In thе Matter of the Personal Restraint of ANDRE BRIGHAM YOUNG, Petitioner. In the Matter of the Detention of ANDRE BRIGHAM YOUNG, Appellant. In the Matter of the Personal Restraint of VANCE RUSSELL CUNNINGHAM, Petitioner. In the Matter of the Detention of VANCE RUSSELL CUNNINGHAM, Appellant.
Nos. 57837-1, 57838-9
En Banc.
August 9, 1993.
Norm Maleng, Prosecuting Attorney, and Timothy Michael Blood, Senior Deputy, for respondent.
David A. Summers on behalf of Washington State Psychiatric Association, amicus curiae for petitioners/appellants.
DURHAM, J. — In this case, the sexually violent predator provisions of the Community Protection Act of 1990 are challenged by two people who have been civilly committed under its authority. Important constitutional and technical issues are raised by this unique legislation, which seeks to protect our citizens by incapacitating and attempting to treat those whose mental abnormalities create a grave risk of future harm. Although the ultimate goal of the statute is to treat, and someday cure, those whose mental condition causes them to commit acts of sexual violence, its immediate purpose is to ensure the commitment of these persons in order to protect the community. In this sense, it is similar to any other civil commitment. However, the Legislature has found that the exceptional risks posed by sexual predators, and the seemingly intractable nature of their illness, necessitates a specially tailored civil commitment approach. After exhaustive review of the numerous challenges raised by petitioners, we conclude that the sex predator provisions of the Community Protection Act of 1990 are constitutional. However, for reasons stated below, we reverse petitioner Cunningham‘s commitment, and remand petitioner Young‘s case for consideration of less restrictive alternatives.
The numerous issues raised by Young and Cunningham can be categorized as follows: First, petitioners claim that the act violates the ex post facto clause and the prohibition against double jeopardy. Resolution of those issues depends on whether the law is civil or criminal in nature. Second,
I
BACKGROUND
1. The Act.
The Community Protection Act of 1990 (the Act) was passed in response to citizens’ concerns about the State‘s laws and procedures regarding sexually violent offenders. See Governor‘s Task Force on Comm‘ty Protec., Final Report I-1 (1989) (hereinafter Report). The impetus for convening the task force was the commission of two violent crimes: the murder of a Seattle woman by an offender on work release, and the violent sexual attack on a young Tacoma boy. Report, at I-1. The Act contains 14 separate sections, dealing with such topics as registration of sex offenders, crime victims’ compensation, background checks, and increased penalties for sex offenders. Laws of 1990, ch. 3, p. 12.
Part X of the Act is entitled “Civil Commitment” and is codified at
In contrast to persons appropriate for civil commitment under
chapter 71.05 RCW , sexually violent predators generally haveantisocial personality features which are unamenable to existing mental illness treatment modalities and those features render them likely to engage in sexually violent behavior. . . . The legislature further finds that the prognosis for curing sexually violent offenders is poor, the treatment needs of this population are very long term, and the treatment modalities for this population are very different than the traditional treatment modalities . . . .
A “sexually violent predator” is someone “who has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence.”
Under the Statute, when a person‘s sentence for a sexually violent offense has expired or is about to expire, the State is authorized to file a petition alleging the person to be a sexually violent predator.
The detainee must be examined annually to determine his or her mental condition, and the results must be provided to the trial court.
A detainee may аlso petition the court directly without the approval of the secretary.
2. Andre Brigham Young.
The petition in Andre Brigham Young‘s case was filed on October 24, 1990, 1 day prior to his release from prison for his most recent rape conviction. The certification for deter-
Young‘s first series of known rapes occurred in the fall of 1962, when he broke into the respective homes of four different women, forcing them to engage in sexual intercourse. On at least two of these occasions, Young threatened his victims with a knife. In another incident, he raped a young mother with a 5-week-old infant nearby. Young was convicted in October 1963 on four counts of first degree rape, with two deadly weapon findings.
Less than a year later, while free on an appeal bond for his 1963 convictions, Young entered the home of another woman. With her child present, he exposed himself, threatened to hurt the child, and threatened to rape and kill the woman. Fortunately, he was frightened away. Young was charged with attempted rape, but was never tried for this offense because he was found incompetent.
Young was released on parole in January of 1972. After roughly 5 years of freedom, Young was again convicted of rape. As with the previously known offenses, he raped this woman after illegally entering her home in the early morning hours. Young pleaded guilty to third degree rape.
He was released from prison in 1980. In 1985, he raped another woman, again forcing his way into her apartment. Three small children were present. Young was convicted of first degree rape.
After reviewing the petition and supporting certificate, Judge Johnson issued an ex parte order which found probablе cause, and directed the clerk to issue a no-bail arrest warrant and to transfer Young to the Special Commitment Center at Monroe. Following Young‘s detention at Monroe, counsel for Young brought motions seeking transportation
Trial began on February 12, 1991, in front of Judge Bever. Both sides presented testimony by expert witnesses. Young called Dr. Nancy M. Steele, a psychologist who works with sex offenders in Minnesota. She testified that there is no particular mental disorder that makes a person likely to re-offend. In addition, Dr. G. Christian Harris testified that rape is a behavior, not a diagnostic category, and that he could not accurately predict that any particular person would re-offend. Young also called Dr. Fred Wise, who questioned the legitimacy of the diagnostic impressions made by the State‘s expert witness.
The State called Dr. Irwin Dreiblatt, a licensed clinical psychologist who has evaluated some 1,400 sexual offenders and treated approximately 700 in his 25 years of practice. Based upon a records review, Dr. Dreiblatt testified to a reasonable psychological certainty that it was his diagnostic impression that Young suffered from: (1) a severe personality disorder not otherwise specified, with primarily paranoid and anti-social features, (2) a severe paraphilia, which would be classified as either paraphilia sexual sadism or paraphilia not otherwise specified (rape). Dr. Dreiblatt stated that the severe paraphilia constituted a “mental abnormality” under the sex predator commitment Statute. Dr. Dreiblatt further concluded that the severe paraphilia — in combination with the personality disorder, the length of time spanning Young‘s crimes, his recidivism record, his use of weapons, his persistent denial of the crimes and his lack of empathy or remorse for his victims — made it more likely than not that Young
The victims of Young‘s previous rape crimes testified regarding the circumstаnces of their assaults. Evidence was introduced pertaining to a 1972 conviction for a bomb threat. Defense motions for jury instructions regarding the presumption of innocence, the appropriate inference from Young‘s failure to testify, and others were denied by the court. At the request of the State, the jury was instructed that a unanimous verdict was required. On March 8, the jury concluded that Young was a “sexually violent predator“.
3. Vance Russell Cunningham.
The petition in Vance Russell Cunningham‘s case was filed on December 21, 1990, about 4½ months after Cunningham had completed his most recent prison sentence for rape. As with Young, the certificate for determination of probable cause references two psychological evaluations of Cunningham and describes his extensive history of sexual crimes. Although Cunningham was only 26 when the petition was filed, his criminal history spans the prior 10 years and includes three convictions for raping adult female strangers.
Cunningham‘s first felony occurred in 1980 when he was 15 years old. A woman was walking through a Seattle-area park with her three young children, when Cunningham, armed with a knife, jumped out of some bushes and commanded, “nobody move“. After the woman screamed, Cunningham fled. When he was apprehended, Cunningham confessed to the assault and admitted that his purpose was to force the woman to commit oral sex upon him. For this juvenile assault, he received a short sentence and some unspecified counseling.
In 1984, Cunningham raped a woman hitchhiker to whom he had offered a ride. Cunningham threatened to kill his victim, struck her several times, forced her to the ground, and then raped her. Cunningham pleaded guilty to second degree rape, and was sentenced to 31 months in prison.
In an ex parte proceeding, after reviewing the petition and supporting affidavit, Judge Johnson found probable cause and ordered the clerk to issue a no-bail arrest warrant, and transfer Cunningham to the Special Commitment Center at Monroe. Judge Johnson also ruled that Cunningham “has no blanket Fifth Amendment privilege to refuse to answer any and all questions” put to him during the evaluation. Clerk‘s Papers, at 1183. On January 2, defense counsel brought motions to vacate the ex parte order and to allow Cunningham‘s participation in pretrial proceedings. The motions were denied. Cunningham was allowed to be present at his March 15, 1991, pretrial hearing.
Following jury selection, trial commenced on May 21, 1991, in front of Judge McCullough. The jury heard extensive testimony from expert witnesses for both sides. Cunningham called Dr. Steele to testify on his behalf. Based upon a records review, Dr. Steele stated that Cunningham was not suffering from a mental abnormality which would make him dangerous to women.
