Bakke, Grutter, and the Principle of Subsidiarity

When seeking to civilly commit an inmate nearing release from prison, states often adopt a formulation of mental responsibility for criminal behavior that is inconsistent with the standard on which they rely when rebutting a criminal insanity defense. Defendants are permitted to raise certain incapacity defenses in one context, and yet they are prohibited from advancing those same defenses in another. As a result, many states may seek criminal punishment on the theory that a defendant is legally sane and then later argue that the same person has a serious mental abnormality characterized by a propensity to engage in criminal conduct and should therefore be involuntarily detained. This contradiction draws into question the legitimacy of the state\u27s position in both contexts and fails to adequately address the fundamental issue of what constitutes mental and moral responsibility. Therefore, this note highlights the inconsistency found in criminal insanity defense and civil commitment mental responsibility standards and articulates a new due process paradigm incorporating double jeopardy and collateral estoppel that compels a reconciliation of these standards in order to maintain fairness and to preserve an identifiable guiding morality behind legislative enactments. To illustrate this concern, the note focuses on the hypothetical case of an individual whose insanity defense was rejected by a jury at the trial stage and yet who was found to suffer from a mental abnormality just prior to completing his or her criminal sentence, thereby qualifying for civil commitment. Essentially, in such a case, the individual was expressly deemed by a jury not to have committed the sexual crime at issue as a result of his or her mental condition. Nevertheless, the very same system that sought to distinguish mental incapacity from criminal behavior at the trial stage in order to exact criminal punishment, may now seek to equate them (often many years later) in order to prolong an individual\u27s incarceration. Because a civil commitment hearing involves a potential deprivation of liberty, it should conform not only with the Fifth and Fourteenth Amendments\u27 due process requirements but also with the Amendments\u27 double jeopardy protection, so long as the elements of collateral estoppel are met