Court Weighs Child Safety vs. Ex-Con Rights

Most Americans agree that after a prison sentence is served, the prisoner should be set free. The idea flows from deep wellsprings of fairness and judicial tradition in the country.

Yet what if the prisoner is a child molester - one who has said openly he may molest again?

That was the issue before the US Supreme Court yesterday in the case of a Kansas prisoner who served his time for a repeat crime of pedophilia, but who remains incarcerated under a "sexual predator law" that does not release sexual offenders who are deemed both "dangerous" and "mentally abnormal."

The case, involving Leroy Hendricks, convicted five times for offenses against 10 children, is potentially explosive. It pits time-honored laws of due process, punishment, and personal liberty against the public demand to protect children. It could also bring a controversial ruling on how mental illness is defined.

The nine justices yesterday sought clarification from the lawyers for Kansas and Mr. Hendricks on the difference between civil and criminal incarceration, and standards for determining the likelihood of repeat offenses. "What is the state supposed to do," said Chief Justice William Rehnquist. "Just wait until he goes out and does it again?"

Hendricks's lawyer argued that the state should adopt special parole methods and laws keeping sex offenders away from children. "That isn't effective is it," said Justice Sandra Day O'Connor. "We read about [repeat offenses] every day."

Forty states back Kansas

Sexual crimes and offenders have become a major public and media issue. Seven states now have laws like Kansas' "Sexually Violent Predators Act," passed by the state legislature in 1994 after a rape and murder by a sexual offender shortly after he was released from prison. Some 40 states filed a brief supporting the Kansas law - suggesting it may take hold nationally if the court supports the act. The act covers offenses against both children and adults.

"These laws may sweep the country, and they don't just tinker with procedures," says Lynn Branham, a law professor at the University of Illinois who says the case could be a landmark. "We are talking about an end run on an entire system of rights. I have four children. I don't want this man on the street. But it would be far worse if the Constitution were twisted in order to keep him in prison."

Kansas Attorney General Carla Stovall disagreed, saying the state was only incapacitating Hendricks in order to treat him.

Kansas could have put Hendricks away for life in 1984, after he molested two 13-year-old boys, using a habitual-offenders law that is already on the books. Instead, the prosecutor chose to plea bargain with him. Hendricks's sentence ended in 1994, just as the new law kicked in.

Under the act, Hendricks, who has boasted that his death is the only guarantee he won't molest again, was detained at a mental health facility, diagnosed as "mentally abnormal." The act allows detention of those regarded as both "dangerous" and "abnormal."

Hendricks filed suit, saying his imprisonment was a case of "double jeopardy," or being punished twice for the same crime, a violation of the Constitution. He lost in lower court. But the Kansas Supreme Court ruled the act violated Hendricks's right of due process - since the US Supreme Court demands a diagnosis of "mentally ill" for detention, and a psychologist said Hendricks was not "ill."

In fact, one of the toughest issues yesterday had to do with mental illness and its definition.

As numerous clinical and legal experts argue, mental abnormality is not a term found in the major texts (such as Diagnostic and Statistical Manual of Mental Disorders or DSM-4) that provide authority for psychiatrists and psychologists, and upon which legal criteria must rest. They argue that sexual deviance is a disorder, not a mental illness.

If the high court allows Kansas to incarcerate sexual offenders under the "mentally abnormal" criteria, says David Summers, attorney for the Washington State Psychiatric Association, it could create a dangerous slippery slope: "That would be a major ruling that would allow this vague language of 'abnormality' to be used as a basis for incarcerating a wide range of people," Mr. Summers says.

"Our prisons are full of people who could be called 'abnormal.' There's no reason to believe the remedy would be restricted to sexual offenders," he says.

Justice Stephen Breyer picked up on this argument yesterday, saying that if a psychologist determined that an armed robber was a social psychopath, "Would it be constitutional for us to ... confine him in a mental hospital?"

Justice Breyer focused on the difference between the court's previous standard for incarceration, "clear and convincing evidence," and the somewhat vague standards that might be offered by any state to hospitalize based on a "preponderance of evidence" of possible repeated offense.

Treatment or prison?

Assistant Attorney General of Washington State Todd Bowers, who helped write the amicus brief for Kansas, disagrees that courts around the country will hospitalize all manner of criminals. He says the criteria are clear enough.

Bowers argues that Hendricks's right of due process was not violated since he is detained under civil laws designed for treatment, not punishment. Mr. Bowers notes that the alternative to the Kansas act is simply longer sentences with less chance of an appeal.

"The Kansas law is actually more humane," Bowers says. "Which is preferable: treatment, or locking the person up forever?"

The court is expect to rule on the case by the end of June.

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