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High Court Tightens Rules for Confining Sex Offenders

THE NATION

Law: States must show freed criminals have a mental disorder and a behavioral problem before they can be kept in custody.

January 23, 2002|DAVID G. SAVAGE | TIMES STAFF WRITER

WASHINGTON — The Supreme Court made it somewhat harder Tuesday for states to lock up sex criminals after they have served their prison time, ruling that states must prove these inmates have both a mental disorder and a "serious difficulty" in controlling their behavior.

The 7-2 ruling clarifies the standard for defining who is a "sexual predator."

Legal experts predicted that the decision will allow some of the more than 1,200 men now being held in California and 15 other states to seek their release through a new hearing. Currently, 301 people are confined as sexual predators in California.

But prosecutors in several states said they were confident they would be able to convince a jury that these dangerous offenders must not be released, regardless of the higher standard set by the court.

The "sexually violent predator laws" were an innovation of the early 1990s. They were designed to cope with serial rapists and child molesters who appeared to have an irresistible impulse to commit sex crimes.

State laws authorized officials to keep these sex criminals in custody after they had served their prison terms. They were transferred from a prison to a prison-like treatment center, sometimes located within the prison grounds. There they could be held indefinitely.

Five years ago, the high court upheld these laws in principle on a 5-4 vote in the case of Leroy Hendricks, a Kansas pedophile. Forced confinement of such offenders was not double punishment for the same crime, Justice Clarence Thomas wrote then, because the inmates were being treated, not just incarcerated.

The court majority also said that the government has long had the power to commit mentally ill people who are judged to be a danger to themselves or others.

But until Tuesday, the court had not said what state prosecutors must prove to win a civil order that confines an inmate due to be released from prison.

Justice Stephen G. Breyer announced something of a middle-ground position.

It is important to distinguish between ordinary criminals, who may choose to commit crimes after they are released, from sexual predators, he said.

Criminals, whether they are burglars, drug dealers or rapists, should be imprisoned and punished for their crimes but released once they have served their term, he said. This is so even if prosecutors think an inmate is dangerous and is likely to commit further crimes.

Sexual predators, he said, are in a different category. They are not just criminals who have committed sex crimes; they also have been diagnosed as suffering from a "serious mental illness (or) abnormality" and show "a special and serious lack of ability to control their behavior," he said.

State prosecutors must prove both of these elements to a jury, Breyer said, before the inmates can be incarcerated in a treatment center.

However, his opinion did not go as far as civil libertarians preferred. The Kansas Supreme Court, taking an even more liberal position, said prosecutors should be required to prove that these offenders "cannot control" themselves, a standard that incorporates the notion of an irresistible impulse.

Breyer conceded that his opinion did not draw a clear "bright line" but said an "absolute approach is unworkable." Even the worst of pedophiles do not try to molest a child if a police officer is standing nearby. They can control themselves to some degree, he said.

In dissent, Justices Antonin Scalia and Clarence Thomas said juries will have a hard time deciding whether someone has a "serious difficulty" in controlling himself.

Tuesday's ruling came in the case of Michael Crane, a 39-year-old former landscaper who was arrested for two attempted assaults on store clerks. In both instances, he grabbed a female clerk, exposed himself, demanded oral sex and threatened rape, but then fled.

He pleaded guilty to one count of aggravated sexual battery and served a five-year prison term. When his term ended in 1998, state prosecutors moved to confine him in a treatment center, saying he suffered from an "antisocial personality disorder." A jury agreed to order his commitment.

But last year, the Kansas Supreme Court ordered a new civil hearing for Crane in which prosecutors would have to prove that the "defendant cannot control his behavior."

Tuesday's decision in Kansas vs. Crane, 00-957, overturns the state court's ruling, but it is nonetheless likely to lead to a new hearing for Crane under the standard announced by Breyer.

Kansas Atty. Gen. Carla J. Stovall said she was pleased with the outcome. "It's a good decision for victims' rights, and it's a workable standard. If they had upheld the Kansas court, we would have been put out of business."

Hallye Jordan, a spokeswoman for California Atty. Gen. Bill Lockyer, also predicted the ruling will cause little trouble for the state.

"We require evidence of a mental disorder that predisposes someone to commit sexually violent acts. We think that pretty much meets the test set in Crane," Jordan said.

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