Kansas v. Crane – Oral Argument – October 30, 2001

Media for Kansas v. Crane

Audio Transcription for Opinion Announcement – January 22, 2002 in Kansas v. Crane

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William H. Rehnquist:

We’ll hear argument next Number oh oh nine five seven, Kansas versus Michael Crane.

General Stovall.

[Inaudible]

Carla J. Stovall:

Mr. Chief Justice, thank you, and may it please the Court.

The Kansas Supreme Court has erroneously read this Court’s decision in Kansas V Hendricks as requiring a showing that a potentially sexually violent predator cannot control his behavior and that such a requirement has supplemented the two requisites for civil commitment that this Court has approved in and since the Addington case.

Those two requirements, as you know, are mental illness and dangerousness.

The volitional impairment that the Kansas Supreme Court has ruled was constitutionally required for civil commitment ignores the fact that psychological disorders, such as antisocial personality, can impair an individual in behavior, cognitive, perceptual, emotional, and even intellectual capacities.

This Court has never indicated that there’s anything constitutionally significant about a volitional impairment.

[Inaudible]

William H. Rehnquist:

There was a good deal of reference in our Hendricks opinion to the to the apparent fact that the person there had what was volitionally impaired.

You’re saying that was descriptive rather than essential to the holding?

Carla J. Stovall:

I’m saying it was descriptive.

Mr. Hendricks had apparently, and according to himself only, an inability to control his own behavior.

And so, when the majority wrote about Mr. Hendricks, they used that kind of a…

description.

Well, but…

Sandra Day O’Connor:

we also relied on prior authority that made some reference to lack of control.

Carla J. Stovall:

Well, if this Court says that there needs to be some volitional impairment displayed, we would suggest that it just be merely some impairment.

show.

Sandra Day O’Connor:

think that’s the standard adopted in the court below that we’re reviewing?

Carla J. Stovall:

I do.

Sandra Day O’Connor:

Total impairment?

Carla J. Stovall:

I do.

Antonin Scalia:

do you acknowledge that lack of ability to control one’s unlawful conduct and volitional impairment are one and the same thing?

Carla J. Stovall:

No, I do not.

Antonin Scalia:

Suppose I’m delusional and and I think that that people I see are Satan.

Carla J. Stovall:

Your Honor, that’s…

Antonin Scalia:

You call that a lack of volitional control or d- or delusion?

Carla J. Stovall:

I would consider that delusional and not a va- a lack of volitional control and the problem with the Kansas Supreme Court’s decision is that it says the only thing that we consider is volitional impairment, but there are many kinds of impairments individuals have that are the result of their mental disorder, and so the Kansas court is necessarily limiting the psychiatric diagnosis to say only volitional…

impairment —

Stephen G. Breyer:

there I thought there could be cognitive impairments.

Emo-

Stephen G. Breyer:

think Justice Scalia has described one.

Yes, Your Honor…

Stephen G. Breyer:

could be volitional impairments.

Carla J. Stovall:

Perceptual, intellectual.

But are these —

Stephen G. Breyer:

relevant here other than volition?

Carla J. Stovall:

Yes.

Which?

Carla J. Stovall:

all of those that we mentioned, and perhaps even…

Are relevant in this case?

Carla J. Stovall:

Not…

Wa- Yeah, yeah.

Stephen G. Breyer:

is there any one relevant to the particular individual at issue here other than volition.

Carla J. Stovall:

I don’t believe psychiatrists can tell us what it is that what kind of impairment Mr. Crane has.

enforcement —

Anthony M. Kennedy:

the premise that Hendricks proceeded upon.

Carla J. Stovall:

I’m sorry, Your Honor.

Anthony M. Kennedy:

Well, you’re are are you trying to say that what we said in Hendricks was was dictum or…

I —

Anthony M. Kennedy:

was wrong in the in the context of that case?

Carla J. Stovall:

I’m certainly not saying you were wrong, Your Honor.

Well, was the Court…

Anthony M. Kennedy:

under some misimpression as as to Hendricks’ ability to control himself?

Carla J. Stovall:

There wasn’t evidence before this Court that would say whether or not Hendricks suffered from a volitional impairment or not.

