Cite as: 534 U. S. 407 (2002)
Scalia, J., dissenting
convicted of one of the enumerated sexual offenses is suffering from a mental abnormality or personality disorder, and (2) that this condition renders him likely to commit future acts of sexual violence. Both of these findings are coherent, and (with the assistance of expert testimony) well within the capacity of a normal jury. Today's opinion says that the Constitution requires the addition of a third finding: (3) that the subject suffers from an inability to control behavior— not utter inability, ante, at 411, and not even inability in a particular constant degree, but rather inability in a degree that will vary "in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself," ante, at 413.
This formulation of the new requirement certainly displays an elegant subtlety of mind. Unfortunately, it gives trial courts, in future cases under the many commitment statutes similar to Kansas's SVPA, not a clue as to how they are supposed to charge the jury! Indeed, it does not even provide a clue to the trial court, on remand, in this very case. What is the judge to ask the jury to find? It is fine and good to talk about the desirability of our "proceeding deliberately and contextually, elaborating generally stated constitutional standards and objectives as specific circumstances require," ante, at 414, but one would think that this plan would at least produce the "elaboration" of what the jury charge should be in the "specific circumstances" of the present case. "[P]roceeding deliberately" is not synonymous with not proceeding at all.
I suspect that the reason the Court avoids any elaboration is that elaboration which passes the laugh test is impossible. How is one to frame for a jury the degree of "inability to control" which, in the particular case, "the nature of the psychiatric diagnosis, and the severity of the mental abnormality" require? Will it be a percentage ("Ladies and gentlemen of the jury, you may commit Mr. Crane under the SVPA only if you find, beyond a reasonable doubt, that he
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