Court Revives Appeal by Sex Offender Held After End of Sentence

A federal appeals court revived an appeal Thursday by a Washington state inmate who was held as a sex predator after serving his rape sentence, and said the confinement may be unconstitutional if he is treated as a prisoner rather than a patient.

The ruling by the U.S. 9th Circuit Court of Appeals applies to any of the circuit’s nine Western states that have sex predator laws. Those laws allow post-sentence confinement of violent sex criminals who are judged mentally ill and dangerous.

The Supreme Court has upheld the laws’ overall constitutionality, saying that extended confinement of inmates for treatment and public protection does not amount to added punishment for a past crime.

But the appeals court said the conditions under which an inmate is being held may show that the confinement is meant for punishment and not treatment, and therefore violates the constitutional ban on punishment after the fact for an earlier crime.

In a 3-0 ruling, the court ordered a federal judge to hold a hearing on the conditions of confinement and the type of treatment provided for Andre Brigham Young, a convicted rapist who was scheduled to be paroled in 1990. He has remained behind bars under Washington’s sex predator law and is now in the Special Commitment Center, part of the state prison complex at McNeil Island.

The ruling “reaffirms the fundamental principle that you cannot lock someone up for mental health treatment if you’re [only] pretending it’s mental health treatment,” said Robert Boruchowitz, director of the Defender Assn. which represents poor defendants in King County.