Leroy Hendricks, 62, is a dirty old man. Since he was 21 years old he has been preying upon children. By a jury's verdict he is a sexual predator. He admits it. If released from prison, he believes some inner compulsion will drive him to abuse another child.
Nevertheless, the Supreme Court of Kansas has ordered the state to turn him loose to prey again.
That decision was handed down March 1. On June 17, the U.S. Supreme Court agreed to review the case. In a highly legalistic view, which is perhaps the proper view, the Kansas opinion may be defensible. In any other view, it is a triumph of sophistry over public interest.
Hendricks was convicted in 1984 of child molestation and sentenced to five to 20 years in prison. After he had served 10 years, with his release coming up, the state invoked its Sexual Violent Predator Act and petitioned for his indefinite commitment to a mental institution.
In October 1994 a civil jury heard the sordid story. In 1955 Hendricks exposed his genitals to two young girls. In 1957 he was convicted of playing strip poker with a teenage girl. In 1960 he molested two little boys. While on parole after three years in prison, he was sent back to prison for molesting a 7-year-old girl. In 1967 he was again sent to prison for molesting. No sooner was he released than he molested his stepdaughter and stepson.
Hendricks admitted at the 1994 hearing that he is unable to control an urge to engage in sexual activity with a child. He predicted that only his death could provide a guarantee against further sexual predation. The civil jury made a formal finding that he was indeed a violent predator. The case went to the state Supreme Court.
The Kansas act of 1994 is patterned directly upon similar statutes in Washington and Wisconsin. Three other states _ Minnesota, California and Arizona _ have laws to the same effect. Thirty-one states have signed on to a brief supporting Kansas.
The Kansas act is predicated upon a legislative finding that "a small but extremely dangerous group of sexually violent predators" exists. These people do not have a "mental disease" that might be successfully treated. Rather, they have a "mental abnormality or personality disorder" that is virtually untreatable.
Under the law, 60 days before the release of a convicted molester, the prison warden must notify the prosecutor who handled the trial. The prosecutor then files a petition alleging that the prisoner is a sexually violent predator. Within 45 days a judge must conduct a trial at which expert testimony is heard.
If the judge or a jury finds that the prosecutor's allegations are true "beyond a reasonable doubt," the defendant may be committed "until such time as the person's mental abnormality or personality disorder has so changed that the person is safe to be at large." Each case must be reviewed annually.
In its March opinion the Kansas Supreme Court held that such undefined terms as "mental disorder," as distinguished from "mental illness," are impermissibly vague. Under the act it would be possible to commit almost any offender with a "personality disorder."
In holding the Kansas act unconstitutional, the court implicitly criticized the trial proceedings of 1984. At that time Hendricks had at least three prior felony convictions on his record; he could have been prosecuted under the Habitual Criminal Act, which would have tripled his sentence. Without violating the Constitution, the state could have kept the defendant locked up until he died.
Three judges strongly dissented. They did not regard the act as vague at all. They saw no constitutional difference between "mental illness" and "mental disorder." They noted that at a commitment hearing, an alleged predator is entitled to counsel and to the summoning of witnesses in his own behalf. The standard of proof "beyond a reasonable doubt" assures due process of law.
As it stands now, three state courts have upheld predator laws. One federal court and the Kansas court have found the acts unconstitutional. The Supreme Court will settle the matter next winter. Meanwhile, Hendricks (and six others) will remain in prison. I would keep them caged till kingdom come.
Universal Press Syndicate