The State‘s expert was Dr. Leslie Rawlings, a licensed clinical psychologist who specializes in the assessment and treatment of sexual offenders. After reviewing Cunningham‘s records, Dr. Rawlings stated his diagnostic impression to a reasonable psychological certainty that Cunningham suffered from a severe paraphilia, not otherwise specified (rape). Dr. Rawlings further testified that paraphilia qualifies as a “mental abnormality” under the sex predator commitment Statute. Citing the paraphilia and several other factors, Dr. Rawlings concluded that “[i]t‘s my professional opinion that
The jury also heard testimony from the victims involved in Cunningham‘s previous rape convictions. Cunningham testified on his own behalf. Over defense objections, the jury was instructed that a unanimous verdict was not required. On May 31, 1991, the jury returned an 11-to-1 verdict which found Cunningham to be a “sexually violent predator“.
Both Young and Cunningham brought personal restraint petitions and motions for immediate release, which were heard by this court in January 1991. The motions for release were denied, and the court accepted jurisdiction over the petitions. The petitions were consolidated with the direct appeals from the trials.
II
EX POST FACTO LAW AND DOUBLE JEOPARDY
Petitioners argue that the Statute is unconstitutional, because it violates the double jeopardy clause and the prohibition against ex post facto laws. Generally, these clauses apply to criminal matters. Thus, if the Statute is civil rather than criminal in nature, the Statute survives this challenge. We conclude that the Statute is civil, and hold that it does not violate either double jeopardy or the ex post facto clause.
The categorization of a particular statute as civil or criminal is largely a matter of statutory construction. Allen v. Illinois, 478 U.S. 364, 368, 92 L. Ed. 2d 296, 106 S. Ct. 2988 (1986); United States v. Ward, 448 U.S. 242, 248, 65 L. Ed. 2d 742, 100 S. Ct. 2636 (1980). The Supreme Court has adopted a 2-part analysis:
First, we have set out to determine whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other. Second, where Congress has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect as to negate that intention.
(Citations omitted.) Ward, 448 U.S. at 248-49. Thus, we look first to the language of the Statute and the legislative his-
Both the language of the Statute and the legislative history evidence a clear intent to create a civil scheme. The section of the law as enacted by the Legislature is entitled “Civil Commitment“, Laws of 1990, ch. 3, part X, and is codified at
An examination of the Act‘s legislative history further supports a civil intent. The Legislature‘s final report refers to the section as “Civil Commitment“, and reports that “[a] new civil commitment procedure is created for ‘sexually violent predators.‘” 1990 Final Legislative Report, 2nd SSB 6259, at 144. Moreover, the Legislature enacted a bill substantially similar to that proposed by the Governor‘s Task Force on Community Protection. In its report, the Task Force quite plainly recommended a civil law, because neither the criminal system nor the existing civil system could accommodate the special needs of sex predators. Report, at II-20 through II-23. In light of the Statute‘s language and legislative history, then, it is clear that the Legislature intended a civil statutory scheme.
This does not end our inquiry, however. We next consider whether the actual impact of the Statute is civil or criminal:
[T]he civil label is not always dispositive. Where a defendant has provided “the clearest proof” that “the statutory scheme [is] so punitive either in purpose or effect as to negate [the State‘s] intention” that the proceeding be civil, it must be considered criminal . . . .
In Allen, a Fifth Amendment self-incrimination case, the Supreme Court held that an Illinois statute which provided for civil commitment of sexually dangerous persons was properly categorized as civil, not criminal. Allen, at 369. Under the Illinois statute, a “sexually dangerous person” was one who suffered from “a mental disorder...coupled with criminal propensities to the commission of sex offenses“. Allen, 478 U.S. at 366 n.1. In holding the statute civil, the Court found several factors significant: the Illinois Supreme Court had determined that the statute was civil in nature; the State had a statutory obligation to provide care and treatment designed to effect recovery for those committed; detainees were discharged when no longer dangerous; and, conditional release was also available. Allen, at 369. The Court summarized:
In short, the State has disavowed any interest in punishment, provided for the treatment of those it commits, and established a system under which committed persons may be released after the briefest time in confinement.
The provisions of our sexually violent predator Statute are remarkably similar to those of the Illinois statute upheld in Allen. Most notably, the Statute‘s definition of “sexually violent predator” is almost identical to Illinois’ definition of “sexually dangerous person” — both require a mental disorder which leads to the commission of violent sex offenses. Compare
Petitioners argue that the Court‘s holding in Allen is distinguishable because the Illinois statute provides for commitment in lieu of serving a criminal sentence. While this is a distinguishing factor, it is by no means a contradictory one. That the State of Illinois chose to forego criminal liability for the offender‘s initial actions does not require Washington to do so. See, e.g., Bailey v. Gardebring, 940 F.2d 1150 (8th Cir. 1991) (constitutional to both civilly commit and imprison sexually dangerous individual), cert. denied, 112 S. Ct. 1516 (1992). As we discuss below, the goals of civil and criminal confinement are quite different; the former is concerned with incapacitation and treatment, while the latter is directed to retribution and deterrence. The sexually violent predator Statute is not concerned with the criminal culpability of petitioners’ past actions. Instead, it is focused on treating petitioners for a current mental abnormality, and protecting society from the sexually violent acts associated with that abnormality.
Additional guidance for the determination of whether a statute is criminal was set forth by the Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 9 L. Ed. 2d 644, 83 S. Ct. 554 (1963). The court should consider:
Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment - retributiоn and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned . . .
(Footnotes omitted.) These factors weigh heavily on the side of a finding that this Statute is civil. Although the scheme here does involve an affirmative restraint, the civil commitment goals of incapacitation and treatment are distinct from
Finally, we also inquire into the purposes of the legislation. Our construction of the Statute should be that which best advances the legislative purpose. Wichert v. Cardwell, 117 Wn.2d 148, 151, 812 P.2d 858 (1991). The Statute promotes civil ends rather than criminal ones. The Statute before us is primarily concerned with incapacitation and treatment. Incapacitation has often been recognized as a legitimate civil goal. See Addington v. Texas, 441 U.S. 418, 60 L. Ed. 2d 323, 99 S. Ct. 1804 (1979). Treatment is also a proper aim of civil legislation. As one commentator has remarked:
the Sexually Violent Predator civil commitment scheme is not a method of punishment. Washington is undertaking to treat the offender pursuant to its parens patriae power and to protect the public “from the dangerous tendencies of some who are mentally ill” pursuant to the state‘s police power.
Marie A. Bochnewich, Comment, Prediction of Dangerousness and Washington‘s Sexually Violent Predator Statute, 29 Cal. W. L. Rev. 277, 278 (1992).
In contrast, the Supreme Court has said repeatedly that retribution and deterrence are punitive, and thus are the goals of criminal law. United States v. Halper, 490 U.S. 435, 448, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989); Mendoza-Martinez, 372 U.S. at 168; Bell v. Wolfish, 441 U.S. 520, 539 n.20, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979). Thus, the Court reasoned:
a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term.
Halper, at 448; accord Austin v. United States, 509 U.S. 602, 125 L. Ed. 2d 488, 498, 113 S. Ct. 2801 (1993). This court has applied similar reasoning:
[T]he determinative factors for resolving a double jeopardy claim are whether [the sanction] has a rational connection to some purpose other than retribution or deterrence, and whether the sanction appears excessive in relation to the alternative рurpose.
O‘Day v. King Cy., 109 Wn.2d 796, 817, 749 P.2d 142 (1988) (citing Mendoza-Martinez, 372 U.S. at 168-69). Absent any indication that a criminal purpose was intended, or actually served by the statute, the stated civil goals of the Legislature are controlling. See Mendoza-Martinez, 372 U.S. at 168-69.
In sum, we conclude that the sexually violent predator Statute is civil, not criminal, in nature. The language and history of the Statute so indicate, as do its purposes and effect. Petitioners have failed “to provide the clearest proof” to the contrary.
Turning to the specific challenges made here, petitioners argue that
A law violates the ex post facto prohibition if it aggravates a crime or makes it greater than it was when committed; permits imposition of a different or more severe punishment than was permissible when the crime was committed; or, changes the legal rules to permit less or different testimony to convict the offender than was required when the crime was committed.
