Three years after ruling that states can keep sexually violent predators locked up after their prison terms are over, the Supreme Court debated on Tuesday whether some sex offenders still can show they are being held unlawfully.
Later, they were scheduled to hear arguments on whether police overstepped their bounds by restraining a man from entering his house until they secured a search warrant.
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"My client has been punished for 10 years under a so-called civil commitment statute," said Robert Boruchowitz, lawyer for a six-time rapist locked up under Washington state's sexual-predator law. "For all intents and purposes, this is a prison. It looks like, feels like and is a prison."
Boruchowitz contended the state was not providing treatment required by law, and convicted rapist Andre Brigham Young therefore was being punished unlawfully and should be released.
The state's lawyer, Maureen Hart, argued that the remedy for alleged improper treatment is not to release a sex offender but to "go to court and require Washington to provide the treatment and care that it has promised."
The case is a follow-up to the justices' 1997 ruling in a Kansas case that allowed states to keep sexually violent predators locked up even after they have finished serving their prison terms. Such confinement, intended to protect society, is not punitive and therefore does not amount to double punishment for the same crime, the court's 5-4 decision said.
Boruchowitz argued that the conditions can become punitive, and in such cases should be allowed to challenge their confinement.
In Young's case, "actual implementation of the treatment has turned out to be a sham," the lawyer said.
A federal appeals court ruled for Young and said he should get a chance to show that the conditions of his confinement amounted to unconstitutional punishment. The Supreme Court is expected to rule by July on whether the decision was correct.
Hart said Young had two other options: a lawsuit in state court accusing the state of violating the law that requires treatment for sex predators, or a federal civil rights lawsuit seeking to improve conditions of his confinement.
Noting those options, Justice Stephen G. Breyer told Boruchowitz, "You have a perfect remedy. ... So what's the problem with that?"
In fact, a civil rights lawsuit over conditions of Washington state's sexual predator facility has been in the courts for nine years, and in 1999 a federal court held the state in contempt for failing to comply with an order to improve the mental health treatment.
Justice John Paul Stevens told Boruchowitz his argument would be stronger if he could show that everyone being held under the Washington law was actually being punished rather than being treated.
Justice Antonin Scalia asked whether a "compulsive ax murdrer" could be held "simply because he's dangerous" and not provided treatment.
Young was convicted of rape six times dating back to 1962. Just before he completed his prison sentence in 1991 for the last of his convictions, state officials began proceedings that resulted in Young being confined as a sexually violent predator.
Washington's law was the model for the Kansas law upheld by the Supreme Court in 1997. But the 9th U.S. Circuit Court of Appeals ruled last year that Young should have a chance to prove before a federal judge that his confinement is indeed punitive because he is being denied the treatment the state law calls for.
The case is Selig v. Young, 99-1185.
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The police had the right instincts about Charles McArthur, as even he admits. There were drugs stashed under his couch, and given the opportunity he would have flushed them down the toilet or otherwise made sure the cops couldn't find them.
McArthur didn't get the chance, because police wouldn't let him go into his own house alone for the two hours it took to get a search warrant. Predictably, he was arrested as soon as Illinois police got the warrant and found the stash.
More than three years later, McArthur's lawyer was going before the Supreme Court on Wednesday to argue that police were out of bounds, and that McArthur's temporary eviction was unconstitutional.
The case is one of several the court has taken recently that examine the limits of police powers to hunt for drugs.
The court has already heard arguments this year in a case testing how far police may go in detaining presumably innocent motorists while they look for a few drug scofflaws. The justices will hear another case later in the term involving a man busted for growing marijuana after police outside the man's home monitored heat generated by special lamps and equipment inside his garage.
The McArthur case pits an individual's right to come and go from his home against police power to preserve evidence of a crime.
McArthur fought the misdemeanor charge of possessing less than 2.5 grams of marijuana and drug paraphernalia, and lower courts agreed with him.
"I think it was definitely wrong to tell somebody they can't go back in their house unless the police is with them," McArthur said in an interview. "I think they need to have a clearer law on what they can and can't do."
John Love, the assistant police chief in Sullivan, Ill., said McArthur's rights were not violated.
"I chose to do it the right way, the best way for everybody and the fairest way to him," he said.
The case began April 2, 1997, when McArthur's estranged wife arranged for police to wait outside the couple's trailer while she moved out. When she left, she told police her husband had marijuana under a couch.
Love knocked on the trailer door and confronted McArthur. McArthur came outsid, denied his wife's accusation and would not let police inside without a warrant.
Love dispatched an officer to get a warrant, and did not let McArthur re-enter the trailer unless an officer accompanied him.
McArthur has since testified that if he had entered alone, he would have destroyed the evidence.
"My guys went out of their way to respect Mr. McArthur's rights. That's the least restrictive thing they could have done and performed their jobs," Moultrie County State's Attorney Tim Willis said. "They could have kicked the door down. They didn't do that."
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