CHRISTOPHER EVANS HUBBART, Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
No. S052136
Supreme Court of California
Jan. 21, 1999
19 Cal. 4th 1138
COUNSEL
No appearance for Respondent.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Peter J. Siggins, Assistant Attorney General, Morris Lenk and Bruce M. Slavin, Deputy Attorneys General, for Real Party in Interest.
Gary G. Kreep and Kevin T. Snider for United States Justice Foundation as Amicus Curiae on behalf of Real Party in Interest.
OPINION
BAXTER, J.--Christopher Evans Hubbart is a convicted felon with a long history of committing violent, and sometimes bizarre, sex crimes against women he does not know. Shortly before Hubbart was scheduled to be released from prison for his most recent offense, the state sought his civil commitment under a new statutory scheme, the Sexually Violent Predators Act (SVPA or Act). (
Hubbart demurred to the commitment petition on grounds the SVPA is unconstitutional.
Despite the ominous name, the SVPA operates in a familiar manner when considered in light of other involuntary commitment procedures in this state and across the nation. For reasons we explain, the Act was crafted with relevant constitutional concerns in mind. We find no merit in Hubbart‘s claim that the scheme conflicts, on its face, with due process, equal protection, and ex post facto principles. The judgment of the Court of Appeal will be affirmed.
I. STATUTORY BACKGROUND
Historically, the states have exercised a power of involuntary civil commitment involving the care and treatment of dangerous mentally disordered individuals. While some of these schemes operate in a manner largely independent of the criminal justice system,2 others are triggered only after criminal charges have been filed. Some criminal defendants receive a mental health commitment in lieu of conviction and punishment.3 Other mentally ill defendants are committed upon completion of their prison terms.4
In recent years, lawmakers across the country have perceived a link between certain diagnosable mental disorders and violent sexual behavior that is criminal in nature. Through passage of the SVPA, California is one of several states to hospitalize or otherwise attempt to treat troubled sexual predators apart from any criminal sanctions they might receive, and apart from civil commitment schemes targeting other mental health problems. (Kansas v. Hendricks (1997) 521 U.S. 346, 388-389 [117 S.Ct. 2072, 2095, 138 L.Ed.2d 501] (dis. opn. of Breyer, J.) [identifying 17 states with such statutes] (Hendricks).)
The scheme under consideration here took effect January 1, 1996. (Stats. 1995, ch. 763, § 3.) In describing the underlying purpose, the Legislature expressed concern over a select group of criminal offenders who are extremely dangerous as the result of mental impairment, and who are likely to continue committing acts of sexual violence even after they have been punished for such crimes. The Legislature indicated that to the extent such persons are currently incarcerated and readily identifiable, commitment under the SVPA is warranted immediately upon their release from prison. The Act provides treatment for mental disorders from which they currently suffer and reduces the threat of harm otherwise posed to the public. No punitive purpose was intended. (Id., § 1.)5
Second, an SVP must have been “convicted of a sexually violent offense against two or more victims.” (
No restriction is placed on the time at which a prior qualifying crime must have occurred. The definition of a “sexually violent offense” includes acts “committed on, before, or after the effective date” of the Act. (
The process for determining whether a convicted sex offender meets the foregoing requirements takes place in several stages, both administrative and judicial. Generally, the Department of Corrections screens inmates in its custody who are “serving a determinate prison sentence or whose parole has been revoked” at least six months before their scheduled date of release from prison.
The evaluation performed by the Department of Mental Health must be conducted by at least two practicing psychiatrists or psychologists in accordance with a standardized assessment protocol. (
Two evaluators must agree that the inmate is mentally disordered and dangerous within the meaning of section 6600 in order for proceedings to go forward under the Act. (Id., subd. (d).) In such cases, the Department of Mental Health transmits a request for a petition for commitment to the county in which the alleged SVP was last convicted, providing copies of the psychiatric evaluations and any other supporting documentation. (Id., subds. (d), (h) & (i).)9 “If the county‘s designated counsel concurs with the recommendation, a petition for commitment shall be filed in the superior court . . . .” (Id., subd. (i).)
The filing of the petition triggers a new round of proceedings under the Act. The superior court first holds a hearing to determine whether there is “probable cause” to believe that the person named in the petition is likely to engage in sexually violent predatory criminal behavior upon release. (
The alleged predator must remain in a “secure facility” between the time probable cause is found and the time trial is complete. (
At trial, the alleged predator is entitled to “the assistance of counsel, the right to retain
The trier of fact is charged with determining whether the requirements for classification as an SVP have been established “beyond a reasonable doubt.” (
Various provisions seek to ensure that any commitment ordered under section 6604 does not continue in the event the SVP‘s condition materially improves. To this end, annual mental examinations are required. The SVP may request appointment of an expert to perform the examination, and relevant records must be made available for this purpose. (
Unless the committed person “affirmatively waive[s]” the right to a hearing, the court must annually set a “show cause hearing” to determine whether there is “probable cause” to believe that the person‘s diagnosed mental disorder has “so changed that he or she is not a danger to the health and safety of others and is not likely to engage in sexually violent criminal behavior if discharged.” (Id., subds. (b) & (c).)12 If the court so finds, the SVP is entitled to a full hearing with the same basic rights afforded at the
initial commitment proceeding. (Id., subd. (d).) “The burden of proof at the [full] hearing shall be on the state to prove beyond a reasonable doubt that the committed person‘s diagnosed mental disorder remains such that he or she is not a danger to the health and safety of others and is likely to engage in sexually violent criminal behavior if discharged.” (Ibid.) A favorable verdict entitles the SVP to unconditional release and discharge. (Id., subd. (e).)
In addition, at any time the Department of Mental Health has reason to believe that a person committed under the Act “is no longer a sexually violent predator,” judicial review of the commitment must be sought. (Id., subd. (f).) If the court accepts this recommendation, the person is entitled to unconditional release and discharge.
