SAMPLE MEMORANDUM

Den. Welf. & Inst. Code   6600 et seq.

1. Can the Denial Sexually Violent Predator Act be considered civil or punitive in nature?

2. Does the Denial Sexually Violent Predator Act place a person twice in jeopardy for the same offense, thus violating double jeopardy prohibitions?

3. Does the Denial Sexually Violent Predator Act violate the ex post facto prohibition found in the United States Constitution?

Short Answer

1. Although there is some authority claiming that "sexually violent predator" acts are criminal in nature, it is likely, based on precedent, that the court will rule this a civil proceeding.

2. The Denial Act only violates double jeopardy prohibitions if it is found to be criminal in nature.

3. The Denial Act only violates ex post facto prohibitions if it is found to be criminal in nature.
 

              On March 21, 1988, Pervert was convicted of violating Denial Penal Code    264.1 which determines what can legally be construed as rape. Testimony at trial revealed that Paula had helped her husband, Peter Pervert, lure a young woman into their van, where Peter brutally raped her. Paula was given the maximum sentence for this crime: nine years. Peter was found not guilty by reason of insanity, spent approximately two years in a mental hospital, and is now free.
             On January 1, 1996, Denial enacted its Sexually Violent Predator Act. Proceedings under this act were begun against Paula in September 1996, six months before she would have been released from prison. Pursuant to the procedures required by the act, a jury trial was held. Two psychiatrists testified for the state that Paula suffered from a personality disorder which made her overly dependent and compliant to others. She is also mildly mentally retarted. These psychiatrists testified that because Paula remains married to Peter, and because she continues to profess her love for him, she will likely continue to participate in his violent sexual fantasies. Pervert was also evaluated by another pair of psychiatrists who testified for the defense that Paula does not have a personality disorder, and is not likely to constitute a danger to others in the future.
             The jury unanimously found that Paula is a sexually violent predator, and she was committed pursuant to the procedures in the Sexually Violent Predator Act. Because neither personality disorders nor mental retardation can be "cured," the state concedes that it is likely that Paula will remain committed for the rest of her life. She is currently thirty years old.
             Paula has now appealed to the Denial Supreme Court. She claims that Denial's Sexually Violent Predator Act violates her rights under the Due Process Clause, as well as the ex post facto and double jeopardy prohibitions. The state contends that the Sexually Violent Predator Act is civil, rather than punitive in nature, and that therefore Paula's rights were not violated.
 
 

I. Sexually Violent Predator Act

          Although most states for years have had statutes that provide for the commitment of people deemed a danger to themselves or the public in general, recently many states including Kansas, California, and Denial have felt the need for stronger legislation in this area, particularly when dealing with offenders considered sexually dangerous.
         The Denial Sexually Violent Predator Act thus came into being on January 1, 1996. This act, which is found under Denial Welfare & Institution Code   6600 et seq, is aimed at offenders that the state deems to be "sexually violent predators," Den. Welf. & Inst. Code   6600 et seq, that is, a person who has been convicted of a sexually violent crime, has been sentenced to a specified amount of time in a correctional facility. and who has a diagnosed mental disorder that the State feels will lead to future sexually violent acts.
          The basic goals of this act are twofold: to protect the general public from future dangerous actions and to provide the offender with the latest treatment methods. Den. Welf. & Inst. Code   6606(a).
          Despite the increasing popularity of these types of codes amongst many states, important issues have been raised regarding the constitutionality of these types of laws. The case in question, People v. Pervert, brings these questions once again before the judicial eye.

