U.K. court declares that California civil confinement law constitutes a 'flagrant abuse' of human rights

|The Volokh Conspiracy |

In 2004, Roger Giese was arrested in California and charged with a number of serious sexual offenses allegedly committed against an adolescent boy during a four-year period when the boy was under age 14. While out on bail, he fled to England; when he didn't show up for his trial, a warrant for his arrest was issued. In England, he took on a new identity and a new life—even founding a successful PR firm in Hampshire—and remained undetected by U.S. authorities for several years. In 2014, U.S. agents tracked him down and filed a request to U.K. authorities that he be arrested and extradited to the United States to stand trial.

It's a fairly routine procedure—but here, the magistrate judge denied the extradition request, and the appellate court (the High Court of Justice, Queen's Bench Division) recently upheld the denial.

The court held that extradition was inappropriate because (a) there was a "real risk" that, upon his return to the United States, Giese would be subject to California's procedures allowing for "civil commitment"—in the court's words, "indeterminate confinement in a secure facility which may be imposed in civil proceedings against a person who has been convicted of, and who has served his sentence for, certain types of sexual offence and who is deemed to be mentally ill and dangerous"—and (b) that this would result in a "flagrant denial" of his rights under the European Convention on Human Rights.

[More specifically, Art. 5 of the ECHR permits a "deprivation of liberty" only in certain specified cases, one of which is "the lawful detention … of persons of unsound mind …" But California's procedures, which the court parsed quite carefully, cast a much wider net than is permitted under this "unsound mind" exception.

"[W]hilst those of 'unsound mind' for the purposes of Article 5 may well [be] liable to civil commitment [under CA law], in the latter case the net is cast widely, and those with a mental diagnosis which falls far short of 'unsound mind' are likely to be committed." The court noted "testimony from experts on civil commitment practices in California" which showed that "California state law allows for an individual to be civilly committed just because he does not 'think correctly'," and that while this can "include severe mental disorder," it can also cover "people who just make the wrong decisions …" Furthermore, the California medical professionals responsible for identifying those "sexually violent predators" who are likely to commit future crimes have a "great deal of latitude" in making their determinations, and Giese could be civilly committed based only on a determination that he has a vaguely defined "antisocial behavior disorder."]

I've blogged about these grotesque and Kafkaesque—Keysey-esque, one is tempted to say—civil commitment statutes before, in the context of several recent cases (in Missouri and Minnesota) in which they have been declared to violate the Due Process Clause of the U.S. Constitution. I'm hopeful that this latest decision—the second time (see Sullivan v Government of USA [2012] EWHC 1680 (Admin)) that a U.K. court has found that U.S. civil commitment procedures violate basic human rights—though from a foreign court interpreting foreign law, will add to the weight and persuasiveness of the constitutional challenges to these schemes. [Calling Justice Breyer!]