KANSAS v. CRANE

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407 OCTOBER TERM, 2001
Syllabus
KANSAS v. CRANE
certiorari to the supreme court of kansas
No. 00–957. Argued October 30, 2001—Decided January 22, 2002
In upholding the constitutionality of the Kansas Sexually Violent Predator
Act, this Court characterized a dangerous sexual offender’s confine-
ment as civil rather than criminal, Kansas v. Hendricks, 521 U. S. 346,
369, and held that the confinement criterion embodied in the statute’s
words “mental abnormality or personality disorder” satisfied substan-
tive due process, id., at 356, 360. Here, the Kansas District Court or-
dered the civil commitment of respondent Crane, a previously convicted
sexual offender. In reversing, the State Supreme Court concluded that
Hendricks requires a finding that the defendant cannot control his
dangerous behavior—even if (as provided by Kansas law) problems of
emotional, and not volitional, capacity prove the source of behavior war-
ranting commitment. And the trial court had made no such finding.
Held: Hendricks set forth no requirement of total or complete lack of
control, but the Constitution does not permit commitment of the type
of dangerous sexual offender considered in Hendricks without any
lack-of-control determination. Hendricks referred to the Act as re-
quiring an abnormality or disorder that makes it “difficult, if not im-
possible, for the [dangerous] person to control his dangerous behavior.”
Id., at 358 (emphasis added). The word “difficult” indicates that the
lack of control was not absolute. Indeed, an absolutist approach is un-
workable and would risk barring the civil commitment of highly danger-
ous persons suffering severe mental abnormalities. Yet a distinction
between a dangerous sexual offender subject to civil commitment and
“other dangerous persons who are perhaps more properly dealt with
exclusively through criminal proceedings,” id., at 360, is necessary lest
“civil commitment” become a “mechanism for retribution or general
deterrence,” id., at 372–373. In Hendricks, this Court did not give
“lack of control” a particularly narrow or technical meaning, and in
cases where it is at issue, “inability to control behavior” will not be
demonstrable with mathematical precision. It is enough to say that
there must be proof of serious difficulty in controlling behavior. The
Constitution’s liberty safeguards in the area of mental illness are not
always best enforced through precise bright-line rules. States retain
considerable leeway in defining the mental abnormalities and person-
ality disorders that make an individual eligible for commitment; and
psychiatry, which informs but does not control ultimate legal determina-

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408 KANSAS v. CRANE
Syllabus
tions, is an ever-advancing science, whose distinctions do not seek pre-
cisely to mirror those of the law. Consequently, the Court has sought
to provide constitutional guidance in this area by proceeding delib-
erately and contextually, elaborating generally stated constitutional
standards and objectives as specific circumstances require, the approach
embodied in Hendricks. That Hendricks limited its discussion to voli-
tional disabilities is not surprising, as the case involved pedophilia—
a mental abnormality involving what a lay person might describe as a
lack of control. But when considering civil commitment, the Court has
not ordinarily distinguished for constitutional purposes between voli-
tional, emotional, and cognitive impairments. See, e. g., Jones v. United
States, 463 U. S. 354. The Court in Hendricks had no occasion to con-
sider whether confinement based solely on “emotional” abnormality
would be constitutional, and has no occasion to do so here. Pp. 410–415.
269 Kan. 578, 7 P. 3d 285, vacated and remanded.
Breyer, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Stevens, O’Connor, Kennedy, Souter, and Ginsburg, JJ.,
joined. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined,
post, p. 415.
Carla J. Stovall, Attorney General of Kansas, argued the
cause for petitioner. With her on the briefs was Stephen
R. McAllister, State Solicitor.
John C. Donham argued the cause and filed a brief for
respondent.*
*Briefs of amici curiae urging reversal were filed for the State of Illi-
nois et al. by James E. Ryan, Attorney General of Illinois, Joel D. Ber-
tocchi, Solicitor General, and William L. Browers, Lisa Anne Hoffman,
and Margaret M. O’Connell, Assistant Attorneys General, and by the At-
torneys General for their respective States as follows: Bill Pryor of Ala-
bama, Janet Napolitano of Arizona, Bill Lockyer of California, M. Jane
Brady of Delaware, Robert A. Butterworth of Florida, Thomas J. Miller
of Iowa, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massa-
chusetts, Mike Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri,
Don Stenberg of Nebraska, John J. Farmer, Jr., of New Jersey, Wayne
Stenehjem of North Dakota, W. A. Drew Edmondson of Oklahoma,
D. Michael Fisher of Pennsylvania, Charles M. Condon of South Carolina,
Christine O. Gregoire of Washington, and James E. Doyle of Wisconsin;
for the Association for the Treatment of Sexual Abusers by John J. Sulli-

