WASHINGTON -- Kansas and 39 other states want the U.S. Supreme Court to approve as constitutional their plans to confine "mentally abnormal" sex offenders who already have served their criminal sentences.
Justice John Paul Stevens seems to think the plans are absurd because they would allow a state to punish an offender twice for the same crime, or lock up someone for an indeterminate time for a crime he has not yet committed.
But Chief Justice William Rehnquist asks whether a state must do nothing until a hard-core child molester goes out and assaults another victim.
The issue of "preventive detention" has bounced around this society for generations but has never passed constitutional muster. It might this time, because the Kansas case is "loaded" in the sense that it involves a man who has been convicted five times of molesting at least 12 children -- a man who himself says that only his death can give assurance that he will not molest again.
The liberty of the rest of us
Even some civil-rights lawyers say it might be OK to keep this man locked up beyond his sentence "as long as it does not threaten the civil liberties of the rest of us."
Well, what makes this case important, and scary, is that it does involve the liberties of millions of Americans who have never molested a child. That is because it opens the door to the punishment of people on the basis of what others think they are inclined to do -- or be.
Some anti-crime hard-liners have long sought a test -- Minnesota Multiphasic, Rorschach or something new -- that would indicate a person's inclination toward criminal behavior. Score badly and they would put you in preventive detention for the protection of society.
I know someone who thinks unkempt men with beards are inclined toward terrorism. As a preventive measure, we might just bar such men from airports.
The statistical link
Already, law-enforcement officials cite statistics showing that young black males commit a disproportionate percentage of crimes as justification for watching, questioning, arresting and eventually locking up black men in percentages far greater than white men.
A high-court blessing for preventive incarceration of the "mentally abnormal" would give "justification" to all the highway patrolmen in the many states where black motorists are stopped and searched way out of proportion to their numbers. We might call this "preventive harassment."
I can think of few things more Gestapo-like than locking up someone, even an ex-con, on the assumption that he might again engage in criminal behavior.
If we believe there are sexual predators who will forever be a menace to children or others, let's change the laws and the sentencing guidelines to allow imposition of a lifetime sentence after whatever conviction makes it apparent that the offender ought never be paroled. But it is frighteningly unjust to sentence a man to 10 years in prison and, after he has served that time, tell him you're going to lock him up in a mental hospital for as long as you wish.
This society already is a powder keg because we have too many areas in which punishment for crimes is meted out in cruelly discriminatory ways. We cannot afford to add a level of haphazard uncertainty born of ill-defined fears in the area of sexual crimes.
Let us pray that our nine justices give deep and serious thought to all the ramifications of this issue that has been placed before them.
Carl T. Rowan is a syndicated columnist.
Pub Date: 12/13/96