In re the Detention of Nicholas Wygle
A person subject to commitment under the Sexually Violent Predator Act requests interlocutory review of the denial of his motion to dismiss the civil commitment proceedings. REVERSED AND REMANDED WITH DIRECTIONS.
Michael H. Adams, Chief Public Defender, for appellant.
Thomas J. Miller, Attorney General, and Tyler J. Buller and Keisha F. Cretsinger, Assistant Attorneys General, for appellee.
In this case, Nicholas Wygle appeals a district court‘s denial of his motion to dismiss the State‘s petition for his civil commitment as a sexually violent predator (SVP) under
The State makes no claim that Wygle committed a recent overt act, a requirement required for civil commitment under
For the reasons expressed below, we conclude that Wygle is not “presently confined” under
I. Factual Background and Proceedings.
In July 2012, Wygle was convicted of assault with intent to commit sexual abuse. The district court sentenced Wygle to serve an indeterminate term of incarceration not to exceed two years. In addition, the district court sentenced Wygle to serve a ten-year special sentence pursuant to
On March 14, 2016, the State filed a petition to have Wygle civilly committed as a sexually violent predator under
On August 30, Wygle filed a motion to dismiss because he was no longer “presently confined” under
Wygle filed an application for interlocutory appeal which we granted. For the reasons expressed below, we conclude the district court erred in not dismissing the petition.
II. Standard of Review.
This case involves a question of statutory interpretation. Review is for errors at law. In re Det. of Geltz, 840 N.W.2d 273, 275 (Iowa 2013).
III. Discussion.
A. Introduction.
The sole issue in this case is whether under the facts and circumstances Wygle was “presently confined” under
B. Constitutional Context of Overt-Act Requirement for Civil Confinement Based on Dangerousness.
Preventive detention is very limited in American law because it is seen as antithetical to fundamental liberty interests and the presumption of innocence. As Justice Jackson noted over half a century ago in Williamson v. United States, 184 F.2d 280, 282 (2d Cir. 1950), “Imprisonment to protect society from predicted but unconsummated offenses is so unprecedented in this country and so fraught with danger of excesses and injustice that I am loath to resort to it . . . .”
Further, our legal tradition has emphasized that involuntary civil commitment is a “massive curtailment of liberty,” Humphrey v. Cady, 405 U.S. 504, 509 (1972), and a “grievous loss,” Vitek v. Jones, 445 U.S. 480, 488 (1980). As Justice Kennedy has observed, “[I]ncarceration of persons is . . . one of the most feared instruments of state oppression and . . . freedom from this restraint is essential to the basic definition of liberty in the Fifth and Fourteenth Amendments.” Foucha v. Louisiana, 504 U.S. 71, 90 (1992) (Kennedy, J., dissenting). In addition to the dramatic deprivation of liberty, cases have noted the social stigmatization that arises from involuntary commitment. See Addington v. Texas, 441 U.S. 418, 425–26 (1979); Stamus v. Leonhardt, 414 F. Supp. 439, 449 (S.D. Iowa 1976); Godwin v. State, 593 So. 2d 211, 214 (Fla. 1992); In re Det. of Harris, 654 P.2d 109, 111 (Wash. 1982) (en banc).
“Courts have traditionally been the protector of individual rights against state power . . . .” David L. Bazelon, Institutionalization, Deinstitutionalization and the Adversary Process, 75 Colum. L. Rev. 897, 910 (1975). Given the truly weighty
In order to narrowly limit the scope of involuntary civil commitments to situations involving nonspeculative danger and satisfy the demands of due process, many courts in the past have required the state to show an overt act, attempt, or threat. For instance, in Stamus, the federal district court held that the lack of an overt-act requirement was a factor in finding an Iowa involuntary hospitalization statute unconstitutional on due process grounds. 414 F. Supp. at 450–51; see also Suzuki v. Yuen, 617 F.2d 173, 178 (9th Cir. 1980); Doremus v. Farrell, 407 F. Supp. 509, 514–15 (D. Neb. 1975); Lynch v. Baxley, 386 F. Supp. 378, 391 (M.D. Ala. 1974). The rationale for an overt-act requirement is that the present “dangerousness” required for civil commitment is an amorphous concept that must be supported by some concrete, individualized evidentiary showing to prevent arbitrary confinement. See In re Kochner, 662 N.W.2d 195, 202 (Neb. 2003) (“The recent violent act requirement is meant as a safeguard to ensure that the liberty of the subject is not unjustly restrained.“); see also Reed Groethe, Overt Dangerous Behavior as a Constitutional Requirement for Involuntary Civil Commitment of the Mentally Ill, 44 U. Chi. L. Rev. 562, 574–79 (1977).