State v. Edwards, 104 Wn.2d 63, 70-71, 701 P.2d 508 (1985) (citing Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L. Ed. 648 (1798)). The purposes of the prohibition are to give individuals fair
The ex post facto clause has been interpreted to apply only to criminal matters. Calder v. Bull, supra; see William W. Crosskey, The True Meaning of the Constitutional Prohibition of Ex-Post-Facto Laws, 14 U. Chi. L. Rev. 539 (1946-1947), cited in 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 2.4 n.9 (1986). In addition, at least one court has held that sexual psychopath proceedings did not involve the ex post facto prohibition because it was not a criminal remedy. State ex rel. Sweezer v. Green, 360 Mo. 1249, 1253, 232 S.W.2d 897, 24 A.L.R.2d 340 (1950). Because the Statute is civil, therefore, the ex post facto prohibition does not apply.
Petitioners argue further that the prohibition against double jeopardy is violated by the Act. The
In general, the prohibition against double jeopardy applies only to criminal measures:
“[a] double jeopardy violation does not occur simply because two adverse consequences stem from the same act.” In re Mayner, [107 Wn.2d 512, 730 P.2d 1321 (1986)] at 521. Double jeopardy does not apply “unless the sanction sought to be imposed in the second proceeding is punitive in nature so that the proceeding is essentially criminal.” Beckett v. Department of Social & Health Servs., 87 Wn.2d 184, 188, 550 P.2d 529 (1976) [overruled on other grounds by Dunner v. McLaughlin, 100 Wn.2d 832, 676 P.2d 444 (1984)]; see Emory v. Texas Bd. of Med. Examiners, 748 F.2d 1023, 1026 (5th Cir. 1984).
O‘Day, at 816-17. The prohibition has, howevеr, been found to be implicated in some circumstances by “civil” penalties as well as “criminal“. In Halper, the Supreme Court found
Here, as noted above, the statutory scheme has not been shown to serve any punitive goal; indeed, it does not. Moreover, in Halper, the Court inquired as to the remedial function of the civil penalties, and questioned if the Government could impose a monetary penalty after a criminal sentence had been exacted. Essentially, Halper ruled that the State may not bring a separate civil action based on criminal conduct that is not rationally related to a legitimate civil goal. Halper, at 449. Incapacitation and treatment, though, are legitimate civil goals, as evidenced by the ordinary civil commitment law. See Addington v. Texas, 441 U.S. 418, 60 L. Ed. 2d 323, 99 S. Ct. 1804 (1979). Therefore, enforcement of the Act does not violate double jeopardy.
III
SUBSTANTIVE DUE PROCESS
Petitioners argue that substantive constitutional requirements are violated by the Statute, and that it should be overturned. The propriety of the statutory scheme here is a matter of first impression. Although somewhat different from our sex predator Statute, the United States Supreme Court has upheld statutory schemes where sexual offenders were committed in lieu of serving their criminal sentences. Until 1984, and the passage of sentencing reform, Washington utilized such a scheme. Former
In their substantive challenges to the Statute, petitioners argue that it does not serve a valid state purpose. They further argue that the Statute violates due process because petitioners are not mentally ill and that constitutionally required treatment is precluded due to the conditions of confinement. As such, they argue that the Statute authorizes unconstitutional preventive detention. Finally, petitioners argue that evidence of a recent overt act which proves dangerousness is mandated. Although we agree that evidence of an overt act may be required in limited circumstances, we conclude that there are no substantive constitutional impediments to the sexually violent predator scheme.
1. Strict Scrutiny.
The constitution requires that a person shall not be deprived of life, liberty, or property without due process of law.
Applying the strict scrutiny test to the Statute as a whole, it is irrefutable that the State has a compelling interest both in treating sex predators and protecting society from their actions. Addington v. Texas, 441 U.S. 418, 426, 60 L. Ed. 2d 323, 99 S. Ct. 1804 (1979); Vitek v. Jones, 445 U.S. 480, 495, 63 L. Ed. 2d 552, 100 S. Ct. 1254 (1980). The Supreme Court has stated that:
The state has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable because of emotional disorders to care for themselves; the state also
has authority under its police power to protect the community from the dangerous tendencies of some who are mentally ill.
Addington, 441 U.S. at 426; see also Salerno, 481 U.S. at 748-49 (“the government may detain mentally unstable individuals who present a danger to the public“). Here, petitioners Young and Cunningham were diagnosed with a mental disorder and share a lengthy criminal history of violent rape. Other individuals encompassed under the commitment law share similar profiles. In such circumstances, the Court has consistently upheld civil commitment schemes. See Addington v. Texas, supra; John Q. La Fond, An Examination of the Purposes of Involuntary Civil Commitment, 30 Buff. L. Rev. 499, 513 (1981).
Any criticism of the Statute, then, would have to be based on the requirement that it be narrowly drawn. We will address petitioners’ various “least restrictive alternative” arguments in subsequent sections of this opinion.
2. Mentally Ill and Dangerous.
Petitioners argue that the Statute allows the State to hold individuals without proving that the person is both mentally ill and dangerous. In Addington, the Supreme Court held that a person must be both mentally ill3 and dangerous for a civil commitment to be permissible under the due process clause of the constitution. Accord, e.g., Foucha v. Louisiana, 504 U.S. 71, 118 L. Ed. 2d 437, 112 S. Ct. 1780 (1992). The sexually violent predator Statute satisfies this due process standard.
The Statute clearly requires proof of a “mental abnormality or personality disorder” for civil commitment.
In using the concept of “mental abnormality” the legislature has invoked a more generalized terminology that can cover a much largеr variety of disorders. Some, such as the paraphilias, are covered in the DSM-III-R; others are not. The fact that pathologically driven rape, for example, is not yet listed in the DSM-III-R does not invalidate such a diagnosis. The DSM is, after all, an evolving and imperfect document. Nor is it sacrosanct. Furthermore, it is in some areas a political document whose diagnoses are based, in some cases, on what American Psychiatric Association (“APA“) leaders consider to be practical realities. What is critical for our purposes is that psychiatric and psychological clinicians who testify in good faith as to mental abnormality are able to identify sexual pathologies that are as real and meaningful as other pathologies already listed in the DSM.
(Italics ours.) Alexander D. Brooks, The Constitutionality and Morality of Civilly Committing Violent Sexual Predators, 15 U. Puget Sound L. Rev. 709, 733 (1991-1992). In both Young‘s and Cunningham‘s respective trials, expert witnesses for petitioners and the State were competent and able to offer testimony on the mental pathologies underlying the sex predator condition. These same experts testified that the statutory term “mental abnormality” was nearly identical to the notion of “mental disorder” as defined in the DSM-III-R.5
The specific diagnosis offered by the State‘s experts at each commitment trial was “paraphilia not otherwise specified.” This is a residual category in the DSM-III-R which encompasses both less commonly encountered paraphilias and those not yet sufficiently described to merit formal inclusion in the DSM-III-R. DSM-III-R, at 280. As the testimony reflected, paraphilias are classified as either mild, moderate or severe. Young and Cunningham were both diagnosed with a severe paraphilia; i.e. “[t]he person has repeatedly acted on the paraphilic urge“. DSM-III-R, at 281.
The expert testimony further reflected that both Young and Cunningham could be classified within the “paraphilia not otherwisе specified” category as suffering from “rape as paraphilia“. According to the seminal article on this mental disorder, portions of which were read into testimony at both trials, certain patterns of rape fall into this diagnosis:
Clinical interviews of rapists, however, provide support for the classification of rape as a paraphilia, because many individuals report having recurrent, repetitive, and compulsive urges and fantasies to commit rapes. These offenders attempt to control their urges, but the urges eventually become so strong that they act upon them, commit rapes, and then feel guilty afterwards with a temporary reduction of urges, only to have the cycle repeat again. This cycle of ongoing urges, attempts to control them, breakdown of those attempts, and recurrence of the sex crime is similar to the clinical picture presented by exhibitionists, voyeurs, pedophiles, and other traditionally recognized categories of paraphiliacs.
Gene G. Abel & Joanne-L. Rouleau, The Nature and Extent of Sexual Assault, in Handbook of Sexual Assault: Issues,
In Young‘s trial, the State‘s expert testified that Young also suffered from an “anti-social personality disorder“. Like paraphilia, anti-social personality disorder is classified as a mental disorder in the DSM-III-R. In general, a personality disorder diagnosis is appropriate “only when personality traits are inflexible and maladaptive and cause either significant functional impairment or subjective distress“. DSM-III-R, at 335. Anti-social personality disorder is characterized by a long-term pattern of irresponsible and anti-social behavior. DSM-III-R, at 342.