There also are two ways for an SVP to be conditionally released from confinement. First, the Director of Mental Health may file with the court “a report and recommendation for conditional release” where it appears that the SVP‘s diagnosed mental disorder has “so changed that the person is not likely to commit acts of predatory sexual violence while under supervision and treatment in the community.” (
Second, the SVP may “petition[ ] the court for conditional release and subsequent unconditional discharge without the recommendation or concurrence of the Director of Mental Health.” (
case is low. (Id., subd. (b).)15 The treatment program must meet “current institutional standards for the treatment of sex offenders,” and must be based on a “structured treatment protocol” developed by the Department of Mental Health, as set forth in the Act. (Id., subd. (c).) In particular, “[t]he protocol shall describe the number and types of treatment components that are provided in the program, and shall specify how assessment data will be used to determine the course of treatment for each individual offender. The protocol shall also specify measures that will be used to assess treatment progress and changes with respect to the individual‘s risk of reoffense.” (Ibid.)
II. PROCEDURAL HISTORY
On January 2, 1996, the district attorney filed a petition in Santa Clara County Superior Court seeking to commit Hubbart under the Act. Attached to the petition was a declaration by the deputy district attorney assigned to the case stating that Hubbart was presently in the custody of the Department of Corrections and scheduled to be discharged from parole on January 25, 1996. The declaration averred that Hubbart qualified as an SVP because he had sustained convictions for sexually violent offenses against at least two victims. Hubbart was also described as mentally disordered and dangerous based on two psychiatric evaluations recently obtained by the Department of Mental Health and attached to the petition.
The evaluations were prepared by Craig Nelson and Amy Phenix, both licensed psychologists and Ph.D‘s.16 The reports began by describing two prior criminal prosecutions involving Hubbart: one in Los Angeles County in 1973, and the other in Santa Clara County in 1982. In the first case, Hubbart was charged with 21 felony offenses, and pled guilty to one count of burglary, one count of rape, and three counts of sodomy. In the second case, Hubbart was convicted of one count of rape, one count of oral copulation, six counts of false imprisonment, and at least six counts of burglary. The circumstances surrounding each of the charged crimes were similar. Hubbart broke into homes in the early morning hours, bound the hands of the lone female occupant, placed a pillowcase or other cloth over the victim‘s head, and committed a forcible sex act. In two of the most recent incidents, Hubbart administered an enema or otherwise cleaned the
victim‘s rectal cavity. Six different victims were involved in the sex crime convictions, all of whom were strangers to Hubbart.
The reports also recounted Hubbart‘s institutional history, as follows: Hubbart was committed to Atascadero State Hospital as an MDSO after sustaining the first set of convictions in 1973. He apparently received both individual and group psychotherapy, including treatments targeting sexually deviant behavior. Hubbart was released as an outpatient in 1979, but was readmitted to Atascadero in 1981, after he began reoffending in Santa Clara County. Hubbart was returned to court, convicted of the latter crimes in 1982, and sentenced to a long prison term. A short time after being paroled in April 1990, Hubbart assaulted a female jogger. He was found guilty of false imprisonment and sent to prison, where he remained at the time the petition for commitment was filed.
Finally, the experts agreed that the risk of reoffense in Hubbart‘s case was “high,” and that Hubbart was likely to commit more sexually violent crimes if released into the community. Relevant factors included the number and frequency of violent sexual assaults committed during brief periods of freedom, the lack of insight into either the seriousness of the problem or means of controlling precipitating stress, and an inability to empathize with the victims. Each expert opined that Hubbart qualified as an SVP under section 6600.
Hubbart demurred to the petition for commitment on grounds the Act was unconstitutional under various provisions, including the due process, equal
protection, and ex post facto clauses of the United States and California Constitutions. After a hearing, the trial court issued a statement of decision rejecting Hubbart‘s claims in their entirety and overruling the demurrer.
Hubbart petitioned for a writ of prohibition in the Court of Appeal, and requested a stay of the proceedings. After issuing an alternative writ and granting the stay request, the Court of Appeal filed an opinion upholding the trial court‘s decision. As pertinent here, the court concluded that the Act did not violate due process in describing SVP‘s as mentally disordered and dangerous, or in providing treatment for qualifying conditions. The court also found no equal protection violation in the manner in which dangerousness was defined under the Act as opposed to other civil commitment schemes. Finally, the court determined that because the Act was civil rather than criminal in nature, it did not raise ex post facto concerns insofar as it permitted use of pre-Act crimes. In light of these conclusions, writ relief was denied and the stay was ordered dissolved.
Hubbart petitioned for review. We granted the petition and ordered that the stay previously issued by the Court of Appeal remain in effect pending final determination of the petition for extraordinary relief. After the parties finished briefing the case on the merits, the decision in Hendricks, supra, 521 U.S. 346, was filed. At Hubbart‘s request, we allowed the parties to file supplemental briefs addressing the effect of Hendricks on this case.
III. DUE PROCESS
Hubbart does not dispute that, consistent with “substantive” due process requirements, the state may involuntarily commit persons who, as the result of mental impairment, are unable to care for themselves or are dangerous to others. Under these circumstances, the state‘s interest in providing treatment and protecting the public prevails over the individual‘s interest in being free from compulsory confinement. (See generally, Foucha v. Louisiana (1992) 504 U.S. 71, 75-76 [112 S.Ct. 1780, 1782-1783, 118 L.Ed.2d 437] (Foucha); Addington v. Texas (1979) 441 U.S. 418, 425-433 [99 S.Ct. 1804, 1808-1813, 60 L.Ed.2d 323] (Addington) [requiring proof by no less than clear and convincing evidence]; O‘Connor v. Donaldson (1975) 422 U.S. 563, 573-575 [95 S.Ct. 2486, 2492-2494, 45 L.Ed.2d 396] (O‘Connor); but see Jones, supra, 463 U.S. 354, 366-368 [103 S.Ct. 3043, 3050-3052] [lower burden of
Hubbart argues here, as in the Court of Appeal, that the definitions of mental impairment and dangerousness used for commitment under the SVPA
are flawed under the foregoing authorities. He also contends the scheme‘s treatment provisions are inadequate. We separately examine each claim, and explain why the disputed text does not conflict with due process requirements. (See Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084 [40 Cal.Rptr.2d 402, 892 P.2d 1145].)19
A. Mental Disorder
Hubbart argues that involuntary commitment statutes must be limited by their terms to persons suffering from “mental illness“--a concept which he defines as “serious cognitive, perceptual or affective dysfunction.” Hubbart notes that the “diagnosed mental disorder” needed to qualify a person as an SVP under section 6600, subdivision (a) is not phrased in this manner, and that it includes any “congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others.” (Id., subd. (c).) In Hubbart‘s view, this definition is flawed because it permits commitment based on a range of diagnosed mental impairments broader than what is constitutionally allowed, including mental disorders characterized primarily by an inability to control sexually violent impulses and behavior.
