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Unformatted text preview: Ch1. Why We Have Law
PP6. Protection of Public Welfare Issues to Consider Public welfare refers to a society's well being
in terms of its health, safety, order, morality, economics and politics Parens Patriae Parens Patriae doctrine allows for the state
to provide for those unable to care for themselves There are 3 conditions under which the State is able to exercise its Parens Patriae power: Mental incapacitation of an adult, when no family able to care for the person Physical incapacitation of an adult, when no family able to care for the person Minor without parents or a guardian Police Power vs. Parens Patriae Power How does the State's parens patriae power differ from police power (considered under Order Maintenance)? Parens Patriae Power of the government to protect those unable to care for themselves Police Power Power of the government to make all laws necessary to protect public safety, health, morality, and justice Legal Reading Case: Kansas v. Hendricks Court: U.S. Supreme Court Lesson: One reason we have law is to protect the public welfare by protecting society and its citizens I.e., Combining the State's Police and Parens Patriae Powers Sexuall y Violent Predator Act The Kansas Legislature enacted the Sexuall y Violent Predator (SVP) Act (Act) in 1 994 to grapple with the problem of managing repeat sexual offenders Existing civil commitment procedures of those defined as "mentall y ill" could not be applied to confront the risks presented by sexuall y violent predators Legislature' s Reasons for Act SVPs are extremel y dangerous SVPs do not have a mental illness, so they cannot be involuntaril y civill y committed for it SVPs typicall y have antisocial personality features, which are not amenable to existing mental illness treatment approaches The prognosis for rehabilitating SVPs in a prison setting is poor The treatment needs of this population are long ter m What is a Sexuall y Violent Predator? The Act defined a SVP as any person who: Has been convicted of or charged with a sexuall y violent offense, and Suffers from a mental abnor mality or personality disorder (defined in next 2 slides) Which makes the person likel y to engage in the predator y acts (i.e., intended to injure or exploit others) of sexual violence What is a Mental Abnormality? A mental abnor mality was defined as a: Congenital or acq uired condition Affecting the emotional or volitional capacity (i.e., ability to act voluntaril y) Which predisposes the person to commit sexuall y violent offenses T o such a degree that the person is a menace to the health and safety of others What is a Personality Disorder? A personality disorder is: Continuing patter n of inflexible thoughts and behaviors That deviate from the expectations of society Who Does the Act Cover? SVP commitment procedures per tained to: a confined prisoner who, like Hendricks, had been convicted of a sexuall y violent offense and is scheduled for release a person who has been charged with a sexuall y violent offense but had been found incom petent to stand trial a person who has been found not guilty by reason of insanity of a sexuall y violent offense a person found guilty of a sexuall y violent offense but ha a mental disease or defect KS law req uires juries to identify whether the verdict was solel y due to its belief about the defendants mental illness ' If found to be an SVP... Person is then transferred to the custody of the Kansas Secretary of Social and Rehabilitation Services (Secretary) for control, care and treatment Person is released when his mental abnormality or personality disorder has so changed that he no longer poses a danger to the community Procedural Safeguards The burden of proof is on the State [i.e., State has to prove that that the person is a SVP] In the case of an indigent (poor) person, the State is required to provide the assistance of a lawyer and an examination by mental health professional The individual also has the right to present and cross-examine witnesses, and the opportunity to review documentary evidence presented by the State Once an individual is confined, the Act requires that the involuntary commitment conforms to constitutional requirements for care and treatment SVPs can have their confinement reviewed: (1) Committing court is obligated to conduct an annual review to determine whether continued detention is warranted (2) If the Secretary decides that the SVP's condition has so changed that release is appropriate, he can authorize the person to petition for release (3) Even without the Secretary's permission, the SVP can at any time file a petition for release with a court 19 5 19 5: E x po se 57 The Case of Leroy Hendricks d hi : C s on ge vi ni ct ta 19 ed ls 60 to o : M f l 2 ew y ol ou es 19 dn ng te 62 es d g : M s 2 irl wi yo ol s th es un Pe a te g y rfo d bo ou a rm ys ng 7 ed ye g Fo o ar irl ra o nd l s ld le g ex d irl an o n 1 Im a 1 8 pr ye ye is ar on ar o o ed ld ld in 19 b g oy 72 1 irl 96 : 7 Se xu 19 al 84 bo ly : T a ys bu oo se 19 k "in d 94 st de : A ep ce fte ki nt ds r 1 li fo 0 be yr r 4 rti s y es in ea p " w rs ris ith on 2 , S 1 3 ta y te ro fi le ld d SV P pe Hendricks' SVP Commitment On August 19, 1994, Hendricks appeared before the court with counsel and moved to dismiss the petition on the grounds that the Act violated the U.S. Constitution The Trial Hendricks admitted that: He had repeatedly abused children, whenever he