JURY BIAS RESULTING IN INDEFINITE COMMITMENT: EXPANDING PROCEDURAL PROTECTIONS IN SVP CIVIL COMMITMENT PROCEEDINGS UNDER THE MATHEWS TEST.

• Date: 01 May 2021
• Author: Mentch, Alli M.

INTRODUCTION 2077 I. HISTORY OF SEXUALLY VIOLENT PREDATOR STATUTES 2079 A. Civil Commitment of the Mentally Ill 2080 B. Constitutional Challenges to State SVP Statutes 2080 C. The Federal Statute and Recent Challenges 2083 II. CURRENT PROCEDURAL PROTECTIONS IN SVP CIVIL COMMITMENT PROCEEDINGS 2084 A. Overview of the SVP Civil Commitment Proceeding 2085 B. Respondents' Rights at Trial 2086 III. EMPIRICAL FINDINGS ON SVP CIVIL COMMITMENT PROCEEDINGS 2089 IV. THE MATHEWS TEST 2092 A. State Appellate Courts' Mathews Analysis 2094 1. Characterizing the Private Interest 2094 2. The Risk of Error 2095 3. The Government's Interest and Burden 2097 V. EXPANDING PROCEDURAL PROTECTIONS IN SVP CIVIL COMMITMENT PROCEEDINGS 2097 A. Characterizing the Private Interest 2097 B. The Risk of Error 2099 1. Mandatory Bench Trials 2100 2. Respondent's Unilateral Right to Request--or Waive-- a Jury Trial 2101 C. The Government's Interest and Burden 2102 VI. LIKELY COUNTERARGUMENTS 2103 CONCLUSION 2105 INTRODUCTION

For Richard Rude, prison provided the structure and guidance he needed to transform his life. (1) When Richard first arrived, he received an infraction for heroin possession. (2) But eventually, Richard, a previously nonreligious individual, began attending church; (3) he became actively involved in the prison's ministry, serving as an assistant group director and later a group leader. (4) Richard was serving a sixteen-year-and-two-month sentence for sexual assault. (5)

While incarcerated, Richard underwent sex offender treatment, attending two-hour group sessions four times a week and individual sessions twice a month. (6) His provider reported that Richard "made significant progress." (7) Richard acknowledged the causes of his behavior and addressed his previously misguided beliefs. (8) He expressed regret for his past behavior and the pain he caused to his victim. (9) Additionally, while incarcerated, Richard reconnected with his daughter, married a fellow ministry volunteer, and regained his sobriety. (10)

However, days before Richard's scheduled release from prison, the government petitioned to place him into civil commitment. (11) A jury found Richard to be a "sexually violent predator," (12) and he was committed to the McNeil Island Special Commitment Center for life. (13) As of 2014, Richard was still committed, (14) and in all likelihood he will remain in the facility for the rest of his life. (15) Although Richard's clinicians and family believe that he deserves a second chance, the state denied his petition for release. (16)

Twenty states, the District of Columbia, and the federal government have enacted Sexually Violent Predator (SVP) laws that permit the civil commitment of sex offenders. (17) Under these laws, imprisoned sex offenders serving criminal sentences are transferred to treatment facilities and held indefinitely. (18) As one individual describes civil commitment, "It's worse than prison. In prison I wasn't happy, but I was content because I knew I had a release date." (19) An estimated 5,400 individuals are currently civilly committed under these laws. (20)

The cost to confine an individual under civil commitment programs is not insignificant. For example, the State of Washington pays over $185,000 per year to confine a single individual. (21) While the applicable statutes vary from state to state, four elements are generally required for commitment: (1) a past sexual offense, (2) the presence of a mental disorder or abnormality, (3) an inability to control one's sexual behavior, and (4) a risk of recidivism. (22) This Note argues that such laws do not adequately protect respondents' due process rights. To that end, this Note proposes a more rights-protective application of Mathews to expand procedural protections for respondents in SVP civil commitment proceedings and offers two additional procedures to better protect respondents' rights.

Part I begins by detailing the history and enactment of SVP laws across the United States and the subsequent constitutional challenges to such laws. Part II discusses the current process for civil commitment and the rights respondents receive at trial. Part III points to recent empirical findings that illustrate a lack of procedural protections present in these trials. Part IV explores the use of the Mathews test when determining the adequacy of procedural due process and analyzes state appellate courts' use of the Mathews test when expanding procedural protections for respondents. Part V proposes an application of Mathews that more robustly protects procedural due process in SVP civil commitment proceedings and offers two additional procedures for states to consider.

