Amicus Curiae Brief — Kansas v. Hendricks

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| Supreme fourt, ¥.&

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No. 95-1649, No. 95-9075:

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1995

STATE OF KANSAS, Petitioner and Cross

Respondent

CLERK

LEROY HENDRICKS, Respondent and Cross

Petitioner

On Writ of Certiorari to the Supreme Court of Kansas

BRIEF OF AMICI CURIAE

Seattle-King County Defender Association, Washington

Defender Association, National Legal Aid and

Defender Association, Minnesota State Public

Defender, and California Attorneys for Criminal

Justice, In Support of Respondent Hendricks

Robert C. Boruchowitz

Counsel of Record

Seattle-King County Defender

Association

810 Third Avenue,

Seattle, Washington 98104

206 447 3900

Additional Counsel:

Addie Hailstorks

National Legal Aid &

Defender Association

1625 K St. NW

Washington, DC 20006

John Stuart Bernadette Foley

Eric Janus David Hirsch

Minnesota State Public Seattle-King County

Defender Defender Association

2829 University Ave SE 810 3rd Avenue #800

Minneapolis, MN 55414 Seattle, Washington 98104

206-447-3900

John T. Philipsborn

Amicus Committee

California Attorneys for Criminal Justice

1231 Market Street

San Francisco, CA 94103

EST AVAILABLE COPY.

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TABLE OF CONTENTS

Interest of Amicus Curiae .................... l

eS Ea ee 3

EEE ee 6

I. The Legislative History in Washington, Minnesota,

and California Makes Clear The Punitive Purpose of

the ‘Predator’ Law Upon Which Kansas’ Act Was

Modeled and of Similar Laws in Other States... .. . 6

EE 6

The Law Targets People Who Are Not Mentally

DUEL SaCeL Sea wéeuoscdecevécsicecec 12

The Punishment Imperative of the Law Is Evident in

Its Application Only Just Prior to Release From

Prison

DPCP USPCECEES 6K owd0 Se 6 We ee sce cs 15

ENED G LGUs ose clee'd u 6c 6cceéaace. 18

IE OE oe ee 20

II. The Failure to Provide Constitutionally Required

Treatment to People Committed As ‘Predators’

Demonstrates the Law’s Punitive Intent and Violates

Substantive Due Process Protections............ 24

SCC Conditions SCC More Severe Than those in

re eo 27

SN 6 <6 unt 05 6 Gb Cote or et 29

TABLE OF AUTHORITIES

Cases:

Alien v. Illinois, 478 U.S. 364, 373 (1986). ....... 27

Austin v. United States, 125 L.Ed.2d 488, 498 (1993). 5

Foucha v. Louisiana, 504 U.S. 71 (1992) ... 4, 14,17

In re Campbell, No. 93-2-15348-1 .........._.. 27

In re Linehan, 518 N.W. 2d 609, pet. for reh.

GUN GUUU Ss 6 CnneeectaensecL.. 18

In re Young, 122 Wn.2d 1, 857 P.2d 989(1993) .. 1, 15

In the Matter of Hendricks, 912 P.2d 129, 131 (Kan.

1996), cert. granted, 116 S.Ct. 1540 (1996)... .. 3, 6

Lynch v. Baxley, 744 F.2d 1452 (1th Cr. 1984) ... 16

Montana Dept. of Revenue v. Kurth Ranch, 128 L.Ed.

OO) CUVEE oo dins cocudacet sean ces 4

Nixon v. Administrator of General Services, 433 U.S.