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409 Cite as: 534 U. S. 407 (2002)
Opinion of the Court
Justice Breyer delivered the opinion of the Court.
This case concerns the constitutional requirements sub-
stantively limiting the civil commitment of a dangerous sex-
ual offender—a matter that this Court considered in Kan-
sas v. Hendricks, 521 U. S. 346 (1997). The State of Kansas
argues that the Kansas Supreme Court has interpreted our
decision in Hendricks in an overly restrictive manner. We
agree and vacate the Kansas court’s judgment.
I
In Hendricks, this Court upheld the Kansas Sexually
Violent Predator Act, Kan. Stat. Ann. § 59–29a01 et seq.
(1994), against constitutional challenge. 521 U. S., at 371.
In doing so, the Court characterized the confinement at issue
as civil, not criminal, confinement. Id., at 369. And it held
that the statutory criterion for confinement embodied in the
statute’s words “mental abnormality or personality disorder”
satisfied “ ‘substantive’ due process requirements.” Id., at
356, 360.
In reaching its conclusion, the Court’s opinion pointed out
that “States have in certain narrow circumstances provided
for the forcible civil detainment of people who are unable to
control their behavior and who thereby pose a danger to the
public health and safety.” Id., at 357. It said that “[w]e
have consistently upheld such involuntary commitment stat-
utes” when (1) “the confinement takes place pursuant to
proper procedures and evidentiary standards,” (2) there is a
finding of “dangerousness either to one’s self or to others,”
and (3) proof of dangerousness is “coupled . . . with the proof
of some additional factor, such as a ‘mental illness’ or ‘mental
van and Michael E. Lackey, Jr.; and for the Washington Legal Foundation
et al. by Daniel J. Popeo and Richard A. Samp.
Briefs of amici curiae urging affirmance were filed for the American
Psychiatric Association et al. by Richard G. Taranto; and for the National
Association of Criminal Defense Lawyers et al. by Jody Manier Kris, Lisa
Kemler, and Steven R. Shapiro.

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410 KANSAS v. CRANE
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abnormality.’ ” Id., at 357–358. It noted that the Kansas
“Act unambiguously requires a finding of dangerousness
either to one’s self or to others,” id., at 357, and then “links
that finding to the existence of a ‘mental abnormality’ or
‘personality disorder’ that makes it difficult, if not impos-
sible, for the person to control his dangerous behavior,” id.,
at 358 (citing Kan. Stat. Ann. § 59–29a02(b) (1994)). And the
Court ultimately determined that the statute’s “requirement
of a ‘mental abnormality’ or ‘personality disorder’ is con-
sistent with the requirements of . . . other statutes that we
have upheld in that it narrows the class of persons eligible
for confinement to those who are unable to control their dan-
gerousness.” 521 U. S., at 358.
The Court went on to respond to Hendricks’ claim that
earlier cases had required a finding, not of “mental abnor-
mality” or “personality disorder,” but of “mental illness.”
Id., at 358–359. In doing so, the Court pointed out that we
“have traditionally left to legislators the task of defining
[such] terms.” Id., at 359. It then held that, to “the extent
that the civil commitment statutes we have considered set
forth criteria relating to an individual’s inability to control
his dangerousness, the Kansas Act sets forth comparable
criteria.” Id., at 360. It added that Hendricks’ own con-
dition “doubtless satisfies those criteria,” for (1) he suffers
from pedophilia, (2) “the psychiatric profession itself clas-
sifies” that condition “as a serious mental disorder,” and
(3) Hendricks conceded that he cannot “ ‘control the urge’ ”
to molest children. And it concluded that this “admitted
lack of volitional control, coupled with a prediction of future
dangerousness, adequately distinguishes Hendricks from
other dangerous persons who are perhaps more properly
dealt with exclusively through criminal proceedings.” Ibid.
II
In the present case the State of Kansas asks us to re-
view the Kansas Supreme Court’s application of Hendricks.
The State here seeks the civil commitment of Michael

