Sexual Violence, Sanity, and Safety: Constitutional Parameters for Involuntary Civil Commitment of Sex Offenders

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

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

COMMENTS

Sexual Violence, Sanity, and Safety: Constitutional Parameters for Involuntary Civil Commitment of Sex Offenders

Beth Keiko Fujimoto(fn*)

I. Introduction

In 1981, the Washington State Legislature passed the Sentencing Reform Act.(fn1) The Act replaced an indeterminate sentencing structure with a determinate sentencing structure.(fn2) The prior indeterminate sentencing scheme emphasized rehabilitation of the offender.(fn3) In contrast, the determinate Sentencing Reform Act emphasizes punishment proportional to the severity of the crime committed.(fn4) In addition, the Act prospectively repealed the prior sexual psychopathy commitment law.(fn5) By repealing the sexual psychopathy statute, the Washington legislature followed a pronounced nationwide trend away from sexual psychopathy statutes.(fn6)

In the past, states emphasized the treatment of sex offenders through involuntary civil commitment procedures, rather than punishment after conviction. During the late 1960's, well over one-half of the states had enacted some form of rehabilitative sex offender civil commitment law.(fn7) By 1990, however, most states, including Washington,(fn8) had repealed these statutes.(fn9) This trend away from using civil commitment to treat sexual offenders was influenced in part by a growing awareness that sex offenders were not mentally ill(fn10) and that involuntary treatment was not effective in reducing recidivism rates.(fn11) Indeed, the American Psychiatric Association has questioned the efficacy of treatment of sex offenders.(fn12) As a result, the current trend is to punish sex offenders for their crimes and to provide them with treatment in prison on a voluntary basis.

In 1990, the Washington State Legislature broke from this national trend by becoming the first state to reenact a sex offender involuntary commitment system, the Sexually Violent Predators Act.(fn13) This new involuntary commitment scheme appears to be an illegitimate exercise of the State's police power because it embraces the essential characteristics of lifetime preventive detention. Such indeterminate preventive detention will likely render the statute unconstitutional.

Why did Washington revive involuntary civil commitment proceedings for a certain class of sex offenders-"sexually violent predators"(fn14)-only six years after the State prospectively repealed its prior sexual psychopathy statute? The legislature's focus on so-called "sexually violent predators" rode the tide of publicity generated by a trilogy of notorious sexual crimes(fn15) that were unprecedented in cruelty and unmatched in subsequent public outrage.(fn16)

Of this trilogy, the egregious circumstances of the Earl Shriner case especially seemed to compel legislative action. In 1987, Shriner was released from prison after serving a full ten-year sentence for kidnapping and assaulting two teenage girls.(fn17) Near the end of that prison term, Shriner wrote letters and made drawings of an elaborate, mobile torture chamber for molesting and killing children.(fn18)

State corrections officials attempted to commit Shriner for treatment under the Washington Involuntary Treatment Act (ITA)(fn19) because they believed he posed a danger to the community.(fn20) Shriner, however, could not be committed under the ITA because he failed to meet two criteria for involuntary commitment: he was not mentally ill(fn21) and he had not performed any overt act during confinement that demonstrated his dangerousness to himself or others.(fn22) Consequently, Shriner was paroled, and approximately two years later, he assaulted a Tacoma boy.(fn23) Largely in response to the Shriner case, the Washington Legislature enacted the new involuntary commitment system for "sexually violent predators."(fn24)

The Washington Sexually Violent Predators Act involuntary commitment system is unique in at least two respects.(fn25) First, commitment proceedings may be initiated only against persons currently confined for certain "sexually violent offenses"(fn26) who are about to be released.(fn27) Additionally, the prosecutor may seek the commitment of a convicted sex offender previously confined, but returned to the community, if the prosecutor decides that the person appears to be a sexually violent predator.(fn28) Second, the Act does not require that a new criminal charge be brought to initiate commitment proceedings.(fn29)

