The U.S. Supreme Court case of Foucha v. Louisiana, (1992) 504 U.S. 71, typically has not been applied to civil commitment cases done under the various states' Sexually Violent Predator Acts ("SVPA"), primarily because the states had effectively created a new sub-class of citizens--sex offenders--and felt that because of the inflammatory nature of the allegations against them, they could be treated differently and more harshly than all other types of civil commitment defendants. The states simply extended these defendants' confinements based on their underlying offenses for which they had served their entire prison sentences. They often do this without consideration of the defendants' present condition. The mental health evaluators base their findings on the persons past, and fail to find a current mental illness along with a serious current inability to control behavior because of that mental illness. These have traditionally been required elements for all other classes of civil commitments. 

On January 22, 2002, the U.S. Supreme Court decided an SVPA case, Kansas v. Crane, (2002) 534 U.S. 407, where the Court incorporated rationale of Foucha into the decision when it cited and quoted Foucha. By applying Foucha rationale to Crane, the Court is essentially saying SVPA defendants must now be treated the same as all other civil commitment defendants. 

Foucha, 504 U.S. at 79, states: "There is no conceivable basis for distinguishing the commitment of a person who is nearing the end of a penal term from all other commitments." At 504 U.S. at 80, the Court states: "The due process clause contains a substantive component that bars certain arbitrary, wrongful governmental actions 'regardless of the procedures used to implement them.'" The Court continues, "The state may also confine a mentally ill person if it shows 'by clear and convincing evidence that the individual is mentally ill and dangerous,' Jones 463 U.S. at 362. Here, the state has not carried that burden." Id. At 80. 

The State of Louisiana has alleged that Foucha, a person who had been found mentally incompetent to stand trial and was instead placed in a mental hospital, had been involved in several physical altercations while confined in that hospital making him dangerous. Based on his fights and failure to follow rules, the State wished to keep Foucha confined without proving he was currently dangerous and currently suffered from a mental illness. They attempted to base his retention in custody solely on his past. 

The Foucha Court found this to be unconstitutional stating, "Furthermore, if Foucha committed criminal acts while at Feliciana, such as assault, the State does not explain why its interest would not be vindicated by the ordinary criminal process involving charge and conviction, the use of enhanced sentences for recidivists, and other permissible ways of dealing with patterns of criminal conduct. These are the normal means of dealing with persistent criminal conduct. Had they been employed against Foucha when he assaulted other inmates, there is little doubt that, if sane, he could have been convicted and incarcerated in the usual way." (Foucha, 504 U.S. at 82.) 

The Court condemns using civil commitments as a general deterrent against recidivism, and changing our present justice system: "Here in contrast, the state asserts that, because Foucha once committed a criminal act and now has an antisocial personality that sometimes leads to aggressive conduct, a disorder for which there is no effective treatment, he may be held indefinitely. This rationale would permit the state to hold indefinitely any other insanity acquittee not mentally ill who could be shown to have a personality disorder that may lead to criminal conduct. The same would be true of any convicted criminal, even though he has completed his prison term. It would also be only a step away from substituting confinements for dangerousness for our present system, which, with only narrow exceptions and aside from permissible confinements for mental illness, incarcerates only those who are proved beyond a reasonable doubt to have violated a criminal." (Foucha, 504 U.S. at 82-83.)(Emphasis added for portion quoted in Crane.) 

The Crane Court in citing Foucha and Kansas v. Hendricks, (1997) 521 U.S. 346, 357-358, stated there must be sufficient proof of a "serious difficulty in controlling behavior," and the "severity of the mental abnormality itself must be sufficient to distinguish the dangerous sexual offender who's serious mental illness, abnormality, or disorder subject him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case." (Crane 534 U.S. 407) Thus, the Foucha rationale has been brought forward to also apply to SVPA commitments. 

The Foucha Court also found a "violation of Equal Protection Clause of the Fourteenth Amendment." The Court found that he could no longer be treated differently than other civil commitments: "The State nonetheless insists on holding him indefinitely because he at one time committed a criminal act and does not now prove he is not dangerous. Louisiana law, however, does not provide for similar confinement for other classes of persons who have committed criminal acts and who cannot later prove they would not be dangerous. Criminals who have completed their prison terms, or are about to do so, are an obvious and large category of such persons. Many of them will likely suffer from the same sort of personality disorder that Foucha exhibits. However, state law does not allow for their continuing confinement based merely on dangerousness. Instead, the state controls the behavior of these similarly situated citizens by relying on other means, such as punishment, deterrence, and supervised release." (Foucha 504 U.S. at 85.) 

The Foucha Court criticizes the use of recidivism predictions for civil commitments, particularly in Footnote 4 where the majority discusses the Kennedy dissent: "the Justice cites no authority, but surely would have if it existed, for the proposition that a defendant convicted of a crime and sentenced to a term of years may nevertheless be held indefinitely because of the likelihood that he would commit other crimes." (Foucha, supra, 504 U.S. at 77, fn. 4.) 

The dissent objects to the majority decision because Foucha escaped criminal punishment totally through an insanity defense. However, had Foucha been convicted criminally and served his entire sentence, then even the dissent of Justices Thomas and Scalia would have a problem with extended confinements: "If Foucha had been convicted of the crimes with which he was charged and sentenced at the end of that period. To do so would obviously violate the prohibition on ex post facto laws set forth in Art. I, 10, cl. 1." (Foucha, supra, 504 U.S. at 122, fn 16.) 

It should be noted that both Justices Thomas and Scalia have displayed an improper but common prejudice against sex offenders by refusing to apply these principles to SVPA proceedings are saying that sex offenders must be treated the same as all other classes of people being considered for civil commitment. Since the main problem the Supreme Court had with Foucha's commitment was that it was based on Foucha's history rather than his current condition, a current condition showing that is independent of the person's history should now be required for SVPA commitments, just as it is for all other civil commitments. 

The Foucha Court also touches on what is commonly referred to as a least restrictive alternative. The Court applies a case dealing with the Bail Reform Act of 1984 to civil commitments, United States v. Salerno, (1987) 481 U.S. 739, where the Court observed that the government's interest in preventing crimes is legitimate and compelling. However, there were strict conditions: "In addition to first demonstrating probable cause, the Government was required, in a 'full-blown adversary hearing,' to convince a neutral decision maker by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person, i.e., that the 'arrestee presents an identified and articulable threat to an individual or the community.' Id. At 751." (Foucha, 504 U.S. at 81). 

In some states the SVP Acts require a least restrictive alternative consideration, and in other states such as California, the courts require this consideration. The California Supreme Court in People v. Superior Court (Ghilotti), (S102527), decided April 25, 2002, found, "the statute appears to contemplate that the need for treatment and the need for custody are not always one and the same." The Ghilotti Court cites several of its precedents in concluding that a constitutionally valid civil commitment scheme would require the consideration of community treatment.