THROWING AWAY THE KEY

By JAMES COLLINS

Leroy Hendricks had done his time. In August 1994, after serving 10 years for taking "indecent liberties" with two 13-year-old boys, Hendricks walked out of prison in Hutchinson, Kans.--and was almost immediately transported to the Larned Correctional Mental Health Facility, where he has been locked up ever since. Under a 1994 state law called the Sexually Violent Predator Act, a judge ordered Hendricks confined indefinitely after ruling that his "mental abnormality" made him likely to attack again. Hendricks challenged the constitutionality of that law, but last week, in a 5-to-4 decision, the Supreme Court upheld it.

Hendricks is just the kind of fiend the Kansas legislature had in mind when it passed the Predator Act. His 1984 molestation conviction was his fifth in almost 30 years. The only sure way to make him stop molesting children, he has admitted, would be to kill him. "He's really a poster boy for pedophiles," says Wichita district attorney Nola Foulston. "Sometimes he was a carnival worker. He would ingratiate himself with single mothers by taking their children out for ice cream. The mothers would think, 'What a nice man.'"

The American justice system punishes criminals for what they have done, not for what they might do. Only those deemed dangerous and insane are locked away to protect themselves and society from their potential actions. Hendricks' lawyers argued that the "mental abnormality" clause in the Kansas statute created too low and too vague a standard for committing a person and so was a violation of due process. They also claimed that the law subjected Hendricks to double jeopardy and that it violated the Constitution's ex post facto clause, which forbids the enactment of new laws that extend punishment for past crimes.

The court was not convinced. Writing for the majority, Clarence Thomas asserted that the Kansas law's standard for what constitutes a dangerous mental illness was as strict as the standards in many laws the court has long upheld. Thomas further concluded that since the Kansas law was a version of these well-established "civil commitment" statutes, Hendricks' confinement could not be considered "punishment"--because punishment, in constitutional terms, arises from criminal proceedings, not civil ones.

Many legal experts are worried that the decision will allow states to lock up all sorts of people. "Today we're dealing with sexual predators," says Steven Shapiro, the legal director of the American Civil Liberties Union. "Who is it tomorrow that we're going to label as abnormal and potentially dangerous?" The dissenting Justices, however, agreed with Thomas that Kansas' criteria for committing someone were valid. Their objection, as expressed by Stephen Breyer in the minority opinion, was that Hendricks has received virtually no treatment even though the law requires it. To Breyer, the state's failure to live up to its promise makes Hendricks' confinement look a lot like punishment.

Six states have sexual-predator laws; similar statutes being considered in at least 30 others are likely to be enacted swiftly. To mark their days to freedom, people like Hendricks are going to need new calendars.

--By James Collins. Reported by Andrea Sachs/New York and Tim Miller/Lawrence

With reporting by ANDREA SACHS/NEW YORK AND TIM MILLER/LAWRENCE