States Can Jail Predators Indefinitely Confinement Isn’t Punishment, Court Rules

TUESDAY, JUNE 24, 1997

The Supreme Court, boosting the nationwide campaign to protect the public against sex offenders, on Monday allowed states to keep convicted rapists, pedophiles and other violent sexual predators locked up even though their prison terms are over.

The decision appears to clear away legal doubts about new laws keeping roughly 400 sex offenders locked up in six states, including Washington.

Monday’s 5-4 decision in a case from Kansas is based on two legal conclusions: Forced confinement is not necessarily punishment, and the prisoners needn’t have a medically recognized “mental illness.”

“Even though they may be involuntarily confined,” wrote Justice Clarence Thomas, the “persons confined under this act are (not) being punished.” The law’s goal is treatment, not retribution or deterrence, he said.

The court also found that “the act is not necessarily punitive if it fails to offer treatment where treatment for a condition is not possible” or even if treatment is not the state’s “overriding” concern.

Because the law does not impose punishment, Thomas reasoned, it does not violate the Constitution’s bar on double punishment for the same crime.

The court also rejected arguments that the law unconstitutionally permits people to be committed even though they do not have a medically recognized “mental illness.” The Kansas law allows offenders to be confined if they are found to suffer from a “mental abnormality.”

Thomas said commitment laws need not use any particular words to describe mental conditions. Psychiatrists, in fact, are divided over whether pedophilia may be classified as a “mental illness,” and “it is precisely where such disagreement exists that legislatures have been afforded the widest latitude in drafting such statutes,” Thomas said.

But Justice Anthony Kennedy, whose vote was critical to the decision, warned state legislatures in a concurring opinion that the court would reject laws that are “too imprecise” or use civil confinement as “a mechanism for retribution.” Civil libertarians have complained that this and similar laws aimed at sexual predators wrongly cross a new threshold by confining persons based on what they may do, rather than what they have done.

“States can and should enforce long prison terms for repeat sexual offenders,” said Steven R. Shapiro, legal director of the American Civil Liberties Union. “But we should not allow politicians to use mental hospitals as a place to lock up individuals.”

He denounced the Supreme Court decision, saying it “distorts psychiatry and the laws.”

According to Michael Allen of the Bazelon Center for Mental Health Law in Washington, “The danger is (that) the term ‘mental abnormality’ could be used to reach all kinds of behavior that may have no relation to mental illness. This law would permit commitment of someone who was just maladjusted.”

Echoing that fear, Scott A.W. Johnson, a Seattle lawyer who filed the ACLU’s friend-of-the-court brief, asked: “What do you do about habitual drunk drivers, or habitual shoplifters? Are we going to set up special little prisons for each of those populations?”

But with the court’s approval, other states are expected to pass similar measures. And Rep. Louise Slaughter, D-N.Y., said she will press Congress to pass a similar federal law.

“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.”

In the past, people who were judged insane could be committed to a state facility for the good of themselves and the community. Until recently, however, these so-called civil commitments have been limited to those who suffer from a “mental illness” as defined by mental health experts.

Beginning in 1990, however, several states expanded the concept of civil confinement to cover sex criminals, even when these people were judged not to have a true mental illness. Instead, the new laws refer more loosely to people having a “mental abnormality” or a “personality disorder” that predisposes them to commit sex crimes.

In the case before the court, Leroy Hendricks, 62, had served a 10-year prison term for molesting two 12-year boys in a hardware store. When he was about to released in 1994, Kansas officials petitioned a state court to have him confined in a new state facility.

Hendricks was a pedophile, they said, which is a “mental abnormality.” He also had a lifelong history of sex offenses involving children. All such crimes are deemed violent offenses, and officials said Hendricks was likely to commit the same offenses again if released.

Based on that evidence, Hendricks was confined in a new state facility. Last year, however, the Kansas Supreme Court said the law was unconstitutional, leading to Monday’s ruling in Kansas vs. Hendricks.

Joining Thomas’ opinion were Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia and Kennedy.

The dissenting justices - Justice Stephen Breyer joined by Justices John Paul Stevens, David Souter, and Ruth Bader Ginsburg - concluded that Hendricks’ confinement was “basically punitive” because he was being restrained rather than treated for his psychiatric and behavioral problems.

Consequently, Breyer said, the confinement violated the constitutional prohibition against retroactive imposition of new punishments. But he said the law would not be unconstitutional in two ways: if it operated prospectively or if it provided treatment and not simply incarceration.

The four other states with similar measures are California, Wisconsin, Minnesota and Arizona.

In other rulings, the court:

Said guards at privately run prisons do not have the same legal protection from lawsuits as state employees. Dissenters said the 5-4 ruling in Richardson vs. McKnight, will raise the costs of private prisons and undercut the move to privatize such services.

Said the 1996 federal law limiting appeals in Death Row cases does not apply to cases which were under appeal in federal court prior to April 24, 1996, when President Clinton signed the measure. (Lindh vs. Murphy)


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