New sex predator law faces another round of challenges

Lawyer for convicts says it's oppressive
1-28-2008 New Hampshire:

Defense lawyers renewed their constitutional challenges to the state's new sexual predator law yesterday, this time in an effort to free two convicted child molesters who state officials say are dangerous enough to remain confined - even though they've each served their maximum prison sentence.

"New Hampshire has produced one of the most oppressive laws of this type in the United States," public defender Mark Larsen told a judge in Hillsborough County Superior Court.

The new law, which allows the state to confine dangerous sex offenders beyond their prison sentences for five years of treatment, went into effect more than a year ago. But it remains largely untested in court because the first cases brought were dropped or dismissed before they had gotten very far.

One of those cases involved convicted rapist William DeCato of Pembroke. Larsen raised a series of constitutional challenges in that case in May, but prosecutors dropped their case against DeCato before the judge could rule. DeCato was freed this spring.

Now Larsen and his office are defending the only other men charged so far under the new law.

Thomas Hurley, 48, recently finished two 7½- to 15-year prison sentences for raping a 10-year-old boy in Hillsborough County in 1986. While serving his sentence, Hurley repeatedly requested sex offender treatment and once even asked about castration, according to court records. Prison officials told Hurley they didn't believe he was sincere about completing the sex offender treatment program, the records said.

The other man is William Ploof, 48, who recently finished a 10-year-sentence for sexually assaulting an 11-year-old boy in 1993 and again in 1996 when the boy was 13. According to the state's recent petition to keep Ploof for treatment, Ploof has claimed between 20 and 50 other victims and scored high on a test that estimates a person's potential to reoffend.

Both men remain at the state prison, in the Secure Psychiatric Unit, pending the outcome of their current cases. If Hillsborough County prosecutors convince a judge or jury, which ever the men choose, that they suffer from a mental abnormality and are likely to reoffend, they will be held for up to five years for treatment. If they are considered still dangerous after the first five years, they can be reconfined for another five years.

Yesterday, Larsen said the new law is unconstitutional on several grounds:

• Hurley and Ploof participated in sexual offender or mental health treatment in prison believing their conversations with counselors would always be confidential. The new law, however, allows prosecutors to use those treatment records against Hurley and Ploof even though they could not have never have anticipated that possibility.

"This is a striking and disturbing change under the law in New Hampshire," Larsen said.

• The new law is described as a treatment program but it's really another punishment for past offenses Hurley and Ploof have already answered for, Larsen said. As evidence, Larsen said the five-year commitment period is as long as a felony sentence. There's no promise an offender can get back into court before that five-year period if he is no longer dangerous. Treatment is not explicitly required in the law. And anyone held will be held with inmates at the prison, even though they are no longer an inmate.

"All of these things, individually may not be so much a problem," Larsen said. "But together, they are oppressive and penal."

• The law, Larsen said, is really another way to commit the mentally ill. Offenders must suffer from a mental abnormality and remain dangerous, but the term "mentally ill" is not sufficiently defined, he said. There are already laws to commit the mentally ill that are more humane, Larsen said.

Michael Valentine, a Hillsborough County prosecutor who is handling Hurley's case, disputed each of Larsen's points yesterday.

• He said New Hampshire's civil commitment law is not excessively worse than those in other states. It falls in the middle, he said.

• The five-year commitment is not unreasonably long, he said. The state's other civil commitment law for those not convicted of sexually violent offenses also carries a five-year term. Although there is a different process for reviewing the person's mental health.

• The Legislature did not create this law simply as another way to confine the mentally ill. People are eligible to be held under the sexual predator law only if they suffer a mental abnormality and remain dangerous and likely to reoffend. That distinguishes violent sexual predators from the other mentally ill who are committed after being found insane or for other reasons.

• Valentine said the law is not unfairly retroactive. Hurley and Ploof have served their prison sentences for their past crimes. But because the state believes they remain dangerous today, that is a current and new condition, Valentine said.

Valentine quoted a past United States Supreme Court decision issued following an appeal of another state's sexual offender law.

"The liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be at all times and in all circumstances, wholly free from restraint.

"On any other basis, organized society could not exist with safety to its members. Accordingly, states have in certain narrow circumstances provided for the forcible civil detainment of people who are unable to control their behavior and who thereby pose a danger to the public health and safety."

Judge Gillian Abramson did not immediately rule on Larsen's arguments yesterday. Hurley is tentatively scheduled to stand trial first, in April. ..more.. by ANNMARIE TIMMINS