High Court Debates Sexual Predator Law

The justices of the Supreme Court sounded Tuesday as though they may be willing to uphold the new wave of laws aimed at keeping “sexual predators” behind bars--and for the same powerful reason that lawmakers in California and elsewhere passed such measures in the first place.

Comments by several justices as they reviewed one of these laws suggested they were sympathetic to the argument that the public deserves to be protected from sex criminals who are deemed dangerous and likely to again molest children or rape women if released from custody.

A Wichita lawyer for a 62-year-old Kansas pedophile had the unenviable task Tuesday of convincing the justices that his client should be freed.

In 1994, Leroy Hendricks completed a 10-year prison term for molesting two 12-year-old boys. But Kansas officials refused to release him. Instead, they said that he was a dangerous offender who more likely than not would molest children, if freed.

Now, he is locked up indefinitely for “treatment” in a prison facility with eight other convicted pedophiles.

“This is a continued incarceration for the same conviction,” attorney Thomas Weilert told the court. “It fundamentally undermines the Constitution’s right to liberty” to allow state officials to hold persons who have served their time, he said.

But that otherwise convincing constitutional argument ran smack into the case’s practical reality.

If Hendricks is released, interrupted Justice Sandra Day O’Connor, “there is a very high risk of him committing sex crimes against children. Isn’t there?” she said, pausing for emphasis.

Weilert agreed that was indeed a possibility.

“So what’s the state supposed to do? Wait till he does it again?” asked Chief Justice William H. Rehnquist.

The attorney suggested that he could be paroled with restrictions, such as that he be forbidden to go near schools or be around children.

“We all know as a practical matter that is not very effective,” O’Connor said. “We read about these cases every day. It’s simply not very effective to put on a piece of paper: ‘Don’t go near school.’ ”

The Kansas law that allows the indefinite civil confinement of sex criminals is similar to a California measure that took effect in January.

The Kansas Supreme Court struck down its state law on a 4-3 vote, leading to Tuesday’s argument in the case (Kansas vs. Hendricks, 95-1649).

If the high court were to revive the Kansas law, its decision probably would clear away many of the challenges to the California law pending in the state courts. A ruling is due by July.

Only Justice Antonin Scalia indicated that he was troubled by the Kansas law. Some studies have shown 80% of paroled prison inmates commit repeat offenses, he said. “Maybe we would be better to detain everyone,” he said.

As Weilert began to ponder that possibility, Scalia cut him short. “I was being facetious,” he said.

Earlier in the argument, Scalia said that the court should be skeptical of laws that label persons as having “mental abnormalities” or “personality disorders.” These terms are “so manipulable,” he said. “Totalitarian regimes don’t commit people for crimes. They commit them for mental treatment.”