‘Sexual Predator’ Law Faces Test In Federal Court 1990 Law Allows Confinement After Completion Of Sentence If Hearing Finds Likelihood Of More Sex Crimes

A state law that allows some sex offenders to be locked up indefinitely after they have served their criminal sentences is “riddled with constitutional problems,” a federal magistrate was told.

But a state lawyer defended the sexualpredator law as necessary “to protect citizens against future harm.”

The arguments before U.S. Magistrate Judge Philip Sweigert were made Friday in the first federal court challenge to Washington’s 1990 “sexual predator” law. The law allows some sex criminals to be held indefinitely after they get out of prison, if a civil-commitment hearing determines they are likely to commit new sex crimes.

The rapist in the case, Andre Brigham Young, was convicted of six violent rapes since the early 1960s. After completing his last prison term in 1991, the state incarcerated Young under the sexual predator law.

Young appealed to the state Supreme Court, which ruled 6-3 in 1993 that the law is constitutional and “necessary to serve the legitimate and vital purpose of protecting innocent potential victims.”

The dissenting justices wrote that the law “in effect sets up an Orwellian ‘dangerousness court,’ a technique of social control fundamentally incompatible with our system of ordered liberty guaranteed by the Constitution.”

“The law is riddled with constitutional problems,” public defender Robert Boruchowitz told Sweigert.

The law strips people like Young of their due-process rights, and violates the constitutional prohibition against “double jeopardy” by punishing them twice for the same crimes, he said.

It also violates equal-protection guarantees by treating people like Young differently from mentally ill people who are civilly committed, Boruchowitz said.

And it violates constitutional protections against self-incrimination by requiring Young to undergo treatment and “discuss his innermost feelings with an agent of the state” before he can be released.

Assistant Attorney General Sarah Sappington disagreed, saying the law meets the constitutional test for civil commitment, and that “due process does not require the states to provide (predators) with a fresh pool of victims before they can act to protect their citizens.”

Sappington said the state has a right of “collective self-defense.”

But Boruchowitz said the U.S. Supreme Court has ruled officials must find “mental illness” as defined by standard psychiatric methods - not by the law’s vague reference to mental abnormality.

Sappington said courts have upheld “broad definitions of what does or does not constitute mental disorders.” The law also does not constitute double jeopardy, she said, because it is not punishing the offenders, but rather taking dangerous people off the street and providing treatment.