The claim lacks merit for reasons set forth in Hendricks, supra, 521 U.S. 346, which rejected a similar due process challenge under a related statutory scheme. We describe Hendricks in some detail.20
In a preamble similar to the one accompanying California‘s SVPA, the Kansas Legislature made clear that it was targeting a ” ‘small but extremely dangerous group’ ” whose members ” ‘do not have a mental disease or
defect’ ” within the meaning of the general involuntary civil commitment statute already in existence in the state. (Hendricks, supra, 521 U.S. at p. 351 [117 S.Ct. at p. 2077].) The Kansas scheme was enacted to address ” ‘antisocial personality features which are unamenable to existing mental illness treatment modalities[,]’ ” and which require ” ‘long term’ ” care under circumstances ” ‘very different’ ” from those surrounding commitment under the other, more traditional scheme. (Ibid.) The Kansas Legislature found that sexually violent predators were highly likely to reoffend, and that confinement and treatment was necessary to reduce the ” ‘risk’ ” such individuals pose to society. (Ibid.)
In light of these findings, a sexually violent predator is defined in the body of the Kansas act as ” ‘any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence.’ ” (Hendricks, supra, 521 U.S. at p. 352 [117 S.Ct. at p. 2077].)21 A ” ‘mental abnormality’ ” is defined as a ” ‘congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.’ ” (Ibid.)
Consistent with the version of the Kansas act in existence at the time, prison officials notified the local prosecutor shortly before Hendricks‘s anticipated release that he appeared to be a sexually violent predator. The prosecutor then filed a petition for commitment in state court. As required under the Kansas scheme, the trial court found probable cause to support a finding that Hendricks was a sexually violent predator, and ordered his transfer to a secure facility for psychiatric evaluation. The trial court declined to dismiss the petition on grounds the commitment scheme was unconstitutional, as requested by Hendricks. (Hendricks, supra, 521 U.S. at p. 354 [117 S.Ct. at p. 2078].)
At the ensuing trial, expert and lay testimony established that Hendricks suffered from pedophilia, that his sexual urges towards children were uncontrollable, and that he had sexually molested children for over 30 years despite several prison terms and treatment attempts. Persuaded the state had
Hendricks was a sexually violent predator beyond a reasonable doubt. (Hendricks, supra, 521 U.S. at pp. 354-355 & fn. 2 [117 S.Ct. at pp. 2078-2079].)
Hendricks appealed, renewing various federal constitutional challenges that had not been accepted as grounds to dismiss the case in the trial court. Over a vigorous dissent, a majority of the Kansas Supreme Court agreed with Hendricks that the sexual predators’ scheme violated substantive due process guarantees. The court essentially reasoned that “mental abnormality” and “personality disorder,” as defined under the act, did not satisfy a “mental illness” requirement which had purportedly been established in such cases as Foucha, supra, 504 U.S. 71, and Addington, supra, 441 U.S. 418. Hence, the act was invalidated and Hendricks‘s commitment was set aside. (Hendricks, supra, 521 U.S. 346, 356 [117 S.Ct. 2072, 2079].)
The United States Supreme Court granted a petition for certiorari by the state challenging the due process theory on which Hendricks had prevailed in the lower court. A cross-petition by Hendricks renewing ex post facto and double jeopardy claims not addressed by a majority of the Kansas Supreme Court was also granted. The United States Supreme Court ultimately rejected all constitutional challenges to the Kansas scheme, and reversed the judgment that had been entered in Hendricks‘s favor. (Hendricks, supra, 521 U.S. at p. 350 [117 S.Ct. at p. 2076].)22
At the outset, Hendricks reaffirmed the long-standing rule that “dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment.” (521 U.S. at p. 358 [117 S.Ct. at p. 2080].) “[S]ome additional factor” indicating that the person is dangerous as the result of mental impairment is required. (Ibid.)
The court reviewed its prior decisions and observed that involuntary commitment statutes had been upheld even though they used different phraseology to describe the requisite mental impairment (e.g., mental illness, mental retardation, mental disorder, and psychopathic personality). The
court also noted that it had used disparate language to describe persons who could be involuntarily confined because they were dangerous and mentally impaired (e.g., emotionally disturbed, mentally ill, incompetent, and insane). (Hendricks, supra, 521 U.S. at pp. 358-359 [117 S.Ct. at pp. 2080-2081].)
According to Hendricks, civil commitment is permissible as long as the triggering condition consists of “a volitional impairment rendering [the person] dangerous beyond their control.” (521 U.S. at p. 358 [117 S.Ct. at p. 2080].) The court made clear that due process does not dictate the precise manner in which this “volitional impairment” is statutorily described. “Indeed, we have never required state legislatures to adopt any particular nomenclature in drafting civil commitment statutes.” (Id. at p. 359 [117 S.Ct. at p. 2081].)
In explaining this approach, Hendricks emphasized the importance of deferring to the legislative branch in an area which is analytically nuanced and dependent upon medical science. The court reiterated a theme that has long appeared in cases addressing the permissible scope of commitment laws--mental health professionals do not necessarily agree on what constitutes mental illness. Hence, the Legislature, not the judiciary, is best suited to weighing the scientific evidence, and “defining terms of a medical nature that have legal significance.”
