Excessive Ruling on Molesters

There can be little doubt that convicted pedophiles and rapists are among society’s most detestable and dangerous predators. They often say they are likely to repeat their crimes and they have a chilling tendency to prove themselves correct.

Surely these men should get the harshest sentences the law allows. California, along with other states, has stiffened prison terms for rapists and child molesters in recent years with the commendable aim of keeping these odious criminals off the streets.

Nonetheless, Monday’s U.S. Supreme Court decision allowing states to confine violent sexual predators indefinitely, after they have served their sentences, is greatly troubling in its implications. Ruling 5 to 4 in the case of an admitted pedophile from Kansas, the court said such criminals can be held beyond their sentences if they are found to be mentally abnormal and likely to commit new crimes. California is one of five other states with similar laws. The court’s decision means that Kansas can continue to incarcerate Leroy Hendricks, who has been convicted of child molestation five times and has said his death is the only way to ensure he won’t do it again.

Under the Kansas law, to keep an offender incarcerated a judge or jury must decide beyond a reasonable doubt that the convict is “mentally abnormal” or has a “personality disorder.” In Hendricks’ case, a jury made this determination shortly before his release from prison, acting on a petition by state officials seeking his civil confinement. Those committed to a state treatment facility under this law are entitled to a new evaluation every year.

Justice Clarence Thomas, writing for the majority in the Supreme Court, held that Hendricks’ continued confinement does not violate the constitutional right to due process and is not double punishment for the same crime. Such continued confinement, he wrote, “unambiguously requires a finding of dangerousness either to one’s self or to others.”

But if that’s the standard, why not extend it to, say, convicted drunk drivers who display a similar pattern of repeating their crimes, often with deadly consequences? The difference in principle is difficult to see.

If indefinite incarceration is not the wisest answer for convicted pedophiles, how should we protect the public from these people? Tougher prison terms--under California law an act of violent pedophilia can now bring a sentence of 25 years to life--will keep them behind bars much longer. Eliminating plea bargains would also help. So will the state and federal laws that require residents be notified of dangerous predators who have settled nearby. These approaches, rather than the slippery slope of indefinite incarceration, rest more easily with the constitutional guarantees of due process on which we all depend.