            A. Civil or Punitive Standing of Act

         In this case, defense attorneys for Paula Pervert claim that their clients constitutional rights were violated in that she has been twice convicted for the same crime, thus violating the Double Jeopardy Clause, U.S. Const. amend.V, and the Ex Post Facto Clause, U.S. Const. art. 1,   9, cl. 3. These claims are similar if not identical to other cases that have been heard around the country in recent years. At the heart of all these cases is the question of whether the sexually violent predator acts in general can be considered civil or punitive in nature, that is whether or not the acts seek to provide treatment for the offender and safety for the public or if the acts simply seek to punish the offender further. There is a great deal of precedent available on these particular issues.
             The majority of cases dealing with the issues involved in Pervert have held that involuntary commitment proceedings of this type involving sexually violent predators are civil in nature and not punitive. For example, in  People v. Sansone, 18 Ill. App.3d 315 (1974), the defendant was found to be in need of mental treatment under the Illinois Sexually Dangerous Persons Act and ordered to be committed to a mental hospital. On appeal, the defendant claimed that the civil commitment violated his constitutional rights and placed him twice in jeopardy, in that civil commitment is a preventive detention, thus moving it into the arena of criminal punishment. Sansone, 18 Ill. App. at 325. The court in this case held that although both civil commitment proceedings and criminal proceedings can result in a person being confined for an indefinite period, a person ordered committed under the Illinois Mental Health Code is entitled to treatment for his or her  condition and release pending a psychiatric review. Sansone, 18 Ill. App. at 325. This would indicate that the civil commitment issue is therefore not a criminal issue. "Our Sexually Dangerous Persons Act, Ill. Rev. Stat.   105, is a proceeding which is civil in nature," Sansone, Ill. App. at 326.
              One could also look to the case of State v. Bunich, 626 P.2d 47 (Wash. App. Ct. 1981), for precedent involving the debate between civil and criminal punishments. The defendant was found not guilty of second degree rape, but before the trial began the prosecutor filed a petition requesting that a hearing be held to determine whether or not the defendant was a sexual psychopath. A subsequent hearing found the defendant to be a sexual psychopath and ordered that he continue therapy. Bunich, 626 P.2d at 715. Bunich appealed this decision claiming that he was placed in jeopardy twice for the same offense, once during a criminal prosecution and once during a civil commitment proceeding. The Washington Court of Appeals disagreed, stating that the purpose of civil commitment proceedings for sexual psychopaths is not punitive, thus not criminal in nature. Bunich, 626 P.2d at 718.
                Some courts have approached the same decision regarding civil commitments in a different manner. They have stated that the mere fact that a state has procedures for determining a sexually dangerous or violent person shows legislative recognition for alternatives to criminal punishment. These alternatives include segregation, treatment, and rehabilitation of sexually disordered persons. People v. Feagley, 121 Cal. Rptr. 509 (1975). This statement would support the idea that involuntary commitment  under a sexually violent predator act is a civil procedure. In general, the primary purposes of criminal punishment involve two elements: retribution and deterrence. Kansas v. Hendricks, 259 Kan. 246 (1997). These would obviously be very different from the goals stated above.
               Another fairly recent case dealing with the status of involuntary civil commitment is Allen v. Illinois, 478 U.S. 364 (1986). In this case the petitioner was charged with unlawful restraint and deviate sexual assault in an Illinois Circuit Court, and the prosecution filed a petition to have him declared sexually dangerous under the Illinois Sexually Dangerous Persons Act. The Petitioner underwent two psychiatric evaluations  and testimony from these evaluations was used in the bench trial against the petitioner. Partially based on this testimony the defendant was found to be a sexually dangerous person.
              At this point the Illinois Appellate Court reversed this decision holding that the lower court had improperly relied on testimony in violation of the petitioners' right to avoid self-incrimination. The important aspect of Allen v. Illinois, 478 U.S. 364 (1986), as far as People v. Pervert is concerned, is that the Illinois Supreme Court reversed the Appellate decision. The Supreme Court held that the privilege against self-incrimination was not available in sexually dangerous persons proceedings because these types of proceedings are "essentially civil in nature." Allen, 478 U.S. at 364. The court went on to state that these types of acts are intended to provide treatment  and not punishment, and that just because the Illinois Sexually Dangerous Persons Act has some built in constitutional safeguards, such as a right to a jury trial or counsel, this does not mean that the Act should be considered a criminal action. Allen, 478 U.S. at 368.