Based on the foregoing principles, the court rejected Hendricks‘s claim that the Kansas law was invalid because it did not contain an explicit “mental illness” requirement. Hendricks emphasized that the phrase “mental illness” has no “talismanic significance” for purposes of determining the sufficiency of a civil commitment scheme under the due process clause. (521 U.S. at p. 359 [117 S.Ct. at p. 2081].)
The court also agreed with the state that its statutory scheme, including the “mental abnormality” requirement, provided for the permissible confinement of persons found to be sexually violent predators. Consistent with due process requirements, the mental disorder required for commitment was
defined in terms of an emotional or volitional impairment predisposing the person to commit sexually violent behavior and making it likely he would reoffend. “[The statute] requires a finding of future dangerousness, and then links that finding to the existence of a ‘mental abnormality’ or ‘personality disorder’ that makes it difficult, if not impossible, for the person to control his dangerous behavior. [Citation.] The precommitment requirement of a ‘mental abnormality’ or ‘personality disorder’ is consistent with the requirements of [other valid statutes] in that it narrows the class of persons eligible for confinement to those who are unable to control their dangerousness.” (Hendricks, supra, 521 U.S. at p. 358 [117 S.Ct. at p. 2080].)
Finally, based on the evidence that had been introduced at trial, the court concluded that the pedophilia from which Hendricks suffered satisfied both due process and the statute. “[The] lack of volitional control, coupled with a prediction of future dangerousness, adequately distinguishes Hendricks from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings.” (Hendricks, supra, 521 U.S. at p. 360 [117 S.Ct. at p. 2081].) Also, the court noted that past criminal conduct served an important evidentiary function in establishing the dangerous mental impairments of sex offenders like Hendricks. “As we have recognized, ‘[p]revious instances of violent behavior are an important indicator of future violent tendencies.’ ” (Id. at p. 358 [117 S.Ct. at p. 208], citing Heller, supra, 509 U.S. 312, 323 [113 S.Ct. 2637, 2644].)
Following the lead of the United States Supreme Court, we reject Hubbart‘s challenge to the SVPA based on the lack of an express “mental illness” requirement.
However, these differences in labeling are purely semantical. With the exception of nonsubstantive differences in grammar, the SVPA tracks the Kansas scheme verbatim in describing the requisite mental disorder as a “congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others.” (
Hubbart claims, however, that the high court “expressly held” in an earlier case, Foucha, supra, 504 U.S. 71, that a diagnosed antisocial personality disorder can never be used as a basis for civil commitment. Due process, he argues, “requires more than predictions of dangerousness based on an antisocial personality disorder.” Hubbart seems to suggest that the SVPA must be struck down because the definition of a “diagnosed mental disorder” does not expressly exclude antisocial personality disorders or other conditions characterized by an inability to control violent antisocial behavior, such as paraphilia.
We note that Foucha did not prevent the high court from upholding the sexual predators scheme at issue in Hendricks, supra, 521 U.S. 346. And, contrary to what Hubbart suggests, due process requires an inability to control dangerous conduct, and does not restrict the manner in which the underlying impairment is statutorily defined. (See id. at pp. 358-359 [117 S.Ct. at pp. 2080-2081].) Because the SVPA meets this standard, the scheme is not flawed for the reasons Hubbart now suggests. However, because Hubbart mischaracterizes Foucha, supra, 504 U.S. 71, and because Foucha might cause confusion in other cases, we explain why Foucha does not affect the outcome in the present case. (See People v. Superior Court (Blakely) (1997) 60 Cal.App.4th 202, 211-213 [70 Cal.Rptr.2d 388] [trial court erroneously ruled that Foucha barred extended commitment of insanity acquittee based on antisocial personality disorder as a matter of law].)
In Foucha, supra, 504 U.S. 71, 73-74 [112 S.Ct. 1780, 1781-1782], a criminal defendant was found not guilty by reason of insanity and was committed under Louisiana law to a psychiatric facility until his release was medically recommended and judicially approved. The relevant statutory scheme barred the release of a person committed in this manner as long as he posed a danger to himself or others, whether or not he was also insane or mentally ill. The committed person bore the burden of proving he was not dangerous in seeking release.
After four years in confinement, proceedings began to determine whether Foucha should be released. The trial court ultimately found that Foucha was still dangerous within the meaning of the Louisiana scheme and recommitted him. The evidence showed that Foucha was no longer insane or mentally ill, because the drug-induced psychosis leading to his initial commitment had dissipated. The state made no claim to the contrary. Also, no expert opined that Foucha posed a danger to himself or the public if released. Instead, the doctors who examined Foucha refused to certify that he would not be dangerous based on his unruly behavior while institutionalized and certain antisocial personality traits. (Foucha, supra, 504 U.S. 71, 74-75 & fn. 2, 82 [112 S.Ct. 1780, 1782-1783, 1786-1787].) The trial court‘s decision denying release was upheld on review in state court. However, the judgment was reversed by the United States Supreme Court.
However, the court found no constitutional justification for Foucha‘s continued confinement in light of new evidence adduced at the hearing to determine his eligibility for release. Foucha cited Jones, supra, 463 U.S. 354, for the proposition that an insanity acquittee “may be held as long as he is both mentally ill and dangerous, but no longer.” (504 U.S. 71, 77 [112 S.Ct. 1780, 1784].) The court noted that since there was no evidence or claim that Foucha was presently insane or mentally disturbed, the basis for confining Foucha as an insanity acquittee had “disappeared.” (Id. at p. 78 [112 S.Ct. at p. 1784].) The court next observed that assuming Foucha could no longer be held as an insanity acquittee consistent with Jones, supra, 463 U.S. 354, his continued confinement was “improper absent a determination in civil commitment proceedings of current mental illness and dangerousness.” (Foucha, supra, 504 U.S. 71, 78 [112 S.Ct. 1780, 1784].) The court concluded that this standard had not been met in proceedings leading to Foucha‘s recommitment, because clear and convincing evidence of a mental disorder had not been introduced. “[I]ndeed, the State does not claim that Foucha is now mentally ill.” (Id. at p. 80 [112 S.Ct. at p. 1786].)
