Serve a Sentence and Stay On
The state of Kansas wants to keep Leroy Hendricks off the streets permanently. There are good reasons to do so. For 40 years the man has been a sexual predator whose victims are children. He has been convicted five times of molesting boys and girls and served 10 years on the most recent charges. That sentence was not long enough, but it was the result of a plea bargain made with a prosecutor. If the government's lawyer had gone to trial and won a conviction, Mr. Hendricks could have received a sentence as high as 180 years. But having elected to forgo that option, the same prosecutor who made the bargain sought to keep the offender in custody indefinitely. As Mr. Hendricks's release date neared, the prosecutor invoked a new Kansas statute allowing for the continued incarceration of sexually violent predators after their prison terms have been completed.
On Monday the Supreme Court found the statute constitutional. It was a 5-4 vote, but three of the dissenting justices also found nothing wrong with civil commitment of persons who have a "mental abnormal\ity" or "personality disorder" and are "likely to engage in predatory acts of sexual violence," so long as they actually receive treatment while in custody. The Kansas statute affords some protection to the subject of a civil commitment proceeding, including the right to counsel and the right to call and cross-examine witnesses. The burden of proof is on the state, which must prove its case beyond a reasonable doubt. And the commitment has to be reviewed and extended annually. For what it is, the Kansas law may be the best of its kind. But it still takes away the freedom of a person who has completed his sentences for previous convictions, who is not mentally ill in the sense that term is understood in ordinary civil commitment law, and whose fate hinges on the prediction the guess? of a psychiatrist that he will be dangerous in the future.
The court is now positioned at the top of a very slippery slope. In the aftermath of this decision, state laws setting up special civil commitment proceedings for certain classes of criminals are expected to proliferate. It's too early to guess what crimes will be included, but not at all far-fetched to assume that some statutes will reach beyond sexual predators and include all kinds of difficult criminals. It may prove very attractive for prosecutors to accept plea bargains with low sentences knowing that they have the option to keep an offender in custody long after he completes his term. And though it's hard to imagine it happening in this country, modern history is replete with evidence of the misuse of mental-health proceedings to put dissidents and other troublemakers away indefinitely.
Why isn't the criminal justice system, with all its safeguards, sufficient to handle these cases? There is broad public support for stiff sentences for child molesters. There is political capital to be made by supporting harsh penalties, especially for repeat offenders. The Hendricks case itself demonstrates that a criminal trial could have put this miscreant away for the rest of his life. Invoking doctors to predict future conduct their record in this area is far from reassuring and justify loss of liberty simply invites abuse. Put away criminals for a long time. But don't use the pretext of caring for the ill to impose life sentences.
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