Binder v. Whitetail, 2013 ND 143

Background

Nelson Whitetail, Sr., convicted of gross sexual imposition in 1988 and again in 1997 for sexual offenses against the same two minor girls; sentenced to prison terms and due for release in 2012–2013.
Before his 2012 release, the State petitioned to civilly commit him as a "sexually dangerous individual" under N.D.C.C. ch. 25-03.3.
Two experts testified: Dr. Krance (State) diagnosed Paraphilia NOS (pedophilia/hebephilia) and antisocial personality disorder with narcissistic features and opined Whitetail is likely to reoffend; Dr. Riedel (defense) offered lower actuarial risk scores and recommended release with supervision.
District court found by clear and convincing evidence Whitetail is a sexually dangerous individual and ordered commitment to the Department of Human Services; court discredited actuarial reliance and emphasized Whitetail’s reoffense history, prison conduct, and inability to show control in an unstructured setting.
Whitetail appealed solely arguing the State failed to meet the clear and convincing standard; the Supreme Court affirmed the commitment.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether clear and convincing evidence supports civil commitment as a "sexually dangerous individual"	State: Whitetail’s convictions, expert diagnosis, treatment history, prison behavior, and reoffense show present likelihood to reoffend and serious difficulty controlling behavior	Whitetail: Evidence shows current low risk (actuarial scores), successful recent treatment, and compliance in prison; State relied on historical conduct	Affirmed: court found clear & convincing evidence and deferred to credibility/weight of expert opinion favoring commitment
Proper weight of actuarial risk tools vs. clinical judgment	State: clinical judgment and original MnSOST‑R norms appropriate given lack of intensive community supervision historically	Whitetail: Actuarial scores (Static‑99R, MnSOST‑R new norms) show low probability of recidivism and better prediction	Court rejected defense reliance on actuarial scores here and accepted State expert’s explanation for using original norms
Reliance on past offenses and risk of impermissible retrospective punishment (Catch‑22)	State: Past behavior is relevant to predicting future risk; least restrictive placement requirement remains available	Whitetail: Commitment improperly extends punishment for past crimes rather than addressing present dangerousness; creates Catch‑22 by requiring proof of control in community	Court: Past conduct is relevant; commitment standard focuses on present risk inferred from history and expert opinion; not erroneous as a matter of law
Requirement to place respondent in least restrictive setting and supervisory alternatives	Whitetail: argued extended supervision could address risk without civil commitment	State: no legal mechanism to impose the intensive long‑term supervision experts recommended outside civil commitment	Court noted N.D.C.C. §25‑03.3‑13 requires least restrictive facility, and Whitetail did not show how recommended supervision could lawfully be imposed absent commitment

Key Cases Cited

In re Voisine, 2010 ND 17, 777 N.W.2d 908 (standard and elements for sexually dangerous individual commitment)
In re M.B.K., 2002 ND 25, 639 N.W.2d 473 (experts may use full range of professional tools in assessing risk)
In re J.T.N., 2011 ND 231, 807 N.W.2d 570 (appellate deference to district court credibility determinations in SDI proceedings)
In re G.R.H., 2006 ND 56, 711 N.W.2d 587 (modified clearly erroneous review for commitments)
In re P.F., 2008 ND 37, 744 N.W.2d 724 (statutory requirement to place committed individual in least restrictive appropriate facility)
In re R.A.S., 2009 ND 101, 766 N.W.2d 712 (past conduct is a relevant consideration in risk assessments)
Kansas v. Crane, 534 U.S. 407 (2002) (constitutional limits on civil commitment for sexually dangerous persons to avoid punitive use of civil process)
State v. Garvin, 329 N.W.2d 621 (N.D. 1983) (court may not increase a legally imposed sentence post hoc)
State v. Bryan, 316 N.W.2d 335 (N.D. 1982) (same)