Metropolitan News-Enterprise


Thursday, July 10, 2008


Page 3


Supreme Court to Determine Constitutionality of ‘Jessica’s Law’


By a MetNews Staff Writer


The California Supreme Court agreed yesterday to decide whether a popular law that allows sexually violent predators to be confined indefinitely is constitutional.

At their weekly conference in San Francisco, the justices voted 5-2, with Justices Ming Chin and Marvin Baxter in the minority, to grant the defendant’s petition for review in People v. Mckee,160 Cal.App.4th 1517. The Fourth District Court of Appeal’s Div. One ruled March 20 that the statute does not violate the Due Process, Equal Protection, or Ex Post Facto clauses.

Affirming the decision of San Diego Superior Court Judge Peter L. Gallagher, Div. One upheld the constitutionality of “Jessica’s Law,” enacted by an overwhelming majority of the voters as Proposition 83. The 2006 measure provides in part that an individual committed under the Sexually Violent Predator Act will remain in custody until he can prove that he no longer suffers from a mental illness that predisposes him to commit sex crimes.

Under prior law, a sexually violent predator who had completed his sentence could only be recommitted for two years at a time.

The defendant in the case considered by the justices yesterday, Richard McKee, was involuntarily committed to the custody of the State Department of Mental Health for an indeterminate term in March 2007.

Jessica’s Law is named after Jessica Lunsford, a 9-year old Florida girl who was raped and murdered in February 2005 by John Couey, a previously convicted sex offender. In addition to providing for indefinite commitments, it changed the definition of a sexually violent predator by permitting an offender to be so designated on the basis of a single conviction of a violent sex crime.

Proposition 83 did not change the requirement that the prerequisites for commitment be  proved at trial beyond a reasonable doubt, or the act’s requirement that the offender bear the burden of proving by a preponderance of the evidence that he is entitled to conditional release for one year and subsequent unconditional discharge after that one-year conditional release.

McKee claimed the act’s release provisions were inadequate to ensure that only those persons with a current mental illness that makes them dangerous to the public continue to be confined.

Citing Jones v. United States (1983) 463 U.S. 354, which held that the application of a standard of proof by a preponderance of the evidence did not violate the due process at an initial hearing regarding the civil commitment of a person previously found not guilty of committing a criminal offense by reason of insanity, the court concluded that an SVP’s initial indefinite civil commitment pursuant to the amended act did not violate due process because McKee’s mental illness and dangerousness were proved beyond a reasonable doubt, an even higher standard of proof.

The court also did not find any due process issue with the potential length of an indefinite civil commitment, noting that the inmate could still petition for review or release based on an alleged change in his status.

Also, because the act provides measure for the release of committed persons, the indeterminate term does not indicate that the amended act is now punitive, Justice Alex McDonald reasoned, because the term’s duration “is linked not to punishment, but to its stated purpose of treating the committed person and protecting the public.”

Pursuant to the California Supreme Court’s opinion in Hubbart v. Superior Court (1999) 19 Cal.4th 1138, which rejected the ex post facto challenge to the pre-Proposition 83 version of the act, the court concluded that the act, as amended, did not implicate any ex port facto concerns either.

The court also held that the amended act did not violate equal protection because it treats mentally disordered defendants civilly committed under Penal Code Sec. 2960 and persons found not guilty by reason of insanity and civilly committed under Penal Code Sec. 1026.


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