Finally, the court considered whether compliance with the standards generally applicable in civil commitment proceedings should be excused on the ground the Louisiana law was narrowly drawn to address the particular risks posed by dangerous insanity acquittees, including those whose sanity had been restored. In making this argument, the state relied by analogy on United States v. Salerno (1987) 481 U.S. 739 [107 S.Ct. 2095, 95 L.Ed.2d 697], in which the government‘s acute interest in preventing crime permitted the pretrial detention of dangerous arrestees under certain circumstances.
The court rejected the claim. Unlike the statute in Salerno, the Louisiana law under which Foucha was detained did not require the state to prove by clear and convincing evidence that he posed a danger to the community. The court emphasized that the state “need prove nothing to justify continued detention, for the statute places the burden on the detainee to prove that he is not dangerous.” (Foucha, supra, 504 U.S. 71, 81-82 [112 S.Ct. 1780, 1786].) The court summarized the evidence that had been introduced against Foucha—including expert testimony concerning his antisocial personality—and found little evidence of dangerousness. (Id. at p. 82 [112 S.Ct. at pp. 1786-1787].)
It was in the context of discussing the lack of evidence of dangerousness that the Foucha court made the statement emphasized by Hubbart in the present case. Specifically, the court said that Foucha‘s continued confinement could not be based solely on the fact he “once committed a criminal act and now has an antisocial personality that sometimes leads to aggressive conduct, a disorder for which there is no effective treatment . . . . This rationale would permit the State to hold indefinitely any other insanity acquittee not mentally ill who could be shown to have a personality disorder that may lead to criminal conduct. The same would be true of any convicted criminal, even though he has completed his prison term. It would also be only a step away from substituting confinements for dangerousness for our present system which, with only narrow exceptions and aside from permissible confinements for mental illness, incarcerates only those who are
Nothing in the quoted excerpt, or in Foucha as a whole, purports to limit the range of mental impairments that may lead to the “permissible” confinement of dangerous and disturbed individuals. (504 U.S. at p. 83 [112 S.Ct. at p. 1787].) Nor did Foucha state or imply that antisocial personality conditions and past criminal conduct play no proper role in the commitment determination. The high court concluded only that Foucha‘s due process rights were violated because the state had sought to continue his confinement as an insanity acquittee without proving that he was either mentally ill or dangerous.
Thus, Foucha is not inconsistent with the general due process principles set forth in Hendricks, supra, 521 U.S. 346, or with the court‘s approval of the statutory criteria needed for commitment as a sexually violent predator in the latter case. For similar reasons, Foucha does not support Hubbart‘s attack on language defining a “diagnosed mental disorder” under the SVPA.
B. Dangerousness
Hubbart contends that the Act violates due process because persons subject to its terms need not pose a serious threat of harm to the community at the time of commitment. According to Hubbart,
While due process precludes the involuntary commitment of mentally impaired persons who are not in any sense “dangerous” (O‘Connor, supra, 422 U.S. 563, 575 [95 S.Ct. 2486, 2493]), the United States Supreme Court has never directly defined the term. Assuming dangerousness is measured for constitutional purposes along the lines suggested by Hubbart, no flaw in the relevant statutory language appears. (See Conservatorship of Hofferber, supra, 28 Cal.3d 161, 176-178 [engrafting a “current dangerousness” requirement onto LPS statute authorizing conservatorship for incompetent defendants]; People v. Superior Court (Myers) (1996) 50 Cal.App.4th 826, 830 [58 Cal.Rptr.2d 32] [recognizing MDO law requires “present dangerousness” as condition of commitment].)
Contrary to what Hubbart suggests, the statute clearly requires the trier of fact to find that an SVP is dangerous at the time of commitment. The statutory criteria are expressed in the present tense, indicating that each must exist at the time the verdict is rendered. In addition, a person cannot be adjudged an SVP unless he “currently” suffers from a diagnosed mental disorder which prevents him from controlling sexually violent behavior, and which “makes” him dangerous and “likely” to reoffend. (
As we have seen, Hendricks, supra, 521 U.S. 346, authorizes involuntary commitment under the foregoing circumstances. There, the statutory criteria for commitment as a sexual predator were substantially similar to
Moreover, nothing in Hendricks or the cases on which it relied suggests that a commitment scheme must require the trier of fact to pinpoint the time at which future injury is likely to occur if the person is not confined. Nor is there any authority for Hubbart‘s suggestion that a person is not dangerous and cannot be involuntarily confined on mental health grounds unless the state proves he would otherwise inflict harm immediately upon release. For reasons we have explained, an SVP constitutes a present and substantial threat to public safety under the definition set forth in
In a related vein, Hubbart criticizes the Act because it authorizes the use of prior qualifying sex crimes to prove that the alleged predator is mentally disordered and dangerous. Hubbart suggests that this method of establishing the likelihood of future criminal conduct is inherently flawed, and that the statute does little more than establish a “presumption” of danger based on past crimes.
We disagree. Notwithstanding the nuances of psychiatric diagnosis and the difficulties
Here too, the Legislature could reasonably conclude that the evidentiary methods contemplated by the Act are sufficiently reliable and accurate to accomplish its narrow and important purpose—confining and treating mentally disordered individuals who have demonstrated their inability to control specific sexually violent behavior through the commission of similar prior crimes. As noted, the Act precludes commitment based solely on evidence of such prior crimes. (
C. Treatment
Hubbart argues that involuntary confinement for mental health reasons violates due process unless it is coupled with a statutory guarantee of treatment providing a “realistic opportunity to be cured.” He complains that recovery is not guaranteed under the Act, and that the statutory scheme reflects an implicit determination that the mental disorders and dangerous behaviors of SVP‘s cannot be cured or controlled through treatment. As evidence that the Act is concerned solely with nontherapeutic long-term “incarceration,” Hubbart cites such provisions as
At the outset, we reject Hubbart‘s suggestion that the Legislature cannot constitutionally provide for the civil confinement of dangerous mentally impaired sexual predators unless the statutory scheme guarantees and provides “effective” treatment. The court reached a similar conclusion in Hendricks, supra, 521 U.S. 346, for reasons we find persuasive here.
