139 Wash. 2d 341 | Wash. | 1999
Lead Opinion
The petitioner in this case, Special Commitment Center detainee Elmer Campbell, raises a multitude of issues related to his commitment. We are asked to determine whether alleged deficiencies in the care and treatment of persons civilly committed at the Special Commitment Center render the Community Protection Act of 1990, RCW 71.09, unconstitutional. In addition, we must review several rulings issued by the trial court in response to Campbell’s pretrial motions, motions in limine, and post-trial motions.
FACTS
Elmer Campbell is currently a resident of the Special Commitment Center (SCC) at McNeil Island. Campbell was committed to prison in 1987 for first degree assault. Originally scheduled to be released from prison in 1993, Campbell was instead civilly committed by a superior court order to the SCC as a sexually violent predator (predator) under RCW 71.09. Campbell moved to dismiss his commitment petition based on his allegation that RCW 71.09 is unconstitutional. Among his several arguments, Campbell asserted that because conditions at the SCC are allegedly unconstitutional, the statute under which he was committed is also unconstitutional. Campbell’s motion was denied.
The trial court conducted a probable cause hearing in November 1993, finding probable cause to hold Campbell a predator as defined by RCW 71.09. A jury trial followed in 1994. At trial, victim testimony chronicling Campbell’s history of violence and sexual aggression was presented. A state-certified sex offender treatment provider also testified
The jury issued its verdict, finding Campbell a predator as defined by RCW 71.09 and finding the State had proved a less restrictive alternative was not in the best interests of Campbell or the community. Campbell filed a supplemental memorandum, to which he appended United States District Court Judge William Dwyer’s order and injunction issued in Turay v. Weston, No. C91-664WD (W.D. Wash. 1994). Judge Dwyer, in his order, had found some conditions at the SCC unconstitutional. Judge Dwyer had, therefore, placed the SCC under a remedial injunction.
Following the jury’s verdict, judgment was entered to commit Campbell. The trial court then held a hearing on another motion by Campbell to dismiss his commitment petition on the grounds that some of the SCC confinement conditions are unconstitutional. In its deliberation, the trial court relied upon the record of an evidentiary hearing issued by the superior court in In re Detention of Young, No. 90-2-21319-6 (King County Super. Ct., Wash. 1993), on remand from our decision in In re Personal Restraint of Young, 122 Wn.2d 1, 857 P.2d 989 (1993), as well as supplemental testimony. The trial court issued findings of fact and conclusions of law on Campbell’s motion. The court agreed with Campbell that certain conditions at the SCC were unconstitutional. The court, however, declined to release him. Instead, the court required the State to submit a proposal for remedying conditions at the SCC, setting a new deadline for compliance. The trial court also granted permission to the Department of Social and Health Services (DSHS) to intervene in the case for the purpose of contesting personal jurisdiction.
The trial court issued its final order on Campbell’s mo
Campbell timely appealed to this court and we granted review. We affirm our 1993 decision in Young, 122 Wn.2d 1, upholding the constitutionality of RCW 71.09. We also affirm Campbell’s order of commitment.
ANALYSIS
I
RCW 71.09.060, in its present form, requires that whenever a court or a 12-person jury unanimously finds a person to be a sexually violent predator and a less restrictive alternative to total commitment is inappropriate, that person must be placed in the custody of DSHS. DSHS must provide that person with social and health services for control, care, and treatment at a secure facility operated by DSHS. This care and treatment must be adequate under the statute. RCW 71.09.060.
On appeal, Campbell raises the argument that because some of the SCC conditions of care are inadequate, his detention is criminal rather than civil in nature and, therefore, violates his right to substantive due process and protections against ex post facto laws or double jeopardy. Campbell reasons if some of the SCC conditions are unconstitutional, those unconstitutional conditions render RCW 71.09 unconstitutional as well.
At his 1994 trial, Campbell advanced this theory when he filed a motion requesting the trial court dismiss his commitment petition and release him from the SCC on the grounds that some SCC conditions were allegedly unconstitutional. In response, the trial court ruled while some of the SCC conditions did not meet constitutional muster, the
The State, in turn, argued against the jurisdictional legitimacy of the trial court’s remedial order. The State maintained the trial court lacked personal jurisdiction over the SCC’s managing state agency, DSHS. Upon consideration of the State’s motion, the court found it possessed both personal and subject matter jurisdiction over DSHS, dismissing the State’s argument, and affirming the court’s order. Campbell then argued again that the trial court, having found the SCC conditions unconstitutional, should likewise find RCW 71.09 itself unconstitutional. The trial court denied Campbell’s request.
In arguing the SCC’s conditions of care render RCW 71.09 criminal rather than civil in nature, Campbell attempts to relitigate an issue we have already resolved. In analyzing the constitutionality of RCW 71.09 in Young, we also examined the issue of whether “the Statute violates due process because . . . constitutionally required treatment is precluded due to the conditions of confinement.” Young, 122 Wn.2d at 26 (emphasis added). In Young, this court held the legislative intent of the statute is not to punish detainees and RCW 71.09 is civil, not criminal, in nature in both “purpose and effect.” Young, 122 Wn.2d at 18-25 (emphasis added). We stated, “RCW 71.09 . . . does not violate either the prohibition against ex post facto laws or the double jeopardy clause. We further hold, after a searching inquiry, that the basic statutory scheme implicates no substantive due process concerns.” Young, 122 Wn.2d at 59.
Because fundamental rights were at issue in Young, we employed a strict scrutiny test to determine if either RCW 71.09 or the SCC’s conditions violate the detainees’ rights. Young, 122 Wn.2d at 26-27. Under a strict scrutiny analysis, the statute at dispute has to both serve a compelling state interest and be narrowly drawn. Young, 122 Wn.2d at 26. We found RCW 71.09 does both. Indeed, we
Campbell cites no precedent for the proposition that whenever a statute is unconstitutionally administered, such flawed administration renders the statute itself unconstitutional. Indeed, the State correctly notes that “[Campbell’s] argument confuses the issue of a committed individual’s due process rights following a valid commitment under the Statute with the analysis of whether the Statute’s scheme for involuntary commitment is constitutional.” Br. of Resp’t at 21.
