Washington's Sexually Violent Predator Law: a Deliberate Misuse of the Therapeutic State for Social Control

• Publication year: 1992
• Citation: Vol. 15 No. 03

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 15, No. 3SPRING 1992

Washington's Sexually Violent Predator Law: A Deliberate Misuse of the Therapeutic State for Social Control

John Q. La Fond (fn*)

I. Introduction

In 1990, the Washington legislature enacted a number of laws designed to protect the community against sex offenders and to assist the victims of sex crimes.(fn1) By far the most controversial of these laws is a sexual psychopath law(fn2) that is unique in American history. Sexual psychopath laws authorize indeterminate commitment for treatment and control of sex offenders believed to suffer from a mental disease or disorder and thought to be dangerous. Although most states no longer utilize these laws, a majority of states, including Washington,(fn3) have used them in the past.(fn4)

The Washington law, however, is different from prior sexual psychopath laws in two fundamental respects. First, a person subject to commitment must serve his full prison term before he can be committed under this law. Thus, commitment is not in lieu of conviction and punishment; it is in addition to punishment.(fn5)

Second, the law does not require any allegation or proof of recent criminal wrongdoing, dangerous behavior, deteriorating mental state, or even inappropriate conduct before the state may seek possible lifetime confinement.(fn6) The prosecutor need only convince a judge or jury that the individual is a "sexually violent predator."(fn7) To accomplish this task, the government must show simply that the individual is a "person who has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence."(fn8)

In sum, a single conviction for a qualifying sex crime at any time in the past, together with a mental health professional's purported diagnosis and prediction of "likely" reof-fense at any time in the future, is legally sufficient(fn9) to incarcerate someone for the rest of his or her life in a psychiatric prison.(fn10)

This Article will demonstrate that the Washington legislature deliberately chose to abuse the medical model of involuntary commitment for treatment in order to achieve lifetime preventive detention. In so doing, the legislature violated fundamental constitutional principles that underlie our system of social care and control and safeguard individual liberty.

To understand why Washington's sexual predator commitment law cannot be justified as a traditional sexual psychopath statute, this Article will first examine the history of sexual psychopath laws. Next, the Article will document the evolution in criminal justice ideologies that has resulted in the virtual disappearance of sexual psychopath laws from the American criminal justice system. This Article will then analyze how the process of law revision was animated by selective storytelling. The law is poetic; it works through narrative.(fn11) The process of law revision begins in a story and ends in a story; such stories provide communities with a shared sense of what has happened and a common vehicle for interpreting events.(fn12) This Article will argue that the narrative process spawning this statute told only one kind of story, while excluding other instructive stories that would have deepened our contextual understanding of the complex situation. The tales told soon acquired the power of myth.

Next, this Article will examine the predator commitment law in some detail. We will see that the legislature had few viable options available to achieve its primary purpose: keeping convicted sex offenders that were considered likely recidivists in custody beyond their lawful terms of imprisonment. The legislature ultimately chose to use the medical model of involuntary treatment to accomplish its purpose of indeterminate preventive detention.

Finally, this Article will demonstrate that this law revision process deliberately excluded balanced and reflective participation, responded only to the political passion and paradigm of the moment, and failed to build on objective expertise and knowledge. Such a process will produce laws that probably do more harm than good while wasting scarce resources.

II. Historical Context of Sexual Psychopath Laws

To understand why the Washington law is a deliberate misuse of the medical model of involuntary treatment for social control purposes, we need only examine the history of sexual psychopath laws in America. This history will show that these once popular laws have been rejected by almost every state, including Washington, because they were not based on sound medical knowledge, they conflicted with changing public values, and they were both ineffective and counterproductive. To compound matters, the new Washington law is an even more extreme version of sexual psychopath laws already abandoned by almost every state.

A. The Early History: The Rehabilitative Ideal and the Therapeutic State

Traditional sexual psychopath statutes authorize the involuntary commitment of individuals charged with or convicted of sex offenses and found to be mentally disordered and dangerous;(fn13) such individuals are committed to psychiatric facilities for control and treatment.(fn14) Minnesota was among the first of the states to enact a sexual psychopath law.(fn15) Its 1937 law authorized the government to place a sex offender in a psychiatric institution for treatment rather than sending him or her to prison for punishment.(fn16)

By the late 1960's, well over half the states had enacted similar laws that provided indeterminate treatment for selected sex offenders.(fn17) These laws were generally divided into two major categories: (1) preconviction statutes that permitted the initiation of psychopathy proceedings after charging but before conviction of a sex crime, and (2) postconviction statutes that required conviction of a sex offense before psychopathy proceedings could be initiated.(fn18) Typically, an individual charged with or convicted of a sex offense could be found to be a sexual psychopath in a judicial proceeding; the person would then be hospitalized for control and treatment in a mental institution or treated in the community in lieu of imprisonment for punishment.(fn19) These laws have generally been upheld as a legitimate state exercise both of its police power to protect the public from future harm and of its parens patriae authority to treat those in need of treatment.

In 1971, Brakel and Rock aptly summarized the rationale of this "modern" legislation: "The statutes are premised upon the assumption that the relatively new science of psychiatry is able to identify, isolate, and treat" sexual psychopaths.(fn20) The Criminal Justice Mental Health Standards point out that:[this sort of] special dispositional legislation rest[s] on six assumptions: (1) there is a specific mental disability called sexual psychopathy . . . ; (2) persons suffering from such a disability are more likely to commit serious crimes, especially dangerous sex offenses, than normal criminals; (3) such persons are easily identified by mental health professionals; (4) the dangerousness of these offenders can be predicted by mental health professionals; (5) treatment is available for the condition; and (6) large numbers of persons afflicted with the designated disabilities can be cured.(fn21) These statutes reflected the buoyant therapeutic optimism of that period.

As we shall soon see, rehabilitation of offenders emerged as the dominant ideology of 1960's and 1970's. Much criminal behavior was seen as caused by illness. Sexual deviancy, in particular, was considered specially susceptible to mental health treatment. Experts could identify and cure those sex offenders suffering from psychological pathology, permitting their release into society as productive and safe members. Both society and the individual would benefit by this benign application of medical expertise. The interest of the community in safety and the interest of the "patient" in cure could both be served simultaneously.(fn22)

B. The Later History: Responsibility and the Punitive State

By 1990, however, only a handful of states had sexual psychopath laws on the books.(fn23) A vast majority of states, including Washington(fn24) and California,(fn25) had repealed these laws either in their entirety or prospectively. Brakel explains why almost every state no longer resorts to involuntary commitment of sex offenders as an alternative to punishment: Growing awareness that there is no specific group of individuals who can be labeled sexual psychopaths by acceptable medical standards and that there are no proven treatments for such offenders has led such professional groups as the Group for the Advancement of Psychiatry, the President's Commission on Mental Health, and, most recently, the American Bar Association Committee on Criminal Justice Mental Health Standards to urge that these laws be repealed.(fn26) In sum, most experts and policy-makers had concluded that sex offenders were not mentally ill and that involuntary indeterminate treatment was ineffective in changing their criminal behavior. Coercive rehabilitation simply did not work.

Not surprisingly, most thoughtful law revision took this new knowledge into account. The Canadian Royal Commission on the...