Hendricks argued that the Kansas scheme imposed “punishment” for prior adjudicated sex crimes and violated the rule against ex post facto legislation, because it permitted the long-term confinement of sexually violent predators and failed to provide “legitimate” treatment for their underlying mental disorders. (Hendricks, supra, 521 U.S. at pp. 361, 365 [117 S.Ct. at pp. 2081, 2083].) The high court rejected the claim. In so doing, it noted that the act‘s treatment provisions were susceptible of two different interpretations, neither of which revealed a punitive intent on the part of the Kansas Legislature. On the one hand, various sections in the Kansas scheme recognized an “obligation” on the part of state health officials to provide “treatment” to individuals who, like Hendricks, were involuntarily committed as sexually violent predators. (Hendricks, supra, 521 U.S. at p. 367 [117 S.Ct. at p. 2084].) These provisions suggested that beneficial psychiatric treatment was available, and was offered under the act. The high court reasoned that “[e]ven if . . . the provision of treatment was not the Kansas Legislature‘s ‘overriding’ or ‘primary’ purpose in passing the Act, this does not rule out the possibility that an ancillary purpose of the Act was to provide treatment, and it does not require us to conclude that the Act is punitive.” (Ibid.) Hence, the court declined to invalidate the Kansas scheme on the ground the state had refused or withheld treatment for vindictive reasons.27
The foregoing language strongly suggests that there is no broad constitutional right of treatment for persons involuntarily confined as dangerous and mentally impaired, at least where “no acceptable treatment exist[s]” or where they cannot be “successfully treated for their afflictions.” To the extent Hubbart suggests the contrary is true and that the SVPA should be invalidated as a result, he is mistaken.28
In any event, we disagree with Hubbart‘s suggestion that the Act‘s treatment provisions are a sham, either because the Legislature intended to withhold treatment or because it found that treatment was futile. The Act is based on the premise that SVP‘s suffer from clinically diagnosable mental disorders which require psychiatric care and treatment, and which are not a proper basis for commitment under other mental health schemes. (See
Moreover, the Act is accompanied by a declaration of the Legislature‘s intent to establish
The Legislature has also acknowledged the existence of “current institutional standards for the treatment of sex offenders,” and requires that they guide the Department of Mental Health in developing treatment programs under the SVPA. (
We note that provisions containing language identical to
In general, Hubbart claims the Act denies equal protection of the law because the criteria for commitment, particularly dangerousness, are less exacting than the standards used under analogous statutory schemes. Hubbart suggests that the alleged disparity is arbitrary and capricious, and that the SVPA must be struck down as a result. (See generally, Heller, supra, 509 U.S. 312, 319-321 [113 S.Ct. 2637, 2642-2643]; Humphrey v. Cady (1972) 405 U.S. 504, 508-512 [92 S.Ct. 1048, 1051-1053, 31 L.Ed.2d 394]; Baxstrom v. Herold (1966) 383 U.S. 107, 110-115 [86 S.Ct. 760, 762-765, 15 L.Ed.2d 620].)
Hubbart specifically renews a claim raised on appeal that SVP‘s are similarly situated to, and should be treated no differently from, other mentally disordered persons released from prison and subject to commitment under either the MDO law (
At its core, Hubbart‘s equal protection argument duplicates his due process attack on the same statutory language—lack of what he calls a “present dangerousness” requirement. However, the definition of an SVP set forth in
As we have explained, SVP‘s must be dangerous at the time of commitment. Read together, subdivisions
As so construed,
Thus, assuming for the sake of discussion that SVP‘s are similarly situated to other persons subject to civil commitment for the reasons Hubbart suggests, no disparate treatment occurs under the relevant statutory provisions. We reject his equal protection claim.31
V. EX POST FACTO
Hubbart emphasizes that the SVPA postpones the release from confinement of individuals who are incarcerated at the time commitment proceedings begin. (See
As Hubbart seems to realize, the ban on ex post facto legislation is narrow in scope. Recently, the United States Supreme Court restructured its understanding of the ex post facto clause by rejecting certain expansive formulations that had developed over the years, and by returning the clause to its original meaning at the time the Constitution was framed. (Collins v. Youngblood (1990) 497 U.S. 37, 41-44 [110 S.Ct. 2715, 2718-2720, 111 L.Ed.2d 30] (Collins), approving Beazell v. Ohio (1925) 269 U.S. 167, 169-170 [46 S.Ct. 68, 69, 70 L.Ed. 216], and Calder v. Bull (1798) 3 U.S. (3 Dall.) 386, 391 [1 L.Ed. 648] (opn. of Chase, J.).)
As a result, the ex post facto clause prohibits only those laws which “retroactively alter the definition of crimes or increase the punishment for criminal acts.” (Collins, supra, 497 U.S. 37, 43 [110 S.Ct. 2715, 2719], italics added; accord, Lynce v. Mathis (1997) 519 U.S. 433, 440-441 [117 S.Ct. 891, 895-896, 137 L.Ed.2d 63]; California Dept. of Corrections v. Morales (1995) 514 U.S. 499, 504, 506-507, fn. 3 [115 S.Ct. 1597, 1600-1602, 131 L.Ed.2d 588].) The basic purpose of the clause is to ensure fair warning of the consequences of violating penal statutes, and to reduce the potential for vindictive legislation. (Landgraf v. USI Film Products (1994) 511 U.S. 244, 266-267 [114 S.Ct. 1483, 1497-1498, 128 L.Ed.2d 229].) The federal and state ex post facto clauses are interpreted identically. (People v. Helms (1997) 15 Cal.4th 608, 614 [63 Cal.Rptr.2d 620, 936 P.2d 1230], and cases cited.)
