Double standard

Punishing people twice for the same crime violates the Constitution

One of the basic tenets of our criminal-justice system is that if you've been convicted of a crime, you serve your sentence -- and then you're done. A ruling last week by the Massachusetts Supreme Judicial Court (SJC) mocks that principle. And anyone who cares about the Constitution should be outraged.

Last week, the court ruled that district attorneys could keep three Massachusetts inmates jailed, under a new state law that allows prosecutors to keep sexually dangerous prisoners behind bars. Sounds good, right? Well, the catch is that the law in question was not on the books at the time the defendants were sentenced for their crimes.

Under the new law, which was hastily passed by the legislature last September in order to meet a deadline to receive federal funds for the costs of the law's implementation, district attorneys can file petitions seeking the civil commitment of defendants found to be sexually dangerous. That means that if a defendant has been convicted of a sex crime and has served out a jail sentence, prosecutors can file a petition requesting a jury trial to determine whether the prisoner is likely to commit another sex crime. If the answer is yes, the inmate will be moved to a secure facility to receive treatment for a period of anywhere from one day to life. The inmate is allowed to file one petition per year to request a re-evaluation.

In this case, the three defendants, Lawrence A. Bruno, Carlos L. Davila, and James D. Wilson, were sentenced before the law was enacted. Just one day before the men's sentences were up, both the Middlesex and Plymouth County district attorneys filed petitions to have each man committed to an institution for sex offenders. The three defendants argued that such a move would violate their rights -- specifically, Article I, Section 10 of the US Constitution, which says that you can't punish someone under laws that weren't in place at the time the crime was committed.

The SJC gets around this by claiming that keeping the defendants locked up doesn't constitute punishment. (That's what the US Supreme Court ruled when it upheld the constitutionality of civil commitment.) Leaving aside the, um, question of whether confinement in a facility run by the Department of Correction constitutes punishment, it still doesn't change the fact that the rules were rewritten midstream for Bruno, Davila, and Wilson -- and that they're now being penalized under these new rules. The case is further muddied by the fact that two state psychiatrists examined Bruno in 1985 -- and concluded that he wasn't sexually dangerous. Wilson was evaluated under the new law, and it was determined that he might be sexually dangerous. Davila has yet to be evaluated.

There's no question that society has a difficult challenge in deciding what to do with sex offenders, who are believed to have a high rate of recidivism. Many states, including Massachusetts, have passed laws requiring convicted sex offenders to make their presence known to local police departments. Now this new law gives prosecutors the option of keeping sex offenders locked up indefinitely.

But that's not what this case was about. This case was about whether a law that wasn't in place at the time of a criminal sentencing can be used to tack on additional conditions long after the judge and jury have gone home. What's to stop prosecutors from filing petitions requesting hearings on the dangerousness of other sex offenders who have served out their criminal punishments -- and are now living as law-abiding citizens? Apparently, nothing.

The SJC has done some Olympic-level hairsplitting to reach its decision. But no matter how much the court claims that its ruling doesn't impose additional punishment -- and thus violate Bruno's, Davila's, and Wilson's constitutional rights -- the bottom line is that each defendant is being penalized for one crime under two different sets of rules. And that's unconstitutional. The United States Constitution -- as has been pointed out in this space before -- is an inconvenient document. It isn't in place just to protect law-abiding citizens. It's there for everyone -- even criminals. When we start making exceptions, everyone's protections are weakened.

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