Sex Offenders and Mental Illness: A Lesson in Federalism and the Separation of Powers

Abstract

The Supreme Court’s recent decision in Kansas v. Hendricks provides an exclamation point to the proposition that the Court will defer to reasonable legislative judgments regarding the substance of state civil commitment laws. This article argues that such deference is appropriate as a matter of constitutional law because of important institutional and structural considerations. For mental health professionals interested in influencing the law of civil commitment, the Hendricks decision suggests two propositions: (a) Mental health professionals must offer their expertise and input in the legislative process, and (b) when possible, mental health professionals should identify and explain for the courts any professional consensus on important issues regarding the definition and treatment of mental conditions.