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Opinion of the Court
Crane, a previously convicted sexual offender who, accord-
ing to at least one of the State’s psychiatric witnesses, suf-
fers from both exhibitionism and antisocial personality dis-
order. In re Crane, 269 Kan. 578, 580–581, 7 P. 3d 285, 287
(2000); cf. also American Psychiatric Association, Diagnostic
and Statistical Manual of Mental Disorders 569 (rev. 4th ed.
2000) (DSM–IV) (detailing exhibitionism), 701–706 (detail-
ing antisocial personality disorder). After a jury trial, the
Kansas District Court ordered Crane’s civil commitment.
269 Kan., at 579–584, 7 P. 3d, at 286–288. But the Kansas
Supreme Court reversed. Id., at 586, 7 P. 3d, at 290. In
that court’s view, the Federal Constitution as interpreted
in Hendricks insists upon “a finding that the defendant
cannot control his dangerous behavior”—even if (as pro-
vided by Kansas law) problems of “emotional capacity” and
not “volitional capacity” prove the “source of bad behavior”
warranting commitment. 269 Kan., at 586, 7 P. 3d, at 290;
see also Kan. Stat. Ann. § 59–29a02(b) (2000 Cum. Supp.)
(defining “[m]ental abnormality” as a condition that affects
an individual’s emotional or volitional capacity). And the
trial court had made no such finding.
Kansas now argues that the Kansas Supreme Court
wrongly read Hendricks as requiring the State always
to prove that a dangerous individual is completely unable
to control his behavior. That reading, says Kansas, is far
too rigid.
III
We agree with Kansas insofar as it argues that Hendricks
set forth no requirement of total or complete lack of control.
Hendricks referred to the Kansas Act as requiring a “mental
abnormality” or “personality disorder” that makes it “diffi-
cult, if not impossible, for the [dangerous] person to control
his dangerous behavior.” 521 U. S., at 358 (emphasis added).
The word “difficult” indicates that the lack of control to
which this Court referred was not absolute. Indeed, as dif-
ferent amici on opposite sides of this case agree, an abso-
lutist approach is unworkable. Brief for Association for the

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Treatment of Sexual Abusers as Amicus Curiae 3; cf. Brief
for American Psychiatric Association et al. as Amici Cu-
riae 10; cf. also American Psychiatric Association, Statement
on the Insanity Defense 11 (1982), reprinted in G. Melton,
J. Petrila, N. Poythress, & C. Slobogin, Psychological Evalua-
tions for the Courts 200 (2d ed. 1997) (“ ‘The line between an
irresistible impulse and an impulse not resisted is probably
no sharper than that between twilight and dusk’ ”). More-
over, most severely ill people—even those commonly termed
“psychopaths”—retain some ability to control their behavior.
See Morse, Culpability and Control, 142 U. Pa. L. Rev. 1587,
1634–1635 (1994); cf. Winick, Sex Offender Law in the 1990s:
A Therapeutic Jurisprudence Analysis, 4 Psychol. Pub. Pol’y
& L. 505, 520–525 (1998). Insistence upon absolute lack of
control would risk barring the civil commitment of highly
dangerous persons suffering severe mental abnormalities.
We do not agree with the State, however, insofar as it
seeks to claim that the Constitution permits commitment
of the type of dangerous sexual offender considered in Hen-
dricks without any lack-of-control determination. See Brief
for Petitioner 17; Tr. of Oral Arg. 22, 30–31. Hendricks
underscored the constitutional importance of distinguishing
a dangerous sexual offender subject to civil commitment
“from other dangerous persons who are perhaps more prop-
erly dealt with exclusively through criminal proceedings.”
521 U. S., at 360. That distinction is necessary lest “civil
commitment” become a “mechanism for retribution or gen-
eral deterrence”—functions properly those of criminal law,
not civil commitment. Id., at 372–373 (Kennedy, J., con-
curring); cf. also Moran, The Epidemiology of Antisocial
Personality Disorder, 34 Social Psychiatry & Psychiatric
Epidemiology 231, 234 (1999) (noting that 40%–60% of the
male prison population is diagnosable with antisocial person-
ality disorder). The presence of what the “psychiatric pro-
fession itself classifie[d] . . . as a serious mental disorder”
helped to make that distinction in Hendricks. And a critical
distinguishing feature of that “serious . . . disorder” there

