High court upholds Civil Commitment

11-3-2011 New Hampshire:

The state Supreme Court yesterday upheld the 2007 law that allows the state to detain the most dangerous sex offenders past their prison sentences.

In an unanimous decision, the court affirmed the 2009 commitment of William Ploof, the first sex offender ordered held under the law. The justices rejected Ploof's arguments that the law violates constitutional protections because it doesn't require the same rules of evidence or burden of proof as criminal cases.

"(Ploof) argues that the procedures contained in (the law) carry the risk of erroneous deprivation of his liberty interests," the court said. "However, the statute affords a number of safeguards designed to protect against erroneous commitment." Among those protections, the court said, are the rights to counsel, an unanimous jury verdict, state-paid experts and an independent mental health assessment.

Ploof, 52, has been held and treated at the state's Secure Psychiatric Unit since his commitment in 2009, but he faces more prison time on another case. Ploof was convicted last month in Coos County on new charges of raping and attempting to rape a boy in the early 1980s. Ploof has not been sentenced on the new convictions.

Christopher Johnson, the public appellate defender who argued Ploof's appeal, can ask the justices to reconsider. He was out of the office yesterday and could not be reached. Thomas Bocian, who fought Ploof's appeal for the state attorney general's office, was also out of the office yesterday.

Michael Valentine, the Hillsborough County prosecutor who presented the commitment case against Ploof, said his office was pleased with the court's finding. "When sex offenders max out of prison untreated and unsupervised, they represent a real risk to the community," Valentine said by email. "Civil commitment is an important tool for protecting the public from sexually violent predators."

The law allows sex offenders to be committed to the prison after their criminal sentences for ongoing treatment if a jury concludes they suffer a mental abnormality that makes them dangerous and likely to reoffend. If ordered held by a jury, they can be committed for up to five years. If prosecutors believe a sexual predator remains dangerous after five years, they can seek another five-year commitment.

Ploof's was not the first to challenge the 2007 law. Defense attorneys unsuccessfully challenged its constitutionality in 2008 on different grounds. But Ploof's appeal was the first brought by someone who is being held under the law.

That's not surprising, though: Ploof is one of just two sex offenders committed under the law since it took effect in 2007. The other man, Thomas Hurley, agreed to his commitment in 2010 so he cannot appeal. In all, nine sex offenders have been pursued under the law, but only Ploof and Hurley have been ordered held.

The Merrimack County Attorney's Office brought the first case, in 2007, against William Decato, but later dropped it after deciding it did not have enough evidence to convince a jury that Decato met the definition of a sexually violent predator.

Decato was convicted this week on new charges of repeatedly raping a Manchester woman in August 2009, 18 months after the civil commitment case against him was dropped. Valentine prosecuted Decato on the new charges and said yesterday Decato's criminal conduct illustrates the importance of keeping dangerous sex offenders in custody.

The Hillsborough County Attorney's Office has brought most of the state's other sexual predator petitions. Judges found probable cause to justify commitment proceedings against three men in 2008 - Raymond Fournier, Richard Hilton Sr. and Wayne Sawyer - but all were freed after deadlines set out in the law were missed. A Hillsborough County grand jury indicted Hilton last month on new charges of violating sex offender registration laws by giving false information about his current address.

Sex offender Michael Regan went to trial in May under the predator law but was freed when the jury could not reach a verdict. Valentine said his office decided against retrying Regan.

And Tuesday, the office filed its most recent commitment petition against Armand Desmarais, who is about to be paroled from prison on 1993 convictions in the rapes of two children.

Hillsborough County Attorney Dennis Hogan said yesterday the court's ruling in the Ploof case won't make it easier to bring commitment cases against sex offenders, but it does settle some of the constitutional questions raised by defense attorneys.

In his appeal, Ploof argued the state should be held to a higher burden of proof in commitment proceedings. Criminal cases require proof beyond a reasonable doubt, while sexual predator commitment cases require the lesser standard of clear and convincing evidence.

Ploof also argued that the 2007 law does not adequately require evidence to be tested before it is admitted at a commitment hearing. The court rejected those arguments after concluding the law provided sufficient protection against arbitrary commitments.

The court said it was required to weigh a sex offender's potential loss of freedom against public safety. With those safeguards in place, the court said, public safety should prevail. "The state has a strong interest in protecting the public from and providing care and treatment for sexually violent predators," the justices said. ..Source.. by Annmarie Timmins / Monitor staff

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