Petitioners nonetheless argue that the Statute does not address a mental disorder because treatment of sex offenders is impossible. Indeed, the Legislature adopted specific findings that “sexually violent predators . . . have antisocial personality features which are unamenable to existing mental illness treatment“, and that “the prognosis for curing sexually violent offenders is poor“.
There are two flaws in this line of argument. First, the mere fact that an illness is difficult to treat does not mean that it is not an illness.7 For example, some forms of schizophrenia cannot be treated, but the diagnosis nonetheless remains a valid one. The Legislature should not be admonished for its honest recognition of the difficulties inherent in treating those afflicted with the mental abnormalities causing the sex predator condition.
Second, petitioners have failed to show that the specific conditions of confinement are incompatible with treatment. As the Supreme Court noted in Allen:
Petitioner has not demonstrated, and the record does not suggest, that “sexually dangerous persons” in Illinois are confined under conditions incompatible with the State‘s asserted interest in treatment. Had petitioner shown, for example, that the confinement of such persons imposes on them a regimen which is essentially identical to that imposed upon felons with no need for psychiatric care, this might well be a different case.
Allen, 478 U.S. at 373. Similarly, the Washington Statute provides for treatment, and petitioners have failed to prove that this goal cannot be effectuated under the Statute‘s terms.
Due process concerns are similarly satisfied because the sexually violent predator Statute requires dangerousness as a condition for civil commitment.
Here, the Statute inherently applies only to dangerous offenders. Under the very definitions of the Statute, only “sexually violent offenders” - those “likely to engage in predatory acts of sexual violence” - are subject to its provisions.
3. Nature and Duration.
In a related issue, the Supreme Court has stated that due process ” ‘requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.’ ” Jones v. United States, 463 U.S. 354, 368, 77 L. Ed. 2d 694, 103 S. Ct. 3043 (1983) (quoting Jackson v. Indiana, 406 U.S. 715, 738, 32 L. Ed. 2d 435, 92 S. Ct. 1845 (1972)). Thus, an inquiry into the purposes of the Statute is required.
Two underlying purposes for commitment are often advanced - treatment and incapacitation. See La Fond, supra. The Statute at issue here serves both purposes. The Statute requires that constitutionally mandated care and treatment be provided,
- A description of a person‘s specific treatment needs;
- An outline of intermediate and long-range treatment goals, with a projected timetable for reaching the goals;
- The treatment strategies for achieving the treatment goals;
- A description of [sexual predator program] staff persons’ responsibility; and
licensed mental health professionals familiar with petitioners’ past conduct and current mental profiles.
WAC 275-155-040(1). The regulations governing the program make it clear that committed individuals shall “[r]eceive adequate care and individualized treatment“. WAC 275-155-050(3)(a).
The purpose of incapacitation is also well served by this Statute. The task force responsible for drafting the legislation initially noted that an additional goal of the program was to “confine repeat violent offenders who present an extreme safety risk“. Report, at I-1. Sexually violent predators, those who are adjudged likely to engage in acts of violence, are housed in a special commitment center which must be located within a correctional institution. The record reflects that the current facility is rated maximum security. Given the nature of sexually violent predators, it would not be safe to house them in a less secure setting. Thus, it appears that the commitment is related to the purpose of the Statute.
Finally, petitioners argue that they are constitutionally entitled to the least restrictive alternatives to confinement available.11 It is true that those who are civilly committed must be treated differently than criminals. The Supreme Court has said this explicitly:
Persons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.
Youngberg v. Romeo, 457 U.S. 307, 321-22, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982). Nevertheless, we need not place undue limitations on the administration of state institutions. Romeo, at 322.
In light of these considerations, giving the presumption of correctness to “decisions made by the appropriate professional” (here, DSHS), individuals who have been invol-
(3) A person the court commits to the SPP [sexual predator program] shall:
(a) Receive adequate care and individualized treatment;
(b) Be permitted to wear the committed person‘s own clothes and keep and use the person‘s personal possessions, except when deprivation of possessions is necessary for the person‘s protection and safety, the protection and safety of others, or the protection of property within the SPP;
(c) Be permitted to accumulate and spend a reasonable amount of money in the person‘s SPP account;
(d) Have access to reasonable personal storage space within SPP limitations;
(e) Be permitted to have approved visitors within reasonable limitations;
(f) Have reasonable access to a telephone to make and receive confidential calls within SPP limitations; and
(g) Have reasonable access to letter writing material and to:
(i) Receive and send correspondence through the mail within SPP limitations; and
(ii) Send written communication regarding the fact of the person‘s commitment.
(Italics ours.) WAC 275-155-050.
There is no evidenсe in the record addressing either the actual conditions of confinement, or the quality of treatment. These issues are not currently before the court. Facially, the Statute and associated regulations suggest that the nature and duration of commitment is compatible with the purposes of the commitment.
4. Foucha v. Louisiana.
Petitioners next argue that the Supreme Court‘s recent decision in Foucha v. Louisiana, 504 U.S. 71, 118 L. Ed. 2d 437, 112 S. Ct. 1780 (1992) forbids the civil commitment of sexually violent predators because it constitutes unconstitu-
In Foucha, the Court overturned a Louisiana statute dealing with insanity acquittees because the release procedures were inadequate. The Court described the statute as follows:
When a defendant in a criminal case pending in Louisiana is found not guilty by reason of insanity, he is committed to a psychiatric hospital unless he proves that he is not dangerous. This is so whether or not he is then insane. After commitment, if the acquittee or the superintendent begins release proceedings, a review panel at the hospital makes a written report on the patient‘s mental condition and whether he can be released without danger to himself or others. If release is recommended, the court must hold a hearing to determine dangerousness; the acquittee has the burden of proving that he is not dangerous. If found to be dangerous, the acquittee may be returned to the mental institution whether or not he is then mentally ill.
Foucha, 112 S. Ct. at 1781-82. Four years after Terry Foucha had been committed, following an acquittal by reason of insanity of aggravated burglary and illegal discharge of a firearm, the superintendent of the facility where he was held recommended that he be released. The review panel reported that “there had been no evidence of mental illness since admission“. Foucha, 112 S. Ct. at 1782.
The trial court heard medical testimony that Foucha was probably in remission from what had been a temporary condition - likely a drug induced psychosis. The court heard further testimony that Foucha had an “antisocial personality“, that such condition was not a mental illness, and that he had no other mental disorders. However, an ultimate medical determination about his dangerousness could not be made. Instead, a doctor testified only that he could not “certify that [Foucha] would not constitute a menace to himself or others if released“. Foucha, 112 S. Ct. at 1782. Based solely on this equivocal testimony, the trial court returned him to the mental institution.
The United States Supreme Court reversed, holding that absent a determination of current mental illness and danger-
The Statute here withstands the scrutiny required in Foucha. As explained above, the sexually violent predator Statute is narrowly tailored to serve a compelling state interest. Also, before a person can be civilly committed, the State must prove that the individual is mentally ill12 and dangerous - a condition that was satisfied in Young‘s and Cunningham‘s respec-
In addition, the sex predator Statute does not suffer from the procedural infirmities that rendered Louisiana‘s insanity acquittee scheme unconstitutional. Under the Washington law, the State must satisfy the highest burden of proof to civilly commit a sex predator. A higher burden of proof “tends to equalize the risks of an erroneous determination that the subject of a commitment proceeding has the condition in question“. Heller, 125 L. Ed. 2d at 272. Whereas Louisiana attempted to continue Foucha‘s confinement without claiming that he suffered from a mental illness, the Washington Statute makes proof of a current mental disorder a condition of commitment. Also, in regard to dangerousness, Louisiana placed the burden on Foucha, while the Washington Statute places the burden on the State. In contrast to the Louisiana statute, the sexually violent predator Statute is the type of “sharply focused scheme” which thе Supreme Court called for in Foucha. 112 S. Ct. at 1786.
Our interpretation of the holding in Foucha finds support in Justice O‘Connor‘s crucial concurring opinion. In providing the necessary fifth vote which formed the majority, Justice O‘Connor carefully pointed out the limitations of that holding:
I write separately, however, to emphasize that the Court‘s opinion addresses only the specific statutory scheme before us, which broadly permits indefinite confinement of sane insanity acquittees in psychiatric facilities.
Foucha, 112 S. Ct. at 1789 (O‘Connor, J., concurring). Where the incapacitation is more closely tailored to “reflect pressing public safety concerns related to the acquittee‘s continuing dangerousness“, continued confinement may be permitted. Foucha, 112 S. Ct. at 1789 (O‘Connor, J., concurring).
