NE- Neb. high court upholds sex-offender law

3-14-2009 Nebraska:

LINCOLN, Neb. - A Nebraska law that allows the state to commit sex offenders to treatment after their prison sentences have ended has withstood its first constitutional review by the state's highest court.

In an opinion issued Friday, the Nebraska Supreme Court concluded that the law passed in 2006 by the state Legislature does not violate three clauses of both the U.S. and Nebraska constitutions.

The Nebraska court decision affirms a ruling by the Douglas County District Court in the case of a man referred to as "J.R." He was convicted in 2000 of sexually assaulting his girlfriend's daughter over five years, starting when the girl was in second grade. The assaults included sexual intercourse.

Shortly before he was scheduled to be released from prison in 2006, the state used the law passed by the Legislature earlier that same year by asking that the Mental Health Board of the 4th Judicial District deem him a dangerous sex offender.

J.R. had failed to complete a sex-offender treatment program while in prison.

Using an expert's evaluation of J.R., the board concluded that he was at risk of re-offending and committed him to inpatient treatment.

J.R. argued to the high court that three constitutional rights were violated. The first, known as the ex-post facto clause, is a protection against being punished with penalties that did not exist when an offense was committed, or were enhanced after the offense.

The second is the double-jeopardy clause, which prohibits multiple punishments for the same crime.

"We believe the law is generally punishment, or has the effect of becoming punishment, insofar as it only focuses on one group of people _ those that have already completed their prison sentences," said Sean Conway, an assistant Douglas County public defender who represented J.R.

The third alleged violation was of the equal-protection clause, which provides that everyone be treated equally under the law.

In the opinion written by Judge Michael McCormack, the court said that the 2006 law imposes civil, not criminal, measures, so does not violate the ex-post facto clause.

"Although civil commitment ... does impose an affirmative restraint, restricting the freedom of dangerous mentally ill persons is a legitimate governmental purpose that has historically been regarded as non-punitive," McCormack wrote in the opinion. The opinion adds that the focus of the law is treating sex offenders, not punishing them.

And because the law is not punitive, the court concluded that it does not violate the double-jeopardy clause that prohibits multiple punishments for the same offense.

While the court concluded that J.R.'s equal-protection rights were not violated, it left the door open for future challenges because it did not review one of his key claims.

J.R. argued the law violates equal-protection rights by allowing the state to use a lower standard when deciding to commit people under the sex-offender law than is applied under the Nebraska Mental Health Commitment Act.

To be committed under that act, one must be diagnosed with mental illness or substance dependence.

To be committed under the sex-offender law, someone must have been convicted of two or more sex offenses and be considered unable to control criminal behavior. A person must also have one of two diagnoses: Either mental illness or a personality disorder.

Because one can be more easily diagnosed with a personality disorder than mental illness, it is easier to commit someone involuntarily under the sex-offender act than the mental-health act, J.R. argues.

That, he said, is a violation of the equal-protection clause.

But J.R. was committed under the sex-offender law because he was diagnosed with a mental illness _ not a personality disorder _ so he "does not have standing to raise an equal protection argument that does not apply to him," says the court opinion.

"I don't believe that an equal-protection argument is necessarily closed off in the future," Conway said.

The court turned down a separate equal-protection argument that the sex-offender law unfairly allows people to be held in jail while awaiting board hearings, unlike the mental-health act that allows people to be held in hospitals.

"Dangerous sex offenders pose a greater harm to society because of their inability to control their behaviors ... the mentally ill committed under the MHCA on the other hand, do not necessarily cause harm to others with their actions, so statutes that treat them differently don't violate equal protection, the opinion said.

Attorney General Jon Bruning called the court decision "a landmark ruling and a big win for public safety."

Prior to the law, "a sex offender could essentially tell us they were going to reoffend on the way out of prison and we couldn't do anything about it." ..News Source.. by NATE JENKINS