534 U.S. 407122 S.Ct. 867151 L.Ed.2d 856
KANSAS, PETITIONERv.MICHAEL T. CRANE
No. 00-957.
Argued October 30, 2001Decided January 22, 2002

Syllabus
In upholding the constitutionality of the Kansas Sexually Violent Predator Act,  this Court characterized a dangerous sexual offenders confinement as civil  rather than criminal, Kansas v. Hendricks, 521 U.S. 346, 369, and held that the  confinement criterion embodied in the statutes words mental abnormality or  personality disorder satisfied substantive due process, id., at 356, 360. Here,  the Kansas District Court ordered 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 behavioreven if (as provided by Kansas law) problems of emotional,  and not volitional, capacity prove the source of behavior warranting 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 requiring an abnormality or disorder that makes  it difficult, if not impossible, 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  unworkable and would risk barring the civil commitment of highly dangerous  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 Constitutions 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 personality disorders that make an individual eligible  for commitment; and psychiatry, which informs but does not control ultimate  legal determinations, is an ever-advancing science, whose distinctions do not  seek precisely to mirror those of the law. Consequently, the Court has sought to  provide constitutional guidance in this area by proceeding deliberately and  contextually, elaborating generally stated constitutional standards and  objectives as specific circumstances require, the approach embodied in Henricks.  That Hendricks limited its discussion to volitional disabilities is not  surprising, as the case involved pedophiliaa 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 volitional, emotional, and cognitive impairments. See, e.g.,  Jones v. United States, 463 U.S. 354. The Court in Hendricks had no occasion to  consider whether confinement based solely on emotional abnormality would be  constitutional, and has no occasion to do so here. Pp.4-8.
269 Kan. 578, 7 P. 3d 285, vacated and remanded.
On writ of certiorari to the supreme court of Kansas
Breyer, J., delivered the opinion of the Court, in which Rehnquist, C.J.,  and Stevens, OConnor, Kennedy, Souter, and Ginsburg, JJ., joined.
Justice Breyer delivered the opinion of the Court.


1
This case concerns the constitutional requirements substantively limiting  the civil commitment of a dangerous sexual offender--a matter that this Court  considered in Kansas 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 courts judgment.


2
* In Hendricks, this Court upheld the Kansas Sexually Violent Predator Act,  Kan. Stat. Ann. 5929a01 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 statutes words mental abnormality or  personality disorder satisfied substantive due process requirements. Id., at  356, 360.


3
In reaching its conclusion, the Courts 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 we have consistently  upheld such involuntary commitment statutes when (1) the confinement takes place  pursuant to proper procedures and evidentiary standards, (2) there is a finding  of dangerousness either to ones 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 abnormality. Id., at 357-358. It noted that the Kansas  Act unambiguously requires a finding of dangerousness either to ones 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 impossible,  for the person to control his dangerous behavior, id., at 358 (citing Kan. Stat.  Ann. 5929a02(b) (1994)). And the Court ultimately determined that the statutes  requirement of a mental abnormality or personality disorder is consistent 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 dangerousness. 521 U.S., at 358.


4
The Court went on to respond to Hendricks claim that earlier cases had  required a finding, not of mental abnormality 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 individuals inability to control  his dangerousness, the Kansas Act sets forth comparable criteria. Id., at 360.  It added that Hendricks own condition doubtless satisfies those criteria, for  (1) he suffers from pedophilia, (2) the psychiatric profession itself classifies  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

5
In the present case the State of Kansas asks us to review the Kansas  Supreme Courts application of Hendricks. The State here seeks the civil  commitment of Michael Crane, a previously convicted sexual offender who,  according to at least one of the States psychiatric witnesses, suffers from both  exhibitionism and antisocial personality disorder. 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)  (DSMIV) (detailing exhibitionism), 701706 (detailing antisocial personality  disorder). After a jury trial, the Kansas District Court ordered Cranes 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 courts view, the Federal  Constitution as interpreted in Hendricks insists upon a finding that the  defendant cannot control his dangerous behavior--even if (as provided by Kansas  law) problems of emotional capacity and not volitional capacity prove the source  of bad behavior warranting commitment. Ibid., see also Kan. Stat. Ann.  5929a02(b) (2000 Cum. Supp.) (defining [m]ental abnormality as a condition that  affects an individuals emotional or volitional capacity). And the trial court  had made no such finding.


6
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

7
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 difficult, 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 different amici on opposite sides of this case agree, an  absolutist approach is unworkable. Brief for Association for the Treatment of  Sexual Abusers as Amicus Curiae 3; cf. Brief for American Psychiatric  Association et al. as Amici Curiae 10; cf. also American Psychiatric Association,  Statement on the Insanity Defense 11 (1982), reprinted in G. Melton, J. Petrila,  N. Poythress, & C. Slobogin, Psychological Evaluations 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). Moreover, 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, Hence, 4 Psychol. Pub. Poly & 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.


