Preventing partisan commitment: applying Brady protection to the civil commitment of sex offenders.

• Author: Quanbeck, Tyler

CONTENTS Introduction I. DEVELOPMENT OF SEX OFFENDER COMMITMENT A. History of Civil Commitment B. Civil Commitment Statutes Applied to Sex Offenders II. DEVELOPMENT OF THE BRADY RULE III. A CASE FOR BRADY RULE PROTECTION IN SVP COMMITMENT Proceedings A. The Quasi-Criminal Nature of SVP Commitment Proceedings B. Evidentiary Realities in SVP Commitment Hearings 1. The Enormous Influence of Expert Testimony 2. Variations in Expert Assessment C. Bright-Line Application of Brady in SVP Commitment CONCLUSION "Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent.... The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." *

INTRODUCTION

On March 8, 2002, Joseph Aaron Edwards appeared before the United States District Court for the District of Arizona. (1) He was found guilty of committing "Sexual Abuse by Use of Force Against a Minor," and for this crime Edwards faced a prison sentence of eighty-four months with five years of supervised release. (2) Edwards served his punitive sentence as handed down by the federal court; however, less than a week before his release was scheduled, the Chairperson of the Bureau of Prison Certification Review Panel filed a certificate to civilly commit Edwards indefinitely under the federal sex offender commitment statute. (3) Had the government not stipulated to dismiss Edwards's case three years after his certification, (4) he may have faced the same fate as thousands of other individuals in the United States who have already served time for sexual offenses:5 an indeterminate period of commitment, ending only after authorities determine that the individual is no longer a threat to society. (6) This practice of civilly committing convicted sex offenders has been upheld as constitutional by the United States Supreme Court and is currently implemented both by the federal government and a significant number of states. (7) What is unnerving, however, is that while Edwards's commitment proceeding may have resulted in an indefinite loss of liberty, the government prosecutors chose to withhold an expert report which concluded that Edwards did not meet the criteria necessary to be committed. (8) A convenient excuse for the government's action is that even with the possibility of a significant loss of liberty, Edwards's commitment was a civil action and thus did not require the same procedural protections as in a criminal trial. (9) Few courts or commentators have addressed whether the prosecution's use of selective disclosure is a valid practice, or if the same protection that prohibits such strategy in the criminal context is required in sex offender commitment hearings.

In Edwards, the government argued that as a party to sex offender commitment hearings it had a "general right of broad discretion in designating experts" and a "right to ignore and not disclose any expert that produces reports favorable to the detainees." (10) Had the matter been a criminal trial, such a strategy by the government would constitute a clear violation of the procedural safeguards first established by Brady v. Maryland. (11) Brady introduced the well-known rule that in criminal cases the prosecution's suppression of exculpatory material evidence violates the defendant's constitutional right to due process. (12) Few courts have addressed the extension of these protections to civil commitment proceedings despite the distinct similarities between involuntary commitment and criminal prosecution. This Note posits that while the involuntary commitment of sexually violent predators is formalistically a civil procedure, its quasi-criminal nature and unique reliance upon expert testimony requires the heightened protection of the traditionally criminal Brady safeguard. Scholars have amassed a great amount of research regarding more general constitutional protections afforded to defendants in sexual predator commitment hearings, (13) but little, if any, academic work has discussed the specific application of Brady to commitment hearings. (14) This Note will demonstrate that despite its "civil" label, like a criminal proceeding, the involuntary commitment of sex offenders requires the heightened protection of Brady.

Part I will explore the development of civil commitment statutes in the United States. This discussion does not attempt to challenge whether the civil commitment of sex offenders is meritorious in theory but instead focuses on the policies that drove the enactment of such statutes and their practical implementation. The goals and objectives of sex offender commitment statutes lay a foundation for understanding why commitment defendants require the protection of the Brady Rule. Part II focuses on the development of the Brady Rule. While this procedural safeguard evolved through criminal cases, the discussion will explore the policies that drive Brady's use in criminal hearings and posit that those same policies dually support the rule's application in sex offender commitment hearings.

Part III will then make a case for Brady's application to sex offender commitment proceedings. First, the discussion will focus on the criminal-like aspects of sex offender commitment that trigger the need for heightened Brady protection. Specifically, this Note will propose that the State's role in the proceedings and the severe consequences of sexually violent predator commitment require that the prosecution disclose relevant exculpatory evidence under Brady. Moreover, this Note will explain how Brady is already applied in other quasi-criminal hearings, such as extradition hearings, (15) suggesting that its use in sex offender commitment is not as radical as it may initially seem.

Second, this Note will argue that the evidentiary realities common in civil commitment proceedings compel Brady's application. The fact-finder's extraordinary reliance on expert testimony that varies considerably from expert to expert suggests that a fair and just decision cannot be made without full disclosure of exculpatory evidence.

Third, this Note posits that the application of the Brady Rule to sexual predator commitment proceedings will be much more straightforward than its current utilization in traditional criminal proceedings. Due to the fact-finder's heavy reliance on expert testimony, much less ambiguity will exist as to whether the evidence in the government's possession should be disclosed, ensuring a simpler method of compliance.

1. DEVELOPMENT OF SEX OFFENDER COMMITMENT

   1. History of Civil Commitment

      Civil commitment generally refers to the government's involuntary hospitalization of individuals with mental disorders. (16) Traditionally the State commits these individuals both to provide treatment for their disorder and because the individuals pose a danger to themselves or to those around them. (17) This practice has been used in some form by governments since the ancient world. (18)

      Civil commitment has been present through all of American history, with some form utilized by the first settlers in the early days of the American colonies, although the first hospitals for the exclusive care of the mentally disabled were not established until 1773. (19) Beginning in the late nineteenth century, reforms were put in place in an attempt to add more legitimacy to the commitment process. (20) However, this movement to create a more regulated process and to encourage more fruitful treatment was short lived. The early twentieth century again found a number of changes to the commitment laws; however, most of these modifications were put in place to facilitate an easier commitment process rather than to protect the rights of those committed. (21)

      This tide of streamlined commitment practices was briefly stemmed in the mid-twentieth century. Beginning in the 1970s, the legal community led a revitalized reform movement that addressed, among other things, the treatment received by those committed and the criteria reviewed during the commitment process. (22) This careful examination of the government's commitment practices provoked much needed judicial review, and beginning in the late 1970s, the Supreme Court issued a number of decisions that simultaneously shed light on the justifications for such an invasive practice and showcased the Court's enduring principle that civil commitment was a special procedure that required safeguards above and beyond normal civil protections.

      In O'Connor v. Donaldson, (23) the Court narrowed the breadth of involuntary commitment and established the precedent that such an invasive action was only constitutional when applied narrowly enough to reach only specific dangerous individuals. (24) In Donaldson the Court reviewed the nearly fifteen-year civil commitment of an individual who was confined for suffering from paranoid schizophrenia. (25) The fifteen-year detention had continued based solely on his condition, despite testimony that he posed no threat to his or others' safety during his time of confinement or any other time during his life. (26) The ultimate holding in Donaldson articulated that "a State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends." (27) In reaching this narrow conclusion, the Court was influenced by the significant loss of liberty a commitment defendant faces and the difficulty in determining whether an individual has a mental illness. (28)

      Donaldson demonstrates how, even from the earliest days, the Court viewed involuntary commitment as an amorphous breed of civil action. While this ruling curtailed the broad nature of civil commitment, the Court in Donaldson refrained from clearly articulating the constitutional limitations of commitment and "did not endorse explicitly any of the libertarian reforms adopted...