Washington State's Return to Indeterminate Sentencing for Sex Offenses: Correcting Past Sentencing Mistakes and Preventing Future Harm
| Publication year | 2002 |
| Citation | Vol. 26 No. 01 |
I. Introduction
What is personal safety worth? What rights are we willing to sacrifice as a society in return for our personal safety? How important is public safety and how much power does the State have to make laws that secure the community's safety, while compromising the personal liberty of others? Preventative detention for a few, as opposed to personal safety for the many, is a legitimate state goal and is one of the sacrifices we make for safety as a society and civilized populous.
Earl Shriner and Andre Brigham Young are infamous in sex offender case law and literature. Both served convictions for sex offenses only to commit new, more heinous sex crimes upon their releases. After completing a sentence for rape, Earl Shriner violently and brutally beat, mutilated, and raped a seven-year-old boy.(fn1) Similarly, after serving a sentence for forcibly raping four different women, two at knifepoint, Andre Brigham Young was in and out of prison.(fn2) Young later raped two other women, one with three small children present.(fn3) Most recently, Joseph Rosenow raped and murdered Jennie Mae Osborn, a 15-year-old Shelton, Washington girl.(fn4) Rosenow had recently been released from prison after serving a sentence for second-degree assault with sexual motivation and had previously been convicted of a violent rape in 1993.(fn5) How do we prevent known sex offenders from committing more sex crimes? By making it a part of their sentence to keep them in prison if they continue to be dangerous.(fn6)
The Washington legislature's return to indeterminate sentencing corrects its original mistake of setting fixed sentences for sex offenders with no supervision after release. Unlike the present civil commitment system, indeterminate sentencing preventatively detains offenders in the criminal system, protects the public, and ensures more control over offenders following their prison terms. Indeterminate sentencing provides a more efficient and effective alternative to the civil commitment process.
Section II will briefly discuss the progression of sex offender sentencing from the original parole system to the present changes, and why past structures were instituted and later modified or repealed. Furthermore, Section II will examine the distinctions between criminal indeterminate sentencing and civil commitment, outline the current state of sentencing for sex offenders, and discuss why sex offenders merit disparate sentencing treatment. Section III will then address the changes under the new law, how this sentencing will work, and why this new sentencing scheme will provide a rational system.
II. Background-Clarifying and Correcting Sex Offender Sentencing
Sex offender sentencing has seen many transitions and changes in procedure as well as in policy over the past 100 years. Under the original indeterminate sentencing or parole system, judges sentenced offenders to prison terms at their discretion with a parole board determining the release date.(fn7) This parole-based indeterminate sentencing focused on the rehabilitation of the offender and on the opportunity for reformation.(fn8) Because of the inconsistency with discretionary sentencing and lack of assurance that convicted offenders would serve any portion of their full sentence term through the parole system,(fn9) presumptive determinate sentencing(fn10) in the form of the Sentencing Reform Act ("SRA") was introduced as an across the board change to all crimes, including sex crimes.(fn11) The SRA's purpose, as cited within the text of the statute, was to devise just punishment proportionate with the seriousness of crimes as well as with offenders' criminal history and consistency in punishments for similar offenders.(fn12)
While the SRA achieved justness, proportionality, and consistency in sentencing for offenders overall, the Washington legislature has found determinate sentencing does not present the most effective sentencing scheme for sex offenders in particular.(fn13) Most importantly, presumptive determinate sentencing under the SRA automatically released sex offenders back into the community after serving their sentences, with no supervision and no provision for further government action absent another offense.(fn14)
In 1990, in response to public outrage over a convicted sex offender released into the community who violently raped and mutilated a young boy,(fn15) Governor Booth Gardner convened a task force to assess the needs for sex offender sentencing.(fn16) Due to the absence of supervision and high potential for recidivism for some sex offenders, the Governor's Task Force on Community Protection recommended that the Washington legislature adopt a civil commitment procedure for a small portion of "sexually violent predators."(fn17) The Task Force recommendations culminated in the Community Protection Act,(fn18) also known as the Sexually Violent Predator statute, which enabled the State to involuntarily civilly commit sexually violent predators(fn19) after serving their criminal sentence. While this civil commitment scheme provided an immediate solution to the problem of dangerous sex offenders being released with no supervision(fn20) and satiated the public outcry, it also presented pressing constitutional issues that garnered much litigation.(fn21)
Additionally, the Sexually Violent Predator ("SVP") statute did not apply to all sex offenders, and most offenders were released back into the community after serving their sentences. Responding to concerns about convicted sex offenders relocating to neighborhoods, the legislature enacted several measures requiring registration and community notification, and finally authorized the Department of Corrections to make changes to offenders' community custody conditions.(fn22) However, these measures did not grant the State the means necessary for controlling sexually violent offenders, once released, in an efficient and cost-effective manner.
In the 2001 Second Special Session, the Washington Legislature drastically changed sex offender sentencing beginning with crimes committed on and after September 1, 2001.(fn23) With the passage of the Third Engrossed Substitute Senate Bill 6151,(fn24) also known as the Sex Offender Management Act ("SOMA"), the legislature provided for the management and sentencing of sex offenders. The bill targets both those being preventatively detained in civil commitment and those imprisoned in the criminal system for punishment. Both parts of SOMA address legitimate public concerns: sex offense prevention and sex offender management.
To grant the State more control over violent sex offenders and to ensure public safety, the Washington Legislature returned to a "parole-based" indeterminate sentencing model for sex offenders with SOMA. The newly enacted SOMA differed from the pre-existing Sentencing Reform Act. The SRA punished offenders based on desert; convicted offenders served sentences proportionate with crimes committed and they were released after completing their sentences. However, the new sentencing structure under SOMA combines both deserved punishment with preventative detention in the criminal system. With the new system, the State is not only punishing based on desert but also on prevention. These are two inconsistent goals and principles. Incapacitating based on a finding of dangerousness is not deserved punishment, but is solely based on prevention. The new system efficiently combines both the purpose of determinate sentencing in the criminal system with the incapacitation of the civil commitment process into one sentence.
Major distinctions can be drawn between the civil and criminal systems. First, the new system under SOMA is criminal in nature- all of the detention is accomplished in the criminal prison system, compared to detention at the Special Commitment Center for civil commitment under the SVP statute.(fn25) Second, the civil commitment system requires proof that the offender is a sexually violent predator, finding beyond a reasonable doubt the offender has a mental abnormality or personality disorder not amenable to treatment, making the offender likely to re-offend.(fn26) The new criminal system established under SOMA requires a finding beyond a reasonable doubt that the offender committed the crime charged, but does not require a finding of mental illness, abnormality, or personality disorder. In order to continue holding or preventively detaining the offender, the State must find the offender is more likely than not to re-offend if released.(fn27) Third, offenders sentenced under SOMA's criminal system will all be detained in a state prison facility.(fn28) Unlike the civil commitment statute, which requires several specific facilities to house the residents,(fn29) there is no costly special facility for detention of this target group.(fn30)
Finally, since its enactment in 1990, the SVP statute has been and continues to be the subject of controversy and litigation. The SVP statute has been attacked as...
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