Three years after ruling that states can keep sexually violent predators locked up after their prison term is over, the Supreme Court recently debated on whether some sex offenders still can show they are being held unlawfully.
'My client has been punished for 10 years under a so-called civil commitment statute,' said Robert Boruchowitz, lawyer for a six-time rapist locked up under Washington state's sexual-predator law. 'For all intents and purposes, this is a prison. It looks like, feels like and is a prison.'
Boruchowitz contended the state was not providing treatment required by law, and convicted rapist Andre Brigham Young therefore was being punished unlawfully and should be released.
The state's lawyer, Maureen Hart, argued that the remedy for alleged improper treatment is not to release a sex offender but to 'go to court and require Washington to provide the treatment and care that it has promised.'
The case is a follow-up to the justices' 1997 ruling in a Kansas case that allowed states to keep sexually violent predators locked up even after they have finished serving their prison terms. Such confinement, intended to protect society, is not punitive and therefore does not amount to double punishment for the same crime, the court's 5-4 decision said.
Boruchowitz argued that the conditions can become punitive, and in such cases should be allowed to challenge their confinement.
In Young's case, 'actual implementation of the treatment has turned out to be a sham,' the lawyer said.
A federal appeals court ruled for Young and said he should get a chance to show that the conditions of his confinement amounted to unconstitutional punishment. The Supreme Court is expected to rule by July on whether the decision was correct.
Hart said Young had two other options: a lawsuit in state court accusing the state of violating the law that requires treatment for sex predators, or a federal civil rights lawsuit seeking to improve conditions of his confinement.
Noting those options, Justice Stephen G. Breyer told Boruchowitz, 'You have a perfect remedy. ... So what's the problem with that?'
In fact, a civil rights lawsuit over conditions of Washington state's sexual predator facility has been in the courts for nine years, and in 1999 a federal court held the state in contempt for failing to comply with an order to improve the mental health treatment.
Young was convicted of rape six times dating back to 1962. Just before he completed his prison sentence in 1991 for the last of his convictions, state officials began proceedings that resulted in Young being confined as a sexually violent predator.
Washington's law was the model for the Kansas law upheld by the Supreme Court in 1997. But the 9th U.S. Circuit Court of Appeals ruled last year that Young should have a chance to prove before a federal judge that his confinement is indeed punitive because he is being denied the treatment the state law calls for.