Not being satisfied with the length of sentences sex offenders had previously received for their criminal sentences, in the mid 1990s, there was a movement to increase the sentence lengths. New laws were enacted for future offenses, however, these could not constitutionally extend the length of sentences for those already sentenced and serving their time in prison. To do so under the criminal statutes would have been a violation of the Ex Post Facto and Double Jeopardy Clauses of both the state and federal constitutions.

The solution for extending the incarceration time of those already serving time in prison was found through "civil" law, where many of the Constitution's protections have been held by modern courts not to apply.

In 1996, the Sexually Violent Predator Act ("SVPA") (See FN. 1) was implemented. The Act provides for the continued incarceration of previously convicted sex offenders, beyond their original criminal sentence, only now under "civil" law. The alleged Sexually Violent Predator ("SVP") would be committed to a high security state hospital purportedly under the guise of being for "treatment" and "to protect the public."

These commitments were easy for prosecutors to obtain. They would simply retry the alleged SVP on the same, often 15 to 20 year old, facts previously used to convict the person on criminal charges and send him to prison the first time. And, using these old facts, appeal to the emotions and passions of the jurors as though these old acts happened only yesterday. This is being allowed because, according to the modern courts, the Ex Post Facto and Double Jeopardy Clauses of the constitutions do not apply because of the "civil" label given the SVPA. The courts also decided to allow hearsay to be presented at these trials, often third and fourth party hearsay, hearsay that is no more than rumor and innuendo.

In addition, there were huge financial incentives to the psychological. industry, allowing a group of approximately 60 contract state evaluators to earn as much as $340,000.00 each per year from the program. (See FN. 2)  Insofar as the State prior to March of 2004, paid 90% of all the SVPA related costs, the counties saw this as a method of bringing state money into the county prosecutor's office through pursuing these cases while ignoring local issues.

After commitment, the so-called "hospital" the SVPs are sent to for "treatment" is Atascadero State Hospital ("ASH"), and it is colloquially referred to as a "HosPrison."  ASH is the facility where, since the 1950s, California sends its "criminally insane.  The State has several names for these offenders (See FN. 3). They are all forensic commitments being held at ASH, a high security prison operating under a "hospital" label.  These "forensic" offenders are held under penal code law and under penal conditions in lieu of placement in a regular Department of Corrections facility.

California. has chosen to continue to punish SVP's, who are persons who have already completely served their prison sentences and are now being held under "civil" law only, by housing them at ASH, and in the same institution and under the same punitive conditions as the penal code commitments.

The counties in California have, likewise, chosen to house SVPs pending legal proceedings in their county jails rather than under conditions more appropriate for their so-called "civil" status.

There is a long line of unwavering United States Supreme Court precedent holding that "civil" detainees may not be punished whatsoever (See FN. 4), or be held under punitive conditions of confinement. Nevertheless, California has attempted to claim that SVPs are not the same as other "civil" detainees or commitments and may, therefore, be housed differently. This based solely on their SVP status of former sex offenders, and society hates, sex offenders.

On December 27, 2004, in a very strongly worded opinion, the Federal Court of Appeals for the Ninth Circuit, the circuit covering the western United States, ruled against the County of Sacramento for housing SVPs, under punitive conditions, in the county jail. (See FN. 5). This decision has not only statewide implications, but is binding on all the federal district courts hearing similar claims in the states within the Ninth Circuit.

The case, Jones v. Blanas ("Jones"), undermines California's reliance on the person’s status as a previously convicted sex offender who is now an SVP under "civil" law by stating:

"Nor does the status of the sexually violent predator as one who has previously been convicted of a crime limit the rights of one detained under the SVPA. See Robinson v. California, 370 U.S. 600, 666-67 (1962) (holding unconstitutional the conviction and punishment of a individual based solely on his 'status')." (Jones at page 17260)

While the SVPA itself is "civil" and does not call for or require punitive conditions, both state and county officials have chosen to apply the law in a punitive and retributive manner.  The counties hold SVPA detainees in "Administrative Segregation," commonly known as "The Hole," under extremely restrictive and punitive conditions. It is to this attitude that the Ninth 
Circuit Court has spoken in Jones, where the Court stated:

"The state cannot have it both ways. If the confinement of a sexually violent predator is civil for the purposes of evaluation tinder the Ex Post Facto Clause, that confinement is civil for the purposes of determining the rights to which the detainee is entitled while confined. Civil status means civil status, with all the Fourteenth Amendment rights that accompany it." (Jones at page 17259)

The Jones Court goes on to hold that the treatment SVPs are presently being subjected to is presumptively punitive and thus unconstitutional:

"Therefore when a SVPA detainee is confined in conditions identical to, similar to, or more restrictive than, those in which his criminal counter parts are held, we presume that the detainee is being subjected to punishment." (Jones at page 17258)

This is not new law; the rational for this comes from the United States Supreme Court who the Ninth Circuit cited in its own precedent from a Washington State case with similar issues:

"See Sharp v. Weston, 233 F.3d 1166, 1172-73 (9th Cir. 2000) (finding that Youngberg required that individuals civilly confined at a commitment center receive 'more considerate' treatment than inmates at the correctional center in which the commitment center was located)." (Jones at page 17259)

While the Jones decision deals with county jail conditions, it is this statement from Sharp that has implications for the conditions of confinement at ASH as well as the county jails, where the SVPA "civil" commitments are being housed with and under the same conditions as penal commitments. The ASH conditions are presently under litigation, that based on precedent, the state will most likely lose.

What all this means, is this very costly program is about to cost the taxpayers even more money; now in legal costs and settlements that could have been avoided had arrogant state and county officials only followed the law and the constitutions in the first place.

Of course, as typical, rather than change their arrogant attitudes, and the unconstitutional conditions, that also violate state statutory law, and were the basis for the Jones decision, the county officials would rather spend more taxpayer money to fight this decision. After all, Sacramento County failed to discontinue their illegal strip search policies, in spite of state law, costing the taxpayers 15 million dollars in a recent agreement to settle another lawsuit. (See FN. 6) David A. Melton, the private attorney hired by the county at taxpayer expense to fight the Jones case, said the county may appeal to the full 9th Circuit Court or possibly the U.S. Supreme Court. (See FN. 7)

Such an appeal would most likely cost the taxpayers even more money, and would have little likelihood of success, as the Jones decision is based on a long line of high court precedent and presents nothing really new that a higher court has not already upheld.

FN. 1: The SVPA is codified at Welfare and Institutions Code, Sections, 6600, et seq. Related legislation regarding conditions of confinement are codified at Penal Code, Sections, 1610, 4001, and 4002, and Welfare and Institutions Code, Sections, 5325 and 5325.1.

FN. 2: See: San Francisco Chronicle, 7/12/04, "State experts get big fees to evaluate mental health," by Jim Doyle.

FN. 3: See Department of Mental Health ("DMH") Website, Penal Code Commitments housed at ASH are listed as: PC 2684, Mentally Disordered Offender; PC 1026, Not Guilty by reason of insanity; PC, Incompetent to stand trial.

FN. 4:  See generally: Youngberg v. Romeo (19/82) 457 U. S. 307; Bell v. Wolfish (1979) 441 U.S. 520.

FN. 5: Jones v. Blanas (9th Cir. 12/27/04) Case Number 02-17148.

FN. 6: See Sacramento Bee, 6/5/04, "$15 Million on jail searches," by Denray Walsh and Sam Stanton.

FN. 7: See:  Sacramento Bee, 12/28/04, "Rapist's suit against county gets go-ahead," by Andy Furillo.