We have held, in order to evaluate a statute’s constitutionality, a court’s task is to look at the statute on its face, not whether it is adequately applied. Winchester v. Stein, 135 Wn.2d 835, 959 P.2d 1077 (1998). Winchester expressly noted that “[t]he focus ... is on the sanction allowed by the statute, not the actual sanction imposed in a particular case.” Winchester, 135 Wn.2d at 847. Finally, we iterated the principle that:
A legislature’s designation of a penalty as civil is entitled to considerable deference and that designation will not be overborne unless the statute, considered on its face and without reference to the level of sanction imposed in the particular case, is clearly so punitive as to render it criminal despite the legislature’s intent to the contrary.
Winchester, 135 Wn.2d at 853 (emphasis added).
Even assuming Campbell may properly challenge the validity of his order of commitment based upon the conditions of confinement at the SCC, hut see In re Detention of Turay, 139 Wn.2d 379, 413-20, 986 P.2d 790 (1999) (condi
To the extent Campbell’s claim is proper, he must show by “ ‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention’that the proceeding be civil. . . ."Allen v. Illinois, 478 U.S. 364, 369, 106 S. Ct. 2988, 92 L. Ed. 2d 296 (1986) (quoting United States v. Ward, 448 U.S. 242, 248-49, 100 S. Ct. 2636, 65 L. Ed. 2d 742 (1980)). Thus, the question is not simply whether the conditions of confinement are constitutionally inadequate in certain respects, but whether these constitutional infirmities transform Campbell’s civil detention into “punishment,” thereby rendering the statute “criminal” as applied. Allen, 478 U.S. at 374. See also Young v. Weston, 176 F.3d 1196, 1200, amended by 192 F.3d 870 (9th Cir. 1999) (RCW 71.09 is unconstitutional as applied only if petitioner can prove “the punitive nature of his confinement”).
Despite the fact it found certain inadequacies in the conditions and care at the SCC, the trial court in this case specifically ruled that failure to provide constitutionally adequate care and treatment did not render the statute punitive as applied. The court reasoned that where “the treatment deficiencies are subject to remediation and are being corrected, respondents have failed to prove that they are ‘confined under conditions incompatible with the state’s asserted interest in treatment.” Clerk’s Papers (CP) at 2048 (quoting Allen, 478 U.S. at 373). We note the federal district court has similarly declined to find the conditions of confinement are so punitive as to require release, but
The Wisconsin Court of Appeals dismissed an argument similar to that presented here when the court reviewed that state’s application of Wisconsin’s sexually violent predator law:
[T]he State argues persuasively that even if [the detainee] were correct that the Center failed to develop a treatment program for his special needs, [the detainee’s] conclusion that he should be released would place society at risk for his acts of sexual violence and produces an absurd result. Rather, [the State] argue[s], his remedy is to litigate that issue and, if successful, obtain appropriate treatment, not supervised release.
State v. Seibert, 220 Wis. 2d 308, 320, 582 N.W.2d 745, 749 (Ct. App.), review denied, 220 Wis. 2d 366 (1998).
In sum, we do not find that Campbell has sufficiently proven the conditions of confinement at the SCC constitute punishment so as to render RCW 71.09 criminal in nature and unconstitutional as applied to him. We agree with the trial court that the proper relief under the circumstances is to remedy any constitutional defects in the administration of the SCC. Remediation is already ongoing under the direction of the federal district court. Accordingly, Campbell’s detention under the statute is affirmed.
II
On June 21, 1993, the State filed its petition for Campbell’s commitment under RCW 71.09. At that time, there was no requirement that a probable cause hearing under RCW 71.09 be held within 72 hours, as required for hearings under RCW 71.05 (involuntary commitment statute).
On September 21, 1993, this court issued a mandate in Young, requiring a probable cause hearing under RCW 71.09 be held within 72 hours. Young, 122 Wn.2d at 42-47. Campbell now alleges the trial court erred in denying his motion to dismiss his petition based on the court’s failure
We deny Campbell’s claim on three grounds: (1) he had already been brought before a court to contest his detention, so a probable cause hearing within 72 hours was not necessary in his case; (2) Campbell failed to request such a hearing within the 72-hour time period after the issuance of Young and, thereby, effectively waived any objections; and (3) even if, arguendo, an earlier hearing had been held, it would not have changed the ultimate outcome of Campbell’s trial.
Campbell’s appearance before a judge predates this court’s ruling in Young. In Young, the petitioner detainees had been denied any opportunity to appear before a court and challenge probable cause. We corrected this procedural infirmity, mandating in Young that any potential detainees brought under RCW 71.09 have “an opportunity to appear and respond to the petition for commitment. . . .” Young, 122 Wn.2d at 46.
In Campbell’s case, unlike that of the petitioner detainees in Young, Campbell did appear before a superior court judge to contest the constitutionality of his commitment approximately 30 days after his petition was filed. He, therefore, was given an opportunity to appear and respond to the petition for commitment even prior to our mandate in Young.
Also, Campbell’s failure to timely request a hearing effectively waives any future objections he might frame as to the timing of his second probable cause hearing. Campbell’s second probable cause hearing was held approximately four weeks after the mandate issued under Young. “[A] trial court is not required to anticipate an issue on behalf of the defense. The burden is upon the defendant to request a . . . hearing. In the absence of a request, there is no error.” State v. Gould, 58 Wn. App. 175, 185, 791 P.2d 569 (1990). Campbell should have timely raised his objection.
Finally, even if there were any error in the timing of
Ill
Campbell next argues that, under our decision in Young, the State was required at trial to prove that less restrictive alternatives to commitment were considered and rejected.
We deny Campbell’s claim because the Legislature amended RCW 71.09’s definition of a sexually violent predator to exclude those persons amenable to treatment in a less restrictive setting after Campbell’s probable cause hearing. Following the passage of the 1995 amendments to RCW 71.09, the possibility of alternatives less restrictive than total confinement have been mandatory at RCW 71.09 probable cause hearings.
