UNIVERSITY DAILY KANSAN
Tuesday, December 10, 1996
5A
PREDATORS
"There are very basic principles that are a part of our Constitution that say you can't increase the sentence after the fact and you can't punish a person twice for the same crime." Gottlieb says.
On the other side of the issue, helping Kansas Attorney General Carla Stovall prepare arguments for the state, is Stephen McAllister, professor of constitutional litigation. McAllister thinks pedophiles such as Hendricks should not be returned to society without further treatment because of the threat they pose.
"Kansas is arguing that we can certainly protect the people of Kansas when there is an additional purpose to protection." McAllister says.
Thirty-eight states, the District of Columbia, Puerto Rico and four United States territories have interest in the Supreme Court's decision.
As Kansas goes on Hendricks, so goes the nation on sexual predator laws.
In the hands of the court
The state will ask the Supreme Court to decide:
"Does the Kansas Sexually Violent Predator Act impose criminal punishment?"
McAllister's team says no.
Kansas claims that providing for the civil commitment of sexually dangerous persons is neither criminal nor a punishment. McAllister's briefs claim that sex offenders committed under the act are receiving treatment, and they are being treated like persons with mental abnormalities, not like prisoners. Their term for Hendricks' situation is incapacitation.
Stephen McAllister
"incapacitation is not inherently punitive," McAllister said. "There are reasons for it that go beyond reasons to punish him. It is not to serve Hendricks, it is to serve the public. There may be punitive aspects, but that's not the whole thing."
David Gottilleb
"Hendricks understood what he
was doing, but that does not mean he's mentally healthy."
Hendricks' attorneys, including Gottlieb, argue that for the state to involuntarily put a person into a mental facility, the person must meet a legal definition of mental illness — something Hendricks does not.
"If individuals are mentally ill and not criminally responsible, then the appropriate response of society is to commit them and treat them," Gottlieb says. "The problem is in attempting to treat people thought to be mentally ill that aren't mentally ill to begin with."
Pedophilia is not recognized as a form of mental illness. Kansas law says it is, however, a mentally abnormal behavior. A number of mental health officials object to the state's diagnosis.
The American Psychological Association and the National Mental Health Association have filed independent briefs to the Supreme Court to support Hendricks' claim that pedophilia is not a mental illness.
Legal definitions
Double jeopardy clause:
Protects against second prosecution for the same offense after acquittal or conviction and against multiple punishments for the same crime.
- Ex post facto law: A law that changes the punishment or inflicts a greater punishment on a criminal than the law initially applied to the case.
*Pedophile: An adult who is sexually attracted to a child or children.*
Substantive due process: Protection from arbitrary and unreasonable action.
"They've created a legal fiction of mental abnormality, which doesn't have any clinical basis at all," says Michael Allen, an attorney at the Bazelon Center for Mental Health Law, who helped the NMHA prepare their response. "It's just a made-up term, a way to keep people locked up. And it screws up the world for people who are mentally ill."
Allen says incorrectly label criminals as mentally ill creates a negative stigma for those with treatable illnesses. He also says putting sexually violent predators into mental health facilities takes resources away from people who could benefit from treatment.
Treatment for the sexual predators
Hendrick's attorney Weilert graduated from the KU School of Law in 1975. He supports protecting children from violent predators, but argues that keeping a person locked up for acts that one day might happen goes against the U.S. legal system.
"If we allow a state to incarcerate a person because of what they may or may not do in the future, then we com-
Case strikes emotional chord
Justice weighs on survivor, attorneys
lori learned about child molesters when she was 5 years old. That's when she was molested by her stepfather's best friend in front
of her older brother on Valentine's Day 1979. From that day on, her brother continued to molest her for the next nine years.
She draws an opinion of what should be done with sexual predators from her own experience.
She sits in her bathroom and tries to process parts of her past that have made their way back into her memories.
She wants to say something profound about what should be done to sexual predators, but she is overwhelmed with anger.
When she walked into the bathroom, the sun still was high in the afternoon sky. Now she's surrounded by darkness and asks that the fluorescent lights not be turned on.
"I think they should be hung up by their 'nads in a public square and have 20 colonoscopies. That should be the law," Lori finally says.
state's arguments for keeping sexual predators locked up after their sentences expire.
"My wife says that I say, 'Yes,' to too many words," McAllister says. "But when this came along, she said, 'This is the one you've got to do. It's important.'"
McAllister's position still allows sexually violent predators to be released after they are treated. Lori says McAllister isn't fighting hard enough. She doesn't want predators to have the opportunity to return to the streets.
"It's not for sex; it's not at all about sexual frustration," Lori says. "I think that they're insecure with themselves. They lack self confidence, and by taking advantage of someone who can't defend themselves, who isn't big enough to fight, they feel stronger."
"Just like the victim, they can overcome it. They can get on with their life, but it is always there. They're like an addict. If they feel that they have the opportunity to molest another child to make themselves feel better, then they'll do it."
David Gottlieb, professor of criminal law and procedure, says he thinks that treatments are not an issue in this case.
He thinks defending due process
and ex post facto rights is important enough that he is willing to represent convicted pedophiles. He admits a number of people think he is on the wrong side of the issue, but supporting constitutional rights is the right side for Gottlieb.
"People that know me and have learned about this case understand that this case does not decide whether the state can punish — and punish harshly — individuals who commit sex crimes," Gottlieb says. "The issue has to do with how you go about that and whether you can commit someone by essentially making the likelihood of committing a crime the equivalent of a mental illness."
Gottlieb says, however, Leroy Hendricks, the convicted child molester around which this case turns, has served his 10 years in prison and that's why the case has to go to court.
The attorneys in this case agree that sex crimes against children are wrong and that violent predators should be punished for their actions.
Kansas Attorney General Carla Stovall, 1982 KU School of Law graduate, supports the state's arguments to keep sexual predators in mental facilities after their release from prison.
"I think they should be hung up by their'nads in a public square and
colonoscopies. That should be the law."
Molestationsurvivor
tion, and I felt that I had to argue it," Stovall says. "I realized what a very unique privilege it is. It is an unparalleled challenge to argue before the United States Supreme Court. It's every lawyer's dream to be in front of that court."
Tom Weilert, the convicted sexual predator's attorney, doesn't mention his place in history. Instead he talks about the freedoms granted in the Bill of Rights and how many nations in the world covet the freedoms of U.S. citizens.
pletely undermine criminal laws' place in society," Weilert says.
Kansas' case and McAllister's briefs argue that the state has the right to prevent future child molestation. They want to protect children from repeat offenders who have a proven record of sex acts with children.
Kansas Attorney General Stovall says the sexual predator wing of the Larned facility is staffed by a program director, two part-time psychologists, a full-time social worker, two activity therapists and a dozen security guards. Another social worker will become a part of the full-time staff in January.
Hendricks has told the Kansas Supreme Court he
believed treatment was not effective. Hendricks refused requests for interviews for this story.
Charles Befort, a former clinical director of the sexual predator treatment program at Larned, has already testified that persons committed under the act were receiving "essentially no treatment."
Gottlieb, who is on sabbatical this year in San Diego, and McAllister will be in Washington for the oral arguments.
With both parties in the nation's capital, Hendricks sits in Larned and waits for the Supreme Court to decide if he will one day go free.
"Hendricks understood what he was doing, but that does not mean he's mentally healthy."
Stephen McAllister professor of constitutional litigation
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