CALIFORNIA SUPREME COURT RULES THAT JESSICA’S LAW IS SUBJECT TO EQUAL PROTECTION CHALLENGE

The California Supreme court ruled in People vs McKee that the Sexually Violent Predator Act (SVP) is subject to an equal protection challenge.

Proposition 83, also known as Jessica’s Law,passed by California voters, changed the SVP from a civil commitment that had to be renewed every two years, only if the government proved by a beyond a reasonable doubt standard that a person met the SVP requirements, to an indefinite commitment where the committed person must prove that he/she does not meet the standards by a preponderance of the evidence standard.

The Supreme Court remanded the case to the trial court with an order to hold a hearing, using a strict scrutiny standard, to determine if the SVP violates equal protection. The Equal Protection Clause of the Fourteenth Amendment requires equal treatment for people equally situated. This does not mean all people must be treated equally. But it does mean that people who are similar circumstances, as to relevant criteria must be treated equally. In this case the California Supreme Court determined that those alleged to be sexually violent predators are similarly situated with those alleged to be mentally disordered offenders (MDO) and those found to be not guilty by reason of insanity (NGI). All three groups involve people who committed violent felonies as a result of mental illness. While the predicate felonies for each of the categories is somewhat different, they all involve violent offenses and they are all determined to be a danger to society.

But unlike the MDO and NGI, the SVP ia given an indeterminate sentence and is not given a jury trial, after the initial determination, where the jury must find that the people have proven their case by a beyond a reasonable doubt standard. The MDO is give a one year commitment. After the initial commitment the SVG has the burden of proof by a preponderance of the evidence standard. The NGI’s term is limited to the maximum for the alleged crime.

On remand the people must attempt to show that there is a reasonable distinction between those who come under the SVP and those who are either MDO or NGI and that as a result of that distinction indefinite commitments and putting the burden of proof on the person committed is reasonable. If they cannot do that, pending any changes the legislature wants to make in the law those alleged to be sexually violent predators will be dealt with in the same manner as mentally disordered offenders.