Moreover, any error in Campbell’s particular case was cured when the State filed an amended petition alleging the absence of any less restrictive alternative than commitment for Campbell before Campbell’s trial began. The jury unanimously found, beyond a reasonable doubt, that no less restrictive alternative than complete commitment
IV
Campbell argues RCW 71.09 creates a lower standard of commitment for sexually violent predators than is required for other persons facing civil commitment because RCW 71.09 does not require the signatures of two physicians or of one physician and one mental health professional, as is the case for involuntary commitment under RCW 71.05.
Campbell’s reasoning is flawed. The burden of proof required from the State for commitment under RCW 71.05 is clear, cogent, and convincing evidence. RCW 71.05.310. Under RCW 71.09, a person can be committed only after a full trial is held on the issue of whether that person meets the definition of a sexually violent predator. RCW 71.09.060. The burden of proof for the State under RCW 71.09 is the most stringent possible: proof beyond a reasonable doubt.
Moreover, the question of who is required to sign a commitment petition under RCW 71.09 and RCW 71.05 is a matter rationally related to the very different populations facing commitment under the two types of involuntary commitment. Commitment under RCW 71.09 pertains only to persons previously charged with, or convicted of, a sexually violent offense as defined by RCW 71.09.020(6). Thus, the commitment determination requires the expertise necessary to conduct a comprehensive legal analysis of each subject’s criminal history. This is not the case under RCW 71.05. Determining whether a person’s criminal history demonstrates that the person falls within the purview of RCW 71.09 is best done by a legally trained professional, not a physician or a mental health professional. Thus, the two populations facing commitment under these two commitment statutes are not similarly situated and the procedural differences related to what kind of expert must
V
Campbell claims the trial court erred when it included the State’s certification for probable cause in its deliberations on whether Campbell had the prior convictions necessary for civil commitment under RCW 71.09. Campbell argues the rules of evidence for commitment under RCW 71.09 should be identical to those for involuntary commitment under RCW 71.05.
Again, the rationale for the differences in procedure between the two statute’s implementation is related to disparities between the two dissimilar populations facing commitment under the statutes. As this court held in Young, “[t]he mental abnormalities or personality disorders involved with predatory behavior may not be immediately apparent.” Young, 122 Wn.2d at 52. Thus, an expert’s determination whether to detain a person under RCW 71.09 oftentimes requires a more intense review of substantial records. He or she must also interview the subject, conduct psychological evaluations, and refer to literature on recidivism.
The Legislature recognized the extensive review required for commitment under RCW 71.09 and, therefore, allowed a 45-day period under that statute for evaluation of potential detainees by qualified DSHS professionals. This probable cause hearing stage of the proceedings is not a commitment trial; it is merely a preliminary determination stage prior to the commitment trial. Its purpose is to prevent wrongful detention during the 45-day evaluation period prior to the commitment trial. Such a proceeding is most similar to the probable cause or pretrial release hearing held in criminal cases, neither of which require application of the rules of evidence. ER 1101(c)(3). This analysis is supported by State v. Anderson, 33 Wn. App. 517, 655 P.2d 1196 (1982), which held that disposition hearings under the sexual psychopath statute were analogous to other
VI
Campbell argues the trial court violated his privacy rights by keeping the courtroom open during his trial and not sealing his court file. The State counters that Campbell’s privacy interests should be balanced against the greater weight of both legal requirements and public policy interests for keeping commitment proceedings and files open.
There is a constitutional principle that both civil and criminal case proceedings are open to the public. Washington Constitution article I, section 10 requires that “justice in all cases shall be administered openly, and without unnecessary delay.” Therefore, proceedings under RCW 71.09 allow public access. Closure of such proceedings must be affirmatively mandated by statute or where there is a serious and imminent threat to some important issue. “We adhere to the constitutional principle that it is the right of the people to access open courts where they may freely observe the administration of civil and criminal justice.” Allied Daily Newspapers v. Eikenberry, 121 Wn.2d 205, 211, 848 P.2d 1258 (1993); see also Cohen v. Everett City Council, 85 Wn.2d 385, 388-89, 535 P.2d 801 (1975).
Campbell’s right to nondisclosure of intimate personal information by the State is not a fundamental right and is subject to diminishment when there is a legitimate state interest at stake. O’Hartigan v. Department of Personnel, 118 Wn.2d 111, 117, 821 P.2d 44 (1991). Case law recognizes that sex offenders threaten public safety and, therefore, have reduced privacy interests: “ ‘Persons found to have committed a sex offense have a reduced
The public has an undeniably serious interest in maintaining current and thorough information about convicted sex offenders. The specific modus operándi of sex offenders, preying on vulnerable strangers or grooming potential victims, is markedly different from the behavior of other types of persons civilly committed and such dangerous behavior creates a need for disclosure of information about convicted sex offenders to the public. Grave public safety interests are involved whenever a known sex offender’s tendency to recommit predatory sexual aggressiveness in the community is being evaluated. This substantial public safety interest outweighs the truncated privacy interests of the convicted sex offender.
VII
Campbell argues the trial court erred in admitting the testimony of Roger Wolfe because, Campbell alleges, such testimony is unreliable. We disagree.
Wolfe holds a Masters in Psychology and is a licensed psychological affiliate which permits him to practice independently. In addition, Wolfe holds a special certification as a sexual offender treatment provider that requires over 2,000 hours of actual sexual offender treatment and evaluation within the last seven years. (Washington is the first state to require such a license.) Wolfe has served as codirector of Northwest Treatment Associates for over 20 years. For over 25 years he has specialized in the evaluation and treatment of sex offenders.
The State requested Wolfe assess whether Campbell fell under the category of a sexually violent predator as defined in RCW 71.09. In order to meet this request, Wolfe met with Campbell and administered psychological testing on him. He also extensively reviewed Campbell’s criminal and penal record.
