justice to civilly commit federal prisoners after their release if they suffer from a mental illness or abnormality that causes “serious difficulty in refraining from sexually violent conduct.” Not only has the federal government authorized civil commitment for sexually violent predators, but as of 2009, twenty states have also enacted statutes authorizing the same. By 2006, more than 3646 people had been detained or committed under these laws. Such commitments generally occur in secure mental health facilities, some of which are connected to, or within, prisons. A person committed under a sexually violent predator law is committed until he no longer presents a danger to the community. This often results in commitment for life; the New York Times reported that, as of 2007, only 250 civilly committed sex offenders had been released from confinement. Often unsympathetic characters in the courtroom, sex offenders face an uphill battle in proving that they should be set free despite their past offenses.

Statutes providing for the civil commitment of sexually violent predators typically require that the State prove at least three elements before commitment can be effected: (1) the defendant must have been convicted of, or at least have been charged with, a sexually violent offense; (2) the defendant must have a mental disorder or abnormality, generally 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”; and (3) there must be a prediction of future dangerousness—a likelihood that the defendant will continue to engage in sexually violent behavior. In the landmark decision Kansas v. Crane, the Supreme Court held that, in addition to these statutory elements, “there must be proof of serious difficulty in controlling behavior” before the state may, consistent with due process, subject the defendant to civil commitment.

While the application of Crane’s holding—that there must be proof that the offender lacks control—is problematic on account of its ambiguity, this Comment argues that there are ways in which courts can better apply the standard to ensure that due process is provided to defendants. Specifically, Crane mandates that states require a separate finding on the issue of whether the defendant has serious difficulty controlling his behavior. In light of this mandate, states should attempt to operationalize the evidentiary requirement by developing a standard definition—grounded in the norms and judgment of the community—on the issue of what constitutes serious difficulty in controlling oneself to assure a more consistent and fair application of the concept across cases. In addition, state courts should restrict expert testimony to a qualitative description of the defendant’s ability to control himself rather than permitting experts to render ultimate conclusions. Lastly, juries should be instructed that there is no generally accepted method for measuring volitional impairment in the mental health community. These procedures will help ensure that the trier of fact understands that “proof of serious difficulty in controlling behavior” is a legal standard and can then properly weigh expert testimony.