Even though petitioners potentially face a long period of civil commitment, the sexually violent predator Statute is wholly sustainable. Those committed under the sex predator Statute have been through a full trial with a complete range of procedural protections. From this trial, a jury has determined that the State has met the highest burden possible - beyond a reasonable doubt - in proving that the committed individual suffers from a mental abnormality which renders him a danger to the community. Although the period of confinement is not predetermined, the Statute‘s release provisions provide the opportunity for periodic review of the committed individual‘s current mental condition and continuing dangerousness to the community.
In sum, the circumstances of the Foucha case clearly dictated the result reached by the United States Supreme Court. The case before us deals with vastly different facts and law, and is wholly consistent with the principles enunciated in Foucha.
5. Overt Act.
Petitioners next argue that the constitution requires evidence of a recent overt act to prove dangerousness, relying
(a) A substantial risk that physical harm will be inflicted by an individual upon his own person, as evidenced by threats or attempts to commit suicide or inflict physical harm on one‘s self, (b) a substantial risk that physical harm will be inflicted by an individual upon another, as evidenced by behavior which has caused such harm or which places another person or persons in reasonable fear of sustaining such harm, or (c) a substantial risk that physical harm will be inflicted by an individual upon the property of others, as evidenced by behavior which has caused substantial loss or damage to the property of others[.]
The definition contains the inference that the harm at issue be evidenced by some act or behavior. The court noted that “such evidence must be recent to be meaningful“. Harris, at 284. Thus, interpreting
a showing of a substantial risk of physical harm as evidenced by a recent overt act. This act may be one which has caused harm or creates a reasonable apprehension of dangerousness.
Harris, at 284-85.
However, the court rejected an additional requirement of “imminent danger“, relying primarily on statutory interpretation. Harris, at 283-84. We compared the emergency detention provisions contained in
the practical effect of being placed in the hospital will usually eliminate the “imminence” of one‘s dangerousness. If we were
Harris, at 284.
In many cases, sexually violent predators are incarcerated prior to commitment. Cf. In re LaBelle, 107 Wn.2d 196, 204, 728 P.2d 138 (1986). For incarcerated individuals, a requirement of a recent overt act under the Statute would create a standard which would be impossible to meet. Other jurisdictions have rejected the precise argument made by petitioners because it creates an impossible condition for those currently incarcerated. See People v. Martin, 107 Cal. App. 3d 714, 725, 165 Cal. Rptr. 773 (1980). We agree that “[d]ue process does not require that the absurd be done before a compelling state interest can be vindicated.” Martin, 107 Cal. App. 3d at 725. Indeed, in drafting the Statute, the Legislature expressly noted that the involuntary commitment statute,
However, where an individual has been released from confinement on a sex offense (as referenced in
Petitioner Cunningham was released from prison and living in the community for some 4½ months before the State filed a sex predator petition. He was gainfully employed as an assistant engineer on a ship and was planning to go to sea for a period of time. The State did not allege a recent overt act in its petition, nor did the State offer such evidence at Cunningham‘s trial. We find, therefore, that the proof presented at trial was insufficient and Cunningham‘s commitment as a sex predator is hereby reversed.
In sum, the Statute does not violate substantive due process. The State‘s interest in preventing the sort of harm exacted by sexually violent predators is clearly compelling. The Statute complies with due process because it conditions civil commitment on a finding of both a mental disorder and dangerousness. Thе Supreme Court‘s opinion in Foucha does not alter this long-established law, nor forbid Washington‘s efforts to ameliorate an important societal problem. As noted by the chair of the task force when he transmitted the Report to the Governor, the Statute is “a serious response commensurate with the harm caused“. Report, Letter of transmittal from Norm Maleng to The Hon. Booth Gardner (Nov. 28, 1989).
IV
PROCEDURAL DUE PROCESS
Petitioners contend that the Statute must be overturned because it deprives them of their liberty without adequate procedural protections and denies them equal protection. Several procedural infirmities are alleged: that the ex parte finding of probable cause denies meaningful predeprivation due process, that consideration of less restrictive alternatives to confinement is necessary, that the burden of proof at trial is inadequate because the jury need not be unanimous,
1. Probable Cause Hearing.
Petitioners argue that an adversarial probable cause hearing is required by due process considerations. During the 45-day period prior to trial, despite repeated requests, petitioners were denied the opportunity to appear personally in court. Although this detention is preceded by a judicial determination that probable cause exists,
In contrast, under
The standard for determining the appropriate level of procedure that is due prior to depriving an individual of his right to life, liberty or property is well established:
[T]he specific dictates of due process generally requires [sic] consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government‘s
interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 335, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976). We have said that this is “[t]he appropriate test for reviewing the constitutional adequacy of involuntary commitment procedures“. In re LaBelle, 107 Wn.2d 196, 221, 728 P.2d 138 (1986) (citing Dunner v. McLaughlin, 100 Wn.2d 832, 839, 676 P.2d 444 (1984)); see also In re Schuoler, 106 Wn.2d 500, 510, 723 P.2d 1103 (1986); In re Harris, 98 Wn.2d 276, 285, 654 P.2d 109 (1982). Thus, the court must balance the extent of the individual‘s interest against the interests of the State.
In addition, equal protection principles of the
It is important to note at the outset that there are good reasons to treat mentally ill people differently than violent
All individuals who are involuntarily committed are entitled to procedural and substantive protections. Jackson v. Indiana, 406 U.S. 715, 724, 32 L. Ed. 2d 435, 92 S. Ct. 1845 (1972). Thus, the Court in Jackson held:
that by subjecting Jackson to a more lenient commitment standard and to a more stringent standard of release than those generally applicable to all others not charged with offenses, and by thus condemning him in effect to permanent institutionalization without the showing required for commitment or the opportunity for release... Indiana deprived petitioner of equal protection of the laws under the
Fourteenth Amendment .
Jackson, 406 U.S. at 730. A person cannot be deprived of procedural protections afforded оther individuals merely because the State makes the decision to seek commitment under one statute rather than another statute. Humphrey v. Cady, 405 U.S. 504, 512, 31 L. Ed. 2d 394, 92 S. Ct. 1048 (1972). Thus, in regard to the initial determination of whether there is probable cause for detention, an individual
Application of the due process and equal protection principles discussed above requires that detainees under the Statute be afforded an opportunity to appear in person to contest probable cause. Petitioners’ liberty interests are substantially infringed during the 45-day period leading up to trial. Absent an opportunity to appear and respond to the petition for commitment, we believe that the risk of wrongful detention is too great.
In contrast, the burden of providing notice and an opportunity for a detainee to appear is not too onerous. The breadth of such a hearing would remain within the discretion of the trial court. Insofar as this hearing is limited to verification of the detainee‘s identity and the determination of probable cause to believe that he or she is a sexually violent predator, we do not anticipate a lengthy proceeding. Because many of the individuals affected will be imprisoned prior to commitment, see
In Harris, we imposed such requirements as a function of “inherent judicial power“. In re Harris, 98 Wn.2d 276, 287, 654 P.2d 109 (1982). “[D]ue process is flexible and calls for such procedural protections as the particular situation demands“. Morrissey v. Brewer, 408 U.S. 471, 481, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972). On several prior occasions, we have supplemented the commitment procedures of
Therefore, we hold that a 72-hour hearing is required by the constitutional guaranty to due process, and must be
2. Less Restrictive Alternative.
Petitioners argue that the Statute violates equal protection because it does not require consideration of less restrictive alternatives to confinement. They point to the mental health statute,
We agree. The State cannot provide different procedural protections for those confined under the sex predator statute unless there is a valid reason for doing so. Here, the State offers no justification for not considering less restrictive alternatives under
Less restrictive alternatives were not considered in either Young‘s or Cunningham‘s respective trials. Given our resolution in Cunningham‘s case, we are concerned only with the effect of this holding in regard to Young. We remand Young‘s case for consideration of alternatives to confinement. Because the sex predator determination has already been made, the finder of fact need only consider if the less restrictive alternatives are appropriate.
3. Jury Verdict and Selection.
Petitioners claim that the Statute provides an inadequate burden of proof by failing to require a unanimous verdict. The Statute is silent on the issue, but we believe that it
Our primary goal in interpreting statutes is to carry out the intent of the Legislature. Anderson v. O‘Brien, 84 Wn.2d 64, 67, 524 P.2d 390 (1974). The sexually violent predator Statute requires the State to prove beyond a reasonable doubt that the person is a sexually violent predator.