Anthony M. Kennedy:

That seems to me, that we’re back to square one.

Carla J. Stovall:

Your Honor, I don’t believe noise> it is because Mr. Hendricks, in particular, didn’t suffer from a personality disorder.

Well,

Anthony M. Kennedy:

is the test are there different requirements if you proceed based on a personality disorder than if you proceed from a mental abnormality?

Carla J. Stovall:

Well, the Kansas court seems to think there is because there is no definition in the statute of a personality disorder.

Well I was…

Anthony M. Kennedy:

I was suggesting that you thought there was based on the answer you gave to me.

Carla J. Stovall:

No, Your Honor.

You think…

Anthony M. Kennedy:

they’re both one and the same.

Carla J. Stovall:

Based on the Kansas Supreme Court decision or based on the…

Based…

Anthony M. Kennedy:

on what you think the law ought to be and what the s- s- un- and how the statute is properly interpreted.

Carla J. Stovall:

We believe there is no distinction.

Anthony M. Kennedy:

So, anybody with a personality disorder that’s a danger to himself or others can be can be civilly committed regardless of volitional control.

Carla J. Stovall:

Right.

for mental —

Ruth Bader Ginsburg:

do you have that you’re mentioning, if you look at the definition of personality disorder and they say pick three out of a list of seven, you could pick out habitually doesn’t work, doesn’t pay debts, is reckless, irritable.

Carla J. Stovall:

Wha- what what I want to be able to do today, Your Honors, is to convince you that actually that’s not true, that an antisocial personality disorder is a severe mental pathology that really does give us sociopaths and psychopaths that cannot conform to our rules.

William H. Rehnquist:

Well, your your statute itself, when you’re talking about a sexually violent predator, you say mental abnormality or personality disorder, which makes the person likely to engage in repeat acts of sexual violence.

Carla J. Stovall:

That’s exactly right, Your Honor.

David H. Souter:

And I take it what your what your statute is trying to get at is is something more than mere repetitive conduct, mere recidivism.

Carla J. Stovall:

Absolutely.

David H. Souter:

And and is the element that distinguishes this kind of behavior from mere repetitiveness some element of lack of control, not necessarily volitional control, but some element of lack of control, perhaps lack of control resulting from delusion, perceptual difficulties and so on, but but some some aspect of the personality that that gives that individual a a a a a lesser chance of controlling behavior in in a way that avoids committing crimes.

Carla J. Stovall:

With a slight exception.

Right.

Carla J. Stovall:

want to be clear that we don’t think there needs to be a a third separate, very distinguishable constitutional element…

David H. Souter:

I guess what I’m I guess what I’m getting at is it it seems sensible to call somebody who is just an habitual offender at some dangerous crime or serious crime dangerous.

Carla J. Stovall:

That’s hundred percent accurate.

predicting who’s going to be dangerous…

Stephen G. Breyer:

That’s exactly the issue.

Carla J. Stovall:

That they have to have a mental…

Stephen G. Breyer:

Yeah, but what that’s the problem in the case.

That’s correct.

Stephen G. Breyer:

that’s not the right definition.

Carla J. Stovall:

What is in the statute, a…

severe mental —

Stephen G. Breyer:

is the definition of the word, mental disorder, that appears in the statute? If a person were to say every person who commits a crime, fifteen times running, is a sociopath and thereby falls within DSM four, you’re not going to permit that.

Carla J. Stovall:

I believe they are there now, that…

All that’s there now…

Stephen G. Breyer:

is mental disorder.

Carla J. Stovall:

Well, actually it’s mental abnormality and…

personality disorder.

Carla J. Stovall:

You and this Court in the Hendricks decision said that pedophilia certainly qualifies…

as a paraphilia…

Sandra Day O’Connor:

have here we have we have here an antisocial personality disorder.

Carla J. Stovall:

That’s right.

Sandra Day O’Connor:

And the State’s own expert said in Mr. Crane’s trial that approximately seventy-five percent of the prison population has antisocial personality disorder.

Carla J. Stovall:

And the mental…

disorder.

