Leroy Hendricks is now 62 years old. Sitting in his car one day when he was 20, in 1955, he exposed himself to two small girls. In 1957, he was convicted for playing strip poker with a 14-year-old girl. In 1960, Hendricks was sentenced to a three-year prison term for molesting two boys, ages 7 and 8. Released in 1963, he was immediately reconvicted on charges of molesting a 7- year-old girl whose family he had befriended for that purpose. Hendricks was then committed under Kansas’s “sexual psychopath” statute, since repealed. Discharged in 1965, he was soon sentenced to prison for molesting an 8-year- old girl and an 11-year-old boy. He got out in 1972. From 1973 through 1978, he sexually assaulted his pre-teen stepson and stepdaughter on a weekly basis. In 1983, Hendricks was convicted for molesting two 13-year-old boys.
Leroy Hendricks is a truly bad man, and he freely admits it. He is an out- of-control pedophile, he says. He says that treatment is “bulls–” and that the only way he can guarantee he won’t molest again “is to die.” His lawyer concedes that “Leroy has a sexual preference for children,” one that ” certainly” poses a risk to public safety.
But Hendricks has already served every day of his scheduled time under every criminal sentence ever imposed on him. And he does not fit any of the ” mental illness” diagnoses required for preventive detention under Kansas’s standard insanity and civil-commitment laws.
So his lawyer says he must be released. Is the house next-door to yours for sale?
Men like Leroy Hendricks are time bombs that confront all 50 states. The most obvious response in recent years, now endorsed by the federal government, is “Megan’s Law,” named after 7-year-old Megan Kanka of Hamilton Township, New Jersey, who was raped and murdered in 1994. Her killer was a convicted pedophile who lived across the street. To provide better monitoring of such men, the Megan’s Law model requires released “low-risk” sex offenders to register with local law-enforcement offices. Higher-risk offenders are supposed to trigger notifications to area schools, day care centers, summer camps, and the like. And the very highest-risk offenders are supposed to be called to the attention of anyone who might come in contact with them on a daily basis.
These laws are popular. People want to know, parents especially, and who can blame them for it? But while the police-registry provisions of Megan’s Law have been consistently upheld in state and federal court, the public- notification provisions are being challenged as a possibly unconstitutional ” double-jeopardy” punishment. And however this constitutional question is ultimately decided, the fact remains that Megan’s Law hasn’t worked out quite the way it was intended.
There are administrative problems. The Los Angeles Times reported in January that California is unable to account for 20 percent of its nearly 68, 000 Megan-class rapists, molesters, and other sex offenders, and the state has no foolproof means of tracking the rest. Those men who are identified by public-notification systems around the country often face a local reaction the ferocity of which, though perfectly understandable, keeps them permanently on the move — and thus even harder for police departments to find. The new law “was not supposed to create a peripatetic group of pedophiles,” the Kanka family’s lawyer points out. But that’s what it seems to be doing.
How else might we legally protect our children from these monsters on the loose, then? A few eccentrics argue that we really needn’t bother. Law professor Frank Zimring of Berkeley, for example, says that fear of lurking, invisible pedophiles is almost purely a product of “folk belief.” Only about 14 percent of prisoners sentenced in state courts for sexual assault on a child were total strangers to their victims, after all. And recidivism rates for child molestation, he suggests, are actually lower than those for most other serious crimes.
Recidivism rates for crimes of pedophilia are notoriously squishy, though, and you can cut the numbers a different way. A way that is impressively horrible. According to the Department of Justice, two-thirds of all state prisoners serving time in 1991 for rape or sexual assault had raped or sexually assaulted a minor. About 25,000 of them had raped or sexually assaulted someone under the age of 12. And a significant minority of them had probably done it repeatedly. A study funded a few years ago by the National Institute of Mental Health found that each of 453 pedophiles had abused an average of 52 girls or 150 boys. These are not the disturbed, sex-abusing middle-class dads of television docudrama. They are disturbed serial molesters; we’re talking forcible sodomy here. And when their criminal sentences are through, almost all of them are eligible for release into your neighborhood.
