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  •   Court Gives States Leeway In Confining Sex Offenders

    By Joan Biskupic
    Washington Post Staff Writer
    Tuesday, June 24, 1997; Page A01

    The Supreme Court ruled yesterday that states can lock up sex offenders in mental institutions even though they have already served their full prison time. In a 5 to 4 decision, the justices upheld a cutting-edge sexual predator law designed to ensure that people who prey on children be kept off the streets indefinitely.

    At a time when the nation is focused on preventing convicted child molesters from striking again – through longer prison sentences and community notification laws – yesterday's ruling gives legislators significant new leeway to extend the confinement of such convicts.

    The case out of Kansas has been closely watched nationwide, and 38 states, including Virginia and Maryland, as well as the District of Columbia, had urged the justices to allow sex criminals to be detained for being "mentally abnormal" rather than the higher standard of "mentally ill." Six other states already have similar laws on the books, and many others had been considering such statutes pending the outcome of the case decided yesterday.

    "This law is going to spread like wildfire," said Lynn S. Branham, an Illinois attorney and professor who specializes in sentencing law. "This notion of `mental abnormality' has the potential to dramatically expand the types of persons who can be confined."

    The majority upheld a Kansas law that allows for the involuntary commitment of people who, because of a "mental abnormality" or "personality disorder," are likely to continue endangering children. The court rejected arguments that someone can be confined to a mental institution only if the person has been found to have a "mental illness." It also said it is not a double punishment for a person to be first imprisoned for a sex crime and then, when his sentence is over, institutionalized because he is likely to continue engaging in sexual violence.

    "The challenged act unambiguously requires a finding of dangerousness either to one's self or to others as a prerequisite to involuntary confinement," Justice Clarence Thomas wrote for the majority.

    Dissenting justices said that, while they agreed in principle the states could define sexual predators who are deemed to be "mentally abnormal," in this case it appeared that Kansas had not tried to treat the mental problems of the convict whose case was before the court. As a result, his institutionalization was more like a punishment, and therefore unconstitutional.

    Mental Health Experts Worry

    While the ruling in Kansas v. Hendricks was hailed by state officials who have worked hard to keep sexual predators locked up, defense lawyers, civil libertarians and mental health professionals warned that states now may be able to lock up convicts who are not truly dangerous to society.

    In effect, said several mental health experts, the ruling misuses mental hospitals for punishment purposes, singles out a single category of violent criminal for unlimited incarceration and overturns 40-year-old standards for involuntarily committing the mentally ill.

    "This is a dramatic shift in policy in terms of our criminal justice system," said Fred Berlin, founder of the Sexual Disorders Clinic at Johns Hopkins University. No longer will "individuals be held to account only for acts they have actually committed, but now also for acts that someone else says they are going to commit."

    Under the Kansas sexual predator law, a person who has served his sentence can be kept in a mental institution if he had been convicted of a sexually violent crime, had a mental abnormality or a personality disorder and was considered likely to engage in predatory acts of sexual violence in the future. The law says a judge or jury must decide beyond a reasonable doubt that a convict meets that test and that anyone committed to a mental health facility be reevaluated annually.

    The case involves Leroy Hendricks, who had a 30-year history of molesting children and had served a 10-year sentence for his most recent crime of molesting two boys in the electronics shop where he worked. But in a civil hearing, a jury deemed him a "sexually violent predator" and committed him to a mental facility under the new law. Hendricks challenged the statute based on the Constitution's guarantee of due process and protection against double punishment for the same crime. He also said it was unfair to impose on him a sanction greater than the punishment that was on the books at the time his crime was committed.

    The Kansas Supreme Court ruled in favor of Hendricks, saying his constitutional guarantee of liberty and due process was violated; it did not address any issues of double punishment.

    'Mental Abnormality' Definition

    In reversing that decision yesterday, the Supreme Court said the state's requirement of a "mental abnormality" satisfied due process requirements. Thomas said the court has previously upheld involuntary commitment statutes targeting people who cannot control their behavior.

    Thomas said that generally a statute must require proof of dangerousness and proof of some mental abnormality, but his opinion gives states wide latitude to decide precisely how they would put this provision into effect, and gave no specific criteria for doing so.

    Thomas's opinion was joined by Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia and Anthony M. Kennedy.

    Four justices wrote a dissent: Stephen G. Breyer, John Paul Stevens, David H. Souter and Ruth Bader Ginsburg. But three of those justices (Breyer, Stevens and Souter) specifically agreed that the state's "mental abnormality" definition was sufficient.

    In a concurrence, Kennedy cautioned that civil confinement statutes not be used to give a sexual predator a longer criminal sentence: "We should bear in mind that while incapacitation is a goal common to both the criminal and civil systems of confinement, retribution and general deterrence are reserved for the criminal system alone."

    Question of Punishment

    The Thomas majority had declared that because Hendricks was confined to a mental institution as part of a civil proceeding, the commitment was not punishment: "Although the civil commitment scheme at issue here does involve an affirmative restraint, the mere fact that a person is detained does not inexorably lead to the conclusion that the government has imposed punishment. . . . A state could hardly be seen as furthering a 'punitive' purpose by involuntarily confining persons afflicted with an untreatable, highly contagious disease."

    Four justices (Breyer, Stevens, Souter and Ginsburg) dissented from that view and said the Kansas law was effectively a double punishment on Hendricks, violating the constitutional guarantee against ex post facto lawmaking.

    Breyer wrote for the group that Kansas appeared to be trying to inflict further criminal punishment on Hendricks. He noted that the state did not try to treat Hendricks's mental problems while he was being held in a mental institution. "[W]hen a state decides offenders can be treated and confines an offender to provide that treatment, but then refuses to provide it, the refusal to treat while a person is fully incapacitated begins to look punitive."

    Staff writers Judith Havemann and Roberto Suro contributed to this report.

    © Copyright 1997 The Washington Post Company

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