Seconds anyone? Using the Missouri SVP law to punish after time served: In re Care and Treatment of Van Orden.

• Author: Hill, Rachel Woodell
• Position: Sexually Violent Predator

1. INTRODUCTION

   For nearly a century, the United States Supreme Court has recognized states' right to involuntarily commit persons who have shown a pattern of sexual violence, are unable to control their behavior, and thus are likely to reoffend if permitted to go free. (2) However, the Supreme Court has demanded that, when committing sexually violent predators, states take pains to safeguard individual due process rights and prevent erroneous commitments. (3) While requiring a few specific procedural safeguards, the Supreme Court has essentially left to the states' discretion the appropriate burden of proof to apply in civil commitment contexts. (4)

   In 1999, the Missouri legislature implemented a statutory scheme to commit dangerous sexual predators. (5) In order to commit an individual under this original Missouri Sexually Violent Predator (SVP) Law, the state was required to prove beyond a reasonable doubt that the individual had previously committed sexually violent acts and possessed a mental abnormality that made him or her likely to reoffend if released. (6) Upon such a showing, an individual would be placed in confinement until his or her mental state had changed such that he or she no longer posed a threat, at which point he or she would be fully discharged. (7)

   In 2006, amendments to the Missouri SVP Law took effect, lowering the state's burden of proof and changing the status under which rehabilitated individuals were permitted to rejoin society. (8) These seemingly minor changes had enormous consequences, causing the constitutionality of the entire Missouri SVP scheme to be called into question. (9) In the recent case, In re Care and Treatment of Van Orden, the Missouri Supreme Court addressed these concerns and found the amended scheme constitutional. (10) However, in doing so, Missouri's highest court has effectively transformed what was once a remedial measure into a punitive sanction, under the veil of the Department of Mental Health, legitimizing indefinite restraint of personal liberty without due process of law. (11)

2. FACTS AND HOLDING

   Richard Wheeler and John Van orden each had lengthy histories of sexually violent behavior. (12) After multiple convictions for committing such offenses, both men were found to be "sexually violent predators" under Missouri's Sexually Violent Predator Law (13) and ordered into involuntary civil commitment. (14) Each man appealed his respective judgment, claiming, inter alia, that the Sexually Violent Predator Law is unconstitutional. (15)

   Richard Wheeler's extensive history of sexually violent behavior began early in his life. (16) At the age of twenty, Wheeler was charged with the molestation of his nine-year-old cousin and admitted to Fulton State Hospital. (17) In 1971, a mere four years later, he was convicted of molesting a four-year-old neighbor girl and was sentenced to a year in jail. (18) In 1981, Wheeler was again convicted of sexual abuse, this time of an adult woman, and sentenced to two years in prison and five years probation. (19) Wheeler's wife subsequently filed for divorce, claiming that Wheeler had sexually abused their son. (20) Wheeler received two years probation in 1996 after pleading guilty to first-degree sexual misconduct involving an eleven-year-old boy. (21) A year later, Wheeler was again convicted of first-degree statutory sodomy and sentenced to ten years in prison for the molestation of a four-year-old boy. (22)

   While serving this sentence, Wheeler refused sex offender treatment and "continued to engage in sexually offending behaviors." (23) Subsequently, a psychologist for the Missouri Department of Corrections conducted a review at the end of Wheeler's sentence to consider whether he met the definition of a "sexually violent predator." (24) During this process, the psychologist conducting Wheeler's review contacted the Missouri Attorney General requesting information that she subsequently received. (25) Satisfied that Wheeler might meet the criteria for "sexually violent predator" status, the psychologist sent notice to the attorney general, who subsequently filed a petition for commitment. (26)

   The case then proceeded to the probable cause hearing, where Wheeler filed a motion to dismiss, claiming that the state had failed to strictly comply with the statutory procedures set out in Missouri Revised Statute section 632.483.l "because the psychologist contacted the attorney general prior to completing the end of confinement review." (27) The court denied Wheeler's motion and ordered that he submit to a psychiatric evaluation. (28) Wheeler filed an additional motion prior to trial challenging the constitutionality of the 2006 amendment to section 632.495 because it reduced the standard of proof for involuntary commitment of a sexually violent predator from beyond a reasonable doubt to clear and convincing evidence. (29) The court overruled Wheeler's motion, and the case proceeded to a bench trial. (30) "The court [ultimately] found that Wheeler met the definition of 'sexually violent predator' and ordered commitment." (31)