Beginning in the 1990s, states began to enact SVP-type statutes. See John Q. La Fond, The Costs of Enacting a Sexual Predator Law, 4 Psychol. Pub. Pol‘y & L. 468, 474 (1998). Unlike the usual general civil commitment statutes, the new SVP statutes often did not require that an individual have a “mental illness,” but only a “mental abnormality.” See Kaitlyn Walsh, Note, Antisocial Personality Disorder and Donald DD.: Distinguishing the Sex Offender from the Typical Recidivist in the Civil Commitment of Sex Offenders, 44 Fordham Urb. L.J. 867, 884 (2017). Further, the statutes required the state to show various formulations of dangerousness in order to commit an individual as a sexually violent predator. See Deirdre M. Smith, Dangerous Diagnosis, Risky Assumptions, and the Failed Experiment of “Sexually Violent Predator” Commitment, 67 Okla. L. Rev. 619, 661 (2015) [hereinafter Smith].
SVP statutes were attacked as arbitrary on several grounds. First, many critics found the concepts of mental abnormality or mental disorder to be “so vague and broad that it excludes almost no one.” Eric S. Janus, Closing Pandora‘s Box: Sexual Predators and the Politics of Sexual Violence, 34 Seton Hall L. Rev. 1233, 1237 (2004) [hereinafter Janus]; see, e.g., Grant H. Morris, The Evil That Men Do: Perverting Justice to Punish Perverts, 2000 U. Ill. L. Rev. 1199, 1206–07 (2000); Stephen J. Morse, Fear of Danger, Flight from Culpability, 4 Psychol. Pub. Pol‘y & L. 250, 265 (1998).
Second, the ability to link the mental abnormality with future behavior is fraught with difficulty. See Smith, 67 Okla. L. Rev. at 674–76 (describing absence of strong correlation between diagnosis of a
Third, and more generally, predicting future behavior is said to be extremely difficult. Melissa Hamilton, Public Safety, Individual Liberty, and Suspect Science: Future Dangerousness Assessments and Sex Offender Laws, 83 Temp. L. Rev. 697, 726–31 (2011) [hereinafter Hamilton, Public Safety] (describing the scientific problems with several actuarial assessment models, noting that a meta-analyses of studies at best show actuarial models to be less than “moderately predictive“); Lisa Kavanaugh, Note, Massachusetts‘s Sexually Dangerous Persons Legislation: Can Juries Make a Bad Law Better?, 35 Harv. C.R.-C.L. L. Rev. 509, 512 (2000) (“Most mental health professionals agree, however, that advances in actuarial techniques have not yet significantly improved their ability to predict long-term future dangerousness, which is the centerpiece of most civil commitment schemes.“); Smith, 67 Okla. L. Rev. at 675 (“Psychiatrists have long rejected the notion that they have a special ability to predict future behavior, particularly dangerous conduct.“). It has been claimed, for instance, that the predictions of experts are little better than chance. See Smith, 67 Okla. L. Rev. at 700 (citing Rebecca L. Jackson et al., The Adequacy and Accuracy of Sexually Violent Predator Evaluations: Contextualized Risk Assessment in Clinical Practice, 3 Int‘l J. Forensic Mental Health 115, 124 (2004)); see also Erica Beecher-Monas & Edgar Garcia-Rill, Danger at the Edge of Chaos: Predicting Violent Behavior in a Post-Daubert World, 24 Cardozo L. Rev. 1845, 1860 (2003).
In recent years, there has been a trend in SVP cases away from expert testimony based on clinical judgment in favor of expert testimony based, at least in large part, upon an assessment of actuarial risk. See Marcus T. Boccaccini et al., Field Validity of the STATIC-99 and MNSOST-R Among Sex Offenders Evaluated for Civil Commitment as Sexually Violent Predators, 15 Psychol. Pub. Pol‘y & L. 278, 278–79 (2009). These new tools, however, have been subject to substantial criticism. For example, the STATIC-99 is based on a relatively small baseline statistical sample of a little over 1000 offenders from Canada and England who were released from maximum security or mental health facilities. Id. at 280; Leslie Helmus et al., Reporting Static-99 in Light of New Research on Recidivism Norms 1 (2009), http://www.static99.org/pdfdocs/forum_article_feb2009.pdf. Critics have charged that the lack of a representative baseline for comparison of American offenders released from a variety of settings or who simply engaged in a recent overt act is problematic. See Hamilton, Public Safety, 83 Temp. L. Rev. at 730 (“If the second population differs in any risk-relevant way from the reference group, then the predictive result is invalid.“); see also John A. Fennell, Punishment by Another Name: The Inherent Overreaching in Sexually Dangerous Person Commitments, 35 New Eng. J. on Crim. & Civ. Confinement 37, 59 (2009) [hereinafter Fennell] (finding baseline of STATIC-99 nonrepresentative because, among other things, the rate of sexual assault in Canada is more than twice that of the United States and concluding models overstate risk).