8
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 Hendricks 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 properly  dealt with exclusively through criminal proceedings. 521 U.S., at 360. That  distinction is necessary lest civil commitment become a mechanism for  retribution or general deterrence--functions properly those of criminal law, not  civil commitment. Id., at 372-373 (Kennedy, J., concurring); 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 Personality Disorder). The presence of  what the psychiatric profession 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 consisted of a special and serious lack  of ability to control behavior.


9
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  demonstrable with mathematical precision. It is enough to say that there must be  proof of serious difficulty in controlling behavior. 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 convicted in an ordinary criminal case. 521 U.S., at 357-358;  see also Foucha v. Louisiana, 504 U.S. 71, 82-83 (1992) (rejecting an approach to  civil commitment that would permit the indefinite confinement of any convicted  criminal after completion of a prison term).


10
We recognize that Hendricks as so read provides a less precise  constitutional standard than would those more definite rules for which the  parties have argued. But the Constitutions 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 374375  (Breyer, J., dissenting). For another, the science of psychiatry, which informs  but does not control ultimate legal determinations, is an ever-advancing  science, whose distinctions 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); DSMIV xxx (concept of mental disorder lacks a  consistent operational definition); id., at xxxii-xxxiii (noting the imperfect  fit between the questions of ultimate concern to the law and the information  contained in [the DSMs] clinical diagnosis). Consequently, we have sought to  provide constitutional guidance in this area by proceeding deliberately and  contextually, elaborating generally stated constitutional standards and objectives as specific circumstances  require. Hendricks embodied that approach.

IV

11
The State also questions how often a volitional problem lies at the heart  of a dangerous sexual offenders 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 characterized by an emotional impairment and (2)  suffered no volitional impairment. 269 Kan., at 583, 7 P.3d, at 289. It adds  that, in the Kansas courts view, Hendricks absolutely 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 Petitioner 11; Tr. of Oral Arg. 5.


12
We agree that Hendricks limited its discussion to volitional disabilities.  And that fact is not surprising. The case involved an individual suffering from  pedophiliaa mental abnormality that critically involves what a lay person might  describe as a lack of control. DSMIV 571572 (listing as a diagnostic criterion  for pedophilia that an individual 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 individuals  who find it particularly difficult to control their behavior--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:  Non-psychotic Mental Disorders 271 (M. Thase, B. Edelstein, & M. Hersen eds.  1990) (sex offenders compulsive, 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 English, that they are unable to control  their dangerousness. Hendricks, supra, at 358.


13
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 understanding 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 considering civil commitment, have we  ordinarily distinguished for constitutional purposes among volitional, emotional, and  cognitive 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.


14
* * *


15
For these reasons, the judgment of the Kansas Supreme Court is vacated, and  the case is remanded for further proceedings not inconsistent with this opinion.


16
It is so ordered.


17
Scalia, J.,  filed a dissenting opinion, in which Thomas, J., joined.


18
Justice Scalia, with whom Justice Thomas joins, dissenting.


19
Today the Court holds that the Kansas Sexually Violent Predator Act (SVPA)  cannot, consistent with so-called substantive due process, be applied as  written. It does so even though, less than five years ago, we upheld the very  same statute against the very same contention in an appeal by the very same  petitioner (the State of Kansas) from the judgment of the very same court. Not  only is the new law that the Court announces today wrong, but the Courts 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 judgment of the Kansas Supreme Court.


20
* Respondent was convicted of lewd and lascivious behavior and pleaded guilty  to aggravated sexual battery for two incidents 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  respondents 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 detention 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 affecting  his emotional or volitional capacity which predisposes 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.  5929a02(a), (b) (2000 Cum. Supp.).


21
Several psychologists examined respondent and determined he suffers from  exhibitionism and antisocial personality disorder. Though exhibitionism alone  would not support classification as a sexual predator, a psychologist concluded  that the two in combination did place respondents condition within the range of  disorders covered by the SVPA, cit[ing] the increasing frequency of incidents  involving [respondent], increasing intensity of the incidents, [respondents]  increasing 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 respondents behavior was marked by impulsivity or  failure to plan ahead, indicating his unlawfulness was a combination of willful  and uncontrollable behavior, id., at 584-585, 7 P.3d, at 290. The States experts  agreed, however, that [r]espondents mental disorder does not impair his  volitional control to the degree he cannot control his dangerous behavior. Id.,  at 581, 7 P.3d, at 288.