1. HISTORY OF SEXUALLY VIOLENT PREDATOR STATUTES

   In the 1930s, states began enacting sexual psychopath laws to identify sexual offenders in need of rehabilitation and treatment. (23) However, states rarely utilized these laws for the first fifty years. (24) In 1990, the State of Washington passed the Community Protection Act (25) in response to public outrage over violent crimes committed by sexual recidivists. (26) Around the same time, some released sex offenders in Minnesota committed similarly heinous rape-murders. (27) As a result, Washington and Minnesota were the first states to implement civil commitment laws to prevent recurring sexual offenses. (28) Proponents continue to defend SVP civil commitment laws as a means of ensuring public safety by confining sexual predators. (29) Because SVP civil commitment laws significantly deprive an individual of his or her liberty, the constitutionality of these laws has been litigated extensively. (30)

   1. Civil Commitment of the Mentally Ill

      Civil commitment laws for the mentally ill existed prior to the enactment of SVP laws. (31) In O'Connor v. Donaldson, the United States Supreme Court held that nondangerous individuals cannot be civilly committed based solely on a mental illness diagnosis. (32) In order to civilly commit an individual, a state must prove by clear and convincing evidence (33) that an individual is mentally ill and a danger to himself or others. (34) The Court later looked to these precedents when determining whether various state SVP statutes were constitutional. (35)

   2. Constitutional Challenges to State SVP Statutes

      The United States Supreme Court first affirmed the constitutionality of a state SVP civil commitment law in 1997 in Kansas v. Hendricks. (36) A jury found that Leroy Hendricks met the definition of a sexually violent predator under Kansas's Sexually Violent Predator Act of 1994, (37) and the trial court subsequently ordered his civil commitment. (38) Hendricks appealed, and the case was sent to the Supreme Court of Kansas. (39) Hendricks alleged, among other things, that the Kansas SVP Act (1) did not satisfy substantive due process under the Fourteenth Amendment and (2) violated the Double Jeopardy and Ex Post Facto Clauses. (40) The Kansas Supreme Court invalidated the Act, reasoning that the prerequisite finding of a mental abnormality violated substantive due process. (41)

      The United States Supreme Court reversed, holding that the Act's definition of a mental abnormality satisfied substantive due process requirements. (42) The Court emphasized that the statute imposed three requirements for a respondent to be labeled a sexually violent predator. (43) The statute required the respondents display (1) sexually violent behavior, (2) a present mental abnormality that makes it difficult for the respondent to control his or her behavior, and (3) a likelihood of conducting similar behavior in the future, meaning he was considered "dangerous." (44) The Court reasoned that such a "lack of volitional control, coupled with a prediction of future dangerousness, adequately distinguishe[d]" those who should be involuntarily committed "from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings." (45) The Court also held that because the Kansas Act was civil in nature, it did not violate the Double Jeopardy and Ex Post Facto Clauses. (46)

      The Supreme Court decided Hendricks while an as-applied challenge to a similar SVP statute was pending on appeal. (47) The respondent in that case challenged the Washington Community Protection Act of 1990 and similarly argued that the law as applied violated the Double Jeopardy and Ex Post Facto Clauses. (48) The Ninth Circuit held that a facially valid civil commitment statute can be deemed punitive as applied so long as the actual confinement conditions provide clear proof that the statutory scheme is punitive in effect. (49) Because the Washington Supreme Court determined that the Act was civil in a separate suit, (50) the U.S. Supreme Court reasoned that the Act could not "be deemed punitive 'as applied' to a single individual in violation of the Double Jeopardy and Ex Post Facto Clauses." (51)

      In 2002, the Supreme Court granted certiorari in Kansas v. Crane to clarify the requirements Hendricks imposed on SVP civil commitment statutes. (52) A trial court had committed Michael Crane as a sexually violent predator under the same Kansas statute at issue in Hendricks. (53) Crane appealed to the Supreme Court of Kansas, arguing that the trial court failed to satisfy Hendricks's requirement that it find Crane unable to control his dangerous behavior before subjecting him to civil commitment. (54) The Kansas Supreme Court agreed and reversed the trial court's civil commitment order. (55)

      On review, the United States Supreme Court held that the Act did not require the State to prove a respondent's "total or complete lack of control" over his or her dangerous behavior. (56) However, the Court nonetheless held that to satisfy federal constitutional requirements, the state must at least show that a respondent has "serious" difficulty controlling his or her behavior. (57) The Court found this volitional element essential for the civil...