Sandra Day O’Connor:

trying…

Carla J. Stovall:

what okay okay…

Sandra Day O’Connor:

But most of them, seventy-five percent of them, was the testimony, suffer from antisocial personality disorder.

Carla J. Stovall:

I would suggest to you that there doesn’t need to be an additional element.

Sandra Day O’Connor:

oh…

Carla J. Stovall:

suffers from that in the deposition, he wasn’t he he certainly didn’t quote empirical studies to demonstrate that.

percent of the population.

David H. Souter:

what is it about them that we can isolate that shows that they are really serious beyond the mere repetition of their crime? In other words, let me put the question this way.

Carla J. Stovall:

We have to show a mental illness.

David H. Souter:

And and…

Carla J. Stovall:

and that’s a psychiatrically-approved condition that…

yeah but any DSM —

Carla J. Stovall:

Right.

Then you’re just then you’re back to…

David H. Souter:

Justice Ginsburg’s question, which which which is very much like Justice O’Connor’s.

Carla J. Stovall:

The actual diagnosis that those folks actually have those diagnosis and are sexually violent.

What I would t-

David H. Souter:

then that in the example Justice Ginsburg gave you what was it four out of seven in the list?

Carla J. Stovall:

Three of seven.

David H. Souter:

That is is as long as as the the the expert witness says, yes, this person i- is subject to four out of those those seven characters they personality traits, that that person, if a sexual offender, could be locked up under the statute?

Carla J. Stovall:

They could be committed for treatment under this this statute, yes, Your Honor.

[Inaudible]

Carla J. Stovall:

And Mr. Crane for what what I would want you to know, though, is that it is not a circu- just because these individuals have committed crimes doesn’t mean they have an antisocial personality disorder.

psychiatrists, of the —

David H. Souter:

it it it would be on Justice Ginsburg’s example, it would be very easy to prove.

Carla J. Stovall:

It could be if they actually have that diagnosis and have those personality traits and have done that behavior.

Ruth Bader Ginsburg:

That’s the prosecutor then, and but I mean, that’s not something that that we would generally do.

Carla J. Stovall:

I understand.

Ruth Bader Ginsburg:

Justice Kennedy brought up in in Hendricks a concern, and this case seems to fit that.

Carla J. Stovall:

I’m sorry?

Ruth Bader Ginsburg:

He entered a plea bargain.

Antonin Scalia:

There is a…

reasonable beyond a reasonable doubt, yes.

Ruth Bader Ginsburg:

But it is a civil proceeding.

Carla J. Stovall:

It is, but we have that higher standard.

John Paul Stevens:

May I…

Ruth Bader Ginsburg:

Still, you could you could get to where you were or even beyond.

Carla J. Stovall:

It’s indefinite with annual reviews, and they are allowed to be released when they have been determined safe to be at large.

Well, what do the annual…

William H. Rehnquist:

reviews what do they deal with? Is it possible at at the end of an annual review for the person to be released?

Carla J. Stovall:

Yes.

basis.

Antonin Scalia:

the court have to find in order to release them?

Carla J. Stovall:

it…

Antonin Scalia:

It is no longer beyond a reasonable doubt that…

Carla J. Stovall:

Then it’s part the State has to show th- I’m sorry.

And isn’t it…

Anthony M. Kennedy:

a frequent case, though, that the psychiatrists say, well, we can’t tell until we clinically re-observe him and we can’t clinically observe him until he’s in a normal environment?

I mean, can psychiatrists —

Carla J. Stovall:

happened in the six so far that that have have been released.

Stephen G. Breyer:

The American Psychiatric Association says in their brief that the, quote, antisocial personality disorder, end quote, which is DSM four at seven oh one seven oh six, there applies to forty to sixty percent among the male-sentenced population.

Carla J. Stovall:

In terms of the antisocial personality disorder alone, I don’t know.

certainly forty to sixty…

Carla J. Stovall:

percent…

Alright, see…

Antonin Scalia:

they know? I I I’ve you know, I could pull…

Stephen G. Breyer:

Well, I I don’t know if they know…

or not. But I know they…

Stephen G. Breyer:

know better than I do.