Following his examinations of Campbell and based on Campbell’s record, Wolfe testified Campbell was more likely than not to reoffend in a sexually violent and predatory manner if he were released. Finally, Wolfe testified that community release, a less restrictive alternative to confinement, was not a viable alternative for Campbell because the risk to the community at large was too great. Wolfe has continued to monitor Campbell’s progress while Campbell has been committed at the SCC and Wolfe has stated he has seen no progress that would cause him to reassess his trial testimony as to Campbell’s condition or dangerousness.
Campbell does not raise on appeal that Wolfe’s professional training and experience in the area of evaluating and treating sex offenders is inadequate. Rather, he generally questions the ability for anyone to “predict dangerousness.” Both this court in Young, 122 Wn.2d at 56-58, and the United States Supreme Court in Barefoot v. Estelle, 463 U.S. 880, 896-903, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983), have specifically rejected this kind of argument.
VIII
Campbell claims the trial court committed reversible error by impermissibly commenting on the evidence when it read jury instruction 31. That instruction reads: “The laws of the State of Washington contain no provisions for regaining custody of a person who has been determined to be a sexually violent predator and who leaves the state without authorization, whether on a less restrictive alternative or otherwise.” CP at 1190.
Washington Constitution article IV section 16 “prohibits a judge from conveying to the jury his or her personal belief in the merits of a case.” State v. Stearns, 61 Wn. App. 224, 231, 810 P.2d 41 (1991). However, “[a]n instruction does not impermissibly comment on the evidence when there is sufficient evidence in the record to support it and it is an accurate statement of the law.” Stearns, 61 Wn. App. at 231.
Campbell does not assert the judge incorrectly stated the law when jury instruction 31 was read; rather, he claims the evidence does not support the instruction. Campbell’s
Jury instruction 31 correctly stated the law and was supported by evidence in the record. It was not an impermissible comment on the evidence.
IX
Campbell claims two of his prior convictions, his 1985 conviction for indecent liberties by forcible compulsion and his 1981 juvenile conviction for lewd and lascivious acts upon the body of a minor, are constitutionally invalid on their faces. As such, Campbell contends evidence of these prior convictions was improperly admitted at trial.
We held in Young that the State may introduce prior convictions without proving their constitutional validity in appropriate circumstances. Young, 122 Wn.2d at 54. However, the court also determined a prior conviction is inadmissible when it is constitutionally invalid on its face. The court, quoting State v. Ammons, 105 Wn.2d 175, 188, 713 P.2d 719, 718 P.2d 796 (1986), defined a facially unconstitutional conviction as thus: “ ‘Constitutionally invalid on its face means a conviction which without further elaboration evidences infirmities of a constitutional magnitude.’ ” Young, 122 Wn.2d at 54-55.
Campbell categorically states that his 1981 offense “did not prove a conviction.” Br. of Appellant at 71. He does not elaborate and an examination of the record does not support Campbell’s argument. Campbell fails to intelligibly argue his claim on this issue.
X
Campbell argues when the State used his 1985 conviction as part of his civil commitment proceeding it rendered his plea in that conviction involuntary. He argues such use of his plea by the State violated the 1985 plea agreement.
A defendant negotiating a plea arrangement does not need to be advised of the collateral, as distinguished from the direct, consequences of his or her plea. Ward, 123 Wn.2d at 512-15 (sex offender registration is a collateral consequence of pleading guilty to a sex offense); In re Personal Restraint of Paschke, 80 Wn. App. 439, 909 P.2d 1328 (1996) (civil commitment under the sexually violent predator act is a collateral consequence of a guilty plea to a sexually violent offense). A direct consequence of a plea has a “ ‘definite, immediate and largely automatic effect on the range of the defendant’s punishment.’ ” Paschke, 80 Wn. App. at 444 (emphasis added) (quoting Ward, 123 Wn.2d at 512).
We held in Young that commitment under RCW 71.09 is not criminal punishment but, rather, civil commitment. It was not a foregone conclusion that Campbell would be civilly committed after his criminal confinement for the 1985 conviction. In fact, he was released after he served
CONCLUSION
Campbell has failed to adequately support and prove his profusion of claims. For the reasons set forth above, we hold that Campbell’s order of commitment was proper. Affirmed.
Guy, C.J., Smith, Alexander, and Talmadge, JJ., and Dolliver, J. Pro Tem., concur.
We note the issuance of the 15th report of the special master and the May 27, 1999 order issued by Judge Dwyer in Turay v. Weston. The federal injunction against the SCC has not been lifted although, in its order, the federal court acknowledged the state Department of Corrections’ continuing progress toward full compliance.
Although the dissent believes Young v. Weston is “dispositive” of its position that release is the remedy here, dissent at 362, the case actually decides nothing other than petitioner there is entitled to an evidentiary hearing on his claims. In order to prevail, Young must still prove his conditions of confinement are so punitive as to constitute punishment. Weston, 176 F.3d at 1199. To date, not a single court has found that the conditions of confinement at the SCC are so punitive in nature as to constitute punishment. Nor has Campbell so proven here.
In Young, we not only reaffirmed our prior holding in In re Harris, 98 Wn.2d 276, 280, 654 P.2d 109 (1982), that predictions of future dangerousness do not violate due process, but we also concluded such predictions satisfied the standard for general acceptance in the scientific community set forth in Frye v. United
In determining that predictions of future dangerousness do not offend the United States Constitution, the United States Supreme Court noted “the rules of evidence generally extant at the federal and state levels anticipate that relevant, unprivileged evidence should be admitted and its weight left to the fact finder, who would have the benefit of cross-examination and contrary evidence by the opposing party.” Barefoot, 463 U.S. at 898.
Concurrence Opinion
(concurring in the dissent) — I concur in the result urged by the dissent because the care and treatment provided for sex predators at the Special Commitment Center (SCC) violates state law.
As a part of the sexually violent predator act, chapter 71.09 RCW, the Legislature expressly guaranteed persons committed under the chapter the right to adequate care and treatment and expressly preserved all legal and constitutional rights not lost by the fact of commitment itself.
(1) Any person subjected to restricted liberty as a sexually violent predator pursuant to this chapter shall not forfeit any legal right or suffer any legal disability as a consequence of any actions taken or orders made, other than as specifically provided in this chapter.
