When the U.S. Supreme Court decided Kansas v. Crane, (2002) 534 U.S. 407, the Court incorporated Foucha v. Louisiana, (1992) 504 U.S. 71. This adoption of Foucha principles into Sexually Violent Predator Act ("SVPA") commitment actions effectively holds that sex offenders must now be treated the same as other people singled out for involuntary commitment. In Crane, the court specifically quotes Foucha as "rejecting an approach to civil commitment that would permit the indefinite confinement 'of any convicted criminal' after completion of a prison term." Yet this is exactly what is happening in most states' SVPA commitment schemes. 

The Foucha quote is an explicit rejection of the "once dangerous, always dangerous" commitment ideology currently used by most mental health evaluators when preparing SVPA evaluations. Even the dissent in Foucha appears to agree with the majority on this particular principle. Footnote 16 of the Thomas dissent states: "If Foucha had been convicted of the crimes with which he had been charged and sentenced to the maximum of 32 years in prison, the State would not be entitled to extend his sentence 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 in subsequent SVPA decisions, Justices Thomas and Scalia have both opposed extending any rights whatsoever to sex offenders. Nevertheless, the majorities have extended constitutional protections. 

In California, and probably most other states, had, under the pre-Crane standards, allowed their evaluators to erroneously develop the attitude that sex offenders could be committed using lower standards than those used for all other involuntary commitments. Crane, by applying Foucha, no longer allows sex offenders to be treated differently. The Foucha court found an Equal Protection violation: 

"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. Criminals who have completed their person 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.) 

California Department of Mental Health ("DMH") evaluations suffer from a similar misuse of law. The evaluators have taken the position that sex offenders are a sub-class of people to whom they can apply a different set of standards and evaluation methods. The evaluators believe they can take a person's history, and from that alone, determine current or future mental health conditions. Using sometimes 15 year old data, they believe they can divine current mental condition diagnosis determinations without ever interviewing the person being evaluated, even when there exists no recent objective indicia or recent overt acts. The evaluators simply extract historical data, and therefrom, extrapolate forward a mental abnormality or personality disorder diagnosis that automatically becomes future dangerousness. They are part and parcel of each other. No other civil commitment scheme allows this type of evaluation to result in civil commitment. 

The Foucha Court further states: "[T]here is no conceivable basis for distinguishing the commitment of a person who is nearing the end of his penal term from all other civil commitments. Jackson v. Indiana, supra, at 724, quoting Baxtrom, supra, at 111-112. [504 U.S. 71, 80]." (Foucha, 504 U.S. 71) 

By applying Foucha, the new Crane standards now require the state to prove that an offender has a present mental abnormality that causes a present "special and serious lack of ability to control behavior." These are the same standards--present, right now, today--as are used for all other types of civil commitments. The state must present evaluations that prove present dangerousness, not past dangerousness that extrapolates forward mathematically to future dangerousness. But a present serious impairment of one's ability to control behavior. Right here! Right now! Today! 

The whole premise of the Foucha holding was that the State of Louisiana had unconstitutionally relied on past dangerousness, and past mental conditions, being continuously ongoing. Louisiana had, like the evaluators in California, adopted a once dangerous, always dangerous approach. In Foucha, like a high percentage of SVPA defendants, the recent evidence indicated no such present dangerousness. Nor had Louisiana, just like present SVPA evaluations, shown a current qualifying mental abnormality. The evaluators only showed the historical existence of these for Foucha. Similarly, SVPA evaluators only show the historical existence of these derived from the underlying crime for which the defendant has completely served his prison sentence. 

The overzealous evaluators and prosecutors have capitalized on the political promotion of sex offenders as this era's most hated group of sub-citizens. Because of this hate, sex offenders have been singled out from all other criminal offenders to be civilly committed after they have completely finished serving their criminal sentences, based on a fear they may possibly recidivate. The state does this to no other group, and this practice of different treatment is what the U.S. Supreme Court finds unconstitutional. To be civilly committed in a constitutional manner, the person must have more than just a past history of crime as a basis. Civil commitment cannot simply be used as a general deterrent against future possible crime or recidivism. The Crane and Foucha decisions are very clear about separating the truly dangerous offender from the typical but dangerous recidivist. Now, the U.S. Supreme Court requires proof that the person is presently dangerous, and that dangerousness is shown by a current serious inability to control behavior that is, separate from, but caused by a mental abnormality that does not flow solely from the person's history. 

Constitutional challenges to SVPA statutes have been largely unsuccessful. However, there have been some successful challenges to the constitutionality of the method and manner as to how an otherwise valid statute is applied. 

For example, in California in State Supreme Court decided People v. Superior Court (Ghilotti), (S102527), on April 25, 2002. The Ghilotti decision held that the appropriate party could challenge a petition for commitment, or recommitment, for validity on grounds that one or more of the evaluator's reports are infected with legal error, with legal error being defined as an inaccurate understanding of the statutory scheme. 

Later, the California Supreme Court further narrowed the reach of the SVPA in that state in People v. Hurtado, (S082112), by limiting the class of persons subject to commitment to those who are likely to commit predatory acts. Previously, this element was only presented at a probable cause hearing under a reasonable suspicion standard of proof. The Hurtado decision brings SVPA standards of proof in line with all other California civil commitment schemes, as it now requires this element, and presumably all other required elements, to be proven to a jury at trial under the standard of beyond a reasonable doubt. 

These changes are most likely being made to correct existing, and prevent future, as applied problems with the statutes interpretation and implementation. No doubt other jurisdictions are making similar adjustments, if note their methods may be ripe for challenge.