Antonin Scalia:

Did they say that forty to sixty percent are beyond a reasonable doubt suffering from a an antisocial personality disorder?

Carla J. Stovall:

I doubt that,

and I doubt that — that it applies to —

Stephen G. Breyer:

is DSM four the standard and if DSM four is not the standard, what is? That’s what I think all of us, or several of us anyway, are trying to get to.

Carla J. Stovall:

The DSM absolutely is the standard in the psychiatric profession, but it is not the Bible and is not the only thing psychiatrists use.

John Paul Stevens:

May I ask you this question? And I’m and I’m concerned about whether the instructions were adequate and whether you think the instructions were adequate.

Carla J. Stovall:

The last, that it’s irrelevant to a diagnosis.

John Paul Stevens:

there’s there’s no need to show any volitional impairment in order a to to obtain a commitment under this statute, so the instruction is correct.

Carla J. Stovall:

That that is…

absolutely the State’s position.

David H. Souter:

to show any other kind of impairment in addition to the two elements that you’re describing.

Carla J. Stovall:

In order to get a diag- in terms of the instructions, that’s true because to get a diagnosis, you have to have an impairment.

impairment. So, it’s part and parcel.

Antonin Scalia:

in controlling, not not utter inability to control conduct, but difficulty in controlling conduct.

She said…

John Paul Stevens:

she didn’t…

I I…

Carla J. Stovall:

don’t believe we have to show that.

Antonin Scalia:

Wouldn’t the person be dangerous…

Carla J. Stovall:

Because…

they have this —

Antonin Scalia:

reason of the personality disorder if the personality disorder does not produce a difficulty in pr- in controlling conduct?

Carla J. Stovall:

In o- In order to link…

together the —

Antonin Scalia:

thought I thought you conceded that you have to show difficulty in controlling conduct, and if you don’t, this is a quite different case from what I thought.

Carla J. Stovall:

And I I misspoke, Your Honor.

w- Well, no — my predisposes…

Anthony M. Kennedy:

you to do things you want to do.

David H. Souter:

Yeah.

Anthony M. Kennedy:

And so that, it seems to me, doesn’t answer the question.

Our —

Anthony M. Kennedy:

where is it in the statutory language that talks about v- volitional control? It it doesn’t.

Carla J. Stovall:

The mental abnormality is defined in the statute and it does mention both volitional and emotional…

capacity —

David H. Souter:

deo- disorder does not.

Carla J. Stovall:

It is not defined and I think that’s because it’s such a common term, the legislature didn’t defined it.

[Inaudible]

David H. Souter:

but you say emotional is, and and and I guess em- emotional impairment I suppose would describe e- every sociopath in the country.

Carla J. Stovall:

That is absolutely…

one part —

David H. Souter:

satisfy as an emotional impairment, wouldn’t it?

Carla J. Stovall:

It is an emotional impairment, yes, Your Honor.

So —

Carla J. Stovall:

Kansas…

court would say that —

David H. Souter:

we I think we get back to the point that on your theory any sociopath who has committed a a sexual offense can be committed under this statute upon release.

Carla J. Stovall:

But it takes more than having the likelihood of committing more sex crimes and or not having any empathy before you could be diagnosed with an antisocial personality disorder.

there —

David H. Souter:

it would take four out of seven on Justice Ginsburg’s list.

Carla J. Stovall:

It takes three, actually…

three of seven.

Carla J. Stovall:

But it does make a significant diagnosis.

Antonin Scalia:

Beyond a reasonable doubt.

Carla J. Stovall:

Again, Your Honor, you’re exactly right.

we have to be able to show…

Ruth Bader Ginsburg:

those three things beyond a reasonable doubt, that definition doesn’t say trait.

Carla J. Stovall:

I would suggest to you that’s part of the evaluative process of a psychologist then in saying this is someone who is likely to continue to be sexually…

violent. If that’s all they’ve done…

Ruth Bader Ginsburg:

If prosecutor says, DCM, this category fits, antisocial personality disorder, any three of and I just gave you three from…

[Inaudible]

Carla J. Stovall:

that doesn’t mean that one of the experts would say that makes them fit under this law to be sexually violent predators.

