STUART TAYLOR, The American Lawyer: It states that after a convicted sex offender, sexual predator, finishes his term, or as he’s about to finish his term, the prosecutor can go to the court and say this man is still dangerous, he’s got a mental abnormality that makes him a continuing threat to commit sexually violent acts, in particular to children in this case, and we want him locked up indefinitely, as long as he’s dangerous. And he has a right to a jury trial, and if a jury finds beyond a reasonable doubt that he’s got a mental abnormality, not to be confused, by the way, with a mental illness in the traditional sense, and that he’s likely to continue molesting children or committing sexually violent acts because of it, he can be confined in a "mental institution" for so long as that remains the case, or until he can come in and prove that he’s no longer ill or dangerous.

JIM LEHRER: Do there have to be repeat offenses, or can this happen after just one?

STUART TAYLOR: It could theoretically happen after just one, although Mr. Hendricks, the man in this case, had been convicted five times over a period of four years of molesting at least 10 children, and so this was a real repeat offender who, in fact, testified in his own proceeding that the only way he could ever guarantee that he’d stop molesting children would be to die.

JIM LEHRER: All right. What was the thrust of the legal argument against this Kansas law today, Stuart?

STUART TAYLOR: The state supreme court struck down the law, the Kansas Supreme Court, and in trying to reinforce that decision, the defense lawyer, Thomas Wilert, of Wichita, basically said our legal tradition in this country, our constitutional tradition, is you don’t lock people up because they’re dangerous as a matter of due process of law. You can lock them up to punish them for crimes they’ve committed, though this man had already served his sentence. You can lock them up if they’re mentally ill and treatable for purposes of protecting them and others, while they’re treated, but this man, according to the defense, is not treatable and is not mentally ill in the usual sense.

JIM LEHRER: Not treatable in the usual sense, what does that mean from a legal standpoint? How did he argue that today?

STUART TAYLOR: There is some dispute over that in this case, but there’s a fairly broad view among psychiatric experts and others that pedophilia of the kind that this man has, the desire to molest children, is a lifelong condition, and that never goes away, and that any efforts to cure it through treatment are doomed to failure. They might produce some marginal improvement, but that you can never basically say, okay, this guy’s cured, he’s not a threat anymore.

JIM LEHRER: All right.

STUART TAYLOR: Now that cut it both ways. On the one hand, it obviously means you–one’s impulse is well, don’t let him out if he’s going to go out and do it again. On the other hand, it takes him outside the category of people who are usually subject to what is called civil commitment, people who are locked up because they’re mentally ill and dangerous to themselves or others because the usual rationale for that is we’re helping them, we’re treating them. And if you can’t help them, you can’t treat them, that doesn’t fit.

JIM LEHRER: How did the Kansas attorney general answer this legal argument?

STUART TAYLOR: The attorney general first on the facts claimed they are treating them, and on the law–

JIM LEHRER: He’s being held now in a mental institution in Kansas, and she argued he’s under treatment.

STUART TAYLOR: That’s correct.

JIM LEHRER: All right.

STUART TAYLOR: And–

JIM LEHRER: Even though they say he’s untreatable, they say he is treating–

STUART TAYLOR: She claims that there is some possible improvement through treatment.

JIM LEHRER: All right.

STUART TAYLOR: But she’s not really–the state supreme court found that that was sort of a show and that basically this man is going to be held forever if this law is upheld. But her basic argument was we have to do something to protect our children from this man, this is a reasonable way of doing it. We could constitutionally have sentenced him to life in prison without parole for what he did before, but this is a kind of a–as Justice Ginsberg put it–this is a gentler and kinder way of doing–of protecting children, instead of saying he is sentenced to life without parole for his crimes, we’ll let him serve his term, we’ll evaluate him, and we’ll hold him, if we can prove that he’s still dangerous.

JIM LEHRER: What could you read from the questioning of the Justices today?

STUART TAYLOR: They were very active–eight of them were very active in questioning and answering, and you really could tell that this was a case presenting novel and difficult issues that troubled some of them quite a bit. Justice Scalia, for example, asked very tough questions of both sides. At one point, coming to the aid of the defense lawyer, he said, "Well, totalitarian regimes lock people up on the ground that they’re mentally ill or dangerous. In this country, we lock people up to punish them for specific crimes." On the other hand, he made some points that seemed to cut the other way, as did Justice O’Connor.

On the whole, it was hard to predict them. The most telling exchange in a way came between the defense lawyer, Thomas Weilert and Chief Justice Rehnquist. The defense lawyer said very candidly, pedophilia is a diagnosis that never really goes away, and this man will always present a risk to children if he’s loose. Part of his point seemed to be that’s the state’s problem, he’s not treatable. Chief Justice Rehnquist came back and said, so, what’s the state supposed to do, just wait until he goes out and does it again? And at another point, Justice Kennedy similarly said, you know, does everybody have a constitutional right to commit one crime before we can civilly commit him? On the other hand, Justices Breyer and Stephens both seemed to think the state law made it too easy to prove somebody was dangerous and had a constitutionally inadequate burden of proof.

