Washington's New Violent Sexual Predator Commitment System: an Unconstitutional Law and an Unwise Policy Choice

JurisdictionWashington,United States
CitationVol. 14 No. 01
Publication year1990



Washington's New Violent Sexual Predator Commitment System: An Unconstitutional Law and An Unwise Policy Choice

Brian G. Bodine(fn*)

I. Introduction

Recently, the public has been outraged by a number of gruesome sexual offenses committed by individuals having a history of sexual deviance.(fn1) Many people feel that these sexual offenses could have been predicted with complete accuracy. Even so, the Washington legal system was powerless to prevent the commission of these crimes.

In response to the public's outrage over the legal system's inability to prevent these sexual offenses,(fn2) several groups proposed changes to the system to help prevent future acts of sexual violence.(fn3) The proposal that was enacted into law was prepared by the Governor's Task Force on Community Protection.(fn4) The legislation relies on several strategies to control, monitor, and change the behavior patterns of sexual offenders.(fn5) These strategies include increased jail terms for all sexual offenders;(fn6) increased jail terms for repeat offenders, particularly for adult offenders with a history of committing sexual offenses as juveniles;(fn7) indefinite civil commitment of those offenders found to be "sexually violent predators;"(fn8) extended post-prison supervision of convicted sexual offenders;(fn9) stricter control of offenders placed in community outpatient treatment programs;(fn10) decreased amounts of early release credit due to "good time" served in prison for sexual offenders;(fn11) and mandatory registration of sexual offenders with the Washington State Patrol.(fn12)

The most controversial portion of the legislation is the civil commitment system that allows the state to commit indefinitely those offenders determined to be "sexually violent predators."(fn13) The commitment scheme is also the component of the legislation most likely to be subjected to constitutional attack.(fn14)

This Comment will discuss the portion of the legislation that established the system of involuntary civil commitment of violent sexual predators [hereinafter Violent Sexual Predator Commitment System]. This Comment will explore whether the Violent Sexual Predator Commitment System could withstand procedural and substantive due process challenges. Additionally, because the system is premised on a mental disorder of the sexually violent person, the commitment scheme will also be compared with the Involuntary Treatment Act's(fn15) civil commitment system, to determine whether the Violent Sexual Predator Commitment System violates the equal protection clause of the fourteenth amendment to the United States Constitution.

After determining that the Violent Sexual Predator Commitment System would not survive constitutional attack and that it is inconsistent with the purposes of the criminal law, this Comment concludes that the new Violent Sexual Predator Commitment System should not have been enacted. Rather, sexual offenders should be dealt with through the existing criminal justice system.

II. The State's Power to Commit Sexually Dangerous Persons

The new Violent Sexual Predator Commitment System allows the state to detain and treat a person found to be a "sexually violent predator," a finding based on an assumption of a person's "mental abnormality" and a prediction of his future violence.(fn16) In this respect, the new commitment system is typical of involuntary civil commitment systems that are used to commit the mentally ill to provide treatment to the individual and protection to the public.(fn17)

Typical involuntary civil commitment systems are based upon one of two sources of state power. First, under its police power, the state can commit persons who pose a danger to others, thereby regulating the public safety.(fn18) Second, under its parens patriae power, the state can commit an individual when the individual has lost the ability to act in his own best interest and the individual's best interest would be served by involuntary commitment and treatment.(fn19)

Similarly, typical sexually dangerous offender commitment systems are based upon a combination of the state's police power and parens patriae power.(fn20) By isolating the dangerous sexual offender in a state facility to protect society from harm by the offender, the state exercises its police power. By providing a treatment program for the dangerous sexual offender and ostensibly acting in the offender's best interest, the state exercises its parens patriae power. Thus, the typical dangerous sexual offender commitment system emphasizes both the protection of society and the treatment of the dangerous sexual offender.(fn21)

The assumption underlying such commitment systems is that the propensity to commit violent crimes of a sexual nature is a product of a specific mental disability.(fn22) If the propensity to commit sexual offenses is caused by a mental disability, that disability could be treated and the violent sexual offender could possibly be cured.(fn23) Because of a growing awareness that violent sexual offenders cannot be isolated as a definable group and an increasing skepticism toward the effectiveness of treatment of violent sexual offenders, several professional groups have urged that statutes mandating commitment of dangerous sexual offenders be repealed.(fn24)

At one time, over half of the states and the District of Columbia had statutory authority to involuntarily commit dangerous sexual offenders.(fn25) However, recognition that not all violent sexual offenders are likely to respond to the same type of therapy, coupled with a lack of proven treatment methods, has caused many states to re-examine their dangerous sexual offender commitment laws.(fn26) Currently, only 12 states and the District of Columbia have dangerous sexual offender commitment systems,(fn27) and only five states actively enforce the laws in more than a few isolated cases.(fn28) Additionally, numerous states have repealed their dangerous sexual offender commitment laws.(fn29) Therefore, the current trend is away from using dangerous sexual offender commitment systems.

A. The Prior Washington Sexual Psychopath Commitment System

Prior to the enactment of the Sentencing Reform Act,(fn30) Washington had a statute that allowed the state to commit persons found to be "sexual psychopaths."(fn31) This statute provided prosecutors with the discretion to allege that a defendant charged with a sexual offense was a "sexual psychopath."(fn32) The court would then hear and decide the criminal charges. If the defendant was found guilty of the sexual offense or had pleaded guilty, the court would pronounce a sentence.(fn33) The defendant's acquittal, however did not suspend the hearing on the sexual psychopath petition.(fn34) While acquittal would eliminate the state's criminal jurisdiction over the defendant, the sexual psychopath petition allowed the court to retain civil jurisdiction over the defendant.(fn35) After finding the defendant guilty or innocent, the court would then consider whether the defendant was a "sexual psychopath."(fn36)

The Washington Supreme Court recognized that commitment under the sexual psychopath statute was a "massive curtailment of liberty" that branded the "sexual psychopath" with a lifelong stigma.(fn37) Because of this stigma, as well as the curtailment of liberty associated with commitment, the court intimated that the alleged "sexual psychopath" would have the right to be heard, the right to counsel, the right to be confronted with evidence against him, and the right to offer evidence in his behalf, even though the statute left the option of a full adversarial hearing to the trial court's discretion.(fn38) Furthermore, even though the commitment was civil in nature, the state had to prove the defendant's dangerousness beyond a reasonable doubt,(fn39) a standard of proof more commonly associated with criminal proceedings.(fn40)

If the court found the defendant to be a "sexual psychopath," it committed the defendant to a state hospital until the superintendent of the treating hospital determined that the defendant (1) was safe to be at large; (2) had received the maximum benefit of treatment; (3) was not amenable to treatment; or (4) was a custodial risk or a hazard to other patients.(fn41) If the court received a report from the treating hospital's superintendent that one of the above conditions was met, the court could order that the defendant be (1) released, either with or without conditions; (2) returned to the hospital for continued treatment; (3) transferred to a prison to serve his sentence, less time spent in the hospital; or (4) transferred to a prison with psychiatric facilities.(fn42) The prior commitment system prohibited the release of a person found to be a "sexual psychopath" unless so ordered by the court that initially committed the person.(fn43)

This commitment system allowed a person found to be a "sexual psychopath" to receive treatment for his "illness" instead of punishment for his actions. The system provided "sexual psychopaths" with an incentive to seek and undergo treatment to effect a cure and speed his re-entry into society. At the same time, the system maintained the state's control over the person.

Superseded by the Sentencing Reform Act, the sexual psychopath commitment statute now applies only...

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