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Bar News - April 4, 2008

Morning Mail

In the debate over New Hampshire’s law to civilly commit "sexually violent predators," it seems some people think that the laws provision for retroactive application violates our State Constitution. This isnt necessarily true. Our founding fathers were mute on a laws retroactive application because they knew that such a provision, in itself, does not determine a laws reasonability.

They understood that retroactiveness is only one aspect of the "letter of the law," spelling out its effective date, or other particulars of the past to which it may apply. In some cases, such as in a law to reduce prison sentences by establishing a "good time" system, this would clearly serve the interests of justice. It would lessen the harshness of all sentences while avoiding the unfairness of a prisoner sentenced on the laws effective date serving less prison time than someone handed the same sentence even one day earlier. In another example, perhaps of a law suddenly criminalizing a particular behavior, retroactive application would betray justice, since people could be punished for actions committed before the law existed. So retroactiveness can cut either way, and a Constitutional prohibition against it would defy reason.

What our founding fathers did prohibit in our Constitutions Part First, Article 23, are retrospective laws. These they characterized as "highly injurious, oppressive, and unjust." So we first need to know what it is that makes a law retrospective, and then we can decide if RSA 135-E fits that description.

Retrospective laws are generally promulgated in hindsight, with an unfair aim and retroactive application. The particulars of their creation infuse a measure of meanness into the "spirit of the law." I presume this is why our founders considered such laws to be so abhorrent that they felt a particular Constitutional prohibition against their enactment was necessary. Keeping this in mind, I believe serious consideration of just three elements of RSA 135-E can help us determine its essential nature.

First, this law is based on the premise that "sexually violent predators" are not subject to our existing civil commitment laws. Why arent they? Is every citizen of New Hampshire subject to a brief period of commitment for observation and evaluation, or arent we? And cant this commitment be renewed and extended if the initial evaluation shows a clear need for it in the interests of public safety? Then what’s so special about these predators that they require a special law?

I think what is special is that someone in New Hampshire government discovered that our prisons lack the resources and medical expertise to even properly identify dangerous predators, much less to give them adequate treatment. They decided to create a law to keep suspected predators from simply being released at the expiration of their prison sentences.

The law they came up with makes no provision for the identification of predators in the early part of their prison terms, ignoring the fact that failure to treat prisoners for a serious mental health problem until their sentences are complete amounts to cruel punishment. This law pays only lip service to the need for such prisoners to be in a hospital environment where they can receive proper treatment, allowing them to be kept in the prison instead. Its provision for retroactive application is simply evidence of the narrow-minded retrospection on which it is founded.

Second, RSA 135-E claims that "sexually violent predators" suffer "certain personality defects" which require extensive treatment. I suppose some personality traits may indicate an underlying mental illness, and considering them as defects may be useful in working through a psychiatric treatment regimen. But a diagnosis useful in treating undesirable personality traits, if taken as tantamount to a legal basis for initiating court proceedings, poses very serious problems.

How do we differentiate between personality traits, and defects, for example? Is an unpleasant personality trait, such as a violent temper, actually a defect? And how about someone who enjoys a lot of solitude? Does that person suffer from an anti-social personality defect? I think giving such diagnoses the sanction of law is deeply un-American. We have long held that actions may be made illegal; personality traits, like thoughts, cant be. What happened to societies of the 20th century who adopted reasoning similar to that of RSA 135-E? How did they turn out, and how did their citizens fare? The language in this law about personality defects strikes me as a dangerous prop to support the misbegotten premise of this law, i.e., that we need a special civil commitment statute. Do we really want to be on this road?

Third, RSA 135-E prescribes a total breach of doctor/patient confidentiality. Legal precedent exists for a partial breach, so society can determine its need to protect itself, but no precedent exists for its total elimination, and the extreme invasion of privacy this would cause. Such a step, revealing every sordid detail of a mans past, caters to sensationalism, and panders to those who prefer to see passions inflamed to overreaction rather than to see justice served. Is this provision a thinly disguised ploy to incite public opinion to favor this law?

I think the essential nature of RSA 135-E stands revealed. Its a mean spirited, unreasonable, unwholesome and, especially, retrospective law which contravenes our State Constitution.

Its possible that Tom Hurley and Bill Ploof, being held in Concord prison per RSA 135-E, really are dangerous, "sexually violent predators" who should be civilly committed. If thats so, then it should be brought about through our previously existing, Constitutionally sound civil commitment laws; and both men should be transferred immediately to the State Hospital for proper treatment. Or, they should be freed, since nothing justifies keeping them where they are.

I applaud lawmakers’ intent to preserve public safety, but not at the cost of anyones constitutional protection from retrospective laws. For then, no one has such protection, and that is intolerable.

Biff Morse
NHSP 33478
Berlin, NH

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