(2) Any person committed pursuant to this chapter has the right to adequate care and individualized treatment.
RCW 71.09.080. Thus, Mr. Campbell has a statutory right to care which meets constitutional requirements while he is detained as a sexually violent predator.
As noted by the majority, the federal court likewise found conditions at SCC unconstitutional in Turay v. Weston, No. C91-664WD (W.D. Wash. 1994).
Dissenting Opinion
(dissenting) — I dissent because the remedy for unconstitutional confinement is release; and expert opinion testimony predicting reoffense is inadmissible where the scientific community has not accepted the reliability of the underlying principles upon which it is based. For dispositive authority I rely upon Young v. Weston, 176 F.3d 1196 (9th Cir. 1999), amended by 192 F.3d 870 (9th Cir. Sept. 16, 1999) (hereinafter “amended (Sept. 16, 1999)”). I posit the majority’s ultimate rationale is the result it seeks, not the legal principles which should guide its inquiry.
I
Remedy for Unconstitutional Confinement is Release
The trial court found procedures employed by the Special Commitment Center (SCC) were “more punitive than that afforded incarcerated criminals in violation of respondents’ substantive due process rights.” Clerk’s Papers (CP) at 2043. Nevertheless, the trial court refused to release Campbell because “the treatment deficiencies are subject to remediation . . . .” CP at 2048. As a result, Campbell was
The majority acknowledges Campbell is held under unconstitutionally punitive conditions (Majority at 345), but likewise denies him release from custody pursuant to his petition for writ of habeas corpus. Majority at 346, 351. It defends this bizarre result by failing to acknowledge (1) a facially valid statute may nevertheless be unconstitutionally applied and (2) where unconstitutional conditions of confinement render the confinement itself unconstitutional, and there is no alternative constitutional confinement, the habeas corpus remedy is release.
Challenge is As-Applied.
Most fundamentally, the majority confuses a facial challenge to the validity of a statute with a challenge to the way it is applied in fact. Campbell’s claim is as-applied:
Dismissal is required because the State’s punitive conduct towards Mr. Campbell rendered the Statute as applied to him unconstitutionally excessive.
Br. of Appellant at 25. An as-applied challenge puts at issue not the facial validity of the statute but rather the alleged unconstitutional application of the statute to the prisoner. Compare In re Detention of Turay, 139 Wn.2d 379, 390, 986 P.2d 790 (1999). It is specifically not Campbell’s claim, although the majority would mischaracterize it, that “unconstitutional conditions render the sentencing[
In Young the United States Court of Appeals reversed dismissal of the writ, remanding for a fact-finding hearing, holding:
[I]f Young’s confinement pursuant to the Washington statute is punitive, then the statute, as applied to Young, violates the ex post facto and double jeopardy clauses of the United States Constitution.
Young, 176 F.3d at 1199, amended (Sept. 16, 1999).
Campbell’s claim, and the facts supporting it, are indistinguishable from Young’s with one important exception: The lack of treatment and punitive nature of Campbell’s confinement has been factually established by the trial court, is not challenged on appeal, and is therefore a verity for the purpose of our review. Riley v. Rhay, 76 Wn.2d 32, 33, 454 P.2d 820 (1969); State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
Unlike today’s majority, the United States Court of Appeals recognized the difference between unconstitutional incarceration which results from the misapplication of an otherwise facially valid statute and unconstitutional incarceration which results from a facially invalid statute. Citing the Washington State Supreme Court in In re Personal Restraint of Young, 122 Wn.2d 1, 857 P.2d 989 (1993) and the United States Supreme Court in Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997), which found the Washington statute, and one nearly identical to it, facially constitutional, the Court of Appeals cautioned neither would “preclude the possibility that the Washington statute, as applied, is punitive.” Young, 176 F.3d at 1199, amended (Sept. 16, 1999). This is in keeping with the role of the judiciary to pronounce judgment on the
Both Hendricks, 521 U.S. 346, 361, 117 S. Ct. at 2082, and Young, 122 Wn.2d at 35, considered only a facial challenge to the statute, expressly reserving an as-applied challenge. A facial challenge will succeed only if the statute cannot, under any conceivable set of circumstances, be valid. United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100, 95 L. Ed. 697 (1987). Of course one can “conceive” of a program which provides treatment in a therapeutic, nonpunitive setting; however, imagination often exceeds reality.
Given this test, the task to prove a statute facially invalid is a difficult one; however, the burden to prove an unconstitutional application of even a facially valid statute is by a mere preponderance of the evidence. So held the trial court, citing with approval Landman v. Royster, 333 F. Supp. 621, 637 (E.D. Va. 1971) (Prisoner’s due process challenge to administration of prison disciplinary system held subject to burden of proof by a preponderance.); cf. In re Personal Restraint of Powell, 117 Wn.2d 175, 184, 814 P.2d 635 (1991) (In a collateral attack, petitioners “must show by a preponderance of the evidence that a constitutional error has caused them actual prejudice.”); and State v. S.H., 75 Wn. App. 1, 20, 877 P.2d 205 (1994) (In a personal
The majority continues: “To the extent Campbell’s claim is proper, he must show by ‘ “the clearest proof” that “the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention” that the proceedings be civil . . . .’ ” (alterations in original) (quoting Allen v. Illinois, 478 U.S. 364, 369, 106 S. Ct. 2988, 92 L. Ed. 2d 296 (1986)). Majority at 349. Allen supports the position advanced by Campbell because Campbell has in fact proved the punitive nature of his confinement to the trial court’s satisfaction by the clearest proof. This was the exact prospect foreseen in Young v. Weston, amended (Sept. 16, 1999) 192 F.3d 874 (“[W]e conclude that Young has alleged sufficient facts that, if proved, would constitute such ‘clear proof.’ ”).
