Hastings Law Journal


Eric W. Buetzow


In Kansas v. Hendricks, the Supreme Court upheld the constitutionality of state statutes that allow for the civil commitment of "sexually violent predators" after completion of their criminal sentences. But the Court in Hendricks left uncertain the precise requirements demanded by substantive due process in this context. Specifically, questions remained regarding whether, and to what degree, a defendant must suffer from volitional inability for the commitment to pass constitutional muster. The Supreme Court responded five years later in Kansas v. Crane, where it held that "there must be proof of serious difficulty in controlling behavior." This could have been considered the end of the debate over whether the Constitution requires a finding of serious volitional inability for the civil commitment of sex offenders. However, most state courts which have subsequently considered the issue with respect to their sexually violent predator statute refuse to mandate such a finding.

Part I of this Note analyzes the recent Florida Supreme Court decision State v. White, the latest in a line of state court decisions that essentially interpret around the Crane volitional requirement. This analysis demonstrates how the reasoning employed in White and similar decisions is irreconcilable with the U.S. Supreme Court's ruling in Crane. Part II discusses state court institutional schemes and explores the possibility that majoritarian political pressures resulting from these schemes could be playing a role in the state judicial analyses of sexually violent predator laws against federal substantive due process standards. This Note suggests that, given the current scholarship on popular judicial retention mechanisms, this category of cases presents significant potential for political considerations to enter the decisional calculus.

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