Here, over defense objections, the jury in Cunningham‘s trial was not instructed that unanimity was required, and an 11-to-1 verdict was returned — at least one person on the jury felt that the State failed to meet its burden. Under the standards announced here, thе verdict was insufficient. In Young‘s case, the verdict was unanimous, and the jury‘s finding is affirmed.
Petitioners also contend that they are entitled to 12 peremptory challenges at trial. Young requested the additional challenges at a pretrial hearing. The trial court refused, and apparently gave three challenges to each side, plus an additional challenge to be used for the alternate seat. Cunningham also requested additional challenges. The trial court granted six challenges per side plus one for each alternate. Neither petitioner claims that he was prejudiced by the allegedly insufficient number of challenges; indeed, neither petitioner even submits the record of voir dire.
Petitioners argue that because the Statute subjects them to indefinite incarceration, they should be afforded the same number of peremptory challenges as defendants in cap
4. Vagueness.
Petitioners and amicus American Civil Liberties Union argue that various terms in the Statute — such as “comparable“, “sexually motivated“, “safe to be at large“, “mental abnormality“, and “likely” — are unconstitutionally vague.
The issue of vagueness involves the procedural due process requirements of fair notice of the conduct warranting detention and clear standards to prevent arbitrary enforcement by those charged with administering the applicable statutes.
In re LaBelle, 107 Wn.2d 196, 201, 728 P.2d 138 (1986) (citing Hontz v. State, 105 Wn.2d 302, 308, 714 P.2d 1176 (1986)); see also Clyde Hill v. Roisen, 111 Wn.2d 912, 916, 767 P.2d 1375 (1989). Exact specificity is not required; rather, the language used must be susceptible to understanding by persons of ordinary intelligence. Seattle v. Eze, 111 Wn.2d 22, 26-27, 759 P.2d 366, 78 A.L.R.4th 1115 (1988). We do not find the Statute to be so vague as to deny due process.
Ample standards are present to guide the exercise of discretion and to provide notice to potential detainees of prohibited conduct. The Statute is quite specific and explicit. It requires that a person “who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence“,
Similar challenges based on vagueness have been rejected. The United States Supreme Court, in analyzing a sexual psychopath statute, held that the statute was not vague because it could be applied only to a narrowly defined group of offenders. Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270, 274-75, 84 L. Ed. 744, 60 S. Ct. 523, 126 A.L.R. 530 (1940). The statute there turned on “underlying conditions, calling for evidence of past conduct pointing to probable consequences . . . as susceptible of proof as many of the criteria constantly applied in prosecutions for crime.” Pearson, at 274. Similarly, our Statute calls for particular evidence of past conduct and a propensity toward violence. See also People v. Pembrock, 62 Ill. 2d 317, 342 N.E.2d 28 (1976). The sex predator Statute is not so vague that it denies due process.
5. Right To Remain Silent.
Petitioners argue that they were denied their right to remain silent. Both were ordered by the trial court to speak to the State‘s psychologists. In addition, testimony was allowed at trial that Young refused to abide by the court‘s order. First, petitioners claim that the
Under the
Furthermore, we see good reasons to refuse the statutory right to remain silent to sexually violent predators even though thе Legislature has granted such a right to the mentally ill. Equal protection requires that similarly situated persons be treated alike. In re Knapp, 102 Wn.2d 466, 473, 687 P.2d 1145 (1984). However, sexually violent predators are not similarly situated to the mentally ill in regard to the treatment methods employed, or the information necessary to ensure that they receive proper diagnosis and treatment. The Legislature made specific findings which are pertinent to this distinction:
[A] small but extremely dangerous group of sexually violent predators exist who do not have a mental disease or defect that renders them appropriate for the existing involuntary treatment act,
chapter 71.05 RCW . . . . [S]exually violent predators generally have antisocial personality features which are unamenable to existing mental illness treatment modalities and those features render them likely to engage in sexually violent behavior. The legislature further finds that the prognosisfor curing sexually violent offenders is poor, . . . and the treatment modalities for this population are very different than the traditional treatment modalities for people appropriate for commitment under the involuntary treatment act.
V
EVIDENTIARY ISSUES
1. Prior Crimes.
Petitioners contend that several of the State‘s witnesses should not have been allowed to testify, and that other testimony was admitted in error. They claim that all the testimony of the victims of their prior crimes should have been excluded, as it was irrelevant and unfairly prejudicial. In
Generally, all relevant evidence is admissible and all irrelevant evidence is inadmissible.
The evidence here was properly admitted. The manner in which the previous crimes were committed has some bearing on the motivations and mental states of the petitioners, and is pertinent to the ultimate question here. Moreover, the likelihood of continued violence on the part of petitioners is central to the determination of whether they are sexually violent predators under the terms of the Statute. Thus, we cannot say that the trial court abused its discretion in admitting the victims’ testimony. Although we agree that the testimony presented by the victims was compelling, and, therefore, had a substantial effect on the jury, we do not believe that its prejudicial effect outweighed its probative value. In assessing whether an individual is a sexually violent predator, prior sexual history is highly probative of his or her propensity for future violence.
In a similar vein, the trial court acted within its discretion when it admitted evidence of Cunningham‘s sexually motivated juvenile conviction. A person‘s history of sexually violent offenses is relevant to the sex predator determi
We do not, however, perceive any relevance to the testimony presented about Young‘s 1972 conviction for a bomb threat. The threat was made on a college campus where Young was a student. No sexual motivation was alleged for this crime. On the other hand, it is hard to conceive of any juror attaching much significance to the conviction in light of Young‘s prior history of violent sex offenses, which includes at least six felony rapes. The jury instructions make it clear that only sex offenses or sexually motivated felonies аre considered in making the sex predator determination. Any error was harmless.
2. Validity of Prior Convictions.
Young contends that all evidence relating to his conviction in 1963 for four rapes should have been excluded because the jury instructions given there were in error. We disagree. The trial court properly held that the convictions were admissible.17
We have previously held that the State may use prior convictions without proving their constitutional validity in appropriate circumstances. State v. Ammons, 105 Wn.2d 175, 187, 713 P.2d 719, 718 P.2d 796 (1986), cert. denied, 479 U.S. 930 (1986). Because an individual subject to civil commitment would have no greater constitutional protections in this regard, we apply the Ammons case by analogy. In sentencing proceedings, the court has established the following rule:
[A] prior conviction which has been previously determined to have been unconstitutionally obtained or which is constitutionally invalid on its face may not be considered. Constitutionally
invalid on its face means a conviction which without further elaboration evidences infirmities of a constitutional magnitude.
(Citations omitted.) Ammons, at 187-88. To hold otherwise would require appellate review of all prior convictions, which would “unduly and unjustifiably overburden the [trial] court“. Ammons, at 188.
Finally, Young contends that the testimony of interrogating officers concerning his confessions to the rapes was wrongly admitted. He argues that because tape recordings were made (but not offered into evidence) the testimony must be excluded. Furthermore, he asserts that he should have been permitted to offer impeachment evidence of a criminal trespass charge and disciplinary history against the officers. These arguments are patently meritless.
3. Expert Testimony.
Petitioners argue that the testimony of the State‘s expert witnesses, Dr. Dreiblatt and Dr. Rawlings, should have been excluded because they testified as to theories which are not generally accepted in the scientific community. They contend that the experts had no basis for their testimony that any particular mental abnormality or personality disorder exists which makes a person likely to rape, or that Young or Cunningham was in fact likely to re-offend. They are supported in this claim by amicus, the Washington State Psychiatric Association. We conclude that the testimony was properly admitted.
Petitioners point to testimony offered by their own experts that rape is not necessarily caused by mental illness or disease. At trial, the jury heard a broad spectrum of evidence pertaining to the petitioners’ condition. In addition to the State‘s expert testimony presenting the diagnoses of petitioners, the jury heard testimony from experts presenting the contrary view. From this evidence relating both to the accuracy of the diagnosis in general, and the specific criticism of the diagnoses made in Young‘s and Cunningham‘s cases, the jury was able to return a verdict that petitioners were sexually violent predators.
[E]vidence deriving from a scientific theory or principle is admissible only if that theory or principle has achieved general acceptance in the relevant scientific community.
State v. Martin, 101 Wn.2d 713, 719, 684 P.2d 651 (1984) (rejecting hypnotically induced testimony). Under Frye, “[t]he core concern . . . is only whether the evidence being offered is based on established scientific methodology“. Cauthron, at 889.