In Allen the State of Illinois sought civil commitment of Terry B. Allen pursuant to its Sexually Dangerous Persons Act. Allen was interviewed by the state psychiatrist who testified against him at the time of trial over Allen’s objection based upon the self-incrimination clause of the Fifth Amendment. Acknowledging the privilege against self-incrimination does not pertain to civil proceedings, Allen claimed the Illinois statute was substantively criminal on its face. Rejecting the facial claim, the Supreme Court opined,
Had petitioner shown, for example, that the confinement of such persons imposes on them a regimen which is essentially identical to that imposed upon felons with no need for psychiatric care, this might well be a different case. But the record here tells us little or nothing about the regimen at the psychiatric center, and it certainly does not show that there are no relevant differences between confinement there and confinement in the other parts of the maximum-security prison complex. Indeed, counsel for the State assures us that under*367 Illinois law sexually dangerous persons must not be treated like ordinary prisoners. We therefore cannot say that the conditions of petitioner’s confinement themselves amount to “punishment” and thus render “criminal” the proceedings which led to confinement.
Allen, 478 U.S. at 373-74 (citation to record omitted).
The distinction drawn in Allen between a commitment statute civil on its face yet punitively applied in practice is precisely the distinction urged by Campbell but ignored by this court’s majority. Here the trial court found the actual conditions of confinement were more punitive than prison. CP at 2048.
Our majority confuses the factual findings of the trial court that the terms and conditions of Campbell’s confinement were punitive (“more punitive than that afforded incarcerated criminals,” CP at 2043) with the trial court’s legal conclusion (which we must review on appeal) “that failure to provide constitutionally adequate care and treatment did not render the statute punitive as applied.” Majority at 349. To extend this purported rule of law, a civil committee confined to a dungeon, denied treatment, and flogged on a daily basis would not be entitled to release because the “deficiencies are subject to remediation” (Majority at 349 (quoting trial court, CP at 2048)), even though the “deficiencies” have not in fact been remediated.
In Young the United States Court of Appeals rejected this argument, holding Young was entitled to a factual hearing on his habeas corpus petition concluding his allegations of punitive confinement as a matter of law entitled him to release if factually proved:
We hold that Young alleged facts which, if proved, would establish the punitive nature of his confinement and would entitle him to relief.
Young, 176 F.3d at 1200, amended (Sept. 16, 1999).
While the majority in the companion case of In re Detention of Turay, 139 Wn.2d 379, admittedly cannot distinguish
Although the majority does not remand for further factual findings (unlike Young), I agree remand is unnecessary here because the trial court adopted numerous findings, not challenged on appeal, detailing the absence of treatment in an extremely punitive environment. Although the majority opinion unaccountably says nothing about the specific conditions of confinement, it concludes Campbell has “failed to prove the conditions of confinement are punitive.” Majority at 349. I will therefore assist by referencing the record and findings of the trial court.
The SCC is operated by the Department of Social and Health Services, but is housed entirely within a Department of Corrections (DOC) prison facility. CP at 1949. Because the SCC shares a physical facility with the DOC, the SCC is dependent on DOC for many services including shared use of the law library and visiting rooms, and medical and meal services. CP at 1949. The SCC “residents” are frequently and unknowingly monitored by electronic surveillance equipment. CP at 1949-50. Space limitations and some elements of facility design render the SCC more restrictive than DOC facilities. CP at 1950.
The DOC provides the SCC with backup emergency security. CP at 1950. SCC has called DOC staff for a “show of force” against residents on at least six occasions. CP at 1950. DOC perimeter guards are permitted to shoot SCC residents who attempt to escape from the facility. CP at 1950. The SCC “resident security classification system” purports to measure an inmate’s security risk, but includes nonrelevant factors such as an inmate’s commitment to the treatment program. CP at 1950-51.
Residents undergoing “treatment” as well as those choosing not to participate in treatment are housed together, despite recommendatipns that segregation would further treatment goals. CP at 1951. SCC forensic therapists have conducted strip searches of Campbell and other residents, even though this practice is incompatible with the program treatment goals as it harms the therapeutic relationship. CP at 1952.
The only group therapy offered at SCC occurred for less than one year, met for a maximum of three hours each week, involved five residents at most, and was cancelled due to the inability of the leader to manage the group. CP at 1956. A resident is not permitted into group therapy until a comprehensive assessment has been completed and the resident has admitted the commission of crimes. CP at 1956.
There are no state-certified sexual offender treatment providers on the SCC staff. CP at 1957. The staff members most directly involved in the treatment and management of residents are employees classified as forensic therapists. CP at 1957. Although the forensic therapists have primary responsibility for providing individual therapy to residents, none are psychologists, psychiatrists, psychiatric social workers, or nurses. CP at 1958. No treatment manual exists. CP at 1958.
The SCC has not established formal grievance procedures
The SCC staff have behaved inappropriately. For example, staff have verbally abused residents and made derisive comments about residents’ status or race. CP at 1960. Staff have laughed during strip searches of residents. CP at 1960. And staff have requested residents to harm other staff members. CP at 1960. Pornography has been provided to residents by staff. CP at 1960.
Ample evidence supports the trial court’s finding that the State has failed to provide Campbell with any meaningful treatment and the conditions of his confinement are nothing short of punitive.
Although the majority admits these and other conditions of confinement, and lack of treatment, are unconstitutional (Majority at 350), it fails to articulate the necessary conclusion that the confinement itself is thereby rendered unconstitutional. This is necessarily the proper legal conclusion because punitive conditions of confinement are inherently inconsistent with the civil nature of the statute. Indeed a previous majority of this court upheld the statute against claims of facial invalidity premised upon the ex post facto and double jeopardy clauses of the United States Constitution only because that majority held the statute was civil and nonpunitive on its face.
But if Campbell’s incarceration is unconstitutional, he is entitled to an appropriate remedy, not judicial indifference. Although the majority reasons “the proper relief under the circumstances is to remedy any constitutional defects in the administration of the SCC,” Majority at 350, the immediate task is to remove Campbell from the unconstitutional conditions, which means removing him from the SCC. Since this court previously held an individual confined under the
It is clear . . . that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody.
Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973). The Supreme Court has traced the history of the writ:
[0]ver the years, the writ of habeas corpus evolved as a remedy available to effect discharge from any confinement contrary to the Constitution or fundamental law ....
