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In re Detention of Varner

October 02, 2003

IN RE DETENTION OF HERBERT VARNER
(THE PEOPLE OF THESTATE OF ILLINOIS, APPELLEE,
v.
HERBERT VARNER, APPELLANT).



The opinion of the court was delivered by: Justice Freeman

UNPUBLISHED

Docket No. 90151-Agenda 11-May 2001.

After a trial proceeding in the circuit court of Lake County, a jury found Herbert Varner to be a sexually violent person under the Sexually Violent Persons Commitment Act (the Act) (725 ILCS 207/1 et seq. (West 1998)). As a result, Varner was committed to the custody of the Department of Human Services for control, custody and treatment. The appellate court affirmed, rejecting Varner's claims that the Act is unconstitutional and that he should not have been committed to institutional care. In re Detention of Varner, 315 Ill. App. 3d 626 (2000). We granted Varner's petition for leave to appeal (177 Ill. 2d R. 315) and affirmed, holding that the Act did not violate substantive due process because it is not limited to persons who lack volitional control over their behavior. In re Detention of Varner, 198 Ill. 2d 78 (2001).

The United States Supreme Court subsequently granted Varner's petition for writ of certiorari, vacated the judgment of this court, and remanded the cause for our further consideration in light of Kansas v. Crane, 534 U.S. 407, 151 L. Ed. 2d 856, 122 S. Ct. 867 (2002). Varner v. Illinois, 537 U.S. 802, 154 L. Ed. 2d 3, 123 S. Ct. 69 (2002). Upon reconsideration, assisted by supplemental briefing and oral argument, we again affirm the judgment of the appellate court.

BACKGROUND

The events which led to Varner's commitment are detailed both in the original opinion of this court (Varner, 198 Ill. 2d 78 ) and in the opinion of the appellate court (Varner, 315 Ill. App. 3d 626). We will repeat here only those facts germane to our analysis.

In 1988, the State charged Varner with the criminal sexual assault of his five-year-old niece. 720 ILCS 5/12-13 (West 1998). He pled guilty to the charge and was sentenced to a term of imprisonment of 13 years in the Illinois Department of Corrections.

The State initiated the proceedings at issue here as Varner's prison term was ending and he was scheduled for entry into mandatory supervised release. The State sought to have Varner committed indefinitely to the Department of Human Services (Department) pursuant to the Sexually Violent Persons Commitment Act. The circuit court, pursuant to the Act, determined after a hearing that probable cause existed and ordered Varner transferred to a Department facility for evaluation. See 725 ILCS 207/30 (West 1998).

The question of whether Varner was a sexually violent person was subsequently tried before a jury. The jury heard evidence that Varner may have been sexually abused as a child by his father. He had previously committed other sexual offenses involving children, including his daughter and another niece. At the time he committed the offense for which he was then incarcerated, he was only 28 years old. The jury also heard evidence from two clinical psychologists that Varner was a pedophile who suffered from a personality disorder, the combination of which created a substantial probability that he will engage in further acts of sexual violence in the future. A third clinical psychologist testified on Varner's behalf, stating that the evidence was inconclusive as to whether Varner was a pedophile. This psychologist noted that the risk that Varner would reoffend was moderate but could be reduced to minimal. He further proposed that Varner's exposure to children be limited and controlled and that he be treated with Depo Provera, a chemical that lowers testosterone levels and thereby reduces an individual's sex drive.

As we noted in our initial opinion in this case:

"The jury was instructed that it was to determine whether the State had proved beyond a reasonable doubt that Varner was a sexually violent person. The court's definition of a sexually violent person tracked the language used in section 5(f) of the Act (725 ILCS 207/5(f) (West 1998)). Specifically, the jury was told that `[a] sexually violent person means a person who has been convicted of a sexually violent offense and who is dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence.' The jury was further instructed that criminal sexual assault constitutes a `sexually violent offense,' and it was given the definition of `[m]ental disorder' set forth in section 5(b) of the Act, namely, `a congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence' (725 ILCS 207/5(b) (West 1998))." Varner, 198 Ill. 2d at 81-82.
The jury found that Varner was a sexually dangerous person. The circuit court then entered an order committing Varner to the custody of the Department for institutional care and treatment in a secure facility. See 725 ILCS 207/40(a), (b)(2) (West 1998).

In his appeal, Varner challenged the constitutionality of the Act on the grounds that it, inter alia, denies equal protection, violates the prohibitions against double jeopardy and ex post facto laws, deprives him of the right to waive a jury trial, and contravenes procedural and substantive due process guarantees. Following the appellate court's rejection of each of Varner's claims, Varner sought leave to appeal in this court, arguing only that Act violated substantive due process. We granted leave on that basis.

ANALYSIS

Before we begin our reconsideration of this matter, we believe it helpful to recount some of the analytical points we made in our previous opinion. We noted there that Varner contended that his commitment under the Act violates the principles of substantive due process because it occurred without a specific finding by the jury that he lacked volitional control over his sexually violent criminal behavior. We further noted that Varner's claim, i.e., that commitment is constitutionally permissible only where the defendant lacks volitional control over his sexually violent conduct, was based on the United States Supreme Court's decision in Kansas v. Hendricks, 521 U.S. 346, 138 L. Ed. 2d 501, 117 S. Ct. 2072 (1997). See Varner, 198 Ill. 2d at 83-85 ...


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