Does the Sexually Violent Predators Act's involuntary civil commitment system withstand constitutional scrutiny?(fn30) Civil libertarians say no.(fn31) The State maintains that it does. A recent United State Supreme Court decision provides a framework for analyzing the constitutionality of the Washington sex offender involuntary commitment provisions.(fn32)

In 1986, the United States Supreme Court considered whether the Fifth Amendment privilege against self-incrimination applied to involuntary commitments under the Illinois Sexually Dangerous Persons Act(fn33) in Allen v. Illinois.(fn34) The constitutionality of the Illinois sex offender commitment scheme was not the precise issue before the Court. It appears, however, that Allen implicitly establishes that a sex offender involuntary commitment law, which is substantially similar to the Illinois statute and in accord with the Supreme Court's analysis in Allen, will be upheld as constitutional. It also appears that a statute meeting these standards will not amount to unconstitutional lifetime preventive detention.(fn35)

Accordingly, this Comment will address two questions: (1) whether the Washington law is substantially similar to or fundamentally different from the Illinois statute; and (2) whether the Washington statute should be upheld as a constitutional exercise of the state's civil commitment authority under Allen v. Illinois. This Comment argues that the Washington scheme is fundamentally different from the Illinois statute under Allen because it is essentially a lifetime preventive detention scheme and therefore fails to meet the constitutional requirements set forth in Allen.

To that end, Part II of this Comment generally explores the involuntary commitment of sex offenders, the constitutional standards for police power commitments, and the issue of preventive detention. Part III discusses provisions of the Illinois Sexually Dangerous Persons Act as well as Allen v. Illinois, concluding that Allen implicitly established a four-part test to judge the constitutionality of sex offender involuntary commitment statutes. Part IV discusses the relevant provisions of the Washington Sexually Violent Predators Act and compares the Washington statute with the Illinois Act. Finally, Part V concludes that the Washington statute fails under the analysis of Allen and is therefore unconstitutional.

II. Police Power Involuntary Commitment of Sexual Offenders: The Preventive Detention Question

Under either its parens patriae(fn36) authority or police power, the state may civilly commit individuals who are mentally disordered for control and treatment.(fn37) The state's parens patriae authority allows the state to act on behalf of mentally ill persons who are incapable of protecting their own welfare.(fn38) Most state parens patriae commitment statutes authorize the involuntary commitment of individuals who are mentally ill and, as a consequence, are unable to make responsible treatment decisions, are gravely disabled, or are unable to care for their personal safety.(fn39)

The Washington law is not an exercise of the state's parens patriae authority. It does not purport to protect the interest of persons who are functionally incapacitated and who are consequently unable to protect their own welfare. On the contrary, the explicit purpose of the Sexually Violent Predators Act is to protect the community.(fn40)

Under its police power, the state has authority to prevent harm to the community.(fn41) Courts have traditionally given great deference to legislative enactments concerning the appropriate exercise of this power.(fn42) Most states authorize temporary, emergency commitment of persons deemed to be mentally ill and dangerous to self or others.(fn43) The duration of confinement is permissibly indeterminate(fn44) because a mentally ill person committed pursuant to the state's police power may be confined against his will only until he or she is no longer dangerous.(fn45) The Washington statute is an exercise of the state's police power; under the statute, the state may isolate a sexual offender in a state facility in order to protect society from harm.(fn46)

As the United States Supreme Court has stated, the permissible purpose of police power involuntary civil commitment is to treat the individual's mental illness and to protect the person and society from the person's potential dangerousness.(fn47) Absent a recognized mental disease or defect and an authentic therapeutic purpose, however, confinement to prevent possible recidivism is, in effect, simply preventive detention to prevent future harm.

Therefore, the state's police power is limited in purpose and in scope by these constitutional requirements. Both the federal and Washington state constitutions stringently restrict the government's ability to incarcerate a citizen against his or her will solely on the belief that incarceration may prevent future...