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  •   High Court Will Review State Sex Predator Laws

    By Joan Biskupic
    Washington Post Staff Writer
    Wednesday, December 11, 1996; Page A15


    National concern over sex offenders who prey on children reached the Supreme Court yesterday as the justices considered the constitutionality of a state law that forces sexual predators to be institutionalized even after they have served their criminal sentences.

    The case involves Leroy Hendricks, a Kansas man with a 30-year history of molesting children. He was due to get out of prison in 1994, but became the first person committed to indefinite confinement in a facility for the mentally ill under a new state law. Yesterday, his lawyer, Thomas J. Weilert, told the justices that the law prolongs a defendant's prison time and violates fundamental guarantees of liberty. Five other states have similar laws.

    The justices voiced concerns about the fairness of a law that allows a person to be committed without clear and convincing proof of mental illness. But their comments also pointed up the real-life consequences of freeing known pedophiles.

    Justice Sandra Day O'Connor suggested that, given Hendricks's record, he "is very likely to commit sex offenses against children again." When Weilert said the state could take other precautions, such as forbidding him to go near schools or children, O'Connor declared that such moves are, as a practical matter, ineffective.

    In a similar vein, Chief Justice William H. Rehnquist asked, "What is the state supposed to do, just wait until he goes out and does it again?"

    But the justices also observed that "civil commitment" statutes for criminals represent a novel approach, and Justice Anthony M. Kennedy raised concerns about whether psychologists could predict which criminals would strike again. Justice Stephen G. Breyer questioned whether the rationale behind the law could lead to armed robbers being locked up indefinitely because they had been deemed recidivists.

    Kansas lawmakers passed the Sexually Violent Predator Act in 1994 after public outrage over the rape and murder of a young woman by a co-worker paroled from a previous rape sentence.

    The law allows confinement of anyone found, beyond a reasonable doubt, to be a sexually violent predator. The person must have been convicted of a sexually violent crime, have a mental abnormality or a personality disorder and be considered likely to engage in predatory acts of sexual violence in the future.

    Hendricks, now 62, has testified he began abusing children at age 20 when he exposed his genitals to two young girls. From then on, he repeatedly fondled and engaged in oral sex with children, getting caught, imprisoned, released, caught and convicted again. Among the numerous offenses on his record is the prolonged abuse of his stepchildren, a boy and a girl. His most recent conviction was in 1984 for molesting two boys in the electronics shop where he worked.

    Hendricks has testified in the past that he cannot control his urge to engage in sexual activity with children. The state's filing to the high court notes that when he once was asked whether he could promise he would not molest children if released, Hendricks said, "The only way to guarantee that is to die."

    After Hendricks served 10 years for his most recent crime, a jury deemed him a "sexually violent predator" and committed him to a mental facility under the predator act. Hendricks then challenged the law 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 on the books at the time his crime was committed.

    He lost in a trial court, but on appeal the Kansas Supreme Court reversed the decision, saying the law violated due process because it did not require proof that the individual is "mentally ill," only that a "mental abnormality or personality disorder" exists. But the court did not resolve the question of whether the law was, in effect, double jeopardy. That left neither side satisfied and both appealed.

    In oral arguments yesterday, Kansas Attorney General Carla J. Stovall said that states should be able to establish their definitions of "mental illness" and that it is enough for Kansas to require proof a person suffers from a mental abnormality such as pedophilia.

    She noted that the act also requires a prediction of the likelihood that the person will commit such offenses in the future. Stovall also said the law would be used only against sex offenders with mental conditions.

    When it was his turn, Weilert told the justices that the Kansas "civil" commitment law is not a way to treat mental illness but a means of imposing more criminal punishment. What the law lacks, he argued, is a requirement that the person be found mentally ill. Weilert relied primarily on a 1992 high court ruling that a person confined to a mental institution must be determined to be mentally ill.

    Thirty-eight states, including Maryland and Virginia, and also the District have sided with Kansas, saying they share a "common interest in protecting their citizens from sexually dangerous persons."

    A decision in the consolidated cases of Kansas v. Hendricks and Hendricks v. Kansas is expected by next summer.

    © Copyright 1996 The Washington Post Company

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