Further, even taking the STATIC-99 at face value, there are many false negatives and positives. Critics point out that the error rate for the STATIC-99 is much higher than that ordinarily associated with risk prediction research. Hamilton, Public Safety, 83 Temp. L. Rev. at 727. In addition, critics note that the correlation coefficient—a metric showing the strength of the correlation between two variables—for the STATIC-99 is very low and even for
Finally, the lack of meaningful treatment and the potential of long-term confinement without an end in sight has also drawn criticism. According to one commentator, “it is far better to be punished than to be
treated.” Jeremiah W. White, Note, Is Iowa‘s Sexual Predator Statute “Civil“? The Civil Commitment of Sexually Violent Predators After Kansas v. Crane, 89 Iowa L. Rev. 739, 774 (2004) (quoting Fred Cohen, The Law and Sexually Violent Predators—Through the Hendricks Looking Glass, in The Sexual Predator: Law, Policy, Evaluation and Treatment 1–5 (1999)).
Largely for the above reasons, the American Psychiatric Association (APA) and the American Bar Association (ABA) have opposed SVP statutes. The APA has strongly opposed enactment of SVP statutes because of the role assigned to psychiatric expertise to identify those who should be committed. In an amicus brief before the United States Supreme Court in Kansas v. Hendricks, 521 U.S. 346 (1997), the APA challenged the breadth of SVP statutes, stated that mental health professionals lack the ability to predict future violence with accuracy, argued the term “mental abnormality” is a circular concept when defined as a pattern of abnormal acts, and stated that current treatments for SVPs have so little chance of being effective that confinement under an SVP statute is effectively permanent. Brief for American Psychiatric Association as Amicus Curiae Supporting Respondent, Hendricks, 521 U.S. 346 (Nos. 95–1649, 95–9075), 1996 WL 469200, at *18–19, 24, 28–29.
Similarly, in Barefoot v. Estelle, 463 U.S. 880 (1983), the APA filed an amicus brief questioning the value of expert testimony predicting future behavior in a death penalty case. Brief for American Psychiatric Association as Amicus Curiae Supporting Petitioner, Barefoot, 463 U.S. 880 (No. 82-6080), at *4. As recounted in Justice Blackman‘s dissent, according to the APA, approximately two out of three predictions by psychiatrists of long-term future dangerousness
The ABA opposed SVP statutes in its Criminal Justice Mental Health Standards. Specifically, standard 7-10.7 provides that once a sentence has expired, commitment may occur only under a general commitment statute and calls for repeal of all statutes that provide for postsentence commitment of offenders using criteria that differ from the general civil commitment criterial. Christopher Slobogin, The American Bar Association‘s Criminal Justice Mental Health Standards: Revisions for the Twenty-First Century, 44 Hastings Const. L.Q. 1, 16 (2016); see also In re Blodgett, 510 N.W.2d 910, 920 n.5 (Minn. 1994) (noting that the ABA had urged that sexual psychopath laws be repealed due to problems with the ability of psychiatrists to diagnosis and treat such individuals).
Given the interests at stake and the problems implementing SVP statutes, it is not surprising that the Kansas Supreme Court and a federal district court came to the conclusion that SVP statutes did not pass constitutional muster. In re Care & Treatment of Hendricks, 912 P.2d 129, 138 (Kan. 1996), rev‘d sub nom. Hendricks, 521 U.S. 346; Young v. Weston, 898 F. Supp. 744, 751 (W.D. Wash. 1995). In Young, the Washington State Psychiatric Association submitted an amicus brief arguing that the notion of a “sexually violent predator” is not a medical concept but an “unacceptable tautology.” 898 F. Supp. at 750.
Notwithstanding the opposing of the APA and ABA, the United States Supreme Court, by a 5–4 margin, upheld the Kansas SVP statute in Hendricks, 521 U.S. 346. Justice Thomas concluded that the term “mental abnormality” was sufficiently narrow to satisfy due process even though it did not amount to a mental illness as previously required for civil commitment in the Court‘s precedents Addington and Foucha. Hendricks, 521 U.S. at 358–60; see id. at 374 (Breyer, J., dissenting). In a cautionary and arguably prescient concurring opinion, however, Justice Kennedy emphasized that if the term “mental abnormality” proved to be too imprecise, the precedents of the Court “would not suffice to validate it.” Id. at 373 (Kennedy, J., concurring).
The United States Supreme Court again considered a challenge to the Kansas SVP statute in Kansas v. Crane, 534 U.S. 407 (2002). In an opinion by Justice Breyer, the Supreme Court emphasized that SVP statutes must distinguish between “the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment, and the dangerous but typical recidivist convicted in an ordinary criminal case.” Id. at 413. As in Hendricks, the Supreme Court emphasized the need to identify a narrow class of persons subject to SVP commitment. See id. Crane seems to assume that it would be possible for a fact finder to meaningfully distinguish a true predator from an ordinary recidivist.
