Matter of Personal Restraint of Young

Johnson, J.

(dissenting) — I dissent.

[[Incarceration of persons is . . . one of the most feared instruments of state oppression and . . . freedom from this restraint is essential to the basic definition of liberty in the Fifth and Fourteenth Amendments . . ..[ 18 ]

The sexually violent predator statute, RCW 71.09 (hereinafter Statute), is a well-intentioned attempt by the Legislature to keep sex predators off the streets. However, by authorizing the indefinite confinement in mental facilities of persons who are not mentally ill, the Statute threatens not only the liberty of certain sex offenders, but the liberty of us all. By committing individuals based solely on perceived dangerousness, the Statute in effect sets up an Orwellian "dangerousness court", a technique of social control fundamentally incompatible with our system of ordered liberty guaranteed by the constitution and contrary to the recent United States Supreme Court decision in Foucha v. Louisiana, _ U.S. _, 118 L. Ed. 2d 437 , 112 S. Ct. 1780 (1992).

History has proven the grave error in creating special classes of individuals for whom constitutional rights are diminished. Today the majority condones the Legislature's creation of such a special class, trampling these individuals' rights. 1 cannot agree. The Statute is nothing more or less than a preventive detention scheme based on allegations of future dangerousness. Once a person has committed a sexually motivated crime, no matter how remote in time or place, *61 the State is authorized to hold that person forever for the "good of the community". Our community would be better served by steadfast adherence to constitutional principles.

The majority concedes the unconstitutionality of the Statute and attempts to salvage it by reading in requirements not included by the Legislature. Unfortunately, the majority's pen stops short. Under Foucha , the State must prove an individual is both mentally ill and dangerous before the person can be involuntarily committed; however, the Statute still fails to meet the mental illness requirement. Thus, the Statute offends the due process clause by subjecting individuals to lifetime confinement based not on any crime committed, but instead on fears of future crimes, and it offends the prohibitions against ex post facto laws and double jeopardy by masquerading as a civil commitment law when its purpose is penal.

I

Substantive Due Process

The sexual predator Statute violates substantive due process. Under the Fifth and Fourteenth Amendments, no person shall be deprived of life, liberty, or property without due process of law. U.S. Const. amend. 5; U.S. Const. amend. 14, § 1. "[T]he Due Process Clause contains a substantive component that bars certain arbitrary, wrongful government actions 'regardless of the fairness of the procedures used to implement them.'" Zinermon v. Burch, 494 U.S. 113, 125 , 108 L. Ed. 2d 100 , 110 S. Ct. 975 (1990) (quoting Daniels v. Williams, 474 U.S. 327, 331 , 88 L. Ed. 2d 662 , 106 S. Ct. 662 , 106 S. Ct. 677 (1986)). The test to be applied in determining the constitutionality of a statute under substantive due process depends upon whether a fundamental right is at stake.

An individual's liberty interest is fundamental in nature. See United States v. Salerno, 481 U.S. 739, 750 , 95 L. Ed. 2d 697 , 107 S. Ct. 2095 (1987). "Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action". Foucha v. Louisiana, _U.S._, 118 L. Ed. 2d 437 , 112 S. *62 Ct. 1780, 1785 (1992); Reno v. Flores, _U.S._, 123 L. Ed. 2d 1 , 113 S. Ct. 1439, 1454 (1993) (O'Connor, J., concurring). Physical confinement in a mental institution entails a "massive curtailment of liberty". Vitek v. Jones, 445 U.S. 480, 491-92 , 63 L. Ed. 2d 552 , 100 S. Ct. 1254 (1980).

When a statute implicates a fundamental right such as a person's liberty, the test for whether the statute passes constitutional muster is one of strict scrutiny. For the statute to be constitutional, it must further a compelling state interest and must be narrowly tailored to achieve that interest. State v. Farmer, 116 Wn.2d 414, 429 , 805 P.2d 200 , 812 P.2d 858 , 13 A.L.R.5th 1070 (1991); In re Schuoler, 106 Wn.2d 500, 508 , 723 P.2d 1103 (1986).

