State v. Carpenter ( 1995 )

WILLIAM A. BABLITCH, J.

0concurring). I join the majority opinion in both its reasoning and result. I write only to address what I perceive to be a fundamental flaw in the analysis contained in the dissent.

The fundamental flaw in the dissent is that it confuses "ends" with "means," and thereby concludes its analysis at a point where it should begin. The dissent states that the purpose (i.e. ends) of the legislation in question is punishment, "namely the ongoing incarceration of convicted sex offenders who might otherwise be released." Dissent at 346. That so-called purpose is, I submit, the means to the end. The underlying purpose of the sexual predator legislation is protection of the public and the treatment of convicted sex offenders who are at a high risk to reoffend. The means used to accomplish this underlying purpose is affirmative restraint with a strong component of treatment. As stated in United States v. Halper, 490 U.S. 435 (1989), for purposes of ex post facto and double jeopardy analysis, we must assess "the purposes actually served by the [statute] in question, not the underlying nature of the proceeding giving rise to the sanction . ..." Id. at 447, n. 7.

The dissent addresses the legislative history of the passage of this legislation to buttress its conclusion that the purpose is incarceration. But again, the analysis is flawed for the same reason stated above. One can scarcely expect silence from the legislature and the governor with respect to how they intend to accomplish their underlying purpose of public protection against further offenses. A close examination of the quotes contained in the dissent show that these statements are nothing more than just that.

The dissent's analysis is much akin to saying that a person goes to his or her car in the morning for the purpose of taking a ride. That is correct as far as it goes — but not when it can be demonstrated that the underlying purpose of going to the car is to get to the office.

The underlying purpose here is public protection. The means chosen to accomplish that purpose is affirmative restraint with a strong component of treatment. The majority opinion amply and persuasively demonstrates a rational connection between the affirmative restraint and treatment required by the statute and its purpose of protecting the public. See Fleming v. Nestor, 363 U.S. 603, 617 (1960). Accordingly, a challenge based on ex post facto and double jeopardy considerations must fail.