Ruth Bader Ginsburg:

General Stovall, you have read Hendricks, as all of us have.

Carla J. Stovall:

I am because I don’t believe that was central or necessary to the holding.

three sixty of the —

Antonin Scalia:

holding was, indeed, described differently.

That’s — that’s exactly —

Antonin Scalia:

the the crux of the holding of the case and that portion does not say anything about volitional impairment, just inability or difficulty in controlling behavior.

Carla J. Stovall:

What and what I would suggest to you is on page three sixty of bec- of the opinion, it becomes very clear the way that that phrase and those phrases were being used.

that you’ve always required.

David H. Souter:

if a jury instruction were couched in the terms that Justice Scalia just quoted, as stating the holding in Hendricks, would you find that jury instruction correct and satisfactory?

Carla J. Stovall:

I would find it u- longer than it needed to be and more inclusive than it needed to be because…

David H. Souter:

Would it be would it be constitutionally erroneous? Would you be…

Carla J. Stovall:

Yes.

that it would be.

David H. Souter:

so, we…

— because it goes beyond —

David H. Souter:

in Hendricks.

Carla J. Stovall:

My view is that what you said in Hendricks was mental illness that makes somebody dangerous in sexually violent ways.

David H. Souter:

Yeah, but if Justice Scalia’s quotations correctly stated the holding in Hendricks, I think you are telling us we have got to draw back from Hendricks.

Carla J. Stovall:

Again, what I’m saying, the mental illness makes them likely to re-offend in sexually violent ways.

Antonin Scalia:

Why you say we have you you say we have to draw back from that sta- but what what in that statement is wrong?

Carla J. Stovall:

That that we have to requir- that we have to show the the difficulty of maintaining their behavior, of of controlling their behavior.

Antonin Scalia:

The statement…

I don’t have the exact —

Carla J. Stovall:

Yeah.

Antonin Scalia:

it requires a finding of future dangerousness and 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.

contains?

Antonin Scalia:

What is what is wrong in it?

Carla J. Stovall:

Only that i- if if we have to require the finding of that makes it difficult, if not impossible, for them to control their behavior.

You’re concerned that the last sentence– that finding?

Antonin Scalia:

How are they future wow.

Carla J. Stovall:

It’s it’s because they’re they have a mental abnormality.

William H. Rehnquist:

Thank you, General Stovall.

John C. Donham:

Mr. Chief Justice, may it please the Court, I think the major disagreement between the State State’s view of this and Mr. Crane’s view is not how dangerous is an individual, but why are they dangerous.

The…

Anthony M. Kennedy:

You have a nice speaking voice, but could you raise it just a little bit? I…

John C. Donham:

I’m sorry, Judge.

Yeah.

John C. Donham:

Mr. Crane sought a jury instruction at his trial that was consistent with this Court’s decision in Hendricks.

behavior.

William H. Rehnquist:

You say it’s defined.

John C. Donham:

Your your Honor, in the Kansas statute itself.

William H. Rehnquist:

Can you tell us where we find that in the in the papers?

Antonin Scalia:

It’s the first page of the appendix to the petitioner’s brief I think.

John C. Donham:

Your Honor, joi- joint appendix excuse me.

Antonin Scalia:

We’re talking about the instruct- talking about the statute.

John C. Donham:

No.

Antonin Scalia:

So that a recidivist who will be a recidivist because he’s delusional and he thinks that every woman he meets is inviting crude sexual behavior he’s fully able to control himself if he doesn’t think that the woman is inviting crude sexual behavior, but he happens to think that every woman he meets is inviting him, and he would not be covered because that is not a volitional impairment.

John C. Donham:

I agree with that, and and may I may I follow that up with perhaps the Kansas Sexual Predator Act has a number of subsections, one of which is directly directly focused on the type of individual you just mentioned in your hypothetical.

Which one — which one is that? Subsection.

John C. Donham:

Your Honor, in the definition of a th- I’m sorry.

William H. Rehnquist:

Well, I have it here with a number that I — you referred to one subsection.

John C. Donham:

Your Honor, it’s in the statute.

