Too Dangerous To Set Free?

SHOULD LEROY HENDRICKS be set free? There is no question that Hendricks, 62, has done some terrible things and may be capable of doing them again. He has been committing sexual crimes against children as young as 7 for most of his life, dating back to a conviction for exposing himself to two girls when he was just 21. For years he abused his own stepdaughter and stepson, and the last time he was out of jail, back in 1984, he attempted to fondle two 13-year-old boys who had walked into a Wichita, Kans., store where he worked. At a hearing in 1994, Hendricks admitted that he most likely was still a pedophile. Asked if he could guarantee that he wouldn't molest again, he said simply, "The only way to guarantee that is to die."

So should he be locked up?

He did, after all, serve his full sentence in the case involving the two boys--10 years of a 5-to-20-year term, with mandatory credit for "good behavior." None of his crimes involved violence (although obviously a sexual advance on a young child can have devastating psychological consequences). And he is not delusional. He doesn't hear voices commanding him to commit crimes. He understands that what he did was wrong. He is sexually attracted to children, but he believes, or claims to believe, that he can now manage and control those feelings. That description, by the way, could fit a great many people, most of whom are not now in jail.

The question of whether to free Leroy Hendricks is important enough that the U.S. Supreme Court will decide it, after hearing arguments next week. Hendricks is appealing his detention under Kansas's 1994 Sexual Violent Predator Act, which permits authorities to keep certain sex offenders locked up indefinitely by committing them to a mental hospital after their prison time is up. By a 4-3 vote earlier this year, the Kansas Supreme Court ruled that the law violated the constitutional guarantee of due process. But state Attorney General Carla Stovall, who calls Hendricks "a tremendous menace to the public and a tremendous frustration to the government," is hoping the justices will see it differently. And the court appears eager to grapple with the tricky constitutional questions that arise from the movement to make child abuse a uniquely stigmatizing crime.

Many more such questions will arise in the next few years, as federal legislation takes effect requiring every state to monitor convicted sex offenders and make the information available to their neighbors. A federal judge has already struck down a New York state law mandating the same thing, and that case, too, could well end up before the justices. Only seven states now have laws providing for civil commitment of sex offenders after release from prison. But no fewer than 45 states and territories filed briefs supporting the law that's keeping Leroy Hendricks locked up.

No state wants to be the home of the next Megan Kanka, the 7-year-old New Jersey girl whose murder, allegedly by a paroled sex offender living nearby, touched off the campaign for community-notification laws. Few crimes are as horrifying, as gratuitously evil, as hurting a child for one's own sexual pleasure. Most people, of course, would never think of doing it, but they also have an uneasy appreciation of the intensity of even normal sexual desire. The sheer persistence of some sex offenders--like Christopher Hubbart, a 46-year-old California man who once was arrested for raping a woman the same day he got out of prison--is one of the minor wonders of penology. Hubbart has been locked up under a California law similar to the one in Kansas. "He can't help himself from raping women," says Santa Clara County Deputy District Attorney Peter Waite. Earlier this year his incarceration was upheld by a California Superior Court judge, but Hubbart plans another appeal.

THE FUTILITY OF PUNISHMENTS that fall short of total incarce- ration is brought home with depressing regularity. Most recently this happened in Ft. Lauderdale, Fla., where a 7-year-old girl and her 11-year-old sister were found strangled last month--in the attic of a 30-year-old man who was under house arrest for a previous conviction on indecent assault. The suspect, Howard Ault, has confessed to the murders. Formally, he has pleaded innocent. His lawyer hopes to mount an insanity defense. Ault's "community control officer" had stopped by just a few hours after the girls had been killed--and noticed nothing amiss.

