WASHINGTON (AP) _ The Supreme Court said four years ago that states may keep violent sexual offenders locked up beyond their prison terms.
Now the court is weighing how states must go about it.
The court heard arguments Tuesday on whether states must prove that offenders cannot control their behavior in order to confine them indefinitely as sexual predators. Justices are again reviewing a Kansas law that provided the basis for the court's 1997 ruling.
How they rule could affect more than 1,200 confined sex offenders in 18 states with laws resembling the Kansas statute, which became law in 1994 after a convicted rapist was released from prison and killed a college student named Stephanie Schmidt.
The law allows the indefinite confinement of violent sex offenders beyond their prison terms if they suffer from mental abnormalities or personality disorders making them likely to commit similar crimes in the future.
The case involves Michael T. Crane, who went to prison in 1994 for sexually assaulting a video store clerk and exposing himself to a tanning salon attendant in a suburb of Kansas City, Kan. When Crane was about to be paroled in 1998, prosecutors went to court to have him committed to a state hospital.
The jury agreed to have him committed, following narrow guidelines issued by the judge. He is now on conditional release after having completed the state's treatment program.
The Kansas Supreme Court ordered a new trial for Crane last year, saying the jury that found Crane was likely to commit another similar crime should also have found him unable to control his behavior.
When the U.S. Supreme Court upheld the law in 1997, the offender's ability to control his behavior was not in dispute. In that case, child molester Leroy Hendricks had admitted he ``can't control the urge.''
Kansas Attorney General Carla Stovall argued Tuesday that such a requirement is too broad, because almost all sexual offenders possess at least some control over their actions. The ``cannot control'' requirement could spare even mass murderers from civil confinement, said Stovall, who also argued the 1997 case.
``Ted Bundy is the best example of that; these are really serious individuals,'' Stovall said, using the notorious serial killer as an example of someone with mental problems who exercised a degree of control over his actions.
Stovall said after arguing the case that requiring states to demonstrate an utter lack of control would be ``a brand-new constitutional standard'' affecting not only sex offenders but also mentally ill patients committed for treatment.
In an unusual twist, Crane's attorney, John Donham, agreed that the ``cannot control'' standard applied by the Kansas Supreme Court is too broad. But he said it should be applied in his client's case, because Crane's original attempt to use an insanity defense was rebuffed.
``For Mr. Crane, it was dead on, but to apply it to the larger group of people who could have additional problems is too limiting,'' Donham said after arguing the case.
Donham asked the justices to find some middle ground. Some of the medical terms involved are ``pretty slippery,'' Donham said, and ``this court can set a benchmark.''
At Crane's trial to determine whether he should be hospitalized, the judge denied his request to require the jury to decide whether Crane was unable to control his behavior. Jurors were told only to decide whether Crane suffered from a personality disorder that made him likely to commit another such act. The Kansas Supreme Court ruled the judge should have ordered the additional jury instruction.
Justices on Tuesday pressed the attorneys to say specifically how far the court should go in setting a standard for the proof states must offer.
Justice Sandra Day O'Connor pointed out the state's own witnesses in the Crane case had testified that three-quarters of the prison population has anti-social personality disorders. Applying that standard would mean all of them could be confined to a hospital once their criminal sentences were finished.
Justice David Souter asked: ``Is there some extra element beyond the mere probability of doing an act which society has called dangerous?''
Justice Anthony M. Kennedy was considered the swing vote in that case, and how he votes in the Crane case will be key to whether sexual predator laws are interpreted more narrowly.
In the earlier ruling, Kennedy offered a concurring opinion but warned the civil system should not be substituted ``simply to impose punishment after the state makes an improvident plea bargain on the criminal side.''
The court heard arguments in a borrowed courtroom for a second day Tuesday because of anthrax contamination at the Supreme Court building. Chief Justice William Rehnquist said the court also will be displaced Wednesday.
The case is Kansas v. Crane, 00-957.