Justices Backing Law on Serial Rapists

Expressing concerns about public safety, members of the California Supreme Court indicated Wednesday that they favor a new legal standard that could prevent the freeing of serial sex offenders who represent a substantial danger.

The court, meeting here for arguments, is considering whether Patrick Ghilotti, 45, a serial rapist who has completed a prison sentence and four years of treatment at a state hospital, can return to society.

The court did not specify what standard it will impose before repeat sex offenders can be released from state hospitals after serving their sentences.

But several justices suggested they will support a requirement that would keep repeat rapists and molesters confined even if the felons have less than a 50% chance of re-offending.

“How about the concern of the public?” Justice Joyce L. Kennard asked a defense lawyer. “Isn’t public safety an important factor?”

Questions by the justices indicated that the court may ask a Marin County judge to determine whether mental health evaluators complied with the new standard when they recommended Ghilotti’s release.

At the same time, the justices appeared sharply critical of the California Department of Mental Health for failing to have taken legal steps earlier to keep Ghilotti confined.

The convicted rapist was set to be released in December after three mental health evaluators found that he did not meet the requirements for continued hospital commitment. But the state high court intervened. The Department of Mental Health contended that Ghilotti remained dangerous, and Gov. Gray Davis and Atty. Gen. Bill Lockyer wanted the state high court to prevent his return to Marin County, where he committed the rapes.

The court, acting on an emergency petition, said it would consider the legal standards mental health evaluators must apply in deciding whether a patient is safe enough to return to the streets.

Under a 1996 state sexually violent predator law, repeat sex offenders can be committed to state hospitals after their prison terms if at least two mental health experts find they have a mental condition that makes them likely to rape or molest again.

The court is using Ghilotti’s case to examine the legal meaning of the term “likely” to re-offend. In passing the sexual predator law, the Legislature did not spell out what it intended by that language.

Prosecutors argue that Ghilotti and other sex offenders should be kept confined if they have a “significant” chance--more than a mere possibility but less than “more likely than not”--of re-offending.

Ghilotti’s lawyers contend that the U.S. Constitution requires courts to release such patients unless they have more than a 50% chance of re-offending.

Justice Marvin L. Baxter scoffed at the defense lawyers’ proposed standard.

“What would ever motivate the legislators to establish a standard to release sexual predators in situations where there is up to a 50% chance they will re-offend?” Baxter asked. “Why would a legislature even consider that?”

Chief Justice Ronald M. George observed that the Legislature could have adopted a “more likely than not” standard, but declined.

Kennard asked attorneys how they would view a standard that said sex offenders with mental problems must be confined if they are a “substantial danger” to society and represent a risk “significantly beyond that of the population at large.”

The prosecution liked the definition; the defense did not.

“The Legislature cannot have intended to pass an unconstitutional law,” said Ronald Boyer, arguing on behalf of the Public Defenders Assn. and the California Attorneys for Criminal Justice. “For every notch the standard of likelihood is lowered, we increase the number of unnecessary commitments.”

“If you set the standard at 50%,” Boyer continued, “that means you are going to lock up one person who is not going to re-offend for every one person who is going to re-offend.”

Baxter bristled. “Of course, the higher the permissible percentage, the greater number of victims who are going to be victimized,” he said. “The percentages play both ways.”

Baxter said he feels concern for the woman who has to live next door to a sexual predator who has been released.

“We’re talking about real people,” the justice said.

Boyer replied that offenders who are confined in Atascadero State Hospital are real people too.

The justices repeatedly grilled the prosecution about why the Department of Mental Health failed during court hearings in Marin County last year to raise strong legal objections to the reports written by Ghilotti’s mental health evaluators.

The state did not even provide Marin County Judge John S. Graham, who was considering Ghilotti’s case, with the reports and did not argue that the experts had failed to meet legal requirements.

Instead, the state insisted that the 1996 predator law allows the director of the Department of Mental Health to petition for an inmate’s confinement, regardless of the findings of evaluators.

The court on Wednesday clearly rejected that contention.

Chief Assistant Atty. Gen. Robert R. Anderson said prosecutors offered to provide Graham with the reports at one point but the judge declined them. Anderson said Graham had erred by refusing to read them.

“What if we take a different view and consider that the trial court did not err,” Baxter said. “If anyone erred, it was the department for failing to raise the issue.”

George noted that the state high court has yet to determine the appropriate legal standard the evaluators should have followed, and both sides disagree with what it should be.

“The trial court did not even know what standard the evaluators were following,” he said.

The court is expected to decide Ghilotti’s case within 90 days.

Ghilotti, in the meantime, will remain at Atascadero. He was convicted of raping four women in Marin County and admitted raping at least six others.