Court confronts issue of treatment for sex offenders

It takes up a controversial Washington State law that keeps sexual predators locked up after time served.

Andre Brigham Young was one day away from being released from prison after serving his full five-year term for a rape conviction.

But instead of preparing to live once again in freedom, he was transported against his will to a different institution where, in theory, he might spend the rest of his life behind bars.

Lawyers for Mr. Young say he has paid his debt to society and should be released.

But lawyers for the state of Washington counter that Young, a six-time convicted rapist, is a "violent sexual predator" who is likely to rape again. They say he must remain locked up in a secure treatment facility to protect the community as long as he remains dangerous.

That was ten years ago.

On Tuesday, Young's case goes to the US Supreme Court where justices will examine the Washington State civil law that empowers the state to hold Young indefinitely.

At issue is whether Young's treatment under the civil law violates constitutional safeguards against double jeopardy, ex post facto, and due process by imposing extra punishment above and beyond the criminal sentence he has already served.

What to do about serial sexual offenders is an issue that resonates across the nation where parents and others are using Megan's Law to try to discover if convicted pedophiles and rapists have moved into their neighborhood.

Sixteen states, including Washington, are going a step further by seeking to use civil laws to keep repeat sex offenders locked up to protect the community while they are being treated and, ideally, cured.

Three years ago, the Supreme Court upheld a sexual predator law in Kansas that was nearly identical to Washington's. The justices found that the statute was aimed at protecting society from dangerous criminals by confining them for treatment of their disorders, rather than a means to impose extra punishment.

In Young's case, his lawyers argue that the way the sexual predator law is carried out in Washington amounts to an unconstitutional extra form of punishment, regardless of any benevolent motives of state lawmakers at the time they passed the law.

"The way this law has been implemented really threatens fundamental concepts of freedom and fairness that everyone takes for granted in America," says Robert Boruchowitz, the Seattle public defender representing Young. The sexual predator law is a "sham" that attempts to use promised treatment programs as cover for what really is an effort to continue to imprison sexual offenders long after they have served their criminal sentences, Mr. Boruchowitz says.

Sarah Sappington, an assistant attorney general in Washington, says the legal standard that the justices must rely on is whether the sexual predator law as written by state lawmakers is intended to mete out extra punishment, not whether the way the law is carried out amounts to punishment.

"Clearly the state cannot punish Mr. Young at this juncture," she says. "The state had an opportunity earlier to punish him. But now he must be incapacitated for the purposes of treatment."

Washington State's sexual-predator program has had a spotty record in providing treatment. This well-documented difficulty raises a tough issue: If release from the program is based on a person being effectively treated, but no effective treatment is offered, then is it fair to conclude that there was never an intention to release the person from state custody?

The civil law that establishes the procedure for Young's detention says in part that those found by a jury to be sexually violent predators shall be committed to the custody of the state social services agency "for control, care, and treatment" in a secure facility.

Young's case is important for the entire country because it may offer guidance about how much treatment is necessary in such programs to avoid running afoul of constitutional safeguards.

Justice Anthony Kennedy touched on the treatment issue in a concurring opinion in 1997 that upheld the Kansas sexual-predator law. "If the object or purpose of the ... law had been to provide treatment but the treatment provisions were adopted as a sham or mere pretext, [this would amount to] an indication of the forbidden purpose to punish," he wrote.

The 1997 case was decided 5 to 4, with Kennedy providing the swing vote. Analysts say he holds the power to determine how the Young case is decided. "The concerns Justice Kennedy expressed have come true in Washington [State]. The treatment is, and has been, a sham," says Boruchowitz. Young has already spent 10 years in civil confinement with no significant treatment, he says.

Ms. Sappington disagrees. She says Young has been offered treatment, but rejected it because his participation might have undermined his claim in his lawsuit that the state offers no treatment. That's not a sham by the state, she says.

"Where you have a statute that on its face requires treatment, and creates an obligation by the state to provide treatment, it cannot be said that the treatment is a mere sham," Sappington says. "If there are problems with implementation [of treatment programs], that is quite different than saying the treatment is a sham."

(c) Copyright 2000. The Christian Science Publishing Society

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