Some might conclude that if a high authority declares a statute to be narrow often enough, it must be so. But there is reason to believe that because of the amorphous standards and community fear, fact finders are not able to identify a narrow class of persons subject to SVP commitment. The numbers of persons committed have grown far larger than anticipated.
As a result, and notwithstanding Hendricks and Crane, the overt-act requirement still has a role to play in considering the constitutionality of SVP statutes. The overt-act requirement serves as a reinforcing mechanism or a spine for the spongy concept of “mental abnormality” and the speculative nature of causation in any individual case. The overt-act requirement, though not necessarily perfect, certainly has a winnowing effect and contributes to distinguishing a sexual predator from an ordinary recidivist. If not for a clear showing of current dangerousness by an overt act, SVP commitment would look a lot more like punishment and a lot less like civil commitment, thereby giving rise to double jeopardy and ex post facto difficulties. The narrow class of persons subject to SVP commitment should not be identified in a speculative numbers game. It must be based on proof of individualized danger.
The Washington Supreme Court held in In re Personal Restraint of Young that the recent overt-act requirement is generally mandated by due process because the state must show current dangerousness. 857 P.2d 989, 1008 (1993) (en banc), superseded by statute on other grounds,
While a recent overt act is generally required in Washington, there is an exception for situations where the offender is presently incarcerated for sex crimes. Young, 857 P.2d at 1009. The rationale for this approach was outlined in People v. Martin, 165 Cal. Rptr. 773, 780 (Ct. App. 1980).
In Martin, a California appellate court observed that the state was not required to prove the absurd, namely, that a recent overt act occurred, when the offender had been incarcerated. Id.
But as noted in a concurring opinion in In re Detention of Fair, the absurdity of requiring a recent overt act can be overstated. 219 P.3d 89, 96–97 (Wash. 2009) (en banc) (Fairhurst, J., concurring). In Fair, an individual was convicted of sex crimes against children. Id. at 97. When incarcerated, the individual had literally no access to children, and thus he had no opportunity to engage in an overt act because there were no potential victims. Id. But, as pointed out by Justice Fairhurst in her concurring opinion, the absurdity doctrine does not always apply simply because a person is incarcerated. Id. Justice Fairhurst persuasively argued that if it can be proved that the alleged SVP‘s diagnosis and pattern of behavior indicates that the individual did have an adequate opportunity while incarcerated to commit a recent overt act against the type of victim the individual was predisposed to victimize, an overt act might be required. Id. For example, Justice Fairhurst noted that a male prisoner serving time for raping an adult male victim could be placed in the general population of the prison where there is opportunity to harm other prisoners. Id. at 97 n.2. Under this circumstance, Justice Fairhurst noted, due process would require an overt act before such a prisoner could be committed as an SVP. Id. at 97 & n.2.
C. Overview of Relevant Iowa Code Provisions Related to SVP Confinement and Special Sentences.
1. Relevant provisions of Iowa Code chapter 229A.
Iowa‘s Sexually Violent Predator Act was enacted in 1998. 1998 Iowa Acts ch. 1171 (codified at
While the “presently confined” language that forms the basis of this appeal is found in a discreet provision of
Section 2 of the SVP statute provides several legislatively crafted definitions. Id.
The definitional section distinguishes between confinement in a secure facility and transitional release. Id.
Section 3 of the SVP statute is a notice provision. Section 3 requires that “agenc[ies] with jurisdiction” provide notice to the attorney general and a multidisciplinary team established by the department of corrections ninety days prior to the “anticipated discharge” of a person who has been convicted of a sexually violent offense “from total confinement.” Id.
Section 3 of the statute is the only provision in the statute to use the term “total confinement.” It is not used in
Section 3 provides that the statutorily required notice must be provided by an agency with jurisdiction. Id.
an agency which has custody of or released a person serving a sentence or term of confinement or is otherwise in confinement based upon a lawful order or authority, and includes but is not limited to the department of corrections, the department of human services, a judicial district department of correctional services, and the Iowa board of parole.
Id.
Once the proper notice has been provided, the multidisciplinary team is directed to assess whether or not the person meets the definition of an SVP and to notify the attorney general of its assessment within thirty days of receiving notice. Id.
Section 4 of the statute contains the gateway language to a petition for commitment under the SVP statute, the interpretation of which provides the fighting issue in this appeal. Section 4 provides a two-track approach to SVP commitment. The first track is provided by
The next subsection of section 4 provides the second track leading to a potential SVP commitment.
The first statutory criteria under
Section 5 of the statute outlines the procedures for making a preliminary determination as to whether probable cause exists to believe the person named in the petition is a sexually violent predator. Id.
After the hearing, if the court determines that probable cause does exist to believe the respondent is a sexually violent predator, the court is to have the respondent transferred to an appropriate secure facility for an SVP evaluation. Id.
Section 5B of the SVP statute deals with “escape from custody.”
Section 5C of the SVP statute addressed criminal offenses committed while a person is detained or subject to an order of commitment. Id.