was not confined He cannot control the urge to molest children, when he gets stressed out His death was the only sure way to keep him from sexually abusing children in the future He suffers from pedophilia (i.e., sexual perversion in which children are the preferred sexual object) He believed that treatment does not work The Experts State's expert testimony: Licensed clinical social worker: "Hendricks suffered from pedophilia" Chief psychologist at the State Hospital: "Hendricks suffered from pedophilia and was likely to commit sexual offenses against children in the future if not confined" Hendricks' expert testimony: Forensic psychiatrist: "It is not possible to predict with any degree of accuracy the future dangerousness of a sex offender" Jury Conclusion The jury unanimously found beyond a reasonable doubt that Hendricks was an SVP subsequently determined The trial courtHendricks appealed that pedophilia qualifies as a mental abnormality as defined by the Act and ordered Hendricks committed to the Secretary's custody U.S. Supreme Court: Legality of SVP Commitment Individuals have a constitutionally protected interest in avoiding physical restraint BUT this interest may be overridden even in the civil context: There are many restraints to which every person is subject for the common good Involuntary commitment statutes are LEGAL If the confinement takes place using proper procedures and proper evidentiary standards Involuntary Commitment Statutes So was K S using proper procedures and evidentiary standards? The Kansas statute requires: Past sexually violent behavior + a present mental condition Why might these factors be considered important? Could past instances of violent behavior be important in this determination? Why? Civil commitment statutes are constitutional if they require dangerousness + some additional factor such as a mental illness or mental abnormality The Kansas Act is identical: It 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 (i.e., the person lacks volitional control) Future Dangerousness Mental Abnormality or Personality Disorder Lack of control st Hendrick's that mental illness Hendricks argued 1 Argument should be required and not mental abnormality The latter is a term coined by the Kansas Legislature and not the psychiatric community "Mental illness" has no magical
significance Legislators must define terms for legal use, even if they are of a medical nature Those definitions do not have to fit precisely with the definitions employed by the medical Supreme Court Disagreed Hendricks was diagnosed as suffering from pedophilia (= a mental abnormality) Hendricks even conceded that when he becomes stressed out he cannot control the urge to molest children (=lack of volitional control/future dangerousness)
Mental abnormality Pedophilia Lack of control Admitted Future Dangerous Lack of control & Past violent behavior Hendrick's 2nd Argument The Act fails to offer any legitimate treatment to Hendricks Without treatment, confinement under the Act amounts to little more than disguised punishment Incapacitation may be a legitimate end of the civil law E.g., States can involuntarily confines persons afflicted with an untreatable, highly contagious disease Supreme Court Disagreed The Act also provides that the Secretary has an obligation to provide treatment to individuals like Hendricks (even if treatment was not the primary concern) Hendrick's was under the supervision of the Kansas Department of Health and Social and Rehabilitative Services Housed in a unit segregated from the general prison population and operated by trained individuals, not employees of the Department of Corrections Persons committed under the Act are now receiving 31.5 hours of treatment per week States enjoy wide latitude in developing treatment regimens The State advances its goal of treating rather than punishing SVPs by committing them to an institution expressly designed to provide mental health care and treatment Therefore, Kansas has satisfied its obligation to provide available treatment! Issues in Protecting Society and its Citizens As noted earlier, involuntar y civil commitment is a legal procedure under which the state can commit a mentally person to involuntar y inpatient or outpatient care The legal standard for civil commitment is: Mental Illness (Ser ious) + Dangerousness to self or others Mental Illness (Ser ious) + Grave Disability Mental Illness (Ser ious) + Unable to make a rational decision about need for treatment (limited use) There are dilemmas inherent in tr ying to implement the legal standard for traditional civil commitment or SVP Civil Commitment: How much MI is required? How much dangerousness is required? Can dangerousness be past, cur rent or future? Can dangerousness be against property or just persons? Once committed, how accurate are release decisions (i.e., predictions about future dangerousness) likely to be given that the person has been institutionalized?
cont. on next slide If there is no treatment, or if the treatment is not proven to be ef fective , how can we claim parens patr iae partially justif ies the commitment? By blending the State's parens patr iae power with its Police Power, has the State developed a subter fuge (i.e., a deceptive strategy) for pr imar ily achieving social control objectives? If preventive detention is constitutionally prohibited, why allow involuntar y commitment of the mentally ill or SVPs? ...
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- Spring '07