Kansas Supreme Court recognizes right to counsel in sex offender commitment cases

In In re Ontiberos, 287 P.3d 855 (Kan. 2012), the Kansas Supreme Court reversed the Court of Appeals and found a federal due process right to counsel in sexually violent predator commitment proceedings.

The court applied the Mathews v. Eldridge test, and while it acknowledged the Supreme Court’s Turner v. Rogers decision, it found more applicability in Vitek v. Jones, 445 U.S. 480 (1980) (finding that prisoner transferred involuntarily to mental health facility had right to “independent assistance”). It then looked at the interest at stake as compared to Vitek:

[I]t is difficult to conceive of a stronger liberty interest because Ontiberos’ confinement has the potential of being indefinite and it includes participation in a sex offender treatment program while committed to state custody. Ontiberos’ interest is certainly greater than the prisoner’s interest in Vitek because Ontiberos would be free from state custody were it not for the KSVPA proceeding, whereas Vitek would have been transferred back to prison.

Ontiberos, 287 P.3d at 865.  The court found that the risk of error was lower because of several procedural protections, but pointed out that Turner emphasized the importance of whether the state is a party and/or represented by counsel, as is the case in the sexually violent person proceedings. Finally, the court concluded that “The burden of providing counsel is small when compared to the substantial liberty issue at risk here.” Id.  The court added that along with the right to counsel came a right to effective assistance of counsel.