Sex Predator Law Faces High Court Challenge

In the past decade, state after state has moved to crack down on repeat sex criminals. And no wonder: Usually a horrendous crime has pointed to the need for a change in the law.

The kidnapping and murder of 11-year-old Polly Klaas by career criminal Richard Allen Davis spurred passage of California’s “three strikes, you’re out” law in 1994.

The murder of 7-year-old Megan Kanka in New Jersey by an ex-offender who had moved quietly into her neighborhood set off a national wave of community-notification laws. Now, when a paroled sex offender moves into an area, authorities are required to inform the residents.

But the most far-reaching of these new measures locks up sex criminals after they have served their prison terms. The Sexually Violent Predators Act, the name given to nearly identical laws now on the books in California and six other states, empowers officials to review inmates due for release, brand them a danger to society and confine them indefinitely for mental health treatment.

So far, no one held under these laws has been released from any of the state hospitals where they now reside.

“What state psychologist in his right mind is going to certify that one of these guys is safe to get out?” asked Scott Johnson, a Seattle lawyer who has been fighting his state’s law, the nation’s first.

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On Tuesday, the Supreme Court will hear arguments for the first time on whether this form of preventive detention for dangerous sex criminals is constitutional.

Already, the so-called predator laws have set off a fierce debate in the fields of both law and psychology.

Lawyers are divided over whether the government can imprison someone for what he may do in the future, rather than what he did in the past. Psychologists disagree over whether repeat rapists or pedophiles can be considered mentally ill and, if so, whether they can be effectively treated.

Prosecutors say the overriding issue is public safety.

“These people are the worst of the worst. They are predisposed to commit sex crimes,” said Kansas Atty. Gen. Carla J. Stovall, who will defend her state’s law before the high court. “It is common sense to keep these people off the streets.”

She said the 1994 law has been used sparingly in Kansas. Nine men, all of them pedophiles, have been confined, she says.

But a Wichita lawyer who is representing one of them said his client is not truly mentally ill. He argued that the state is misusing the notion of mental illness, much like the former Soviet Union, to lock up undesirables indefinitely.

“I worry about giving the government the authority to incarcerate people for what they may do,” said attorney Thomas Weilert.

His client, Leroy Hendricks, now 62, was convicted in 1984 of fondling two 12-year-old boys in an electronics store. He had a long history of molesting children.

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Prosecutors could have sought a maximum 180-year prison term on all the charges against him, but they accepted a guilty plea and a 10-year term instead. When Hendricks was set to be released two years ago, the state invoked the new law, concluding that he was likely to commit other offenses, and sent him to a mental health facility surrounded by barbed wire.

“This sets a dangerous precedent,” Weilert argued. “If we can confine someone on the theory [that] they are likely to commit crimes in the future, why not do the same for drunk drivers, bad-check writers and all other repeat criminals?”

The courts are split on the constitutionality of this approach. In Washington, the state Supreme Court upheld the measure, but a federal judge in Seattle declared it unconstitutional. Several California trial judges have said it is unconstitutional, but three state courts of appeal have upheld it.

The Kansas Supreme Court struck down that state’s law earlier this year, leading to Tuesday’s high court hearing in Kansas vs. Hendricks, 95-1649.

The new laws to cope with sexually violent predators, as with “three strikes”--which calls for a minimum sentence of 25 years to life for those who have been convicted of two violent or serious felonies and then commit a third felony--were passed in reaction to a disturbing problem. Dangerous sex criminals were being put back on the streets.

The case of Earl Shriner in Tacoma, Wash., brought the matter to public attention. Despite his 24-year history of attempted murder, kidnapping and rape--and despite his telling fellow inmates that he had fantasies about maiming little boys--Shriner was released from a state prison in 1989. Six months later, he grabbed a 7-year-old boy from his bike, dragged him into the woods and sexually mutilated him.

Outraged citizens asked how Shriner, a man known to be dangerous, could have been set free.

Prison officials had a ready answer. Shriner committed many of his crimes when he was a juvenile and they had been wiped from his record. In his most recent offense, he had pleaded guilty to a lesser charge and had served his entire sentence, they said.

“System Just Couldn’t Hold Suspect,” the Tacoma News Tribune summed up in a day-after headline.

Washington residents responded that the system should be changed.

Washington’s Sexually Violent Predator Act was enacted in 1990. State officials say they are now holding 40 repeat sex offenders in accordance with the law’s provisions.

