Sexual-predator laws attacked by lawyers, courts.

Proponents of sexual-predator laws--which allow courts to civilly commit repeat sex offenders to mental health facilities after they heave served their prison time--argue that the laws protect the public. But critics counter they unconstitutionally punish of fenders a second time. Judges in California and Washington are ruling on both sides.

California's sexual-predator law received a boost in February when a trial judge rejected the first challenge to the legislation, ruling the law properly allowed the state to civilly commit a serial rapist once his prison term was over. (People v. Hurbbart, No. 140294, Santa Clara Cty. Super. Ct. (Feb. 9, 1996).)

The law, Which took effect January 1, applies only to people who have been convicted of sexually violent crimes against two or more victims and have served their prison terms. Under the law, offenders are evaluated by the state for mental illness before they are released from prison. Some are referred to civil juries, who hold hearings to determine whether civil commitment to a mental health facility for treatment is warranted. Those confined are reevaluated every two years.

The law was challenged by Christopher Hubbart, Who has a long history of sexual assault. He served his latest sentence for attacking a jogger in 1990 while he was on parole. (Judge Upholds California's Sexual Predator Law, Legal Intelligencer, Feb. 13, 1996, at 4.)

Prison psychiatric records indicate Hubbart may attack again because he suffers from both mental and psychological disorders. Doctors say he confessed to attacking some 30 women in the past 24 years, despite 21 years of incarceration that included psychiatric treatment. Although he was scheduled to be released in January, he remains in prison at press time.

At an evidentiary hearing March 26, Superior Court Judge Robert Foley found probable cause to conduct a civil commitment trial for Hubbart. It is scheduled for May 14. (Jennefer Pittman, In First Test, Judge Upholds New Sexual-Predator Statute, L.A. Daily J., Feb. 13, 1996, at 4.)

Hubbart's lawyers, Arnold Erickson and Rowan Klein, argued that the new law violates Hubbart's constitutional guarantees of due process and protection against double jeopardy.

"The law punishes a person twice for the same offense," said Frickson, a lawyer with the Prison Law Office in San Quentin, California.

"California has debated for many years whether sex offenders should be subject to treatment or imprisonment. The new law allows the state to have it both ways --offenders serve their prison time, then are confined for the avowed purpose of treatment. "

A Compelling Case

Foley said the state had a compelling interest in incarcerating Hubbart and added that "while the law may have the effect of incidentally restraining Mr. Hubbart's interest in liberty, that fact alone does not convert the law in a criminal or penal statute, retroactively inflicting punishment. The statute, being civil in purpose and effect, does not offend the expost facto clauses."

Erickson said he was not surprised that Foley found probable cause to commit Hubbart. In March, Erickson and Klein tried to stay the proceeding on constitutional grounds, but an appellate court denied their request. On review, the state supreme court asked the attorney general's office for a response to the petition. The state's response to the request was due in early April.

Deputy Attorney General Bruce Slavin said his office "will oppose any attempt to strike down the law."

California's law was modeled after a similar statute in Washington state, which was struck down by the federal district court in 1995 on ex post facto, double jeopardy, and due process grounds. In early March, the case was heard by a three-judge Ninth Circuit Court of Appeals panel, which has not yet issued a ruling. (Young v. Weston, 898 F. Supp. 744 (W.D. Wash. 1995).)

The case was brought on behalf of convicted sexual offender Andre Brigham Young. Young finished serving a prison sentence for six Puget Sound-area rapes more than five years ago but has been held in a civil commitment center ever since. (Elaine Porterfield, State Fights for Sex Predator Law in Court, News Tribune (Tacoma, WA), Mar.8, 1996, at B1.)