Can Arizona Throw Away the Key?

The mission of the "sexual predators" part of Arizona's year-old Community Protection Act sounds compelling: keeping the vilest, most aberrant and most dangerous sex criminals off the streets after they complete their prison terms.

The predators component of the new law is set to take effect October 1. That's when designated "predators" who have completed their prison sentences will find themselves locked in legal limbo in a maximum-security wing of the Arizona State Hospital.

But don't expect them to stay there for long, Pat Terry, superintendent of the state of Washington's largest mental hospital, warned area mental-health professionals last week.

She said Arizona-based "predators" are certain to sue the state on constitutional grounds--due process, double jeopardy and other fundamental criminal-justice concepts.

And if the recent examples of other states hold true, odds are the bad guys will win--rendering the whole exercise a costly experiment.

"You are going to be totally absorbed in the legal process," Dr. Terry told the group of about 100 at the Arizona State Hospital. "The lawsuits will come. My suggestion is that you get yourselves the best attorney general you can find."

Arizona based its law on groundbreaking legislation enacted in the state of Washington in 1990. As is often the case, tragedy was the catalyst: A repeat offender sexually mutilated an 8-year-old boy. A convict on work release raped and killed a psychologist.

Washington's legislature concluded that "a small, but extremely dangerous group of sexually violent predators exist who do not have mental disease or a defect that renders them appropriate for . . . short-term civil commitment. The prognosis for curing sexually violent offenders is poor."

So that state's lawmakers devised a system by which judges or juries may order incarceration of selected individuals for as long as they see fit, regardless of whether they are deemed "mentally ill." (In Arizona, that decision will rest with John Migliaro, the State Hospital superintendent.)

The Washington law, however, sets forth no particular requirements for treatment, only that all programs must conform to unspecified constitutional requirements. To the relief of that state's citizens, none of the 35 men designated as "predators"--no women are in the program yet--has been released.

But the predators law is facing serious constitutional challenges in Washington and in other states--most recently in California and Kansas.

Terry spoke bluntly of the legal dilemmas created by the predators law.
"These are some extremely, extremely violent people," she said, "people who were up to get out of prison who had raped 3-month-old children and that awful stuff. You are truly relying on their past history, and I had some reservations about due process. I still do. A big part of our mission is protection. [But] how do you prove beyond a reasonable doubt that someone is going to reoffend? But I'll tell you, the people in the program, I don't want in my neighborhood."

Terry said her hospital's mandate is to provide whatever treatment programs hospital administrators want, controversial or not.

"So those of us who are sadistic by nature can apply to your program?" quipped Dick Miller, a local psychologist.

"Absolutely," Terry kiddingly responded.
Beyond the momentary levity was the sobering message that Arizona may be wasting time and money in initiating a predators program.

The Kansas Supreme Court overturned that state's sexual-predators law on March 1. The decision found that Kansas' definition of a mental disorder--identical to that used in Arizona--did not rise to the level of a mental illness to justify the possibility of indefinite confinement.

A California defense attorney recently summed up the nationwide arguments against predators laws: The state has an interest in protecting the community, but that doesn't mean confining offenders who are not mentally ill and beyond treatment. This society has long distinguished itself from regimes that brand someone as "mentally ill" in order to confine them.

The Ninth U.S. Circuit Court of Appeals currently is considering a Washington sexual-predator case which may have repercussions in Arizona and elsewhere.

The case concerns Andre Brigham Young, who was convicted of rape three times from 1963 to 1985. Authorities in Washington detained him under the predators law after his scheduled release from prison in 1990.

A hearing ensued, after which a jury concluded that Young was a sexually violent predator. He remains in a state facility.

But in August, a federal judge agreed with Young that the law is unconstitutional.

"Although the State has authority to protect the community from dangerous tendencies of some individuals who are mentally ill," the judge wrote, "detention is impermissible absent clear and convincing evidence of both mental illness and dangerousness."

The judge cited a key 1982 Louisiana case, in which the court said civil commitment to a state facility must be reserved for those who are mentally ill.

"The government's authority to infringe upon fundamental liberty interests is strictly limited," the majority in the Louisiana case wrote, then listed three exceptions:

* Punishment for violations of the criminal law.
* Civil commitment based on current mental illness and dangerousness.
* Certain narrow circumstances justifying short-term preventive detention of people who pose a danger to the community, such as certain pretrial criminal detainees.

Court records indicate that no doctor has said Andre Brigham Young is "mentally ill."

Pat Terry predicts that the predators controversy is likely to land before the United States Supreme Court.

"If someone rules tomorrow that we have an unconstitutional program in Washington, we will be shut down immediately," she told her peers. "And I can tell you this for sure--you're in for some truly challenging times down the road.