Kansas lawmakers adopted a similar law in 1993 after the rape and murder of a 22-year-old college student by a recently paroled rapist. California, Wisconsin, Arizona, Minnesota and New Jersey soon followed suit.

California’s law, which took effect in January, was, in part, motivated by the release in 1995 of Reginald Muldrew, the notorious “pillow case rapist” who walked free even though he had been linked to about 200 crimes. He has since been arrested in Indiana for allegedly breaking into a woman’s apartment and fondling her.

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In California, prisoners who are approaching release and who have committed sex crimes against two or more victims are examined by two psychologists or psychiatrists. If both find a “mental disorder” that makes the inmate more likely than not to commit new sex crimes, the case is sent to a county prosecutor for review and possible trial.

Without the law, the state would have little choice but to release the inmates at the end of their sentences. Normally, a forced commitment requires evidence both of mental illness and a recent dangerous act. But these prisoners have been behind bars for crimes committed years ago. Under the fixed sentencing laws, which took effect in 1977, no parole board has authority to keep them confined.

As of last week, California’s Department of Mental Health had screened 675 inmates and decided that 286 of them--about 42%--are violent predators. In most of these cases, prosecutors are seeking commitment orders. So far, 10 men have been incarcerated at Atascadero State Hospital near San Luis Obispo under the new law.

The most notorious of the “predators” is Christopher Hubbart, a Pasadena native who has been linked to about 30 rapes. He was the first sex offender the state tried to send to Atascadero, but he is challenging the law and remains in a county jail.

In signing the law, Gov. Pete Wilson cited Hubbart as a prime example of the kind of “dangerous criminal [who] will no longer be released because the law is so absurdly lenient.” Critics offered this statement as evidence that the law is punitive and merely an effort to make up for past sentencing mistakes, but is not a mental health measure.

Others have noted that Hubbart is not typical of the people the state is trying to commit. Most have had far fewer offenses and less use of violence.

Rowan K. Klein, Hubbart’s Santa Monica lawyer, said the law is “so broad that almost anyone could be locked up under this definition of mental disorder.”

“This is really a criminal justice problem. Rapists tend to be antisocial . . . but most of them are not mentally ill,” said Howard Zonana, a psychiatry professor at Yale Medical School and chairman of a study group on sex offenders for the American Psychiatric Assn. “It is a perversion to involve the mental health system and to turn these hospitals into detention centers.”

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Robert Halon, a psychologist who interviewed inmates for the California Department of Mental Health, agreed that these offenders are not mentally ill.

“They are just mean creatures, just evil, mean creatures,” he said. “Now if we had a diagnosis like that, then they fit real good. But when you try to follow the law, a lot of these guys just don’t fit.”

That issue aside, some psychologists believe they can predict with reasonable accuracy which sex criminals are likely to offend again, provided they have good records on the criminals’ history.

“You can identify the small group of guys who are very likely to re-offend,” said Vernon Quinsey, an internationally recognized expert on sex offenders who teaches psychiatry at Queens University in Kingston, Canada. “Interviews with them are not much help. You need a good, corroborated history of what they have done in the past.”

At Atascadero, clinical administrator Craig Nelson said many such inmates come with long histories, for example, of being sexually interested only in children.

Another California psychologist, however, said he was frustrated in evaluating inmates because most did not have detailed histories.

“We don’t know very much about these guys,” said Ted Donaldson, a Morro Bay psychologist. “The only history we can get is what we get from them in an hour or two hours of an interview.”

State officials stopped contracting with Donaldson after he voiced reservations about the program.

So far, the men confined at Atascadero have not been particularly receptive to treatment, Nelson admitted. The “patients,” as they are now known, are revealing little about themselves because it could be used against them in another commitment trial, he said.

After two years, the law allows the patients to seek a new trial on their mental status.

Asked for an opinion on the law, an expert on treating sex offenders said he was uncertain.

“Personally, I don’t know how I feel about this. I fluctuate daily,” said William Murphy, a professor of psychiatry at the University of Tennessee at Memphis and president of the Assn. for the Treatment of Sexual Abusers. “Legally, most of these people have done things that should have kept them in prison. They shouldn’t be in the mental health system. On the other hand, I have worked with some of these guys, and they should not be on the street. I certainly don’t want them in my neighborhood.”

Savage reported from Washington, Dolan from San Francisco.