             Based on these same ideas, many other courts have also decided in favor of involuntary commitment as a civil procedure. In Commonwealth v. Barboza, 387 Mass. 105 (1979), the defendant was sentenced to one year in the Plymouth House of Corrections for assault with intent to rape. Six months after being placed in  prison the defendant was placed in a correctional institution to determine if he could be considered sexually dangerous. After a hearing the defendant was determined to be sexually dangerous . The defendant appealed this decision. The court in this case said that although a person being committed as sexually violent  has the right to the same safeguards as found in criminal cases, they nonetheless determined this case to be civil in nature. Barboza, 387 Mass. at 109.
             For the defendants in the previous cited cases to establish that their involuntary commitments fell under a criminal heading, they would each have to show clear proof that each procedure was so punitive in effect that they negate the civil aspects intended by each individual state. United States v. Ward, 448 U.S. 242 (1980).
              In the most recent and perhaps best reference for the current case, Kansas v. Hendicks, 259 Kan. 246 (1997), the Supreme Court ruled that the Kansas Sexually Violent Predator Act was civil for many reasons. The court held that the act did not establish criminal proceedings and that nothing in the actual text of the Act created anything other than a plan to commit people deemed by the courts to be sexually violent. On account of this decision the court ruled that involuntary commitment under this Act did not amount to punishment. The Supreme Court has also said that laws of this sort are constitutional only if convicts are detained for serious treatment rather than extended punishment.
              In addition, the Court also found that although there is affirmative restraint involved on the part of the State, "Such restraint of the dangerously mentally ill has been historically regarded  as a legitimate nonpunitive objective." Hendricks 259 Kan. at 13. This idea is backed up by the fact that offenders convicted under this act in Kansas can petition for release and release will be granted if the person is found to no longer be a threat. This is identical to the Denial Act. Den. Welf. & Inst.   6608(a). And as already stated in Allen, 478 U.S. at 368, the court held that the presence of procedural safeguards within the process of commitment under the Kansas Act was not enough to turn the process into a criminal prosecution. Hendricks, 000 U.S. at 13.
             The Supreme Court also found that the Kansas Sexually Violent Predator Act could be considered civil simply because of where it was placed. The Act was placed within the Kansas probate code, instead of within  the Kansas criminal code. Hendricks, 259 Kan. at 25. This is very similar to the Denial Sexually Violent Predator Act which was placed in the Welfare and Institutions Code instead of the Penal Code. Den. Welf. & Inst. Code   6600 et seq.
             Despite an abundance of precedent supporting the Denial Sexually Violent Predator Act, Den. Welf. & Inst. Code   6600 et seq, there is also ample evidence that acts of this nature can also be considered criminal in nature. For example, in the Hendricks case, 259 Kan. at 8, Justice Breyer dissented , claiming that the Act seeks to inflict further punishment upon the defendant and not a process of treatment. Kansas v. Hendricks, 259 Kan. 246, 8 (1997) (Breyer, J., dissenting).
               His reasoning for this idea was based on the fact that Kansas admits that the defendant's condition is treatable and yet the treatment provided is inadequate and even at that was only begun after the defendants' release date from prison. Hendricks, 259 Kan. 246, 8 (1997) (Breyer, J., dissenting). This is very similar to the current case in question, in which Denial admits that the defendant will probably remain committed for the rest of her life because Pervert's mental condition, namely a personality disorder and slight mental retardation, are not curable. In this sense, the defendant is basically being sentenced to further time in custody and the proceeding takes on the feel of a criminal action. Justice Breyer also had issues with the Kansas Act itself, in that like criminal imprisonment, the civil commitment in this case amounts to "secure" confinement. Hendricks, 259 Kan. 246, 371 (1997) (Breyer, J., dissenting).
             In Allen v. Illinois, 478 U.S. 364 (1986), Justice Stevens found that the Illinois "sexually dangerous person" proceeding should be considered a criminal proceeding for several reasons. Allen v. Illinois, 478 U.S. 364 (1986) (Stevens, J., dissenting). First, the procedure can only be triggered by a criminal act. Second, the procedure may only be set in motion with the same burden of proof found in criminal prosecutions. And third, the person can be committed for a longer time than the punishment for the same act in a criminal proceeding. Allen, 478 U.S. 364 (1986) (Stevens, J., dissenting).
             Justice Stevens further states that simply because an act declares a goal of treatment for the offender, this goal is not enough to prevent the proceeding frombeing called a criminal action. Allen, 478 U.S. 364 (1986) (Stevens, J., dissenting).