Id. at 485, and has described the writ as “the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action,” Harris v. Nelson, 394 U.S. 286, 290-91, 89 S. Ct. 1082, 22 L. Ed. 2d 281 (1969), emphasizing “there is no higher duty than to maintain [habeas corpus] unimpaired.” Bowen v. Johnston, 306 U.S. 19, 26, 59 S. Ct. 442, 83 L. Ed. 455 (1939).
The instant proceeding, which attacks the very constitutionality of this confinement, must be distinguished from federal civil rights actions brought to challenge the conditions of confinement absent a claimed right to release. Cf. Crawford v. Bell, 599 F.2d 890 (9th Cir. 1979) (petitioner did not challenge the legality of his imprisonment or allege he was entitled to release, but rather complained about the failure of prison authorities to provide a program of conjugal visits, a prison slaughterhouse that rendered tainted meat for prisoner consumption, and an inadequate law library).
Although the United States Supreme Court has left open the question whether habeas corpus may be used to review the constitutionality of conditions of confinement, id. at 150 n.393 (citing Bell v. Wolfish, 441 U.S. at 526 n.6), where the prisoner’s incarceration is unconstitutional the remedy under habeas corpus is release or at least “release from the unconstitutional custody ‘subject to imposition of the potential lawful custody.’ ” Schwartz, supra, at 150 (quoting Developments in the Law — Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1082 (1970)).
If there were a second special commitment center functioning in a constitutionally appropriate fashion to accomplish the civil goals of the statute, the state might have a strong argument that the court should transfer Campbell to that facility in lieu of release; however, in our state there is only one special commitment center and, as this record amply demonstrates and the majority admits, the conditions therein are unconstitutionally punitive.
Therefore the state has forced this court to choose between upholding the rights of this prisoner who is unconstitutionally confined, on the one hand, or continuing the unconstitutional confinement on the other. The majority’s choice flies in the face of the United States Court of Appeals opinion in Young, 176 F.3d 1196, amended (Sept. 16, 1999), which pointedly states:
Nor did Young’s factual challenge regarding the conditions of confinement receive a full and fair hearing by the Washington Supreme Court.
Id. at 1201. I would add, nor has Campbell’s.
Admissibility of Wolfe’s Testimony.
Wolfe’s expert testimony was not based on accepted scientific principles, was not helpful to the trier of fact, and therefore should not have been admitted into evidence.
Although I would order release independent of evidentiary rulings for the reasons stated above, the majority’s treatment of the evidence issue deserves a dissent in its own right.
In the dark heart of the sex predator statute is the legislative denial of free will and individual responsibility. This is true because a “sexually violent predator” is legislatively defined as one “who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence . . . .” RCW 71.09.020(1). Necessarily one who simply commits a violent sexual act through volitional choice is outside the statute. Such an individual is what the criminal law is made for. But in theory the person who does this because his “mental abnormality” or “personality disorder” “makes” him do it is not a person acting by his free will and, consequently, not one who can be held accountable for his choices.
Therefore evidence is necessary to distinguish between those who volitionally act of their free will and those who don’t. On its face future acts of violence based on free choice are not only outside the statute but would seem unpredictable in principle. On the other hand one would expect those acting out their nonvolitional destiny by reason of a “mental abnormality” or “personality disorder” which causes violent sexual conduct would show themselves through the application of diagnostic criteria proved in the scientific arena to be reliable and accurate through repetition and replication. Reciprocally, when such predictions are not based on proven methodology they lack the competence justifying consideration by the trier of fact because
The necessity for testimony based upon good science is only heightened by the statistical observation that 88 percent of sex offenders will not reoffend if released,
Thus a probing inquiry into the scientific basis of such testimony as a threshold to its admission into evidence is not only entirely appropriate but absolutely necessary.
According to the majority, Campbell challenges the admissibility of Mr. Wolfe’s testimony because “he generally questions the ability for anyone to ‘predict dangerousness.’ ” Majority at 357. To this, the majority counters, “[b]oth this court in Young, 122 Wn.2d at 56-58, and the United States Supreme Court in Barefoot v. Estelle, 463 U.S. 880, 896-903, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983), have specifically rejected this kind of argument.” Majority at 357 (footnote omitted). But the majority misconstrues Campbell’s argument and fails to acknowledge ample authority supporting his position.
Campbell challenges the admissibility of Wolfe’s testimony on the basis of Frye v. United States, 293 F. 1013, 34 A.L.R. 145 (App. D.C. 1923) and ER 702. Campbell does not “generally” question the ability to predict dangerousness but specifically challenges the unscientific method employed by Wolfe to make his prediction in this
“The rationale of the Frye standard, which requires general acceptance in the relevant scientific community, is that expert testimony should be presented to the trier of fact only when the scientific community has accepted the reliability of the underlying principles.” State v. Copeland, 130 Wn.2d 244, 255, 922 P.2d 1304 (1996) (citation omitted). While it is not the function of the court itself to assess the reliability of the evidence, “ ‘[i]f there is a significant dispute between qualified experts as to the validity of scientific evidence, it may not be admitted.’ ” Id. at 255 (quoting State v. Cauthron, 120 Wn.2d 879, 887, 846 P.2d 502 (1993)).
Thus, the question is whether the psychiatric community has accepted the reliability of either the clinical or actuarial method to predict dangerousness. To answer, we must “undertake a searching review which may extend beyond the record and involve consideration of scientific literature
When conducting risk assessments, mental health professionals employ two distinct methods. With the clinical approach, “expert evaluators consider a wide range of empirically validated risk factors and then form an overall opinion concerning the offender’s recidivism risk.” R. Karl Hanson, What Do We Know About Sex Offender Risk Assessment?, 4 Psychol., Pub. Pol’y, & L. 50, 52 (1998). In contrast, “the actuarial approach considers a small number of variables but applies explicit rules for translating the rankings on the individual variables into an overall risk rating.” Id. at 62.
There is, however, widespread agreement among mental health experts that clinical predictions of dangerousness are highly unreliable.