JIM LEHRER: So there’s no way to read how this thing may go, is that what you’re saying?

STUART TAYLOR: I wouldn’t put–I wouldn’t put my life savings on a prediction. I would say if it was leaning one way or another, it looked as though the state was more likely to win a narrow victory than otherwise, but that’s a bit of guesswork.

JIM LEHRER: May or June for a decision?

STUART TAYLOR: The best guess would be May or June. I think the court’s going to take its time and think very carefully about this one.

JIM LEHRER: Yeah. All right. Thanks, Stuart. Let’s widen this a bit now to Frank Conner, who’s executive director of the American Association for Rights and Responsibilities–that’s an organization advocating community rights–and Dr. Robert Phillips, deputy medical director at the American Psychiatric Association? Mr. Conner, first of all, how serious is this sexual predator problem nationally?

ROGER CONNER, American Association for Rights and Responsibilities: Well, it’s a serious problem. A recent study from the National Institute of Mental Health found that the typically sexually violent predator will sexually molest and assault between fifty and a hundred and fifty children in the course of their career. And communities have a real responsibility to protect children from this life-shattering experience. Now, the kids–

JIM LEHRER: I called you "Frank." I’m sorry.

ROGER CONNER: It’s "Roger."

JIM LEHRER: "Roger." I’m sorry. My apologies.

ROGER CONNER: Society has got a responsibility, and we think Kansas has steered a pretty middle course. Some people say you should lock up any person who commits one of these offenses and throw away the key. Kansas has said, no, we’re going to–we’re going to evaluate them at the end of their sentence and if they have this mental abnormality and they’re likely to re-offend and you’ve got to prove that before a jury beyond a reasonable doubt, in that instance, we’re going to place this person in a mental institution.

JIM LEHRER: So you think Kansas is doing it the right way?

ROGER CONNER: They’re doing the least that we can do to protect our children. It’s as simple as this. If you have schizophrenia and you’re going to molest children because of it, there’s no question that you can be civilly committed. If you have pedophilia and because of it you’re going to rape small children, we should also we be able to civilly commit you.

JIM LEHRER: All right. Dr. Phillips, a lot of this centers on your profession and professional opinions of the psychiatric profession. All right. What is the difference, first of all–the discussion here is between mental illness and mental abnormality. Explain the difference.

DR. ROBERT PHILLIPS, American Psychiatric Association: The difference is that we have a fruit basket, and people can’t keep the apples separate from the oranges. First and foremost, I think if this is a kinder and gentler solution, it certainly isn’t kinder of gentler to the Constitution, and it most certainly isn’t kinder or gentler to those people who truly suffer from mental illness and are being lumped in with individuals who clearly do not suffer from a mental illness. Your point about someone who suffers from schizophrenia is a good one, but the law has a strong and very tried history of dealing with these individuals. In fact, many of these individuals–and I would point out they are infinitesimally small–if they have committed a sexual predatory–

JIM LEHRER: You’re talking about the people who cannot be cured.

DR. ROBERT PHILLIPS: People who actually suffer from mental illness–

JIM LEHRER: I see.

DR. ROBERT PHILLIPS: –who may commit a predatory offense–more often than not are not tried, or are not handled in traditional ways. They are through criminal proceedings found "not guilty" by reason of insanity, appropriately placed in a psychiatric facility for treatment, and at the point in time where their illness has been successfully treated, if, in fact, it was a mental illness that caused the predatory behavior, they’re ultimately reintegrated into society. The problem with the instant case in Kansas is that everyone recognizes that this person is not mentally ill. He does not suffer from a mental illness. Secondly–

JIM LEHRER: Explain that–if this person is a pedophile and cannot be cured, why is that not a mental illness?

DR. ROBERT PHILLIPS: There are a number of abnormal behaviors, and I think the language in this case is that he’s mentally abnormal, there are a number of behaviors which are abnormal that don’t rise to the level of treatable mental illness. We do not– JIM LEHRER: Give us another example.

DR. ROBERT PHILLIPS: How many arsonists are being directed towards psychiatric hospitals for indefinite confinement, how many murderers, how many persons who commit larceny? This is a very inappropriate use of medicine and of psychiatric hospitals to get a second bite of the confinement apple. The law has methodologies for confining individuals. In the instant case, the law chose not to impose a more long-lasting sentence. In fact, in the instant case the individual had three charges, and the state chose to follow up on only two. The use of a psychiatric hospital as a repository for people whose social behaviors are inappropriate and are inappropriate not as a result of mental illness is tantamount to the most egregious abuse of medicine and psychiatry that I can think of.

ROGER CONNER: It’s important to say here that there is a disagreement within the profession. The Menninger Foundation, which actually operates one of the largest psychoanalytic programs in the United States, was an amicus curiae, along with us, on the brief that we filed. There are many people in the profession who believe that through behavior modification individuals who have these impulses can learn to control them. Now other people want to say no, but to say that we’re going to draw a technical distinction here between one kind of mental abnormality and another kind of mental abnormality is not the way to protect the public, because here’s the only choice. The only choice is to say to the legislatures, lock these guys up for good.