Section 7 of the Act describes the trial of a commitment proceeding under
emphasizes that the rules of evidence applicable in criminal proceedings shall apply as well as the right to a trial before a jury with a unanimous verdict beyond a reasonable doubt. Id.
2. Relevant provisions of Iowa Code chapter 903B.
Those serving a special sentence are placed on the corrections continuum established in
D. Positions of the Parties.
Wygle concedes that he was serving a special sentence under
Wygle cites the introductory language of
Wygle further draws support from language in the notice provision of
Wygle next analyzes
Wygle supplements his argument with a citation to In re Detention of Lewis, 177 P.3d 708 (Wash. 2008) (en banc). In Lewis, Lewis was in custody awaiting retrial of a conviction different from the predicate conviction. Id. at 709. The state sought to commit him as an SVP under a state statute with a two-track approach similar to Iowa‘s statute. Id. at 710. Lewis alleged that when he was incarcerated on another offense awaiting trial, the state must prove a recent overt act in order to begin commitment proceedings under Washington‘s SVP statute. Id. at 709. The court held that Lewis was “about to be released from total confinement” and, as a result, the state was not required to prove an overt act. Id.
Wygle argues that Lewis provides the rationale for the two-track SVP gateway. Wygle notes that Lewis observed that before a person may be subject to SVP commitment, a recent overt act is generally required in order to satisfy due process concerns. Id. at 711. According to Wygle, Lewis noted that where offenders are incarcerated and have not been in the community since their original conviction, the state lacks the opportunity to prove dangerousness with an overt act. Id. Under these circumstances, according to Lewis, the state is not required to prove the impossible, namely, a recent overt act. Id. Lewis further observed that the legislature had concluded that “offenders in confinement ‘do not have access to potential victims and therefore they will not engage in an overt act.‘” Id. at 713 (quoting
Under the facts and circumstances of the case, the Lewis court held that Lewis was “about to be released from total confinement” under the statute. Id. As a result, the state was not required to prove an overt act. Id. Wygle argues, however, that his situation is different because, unlike Lewis, he has, in fact, been released from total confinement and that a recent overt act is therefore required. He notes that an unpublished opinion of the court of appeals has cited Lewis favorably. See In re Det. of Johnson, No 10–1462, 2012 WL 1860242, at *5 (Iowa Ct. App. May 23, 2012).
In response, the State recognizes that the term “presently confined” is not defined in
The State recognizes, however, that the term “total confinement” is used in the notice provision of Iowa‘s SVP statute.
The State argues that Iowa caselaw supports its broad construction of the term “presently confined.” The State notes that in Shaffer, the court declared that the phrase should not be given a “hypertechnical definition” and held that a person who was incarcerated in prison beyond his discharge date was presently confined. 769 N.W.2d at 174–75. The State further notes that in In re Detention of Willis, the court held that detention in a county jail is confinement. 691 N.W.2d 726, 729 (Iowa 2005). Thus, according to the State, one need not be in prison to be considered “presently confined” under the statute.
Like Wygle, the State directs our attention to what it regards as persuasive out-of-state authority as well. In Jackson v. California Department of Mental Health, the United States Court of Appeals for the Ninth Circuit held that under California‘s SVP law, the statutory requirement that a person be in custody when a petition is filed includes situations in which a person is on parole. 318 F. App‘x 582, 586–87 (9th Cir. 2009). The State also cites Kansas authority, which it asserts stands for the proposition that an SVP action may be brought at any time when the respondent is serving any part of a sentence, “including a period of postrelease supervision.” In re Care & Treatment of Sporn, 215 P.3d 615, 618 (Kan. 2009).
Finally, the State claims that public policy supports its position. The State argues that a person on parole, although less confined than a person in prison, still has limited opportunities to commit recent overt acts compared to a person not under state supervision. As a result, the State asserts we should not require a recent overt act when a person is on parole for a sexually violent offense.
E. Relevant Iowa Caselaw.
In Stamus, a federal district court struck down the civil commitment statute in
Our first case considering the meaning of the term “presently confined” in
The Gonzales court held that the term “presently confined” meant presently confined for a sexually violent offense. Id. at 106. The Gonzales court recognized that the legislature did not expressly qualify the term “presently confined” in
A mere expectancy that danger-productive behavior might be engaged in does not rise to the level of legal significance when the consequence of such an evaluation is involuntary confinement. To confine a citizen against his will because he is likely to be dangerous in the future, it must be shown that he has actually been dangerous in the recent past and that such danger was manifested by an overt act, attempt or threat to do substantial harm to himself or to another.
Gonzales, 658 N.W.2d at 105 (quoting Lynch, 386 F. Supp. at 391). We further cited a leading Iowa academic, Professor Randall Bezanson, for the proposition that
[t]he requirement that a prediction of dangerousness . . . must be based on prior overt manifestations of danger is necessary both in order to protect the reliability of the prediction under the clear and convincing standard of proof . . . and in order to satisfy constitutional standards.