We have previously held that predictions of future dangerousness do not violate due process, despite the inherent uncertainties of psychiatric predictions. In re Harris, 98 Wn.2d 276, 280, 654 P.2d 109 (1982). Our reasoning there is convincing in this context as well:
Petitioner‘s argument would eviscerate the entire law of involuntary commitment as well as render dubious the numerous other areas where psychiatry and the law intersect. There is no question the prediction of dangerousness has its attendant problems. . . . But we are not prepared to abandon the possibility of conforming the law of involuntary civil commitment to the requirements of the constitution.
Harris, at 280-81. In addition, we have held that a finding of future dangerousness provides an appropriate reason to impose an exceptional sentence on a sex offender. State v. Pryor, 115 Wn.2d 445, 454, 799 P.2d 244 (1990). Our holding in Pryor implies that predictions of future dangerousness are sufficiently accurate and reliable. We see no reason to reconsider that holding here. See State v. Janes, 121 Wn.2d 220, 235, 850 P.2d 495 (1993) (independent Frye determination unnecessary when an analogous proposition has already been deemed admissible).
Our position is supported by the Legislature‘s determination, following numerous hearings, that the sexually violent predator condition is not only recognized, but treatable and capable of diagnosis. See
Next, we must determine if expert testimony was properly admitted.
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
The determination of whether expert testimony is admissible is within the discretion of the trial court. State v. Ortiz, 119 Wn.2d 294, 310, 831 P.2d 1060 (1992). Unless there has been an abuse of discretion, this court will not disturb the trial court‘s decision.
The 2-part test we apply for
In a related argument, Young claims that Dr. Dreiblatt‘s testimony that Young suffers from a combination of mental abnormality and personality disorder was insufficient to meet the definition of sexually violent predator. We disagree. The definition is phrased in the alternative and states that a sexually violent predator is someone who suffers from a mental abnormality or a personality disorder.
Petitioners also claim that the expert testimony should be excluded because it was based on hearsay. Under
Finally, it must be pointed out that petitioners each presented expert testimony of their own. The juries were urged
VI
CONCLUSION
In sum, we conclude that the overall statutory scheme presented in the sexually violent predator portions of the Act is constitutional. We hold that
We conclude that the Statute is not void for vagueness; the terms are sufficiently specific and explicit. Further, due process does not operate to guarantee petitioners a right to remain silent; there are ample reasons to treat these detainees differently than others involuntarily committed. As to the remaining evidentiary issues, in most instances the trial courts acted properly within their discretion. The testimony of the victims of previous sexual crimes, including any juvenile offenses, is relevant and may be admitted. The expert testimony was also properly admitted. We hold that the evidence pertaining to a bomb threat conviction in Young‘s case was inadmissible, but that error was harmless. Finally, we have givеn ample consideration to all of the remaining arguments raised in the personal restraint petitions and on appeal, as well as those advanced by amici, and conclude that they lack merit.
Turning to the specific disposition in petitioners’ cases, we reverse Cunningham‘s commitment due to the State‘s failure to prove dangerousness through evidence of a recent
ANDERSEN, C.J., and BRACHTENBACH, DOLLIVER, GUY, and MADSEN, JJ., concur.
JOHNSON, J. (dissenting) — I dissent.
[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 andFourteenth Amendments . . . .18
The sexually violent predator statute,
History has proven the grave error in creating special classes of individuals for whom constitutional rights are diminished. Today the majority condones the Legislature‘s creation of such a special class, trampling these individuals’ rights. I cannot agree. The Statute is nothing more or less than a preventive detention scheme based on allegations of future dangerousness. Once a person has committed a sexually motivated crime, no matter how remote in time or place,
The majority concedes the unconstitutionality of the Statute and attempts to salvage it by reading in requirements not included by the Legislature. Unfortunately, the majority‘s pen stops short. Under Foucha, the State must prove an individual is both mentally ill and dangerous before the person can be involuntarily committed; however, the Statute still fails to meet the mental illness requirement. Thus, the Statute offends the due process clause by subjecting individuals to lifetime cоnfinement based not on any crime committed, but instead on fears of future crimes, and it offends the prohibitions against ex post facto laws and double jeopardy by masquerading as a civil commitment law when its purpose is penal.
I
SUBSTANTIVE DUE PROCESS
The sexual predator Statute violates substantive due process. Under the
An individual‘s liberty interest is fundamental in nature. See United States v. Salerno, 481 U.S. 739, 750, 95 L. Ed. 2d 697, 107 S. Ct. 2095 (1987). “Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action“. Foucha v. Louisiana, U.S. ___, 118 L. Ed. 2d 437, 112 S. Ct. 1780, 1785 (1992); Reno v. Flores, ___ U.S. ___, 123 L. Ed. 2d 1, 113 S. Ct. 1439, 1454 (1993) (O‘Connor, J., concurring). Physical confinement in a mental institution entails a “massive curtailment of liberty“. Vitek v. Jones, 445 U.S. 480, 491-92, 63 L. Ed. 2d 552, 100 S. Ct. 1254 (1980).
When a statute implicates a fundamental right such as a person‘s liberty, the test for whether the statute passes constitutional muster is one of strict scrutiny. For the statute to be constitutional, it must further a compelling state interest and must be narrowly tailored to achieve that interest. State v. Farmer, 116 Wn.2d 414, 429, 805 P.2d 200, 812 P.2d 858, 13 A.L.R.5th 1070 (1991); In re Schuoler, 106 Wn.2d 500, 508, 723 P.2d 1103 (1986).
Although the majority acknowledges the Statute must pass strict scrutiny, it fails to adequately analyze whether the Statute is narrowly tailored to achieve the State‘s interest. The most recent statement of the Supreme Court‘s requirements for narrowly tailoring an involuntary commitment statute is Foucha v. Louisiana, ___ U.S. ___, 118 L. Ed. 2d 437, 112 S. Ct. 1780 (1992). The majority has failed to see or has chosen to ignore that Foucha provides a framework for substantive due process analysis in these types of cases. Foucha recognizes only three situations in which the State has such a compelling interest in public safety that a complete deprivation of an individual‘s liberty interest is justified: criminal conviction, civil commitment, and limited detention of persons shown to be dangerous to the community. Foucha, 112 S. Ct. at 1785-86.
Even in these three situations, however, the State is required to narrowly tailor its statutes. For example, the requirement that a person be both mentally ill and dangerous is a way to constitutionally tailor civil commitment statutes. In addition, strict time limits for pretrial detention are another specific way to narrow the conditions under which an individual may be confined.
In contrast, the sexual predator Statute is not narrowly tailored to achieve its compelling interest. In order to be narrowly drawn, the Statute must satisfy certain require-
Under civil commitment, substantive due process requires that an individual be both mentally ill and dangerous before he or she may be involuntarily committed. Foucha, 112 S. Ct. at 1784. In Foucha, an insanity acquittee who had regained his sanity sought release from a mental institution. Foucha was found to be no longer mentally ill, but still dangerous to others because of his “antisocial personality, a condition that is not a mental disease and... is untreatable“. Foucha, 112 S. Ct. at 1782. The Court held that Foucha‘s continued confinement based on dangerousness alone violated due process. Foucha, 112 S. Ct. at 1784.
Like the statute in Foucha,
The Statute provides for the indefinite commitment of any person deemed to be a “sexually violent predator“, but the Statute‘s definition of this term does not apply to a group of individuals who are mentally ill in any medically recognized sense. See La Fond, Washington‘s Sexually Violent Predator Law: A Deliberate Misuse of the Therapeutic State for Social Control, 15 U. Puget Sound L. Rev. 655, 691-92 (1991-1992); Comment, Sexual Violence, Sanity, & Safety: Constitutional Parameters for Involuntary Civil Commitment of Sex Offenders, 15 U. Puget Sound L. Rev. 879, 898-900 (1991-1992).
The Statute defines “sexually violent predator” as any person who meets the following two criteria: (1) the person must at any time in his or her life been either charged with or convicted of a sexually violent crime; and (2) the person must suffer from “a mental abnormality or personality dis-
Amicus, the Washington State Psychiatric Association, points out the term “mental abnormality” has no clinically significant meaning and no recognized diagnostic use; the term “abnormality” has long been in disuse because it can have a variety of different meanings. The Statute defines the term “mental abnormality” as:
a congenital or aсquired condition affecting the emotional or volitional capacity which predisposes the person to the commission of criminal sexual acts in a degree constituting such person a menace to the health and safety of others.