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Opinion of the Court
consisted of a special and serious lack of ability to control
behavior.
In recognizing that fact, we did not give to the phrase
“lack of control” a particularly narrow or technical meaning.
And we recognize that in cases where lack of control is at
issue, “inability to control behavior” will not be demonstra-
ble with mathematical precision. It is enough to say that
there must be proof of serious difficulty in controlling be-
havior. And this, when viewed in light of such features of
the case as the nature of the psychiatric diagnosis, and the
severity of the mental abnormality itself, must be sufficient
to distinguish the dangerous sexual offender whose serious
mental illness, abnormality, or disorder subjects him to civil
commitment from the dangerous but typical recidivist con-
victed in an ordinary criminal case. 521 U. S., at 357–358;
see also Foucha v. Louisiana, 504 U. S. 71, 82–83 (1992) (re-
jecting an approach to civil commitment that would permit
the indefinite confinement “of any convicted criminal” after
completion of a prison term).
We recognize that Hendricks as so read provides a less
precise constitutional standard than would those more defi-
nite rules for which the parties have argued. But the Con-
stitution’s safeguards of human liberty in the area of mental
illness and the law are not always best enforced through
precise bright-line rules. For one thing, the States retain
considerable leeway in defining the mental abnormalities
and personality disorders that make an individual eligible for
commitment. Hendricks, 521 U. S., at 359; id., at 374–375
(Breyer, J., dissenting). For another, the science of psy-
chiatry, which informs but does not control ultimate legal
determinations, is an ever-advancing science, whose dis-
tinctions do not seek precisely to mirror those of the law.
See id., at 359. See also, e. g., Ake v. Oklahoma, 470 U. S.
68, 81 (1985) (psychiatry not “an exact science”); DSM–IV
xxx (“concept of mental disorder . . . lacks a consistent opera-
tional definition”); id., at xxxii–xxxiii (noting the “imperfect
fit between the questions of ultimate concern to the law and

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the information contained in [the DSM’s] clinical diagnosis”).
Consequently, we have sought to provide constitutional guid-
ance in this area by proceeding deliberately and contextually,
elaborating generally stated constitutional standards and
objectives as specific circumstances require. Hendricks em-
bodied that approach.
IV
The State also questions how often a volitional problem
lies at the heart of a dangerous sexual offender’s serious
mental abnormality or disorder. It points out that the
Kansas Supreme Court characterized its state statute as
permitting commitment of dangerous sexual offenders who
(1) suffered from a mental abnormality properly character-
ized by an “emotional” impairment and (2) suffered no “vo-
litional” impairment. 269 Kan., at 583, 7 P. 3d, at 289.
It adds that, in the Kansas court’s view, Hendricks abso-
lutely forbids the commitment of any such person. 269 Kan.,
at 585–586, 7 P. 3d, at 290. And the State argues that it
was wrong to read Hendricks in this way. Brief for Peti-
tioner 11; Tr. of Oral Arg. 5.
We agree that Hendricks limited its discussion to voli-
tional disabilities. And that fact is not surprising. The
case involved an individual suffering from pedophilia—a
mental abnormality that critically involves what a lay per-
son might describe as a lack of control. DSM–IV 571–572
(listing as a diagnostic criterion for pedophilia that an in-
dividual have acted on, or been affected by, “sexual urges”
toward children). Hendricks himself stated that he could
not “ ‘control the urge’ ” to molest children. 521 U. S., at
360. In addition, our cases suggest that civil commitment
of dangerous sexual offenders will normally involve indi-
viduals who find it particularly difficult to control their be-
havior—in the general sense described above. Cf. Seling v.
Young, 531 U. S. 250, 256 (2001); cf. also Abel & Rouleau,
Male Sex Offenders, in Handbook of Outpatient Treatment
of Adults: Nonpsychotic Mental Disorders 271 (M. Thase,