Although the majority acknowledges the Statute must pass strict scrutiny, it fails to adequately analyze whether the Statute is narrowly tailored to achieve the State's interest. The most recent statement of the Supreme Court's requirements for narrowly tailoring an involuntary commitment statute is Foucha v. Louisiana, _U.S._, 118 L. Ed. 2d 437 , 112 S. Ct. 1780 (1992). The majority has failed to see or has chosen to ignore that Foucha provides a framework for substantive due process analysis in these types of cases. Foucha recognizes only three situations in which the State has such a compelling interest in public safety that a complete deprivation of an individual's liberty interest is justified: criminal conviction, civil commitment, and limited detention of persons shown to be dangerous to the community. Foucha, 112 S. Ct. at 1785-86 .

Even in these three situations, however, the State is required to narrowly tailor its statutes. For example, the requirement that a person be both mentally ill and dangerous is a way to constitutionally tailor civil commitment statutes. In addition, strict time limits for pretrial detention are another specific way to narrow the conditions under which an individual may be confined.

In contrast, the sexual predator Statute is not narrowly tailored to achieve its compelling interest. In order to be narrowly drawn, the Statute must satisfy certain require *63 ments set out by the United States Supreme Court for either civil commitment or preventive detention statutes. The sex predator Statute fails on both counts.

Under civil commitment, substantive due process requires that an individual be both mentally ill and dangerous before he or she may be involuntarily committed. Foucha, 112 S. Ct. at 1784 . In Foucha , an insanity acquittee who had regained his sanity sought release from a mental institution. Foucha was found to be no longer mentally ill, but still dangerous to others because of his "antisocial personality, a condition that is not a mental disease and ... is untreatable". Foucha, 112 S. Ct. at 1782 . The Court held that Foucha's continued confinement based on dangerousness alone violated due process. Foucha, 112 S. Ct. at 1784 .

Like the statute in Foucha , RCW 71.09 violates substantive due process because it requires only dangerousness and not mental illness as a prerequisite to commitment. The Statute, by its own terms, applies specifically to individuals who "do not have a mental disease or defect that renders them appropriate for the existing involuntary treatment act". RCW 71.09.010.

The Statute provides for the indefinite commitment of any person deemed to be a "sexually violent predator", but the Statute's definition of this term does not apply to a group of individuals who are mentally ill in any medically recognized sense. See La Fond, Washington's Sexually Violent Predator Law: A Deliberate Misuse of the Therapeutic State for Social Control, 15 U. Puget Sound L. Rev. 655 , 691-92 (1991-1992); Comment, Sexual Violence, Sanity, & Safety: Constitutional Parameters for Involuntary Civil Commitment of Sex Offenders, 15 U. Puget Sound L. Rev. 879 , 898-900 (1991-1992).

The Statute defines "sexually violent predator" as any person who meets the following two criteria: (1) the person must at any time in his or her life been either charged with or convicted of a sexually violent crime; and (2) the person must suffer from "a mental abnormality or personality disorder which makes the person likely to engage in predatory *64 acts of sexual violence". (Italics mine.) RCW 71.09.020(1). The second criterion involves a prediction of dangerousness based on a "mental abnormality" or "personality disorder", but these two terms do not involve any medically recognized mental illness.

Amicus, the Washington State Psychiatric Association, points out the term "mental abnormality" has no clinically significant meaning and no recognized diagnostic use; the term "abnormality" has long been in disuse because it can have a variety of different meanings. The Statute defines the term "mental abnormality" as:

a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to the commission of criminal sexual acts in a degree constituting such person a menace to the health and safety of others.

RCW 71.09.020(2). A "mental abnormality" which makes a person "likely to engage in predatory acts of sexual violence" is thus defined by the Statute as a mental condition that may predispose a person to commit a sex crime. RCW 71.09-.020(1), (2). This definition is merely circular, and, as one commentator has observed, allows a "mental abnormality" to be established in a circular manner: the "abnormality" will be derived from the person's past sexual behavior, and this in turn will be used to establish the person's predisposition to future dangerous sexual behavior. Wettstein, A Psychiatric Perspective on Washington's Sexually Violent Predators Statute, 15 U. Puget Sound L. Rev. 597 , 602, 633 (1991-1992) (concluding the Statute’s definition of "sexually violent predator" fails to coincide with clinical or empirical knowledge regarding sex offenders). See also Rideout, So What's in a Name? A Rhetorical Reading of Washington's Sexually Violent Predators Act, 15 U. Puget Sound L. Rev. 781 , 793 (1991-1992) (discussing the tautology "in the statement that sexually violent predators have features that lead to sexually violent behavior").

