Metropolitan News-Enterprise


Friday, January 29, 2010


Page 1


S.C. Questions Indefinite Commitments for Sexual Predators


By a MetNews Staff Writer


The California Supreme Court yesterday questioned the constitutionality of a provision of “Jessica’s Law” that lets authorities indefinitely confine sexually violent predators.

In a 5-2 decision, the court said the state failed to establish a sufficient justification for treating offenders committed under the Sexually Violent Predator Act more harshly than other criminals civilly committed to state hospitals. The high court sent the matter back to the trial court, where prosecutors can attempt to make the necessary showing.

Prior to the passage of Jessica’s Law, which gained more than 70 percent of the vote as Proposition 83, sexually violent predators—repeat offenders whose prison terms had expired—could be recommitted every two years if prosecutors proved beyond a reasonable doubt that the offender suffered from a mental disorder making it likely he would re-offend.

Jessica’s Law

Under Jessica’s Law, however, the commitment is indefinite, and the burden is on the offender seeking release to show by a preponderance of the evidence that he no longer suffers from such a disorder. This distinguishes Jessica’s Law from other enactments, such as the Mentally Disordered Offender law, which still use the successive-two-year-commitment formula.

The case ruled on yesterday was brought by Richard McKee, who was convicted of lewd acts on two girls ages 11 and 8. After serving his prison sentence, a jury in 2007 found McKee to be a sexually violent predator as defined by Jessica’s Law, and a San Diego Superior Court judge committed him indefinitely to the State Department of Mental Health.

The Fourth District Court of Appeal, Div. One, affirmed that decision in 2008. But Justice Carlos Moreno, writing yesterday for the high court, said the case must go back to the trial court for further proceedings on the equal protection issue.

‘Equal Protection Question’

The justice wrote that “imposing on one group an indefinite commitment and the burden of proving they should not be committed, when the other group is subject to short-term commitment renewable only if the People prove periodically that continuing commitment is justified beyond a reasonable doubt, raises a substantial equal protection question that calls for some justification by the People.”

He elaborated:

“As the United States Supreme Court has made clear, standards and burdens of proof represent societal determinations of who should bear the risk that a court’s or jury’s judgment will be in error....Standards and burdens of proof, like other due process protections afforded both criminal defendants and persons subject to involuntary commitment, also balance the individual’s fundamental liberty interest in not being incarcerated or involuntarily confined with the state’s compelling interest in protecting society from dangerous persons, in punishing criminal behavior in the case of criminal defendants, and in treating mental illness in the case of civil committees.”

He was joined by Chief Justice Ronald M. George and Justices Joyce L. Kennard, Kathryn M. Werdegar and Carol Corrigan.

Justice Ming Chin, joined by Justice Marvin Baxter, dissented. Chin argued that the initiative does not violate equal protection rights because the voters had the right to determine that SVP’s are more dangerous than mentally disordered offenders or persons found not guilty by reason of insanity.

Moreno acknowledged in his opinion for the court that such a distinction could be made, but said the record did not show it.

The high court, on the other hand, unanimously rejected claims that indefinite commitments violate due process, and that the enactment is an ex post facto law as applied to those offenders, such as McKee, whose crimes occurred before Jessica’s Law was enacted.

The case is People v. McKee, 10 S.O.S. 435.


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