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Scalia, J., dissenting
B. Edelstein, & M. Hersen eds. 1990) (sex offenders’ “com-
pulsive, repetitive, driven behavior . . . appears to fit the
criteria of an emotional or psychiatric illness”). And it is
often appropriate to say of such individuals, in ordinary Eng-
lish, that they are “unable to control their dangerousness.”
Hendricks, supra, at 358.
Regardless, Hendricks must be read in context. The
Court did not draw a clear distinction between the purely
“emotional” sexually related mental abnormality and the
“volitional.” Here, as in other areas of psychiatry, there
may be “considerable overlap between a . . . defective under-
standing or appreciation and . . . [an] ability to control . . .
behavior.” American Psychiatric Association Statement on
the Insanity Defense, 140 Am. J. Psychiatry 681, 685 (1983)
(discussing “psychotic” individuals). Nor, when consider-
ing civil commitment, have we ordinarily distinguished for
constitutional purposes among volitional, emotional, and cog-
nitive impairments. See, e. g., Jones v. United States, 463
U. S. 354 (1983); Addington v. Texas, 441 U. S. 418 (1979).
The Court in Hendricks had no occasion to consider whether
confinement based solely on “emotional” abnormality would
be constitutional, and we likewise have no occasion to do so
in the present case.
* * *
For these reasons, the judgment of the Kansas Supreme
Court is vacated, and the case is remanded for further pro-
ceedings not inconsistent with this opinion.
It is so ordered.
Justice Scalia, with whom Justice Thomas joins,
dissenting.
Today the Court holds that the Kansas Sexually Violent
Predator Act (SVPA) cannot, consistent with so-called sub-
stantive due process, be applied as written. It does so even
though, less than five years ago, we upheld the very same

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416 KANSAS v. CRANE
Scalia, J., dissenting
statute against the very same contention in an appeal by
the very same petitioner (the State of Kansas) from the judg-
ment of the very same court. Not only is the new law that
the Court announces today wrong, but the Court’s manner
of promulgating it—snatching back from the State of Kansas
a victory so recently awarded—cheapens the currency of our
judgments. I would reverse, rather than vacate, the judg-
ment of the Kansas Supreme Court.
I
Respondent was convicted of lewd and lascivious behavior
and pleaded guilty to aggravated sexual battery for two in-
cidents that took place on the same day in 1993. In the first,
respondent exposed himself to a tanning salon attendant.
In the second, 30 minutes later, respondent entered a video
store, waited until he was the only customer present, and
then exposed himself to the clerk. Not stopping there, he
grabbed the clerk by the neck, demanded she perform oral
sex on him, and threatened to rape her, before running out
of the store. Following respondent’s plea to aggravated
sexual battery, the State filed a petition in State District
Court to have respondent evaluated and adjudicated a sexual
predator under the SVPA. That Act permits the civil de-
tention of a person convicted of any of several enumerated
sexual offenses, if it is proven beyond a reasonable doubt
that he suffers from a “mental abnormality”—a disorder af-
fecting his “emotional or volitional capacity which predis-
poses the person to commit sexually violent offenses”—or a
“personality disorder,” either of “which makes the person
likely to engage in repeat acts of sexual violence.” Kan.
Stat. Ann. §§ 59–29a02(a), (b) (2000 Cum. Supp.).
Several psychologists examined respondent and deter-
mined he suffers from exhibitionism and antisocial personal-
ity disorder. Though exhibitionism alone would not support
classification as a sexual predator, a psychologist concluded
that the two in combination did place respondent’s condition

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Scalia, J., dissenting
within the range of disorders covered by the SVPA, “cit[ing]
the increasing frequency of incidents involving [respondent],
increasing intensity of the incidents, [respondent’s] increas-
ing disregard for the rights of others, and his increasing
daring and aggressiveness.” In re Crane, 269 Kan. 578, 579,
7 P. 3d 285, 287 (2000). Another psychologist testified that
respondent’s behavior was marked by “impulsivity or failure
to plan ahead,” indicating his unlawfulness “was a com-
bination of willful and uncontrollable behavior,” id., at 584–
585, 7 P. 3d, at 290. The State’s experts agreed, however,
that “ ‘[r]espondent’s mental disorder does not impair his
volitional control to the degree he cannot control his danger-
ous behavior.’ ” Id., at 581, 7 P. 3d, at 288.
Respondent moved for summary judgment, arguing that
for his detention to comport with substantive due process
the State was required to prove not merely what the statute
requires—that by reason of his mental disorder he is “likely
to engage in repeat acts of sexual violence”—but also that
he is unable to control his violent behavior. The trial court
denied this motion, and instructed the jury pursuant to the
terms of the statute. Id., at 581, 7 P. 3d, at 287–288. The
jury found, beyond a reasonable doubt, that respondent was
a sexual predator as defined by the SVPA. The Kansas
Supreme Court reversed, holding the SVPA unconstitutional
as applied to someone, like respondent, who has only an
emotional or personality disorder within the meaning of the
Act, rather than a volitional impairment. For such a person,
it held, the State must show not merely a likelihood that the
defendant would engage in repeat acts of sexual violence,
but also an inability to control violent behavior. It based
this holding solely on our decision in Kansas v. Hendricks,
521 U. S. 346 (1997).
II
Hendricks also involved the SVPA, and, as in this case,
the Kansas Supreme Court had found that the SVPA swept
too broadly. On the basis of considerable evidence show-