The Statute also does not provide a definition for the term "personality disorder". Amicus points out this term has a *65 clinically recognized meaning, but there is no "personality disorder" specific to sex offenders. Because of this problem, the task of determining whether a causal relationship exists between a "personality disorder" and the person's potential dangerousness is nothing more than "a matter of speculation or meaningless circularity". Wettstein, 15 U. Puget Sound L. Rev. at 603; see also Comment, Washington's Sexually Violent Predator Law: The Need To Bar Unreliable Psychiatric Predictions of Dangerousness From Civil Commitment Proceedings, 39 U.C.L.A. L. Rev. 213 (1991-1992). 19

Despite some psychiatric incantations, therefore, the sexual predator Statute deals with potentially dangerous people, but not mentally ill people. Because under Foucha a prediction of dangerousness alone is an unconstitutional basis for indefinite confinement in a mental institution, the Statute violates due process.

Even if a personality disorder or mental abnormality is a mental illness, this court has previously required proof of a recent overt act as evidence of dangerousness before a person can be detained to assess whether he or she is mentally ill. See In re Harris, 98 Wn.2d 276, 654 P.2d 109 (1982). The plain language of the sex predator Statute contains no such requirement. 20 The majority attempts to salvage the Stat *66 ute's constitutionality by reading in a requirement of a recent overt act, but only for individuals who have been released into the community. For individuals currently incarcerated, no evidence of a recent overt act is required.

This judicial rewriting of the Statute is unprincipled decisionmaking at its worst. Although the majority is correct that a court must construe a statute to render it constitutional, majority at 41, a court cannot rewrite a statute by reading into it language that simply is not there. Addleman v. Board of Prison Terms & Paroles, 107 Wn.2d 503, 509 , 730 P.2d 1327 (1986) (stating a court may not "read into a statute those things which it conceives the Legislature may have left out unintentionally"); In re Taylor, 105 Wn.2d 67, 69 , 711 P.2d 345 (1985) (stating if language of a statute is clear, a court may not "read things into it which are not there"). Such judicial rewriting is not only unprincipled, but also unfair. The parties could not have anticipated this new construction and have not had an opportunity to brief or argue the constitutionality of the majority's new version of the Statute.

The court's wholesale reading in of an overt act requirement also runs counter to the Legislature's intent. The Statute was enacted in response to intense public outcry over two brutal sex crimes: the rape and mutilation of a Tacoma boy, and the rape and murder of a Seattle woman. See Boerner, Confronting Violence: In the Act and in the Word, 15 U. Puget Sound L. Rev. 525 (1991-1992). The individuals who committed the crimes had recently been released after serving time for previous sex crimes. Ib the extent that the majority now requires evidence of a recent overt act by such released individuals, the majority paves the way for a repeat of the above brutal crimes, which is exactly what the legislation was enacted to avoid! This is an absurd result.

Finally, the majority’s rewriting of the Statute raises new equal protection concerns. By reading in this new requirement, the court creates two classes of persons under the same statute: those incarcerated versus those who are not. This is a distinction without a difference. Immediately upon *67 release, an individual must now commit an overt act to be incarcerated under the Statute, whereas the day before release, the same individual could be committed without proof of an overt act. This new distinction is arbitrary, violating even a rational basis review.

Equal protection requires that "persons similarly situated with respect to the legitimate purposes of the laws receive like treatment". In re Knapp, 102 Wn.2d 466, 473 , 687 P.2d 1145 (1984). The purpose of the Statute is to prevent sexual predators from reoffending and thereby protect the community. It is difficult to see the difference between an individual the day before he or she leaves prison versus an individual the day after departing from jail. The only rationale offered by the majority is that an incarcerated individual does not have the opportunity to commit a recent overt act. I disagree. Evidence amounting to a "recent overt act" is often present even while in jail. Such evidence could be based on prison activities or conduct, such as inappropriate drawings of sexual encounters with children.