DR. ROBERT PHILLIPS: But that is your choice, and we must draw a technical distinction, because the law is about technical distinctions. You cannot cavalierly make clinical behaviors which are purely and inherently criminal. There is a sharp and definable distinction between individuals who suffer from mental illness. If someone suffers from cardiovascular disease, I know exactly what to do to treat that illness. I can place my stethoscope on your chest, and I have about a 68 percent probability of curing that illness.

More importantly, if you suffer from clinical depression, I can provide psychotherapy to you, I can provide anti-depressants and have an 85 percent likelihood of curing you. If you are a pedophile, for which there is no definable treatment, in fact, there is no guarantee that it is a mental illness at all, the solution is not to place this individual in a hospital. Despite the literature that you cite, there are no substantive studies that can be reproduced that show there are clearly defined categories for which we can predict that an illness exists and, most importantly, that there are effective treatments. If there is no illness, there are hardly effective treatments. There are many interventions for abnormal behaviors that are employed. People who smoke heavily, there are behavioral interventi ons that may help their smoking.

JIM LEHRER: You’re just saying don’t lock ‘em up.

DR. ROBERT PHILLIPS: What I’m saying is if you want to lock them up, that’s a public policy decision and you have a system–it’s called the criminal justice system and the courts–that can make that determination. But a hospital is not a place to put individuals who don’t suffer from illness.

JIM LEHRER: Mr. Conner, you’re not concerned about that, putting–that if you do it for sexual predators, then somebody’s going to come along and say, let’s do it for armed robbery, let’s do it for people who might kill people, you go through the whole thing, you lock people up on kind of a prevention way?

ROGER CONNER: And we want to avoid that. And that’s why Kansas has, we think, carved a notch in a slippery slope, if you will, because what they’ve said is we’re limiting this to a group of people that have a defined mental abnormality. Now, we would say mentally ill. And what they’re going to do is this–

JIM LEHRER: Because you believe that a pedophile is mentally ill.

ROGER CONNER: No, not that I. What we’re saying, the Constitution permits the states to describe and determine under what conditions a mental abnormality leads you to be civilly committed. The American Psychiatric Association cannot assert the constitutional power to determine what’s a civilly committable–

DR. ROBERT PHILLIPS: The state of Kansas–

ROGER CONNER: –mentally–mental abnormality–

DR. ROBERT PHILLIPS: The state of Kansas–

ROGER CONNER: –the legislature–the legislature is the only one and has the power to do that. We think this is a constitutionally permissible choice by Kansas because there’s a reasonable basis. The fact that we relied on some psychiatrists and psychologists he doesn’t disagree with doesn’t mean they don’t have the power to act.

JIM LEHRER: Dr. Phillips, let me ask you a more practical question, a non-professional question, which is simply: What then does society do to–for a person like Hendricks, who has said he’s going to continue to molest children, and the only way you’re going to stop me is to put me behind something?

DR. ROBERT PHILLIPS: There are 1.1 million individuals incarcerated in this country, about 10 percent of them incarcerated for sexual offenses. You think the state of Kansas has carved a niche in this–on a slippery slope. I would submit to you that they have thrust a grappling hook into the side of a mountain, and the deeper that grappling hook goes, you’re going to be pulling into tow not only individuals, who don’t suffer from mental illness vis-a-vis the predatory offenses but anyone from whom society finds intolerance a place to put them–an inappropriate place–hospitals–

ROGER CONNER: They believe in seven in seven years–the notion–

JIM LEHRER: Seven what? In Kansas?

ROGER CONNER: Seven individuals in Kansas in seven years have been committed under this statute.

JIM LEHRER: Stuart, was this an element in the argument today, the slippery slope that if you do it for sexual predators then who’s going to–what is going to be the next group, et cetera, et cetera?

STUART TAYLOR: Very much so. Justice Breyer, Justice Scalia, among others, said what about armed robbers, where do you draw the line, and the defense lawyer very much was making a slippery slope argument that once you say–you can call someone a sexual predator and lock them up forever.

JIM LEHRER: How did the Kansas attorney general answer that?

STUART TAYLOR: She answered it along the lines of well, we have got a carefully defined category of people who have a recognized mental abnormality. Now, I’m not sure it would be recognized by all psychiatrists, but apparently it would be recognized by some. I might add one irony of the argument today and one sign of the difficulty of the case is the people who want to let ‘em out, let Mr. Hendricks out, are the ones who are saying, he’s not curable, he’ll be dangerous forever. People who want him locked up are the ones who are saying, oh, no, maybe we can treat him. You figure it out.

JIM LEHRER: I can’t. I can’t. How many states have laws similar to Kansas, or is Kansas the only one with this law?

DR. ROBERT PHILLIPS: There are a handful of states who have these laws, but, again, I think the critical issue here is that we all agree that people who pose a danger because of their behavior should and are of great concern to society, in particular, of concern to children, who are most vulnerable. We have appropriate places for sequestration for people who commit criminal offenses. They are jails and prisons. Psychiatric hospitals should not be the repository for society’s unwanted.

JIM LEHRER: All right. We’ll leave it there. Thank you all three very much.

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