Court ruling undermines sexual predator law

9-6-2010 Washington:

The state Supreme Court’s message Thursday to state lawmakers might as well have been: Try again.

In a 5-4 decision, the high court ruled that legislative efforts to retake the reins of the state’s sexually violent predator law went too far.

That law – which allows the state to involuntarily commit the state’s worst sex offenders after they serve their prison sentences – requires predators vying for release to show that they have “so changed” as to no longer pose a threat to the community.

In 2004, one particularly notorious offender – Andre Brigham Young, a six-time rapist who fought the state’s civil commitment law all the way to the U.S. Supreme Court and lost – argued that he had “so changed” merely by aging.

The Court of Appeals sided with Young, ordering a new commitment trial based on little else than a demographic study of sex offenders leaving Canadian prisons that included seven persons over the age of 60.

The Legislature responded in 2005, unanimously amending the law in an attempt to restore its pre-2004 meaning.

Lawmakers said that before a predator gets a shot at release, he should present evidence of more than advancing age or other demographic factor. The 2005 amendments called for a predator to show proof of a physiological change rendering him unable to commit a sexually violent act or a treatment-induced change in his mental condition.

On Thursday, five state Supreme Court justices declared those amendments an unconstitutional violation of due process, finding them too narrow.

The court’s ruling stemmed from a Pierce County case brought by David McCuistion, a convicted rapist with a history of sex crimes dating back to 1980. McCuistion had requested a trial to consider his release based solely on the word of an out-of-state expert who essentially argued that it would be impossible for anyone to prove an offender has a mental defect that makes him a risk to reoffend.

Justice Susan Owens, writing for the minority, said that in backing McCuistion’s request, the majority itself had gone too far. The court’s decision will greatly expand the ability of predators to argue for their release – even when there is no evidence of a change, demographic or otherwise.

“Under the standard that McCuistion advocates, any expert anywhere could force a new release trial for every (sexually violent predator) every single year by declaring that the defendant never met the commitment definition in the first place,” Owens said.

She predicted that the the costs and administrative burdens that could result from the majority’s holding would be “unacceptably high.”

Owens also cautioned that the court has eliminated a big incentive for offenders to undergo treatment – one of the ways they have won release hearings in the past.

The Legislature should look to repair the damage done – and restore the balance of the state’s civil commitment law – when it reconvenes next year. ..Source.. By Kim Bradford