Washington's Sexually Violent Predator Statute: Constitutionally Sound and the Best Alternative for the Problem of Violent Predators

JurisdictionUnited States,Federal,Washington
CitationVol. 20 No. 01
Publication year1996


Washington's Sexually Violent Predator Statute: Constitutionally Sound and the Best Alternative for the Problem of Violent Predators

Carla B. Keegan(fn*)


One morning in early spring, a five-time convicted rapist is released from prison after serving time on his most recent conviction. Word from his cellmate is that he shows no remorse and is determined to rape again. The prosecutors and corrections officiab familiar with his record attempt to keep him confined by civilly committing him to a psychiatric facility. However, under the civil commitment laws in his state, he can only be involuntarily committed upon proof of a recent overt act showing that he is a danger to himself or others. Since he has been incarcerated for the past several years, such proof cannot be obtained. The community to which he relocates is notified of his presence and his record. Although they are frightened and angry, no legal recourse exists. He has served his time and is now free.

Three months after his release, he rapes again. The community is outraged and demands a solution to the problem of sexual offenders. Many alternatives are proposed:

"They should all go to prison for life, no questions asked!"

"How about a two-strikes law for all sexual offenders-as soon as they are convicted for a second time they automatically get life in prison."

"Wait a minute, not every sex offender is like him. What if they make one mistake and really learn from it-life in prison is a bit harsh for that, don't you think?"

"You're too soft. These guys are sick and shouldn't ever get out."

"Not all of them are sick. Maybe we can find a way to figure out which ones are sick and dangerous and keep them locked up until they can be treated."

"You can't treat these guys. Just put them in prison and you don't have to worry about them anymore."

"Sentencing all sex offenders to prison for life is pretty expensive. Do we want to pay for that when we might be able to treat them?"

"Okay, so we only keep some of them in prison for life, the really bad ones."

"How do we decide which ones are bad-not all rapists will rape again, right?"

"I don't know. I just know that this problem is out of control and we have to do something."

I. Introduction

The option chosen by the State of Washington for dealing with the dilemma of violent sex offenders was the enactment, in 1990, of the Sexually Violent Predators (SVP) statute.(fn2) Since its enactment, the SVP statute has met with both criticism and support, been the subject of differing constitutional interpretations from the Washington State Supreme Court(fn3) and the federal district court,(fn4) and been under intense public scrutiny from legal and psychiatric professionals as well as the community at large.

This Comment argues that the SVP statute is not only constitutionally sound, but is also the best alternative for the problem of sexually violent predators. Part II describes the SVP statute and how

it came to be enacted. Next, in examining the constitutionality of the statute, Part III briefly describes the decision rendered by the Washington Supreme Court in 1993 which upheld the SVP statute, as well as the federal district court's 1995 ruling, which held the statute to be unconstitutional. In arguing that the statute is constitutional, Part IV addresses and refutes the arguments made by the federal district court. Lastly, Part V looks at the alternative solutions available for the problem of sexually violent predators, and argues that neither mandatory life sentences nor an expansion of the current civil commitment system is the proper answer to this dilemma.

In 1994, the State of Kansas enacted a sexually violent predator law that is almost identical to Washington's SVP statute.(fn5) In March 1996, the Kansas Supreme Court held the law to be unconstitutional(fn6) and the ruling is currently on appeal to the United States Supreme Court.(fn7) Although this Comment will not address the Kansas sexually violent predator law, because the Washington and Kansas laws are almost identical, any ruling by the United States Supreme Court as to the constitutionality of the Kansas SVP law will also determine the constitutionality of the Washington SVP statute. By closely examining how the courts have handled Washington's SVP statute, this Comment will argue that such laws are constitutional and should be upheld by any court, including the United States Supreme Court.

II. Sexually Violent Predator Statute

A. Background

On May 20, 1989, a seven-year-old boy riding his bike to a friend's house was raped and mutilated by Earl Shriner.(fn8) Shriner had a twenty-four-year history of criminal assaults and had been released from prison two years earlier after serving a ten-year term for two violent sex crimes.(fn9) At the time Shriner was released, some had predicted he was still very dangerous and had petitioned unsuccessfully to have him civilly committed.(fn10) The community was outraged that a man who was a known threat to children could have been out on the streets and able to cause harm again.(fn11) Protesters gathered on the steps of the Capitol Building in Olympia and demanded that the Governor call a special session of the legislature to enact tougher penalties for sex offenders, including life imprisonment for repeat sex offenders.(fn12) On June 15, 1989, the Governor acted: By executive order, he created The Governor's Task Force on Community Protection.(fn13) The job of the Task Force was to review the current criminal justice system and the mental health civil involuntary commitment process and determine its effectiveness in dealing with individuals who are not safe to be at large in the community.(fn14)

The Task Force considered many different alternatives for dealing with sexually violent predators such as Earl Shriner, ranging from expansion of the existing involuntary civil commitment system to mandatory life sentences for repeat offenders.(fn15) The system had been unable to civilly commit Earl Shriner because the professionals who made the evaluations for such commitment typically interpreted the "mental illness" definition narrowly, rather than using the term as broadly as the statute allows.(fn16) Earl Shriner did not fit the more narrow definition and subsequently fell through the cracks. The task force considered broadening the existing civil commitment standards so that sexual predators would clearly be covered by the civil commitment statute. However, this alternative was ultimately rejected because it would require such drastic changes to the existing civil commitment law that it would no longer be effective for handling the short-term confinees who were currently committed under that law.(fn17)

The Task Force also considered and rejected mandatory life sentences for repeat sex offenders. While all members of the Task Force agreed that those who commit the most serious sex offenses deserved very long sentences, not all members agreed that every sex offender deserved such an exceptional sentence.(fn18)

After several months of intense work, the Task Force proposed the SVP statute. The statute was enacted by the Legislature in 1990.(fn19)

B. The SVP Statute

The SVP statute allows the state to involuntarily civilly commit "sexually violent predators,"(fn20) until the individual's mental abnormality or personality disorder has so changed that the individual is not likely to engage in predatory acts of sexual violence if conditionally released to a less restrictive environment or unconditionally discharged.(fn21) In order to be deemed a "sexually violent predator," an individual must (1) have been convicted of or charged(fn22) with a crime of sexual violence, and (2) suffer from a mental abnormality or personality disorder that makes them likely to engage in predatory acts of sexual violence if not confined in a secure facility.(fn23)

Under the SVP statute, when a person who at any time previously has been convicted of a sexually violent offense(fn24) is about to be released from total confinement, the prosecuting attorney of the county where the person was convicted (or the attorney general if requested by the prosecuting attorney) may file a petition alleging that the person is a sexually violent predator.(fn25) A probable cause hearing is then held.(fn26) The individual is entitled to notice and the right to be present at the hearing.(fn27) If the court determines that probable cause exists, the judge directs that the individual be transferred to an appropriate facility for an evaluation to determine if the person is a sexually violent predator.(fn28)

Within forty-five days of the filing of the petition by the prosecuting attorney, a trial is conducted in which a jury must unanimously decide beyond a reasonable doubt whether the individual is a sexually violent predator.(fn29) The individual is entitled to assistance of counsel(fn30) at this trial and may retain experts and health professionals to perform an examination on his or her behalf.(fn31) If the jury determines that the individual is a sexually violent predator, he or she is committed to the custody of the Department of Social and Health Services for placement in a secure facility for control, care, and treatment. The individual is held until such time as his...

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