420
Scalia, J., dissenting
order that causes a likelihood of repeat sexual violence in itself establishes the requisite "difficulty if not impossibility" of control. Moreover, the passage in question cannot possibly be read as today's majority would read it because nowhere did the jury verdict of commitment that we reinstated in Hendricks contain a separate finding of "difficulty, if not impossibility, to control behavior." That finding must (as I have said) have been embraced within the finding of mental abnormality causing future dangerousness. And finally, the notion that the Constitution requires in every case a finding of "difficulty if not impossibility" of control does not fit comfortably with the broader holding of Hendricks, which was that "we have never required state legislatures to adopt any particular nomenclature in drafting civil commitment statutes. Rather, we have traditionally left to legislators the task of defining terms of a medical nature that have legal significance." Id., at 359.
The Court relies upon the fact that "Hendricks underscored the constitutional importance of distinguishing a dangerous sexual offender subject to civil commitment 'from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings.' " Ante, at 412 (quoting 521 U. S., at 360). But the SVPA as written—without benefit of a supplemental control finding— already achieves that objective. It conditions civil commitment not upon a mere finding that the sex offender is likely to reoffend, but only upon the additional finding (beyond a reasonable doubt) that the cause of the likelihood of recidivism is a "mental abnormality or personality disorder." Kan. Stat. Ann. § 59-29a02(a) (2000 Cum. Supp.). Ordinary recidivists choose to reoffend and are therefore amenable to deterrence through the criminal law; those subject to civil commitment under the SVPA, because their mental illness is an affliction and not a choice, are unlikely to be deterred. We specifically pointed this out in Hendricks. "Those persons committed under the Act," we said,
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