The Statute also does not provide a definition for the term “personality disorder“. Amicus points out this term has a
Despite some psychiatric incantations, therefore, the sexual predator Statute deals with potentially dangerous people, but not mentally ill people. Because under Foucha a prediction of dangerousness alone is an unconstitutional basis for indefinite confinement in a mental institution, the Statute violates due process.
Even if a personality disorder or mental abnormality is a mental illness, this court has previously required proof of a recent overt act as evidence of dangerousness before a person can be detained to assess whethеr he or she is mentally ill. See In re Harris, 98 Wn.2d 276, 654 P.2d 109 (1982). The plain language of the sex predator Statute contains no such requirement.20 The majority attempts to salvage the Stat-
This judicial rewriting of the Statute is unprincipled decisionmaking at its worst. Although the majority is correct that a court must construe a statute to render it constitutional, majority at 41, a court cannot rewrite a statute by reading into it language that simply is not there. Addleman v. Board of Prison Terms & Paroles, 107 Wn.2d 503, 509, 730 P.2d 1327 (1986) (stating a court may not “read into a statute those things which it conceives the Legislature may have left out unintentionally“); In re Taylor, 105 Wn.2d 67, 69, 711 P.2d 345 (1985) (stating if language of a statute is clear, a court may not “read things into it which are not there“). Such judicial rewriting is not only unprincipled, but also unfair. The parties could not have anticipated this new construction and have not had an opportunity to brief or argue the constitutionality of the majority‘s new version of the Statute.
The court‘s wholesale reading in of an overt act requirement also runs counter to the Legislature‘s intent. The Statute was enacted in response to intense public outcry over two brutal sex crimes: the rape and mutilation of a Tacoma boy, and the rape and murder of a Seattle woman. See Boerner, Confronting Violence: In the Act and in the Word, 15 U. Puget Sound L. Rev. 525 (1991-1992). The individuals who committed the crimes had recently been released after serving time for previous sex crimes. To the extent that the majority now requires evidence of a recent overt act by such released individuals, the majority paves the way for a repeat of the above brutal crimes, which is exactly what the legislation was enacted to avoid! This is an absurd result.
Finally, the majority‘s rewriting of the Statute raises new equal protection concerns. By reading in this new requirement, the court creates two classes of persons under the same statute: those incarcerated versus those who are not. This is a distinction without a difference. Immediately upon
Equal protection requires that “persons similarly situated with respect to the legitimate purposes of the laws receive like treatment“. In re Knapp, 102 Wn.2d 466, 473, 687 P.2d 1145 (1984). The purpose of the Statute is tо prevent sexual predators from reoffending and thereby protect the community. It is difficult to see the difference between an individual the day before he or she leaves prison versus an individual the day after departing from jail. The only rationale offered by the majority is that an incarcerated individual does not have the opportunity to commit a recent overt act. I disagree. Evidence amounting to a “recent overt act” is often present even while in jail. Such evidence could be based on prison activities or conduct, such as inappropriate drawings of sexual encounters with children.
The court cannot choose to have two standards for commitment: one for those presently incarcerated and another for everybody else.21 The United States Supreme Court has been careful to harmonize the constitutional requirements for civil commitment in the ordinary situation with those arising when there has been a finding of insanity at a criminal trial. See Jones v. United States, 463 U.S. 354, 77 L. Ed. 2d 694, 103 S. Ct. 3043 (1983). Although the majority‘s requirement of a recent overt act by released individuals harmonizes
The United States Supreme Court has permitted preventive detention only in the pretrial context and only if the duration of confinement is strictly limited, not indefinite as in this case. See, e.g., United States v. Salerno, 481 U.S. 739, 747-51, 95 L. Ed. 2d 697, 107 S. Ct. 2095 (1987); Schall v. Martin, 467 U.S. 253, 264-71, 81 L. Ed. 2d 207, 104 S. Ct. 2403 (1984); Jackson v. Indiana, 406 U.S. 715, 738, 32 L. Ed. 2d 435, 92 S. Ct. 1845 (1972).
In Salerno, 481 U.S. at 747, the Supreme Court upheld a federal act authorizing pretrial detention of defendants deemed dangerous. The Court noted that preventive detention under the act was “limited by the stringent time limitations of the Speedy Trial Act“. Salerno, 481 U.S. at 747. In Schall, the Court upheld a state statute authorizing the preventive pretrial detention of juveniles accused of crimes who were deemed dangerous, and the Court noted the maximum possible detention under the act was only 17 days. Schall, 467 U.S. at 269-70. Finally, in Jackson, the Court held that a criminal defendant who was incapable of proceeding to trial could be detained оnly for the reasonable period of time necessary to determine whether a substantial probability existed the defendant would ever become capable to proceed to trial. Jackson, 406 U.S. at 738. Under this standard, the Court in Jackson found the defendant‘s 3½-year confinement excessive because the defendant, a deaf mute, was not expected to ever gain the competency to stand trial.
The Supreme Court has never upheld a lifetime preventive detention scheme for those who are feared dangerous. It was asked to do precisely that in Foucha. The State of Louisiana argued that Salerno authorized preventive detention for persons who pose a danger to the community. Foucha, 112 S. Ct. at 1786. The Court disagreed and distinguished Salerno on three grounds. First, the Court noted the statute at issue in Salerno was narrowly focused on the most serious of crimes and required a finding that no conditions of release could reasonably assure the safety of the community. Foucha, 112 S. Ct. at 1786. Second, the Court contrasted the time limits for pretrial detention with the indefinite commitment authorized by the Louisiana law. Foucha, 112 S. Ct. at 1786-87. Finally, the Court pointed out that less restrictive alternatives were available to deal with persistent criminal behavior, including enhanced sentences for recidivists. Foucha, 112 S. Ct. at 1786-87.
As a result, the Statute does precisely what Foucha expressly says the government may not do: confine someone indefinitely as dangerous who is not mentally ill but simply has a personality disorder or antisocial personality. As the Supreme Court noted:
[T]he State asserts that because Foucha 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, he may be held indefinitely. 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.
(Italics mine.) Foucha, 112 S. Ct. at 1787. The Legislature has other options for dealing with sex offenders. Enhanced sentencеs for repeat offenders and supervised release are but two of the most obvious.
The sexual predator Statute has each of the constitutional weaknesses of the statute in Foucha, weaknesses that caused the Supreme Court to consider the Foucha statute
only a step away from substituting confinements for dangerousness for our present system which, with only narrow exceptions... incarcerates only those who are proved beyond a reasonable doubt to have violated a criminal law.
(Italics mine.) Foucha, 112 S. Ct. at 1787. I would hold the sexual predator Statute is an unconstitutional violation of substantive due process.
EX POST FACTO AND DOUBLE JEOPARDY
In addition to violating substantive due process, the Statute‘s commitment provisions violate the constitutional prohibition against ex post facto laws.
The commitment provisions also violate the prohibition on double jeopardy.
Because
The factors to be considered in deciding whether a statute has a criminal or civil purpose include whether the act dis-
The statute in Allen allowed the State to divert persons charged with crimes from the criminal system to the civil system for treatment of mental illness. In contrast, the sexually violent predator Statute is not an alternative to criminal imprisonment. It allows the State to seek a criminal conviction against an individual, and only aftеr the individual has completed his or her sentence does the Statute purportedly seek to provide specialized “care and treatment” for the individual. See
Although the Statute provides for treatment, this goal is completely subordinated to punishment. An individual‘s need for diagnosis and treatment is never sufficiently compelling under the Statute until the individual is nearing the end of his or her criminal sentence. The timing alone is a strong indication that the Legislature was less interested in treatment than in confinement.
While both the Illinois statute in Allen and the Washington Statute provide for an indefinite period of confinement, there are important procedural differences. In Illinois, an individual may file a petition for release at any time and is entitled to a case review every 6 months. The court is required to hear all petitions. Here a petition for release normally must be authorized by the Department of Social and Health Services. Although an individual may petition over the Department‘s objection, he or she must then prevail at a show cause hearing in order to obtain a trial. Once a person has petitioned over the Department‘s objection and been denied, the court is mandated to deny subsequent petitions unless the person can make a showing of changed circumstances in the petition itself. Case reviews are conducted only once a year.
In conclusion, I would hold that Washington‘s sexually violent predator Statute,
UTTER and SMITH, JJ., concur with JOHNSON, J.
Reconsideration denied September 20, 1993.
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[No. 59436-8. En Banc. August 12, 1993.]
THE STATE OF WASHINGTON, Respondent, v. JOSEPH M. OLIVAS, ET AL, Appellants.