Prior Determination That Defendant Not a Mentally Disordered Sex Offender Not Bar to Later Civil Commitment as Sex Offender

In re Interest of D.H., 281 Neb. 554, 797 N.W.2d 263 (Neb. 2011)

The Nebraska Supreme Court held on May 20, 2011 that a 1991 determination at the time of a defendant’s conviction and sentence that he was not a “mentally disordered sex offender” under Nebraska’s sex offender law then in effect was not res judicata barring commitment proceedings in 2010 under Nebraska’s current Sex Offender Commitment Act. In so deciding, the Court followed a similar California case that found that a 1982 determination that the defendant was not a sex offender did not preclude a civil commitment proceeding 10 years later because the issue was the mental health of the defendant as he approached release, not as it existed at the time of his conviction. People v. Carmony, 99 Cal.App. 4th 317, 120 Cal.Rptr.2d 896 ( 2002). The Nebraska Court held that the Act provides for assessment of the defendant’s mental health, risk of recidivism and threat to public safety as he approaches release. Based upon the changeable nature of mental health and dangerous determinations, the assessment is not res judicata because the issue presented is not the same as that litigated at the time of his 1991 sentencing.

Found in DMHL Volume 30 Issue 6