Court Gives States Leeway In Confining Sex Offenders

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





   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 said 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."

   No Punishment in Confinement

   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]he 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