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418 KANSAS v. CRANE
Scalia, J., dissenting
ing that Hendricks suffered from pedophilia, the jury had
found, beyond a reasonable doubt, that Hendricks met the
statutory standard for commitment. See id., at 355; In re
Hendricks, 259 Kan. 246, 247, 912 P. 2d 129, 130 (1996). This
standard (to repeat) was that he suffered from a “mental
abnormality”—a disorder affecting his “emotional or voli-
tional capacity which predisposes [him] to commit sexually
violent offenses”—or a “personality disorder,” either of
which “makes [him] likely to engage in repeat acts of sexual
violence.” Kan. Stat. Ann. §§ 59–29a02(a), (b) (2000 Cum.
Supp.). The trial court, after determining as a matter of
state law that pedophilia was a “mental abnormality” within
the meaning of the Act, ordered Hendricks committed. See
521 U. S., at 355–356. The Kansas Supreme Court held the
jury finding to be constitutionally inadequate. “Absent . . .
a finding [of mental illness],” it said, “the Act does not sat-
isfy . . . constitutional standard[s],” 259 Kan., at 261, 912 P.
2d, at 138. (Mental illness, as it had been defined by Kan-
sas law, required a showing that the detainee “[i]s suffer-
ing from a severe mental disorder”; “lacks capacity to make
an informed decision concerning treatment”; and “is likely
to cause harm to self or others.” Kan. Stat. Ann. § 59–
2902(h) (1994).) We granted the State of Kansas’s petition
for certiorari.
The first words of our opinion dealing with the merits of
the case were as follows: “Kansas argues that the Act’s
definition of ‘mental abnormality’ satisfies ‘substantive’ due
process requirements. We agree.” Hendricks, 521 U. S., at
356. And the reason it found substantive due process satis-
fied was clearly stated:
“The Kansas Act is plainly of a kind with these other
civil commitment statutes [that we have approved]: It
requires a finding of future dangerousness [viz., that
the person committed is “likely to engage in repeat
acts of sexual violence”], and then links that finding
to the existence of a ‘mental abnormality’ or ‘person-

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Scalia, J., dissenting
ality disorder’ that makes it difficult, if not impossible,
for the person to control his dangerous behavior. Kan.
Stat. Ann. § 59–29a02(b) (1994).” Id., at 358 (emphasis
added).
It is the italicized language in the foregoing excerpt that
today’s majority relies upon as establishing the requirement
of a separate finding of inability to control behavior. Ante,
at 411–412.
That is simply not a permissible reading of the passage,
for several reasons. First, because the authority cited for
the statement—in the immediately following reference to
the Kansas Statutes Annotated—is the section of the SVPA
that defines “mental abnormality,” which contains no re-
quirement of inability to control.* What the opinion was
obviously saying was that the SVPA’s required finding
of a causal connection between the likelihood of repeat
acts of sexual violence and the existence of a “mental ab-
normality” or “personality disorder” necessarily establishes
“difficulty if not impossibility” in controlling behavior. This
is clearly confirmed by the very next sentence of the opinion,
which reads as follows:
“The precommitment requirement of a ‘mental abnor-
mality’ or ‘personality disorder’ is consistent with the
requirements of . . . other statutes that we have up-
held in that it narrows the class of persons eligible for
confinement to those who are unable to control their
dangerousness.” 521 U. S., at 358.
It could not be clearer that, in the Court’s estimation, the
very existence of a mental abnormality or personality dis-
*As quoted earlier in the Hendricks opinion, see 521 U. S., at 352, § 59–
29a02(b) defines “mental abnormality” as a “congenital or acquired con-
dition affecting the emotional or volitional capacity which predisposes
the person to commit sexually violent offenses in a degree constituting
such person a menace to the health and safety of others.”