The court cannot choose to have two standards for commitment: one for those presently incarcerated and another for everybody else. 21 The United States Supreme Court has been careful to harmonize the constitutional requirements for civil commitment in the ordinary situation with those arising when there has been a finding of insanity at a criminal trial. See Jones v. United States, 463 U.S. 354 , 77 L. Ed. 2d 694 , 103 S. Ct. 3043 (1983). Although the majority's requirement of a recent overt act by released individuals harmonizes RCW 71.09 with the State's short-term detention statute, RCW 71.05, 22 this requirement does not render the Statute con *68 stitutional. Under the majority's interpretation, incarcerated individuals still face the potential for lifetime detention based only on the possibility of future dangerousness. Because incarceration under the Statute can follow a long prison term and because the majority does not require a recent overt act for these individuals, the determination that they are "dangerous" is not even based on the same standard used for others who are civilly committed. If an individual once committed a sex crime and someone thinks that individual is still dangerous, the Statute authorizes a lifetime term in a mental facility. This is pure preventive detention.

The United States Supreme Court has permitted preventive detention only in the pretrial context and only if the duration of confinement is strictly limited, not indefinite as in this case. See, e.g., United States v. Salerno, 481 U.S. 739, 747-51 , 95 L. Ed. 2d 697 , 107 S. Ct. 2095 (1987); Schall v. *69 Martin, 467 U.S. 253, 264-71 , 81 L. Ed. 2d 207 , 104 S. Ct. 2403 (1984); Jackson v. Indiana, 406 U.S. 715, 738 , 32 L. Ed. 2d 435 , 92 S. Ct. 1845 (1972).

In Salerno , the Supreme Court upheld a federal act authorizing pretrial detention of defendants deemed dangerous. The Court noted that preventive detention under the act was "limited by the stringent time limitations of the Speedy Trial Act". Salerno, 481 U.S. at 747 . In Schall , the Court upheld a state statute authorizing the preventive pretrial detention of juveniles accused of crimes who were deemed dangerous, and the Court noted the maximum possible detention under the act was only 17 days. Schall, 467 U.S. at 269-70 . Finally, in Jackson , the Court held that a criminal defendant who was incapable of proceeding to trial could be detained only for the reasonable period of time necessary to determine whether a substantial probability existed the defendant would ever become capable to proceed to trial. Jackson, 406 U.S. at 738 . Under this standard, the Court in Jackson found the defendant's ZVz year confinement excessive because the defendant, a deaf mute, was not expected to ever gain the competency to stand trial.

The Supreme Court has never upheld a lifetime preventive detention scheme for those who are feared dangerous. It was asked to do precisely that in Foucha . The State of Louisiana argued that Salerno authorized preventive detention for persons who pose a danger to the community. Foucha, 112 S. Ct. at 1786 . The Court disagreed and distinguished Salerno on three grounds. First, the Court noted the statute at issue in Salerno was narrowly focused on the most serious of crimes and required a finding that no conditions of release could reasonably assure the safety of the community. Foucha, 112 S. Ct. at 1786 . Second, the Court contrasted the time limits for pretrial detention with the indefinite commitment authorized by the Louisiana law. Foucha, 112 S. Ct. at 1786-87 . Finally, the Court pointed out that less restrictive alternatives were available to deal with persistent criminal behavior, including enhanced sentences for recidivists. Foucha, 112 S. Ct. at 1786-87 .

*70 Like the statute in Foucha , the sexual predator Statute is fundamentally flawed. Its scope is broad, covering everything from murder-rape to attempted sexually motivated burglary. Its duration is indefinite. Unlike Salerno, Schall, and Jackson , the Statute in this case produces lifetime preventive detention. The Legislature found that "sexually violent predators" are "unamenable to existing mental illness treatment modalities" and that the prognosis for curing them is "poor". RCW 71.09.010. The Statute thus creates a class of persons who, by definition, are not likely to be "cured", and thus not likely to ever be released.