So what if there “aren’t very many” of these repellent creatures? Someone’s got to figure out a legal and effective way to keep them off the street. A handful of states, beginning with Washington in 1990, believe they have done just that. They have enacted add-on civil-commitment statutes that provide for the indefinite detention and treatment of “sexually violent predators” in state mental institutions — even though the targeted predators do not suffer the kind of “mental illness” that would otherwise subject them to involuntary, non-criminal restraint. Under these new laws, if a man has a “personality disorder” or “mental abnormality” that inclines him to acts of sexual violence, if he has already committed at least one such crime, and if — after elaborate hearings and observation — he is adjudged a likely threat to public safety, he can be put away. Until it can be established that the threat no longer exists.
Kansas passed a law like this in 1994. Kansas has since used its law to keep nine men in Larned State Hospital. Leroy Hendricks is one of them. On December 10 last year, Kansas v. Hendricks was argued before the Supreme Court.
Legally and politically, it is a complicated and fascinating case. Hendricks argues that the purpose of the law is punitive and that it therefore violates the Constitution’s due-process, double-jeopardy, and ex post facto clauses. Old crimes whose penalties he has already paid, Hendricks says, are the rationale for his continued detention against the mere chance of crimes he hasn’t yet committed. Hendricks is joined in this cause, as you might expect, by the American Civil Liberties Union. And, rather weirdly, by the American Psychiatric Association. APA is worried that people with regular mental illnesses — depression, for example — will get “lumped in” with pedophiles in the public mind. Only treatable mental illness is an acceptable ground for civil commitment, APA insists. Pedophilia isn’t treatable; Leroy Hendricks will most likely never be cured. So he must be released. Keeping a violent child molester behind the fence, APA’s Supreme Court brief announces, would “threaten our most basic traditions of liberty.”
Kansas — and, interestingly enough, the Menninger Foundation of Topeka, which runs one of the world’s oldest and most respected psychiatric institutions — make a simpler and better argument. Civil commitment of people like Leroy Hendricks is well within American legal and medical tradition. It is actually less harsh than the safety measure APA appears to recommend: lengthier, mandatory prison terms for sex-crime convictions. And it preserves for citizens the authority to determine whom they may protect themselves from in administrative and criminal proceedings. The alternative, APA’s preferred method, elevates the psychiatric profession’s Diagnostic and Statistical Manual to the level of constitutional principle.
The Supreme Court will issue its decision in this case on one of the next few Mondays. It’s hard to tell exactly where the justices will wind up; during December’s oral arguments they seemed equally vexed by Leroy Hendricks and the Kansas Sexually Violent Predator Act of 1994. But it’s easy to predict what will shortly happen in the real world, one way or the other. If the Supreme Court strikes down this Kansas statute, Leroy Hendricks and other men like him across the country will walk. State after state will then have no responsible choice but to do what Arizona has recently done: establish life sentences for any future crime involving sexual contact with a minor. If the Supreme Court upholds Kansas, by contrast, Leroy Hendricks and other men like him will not walk. They may never walk.
They probably never should. Deep thinkers who fancy themselves immune to instinctive emotional impulses about political questions do not care for pedophilia as an issue. They see unreason and hysteria behind Megan’s Law and suchlike reactions to high-profile child murders. Columnist Richard Cohen points out that “we do not ask to be told that a drunk might be driving through the streets of our neighborhood.” His fellow columnist Edwin Yoder compares the Kansas civil-commitment statute to the “abuse of psychiatry in the Soviet Union . . . when commissars confined socially or politically recalcitrant persons to ‘asylums’ on flimsy grounds.” Come off it, fellas. Leroy Hendricks isn’t a drunk driver. And he sure enough isn’t a refusenik. He’s an evil, dangerous man. Keep him locked up.
David Tell, for the Editors
