The US Supreme Court has ruled for the first time ever that states may incarcerate sexual offenders without giving them a criminal trial.
The controversial decision is an attempt to reconcile a growing public demand for safety with the time-honored practice of due process and personal liberty.
It comes at a time when the number of sexual offenses in the United States seems to be on the rise.
The high court's 5-to-4 decision upheld a Kansas "sexual predator" law that allows the state to incarcerate sexual offenders deemed both "dangerous" and "mentally abnormal" - persons such as pedophiles who are regarded as a threat to repeat a sexual crime.
The ruling, written by Justice Clarence Thomas, also gives states greater latitude in deciding what constitutes mental illness. Critics worry the decision will open the door to incarcerating a wide variety of persons deemed "mentally abnormal."
The Kansas case involved a former convict named Leroy Hendricks who was imprisoned five times for offenses against 10 children.
Predators Can Be Held After Prison Term
Kansas could have put Mr. 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, and somewhat inexplicably, the prosecutor chose to plea bargain with him.
Hendricks' sentence ended in 1994, just as the new law kicked in. Under the law, 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."
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 reversed, ruling the act violated Hendricks' due process - since the US Supreme Court demands a diagnosis of "mentally ill" to be detained, and a psychologist said Hendricks was not ill.
Defining mental illness
Yet Yesterday's high court opinion gives greater leeway to states in defining mental illness, going so far as to say they do not necessarily need to heed the opinion of doctors, psychiatrists, and other health-care professionals.
"...States have in certain narrow circumstances provided for the forcible civil detainment of people who are unable to control their behavior and who thereby pose a danger to the public health and safety," Justice Thomas wrote, adding that "contrary to Hendricks' assertion, the term 'mental illness' is devoid of any talismanic significance." He noted that the mental-health community itself has widely different definitions of the condition.
Mr. Thomas' opinion was joined by Chief Justice William Rehnquist and Justices Anthony Kennedy, Sandra Day O'Connor, and Antonin Scalia.
Under previous Supreme Court precedent, an individual must be regarded as "mentally ill" in order to be detained or incarcerated against his or her will. But the standard among psychiatrists and other mental-health professionals has been that sexual deviance is a disorder or a "mental abnormality," not a full-blown illness. Experts testifying at Hendricks' trial, for example, said he is not ill under the conventional definitions.
Writing in dissent, Justice Stephen Breyer, joined by Justices John Paul Stevens, David Souter, and Ruth Bader Ginsburg, said that additional punishment for Hendricks was wrong because Kansas did not try to give him treatment while he was in prison.
Concern about public safety
In recent years, sex crimes seem to be on Page 1 everyday. Indeed, yesterday's ruling comes in the wake of a jury decision to give the death penalty to Jesse Timmendequas. He is a pedophile in New Jersey who murdered a young girl and brought "Megan's laws" to states across the country. These require officials to notify communities when sexual offenders move into the area.
Seven states 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. That law allows the state to incarcerate a sexual offender after his normal prison sentence has expired. Some 40 states filed a brief supporting the outcome of the Kansas law.
Five justices suggested that merely imprisoning sexual offenders, states should also have to require treatment for them if they are to be held. There is some support for the treatment approach in states as well.
Despite yesterday's ruling, a number of scholars believe sexual-predator laws are unconstitutional.
"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 "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."