CRIME : Court Ruling May Jeopardize Laws Against Sex Predators

State legislators in California and elsewhere are scrambling to find new ways to deal with repeat sex offenders after a federal court ruling last week overturned provisions of Washington state’s tough law on sexual predators.

The Washington law, regarded as the strictest in the nation when passed in 1990, was an effort to identify especially violent sexual deviants, including rapists and child molesters, and detain them before they could commit more crimes.

It allowed the state to use civil commitment procedures to lock up certain violent sexual criminals indefinitely in state-run treatment centers, even after they had served their prison sentences.

A U.S. district judge in Seattle struck down the statute, finding that it violated several constitutional guarantees. The fates of the law and 31 detainees in a locked treatment facility inside a state prison remain in doubt.

Now, state officials are weighing their options. State Atty. Gen. Christine Gregoire said the state will appeal to the U.S. 9th Circuit Court of Appeals, or perhaps directly to the U.S. Supreme Court. Washington state courts have upheld the law.

Some observers say that if the ruling is upheld by federal courts, the state Legislature is likely to pass tougher sentencing laws, possibly even a “two strikes, you’re out” law for violent sex offenders that has been proposed by one of the law’s chief architects.

In California, a bill similar to the Washington statute and endorsed by Gov. Pete Wilson is making its way through the state Legislature.

The Washington law enables a county prosecutor to request a civil trial separate from criminal proceedings to determine whether someone convicted or charged with a violent sex crime is “likely to engage in predatory acts of sexual violence” because of “a mental abnormality or personality disorder.”

Under those civil proceedings, a convicted sex offender can be committed to treatment centers housed within state prisons until he convinces another court he is “cured,” even if he has completed his full prison term. In fact, commitment comes only when prison terms are nearing completion.

In overturning the law, U.S. District Judge John C. Coughenour wrote that “the mere presence of antisocial personality, or other personality disorder falling short of mental illness, is constitutionally insufficient to support indefinite confinement” and violates the due process clause of the U.S. Constitution.

Coughenour found that confinement in a locked treatment facility is more punitive than therapeutic and amounts to a second prison sentence for the same offense, violating constitutional protection from double jeopardy.

He said the law also led to incarcerating offenders who had committed crimes before the law was passed, another constitutional violation.

David Boerner, a professor at Seattle University School of Law who helped write the legislation, said that if Coughenour’s decision stands the Legislature would simply enact ever-more severe mandatory sentencing laws to deal with sex offenders.

Boerner said the drafters of the law constantly weighed the merits of confinement for treatment against mandatory sentencing. The law, he said, “is the narrowest solution to the problem.”

The challenge was filed on behalf of Andre Brigham Young, an inmate at the treatment facility housed at a prison in Monroe, Wash. Young, 54, has served prison time for at least three rapes since 1965. He has been held for treatment more than four years.

Public defender Russell V. Leonard, a member of the legal team that represented Young, said the legislation “is so over-broad, so much an attempt to skirt constitutional concerns, that it violates fundamental fairness.”

Leonard derided the notion that the law provided treatment. He said patients at Monroe have no full-time psychologist and no post-release monitoring program.

The California law, authored by Assemblyman James E. Rogan (R-Glendale), would allow no more than two years of detention in a secure treatment facility.