Indefinite Detention?

How long can the state confine a sexually violent predator (SVP) who's served his prison sentence but who experts have classified as an ongoing danger to society? This question, seemingly settled in 2006 by California's Proposition 83, is once again on the table.

Known as Jessica's Law, Prop. 83 got rid of a two-year limit on detaining SVPs in a state mental facility after their prison terms are completed. Currently, to be released from such a facility, the SVP must either get a clean bill of health from the Department of Mental Health (DMH) or convince a court that he or she is no longer likely to engage in sexually violent criminal behavior.

But the California Supreme Court is set to reconsider whether, given California's due process clause, SVPs should have the initial burden of proving that there is probable cause for their release. The court will also consider whether such indefinite commitment violates the equal protection clause (other mentally disturbed criminals aren't treated this way); and whether Prop. 83 violates the ex post facto clause by imposing new provisions on SVPs convicted prior to 2006 (People v. McKee, No. S162823, Cal. Sup. Ct., review granted July 9, 2008).

While the McKee case is pending, courts continue to enforce the indeterminate-sentence provisions of Jessica's Law. In People v. Castillo (170 Cal. App. 4th 1156 (2009)), the court of appeal overturned an arrangement the defendant made with prosecutors, sticking with an indeterminate commitment for SVPs.

Meanwhile Castillo has also called into question another key issue in the SVP cases. The defendant challenged the protocol used to determine which SVPs to confine, citing the Office of Administrative Law's finding that the protocol constitutes an "underground regulation." Though the court of appeal held that the contention was not properly presented to the trial court, objections to the protocol have prevailed in other cases: A Sacramento trial court found for the defendant on the underground regulation question and issued a stay against the prosecution (People v. Maggard, No. CR59230, Sacramento Super. Ct., stay issued Jan. 6, 2009). An even more recent appellate ruling (People v. Medina, 171 Cal. App. 4th 805 (2009)) acknowledges that the protocol may well be flawed.

The DMH has responded to the protocol objections with an emergency regulation. But it may be too vague to satisfy Welfare and Institutions Code section 6601(c): The new protocol runs for two sentences rather than 70 pages, as the previous one did.

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