William H. Rehnquist:

But you’re- you’re telling us now what the Kansas Sexual Predator Act does.

John C. Donham:

Your Honor, I’m sorry.

at my fingertips.

Antonin Scalia:

here was not that the act didn’t cover your client, but you’re you’re supporting the holding of the Kansas Supreme Court that the act does cover your client, but inasmuch as insofar as it does, it’s unconstitutional if it goes beyond volitional impairment.

John C. Donham:

Your Honor, th- this the facts of the Crane case dealt specifically with Mr. Crane and Mr. Crane alone .

Does not abled —

Antonin Scalia:

Ca- ca- can- can I just — I really don’t know what we have before us here.

John C. Donham:

That’s what the Kansas Supreme Court said.

Antonin Scalia:

All right.

John C. Donham:

Your Honor, if if I have to fault the opinion in the Kan- of the Kansas Supreme Court is it is that it expanded its decision that was directly for Mr. Crane under the specific subsection of the Kansas Sexual Predator Act that dealt with individuals who had been found criminally responsible.

and that —

William H. Rehnquist:

you- you say we- we- we found that.

John C. Donham:

Your Honor, as as I read Hendricks stands for the proposition that the Kansas act is constitutional because, as with Mr. Hendricks, what it determined was that the State was not seeking to involuntarily commit people based on dangerousness alone, which would have been absolutely unconstitutional under Foucha versus Louisiana.

Antonin Scalia:

Which th- which limiting factor was difficulty or impossibility of controlling behavior .

John C. Donham:

The th- I think the exact language of the Kansas statute, or at least of Mr. Hendricks I’m sorry.

Antonin Scalia:

I just read th- I just read the portion of the of the opinion that I think the most relevent in what it says is difficult, if not impossible, to control behavior.

John C. Donham:

[Inaudible]

Antonin Scalia:

They they seemed to say that if there’s no volitional impairment, there cannot be this difficulty or impossibility of controlling behavior.

John C. Donham:

Well, when Mr. Hendricks professed that he could not control his behavior, that’s an indication that when confronted with temptation, he was unable to exercise his free will.

Antonin Scalia:

That’s right.

John C. Donham:

Your Honor, I’m not trying to limit the what a psychiatrist or a psychologist might be able to say affects abili- the ability of an individual to conform his behavior to society’s requirements.

value.

Sandra Day O’Connor:

would have thought, really, that that is not what we limited it to in Hendricks, that a delusional lack of control would be entirely sufficient constitutionally as a ha- as it relates to a lack of control, that it could be volitional or delusional, that the Kansas court went too far in requiring only volitional as a constitutional standard.

John C. Donham:

Your Honor, I would agree with that.

Yes, so if you —

John C. Donham:

I I- I agree with that and I hope I haven’t misled the Court.

Mr. —

Sandra Day O’Connor:

that the Kansas Supreme Court went too far.

John C. Donham:

I agree that they perhaps imposed too strict a limits on these additional elements that have to be found in order to involuntarily commit…

Anthony M. Kennedy:

But that there has to be some additional elements.

Absolutely. I sa-

Anthony M. Kennedy:

the most appropriate one at hand in this case was volitional.

John C. Donham:

Your Honor, th- to the first part of your question, the only available argument that we could have made, the only conceivable jury instruction that would have been consistent with the contradictory evidence at trial and this Court’s opinion in Hendricks was a a demand for a jury instruction, requiring the jury to find that it was his mental abnormality or his personality disorder that made him be likely to reoffend because it interfered with his ability to control his behavior.

So, what are the words that you want there?

Stephen G. Breyer:

That is, imagine I’m talking about the set of people who are very dangerous.

John C. Donham:

Your Honor, I I know the State has touted the the descriptive adjective adequate control.

Antonin Scalia:

I- I don’t I really don’t understand where we are now.

John C. Donham:

Your Honor, as as I read the the Kansas statute, the legislative body intended that the mental defect cause the individual to be likely to commit future predatory acts of violence.

Antonin Scalia:

It does.

John C. Donham:

Yes, and this Court…

Antonin Scalia:

And the Kansas Supreme Court didn’t think it was okay.