The basic issue raised by Hubbart is whether the SVPA inflicts “punishment” within the meaning of Collins, supra, 497 U.S. 37, 43 [110 S.Ct. 2715, 2719]. The high court has made clear that the Legislature‘s own characterization of the law plays a critical role in this determination. Courts should “ordinarily defer” to statements in the legislative record indicating that a measure is not
Here, for instance, the Legislature disavowed any “punitive purpose[ ],” and declared its intent to establish “civil commitment” proceedings in order to provide “treatment” to mentally disordered individuals who cannot control sexually violent criminal behavior. (See, e.g.,
Contrary to what Hubbart suggests, expressions of concern over the serious harm inflicted by SVP‘s do not compel a finding of punitive intent on the Legislature‘s part. (See, e.g., floor analysis, Assem. Bill No. 888 (1995-1996 Reg. Sess.) Sept. 12, 1995 [SVPA will help “prevent the release into unsuspecting communities of sexually violent offenders who have completed their prison sentences“].) In Hendricks, a commitment scheme similar to the SVPA was enacted to ” ‘address the risk [such] sexually violent predators pose to society.’ ” (521 U.S. 346, 351 [117 S.Ct. 2072, 2077].) The high court found that the Kansas Legislature intended a nonpenal “civil commitment scheme designed to protect the public from harm.” (Id. at p. 361 [117 S.Ct. at p. 2082].) Viewing the legislative record as a whole, we reach a similar conclusion here.
Of course, a party raising an ex post facto claim is not precluded from demonstrating that the statute is ” ‘so punitive either in purpose or effect as to negate’ ” the stated intent. (Hendricks, supra, 521 U.S. at p. 361 [117 S.Ct. at p. 2082], quoting United States v. Ward, supra, 448 U.S. 242, 248-249 [100 S.Ct. 2636, 2641-2642]; accord, Allen, supra, 478 U.S. 364, 369 [106 S.Ct. 2988, 2992].) We turn to Hendricks for guidance in determining whether this “heavy burden” has been met here. (521 U.S. at p. 361 [117 S.Ct. at p. 2082].)
As previously explained, Hendricks involved a convicted child molester who, upon release from prison, was diagnosed as a dangerous pedophile and involuntarily committed under a sexual predators law enacted in Kansas long after the crime for which he was most recently punished had occurred. Hendricks argued that the new commitment scheme retroactively inflicted additional “punishment” for the same crime under the ex post facto clause, notwithstanding expressions of a nonpunitive intent on the part of the Kansas Legislature. The United States Supreme Court rejected the claim, concluding that Hendricks had failed to show that the commitment scheme was actually penal in purpose or effect.32
The court first observed that certain features traditionally associated with criminal statutes were missing. Even though prior criminal conduct was required for classification and commitment as a sexual predator, the statute did not “affix culpability” or require a finding of “criminal intent.” (Hendricks, supra, 521 U.S. at p. 362 [117 S.Ct. at p. 2082].) Instead, the person‘s history of sexually
Hendricks next found that commitment under the Kansas scheme was not punitive for ex post facto purposes even though it led to compulsory confinement. In general, “[t]he State may take measures to restrict the freedom of the dangerously mentally ill. This is a legitimate nonpunitive governmental objective and has been historically so regarded. . . . If detention for the purpose of protecting the community from harm necessarily constituted punishment, then all involuntary civil commitments would have to be considered punishment. But we have never so held.” (521 U.S. at p. 363 [117 S.Ct. at p. 2083].)
Nor was there anything particularly harsh about the conditions under which sexual predators were confined under the Kansas scheme. Such persons were placed in a secure psychiatric facility evidently located on prison grounds. The facility was isolated from the general prison population and managed by the Department of Health and Social and Rehabilitative Services, not by the Department of Corrections. The high court approved this arrangement. “The State has represented that an individual confined under the Act is not subject to the more restrictive conditions placed on state prisoners, but instead experiences essentially the same conditions as any involuntarily committed patient in the state mental institution.” (Hendricks, supra, 521 U.S. at p. 363 [117 S.Ct. at p. 2082].)
The court also found that Hendricks‘s concern over the possibility of indefinite commitment was misplaced. “Far from any punitive objective, the confinement‘s duration is instead linked to the stated purposes of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others. [Citation.] If, at any time, the confined person is adjudged ‘safe to be at large,’ he is statutorily entitled to immediate release. [Citation.] [¶] Furthermore, . . . [t]he maximum amount of time an individual can be incapacitated pursuant to a single judicial proceeding is one year. [Citation.] If Kansas seeks to continue the detention beyond that year, a court must once again determine beyond a reasonable doubt that the detainee satisfies the same standards as required for the initial confinement. [Citation.] This requirement again demonstrates that Kansas does not intend an individual committed pursuant to the Act to remain confined any longer than he suffers from a mental abnormality rendering him unable to control his dangerousness.” (Hendricks, supra, 521 U.S. at pp. 363-364 [117 S.Ct. at p. 2083].) Finally, for reasons we have already explained, Hendricks rejected a claim that commitment under the sexual predators scheme amounted to little more than “disguised punishment” because no “legitimate” treatment was offered. (521 U.S. at p. 365 [117 S.Ct. at p. 2083].) The high court noted that the Kansas scheme was enacted amidst concern for the harm caused by mentally disordered sexual predators, and to protect the public by both confining and treating such persons until they were safe to be at large. The act‘s treatment provisions could be viewed in one of two ways: (1) beneficial treatment was available and offered to promote recovery and release, or (2) no effective treatment existed for this particular group and they might be confined on a long-term basis. The court made clear that under either circumstance, the scheme did not inflict punishment within the meaning of the ex post facto clause. The state could permissibly confine dangerously disordered sex offenders based on crimes committed before the statutory scheme was enacted, because treatment was at least an ancillary goal, or
As suggested earlier, Hendricks is binding authority with respect to Hubbart‘s federal ex post facto claim. It is necessarily persuasive as to his related state constitutional claim. (People v. Helms, supra, 15 Cal.4th 608, 614, and cases cited.) Hubbart insists, however, that Hendricks should not be followed here because the statutory schemes involved in the two cases are “distinguishable” in certain material respects. He is mistaken.