Id. at 106 (quoting Randall P. Bezanson, Involuntary Treatment of the Mentally Ill in Iowa: The 1975 Legislation, 61 Iowa L. Rev. 261, 295 n.161 (1975)).
Because the respondent was not “presently confined” for a sexually violent offense and the state failed to even allege a recent overt act, the Gonzales court reversed the commitment order of the district court and remanded the case with instructions to dismiss the action. Id. There can be little question that the meaning of the term “presently confined” in the statute was driven in large part by the generally applicable due process requirement that before a person is civilly committed, there must be a showing of dangerousness based on recent overt acts.
Two years later, we returned to the meaning of the term “presently confined” in Willis, 691 N.W.2d 726. In that case, Willis had been convicted by a jury of a sexually violent offense, but not yet been sentenced. Id. at 727–28. He resided in the custody of the Henry County Sheriff. Id. at 728. The state filed an SVP petition asserting Willis was presently confined for a sexual offense under
As in Gonzales, the Willis court analyzed the issue presented by looking at the larger due process constitutional context of the SVP statute. Willis, 691 N.W.2d at 729–30. The court observed that the absence of a recent act when in secure confinement “does not paint the same picture” as the same in a normal life situation. Id. at 729. The court reasoned that the legislature could conclude that for persons in secure confinement the underlying sexually violent offense could be considered a recent overt act consistent with due process. Id. Further, the filing of an SVP commitment petition must necessarily be delayed until near the end of confinement for the underlying sexual offense. Id. at 730.
Our next SVP case involving whether a person is “presently confined” under
The Shaffer court answered the question in the affirmative. Id. at 175. The court reasoned that in Willis the fact that the later judicial proceedings could have shown the present confinement of Willis to be unlawful did not matter. Shaffer, 769 N.W.2d at 174. The court observed that although subsequent caselaw demonstrated that the state had miscalculated Shaffer‘s release date, the miscalculation, which was made in good faith, did not alter the fundamental fact that Shaffer, at the time the SVP petition was filed, was presently confined. Id. at 174. The implication of Shaffer was that SVP proceedings were designed to provide a seamless transition for dangerous offenders from being presently confined for sexually violent offenses to civil confinement and treatment under the SVP statute. See id. at 175. As a result, the physical circumstances of whether a person was “presently confined” for a sexually violent offense was key, and the result was not affected by a miscalculation of a release date. See id.
Finally, in Stenzel, we considered a case in which the respondent was convicted of both a sexually violent offense and the
The Stenzel court rejected the respondent‘s arguments. Id. at 701. The Stenzel court emphasized that in a situation involving concurrent sentences for sexually violent and nonsexually violent offenses, it was illogical to try to determine which sentence was first served. Id. at 700–01. Further, according to the Stenzel court, it made little sense to evaluate a person presently committed years before anticipated release. Id. at 700. The Stenzel court further noted that under
The Stenzel court cited favorably an out-of-state case, Fair, 219 P.3d 89 (majority opinion). Stenzel, 827 N.W.2d at 701. In Fair, the Washington Supreme Court noted that when a person is in continuous confinement for sexual and nonsexual offenses, it would be absurd to require proof of an overt act because of the lack of opportunity to commit an overt act in the community. 219 P.3d at 92.
Obviously, the above cases do not directly address the question of whether a person is presently confined when residing at a halfway house pursuant to a special sentence under
F. Cases from Other Jurisdictions.
Cases from other jurisdictions have addressed the question of what showing must be made before a person may be civilly committed because of dangerousness.
As noted previously, many states have enacted SVP statutes. Because SVP statutes in other jurisdictions often use different nomenclature than utilized by the Iowa legislature, however, cases from other state appellate courts have limited applicability in the interpretation of
In Lewis, the Washington Supreme Court considered the meaning of the term “total confinement” in its SVP statute. 177 P.3d at 711. According to the Lewis court, total confinement meant “confinement inside the physical boundaries of a facility or institution operated or utilized under contract by the state or any other unit of government for twenty-four hours a day.” Id. at 713 (quoting Albrecht, 51 P.3d at 77). In Lewis, however, the statute expressly referred to the requirement of “total confinement.” Under the Iowa statute, while the term “total confinement” appears in the notice provision of
A second out-of-state case dealing with somewhat similar issues is Sporn, 215 P.3d 615. In that case, the respondent was convicted of a sexually violent offense. Id. at 616. As he approached release on parole but while still in prison, the state initiated an SVP action against him, but a jury found that he was not an SVP. Id.. After he prevailed in the SVP action and was released on parole, Sporn violated the terms of parole by viewing pornography and sexually explicit material on his computer. Id.. Upon his return to prison on the parole violation, the state brought a second SVP case against him. Id..
