Constitutionality of 'Jessica's Law' questioned

1-29-2010 California:

Treating sex predators differently from other violent offenders may violate equal protection guarantees, the California Supreme Court says.

The California Supreme Court ruled 5 to 2 Thursday that a 2006 ballot initiative that permitted the state to lock up sexually violent predators indefinitely may violate constitutional guarantees of equal protection.

The ruling, written by Justice Carlos R. Moreno, did not strike down the measure, Proposition 83, also known as "Jessica's Law."

Instead, the court said a fact-finding hearing must be held to determine whether valid reasons exist for treating sex predators differently from others subject to civil confinement, such as mentally disordered offenders.

Proposition 83 increased penalties for repeat sex offenders, prohibited them from living near schools and parks, and changed the law to permit their indefinite confinement to mental institutions, instead of two years with the possibility of extensions.

Richard McKee, a convicted child molester, challenged his confinement on several constitutional grounds, but the court found that only his equal protection argument had merit.

The majority said the state must provide "some justification" for creating greater obstacles for sex predators to win their freedom than for severely mentally disordered offenders who commit crimes but serve their terms in mental institutions.

Sexual predators must be shown to "bear a substantially greater risk to society, and that therefore imposing on them a greater burden before they can be released from commitment is needed to protect society," Moreno wrote.

The majority said the state can provide its justifications in a hearing before a trial judge.

Justice Ming W. Chin, joined by Justice Marvin R. Baxter, dissented.

"Whether sexually violent predators present a distinct danger warranting unique remedies is for society to determine, not a trial judge," Chin wrote. ..Source.. Maura Dolan