It's hard for a politician to get into trouble by attacking child molesters. By the same token, even the dimmest public official can see the pitfalls in criticizing a policy aimed at keeping perverts away from kids.
That dynamic helps explain the recent trend toward preventive detention as a way of dealing with sex crimes. Since 1990, at least seven states have adopted laws allowing civil commitment of sex offenders after they complete their prison terms, and several others are expected to consider such legislation this year.
The U.S. Supreme Court encouraged the trend last summer, when it upheld the Kansas Sexually Violent Predator Act. That statute allows the indefinite confinement of sex offenders who, because of a "mental abnormality" or "personality disorder," are thought likely to commit "predatory acts of sexual violence."
The first person committed under the 1994 law was Leroy Hendricks, a 62-year-old with a long history of sexually abusing children who was about to be released from prison after serving 10 years for taking "indecent liberties" with two 13-year-old boys. Rather than let him go, the state sought to confine Hendricks in a mental hospital as a "sexually violent predator," and a jury approved.
In 1996 the Kansas Supreme Court ruled that the Sexually Violent Predator Act denied Hendricks due process because it did not require a finding of "mental illness." The court also concluded that "the primary purpose of the Act is to continue incarceration and not to provide treatment."
When it overturned that decision, the U.S. Supreme Court denied that Kansas was locking Hendricks up based simply on a prediction of what he would do if he were released. "A finding of dangerousness, standing alone, is ordinarily not a sufficient ground on which to justify indefinite involuntary commitment," Justice Clarence Thomas wrote for the majority. The Kansas law passed muster, he said, because it established criteria designed to identify "those who suffer from a volitional impairment rendering them dangerous beyond their control."
Specifically, Hendricks was said to suffer from "pedophilia," a "mental disorder" that drove him to his crimes. "He explained that when he 'get[s] stressed out,' he 'can't control the urge' to molest children," Thomas wrote. "He stated that the only sure way he could keep from sexually abusing children in the future was to 'die.' "
To a skeptic, citing "volitional impairment" is another way of saying that Hendricks is dangerous, just as calling him a pedophile is another way of saying that he likes to molest children. But Thomas apparently meant that Hendricks literally could not control himself.
That claim reveals a fundamental contradiction in the idea of confining sex offenders to mental hospitals after they serve their prison sentences. Hendricks was considered responsible enough to be punished for his actions. Yet his civil commitment is based on the premise that he's not responsible, that it's unreasonable to expect him to refrain from molesting children. This is an odd message for advocates of law and order to send.
From the details of Hendricks's crimes, you might well conclude that he should have been imprisoned longer; he could have received a total of 45 to 180 years. Perhaps sexually assaulting children is so heinous a crime that repeat offenders deserve life imprisonment. But the state undermines fundamental principles of justice when it comes back after the fact, under the guise of "treatment," and extends the term of an offender who has already served his sentence.
After all, anyone who commits crimes against people or property could be said to have a "mental abormality" or "personality disorder." Sex offenders have been singled out largely because they are considered especially likely to commit additional crimes. But that belief appears to be unfounded. Tracking a sample of state prisoners who were released in 1983, the Bureau of Justice Statistics found that 52 percent of rapists were arrested for a new crime within three years, compared to 60 percent of all violent offenders.
Locking all felons away in mental hospitals until they are "cured" of their anti-social tendencies certainly would make the streets safer. But even leaving aside considerations of cost, such a proposal would not get very far, because most Americans still believe that it's unjust to confine people because of crimes they might commit in the future. To some, the idea is even more chilling than Leroy Hendricks's rap sheet.