Unlike the Iowa statute, the Kansas statute makes it clear that a person returned to prison for violation of parole in a case involving an underlying sexually violent offense may be subject to an SVP commitment proceeding. Id. at 617–18. The state argued that under the statute, the relevant trigger was impending release from prison. Id. at 618. The Kansas court, however, held the prior SVP action was res judicata and the state was barred from bringing a second action. Id. at 620. In passing, however, the Kansas Supreme Court cited other Kansas caselaw for the proposition that an SVP petition could be filed during the “complete sentence” which “includes the prison sentence, the maximum good time credit allowance, and a period of postrelease supervision.” Id.
at 618 (emphasis added) (quoting In re Care & Treatment of Johnson, 85 P.3d 1252, 1257 (Kan. Ct. App. 2004)). The Kansas Supreme Court, however, did not necessarily endorse the notion that an SVP petition could be filed when a person is on parole, but instead held that under the statute, there could only be one procedure per complete sentence. Id.
There is one federal case that the parties have cited considering SVP interpretive issues. In Jackson, the court construed the term “in custody” in California‘s SVP statute to include situations when a person is on parole. 318 F. App‘x at 586. The language of the California statute, however, is materially different than
G. Discussion.
For purposes of determining whether residency at the Curt Forbes Residential Facility pursuant to
As in Gonzales, we approach the question of statutory interpretation in the context of the constitutional limitations of civil commitment. See 658 N.W.2d at 105. We have repeatedly stated that as a general matter, a recent overt act is a requirement if civil commitment is to satisfy the demands of due process. See id. An exception has been carved out for persons incarcerated for sexual offenses, but that exception is based upon the absurdity or impossibility of committing recent overt acts when incarcerated. See Martin, 165 Cal. Rptr. at 780 (finding due process does not require “the absurd be done” when a person is incarcerated—namely, requiring the state to show a recent overt act which “cannot, as a practical matter, be committed during confinement“); Young, 857 P.2d at 1008 (stating requiring a recent overt act for incarcerated individuals would create “an impossible condition“). But, if the requirement
Even in conditions of total confinement, the absurdity or impossibility exception to the recent-overt-act requirement may have limits. As Justice Fairhurst demonstrated in her concurrence in Fair, the absurdity or impossibility exception to the recent-overt-act requirement imposed by due process might not apply in a prison setting where the prisoner is placed in the general population in a prison of adult males and the class of victims the offender preys upon is adult males. 219 P.3d at 97 & n.2 (Fairhurst, J., concurring). Under such conditions, sexual assault may not be impossible or absurd.
In any event, under conditions of less than total confinement, the rationale for the absurdity or impossibility exception is severely undermined, and as in Gonzales, any interpretation that the recent overt-act requirement is waived in situations involving less than total confinement would “raise serious constitutional issues.” 658 N.W.2d at 105. If fairly possible, we will construe a statute to avoid doubt as to constitutionality. Simmons v. State Pub. Def., 791 N.W.2d 69, 74 (Iowa 2010); Thompson v. Joint Drainage Dist. No. 3-11, 259 Iowa 462, 468, 143 N.W.2d 326, 330 (1966).
Our construction of the statute is thus driven by the need to comply with the demands of due process identified above. We begin our analysis by looking at the statute in its broader context. See Geltz, 840 N.W.2d at 275. The preamble to the statute emphasizes that because the prognosis for rehabilitating sexually violent predators “in a prison setting is poor” and the treatment modalities required are very different from those available in a prison setting, civil commitment is necessary.
The notice provision of
Analysis of the language of various sections of
Further, the rationale for not requiring a recent overt act as explained in the caselaw tends to support the notion that the critical time for triggering the SVP statute is release from total confinement. The cases emphasize that when in prison, there is much less opportunity for a person previously convicted of a sexual offense from committing a recent overt act. Willis, 691 N.W.2d at 729; Lewis, 177 P.3d at 711. Because of the intense supervision in prison and the resulting comparative lack of opportunity to commit a recent overt act, our cases hold that the original conviction of a sexual offense can be deemed to be the equivalent of a recent overt act for due process purposes. Stenzel, 827 N.W.2d at 698. But while “[t]he absence of sexually predatory acts in a setting of secure confinement does not paint the same picture as the absence of such acts in a normal life situation,” the observation has less force when an offender is not totally confined but has much lessened restraint on his or her personal freedom. Willis, 691 N.W.2d at 729.