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420 KANSAS v. CRANE
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order that causes a likelihood of repeat sexual violence in
itself establishes the requisite “difficulty if not impossibility”
of control. Moreover, the passage in question cannot pos-
sibly be read as today’s majority would read it because no-
where did the jury verdict of commitment that we reinstated
in Hendricks contain a separate finding of “difficulty, if
not impossibility, to control behavior.” That finding must
(as I have said) have been embraced within the finding of
mental abnormality causing future dangerousness. And fi-
nally, the notion that the Constitution requires in every case
a finding of “difficulty if not impossibility” of control does not
fit comfortably with the broader holding of Hendricks, which
was that “we have never required state legislatures to adopt
any particular nomenclature in drafting civil commitment
statutes. Rather, we have traditionally left to legislators
the task of defining terms of a medical nature that have legal
significance.” Id., at 359.
The Court relies upon the fact that “Hendricks under-
scored the constitutional importance of distinguishing a
dangerous sexual offender subject to civil commitment
‘from other dangerous persons who are perhaps more prop-
erly dealt with exclusively through criminal proceedings.’ ”
Ante, at 412 (quoting 521 U. S., at 360). But the SVPA as
written—without benefit of a supplemental control finding—
already achieves that objective. It conditions civil com-
mitment not upon a mere finding that the sex offender is
likely to reoffend, but only upon the additional finding (be-
yond a reasonable doubt) that the cause of the likelihood
of recidivism is a “mental abnormality or personality dis-
order.” Kan. Stat. Ann. § 59–29a02(a) (2000 Cum. Supp.).
Ordinary recidivists choose to reoffend and are therefore
amenable to deterrence through the criminal law; those sub-
ject to civil commitment under the SVPA, because their
mental illness is an affliction and not a choice, are unlikely
to be deterred. We specifically pointed this out in Hen-
dricks. “Those persons committed under the Act,” we said,

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“are, by definition, suffering from a ‘mental abnormality’ or a
‘personality disorder’ that prevents them from exercising ad-
equate control over their behavior. Such persons are there-
fore unlikely to be deterred by the threat of confinement.”
521 U. S., at 362–363.
III
Not content with holding that the SVPA cannot be applied
as written because it does not require a separate “lack-of-
control determination,” ante, at 412, the Court also reopens
a question closed by Hendricks: whether the SVPA also can-
not be applied as written because it allows for the commit-
ment of people who have mental illnesses other than voli-
tional impairments. “Hendricks,” the Court says, “had no
occasion to consider” this question. Ante, at 415.
But how could the Court possibly have avoided it? The
jury whose commitment we affirmed in Hendricks had not
been asked to find a volitional impairment, but had been
charged in the language of the statute, which quite clearly
covers nonvolitional impairments. And the fact that it did
so had not escaped our attention. To the contrary, our Hen-
dricks opinion explicitly and repeatedly recognized that the
SVPA reaches individuals with personality disorders, 521
U. S., at 352, 353, 357, 358, and quoted the Act’s definition
of mental abnormality (§ 59–29a02(b)), which makes plain
that it embraces both emotional and volitional impairments,
id., at 352. It is true that we repeatedly referred to Hen-
dricks’s “volitional” problems—because that was evidently
the sort of mental abnormality that he had. But we no-
where accorded any legal significance to that fact—as we
could not have done, since it was not a fact that the jury had
been asked to determine. We held, without any qualifica-
tion, “that the Kansas Sexually Violent Predator Act com-
ports with [substantive] due process requirements,” id., at
371, because its “precommitment requirement of a ‘mental
abnormality’ or ‘personality disorder’ is consistent with the
requirements of . . . other statutes that we have upheld in

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422 KANSAS v. CRANE
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that it narrows the class of persons eligible for confinement
to those who are unable to control their dangerousness,”
id., at 358.
The Court appears to argue that, because Hendricks in-
volved a defendant who indeed had a volitional impairment
(even though we made nothing of that fact), its narrowest
holding covers only that application of the SVPA, and our
statement that the SVPA in its entirety was constitutional
can be ignored. See ante, at 414–415. This cannot be cor-
rect. The narrowest holding of Hendricks affirmed the
constitutionality of commitment on the basis of the jury
charge given in that case (to wit, the language of the SVPA);
and since that charge did not require a finding of volitional
impairment, neither does the Constitution.
I cannot resist observing that the distinctive status of
volitional impairment which the Court mangles Hendricks
to preserve would not even be worth preserving by more
legitimate means. There is good reason why, as the Court
accurately says, “when considering civil commitment . . . we
[have not] ordinarily distinguished for constitutional pur-
poses among volitional, emotional, and cognitive impair-
ments,” ante, at 415. We have not done so because it makes
no sense. It is obvious that a person may be able to exercise
volition and yet be unfit to turn loose upon society. The man
who has a will of steel, but who delusionally believes that
every woman he meets is inviting crude sexual advances,
is surely a dangerous sexual predator.
IV
I not only disagree with the Court’s gutting of our hold-
ing in Hendricks; I also doubt the desirability, and indeed
even the coherence, of the new constitutional test which
(on the basis of no analysis except a misreading of Hen-
dricks) it substitutes. Under our holding in Hendricks, a
jury in an SVPA commitment case would be required to find,
beyond a reasonable doubt, (1) that the person previously

