Foreshadowing the Future of Kansas v. Hendricks: Lessons from Minnesota’s Sex Offender Commitment Litigation

Abstract

This Article argues that Minnesota’s sex offender commitment litigation foreshadows the future of Kansas v. Hendricks because it puts the Court’s control-incapacity language to the test. Minnesota law claims the right to commit dangerous sex offenders who are “mentally disordered,” even if they are able fully to control their sexual behavior. Using the Minnesota litigation as its lesson, this Article argues that such a law is neither a limited, nor a justified, exception to the primacy of the Criminal law. Examining the alternate theories advanced by the Minnesota court, the Article demonstrates that they neither limit nor justify the use of civil commitment but instead adopt a radical justification for the use of civil commitment – that mental disorder “explains” sexual violence, an argument which may seriously undermine important efforts to contain sexual violence. The Article concludes that to avoid that result, post Hendricks cases must either give the control-incapacity test substantive content, or abandon the conceit that civil commitment is legitimated by the narrowness of its application.

Keywords: Kansas v. Hendricks, sex offender, civil commitment, preventative detention, constitutional limits on criminal law, principled narrow exception test, control incapacity, substantive due process, In re Linehan (II)