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January 29, 2010

"California court wants proof on confining sex predators"

The title of this post is the headline of this article in the San Diego Union-Tribune discussing this interesting new ruling in People v. McKee from the California Supreme Court concerning the state's sex offender civil commitment statute. Here is the report's account of the decision:

The California Supreme Court ruled Thursday that the state might not be able to indefinitely hold sexually violent predators in jail, as authorized under a 2006 proposition approved by voters.

In a 5-2 decision in a case from San Diego, the court said state prosecutors had to provide more evidence that treating sexually violent predators differently than others who are also held under civil commitment rules — such as mentally disordered offenders — does not violate the equal protection guarantees of the constitution They sent the case back to San Diego for such a hearing.

The majority opinion in McKee gets started this way:

Proposition 83, passed by the voters in November of 2006, modified the terms by which sexually violent predators (SVP's) can be released from civil commitment under the Sexually Violent Predators Act (SVP Act or Act; Welf. & Inst. Code, § 6600 et seq.).  In essence, it changes the commitment from a two-year term, renewable only if the People prove to a jury beyond a reasonable doubt that the individual still meets the definition of an SVP, to an indefinite commitment from which the individual can be released if he proves by a preponderance of the evidence that he no longer is an SVP.

Defendant, who is subject to indeterminate commitment pursuant to Proposition 83, challenges the law on several constitutional grounds: that it violates the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution and that it violates the ex post facto clause, article I, section 10 of the United States Constitution.  Like the Court of Appeal, we conclude that defendant's due process and ex post facto challenges are without merit. As for the equal protection challenge, we conclude that the state has not yet carried its burden of demonstrating why SVP's, but not any other ex-felons subject to civil commitment, such as mentally disordered offenders, are subject to indefinite commitment.  As explained below, we remand to the trial court to permit the People the opportunity to justify the differential treatment in accord with established equal protection principles. (See In re Moye (1978) 22 Cal.3d 457.)

January 29, 2010 at 10:04 AM | Permalink


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I would hope any system that places the burden on the defendant is found unconstitutional. That seems like a no-brainer honestly.

Posted by: Soronel Haetir | Jan 29, 2010 12:43:43 PM

i think it's totaly ILLEGAL on it's face under our law. Sorry you can't say someone is sane enough to have a trial, a conviction, a sentence servered and THEN just before it's done decide they are CRAZY!

if so sounds to me like a major class action lawsuit just waiting for the lawyer with balls enough to take the govt to court.

Since if they were since TILL they went to prison and did a prison sentence it would seem to be logical....THE PRISON SENTENCE IS WHAT MADE THEM CRAZY.!

Posted by: rodsmith3510 | Jan 29, 2010 1:08:46 PM


I don't like involuntary commitment on anything less than a normal finding beyond reasonable doubt but it is part of the reality of government power in the US. So long as that remains true there will be segments of those in authority who will use any means available to give voters what they want. And keeping some sex offenders locked up is wanted by an awful lot of people.

Now, if the courts would just require that civil commitment be to facilities as close as possible to being free I think it would take care of a lot of that desire because the cost would become prohibitive.

Posted by: Soronel Haetir | Jan 29, 2010 1:35:16 PM

Sex offenders have a dramatically higher recidivism rate for their crimes than any other type of violent felon.‟ (See Voters Information Guide, Gen. Elec. (Nov. 7, 2006) text of Prop. 83, p. 127; Historical and Stat. Notes, 47C West‟s Ann. Pen. Code (2008) foll. § 209, p. 52.)”

But these assertions, written into the findings of Proposition 83 by those who drafted the initiative, are not the same as facts, and an allusion to an uncited United States Department of Justice study does not make them so.9

9 Our own research has been unable to locate a relevant 1998 United States Department of Justice study. We have uncovered a 1997 study of sex offenders by the United States Department of Justice, Bureau of Justice Statistics. (Greenfeld, Bur. of Justice Statistics, Sex Offenses and Offenders: An Analysis of Data on Rape and Sexual Assault (Feb. 1997).) It is unclear from an intitial reading of the report whether it supports the factual assertions about recidivism made by the Proposition 83 legislative findings. (See also Langan & Levin, Bur. of Justice Statistics, Recidivism of Prisoners Released in 1994 (2002).)