Yet, we are troubled by one aspect of the interpretation of presently confined to mean total confinement. Assume, for instance, that a person is not totally confined but is on parole for an underlying sexually violent crime. That person then commits a recent overt act. Such a person could not be committed under
Yet, the need to conform our construction of the statute to the demands of due process, along with the other features of the statute cited above, convinces us that the recent-overt-act requirement cannot be waived unless it would be impossible or absurd to require it. As a result, we construe
We also think that Wygle is entitled to prevail for another reason. Wygle is not a resident of Curt Forbes Residential Facility on parole as a result of his sentence for the underlying sexual offense. Instead, he
This interpretation is consistent with the sequence of legislative actions. The SVP statute was originally enacted in 1998 at a time when there was no special-sentence provision. Not surprisingly, there is nothing in the SVP statute that accommodates the later enacted statute. When the legislature enacted
In addition to making sense under the language of the statutes, this interpretation also avoids serious constitutional problems. Under
For all the above reasons, we conclude that a person who has completely discharged the sentence for the underlying sexual crime and is serving a special sentence under
IV. Conclusion.
Based on our review, the judgment of the district court is reversed and the case remanded to the district court for dismissal of the SVP action.
REVERSED AND REMANDED WITH DIRECTIONS.
All justices concur except Mansfield, Waterman, and Zager, JJ., who dissent.
MANSFIELD, Justice (dissenting).
I respectfully dissent. In my view, an individual convicted of a sexually violent offense who is required as part of his sentence to stay at a facility under the jurisdiction of the district department of correctional services is “presently confined” within the meaning of
I begin with a dictionary definition. The first definition of “confine” is “to hold within a location.” Confine, Merriam-Webster‘s Collegiate Dictionary (11th ed. 2014).
Along the same lines, a person at a facility like the Curt Forbes Residential Facility is generally considered to be “in custody.” See also
I agree that the statute is inartfully drafted and that any interpretation, including the majority‘s, is going to result in loose ends. But “[w]e have rejected previous attempts to apply a hypertechnical definition of the phrase ‘presently confined.‘” In re Det. of Shaffer, 769 N.W.2d 169, 174 (Iowa 2009). In Shaffer, we held that an individual was presently confined because he was, in fact, confined even though he was being held unlawfully past his discharge date. Id. at 175. In In re Detention of Willis, we held that an individual was presently confined because he was in jail after having been convicted of a sexually violent offense even though he had not been sentenced. See 691 N.W.2d 726, 729 (Iowa 2005). In In re Detention of Gonzales, we held that presently confined means “confined for a sexually violent offense,” although the statute contains no such requirement. See 658 N.W.2d 102, 104–06 (Iowa 2003). In In re Detention of Stenzel, we clarified that so long as someone is “continuously confined on a term of imprisonment that includes a sexually violent offense,” the person is presently confined regardless of the order in which the sentences are served. See 827 N.W.2d 690, 697–701 (Iowa 2013).
Using the practical interpretation of “presently confined” that we have heretofore followed, I would hold that someone who is convicted of a sexually violent offense and has been continuously in some type of custody thereafter, such as Wygle, is presently confined within the meaning of
This interpretation allows the statute to operate in the binary manner that was clearly intended by the legislature. That is, where there has been a continuous confinement that originated when the person committed a sexually violent offense, the person is “presently confined” under
I recognize this interpretation does not follow the typical view of what it means to be “discharged after the completion of the sentence.” Normally we do not accord that status to someone who has been merely released on parole. (The majority‘s interpretation of
In my view, the majority somewhat overstates those concerns. In the majority‘s view, once a person who committed a sexually violent offense has been moved from total confinement to a halfway house where it might be at least possible to commit a new sexually violent overt act, the state has to prove such an act. It can no longer rely on the earlier offense.
No prior case that I‘m aware of has adopted this rule. Rather, we have said,
The significance of a recent overt act in predicting future conduct is not the act but the inference against a particular propensity that arises from the absence of an overt act. The absence of sexually predatory acts in a setting of secure confinement does not paint the same picture as the absence of such acts in a normal life situation.
Willis, 691 N.W.2d at 729; see also Stenzel, 827 N.W.2d at 699–700 (quoting this language). In other words, under our precedent, the key question is not whether it might be theoretically possible for the respondent to have committed a new overt act. That‘s always possible, even in a maximum security prison. Instead, the critical inquiry is whether the respondent has been moved to a setting that allows one to draw the inference the respondent is not dangerous based upon the absence of sexually violent acts. I would conclude that threshold has not been met.
The majority relies heavily on jurisprudence from Washington. But the Washington Supreme Court held it was constitutional to commit an individual as a sexually violent predator who had been released from prison for the past ten years and merely made threats that he would commit new sexually violent offenses. In re Det. of Danforth, 264 P.3d 783, 786, 792 (Wash. 2011) (en banc). Due process could be satisfied by threats that “have created a reasonable apprehension of [sexually violent] harm in the mind of an objective person who knows of the history and mental condition of the person.” Id. at 792. If the “recent overt act” requirement can be met by a mere threat, it logically follows that the “presently confined” requirement can be met by halfway house confinement. In both instances, there is no hard and fast constitutional rule that recent sexually violent conduct must be proved unless it would have been totally impossible for the respondent to have engaged in such conduct.
I would therefore affirm the district court‘s denial of Wygle‘s motion to dismiss.
Waterman and Zager, JJ., join this dissent.