Chapter 102

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VOLUME 7 - CHAPTER 102

102.4.1 Sexually Violent Predator (SVP): Constitutional Challenge

PRACTICE NOTE: The Kansas Supreme Court held the sexual predator statute of that state unconstitutional in In re Care and Treatment of Hendricks (KS 1996) 912 P2d 129, 253-61. However, Kansas v. Hendricks (1997) 521 US 346, 356-70 [117 SCt 2072; 138 LEd2d 501] held that the Kansas sexual predator statute does not violate the federal constitution. The court held that the Kansas statute satisfies substantive due process requirements because it unambiguously requires a precommitment finding of dangerousness either to oneself or to others and links that finding to a determination that the person suffers from a "mental abnormality" or "personality disorder." The court further held that the statute does not violate double jeopardy or ex post facto principles.

In Hubbart v. Superior Court (CA 1999) 19 C4th 1138, 1155-64 [81 CR2d 492] the California Supreme Court relied on the United States Supreme Court's decision in Hendricks to hold that the California SVP statutes do not violate due process. Hubbart also held that the statutes do not violate equal protection or ex post facto principles. (See also State v. Ehrlich (In re Leon G.) (AZ 2002) 59 P3d 779 [Arizona statute providing for commitment of "sexually violent predators" (Ariz. Rev. Stat. §§ 36-3701-117) satisfies demands of 14th Amendment’s Due Process Clause as interpreted in Kansas v. Hendricks].)

However, in the state of Washington, a statute similar to California's was held unconstitutional by the federal district court in Young v. Weston (WA 1995) 898 FSupp 744, 751. The Ninth Circuit has ordered an evidentiary hearing to determine whether conditions of confinement at state mental institutions render the sexual predator statute punitive. (Young v. Weston (9th Cir. 1999) 176 F3d 1196, 1201.)

RESEARCH NOTES:

California's Sexual Predator Law by John Vacca. CACJ Forum, Vol. 23, No. (1996).

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102.4.2 Sexually Violent Predator (SVP): Requirement Of Present Dangerousness

PRACTICE NOTE: The California Supreme Court has held the Sexually Violent Predator statutes to be constitutional in Hubbart v. Superior Court (CA 1999) 19 C4th 1138, 1155-64 [81 CR2d 492]. In so doing the Court made it clear that the trier of fact must find that the defendant "is dangerous at the time of commitment." (Hubbart, 19 C4th 1162, 1166, 1169.)

RESEARCH NOTES:

California's Sexual Predator Law by John Vacca. CACJ Forum, Vol. 23, No. (1996).

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102.4.3 Sexually Violent Predator (SVP): Overt Act Requirement

PRACTICE NOTE: Washington’s SVP statute provides that, when a person sought to be committed in an SVP proceeding is not currently confined, the state must prove an overt act which causes, or creates a reasonable apprehension of, harm of a sexual nature. (In re Albrecht (WA 2002) 51 P3d 73 [offender who had served sentence, but who had been reconfined at time that SVP petition was filed, had due process right to have state prove an overt act].)

In re Broten (Wash. Ct. App. 2003) 62 P3d 514 held that the Albrecht overt act requirement applies to offenders who are still on parole while they are in the community.

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102.4.4 Sexually Violent Predator (SVP): Successive SVP Proceedings

PRACTICE NOTE: In California, a prior jury determination that an offender is not a sexually violent predator subject to civil commitment under California’s SVP Act does not necessarily bar the state from instituting another SVP Act proceeding after the offender has been released from prison, then returned to custody for a parole violation. However, the jury’s findings remain relevant and the prosecution must present evidence of changed circumstances. (See Turner v. Superior Court (CA 1/30/03) 105 CA4th 1046 [130 CR2d 300].)

RESEARCH NOTES:

California's Sexual Predator Law by John Vacca. CACJ Forum, Vol. 23, No. (1996).