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The Washington Supreme Court approved the Washington Sexual Predator Act in Personal Restraint of Young, 122 Wn.2d 1, 857 P.2d 989 (1993).
The United States Supreme Court narrowly approved sexual predator laws in a 1997 decision, Kansas v. Hendricks, 521 U.S. 346 (1997).
Kansas v. Crane, 534 U.S. 407 (2002) (absolute finding of "lack of control" is necessary) .


Steve Eugster    |     home
Kevin Coe
"Can we,by legislation ask a group of us, a jury, to make a decision no single individual could rationally make?  Can a human being judge another human being as not having free will?"

Trial by Jury

 Introduction to the Problem

Kevin Coe, a convicted rapist from Spokane, Washington served his full 25 year sentence without parole.  As he was about to be released from prison, the state of Washington filed a petition with the Superior Court to have him committed and held in prison under the  Washington Sexual Predator Act.  

One would think there would be a host of constitutional challenges to such an act. The Act has been tested and found constitutional.  In that case the court did say that the jury making the decision the person being subjected to the Act would have to make its determination unanimously.  

Nevertheless, the Act is troubling.  Perhaps it is not troubling because the court has created the fiction that the constitutional requirements do not apply because the personís continued confinement is not a criminal matter but,instead, is a civil matter.  Constitutional scrutiny is less if the situation is civil.  Much can be said about this, and much should be said.

There is something, however, which does not seem to have been tested or discussed.  That something has to do with what a jury can or should do.  Facts are tried to juries.  They are used to make determinations about what has happened, a fact, an event.  They say what the event is.  Is the event this or that.  They hear the evidence and decide or make a verdict about the evidence.  The jury under the Sexual Predator Act is not doing this.  It is doing something which is new, different, perhaps even impossible.

The jury in the present Kevin Coe, under the Sexual Predator Act., is being told to make (a) a medical diagnosis and (b) to make a prediction as to what that medical diagnosis portends.  That is, the diagnosis is an "acquired condition affecting the emotional or volitional capacity which predisposes the person to the commission of criminal sexual acts in a degree constituting such person a menace to the health and safety of others."  

Is this really the function of a jury in our system of law?  When in the past have we asked a jury to make a medical diagnosis?  When in the past have we asked a jury to make a prediction as to what a person with a medical diagnosis might do?

Perhaps more compelling is this question:  Is what the jury is being asked to  humanly or rationally possible?

Can we,by legislation ask a group of us, to make a decision no single individual could rationally make? Can a human being judge another human being as not having free will?

 Jury Rationality

This case presents many concerns.  A foremost concern is whether juries are rational.  There is much research which concludes that people are irrational.  That people are rational actually defies experience.  How irrational people are is something one cannot say.  

In the case of the sexual predator jury one presumes that irrationality can be overcome by the need of a unanimous jury.  But, one must still have doubts.  The topic of a person possibly engaging in an act of sexual predation certainly would color ones thinking and have an impact regarding the ability of a one in doubt from maintaining his or her position.  

An equation would no doubt come into play.  In that equation one would weigh the relative freedom of a person who has already shown himself to be a sexual predator with the safety of defenseless persons, women, children, the elderly.  Something similar to the Bush Doctrine would come into play -- if a country is possibly harboring terrorists or weapons of mass destruction, America is justified in going to war.

Cass R. Sunstein, Behavioral Law and Economics (Cambridge University Press, 2000)