Busted. A tough law is one thing. A tough law based on a false premise is something else altogether. George Runner, who drafted the initiative, is fudging again.

Jessica's Law dilemma: Homeless sex offenders

The author of Jessica's Law, State Sen. George Runner, says he is open to communities loosening the restriction against sex offenders living within 2,000 feet of a park or school.

"If the city of San Francisco felt like 500 feet was a better number, we certainly don't have any issue with that," said Runner. "Our issue has been pretty simple, we just don't think that a person who has molested a child should live across the street from a school."

Then why not draft the law that way? Of course, the hard to find, or impossible to find because it does not exist, study was support for that section of the law too.

For a good summary of the SVP law in comparison to the MDSO law, including recidivism studies, see the concise THE CALIFORNIA SEXUALLY VIOLENT PREDATOR STATUTE: HISTORY, DESCRIPTION & AREAS FOR IMPROVEMENT. Too many of these cases are tragic beyond comprehension, so hopefully California can find something that really works, but nothing based on false premises ever will.

Posted by: George | Jan 29, 2010 3:14:45 PM

It's better than that, George--sexual offenses are the second LEAST repeated crime, second only to homicide. That is from the DOJ, that compiled criminal offenses at the federal level and in about 35 states.

I've always wondered why no one has called for a robbery, burglary, or arson offender list, given that those crimes have anywhere between 8 and 15 times the recidivism rate of sex offenses. Again, as per the DOJ.

Posted by: Res ipsa | Jan 29, 2010 5:02:50 PM

The importance of this ruling goes beyond the sex offender subject. This is a rare instance in which scientific evidence is a factor. There was Brown v Bd of Ed. and a Mass. utility case. Period. It is a quiet but good sign.

Posted by: Supremacy Claus | Jan 29, 2010 11:09:28 PM

This is not a well written opinion and it hardly merits a remand when the law is patently violative of the Due Process Clause and Equal Protection Clause. Apprendi and Jones have not been addressed. What are the facts constituting the offense as charged in the statute? The Due Process Clause of the 5th Amdt (federal cases) or 14th Amdt (state cases) taken together with the notice and jury trial provisions of the 6th Amdt require that all facts constituting a crime as charged in the statute, charged in the indictment, be proved to a jury beyond a reasonable doubt. It it not a crime to be inclinded to crime. They cannot squiggle away as in the cases prior to Winship nad Gault and say that this is just a civil matter and therefore the criminal jurisprudence is inapplicable. The next thing California voters will enact is a law allowing slavery. If they really want to protect children from abusers they should bar nuns armed with rulers from coming within 500 feet of a school.

Posted by: mpb | Jan 30, 2010 7:20:06 AM

In answer to George above regarding questionable assertions presented to the voters for California Prop 83, I refer him to some excellent investigative reporting at http://www.sdcitybeat.com/cms/story/detail/sex_offenders/6840/. Worse than questionable. [This is a much more succinct response to George than I sent to you yesterday. If you post anything, this one is better]

Posted by: brunello | Jan 30, 2010 11:25:52 AM

wanna bet sorrel . there is a real mental health law in effect and has been basically forever. but of course it's used INSTEAD of a prison sentence. NOT AFTER. It also puts the burden on the state to prove it.

they didn't need this illegal one. But of course they knew under the REAL LAW they couldnt' possibly get anyone put away.

sorry to say if they are sane enough to have a trial and then a convection and then serve a PRISON sentence and ONLY when it's fixing to end to decide they are CRAZY is ILLEGAL and only someone who's a lawyer or a nazi politician would think otherwise.

Posted by: rodsmith3510 | Feb 1, 2010 1:16:16 AM

You have to understand that it depends who's doing the watching Sometimes we have freedom of speech on here, and then other times when they have the gay liberal thought police in charge we get shut down.What they don't understand is the independent voters see this and they know their could be next.That is why you have things happen like the election in MA.

Posted by: buy generic viagra | Aug 2, 2010 6:16:59 AM

According to the Los Angeles Times, the California Supreme Court ruled that a provision of Jessica's Law to lock up sexually violent predators indefinitely may violate constitutional guarantees of equal protection. Next, a fact finding hearing will examine the issue further.Cohiba Genios Maduro 5

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