   John Van orden was first convicted of sexually violent behavior in 1987, when he pled guilty to sexual misconduct with his sixteen-year-old niece and was sentenced to two years probation. (32) Five years later, Van orden was convicted of first-degree sexual abuse after abusing his five-year-old daughter and was sentenced to four years in prison. (33) Consequently, "his parental rights were terminated [due to] this abuse and the abuse of his four-year-old son." (34) While incarcerated, Van orden began attending a treatment program designed for sex offenders. (35) However, he completed only the first phase of the program. (36)

   In 1998, Van Orden was sentenced to seven years in prison for abusing a four-year-old girl. (37) During this period of incarceration, Van Orden was successful in completing the first two phases of his treatment program. (38) However, upon being released on parole in 2004, he stopped attending treatment. (39) After violating the conditions of his parole, Van orden returned to prison. (40) He was released on parole a second time, only to be arrested during the fall of 2005 for again violating the conditions of his parole, "including consuming alcohol and receiving unsuccessful termination from sex offender treatment." (41)

   The department of corrections subsequently notified the attorney general that Van Orden might "meet the definition of 'sexually violent predator.'" (42) In response, the state filed a petition to commit Van orden, requiring that the board of probation and parole revoke his parole. (43)

   The court concluded that probable cause existed to find Van orden a sexually violent predator and thus ordered a formal hearing. (44) Van orden filed a motion to dismiss the petition, claiming that the state had not strictly complied with section 623.483.1 because his parole had not yet been revoked at the time the petition was filed. (45) The trial court overruled Van Orden's motion and ordered that he be subject to psychiatric evaluation. (46) Van orden subsequently filed a motion arguing that the 2006 amendment to section 632.495 was unconstitutional because it decreased the burden of proof for involuntary commitment of a sexually violent predator from beyond a reasonable doubt to clear and convincing evidence. (47) This motion also was overruled. (48)

   In May 2007, a jury trial was held on the issue of Van Orden's civil commitment. (49) The state presented testimony from psychologist Dr. Mandracchia, "who diagnosed Van Orden with pedophilia and anti-social personality disorder and found that he was more likely than not to reoffend if not committed." (50) This assessment was based "on the results of the Static-99 actuarial test, which measures a person's likelihood of reoffending, as well as his own assessment of Van Orden's risk factors, including anti-social personality disorder, alcoholism, an offense pattern of sexually deviant behavior, and the fact that he offended while under supervision." (51)

   At the instruction conference, Van orden argued that the burden of proof--clear and convincing evidence--should be defined in the jury instructions and provided an instruction to be included. (52) The trial court overruled the objection, however, and submitted the instructions to the jury without defining the phrase "clear and convincing evidence." (53) The jury concluded that Van orden was a sexually violent predator, and he was ordered civilly committed. (54)

   Richard Wheeler and John Van orden appealed their individual judgments. (55) Both argued independently that section 632.495, which provides for the standard of proof in civil commitment hearings for alleged sexually violent predators, (56) is unconstitutional because due process requires the state to prove that a person meets the definition of "sexually violent predator" beyond a reasonable doubt. (57) As both men challenged the validity of a Missouri statutory section, the Missouri Supreme Court had exclusive jurisdiction over the matter, pursuant to article V, section 3 of the Missouri Constitution. (58) And because both Wheeler and Van Orden's challenges raised the same issue, the Missouri Supreme Court consolidated their cases on appeal. (59)

   On December 16, 2008, the Missouri Supreme Court held that the provision in Missouri Revised Statute Section 632.495 requiring the clear and convincing evidence burden of proof for the involuntary civil commitment of sexually violent predators was constitutional and in doing so affirmed the involuntary commitments of both Richard Wheeler and John Van orden as sexually violent predators. (60)

3. LEGAL BACKGROUND

   1. Introduction to Civil Commitment

      The United States Supreme Court first upheld a statute that provided for the civil commitment of sexual offenders in 1940 in Minnesota ex rel. Pearson v. Probate Court. (61) The statute in question provided for the commitment of persons...