As a result, the Statute does precisely what Foucha expressly says the government may not do: confine someone indefinitely as dangerous who is not mentally ill but simply has a personality disorder or antisocial personality. As the Supreme Court noted:

[T]he State asserts that because Foucha once committed a criminal act and now has an antisocial personality that sometimes leads to aggressive conduct, a disorder for which there is no effective treatment, he may be held indefinitely. This rationale would permit the State to hold indefinitely any other insanity acquittee not mentally ill who could be shown to have a personality disorder that may lead to criminal conduct. The same would be true of any convicted criminal, even though he has completed his prison term.

(Italics mine.) Foucha, 112 S. Ct. at 1787 . The Legislature has other options for dealing with sex offenders. Enhanced sentences for repeat offenders and supervised release are but two of the most obvious.

The sexual predator Statute has each of the constitutional weaknesses of the statute in Foucha , weaknesses that caused the Supreme Court to consider the Foucha statute

only a step away from substituting confinements for dangerousness for our present system which, with only narrow exceptions... incarcerates only those who are proved beyond a reasonable doubt to have violated a criminal law.

(Italics mine.) Foucha, 112 S. Ct. at 1787 . I would hold the sexual predator Statute is an unconstitutional violation of substantive due process.

*71 II

Ex Post Facto and Double Jeopardy

In addition to violating substantive due process, the Statute's commitment provisions violate the constitutional prohibition against ex post facto laws. U.S. Const. art. 1, § 10. A law violates this prohibition if it "makes more burdensome the punishment for a crime, after its commission". Collins v. Youngblood, 497 U.S. 37, 42 , 111 L. Ed. 2d 30 , 110 S. Ct. 2715 (1990) (quoting Beazell v. Ohio, 269 U.S. 167, 169 , 70 L. Ed. 216 , 46 S. Ct. 68 (1925)). The purpose of the ex post facto prohibition is to give individuals fair warning of the effect of legislative acts and to restrict the power of the State to impose arbitrary or vindictive legislation. Weaver v. Graham, 450 U.S. 24 , 67 L. Ed. 2d 17 , 101 S. Ct. 960 (1981).

The commitment provisions also violate the prohibition on double jeopardy. U.S. Const. amend. 5. The double jeopardy clause protects against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717 , 23 L. Ed. 2d 656 , 89 S. Ct. 2072 , 89 S. Ct. 2089 (1969). When the government has already imposed a criminal penalty, the double jeopardy clause precludes the government from seeking additional punishment in a second proceeding if it is dissatisfied with the sanction obtained in the first. United States v. Halper, 490 U.S. 435, 449-50 , 104 L. Ed. 2d 487 , 109 S. Ct. 1892 (1989).

Because RCW 71.09 authorizes retroactive extension of a criminal sentence if the State is dissatisfied with the original length, it violates both of these provisions. The majority argues that these provisions do not apply because the Statute is civil rather than criminal in nature. However, a statute must be deemed criminal in nature when the statute is "so punitive either in purpose or effect" as to negate a legislature's intent to establish a civil statute. United States v. Ward, 448 U.S. 242, 248 , 65 L. Ed. 2d 742 , 100 S. Ct. 2636 (1980).

The factors to be considered in deciding whether a statute has a criminal or civil purpose include whether the act dis *72 avows all interest in punishment, whether it provides treatment, and whether release is possible at any time. Allen v. Illinois, 478 U.S. 364 , 92 L. Ed. 2d 296 , 106 S. Ct. 2988 (1986).

The statute in Allen allowed the State to divert persons charged with crimes from the criminal system to the civil system for treatment of mental illness. In contrast, the sexually violent predator Statute is not an alternative to criminal imprisonment. It allows the State to seek a criminal conviction against an individual, and only after the individual has completed his or her sentence does the Statute purportedly seek to provide specialized "care and treatment" for the individual. See RCW 71.09.030, .060. Far from disavowing criminal punishment, such punishment is an essential component of the Statute's commitment provisions.

Although the Statute provides for treatment, this goal is completely subordinated to punishment. An individual's need for diagnosis and treatment is never sufficiently compelling under the Statute until the individual is nearing the end of his or her criminal sentence. The timing alone is a strong indication that the Legislature was less interested in treatment than in confinement.