II. Double Jeopardy Assertion

             A. According to the Fifth Amendment, "Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The important point of the double jeopardy claims in the Pervert case is whether or not the Denial Sexually Violent Predator Act is civil or punitive in nature. Den. Welf. & Inst. Code   6600 et seq. The reason for this is that the Double Jeopardy prohibition only applies to criminal proceedings. Therefore, if the Denial Act is found to be civil, the defense claim of  double jeopardy will have no merit. In Kansas v. Hendricks, 259 U.S. 246 (1997), the Supreme Court held that the Kansas Sexually Violent Predator Act, which is very similar to the Denial Act, did not establish a punitive proceeding and therefore is not criminal in nature. "Our conclusion that the Act is nonpunitive thus removes an essential prerequisite for both Hendricks' double jeopardy and ex post facto claims." Hendricks, 259 Kan. 246, 39 (1997).

III. Ex Post Facto Assertion

         A. The above reasoning can also be said to apply to the defense claim of an ex post facto prohibition violation. The prohibition is stated as "No Bill of Attainder or ex post facto Law shall be passed." U.S. Const. art. 1,   9, cl.3. This prohibition also only applies to penal laws. Thusly, if  once again the Denial Act, Den. Welf. & Inst. Code   6600 et seq, is found to be civil in nature, which based on past precedent it more than likely will, any ex post facto claim will be moot.
              It is true that several superior courts in California have found that California's Sexually Violent Predator Act violates ex post facto prohibitions against added punishment. Among these are the courts of San Diego, Los Angeles, and San Francisco to name a few. This could be an important point in that California Welfare & Institutions Code   6600 et seq, is identical to the Denial Welfare and Institutions Code   6600 et seq.
              The majority of courts, however, have found that sexually violent predator acts and involuntary commitment in general are not violative of ex post facto prohibitions. In Kansas v. Hendricks, 259 Kan. 246 (1997), the court held that since the Kansas Sexually Violent Predator Act was not punitive, it did not raise ex post facto questions. Hendricks, 259 Kan. 246 (1997). The entire argument behind ex post facto prohibition violations in People v. Pervert will hinge on whether the court determines the action to be civil or criminal in nature.

                   Considering that the precedents in this case overwhelmingly support involuntary commitment under some type of "sexually dangerous person" law as a civil process, Pervert's best defense probably would be to claim that she does not have a mental disorder and to place emphasis on the testimony of the two psychiatrists supporting her defense. Research into mental disorders can become very involved and she may be able to convince the court that she does not have a mental disorder and that she will not necessarily be compliant to her husband.
                   Also the dissenting opinions of Justice Breyer in Kansas v. Hendricks, 259 Kan. 246 (1997) (Breyer, J., dissenting), and Justice Stevens in Allen v. Illinois, 478 U.S. 364 (1986) (Stevens, J., dissenting) can be cited as they are very similar to this case. She could also show that she has only been convicted of a sexual offense against one person, whereas the Denial Act, Den. Welf. & Inst. Code   6600(a), states in part that a "sexually violent predator" is one who has been convicted of sexual offenses against two or more victims.

                    The best approach for the prosecution would be to show that although the defendant's disorders can not be "cured," there are treatments available to Pervert once she has been committed. And there is a chance that she could petition for release in the future, and subject to review, actually be granted this release. Therefore, as in the case of Kansas, 259 Kan. 246 (1997), the prosecution can show that the proceeding is not intended to just simply just extend the punishment time for Pervert thus establishing that the act is civil in nature. This will invalidate the defense claim that the commitment proceeding in this case is nothing more than a criminal punishment hidden under a "civil" mask.

                    Also the prosecution should rely heavily on Kansas v. Hendricks, 259 Kan. 246 (1997), which in principle is almost identical to the current case. This case in particular will provide strong mandatory authority for the states' case.
                    Another point that the state should emphasize heavily would be the defendants continuing devotion to her husband who has already shown that he is a sexually violent person. This idea, coupled with the diagnosed dependent mental disorder, can show that the defendant will probably be talked in to once again participating in her husbands' sexual fantasies. This type of mental disorder makes people more likely to commit acts they deem unpleasant simply to please someone else.
                    Even though the defendant did not necessarily commit the
sexual offense herself, her participation can still be considered rape under the eyes of the law and therefore, due to her diagnosed dependent mental disorder, she can be considered a sexually violent predator likely to participate in these types of acts in the future at her husband's prompting.
Following this line of thinking can show that the prosecution is following
the Denial Sexually Violent Predator Act, Den. Welf. & Inst. Code  6600 et seq, to the letter in not only providing protection to the public, but treatment for the offender in question.