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SVP Commitments – Based on Antisocial Personality Disorder

Reuben Adams v. Bartow, 330 F.3d 957 (7th Cir. 2003), denying habeas relief in State v. Adams, 223 Wis. 2d 60, 588 N.W.2d 336 (Ct. App. 1998)
For Adams: Samuel Arena (Foley & Lardner)

Issue: Whether the state court affirmance of Adams’ commitment unreasonably applied Kansas v. Hendricks, 521 U.S. 346 (1997) or Foucha v. Louisiana, 504 U.S. 71 (1992).


The essence of Adams’s claim is that it is a violation of due process to civilly commit a person based solely on the fact that he is a previously convicted sex offender with APD [antisocial personality disorder)….We reject Adams’s challenge on several grounds. First, as we will explain in more detail below, the Wisconsin appeals court’s decision to confine Adams was based on more than just that he is a convicted sex offender with APD, so the factual underpinning of Adams’s claim is erroneous. Second, the Supreme Court’s decision in Foucha was based on a specific combination of factors that is not present in this case: (1) the state, for whatever reason, had conceded that antisocial personality was not a mental disease and therefore admitted that it was confining someone who was not actually mentally ill, id. at 78-79; (2) Foucha was not afforded constitutionally adequate procedures to establish the grounds for his confinement, id. at 79; and (3) the state had not shown that Foucha was dangerous and in fact had no obligation to do so because its statute placed the burden on the individual to show that he was not dangerous, id. at 81-82. Ultimately, the general rule we take from Foucha is simply that an insanity acquittee may be held for only as long as he is still mentally ill; his dangerous propensities alone do not justify continued confinement. See United States v. Wattleton, 296 F.3d 1184, 1202 n.35 (11th Cir. 2002); United States v. Phelps, 283 F.3d 1176, 1184 (9th Cir. 2002). The Wisconsin appeals court’s decision was not an unreasonable application of this rule because there was no dispute during the state court proceedings that Adams has a mental illness—namely, APD. Moreover, even if Foucha can be read to have implied in dicta that APD standing alone is insufficient to warrant civil commitment, dicta does not qualify as “clearly established Federal law” for purposes of § 2254(d)(1). Andrade, 123 S.Ct. at 1172….

Adams’s claim that the Wisconsin appeals court unreasonably applied Hendricks is based on his belief that he is being confined solely because he is a convicted sex offender with APD, which he points out is a relatively common disorder in the male prison population….

We disagree with Adams’s characterization of the appeals court’s decision. The court found Adams eligible for confinement under Chapter 980 not only because he is a sex offender with APD but also because there was enough evidence in the trial record to establish that Adams was “substantially probable” to commit another sexually violent offense. Adams, 588 N.W.2d at 342. Specifically, the court noted evidence of “Adams’s history of sexually violent crimes, history of non-sexual crimes and antisocial behavior, failures under court-ordered supervision, denial of responsibility, refusal to participate in sexual assault treatment programs and drug/alcohol treatment programs, and his sexual offense recidivism.” Id. at 341-42. The court also noted Dr. Diamond’s testimony that Adams is “a risk and it’s highly probable that he would recommit and reoffend” and Dr. Sindberg’s testimony that “based on his evaluation of thirty-one risk factors, there was a substantial probability that [Adams] will reoffend or recommit a sexually violent act.” Id. (quotations omitted). Given this record, we cannot say that it was unreasonable for the court to find that the nature of Adams’s mental disorder was sufficient to distinguish him from the “typical recidivist convicted in an ordinary criminal case.” Crane, 534 U.S. at 413.

The court stresses “that we are not deciding any questions regarding the facial validity of Chapter 980, nor are we deciding whether the Wisconsin Court of Appeals’ decision was an unreasonable application of Crane.” It’s not clear whether this disclaimer ought to be taken at face value. First, the court cites with approval Linehan v. Milczark, 315 F.3d 920 (8th Cir. 2003), at least for the idea that APD+ satisfies Hendricks (where the value embodied by “+” apparently doesn’t have to be much if anything > 0). But Linehan did uphold the constitutionality of the Minnesota Act: “We conclude that the Minnesota Supreme Court reasonably applied the clearly established federal law when it reconsidered the constitutionality of the standard for civil commitment under the SDP Act.” Hard to believe, that is, that the favorable citation to Linehan doesn’t presage approval of the constitutionality of ch. 980 on its face. As to Crane possibly adding something to the analysis: well, the whole point of that case was to “clarify” that Hendricks didn’t quite reach as far as it seemed; hard to believe, then, that its application will add anything. This would seem to be the bottom line: you can’t commit someone merely due to antisocial personality disorder; but APD is a “mental illness” and therefore will support commitment when coupled with other evidence establishing difficulty controlling behavior. If you rejoin that this seems to conflict with Foucha, then you’d probably be right – but the court has essentially reduced theFoucha holding to dicta. True, you can only hold someone so long as s/he has a mental illness, but APD nowis a mental illness; and because APD can’t be treated, this case may become license to detain those with criminal propensities forever. Finally, the court expresses doubt that Foucha really does hold that APD alone isn’t enough — though given the court’s conclusion that more was shown here than APD, that expression would seem to be itself dicta.

Also see: State v. Matthew A.B., 231 Wis.2d 688, 605 N.W.2d 598 (Ct. App. 1999) (under authority of Adams, “conduct disorder” sufficiently precise to satisfy due process).

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