ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Monday, December 2, 1996 TAG: 9612020088
SECTION: NATIONAL/INTERNATIONAL PAGE: A-1 EDITION: METRO
DATELINE: WASHINGTON
SOURCE: AARON EPSTEIN\KNIGHT-RIDDER/TRIBUNE
THE SUPREME COURT will soon consider the case of a man who has served his jail time for molesting a child, but has been committed to a mental institution under a ``predator'' statute in Kansas.
It was one of those horrible crimes that roused people to action.
A Kansas college student was raped and strangled in 1993 by a convicted rapist who had been released from prison.
Outraged people, led by the young woman's parents, demanded that the state legislature do something to keep dangerous sex criminals off the streets. They're ``animals,'' testified Carla Stovall, then a parole board member.
Result: The Kansas Sexually Violent Predator Act of 1994, which provides a way to use mental institutions to confine rapists, pedophiles and other dangerous sex offenders beyond their prison terms.
The first person confined under the law was a Wichita man: Leroy Hendricks, now 62, has molested children nearly all his adult life. When asked at his commitment hearing whether he could promise to change, he replied: ``The only way to guarantee that is to die.''
Hendricks is also the first person to challenge the law's constitutionality. If he wins - the highest court in Kansas declared the law unconstitutional and the Supreme Court will hear the case Dec.10 - he would be freed from the mental institution where he is locked up.
But Stovall, now the state attorney general, hopes to rescue the law by convincing the justices that it provides the most humane way of protecting the public from people she calls ``the worst of the worst.''
Six states - Arizona, California, Kansas, Minnesota, Washington and Wisconsin - have ``predator'' statutes, and others are considering them.
Despite the understandably popular appeal of predator laws, many civil libertarians and defense lawyers strenuously object to them.
They say - and the Kansas Supreme Court agreed - that the laws unconstitutionally permit the ``lifetime preventive detention'' of people who, like Hendricks, are ineligible for ordinary civil commitment because they do not have a recognized mental disease.
Since Washington state enacted the first such law in 1989, scores of violent sex offenders have been locked in mental institutions for treatment instead of being set free when their prison terms ended. Some complained that they were being punished a second time for the same crimes.
``The purpose of this law is punishment, not treatment,'' protested Thomas Weilert, a Wichita lawyer who represents Hendricks.
``The attorney general herself called them `animals' to be kept off the streets indefinitely. You don't call people `animals' or `sexual predators' if you intend to treat them. The real intention is to keep them locked up,'' he said.
Weilert refused to let reporters interview Hendricks.
Hendricks served in the Air Force, was married and divorced, worked in an electronics repair shop - and has been unable to keep his hands off children. Over a 40-year period, he was repeatedly convicted of fondling them.
In late 1994, Kansas used its predator statute to send Hendricks to a state mental hospital as he was about to be released from prison. He had served almost 10 years for molesting two 13-year-old boys.
The state law allows a judge to commit individuals if a jury finds beyond a reasonable doubt that they suffer - not from mental illness - but from a mental abnormality or personality disorder that makes them likely to commit rape, sodomy, sexual battery or sexual offenses with a child if they are set free.
They are entitled to the assistance of a lawyer and a mental-health professional before the jury and while confined. There is no time limit on these civil commitments, but those sentenced must be re-evaluated once a year.
In Hendricks' case, the jurors concluded he was mentally defective and likely to prey upon young children again.
A state judge then committed him to the maximum-security Larned Correctional Mental Health Facility in central Kansas. Eight others, also found to be sexually violent predators, have followed Hendricks to Larned.
The Kansas Supreme Court, splitting 4-3, ruled the law an unconstitutional deprivation of liberty without due process of law.
Citing a 4-year-old Supreme Court interpretation of due process, the state's highest court said the Kansas law lacked a critical element - proof that the individual to be confined was mentally ill.
A mental illness, the court said, is a clearer, more limited category than the murkier terms - ``mental abnormality'' or ``personality disorder'' - used in the sexual predators statute.
Stovall and other top law enforcement officials said courts should recognize that mental health professionals today are capable of identifying mental defects that predispose offenders toward sexually violent acts.
Still, treatment doesn't cure sexually violent behavior, the National Mental Health Association said. Placing predators in mental institutions simply diverts attention from others there who really can be helped, the association said in a legal brief.
``They could have given him [Hendricks] a life sentence of 45 to 180 years,'' Hendricks' lawyer said. ``That would have meant he would not be released until he was about 135 years old. But instead the state recommended five to 20 years and he actually served 10 years.''
To win the case, Stovall must confront a 5-4 Supreme Court ruling in the 1992 case of Foucha vs. Louisiana.
Terry Foucha was found not guilty of a violent crime by reason by insanity, confined to a mental institution, recovered his sanity but remained in the institution because doctors said he would be a menace to society if released.
In that case, the Supreme Court said a civil commitment could not be based on dangerousness alone. The committed person also must be found to be mentally ill.
All four dissenters in the Foucha case - Chief Justice William Rehnquist, Antonin Scalia, Anthony Kennedy and Clarence Thomas - remain on the court. But two justices who voted with the majority, Byron White and Harry Blackmun, have retired.
That means their successors, Ruth Bader Ginsburg and Stephen Breyer, both appointed by President Clinton, are likely to cast the pivotal votes in the case of Kansas vs. Hendricks.
The Supreme Court expects to rule by July. Until then, Hendricks and the other men officially designated as sexually violent predators must remain locked up at Larned.
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