22
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 287288. 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

23
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 showing 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 volitional 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. 5929a02(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  355356. The Kansas Supreme Court held the jury finding to be constitutionally  inadequate. Absent a finding [of mental illness], it said, the Act does not  satisfy constitutional standard[s], 259 Kan., at 261, 912 P.2d, at 138. (Mental  illness, as it had been defined by Kansas law, required a showing that the  detainee [i]s suffering 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. 592902(h) (1994).) We granted the State of Kansass  petition for certiorari.


24
The first words of our opinion dealing with the merits of the case were as  follows: Kansas argues that the Acts 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 satisfied was clearly stated:


25
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 personality disorder that makes it difficult, if not    impossible, for the person to control his dangerous behavior. Kan. Stat. Ann.    5929a02(b) (1994). Id., at 358 (emphasis added).


26
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 4.


27
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 requirement of inability to  control.* What the opinion was obviously saying was that the SVPAs required  finding of a causal connection between the likelihood of repeat acts of sexual  violence and the existence of a mental abnormality 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:


28
The pre-commitment requirement of a mental abnormality or personality disorder    is consistent 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 dangerousness. 521 U.S., at 358.


29
It could not be clearer that, in the Courts estimation, the very existence of a  mental abnormality or personality disorder 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 possibly be  read as today's majority would read it because nowhere 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 finally, 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.


30
The Court relies upon the fact that Hendricks underscored the  constitutional importance of distinguishing a dangerous sexual offender subject  to civil commitment from other dangerous persons who are perhaps more properly  dealt with exclusively through criminal proceedings. Ante, at 45 (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 commitment not upon  a mere finding that the sex offender is likely to re-offend, but only upon the  additional finding (beyond a reasonable doubt) that the cause of the likelihood  of recidivism is a mental abnormality or personality disorder. Kan. Stat. Ann.  5929a02(a) (2000 Cum. Supp.). Ordinary recidivists choose to re-offend and are  therefore amenable to deterrence through the criminal law; those subject 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 Hendricks. Those persons committed under the Act, we said, are, by  definition, suffering from a mental abnormality or a personality disorder that  prevents them from exercising adequate control over their behavior. Such persons  are therefore unlikely to be deterred by the threat of confinement. 521 U.S., at  362-363.

III

31
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 4, the  Court also reopens a question closed by Hendricks: whether the SVPA also cannot  be applied as written because it allows for the commitment of people who have  mental illnesses other than volitional impairments. Hendricks, the Court says,  had no occasion to consider this question. Ante, at 8.


32
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  non-volitional impairments. And the fact that it did so had not escaped our  attention. To the contrary, our Hendricks opinion explicitly and repeatedly  recognized that the SVPA reaches individuals with personality disorders, 521  U.S., at 352, 353, 357, 358, and quoted the Acts definition of mental  abnormality (5929a02(b)), which makes plain that it embraces both emotional and  volitional impairments, id., at 352. It is true that we repeatedly referred to  Hendrickss volitional problems--because that was evidently the sort of mental  abnormality that he had. But we nowhere 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 qualification, that the Kansas Sexually  Violent Predator Act comports with [substantive] due process requirements, id.,  at 371, because its pre-commitment requirement of a mental abnormality or  personality disorder is consistent 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 dangerousness, id., at 358.


33
The Court appears to argue that, because Hendricks involved 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 78. This cannot be correct. 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.


34
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 purposes between volitional, emotional, and  cognitive impairments, ante, at 7. 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

35
I not only disagree with the Courts gutting of our holding 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  Hendricks) 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 convicted of one of the enumerated sexual offenses is  suffering 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 4, 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 5.


36
This formulation of the new requirement certainly displays 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  deliberately and contextually, elaborating generally stated constitutional  standards and objectives as specific circumstances require, ante, at 6, 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 present case.  Proceeding deliberately is not synonymous with not proceeding at all.


37
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 abnormality  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 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, beyond a reasonable doubt, that he is appreciably--or moderately, or  substantially, or almost totally--unable to control his penchant for sexual  violence)? None of these seems to me satisfactory.


38
But if it is indeed possible to elaborate upon the Courts 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.


39
* * *


40
Today's holding would make bad law in any circumstances. In the  circumstances under which it is pronounced, however, it both distorts our law  and degrades our authority. The State of Kansas, unable to apply its  legislatures sexual predator legislation as written because of the Kansas  Supreme Courts erroneous view of the Federal Constitution, 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.


41
A jury determined beyond a reasonable doubt that respondent suffers from  antisocial personality disorder combined 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 remarkable feat of jurisprudential jujitsu the Court relies  upon as the only authority for its decision), I would reverse the judgment  below.



Notes:


*
  As quoted earlier in the Hendricks opinion, see 521 U.S., at 352, 5929a02(b)  defines mental abnormality as a congenital or acquired condition 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.