Still, it is a myth that sexual molestation is a habit impossible to break. According to the Association for the Treatment of Sexual Abusers, the reoffense rate for "untreated sex offenders who primarily target children" ranges in various studies from 10 percent to 40 percent, not the "80 percent to 90 percent" that many laypeople assume by extrapolating from the 6 o'clock news. The association has no position for or against civil-commitment laws, but it filed a brief in the Hendricks case, asking the justices to bear in mind two points: that experts can indeed predict which offenders are most likely to get into trouble again, and that at least some sex offenders can be treated. One way to tell who is likely to commit another sexual offense: read him a story about deviant sexual behavior and measure his sexual arousal. The trend in treatment is to focus narrowly on specific deviant acts, avoiding any larger psychological issues. "The most important things we do," says association president William Murphy, "are attempt to instill victim empathy and to get the perpetrator to appreciate the consequences of his acts to his family, his friends and himself." To put it another way, acknowledging the futility of knowing why someone is aroused by exposing himself to children, the therapist encourages him to control the impulse, to modify his fantasies and, at all costs, to stay the hell out of playgrounds. But even Murphy, with 20 years' experience treating sex offenders, admits that these techniques have their limits: "You still have the Polly Klaas type of guy," he says. "I don't know what to do with them; nobody knows what to do with them. When you get to the child sadists and killers--they are too dangerous to let out."

As for Hendricks--well, at least no one can say that the state locked him up capriciously. The Kansas law sets up an elaborate, multistep process for reviewing the cases of sex offenders before their release from prison, involving two separate panels, a judge, psychological evaluations and ultimately a full civil trial. A 12-person jury must unanimously agree that the offender has a "mental abnormality" that makes him "likely to engage" in sexual offenses. Of 618 offenders reviewed since the law began, only nine have been committed. (On the other hand, getting released after committal can entail a comparable process, including finding a mental-health worker willing to put his career on the line if he's wrong; none of the nine has been released yet.) To Hendricks's lawyer, Tom Weilert, all those elaborate safeguards don't change the fact that his client served his term and had every expectation of getting out of prison in 1994--only to find himself back under lock and key for what amounts to the same offense, or for things he never did. "Our criminal-justice system is based on incarcerating people for what they've done--not what they might do in the future," Weilert says.

Weilert acknowledges that if the legislature had passed a law before 1984 putting people like Hendricks away for life, there wouldn't be much he could do about it now. For that matter, under laws then on the books, Hendricks could have been given as much as 45 to 180 years. That's exactly the point, Weilert says: "Apparently, back in 1984 the state didn't see Leroy as a big enough threat to incarcerate him for the rest of his life." No one can say now why he was allowed to plea-bargain his way down to an effective 10-year term. But it's not unusual for district attorneys to offer pleas in child-molestation cases, rather than put children through the trauma of testifying.

Technically, Hendricks's fate may rest on the question of whether a mental abnormality--the standard for incarceration in the Kansas law--is substantively equivalent to "mental illness." Hendricks arguably has the former but not the latter, and the distinction matters, according to Harvard Law professor Carol Steiker. Until now, preventive detention was imposed only on people who are both mentally ill and dangerous to themselves or others. This is the John Hinckley standard--someone in the grip of an unmistakable and potentially harmful delusion. "If we permit preventive detention for the "dangerous,' as opposed to the "dangerous mentally ill'," Steiker says, "we're going down a potentially slippery slope that is very broad."

Of course, implicit in Steiker's remarks is the admission that Hendricks may in fact be dangerous. He admitted as much himself, in saying that he couldn't "guarantee" that he'd never attack another child, a remark his lawyer says shows his candor and his honest effort to come to grips with his inner demons. Which, by the way, may have had their origins in a mother who he claims dressed him in girls' clothing, including a bra, and an older female cousin who he says abused him sexually when he was 5. Not that that excuses what he did to his own stepdaughter, Rose Loux, 33, who says Hendricks molested her twice a week for four years, starting when she was about 9, bribing her with treats and privileges. Asked what punishment she thinks is appropriate for Hendricks, she replies laconically, "Capital punishment."

But she doesn't get to decide. The Supreme Court, standing in for all of society, has that privilege and duty.

Should Leroy Hendricks go free?