In literally hundreds of comparisons over many domains including the prediction of recidivism, clinical judgment has essentially never been found to be superior to actuarial methods, whereas the converse has most often been demonstrated (Grove & Meehl, 1996; Mossman, 1994). Some studies have shown better-than-chance (i.e., they outperformed blind guesswork) performance by clinicians, but many have not. No studies have demonstrated that clinicians’ judgments are more accurate than those of laypersons, and there is at least one study showing that they are not (Quinsey & Ambtman, 1979).
Grant T. Harris et al., Appraisal and Management of Risk in Sexual Aggressors: Implications for Criminal Justice Policy, 4 Psychol., Pub. Pol’y, & L. 73, 88 (1998). Nor, for that matter, has the reliability and validity of the actuarial method been established either:
Although significant advances have been made in the ability to predict sex offender recidivism, the application of these schemes to individuals convicted under sexual predator laws is still problematic. Even though the actuarial prediction scheme significantly improved prediction over chance, there are still a number of false positives and negatives.
Judith V. Becker & William D. Murphy, What We Know and Do Not Know About Assessing and Treating Sex Offenders,
The majority erroneously contends Young and Barefoot v. Estelle, 463 U.S. 880, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983), have conclusively decided this issue adverse to the prisoner. Not so. In Young this court cited one study in support of the proposition that sexual recidivism may be accurately predicted; however, it did not endorse the quite different proposition that such predictions are generally accepted as reliable and valid. As Frye requires “general acceptance” before a scientific theory may be presented to the jury, Young’s analysis does not establish the requisite general acceptance. Barefoot is equally inapplicable. There the appellant argued his Eighth and Fourteenth Amendment rights were violated by the State’s use of psychiatric testimony at the sentencing phase of his capital case. When Justice Blackmun argued in his dissent “scientific proof’ was lacking to establish future dangerousness, the Court responded “[t]he federal cases cited [by the] dissent as rejecting ‘scientific proof’ . . . are not constitutional decisions, but decisions of federal evidence law.” Barefoot v. Estelle, 463 U.S. at 899 n.6. But the issue here is evidentiary.
Wolfe’s testimony was equally inadmissible under ER 702 because it was not helpful to the trier of fact. ER 702 allows testimony by an expert only if it “will assist the trier of fact to understand the evidence.” This includes an evaluation of the admissibility of a particular expert’s opinion based upon general acceptance, if any, of the principles from which he reasons.
If there is a precise problem identified by the defense which would render the test unreliable, then the testimony might not meet the requirements of ER 702 because it would not be helpful to the trier of fact.
State v. Cauthron, 120 Wn.2d 879, 890, 846 P.2d 502 (1993).
State v. Greene, 139 Wn.2d 64, 984 P.2d 1024 (1999) is also helpful. There we held expert testimony the defendant suffered from disassociative identity disorder (DID) would not be helpful to the trier of fact and refused to admit it notwithstanding the admitted expertise of the witness. Although we found DID is generally accepted within the scientific community as a diagnosable condition, this “does not necessarily mean, however, that such evidence is admissible in any particular case.” Greene, 139 Wn.2d at 73. Rather, scientific evidence is inadmissible under ER 702 “unless it is helpful to the trier of fact under the particular facts of the specific case in which the evidence is sought to be admitted.” Greene, 139 Wn.2d at 73 (citation omitted) (emphasis added). An examination of the particular facts in Greene revealed the experts were unable — using any method — to reliably evaluate the sanity of a defendant suffering from DID.
According to the testimony and argument in this case, however, none of the various approaches have been accepted as producing results capable of reliably helping to resolve questions regarding sanity and/or mental capacity in a legal sense.
Id. at 77.
Ill
Conclusion
It was clear to the United States Court of Appeals for the Ninth Circuit “that the Washington state courts did not afford Young a full and fair hearing concerning the conditions of confinement in the Special Commitment Center.” Young, 176 F.3d at 1201, amended (Sept. 16, 1999). So too it must he equally clear that the majority in this proceed- • ing continues that unfortunate result-oriented trend. The Great Writ of antiquity
Motions for reconsideration denied December 14, 1999.
Since one can be “sentenced” only under a criminal statute, and this court upheld the statute against facial challenge in In re Personal Restraint of Young, 122 Wn.2d 1, 857 P.2d 989 (1993) only by concluding it is civil, not criminal, id. at 23, use of the term “sentence” by the majority may be the judicial equivalent of a “Freudian slip” acknowledging the true nature of the proceedings.
Eric S. Janus & Paul E. Meehl, Assessing the Legal Standard for Predictions of Dangerousness in Sex Offender Commitment Proceedings, 3 Psychol., Pub. Pol’y, & L. 33, 53 (1997) (“In Washington State, the measured sex-offense rearrest rate for the same group was 12%, with a follow-up period of 7 years.” (citing Washington State Institute foe Public Policy, Findings from the Community Protection Research Project: A Chartbook 25 (5th ed. 1996))).
Dicta in In re Harris, 98 Wn.2d 276, 280, 654 P.2d 109 (1982), suggests that predictions of future dangerousness do not necessarily violate constitutional due process although “[t]here is no question the prediction of dangerousness has its attendant problems.” Id. at 281, In re Young, 122 Wn.2d at 56. Although in Harris we stated, “[W]e are not prepared to abandon the possibility of conforming the law of involuntary civil commitment to the requirements of the constitution,” Harris, 98 Wn.2d at 281 (emphasis added), that is a far cry from stating such evidence, particularly when based upon methodology not generally accepted, is admissible under ER 702.
In In re Young, 122 Wn.2d at 55, a majority of the court, citing Hams, rejected the claim “that the experts had no basis for their testimony that any particular mental abnormality or personality disorder exists which makes a person likely to rape, or . . . reoffend” notwithstanding the considered contrary opinion of the Washington State Psychiatric Association. Hopefully this statement is not a blanket invitation to admit all such testimony no matter how incompetent, but only a sentiment that in the context of a facial challenge we cannot presume all such testimony would necessarily be inadmissible no matter what its basis.
For general discussion see In re Personal Restraint of Well, 133 Wn.2d 433, 451-52, 946 P.2d 750 (1997) (Sanders, J., dissenting).