Court must decide legality of state's sex offender law
Monday, April 24, 2000
By Betsy Calvert

For three years, Robin Rancourt had sex with a girl younger than 16. He was convicted of rape and later served five years in prison.

Within days of his release in February, however, the state was trying to lock him up again. Prosecutors say the 34-year-old from Athol should be barred from public contact indefinitely because he has a "mental abnormality" that makes him likely to rape again.

Rancourt is one of at least 46 convicted sex offenders released during the past four months whom Massachusetts prosecutors say should remain institutionalized as sexually dangerous.

All but one are men.

All of the cases are pending, however, because the new statute under which they fall has been challenged as unconstitutional.

A new sex offender law was enacted in September in response to what prosecutors say is the public's demand for protection from sexual predators and their tendency to repeat their crimes.

"There was a recognition on the part of the governor that there should be a process to keep the public safe from these sex offenders," said Charles McDonald, a spokesman for Gov. A. Paul Cellucci's Executive Office of Public Safety.

Cellucci and several legislators pushed for the law. Massachusetts is one of several states that has revised its civil commitment laws for criminal sex offenders in recent years, Stanley Goldman, mental health unit coordinator for the Committee for Public Council Services in Boston, said. A state agency, CPCS provides public defenders for the indigent. Attorneys for the agency will be among a group of lawyers who will argue against the new law before the state's Supreme Judicial Court.

The inspiration for the new statutes, Goldman said, is a similar "sexually dangerous person" law enacted in Kansas that survived a 1997 constitutional challenge in the U.S. Supreme Court. State officials acknowledge that the Massachusetts statute law closely follows the Kansas law.

It allows an open-ended civil commitment of "one day to life" for sex offenders who prove to have mental defects.

In Western Massachusetts, the state is trying to commit six people under the law, including two in Franklin County and four in Hampden County. Rancourt and the lone female, Cynthia Waters of Greenfield, who served 10 years on charges that included rape of an infant, are free while the courts sort out the issues of constitutionality.

In Hampden County, however, a judge recently committed sex offender Shawn Kennedy for 60 days to the state's Treatment Center for the Sexually Dangerous in Bridgewater.

Kennedy, 55, formerly of 62 Westfield St. in West Springfield, just finished an eight-year sentence for attempting to rape a teen-age boy in his photography studio. He will be assessed in the center and the judge will determine during a future hearing whether he should be committed indefinitely. Kennedy and others like him may be off the hook, however, if defense lawyers succeed in upcoming arguments before the SJC. The first cases will be heard next month. Defense attorneys will argue that the new statute violates an individual's constitutional right not to be tried twice for the same crime.

The constitution also prohibits the state from convicting a person for an act that was not deemed a crime at the time it was committed, which is a key issue, Goldman said. As with Kennedy and Rancourt, all of the sex offenders facing civil commitment proceedings were convicted before the new law was enacted.

Goldman said he believes the new statute is worse than its predecessor — a law dating back to 1954. That version was largely dismantled by the state Legislature in 1990.

Today, 169 men who were committed under the old law remain confined in Bridgewater. The number has declined from 274 in 1990 because several have either died or been released.

"The old law was repealed because people realized it was such an unfair process," Goldman said.

First Assistant District Attorney David Angier of the Northwestern District Attorney's office said the old law was abandoned because it created a loop hole that allowed sex offenders to be released from treatment before they finished their criminal sentences. The new law prevents this, he said.

There was also concern that the previous statute allowed the premature release of dangerous criminals, including two notorious rapists, Ronald Leftwich and Michael Kelley.

Leftwich and Kelley gained notoriety for committing murder after being released from treatment in Bridgewater. Kelley was convicted of the 1991 murders of two women in Plymouth. Leftwich is serving a life sentence for the 1996 murder of Bishop Martin-Henri, leader of the Bethany Charismatic Catholic Church in Brimfield.

Kelley had spent 11 years in Bridgewater when he was released in 1991. The experts who said Kelley was no longer dangerous, as well as the center's entire treatment program, came under fire after he raped and murdered the women the following year. Kelley shocked his own lawyers in 1994 when he admitted guilt to the crimes before a judge, and later suggested he felt himself unprepared to live on the outside.

Leftwich was in jail serving an 18-year sentence for raping and torturing a 62-year-old Nantucket woman in 1977 when he met Martin-Henri, who ministered to people who had trouble with the law.

As soon as he was released from jail, Leftwich moved into Martin-Henri's Brothers of Bethany monastery. Henri was found beaten and stabbed to death in December 1996.

John Widdison, a spokesman for the state Department of Mental Health said that following the murders by Kelley, the state moved management of the Treatment Center for the Sexually Dangerous in Bridgewater from DMH to the state Department of Correction. Opponents of the law may use this switch to argue that the new law constitutes punishment rather than treatment — a key legal point, Goldman said.

Working in favor of prosecutors, however, is a 1997 ruling by the U.S. Supreme Court. In a 5-4 decision, the court ruled that Kansas' civil commitment law did not violate the constitutional rights of convicted rapist Leroy Hendricks. Hendricks had an admitted history of fondling young boys dating back to 1955. He was sentenced in 1984 and was due for release in 1994 when Kansas prosecutors went after him with the new civil commitment law.

The majority opinion of the nation's high court concluded that commitment was not punishment because it can be seen as treatment.

Susan Prosnitz, general counsel for the Office of Public Safety, said Massachusetts prosecutors will use this as one argument before the SJC.

"This law does not punish past crime," she said. "It protects the public from presently determined sexually dangerous persons."

For their part, defense attorneys will be betting on the tendency of the state courts to interpret constitutional issues more narrowly than the current federal court, Goldman said.

In addition to issues of constitutionality, defense lawyers believe the state is in some cases applying the new law indiscriminately.

Going after convicts in the final days of their sentence can give the impression that the state is persecuting people after they have served their time, Angier acknowledged. What the state is really trying to do, he said, is protect its citizens from incurable sexual deviants.

"It's perfectly reasonable for the community to protect itself from someone who has a mental illness and is a sexual predator," he said.

Goldman and other defense lawyers believe that some district attorneys' offices are going after every convicted sex offender about to be released.

Andrew Klyman of the Committee for Public Counsel Services in Springfield said he believes Hampden County District Attorney William Bennett is taking this approach. The state is pursing four men in the county, Klyman said, two of whom were not committed of violent crimes.

"That's the impression that people get, that they're monsters out there raping four and five women," Klyman said.

Bennett did not return several calls seeking comment.

Angier disagreed that the state is pursuing convicts indiscriminately.

"I think we're very selective," he said.

The SJC will hear the first of the cases, two from Middlesex County May 2.