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Fight over treatment for sex offenders

Courts probe whether forced treatment is form of double jeopardy or safer for society.

By Kris AxtmanStaff writer of The Christian Science Monitor / June 15, 2000

It's one of the most sensitive questions communities confront today: What should be done, if anything, when a sex offender is released from prison?

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Increasingly, a growing number of states have been committing the offenders to treatment centers once their time behind bars is up.

The argument is that the criminals get much-needed help, while communities are protected for an extended period of time. But many civil libertarians and defense lawyers argue that the practice amounts to a form of double punishment.

Now a case is waiting to be heard by the US Supreme Court that may go a long way to settling the fundamental question of whether sex offenders represent a special kind of criminal who needs treatment.

The decision will have significant ramifications for more than a dozen states that have enacted civil-commitment statutes, each in various stages of court battle.

The case revolves around Andre Brigham Young, a convicted rapist who was transferred to a civil treatment center in Washington State after serving his criminal sentence. He claims the treatment center is not doing enough to help him get well - and thus amounts to another form of incarceration. As a result, he claims he's being punished twice.

The Supreme Court has already ruled on the general issue of double jeopardy in such cases. Three years ago, in a Kansas dispute, the justices found that the act of committing a sex offender to a treatment center after serving prison time doesn't, by itself, constitute double jeopardy. The reason is that one is a criminal act and the other a civil one.

The new case hinges on the narrower question of what kind of treatment the offenders are receiving. This is a far trickier legal area. Psychiatrists disagree on which treatment works and who can be treated, leaving states to figure out the complexities.

Massachusetts case

In Massachusetts, for instance, a decision is expected any day by the Supreme Judicial Court on whether the state can continue holding sex offenders who have completed their criminal sentences. Its civil-commitment statute was enacted last fall, and since then 75 people have been transferred to a mental-health facility run by the Department of Corrections. Until the court settles the issue, they are not receiving any treatment.

But opponents say treatment is not the state's true intent anyway, rather public safety is. "It's hard to say with a straight face that what's really going on here is anything but punishment," says Stan Goldman, a lawyer with the Committee for Public Council Services in Boston. "We have to wait until someone's sentence is almost up until any thought of treatment is given."

While Washington State was the first to pass a civil-commitment statute in 1990, the debate over what to do with sex offenders is hardly new. Early this century, many states adopted legislation that ordered "sexual psychopaths," as they were called then, to mental hospitals instead of prisons. But those laws were either appealed or fell into disuse.