John C. Donham:

I- I disagree with that.

Antonin Scalia:

Well, they have to prove the causality.

John C. Donham:

We did object to the jury instruction because we felt it did not adequately address the theme that the State carried to the jury .

William H. Rehnquist:

Well, d- just- just a minute, Mr. Don- The question presented by the State is is in- in its petition for certiorari is- is a very general one, whether the Fourteenth Amendment requires the State to prove that a sa- and I think if you’re going to bring up a jury instruction, you’re required to cross petition for certiorari and raise that yourself.

John C. Donham:

Yes, sir, I did.

an objection to the —

John Paul Stevens:

held the jury instruction bad, did it not?

John C. Donham:

I’m s- I’m sorry.

ar- on the petition?

William H. Rehnquist:

just answer Justice Stevens’ question.

John C. Donham:

I’m sorry, Your Honor.

Can you —

John Paul Stevens:

I- is it not correct that the Kansas Supreme Court held that the jury was not properly instructed?

That’s correct.

Antonin Scalia:

Was it not properly instructed i- not because it was not instructed in accordance with the Kansas statute, but because if it had been instructed in accordance with the Kansas statute, that would have been unconstitutional.

John C. Donham:

What I said, Your Honor, is that the statute requires that an individual susceptible to being involuntarily committed must have a mental illness that makes him or her likely to…

re-offend.

Antonin Scalia:

what it says, right?

John C. Donham:

That’s correct.

Sandra Day O’Connor:

The Kansas Supreme Court appeared to hold that a person must be completely unable to control his behavior in order to meet what it thought the constitutional standard is under the due process clause.

John C. Donham:

I agree with that.

Sandra Day O’Connor:

Hm?

John C. Donham:

It-

Sandra Day O’Connor:

Well, I don’t think I do.

John C. Donham:

Your Honor, I suppose the difference may lie in- in- in what is meant by total or absolute lack of control.

Sandra Day O’Connor:

Yes.

John C. Donham:

I’m sorry.

You can interpret it as you wish. Yes.

my interpretation of that perinc- prin- —

John C. Donham:

some of these terms are- are pretty slippery, and, of course, they’re all taken in context of what does- does a does a psychiatrist mean by them.

by —

Antonin Scalia:

not psychiatrists or psychologists either.

Ruth Bader Ginsburg:

Well, what…

John C. Donham:

[Inaudible]

Ruth Bader Ginsburg:

The Kansas Supreme Court quote the very words from Hendricks that Justice Scalia re- referred to before to make this a finding by linking future dangerousness to a mental abnormamality, [:abnormality] a personality disorder, that makes it difficult, if not impossible, to control his behavior? That’s what the Kansas Supreme Court repeated.

John C. Donham:

No.

and —

John C. Donham:

an- and by doing that, it in essence, if you will, limited the application of the act.

with different effects.

Anthony M. Kennedy:

would- would your objections and the Kansa- and perhaps the Kansas court’s objections have been met if instruction number nine at page one fifty-six of the joint appendix said that mental abnormality means a congenital or acquired condition substantially affecting the emotional or volitional capa-

John C. Donham:

If I were to write the instruction, it would have read it- it is a acquired or congenital condition that affects the emotional or volitional capacity to the degree that the person is unable to exercise self-control.

Stephen G. Breyer:

Just what about a person who thinks other people are mo- are like rocks? You know? I mean, he can control himself.

John C. Donham:

Well, if he’s dangerous…

because —

Stephen G. Breyer:

he’s dangerous because he’s autistic or has no sense whatsoever of what a feeling is.

John C. Donham:

I would- I would say that he’s an appropriate candidate for an involuntary commitment…

Right. And so, what standard there do we use?

John C. Donham:

That he would be…

unable…

Stephen G. Breyer:

do it with control because control has to do with volition.

John C. Donham:

This would be a person susceptible to commitment because he’s unable to care for himself, and therefore poses…

a danger for —

Stephen G. Breyer:

perfectly.

[Inaudible]

John C. Donham:

Yes, it is.

William H. Rehnquist:

Thank you, Mr. Donham.