Virginia has sought to have 41 violent sex offenders confined to a mental hospital after they finish their prison terms under a law that took effect in 2003. So far, courts have agreed to send 15 of them to the institution.
On Thursday, the Virginia Supreme Court, weighing in on the law for the first time, ruled against the state in two of three cases it reviewed.
The state lost the cases mostly on technicalities, not on the sweeping constitutional challenges that have been waged against similar laws in other states, lawyers said. Recent changes were made to the statute to prevent similar challenges.
But legal observers said the judgments are striking all the same, because they show that the court is closely watching -- and setting limits on -- a law hailed by some as a crucial public safety measure and denounced by others as a massive civil liberties violation.
"The Virginia Supreme Court is clearly aware that these are new and untested procedures in this state, and they are scrutinizing every aspect of the procedure," said Steve Benjamin, a Richmond lawyer.
The law allows authorities to institutionalize violent sex offenders after their release from prison if the state can prove in court that they are likely to commit another sex crime. They can be confined indefinitely, subject to recommendations by doctors and rulings by judges.
Virginia is one of 17 states with civil commitment laws for sex offenders. Proponents say the law keeps dangerous sex predators off the street. Critics say the program is a way of warehousing criminals after their debt to society has been paid. The U.S. Supreme Court has upheld a similar Kansas statute.
Offenders who are civilly committed are sent to the Center for Behavioral Rehabilitation in Petersburg. Nationally, about 3,000 violent sex offenders have been hospitalized, said W. Lawrence Fitch, director of Maryland's Office of Forensic Services, who studies the issue. About 100 have been released, he said.
In one case reviewed Thursday, the Virginia Supreme Court ruled that Lorenzo Townes, a convicted statutory rapist, should not have been committed when he was released from prison in 2003 because he was serving time for other crimes.
The court ruled that the law requires an inmate to be serving a sentence for a sexually violent act when recommended for civil commitment. Inmates' "substantial liberty interest" in avoiding institutionalization means that the law must be "strictly construed," the court wrote.
In another case, the court upheld a judge's ruling that the state had not proved that an Alexandria man, Richard Bryan Allen, is a sexually violent predator. In that case, the state argued that a psychologist who evaluated Allen should not have qualified as an expert witness because he was not licensed in Virginia.
The court said nothing in the statute required an expert witness to have a state license.
The General Assembly has since passed amendments to the statute to prevent similar challenges. The law now requires that an expert witness be licensed in Virginia. And violent sexual offenders who have finished their sentences for sex crimes but remain in prison for other offenses are eligible for civil commitment.
In the third case, the court ruled that the state had proved that Derek Lamont McCloud, a Prince William County man, is a sexually violent predator. McCloud was convicted of rape, abduction and indecent liberties in 1989.
Emily Lucier, a spokeswoman for Virginia Attorney General Judith W. Jagdmann, said the state respected the court's rulings.
Observers said challenges to the Virginia law probably will become broader as time goes on. Fitch said courts in states with similar laws have been flooded with litigation over civil commitment for sex offenders and have largely rejected constitutional challenges. There are now more attacks on the quality of treatment that offenders receive while hospitalized, he said.
Leigh Drewry, Townes's attorney, said he would have gone that route if the court had rejected his appeal. He said Townes told him he received about two hours of counseling each day.
"They say that they are providing people with treatment," Drewry said. "I think they're just warehousing the people, and they're sitting there just as if they were in prison."