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Martin v. Reinstein5/13/1999
jeopardy more than once for a criminal offense. See U.S. Const. amend. V; Ariz. Const. art. 2, § 10; see also Halper, 490 U.S. at 436; Pool, 139 Ariz. at 108, 677 P.2d at 271. Petitioners argue that Arizona's SVP Act subjects them to multiple punishments for the same underlying offense.
We have determined that Arizona's SVP Act is civil, not criminal in nature and that confinement pursuant to it is for treatment and protection of the public, not punishment. Because the commitment is civil, it is not a second punishment, and the proceedings pursuant to the Act are not a second prosecution. See Hendricks, 521 U.S. at 369; Linehan, 557 N.W.2d at 188; Carpenter, 541 N.W.2d at 107, 114.
The Supreme Court has stated that a civil commitment may follow a term of incarceration for a crime without offending double jeopardy principles. See Baxstrom v. Herold, 383 U.S. 107 (1966), quoted in Hendricks, 521 U.S. at 369. Since we have determined that commitment under Arizona's SVP Act is civil, double jeopardy principles are not violated.
The Arizona Constitution did at one time provide greater protection against double jeopardy than was provided by the federal constitution. See Pool, 139 Ariz. at 108-09, 677 P.2d at 271-72. Pool discusses the policies supporting Arizona's broader constitutional protection, all of which relate to a prosecutor's intentional misconduct, and none of which bears on the issue before us or compels the Conclusion that the Arizona Constitution should be construed to provide greater protection than does the federal constitution in this instance. We thus conclude that Arizona's SVP Act violates neither the Arizona Double Jeopardy Clause nor its federal counterpart.
D. Ex Post Facto
The Ex Post Facto Clauses of the Arizona and federal constitutions prohibit laws that increase the punishment for a crime from that allowed when the crime was committed. See U.S. Const. art. I, § 9, cl. 3; Ariz. Const. art. 2, § 25; see also Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798), cited in Noble, 171 Ariz. at 173, 829 P.2d at 1219. Like the Double Jeopardy Clause, the Ex Post Facto Clause pertains only to penal statutes. California Dep't of Corrections v. Morales, 514 U.S. 499, 505 (1995); Collins v. Youngblood, 497 U.S. 37, 41 (1990). Because the Act is civil, not penal, it cannot be an ex post facto law.
As the trial Judge succinctly explained,
"[Arizona's Sexually Violent Persons Act] is not an ex post facto law. Its focus is on [Petitioners'] current mental condition and the present danger to the community, not punishment." We agree. Petitioners are not being additionally punished for their original crimes. See Arizona Dep't of Pub. Safety, 190 Ariz. at 494, 949 P.2d at 987; State v. Yellowmexican, 142 Ariz. 205, 207, 688 P.2d 1097, 1099 (App. 1984), adopted and approved, 142 Ariz. 91, 688 P.2d 983 (1984). Sentences on the underlying offenses are completed, or nearly so, and cannot be increased. Instead, it is the trial court's finding that probable cause exists to believe that Petitioners continue to be sexually violent individuals that triggers further detention for treatment of the person and protection of the public.
Petitioners have not argued that the language of Arizona's ex post facto provision or the case law interpreting it compels a result that differs from the result under the federal constitution. And indeed our review shows that the analysis of the Ex Post Facto Clauses of the federal and state constitutions is the same. See Noble, 171 Ariz. at 173 n.4, 829 P.2d at 1219 n.4.
Thus, because the SVP Act provides a civil deterrent and does not punish Petitioners for acts pr
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