This section contains the nature of the case and procedural background.

Kansas passed the SVPA, which allowed for civil commitment of persons who, due to a mental abnormality or a personality disorder, are likely to engage in predatory acts of sexual violence. The act was invoked for the first time when Hendricks (D), an inmate with a long history of sexually molesting children, was scheduled for release. The Kansas Supreme Court invalidated the Act holding that the pre-commitment condition of mental abnormality did not satisfy what the court perceived as substantive due process requirements that involuntary civil commitment must be predicated on a finding of mental illness. A mental abnormality was defined 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 a menace to the health and safety of others. The commitment procedures pertained to those presently confined and convicted of sexually violent offenses but scheduled for release, a person charged with a violent sexual crime but found incompetent to stand trial, a person found not guilty by reason of insanity of a sexually violent offense, or a person found not guilty of such an offense by mental disease or defect. The burden of proof of beyond a reasonable doubt was placed on the State, and the State was required to provide the defendant with counsel and monies for examination by qualified professionals and the right to present witnesses and to cross-examine evidence and documents presented by the state. Once confined an annual review was offered and if the State could not meet its burden of proof the individual would be set free. D was convicted of taking liberties with two 13-year-old boys. D served 10 years and was scheduled for release and the State invoked the Act. During the jury trial, D testified about repeated child sexual molestation and abuse beginning in 1955 involving multiple incidents and minors. Even after discharge from a state hospital, D sexually assaulted two other minor children. D admitted his conduct and testified that the only sure way for him to stop was to die. The jury found him to be suffering from pedophilia and the trial court determined that this qualified to be a mental abnormality. There was overwhelming evidence that D was a serious menace to society. D appealed on grounds of Due Process, Double Jeopardy, and Ex Post Facto. The Kansas Supreme Court held that the Act violates D’s substantive due process rights.

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