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No. 3--01--1034

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2003

A jury found the respondent, Charles Dean, to be a sexuallyviolent person pursuant to the Sexually Violent PersonsCommitment Act (Illinois Act). 725 ILCS 207/1 et seq. (West2000). The trial court committed him to the Department of HumanServices until he no longer is a sexually violent person. Onappeal, the respondent argues that the Illinois Actunconstitutionally denies his due process rights because it doesnot require the jury to determine that he lacks control over hisbehavior. We affirm.

BACKGROUND

In 1988, the respondent pled guilty to two counts ofaggravated criminal sexual assault of his first wife's nine-year-old niece. In 1992, he pled guilty to one count of aggravatedcriminal sexual assault of his second wife's five-year-olddaughter. On February 15, 2001, before he was scheduled to bereleased from prison for the 1992 offense, the State petitionedthe circuit court to commit the respondent as a "sexually violentperson" under the Illinois Act (725 ILCS 207/40 (West 2000)). The court held a jury trial on the petition. At the conclusionof the trial, the jury found the respondent to be a "sexuallyviolent person." The court then ordered that he be civillycommitted under the Illinois Act. The respondent appealed.

ANALYSIS

The respondent argues that the Illinois Act violates theUnited States Supreme Court's holding in Kansas v. Crane, 534U.S. 407, 151 L. Ed. 2d 856, 122 S. Ct. 867 (2002) (Crane US). In Crane US, the Court considered a Kansas act that containslanguage similar to the language in the Illinois Act. Therespondent contends that in Crane US, the Court required the juryto find that a person lacked control of his behavior in order tocivilly commit the person under the Kansas act. The respondentsubmits that the Illinois Act violates due process rights byfailing to require such a finding. We disagree with therespondent's reading of Crane US.

The constitutionality of a statute is a question of law,which we review de novo. People v. Garcia, 199 Ill. 2d 401, 770N.E.2d 208 (2002).

The Illinois Act states that if the jury finds a person tobe a "sexually violent person," the court shall order that theperson be civilly committed. 725 ILCS 207/35(f) (West 2000). A"sexually violent person" is a person who has been convicted of asexually violent offense and who is dangerous because he suffersfrom a "mental disorder" that makes it substantially probablethat he will engage in acts of sexual violence. 725 ILCS207/5(f) (West 2000). A "mental disorder" is a congenital oracquired condition affecting the emotional or volitional capacitythat predisposes a person to engage in acts of sexual violence. 725 ILCS 207/5(b) (West 2000).

A determination of the constitutionality of the Illinois Actrequires a discussion of the case law that preceded Crane US. InKansas v. Hendricks, 521 U.S. 346, 138 L. Ed. 2d 501, 117 S. Ct.2072 (1997), the Court considered the language in the Kansas actwhich is similar to language in the Illinois Act. Under theKansas act, a person could be civilly committed if the person wasfound to be a "sexually violent predator." A "sexually violentpredator" was defined as:

" '[A]ny person who has been convicted of or chargedwith a sexually violent offense and who suffers from amental abnormality or personality disorder which makesthe person likely to engage in the predatory acts ofsexual violence.' [Citation.]

A 'mental abnormality' was defined, in turn, as a'congenital or acquired condition affecting theemotional or volitional capacity which predisposes theperson to commit sexually violent offenses in a degreeconstituting such person a menace to the health andsafety of others.'[Citation.] " Hendricks, 521 U.S. at352, 138 L. Ed. 2d at 509, 117 S. Ct. at 2077.

The issue in Hendricks was whether the Kansas act's"precommitment condition of a 'mental abnormality' did notsatisfy what the [Kansas Supreme Court] perceived to be the'substantive' due process requirement that involuntary civilcommitment must be predicated on a finding of 'mental illness.' " Hendricks, 521 U.S. at 350, 138 L. Ed. 2d at 508, 117 S. Ct. at2076. The Supreme Court held that the Kansas act's "definitionof 'mental abnormality' satisfies 'substantive' due processrequirements." Hendricks, 521 U.S. at 356, 138 L. Ed. 2d at 511,117 S. Ct. at 2079. In dicta, the Hendricks Court explained thatit previously had upheld statutes that provided for the civilcommitment of a person who (1) is unable to control his behaviorand (2) poses a danger either to himself or to others.

In In re Care & Treatment of Crane, 269 Kan. 578, 7 P.3d 285(2000) (Crane KS), the Kansas Supreme Court then interpretedHendricks to mean that a jury must make a "lack of control"finding in order to commit the person. The United States SupremeCourt granted certiorari to consider Crane KS and clarified theCourt's ruling from Hendricks.

In Crane US, the State of Kansas argued that the KansasSupreme Court's ruling in Crane KS misinterpreted Hendricks. TheState of Kansas contended that the Kansas court read Hendricks torequire the State to prove that the person to be committed wascompletely unable to control his behavior. The Crane US Courtagreed that such a reading of Hendricks was too rigid. The CraneUS Court, however, also rejected the State of Kansas's argumentthat a "lack of control" determination was completelyunnecessary. The Court reiterated that Hendricks had upheld theKansas act as constitutional. The Court noted that the Kansasact's definition of "mental abnormality" met both elements of theHendricks two-pronged test, i.e., that the person (1) was unableto control his behavior, and (2) posed a danger to himself orothers. The Court then vacated the Kansas Supreme Court'sjudgment and remanded the matter. Crane US, 534 U.S. 407, 151 L.Ed. 2d 856, 122 S. Ct. 867.

In In re Detention of Varner, 198 Ill. 2d 78, 759 N.E.2d 560(2001), the Illinois Supreme Court rejected the Kansas SupremeCourt's interpretation of Hendricks in Crane KS, but on differentgrounds than stated by the United States Supreme Court in CraneUS. Recently, the United States Supreme Court granted certiorarifor the purpose of vacating Varner and remanding the matter tothe Illinois Supreme Court in light of Crane US. Varner v.Illinois, No. 01--9286 (U.S. October 7, 2002).

The Illinois Appellate Court, Fourth District, recently heldin People v. Hancock, 329 Ill. App. 3d 367, 771 N.E.2d 459(2002), that Crane US does not require a separate jurydetermination that a respondent lacks volitional control in orderto commit the respondent under the Illinois Act. The Hancockcourt noted that the pertinent sections of the Illinois Act were"very similar" to the corresponding sections of the Kansas actthat were upheld in Hendricks. Hancock, 329 Ill. App. 3d at 373,771 N.E.2d at 464. We agree with the Hancock court that if theKansas act's definition of a "mental abnormality" passes the two-part test announced in Hendricks and affirmed in Crane US, theIllinois Act's definition of a "mental disorder" also passes thattest. Therefore, we rule as a matter of law that the IllinoisAct does not violate due process rights by failing to require aseparate jury determination that the respondent lacked controlover his behavior.

CONCLUSION

For the foregoing reasons, we affirm the judgment of theWarren County circuit court.

Affirmed.

LYTTON and HOLDRIDGE, JJ., concur.