Supreme Court case has some local implications

A state law allowing courts to place sexually violent people in a residential treatment center through civil actions after completing a term of imprisonment is raising eyebrows in state and federal courts.

The Arizona Legislature created the Sexually Violent Predator Act in 1995 and in 1998 changed the name to the Sexually Violent Persons Act.

The law allows for convicted sex offenders to go into a residential treatment center for an undetermined amount of time after they complete a term of imprisonment. They can earn release if a state doctor determines that they are no longer likely to re-offend.

Cases involving the act have worked their way through the Arizona court system. The Arizona Supreme Court ruled in July that the act was constitutional.

In the ruling, Justice Ruth V. McGregor wrote that the “SVP act … complies with the principles of substantive due process.”

Before the court can commit a released sex offender, it must determine whether or not he is a sexually violent person.

The statute defines a sexually violent person as anyone who has “ever been convicted of or found guilty but insane of a sexually violent offense or was charged with a sexually violent offense and was determined incompetent to stand trial” and who has “a mental disorder that makes the person likely to engage in acts of sexual violence.”

The state can place sexually violent people into residential treatment against their will in a process that is similar to having a person committed to a treatment facility for mental health issues. A civil court determines if the person is sexually violent.

The prison must notify the attorney general’s office 30 to 120 days prior to a sex offender’s release and provide information about the person’s psychiatric condition. A superior court judge uses the information to determine if probable cause exists to believe that the person is sexually violent.

The sex offender may request a probable cause hearing, and if the judge finds probable cause the Arizona State Hospital must detain and evaluate the person. Within 120 days, the person must have a trial and either party may request a jury trial. The person may have court-appointed counsel.

The state must prove “beyond a reasonable doubt” – a standard of proof normally reserved for criminal trials – that the person is likely to “engage in future acts of violence.”

If the judge or jury determines that the person is sexually violent that person must remain in the Arizona State Hospital and receive intense therapy.

Yavapai County Senior Adult Probation Officer Renée Mascher said that program is suitable only for extremely dangerous sex offenders.

“It’s only for the worst of the worst. They are the really dangerous ones,” she said.

She added that the law helps prevent many level 3 sex offenders from entering communities before they are ready. Probation officers evaluate sex offenders convicted after 1996 prior to release to determine the likelihood of their re-offending.

They rank them from level 1 to level 3. A level 3 offender is the highest risk to the community.

A state-appointed psychiatrist, psychologist or mental health professional examines the person annually. If the examiner suggests that the person is ready for release, the court holds a hearing; if it determines that the person is not ready for release, the offender remains in the treatment facility.

But lawyers are still arguing the constitutionality of the statute.

Yavapai County Public Defender Dan DeRienzo said the U.S. Supreme Court is reviewing a case pertaining to the act.

“I’m really leery of the idea that the state gets to make these calls,” he said. “It’s not an exact science. We’ve got to advise them (sex offenders) that they could be looking at life in prison. There’s no light at the end of the tunnel.”

In a concurring opinion, Chief Justice of the Arizona Supreme Court Thomas Zlaket wrote: “I cannot help but wonder where this novel approach to crime … will lead us. How can we be sure … that the Legislature will continue to view only sexual offenders as a special and unique class of criminals? These and other difficult issues must await the future.”

Contact C. Murphy Hebert at


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