Hubbart first argues that the SVPA is “inextricably linked” to the criminal justice system in identifying violent sex offenders eligible for commitment. Hubbart notes, for instance, that the Kansas scheme considered in Hendricks applied where a prior qualifying sex crime was charged and resulted in either a conviction or certain other dispositions not resulting in criminal liability, such as insanity acquittals. (See 521 U.S. 346, 352 [117 S.Ct. 2072, 2077].) Hubbart argues that the SVPA is more penal in design because, at the time of enactment, the commitment determination could not be based on prior violent sex crimes unless they resulted in “conviction.” (See
Corrections” (
Whether it is viewed in its original form or in light of amendments that have since been made, the SVPA cannot be meaningfully distinguished for ex post facto purposes from the Kansas scheme considered in Hendricks. Both laws base the commitment determination, in part, on the commission of sexually violent predatory crimes. Under both schemes, commitment proceedings can be initiated against a mentally disordered offender whose prior sexually violent crimes resulted in conviction and whose current term of imprisonment is about to expire. Indeed, Hendricks involved such a person. (521 U.S. at pp. 353-355 [117 S.Ct. at pp. 2077-2079].)35
However, the SVPA does not “affix culpability” or seek “retribution” for criminal conduct. (521 U.S. at p. 362 [117 S.Ct. at p. 2082].) Here, as in Hendricks, prior sexually violent offenses are used “solely for evidentiary purposes” to help establish the main prerequisites upon which civil commitment is based—current mental disorder and the likelihood of future violent sex crimes. (Ibid.) To ensure that commitment occurs only under these circumstances, the SVPA requires that the jury be specially instructed about the limited evidentiary role of prior violent sex crimes. ( Hubbart next claims that persons committed under the SVPA are confined under conditions more restrictive and punitive than those approved in Hendricks, supra, 521 U.S. 346. He insists SVP‘s are “sent to prison” and confined under the same conditions as state prisoners. There is no statutory support for this claim. Following trial, a person found to be an SVP is committed to the custody of the Department of Mental Health for appropriate treatment and confinement in a secure facility designated by the Director of Mental Health, usually Atascadero State Hospital. ( Hubbart next argues that commitment under the SVPA is “equivalent” to a prison sentence based on certain provisions governing the length of confinement. The primary focus of this claim is the statute allowing the SVP to petition for “conditional release and subsequent unconditional discharge without the recommendation or concurrence of the Director of Mental Health.” ( However, nothing in Hendricks purports to limit for ex post facto purposes the precise length of time during which dangerously disordered persons may be confined, or the particular procedural circumstances under which they may be released. In rejecting Hendricks‘s claim that the scheme imposed punishment because confinement was “potentially indefinite,” the court made clear that the critical factor is whether the duration of confinement is “linked to the stated purposes of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others.” (521 U.S. at p. 363 [117 S.Ct. at p. 2083].) This principle was satisfied in Hendricks because incapacitation beyond the initial commitment period required a new judicial hearing at which the state was required to prove that the sexual predator remained dangerous and mentally impaired. And, while Kansas did not offer any alternatives to confinement in a secure facility during the term of commitment (such as conditional release), the committed person was apparently entitled to unconditional release whenever it became clear in proceedings initiated by either the custodial agency or the person that he was safe to be at large. (521 U.S. at p. 364 [117 S.Ct. at p. 2083]; see id. at pp. 388-389 [117 S.Ct. at p. 2095] (dis. opn. of Breyer, J.).) Viewed as a whole, the SVPA is also designed to ensure that the committed person does not “remain confined any longer than he suffers from a mental abnormality rendering him unable to control his dangerousness.” (Hendricks, supra, 521 U.S. 346, 364 [117 S.Ct. 2072, 2083].) In general, each period of commitment is strictly limited and cannot be extended unless the state files a new petition and again proves, beyond a reasonable doubt, that the person is dangerous and mentally impaired. ( As we have explained, these procedures are supplemented by opportunities for conditional release not made available under the statutory scheme upheld in Hendricks, supra, 521 U.S. 346. ( Finally, we reject Hubbart‘s attempt to base an ex post facto violation on the alleged failure of the Act to provide “meaningful treatment” for the dangerous mental disorders of persons committed as SVP‘s. We have already rejected this argument, albeit in the context of his due process claim. It is sufficient to note that the Department of Mental Health is required to develop and provide appropriate treatment programs under the Act. ( The SVPA is not unconstitutional on any ground asserted by Hubbart. The judgment of the Court of Appeal is therefore affirmed. George, C. J., Mosk, J., Kennard, J., Chin, J., and Brown, J., concurred. WERDEGAR, J.—I concur in the majority opinion, whose reasoning with respect to the relevant federal constitutional issues seems virtually compelled by the decision of the United States Supreme Court in Kansas v. Hendricks (1997) 521 U.S. 346 [117 S.Ct. 2072, 138 L.Ed.2d 501] (Hendricks). In this facial challenge to the Sexually Violent Predators Act ( Despite its availability in the present situation, however, the Act must not be stretched beyond its constitutional limits. As Justice Kennedy wrote in his concurring opinion in Hendricks, supra, 521 U.S. at page 373 [117 S.Ct. at page 2087], “[I]f . . . civil confinement were to become a mechanism for retribution or general deterrence, or if it were shown that mental abnormality is too imprecise a category to offer a solid basis for concluding that civil detention is justified, our precedents would not suffice to validate it.” One way in which a “diagnosed mental disorder” (to employ the Act‘s terminology, see The diagnosis of antisocial personality disorder (the incidence of which has been estimated to be as high as 70 to 80 percent among incarcerated prisoners; see Janus, The Uses of Social Science and Medicine in Sex Offender Commitment (1997) 23 New Eng. J. on Crim. & Civ. Confinement 347, 368) is founded on behavioral criteria, including a history of criminality.1 The Act acknowledges that conviction of one or more sexually violent offenses constitutes evidence that may support a court‘s or jury‘s determination that the individual falls within the provisions of the Act. ( The concrete facts of some future proceeding may force this or another court to confront the potential constitutional limits of the Act. I am satisfied this case does not present such an occasion. Kennard, J., concurred.VI. DISPOSITION