While both the Illinois statute in Allen and the Washington Statute provide for an indefinite period of confinement, there are important procedural differences. In Illinois, an individual may file a petition for release at any time and is entitled to a case review every 6 months. The court is required to hear all petitions. Here a petition for release normally must be authorized by the Department of Social and Health Services. Although an individual may petition over the Department's objection, he or she must then prevail at a show cause hearing in order to obtain a trial. Once a person has petitioned over the Department's objection and been denied, the court is mandated to deny subsequent petitions unless the person can make a showing of changed circumstances in the petition itself. Case reviews are conducted only once a year.

*73 Based on a comparison of these factors, RCW 71.09 is punitive in purpose and effect. Therefore, the prohibitions against ex post facto laws and double jeopardy apply here, and the Statute is unconstitutional.

In conclusion, I would hold that Washington’s sexually violent predator Statute, RCW 71.09, violates petitioners' rights to substantive due process and violates the constitutional prohibition against ex post facto laws and double jeopardy.

Utter and Smith, JJ., concur with Johnson, J.

Reconsideration denied September 20, 1993.

Foucha v. Louisiana, _U.S._, 118 L. Ed. 2d 437 , 112 S. Ct. 1780, 1791 (1992) (Kennedy, J., dissenting).

The majority chides the dissent for relying on a handful of law review articles in support for the claim that a "mentál abnormality" or "personality disorder" does not constitute "mental illness" as required by Foucha. Majority, at 33 n.10. It is curious that the majority also relies on a law review article in support of its proposition that the Statute’s terms do constitute "a number of recognized mental pathologies", i.e., mental illness. See majority, at 28. It is also curious that, after concluding the statute requires a showing of mental illness, the majority states in its equal protection analysis, "there are good reasons to treat mentally ill people differently than violent sex offenders". (Italics mine.) Majority, at 44-45. The majority cannot have it both ways.

To commit a person under the Statute, the State is required to reprove the defendant committed a prior crime and to present an evaluation by a psychologist establishing the person is likely to reoffend. However, this "evaluation" is often based merely on a review of the police reports and prior psychological evaluations rather than on a personal interview with the defendant.

The majority implies that Heller v. Doe, _U.S._, 125 L. Ed. 2d 257 , 113 S. Ct. 2637 (1993) authorizes a 2-tier civil commitment process. Majority, at 44 n.14. Heller is inapt, however, for two reasons: first, the Court did not review the Statute under a heightened scrutiny standard, and second, it deals with mentally retarded, not mentally ill, persons.

The majority also reads into RCW 71.09 a requirement from RCW 71.05, which requires the State to consider less restrictive alternatives as a precursor to confinement. Majority, at 47. Although perhaps a good idea, the majority's rewrit *68 ing of the Statute is still inappropriate for the same reasons discussed above. By reading in these new requirements, the court transforms RCW 71.09 into a statute that looks more like RCW 71.05, and thereby frustrates the Legislature's manifest intent to create a new statutory scheme since RCW 71.05 was deemed to be inadequate. See RCW 71.09.010.

Moreover, the majority's treatment of the equal protection question is inconsistent with its treatment of due process. In explaining why the incarceration of sexual predators within correctional institutions comports with due process, the majority implies that no less restrictive alternatives would effectively address the problem of preventing sex offenders from committing further crimes. The majority states:

Given the nature of sexually violent predators, it would not be safe to house them in a less secure setting. . . .

. . . Here, the dangerousness of committed sex predators justifies a secure confinement facility.

Majority, at 34-35. Yet with respect to equal protection, the majority concludes that the State has proffered no "valid reason" for treating sexually violent predators differently from persons committed under RCW 71.05. Majority, at 47.

It is also incorrect to aver that the State has put forth no justification for the disparate treatment of sexually violent predators under RCW 71.09. In this regard, the majority again flaunts the express intent of the Legislature, which found that:

[T]he treatment modalities for [sexually violent predators] are very different than the traditional treatment modalities for people appropriate for commitment under the involuntary treatment act.

RCW 71.09.010.