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convicted of one of the enumerated sexual offenses is suffer-
ing from a mental abnormality or personality disorder, and
(2) that this condition renders him likely to commit future
acts of sexual violence. Both of these findings are coherent,
and (with the assistance of expert testimony) well within the
capacity of a normal jury. Today’s opinion says that the
Constitution requires the addition of a third finding: (3) that
the subject suffers from an inability to control behavior—
not utter inability, ante, at 411, and not even inability in a
particular constant degree, but rather inability in a degree
that will vary “in light of such features of the case as the
nature of the psychiatric diagnosis, and the severity of the
mental abnormality itself,” ante, at 413.
This formulation of the new requirement certainly dis-
plays an elegant subtlety of mind. Unfortunately, it gives
trial courts, in future cases under the many commitment
statutes similar to Kansas’s SVPA, not a clue as to how they
are supposed to charge the jury! Indeed, it does not even
provide a clue to the trial court, on remand, in this very case.
What is the judge to ask the jury to find? It is fine and
good to talk about the desirability of our “proceeding de-
liberately and contextually, elaborating generally stated con-
stitutional standards and objectives as specific circumstances
require,” ante, at 414, but one would think that this plan
would at least produce the “elaboration” of what the jury
charge should be in the “specific circumstances” of the pres-
ent case. “[P]roceeding deliberately” is not synonymous
with not proceeding at all.
I suspect that the reason the Court avoids any elaboration
is that elaboration which passes the laugh test is impossible.
How is one to frame for a jury the degree of “inability to
control” which, in the particular case, “the nature of the
psychiatric diagnosis, and the severity of the mental ab-
normality” require? Will it be a percentage (“Ladies and
gentlemen of the jury, you may commit Mr. Crane under the
SVPA only if you find, beyond a reasonable doubt, that he

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is 42% unable to control his penchant for sexual violence”)?
Or a frequency ratio (“Ladies and gentlemen of the jury,
you may commit Mr. Crane under the SVPA only if you find,
beyond a reasonable doubt, that he is unable to control his
penchant for sexual violence 3 times out of 10”)? Or merely
an adverb (“Ladies and gentlemen of the jury, you may
commit Mr. Crane under the SVPA only if you find, be-
yond a reasonable doubt, that he is appreciably—or mod-
erately, or substantially, or almost totally—unable to control
his penchant for sexual violence”)? None of these seems to
me satisfactory.
But if it is indeed possible to “elaborate” upon the Court’s
novel test, surely the Court has an obligation to do so in
the “specific circumstances” of the present case, so that the
trial court will know what is expected of it on remand. It
is irresponsible to leave the law in such a state of utter
indeterminacy.
* * *
Today’s holding would make bad law in any circumstances.
In the circumstances under which it is pronounced, how-
ever, it both distorts our law and degrades our authority.
The State of Kansas, unable to apply its legislature’s sex-
ual predator legislation as written because of the Kansas
Supreme Court’s erroneous view of the Federal Constitu-
tion, sought and received certiorari in Hendricks, and
achieved a reversal, in an opinion holding that “the Kansas
Sexually Violent Predator Act comports with [substantive]
due process requirements,” 521 U. S., at 371. The Kansas
Supreme Court still did not like the law and prevented its
operation, on substantive due process grounds, once again.
The State of Kansas again sought certiorari, asking nothing
more than reaffirmation of our 5-year-old opinion—only to
be told that what we said then we now unsay. There is an
obvious lesson here for state supreme courts that do not
agree with our jurisprudence: ignoring it is worth a try.

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A jury determined beyond a reasonable doubt that re-
spondent suffers from antisocial personality disorder com-
bined with exhibitionism, and that this is either a mental
abnormality or a personality disorder making it likely he will
commit repeat acts of sexual violence. That is all the SVPA
requires, and all the Constitution demands. Since we have
already held precisely that in another case (which, by a re-
markable feat of jurisprudential jujitsu the Court relies upon
as the only authority for its decision), I would reverse the
judgment below.