Thursday, December 13, 2018

People v. Superior Court/Smith (Cal. Supreme Court - Dec. 13, 2018)

You can't really argue that much with today's opinion from the California Supreme Court.  After the Court granted review of the case, the Legislature quickly passed a new statute that made it clear that the People should win.  That's one of the big advantages of being a Legislature; if it looks like you're going to lose a case, one solution is to just change the law.  So there's a reason why today's opinion unanimously finds in favor of the State.  You can't say much about the merits other than "Yeah, given the law now, that sounds about right."

Nonetheless, I wanted to say just a tiny bit about the language of the opinion.  Because I have a sense that people 100 years from now may view the opinion in a slightly different way than contemporary readers.

The opinion is written by Justice Cuellar, a kind soul.  It's about various discovery provisions in the procedures used to commit sexually violent predators (SVPs).  Justice Cuellar ultimately holds that, pursuant to the recent statutory amendment, some otherwise confidential medical information gets to be disclosed to the district attorney and her experts.  Fine.  That's the law.

It was Justice Cuellar's description of the SVP proceedings that nonetheless caught my eye.  There are various sentences in the opinion that describe these proceedings kindly, with language like the following:  "When we take account of the relevant provisions and structure of the law, and the SVPA’s broad purpose of identifying dangerous sex offenders so that they may receive treatment . . . ."

Okay.  Look.  I know that one theory behind SVP proceedings is the one described by Justice Cuellar:  that we're trying to "identify" sex offenders so we can "treat" them.  But, in reality, I think that's pretty much a classic euphemism:  a mild word that we substitute when the truth is unpleasant.  We commit SVPs in theory to treat them.  In reality, we just want them locked up.  So we "civilly" commit them.  Not because we have much hope that we can make them better.  But just because we don't want them on the outside.

Take the guy in this actual case, for example (Richard Smith).  The opinion is all about procedure, so it doesn't say what he did or what his problems are.  But he was in prison and about to get paroled when, in 2002, the District Attorney initiated SVP proceedings.  And he's been locked up since then.  Fifteen-plus additional years.  Getting "treated".  'Cause that's why we're locking him up, right?  Not merely to keep him off the street.

The obvious reality is that the central purpose of SVP proceedings like these is to incarcerate someone even when they've done their time for the crime (if any) for which they were convicted.  Do we have a hope that, somehow, they'll be magically cured?  Of course.  And we make an effort.  But we know full well that for a huge number of these people, our "treatment" won't work, and we'll just be locking them up for an additional eternity.

And we're cool with that.

Just look at the language of the statute, as well as what we call these people.  Violent.  Predators.  Does that sound like soft language we'd employ if our central purpose was to "treat" someone?  Or is it more what we'd say when we were looking for ways to lock these Violent Predators up?

I express no necessary normative judgment about whether locking people up in these circumstances makes sense, or whether there's a superior alternative.  That's a policy (as well as moral) decision, and one rendered in circumstances that are far than ideal.

But I nonetheless think it's worthwhile not to soft pedal what we're doing.  Or to use language that describes softly and with a peaceful purpose what we're, in fact, harshly trying to do here.  Especially when we're talking about an area in which "treatment" euphemisms have routinely been employed by governments to achieve less savory results.  Not good, in my view, to have a neutral judiciary seem to go along with -- or, worse, implicitly support -- the program by using flowery (and, in truth, one-sided) language to describe what we're doing.

That doesn't mean that Justice Cuellar is factually wrong.  I'm confident that one purpose of the SVP program is to try to "treat" patients.  To the degree we can, anyway.

But there are other purposes and motivations at play as well.  And to describe a program by focusing primarily the benign seems to me to do a disservice.  In the same way that I might feel disturbed if someone wrote an opinion (or history book) that said that the "broad purpose of interning American citizens of Japanese descent during World War II was to protect the country during wartime."  Yeah, I guess, someone could say that.  But that description seems to me to have the wrong focus.  On a topic that's incredibly serious to both the system as well as to the individuals adversely affected therefrom.

So too here.

It's not that Justice Cuellar entirely ignores the fact that we're talking about locking people up.  At the outset of the opinion, for example, he says that "Although designation as a sexually violent predator (SVP) is not a punitive measure, individuals so designated are subject to a variety of serious consequences, including civil commitment."  But even that seems fairly soft to me.  Were it me, I'd mention that people (like Mr. Smith) get locked up for 15-plus years, with no end particularly in sight.  And I wouldn't focus on the ostensible "treatment" rationale for the statute.

Because I think that downplays, in a fairly dramatic fashion, what's at stake here.  In a way that readers a century from now -- and some readers currently -- might find disturbing.  Or at least overly palliative.

My thought, anyway.