425,476 m.40 (1977) «ooo ecw eee... 29

People v. Hubbart, Santa Clara Co. No. 140294 ... 2]

People v. Rasmuson, et.al, No. ZM 001798 et.seq., Los

Angeles Superior Court, June 12, 1996 .......... 21

Reno v. Flores, 123 L. Ed. 2d 1, 16-17 (1993) .... 28

Turay v. Weston, C91-664WD (June 3, 1994) ...... 5

United States v. Ward, 448 U.S. 242,248-249 (1980) 29

Weaver v. Graham, 450 U.S. at 31 ............. 29

Wyatt v Stickney (M.D A la. 1971) 325 F.Supp. 781,

784, affd. sub nom Wyatt v Anderholt ,503 F.2d

SS ccc eae ee 25

Zuber v. Allen, 396 U.S. 168 (1969). ........... 22

Comstinnicns! Provisions:

United States Constitution, Fifth Amendment ... 4, 6

United States Constitution, Fourteenth Amendment

eS ee or peo ee ee ee ee 3, 6

Statutes:

California Penal Code, Section 667.61 ......___ 23

California Penal Code, Section 2684........__. 23

California Penal Code, Section 2960.......___ 24

California Penal Code, Section 2962(d)(1). ...... 24

California Penal Code, Section 6300, section 4 of Stats

a COE, 60's dds te adice des. 23

Cal. Welf. & Inst. Code, Sec. GE bscewsee 20

Cal. Welf. & Inst. Code, Sec. ae 20

California "Sexually Violent Predators” law; article 4,

Division 6, Part 2, Chapter 2, Cal. Welf. and

Institutions Code (Sections 6600 et Mea Vet<ée ax

>t eanen 20

Involuntary Treatment Act, RCW 71.05...____ 4,17

Kansas Sexually Violent Predator Act (K.S.A. 59-

NN 605% 05's esidees koko. cae cs 3, 5, 6

Mentally Disordered Sexual Offender Act, 198].

(Former Welf. & Inst. Code sections 6300 et seq... 23

Minnesota Sexually Dangerous Persons Act... ._._ .

Minnesota Sexual Psychopathic Personality Act . ft: 23

Revised Code of Washington (RCW) 71.05 ..... 14

0 er ee ee 17

I PW ds co cvikde i uek ews 1, 6, 9, 27

i sO is alla rs Se 14, 29

0 v9.0 égcdnnis oan ak ae ae 14

ED dave cingdiciss: die tite xe 12

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ee ee 15, 20

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I at cia dts te a aes a 17

Es i od iaak b wandalee waned dase wine 16

ED inside bguied the peeves o «otek 17

UP FRI oc p's vidyeciadecccaen, 16, 17

Ry PRS os ec wedciediuae rele eile 17

RO ee di eces 17

GE POO oss vance iS sca s ee 17

We NE obi downs Watecuect: Mon 26

Pe Doe's kde oud odlucss vale 7

ET EID 8 oc ceca fee: aun es 7

ste. . ETRE RE ee 7

SDP Act,Special Session 1994.,

Minn.Stat.Ann.Sec.253B, subds. 7a,/2b (1996) .... 18

Vulnerable Adult Act, Minn. Stat. $626.557 (Supp.

DUP scccccrcesveussutuuchulien eee 19

Boerner, ing Vi . i

Word, 15 U.Puget Sound L.Rev. 535, 549-50 (1992) ..

Diagnostic and Statistical Manual IV....._. . 14-15

Erickson, "Sexually Violent Predators" (1996) Forum

magazine, vol. 23, Sec. 667(b) through (i)....... 22

vii

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, 706... .. 9,26,30

Scheingold, et al., The Politics of Sexual Psychopathy:

Washington State’s Sexual Predator Legislation, 15 U.

Puget Sound L. Rev. 809, 816-18 (1992).......... 8

Wettstein, A_ Psychiatric Perspective on Washington's

Vi t , 15 U. Puget SoundL.

Rev. 597, 614-619 (1992)..............050000- 21

INTEREST OF AMICUS CURIAE

The Seattle-King County Defender Association

provides public defense representation to persons

accused of being "sexually violent predators". The

Association represented Andre B. Young at his trial in

1991, in his appeal in Jn re Young, 122 W.2d 1, 857 P.d

989(1993), at his retrial in 1993-1994, and in his Habeas

Corpus petition which was granted in Young v. Weston,

898 F. Supp. 744 (W.D. Wash., 1995, Ninth Circuit

appeal submission withdrawn pending disposition in this

case). The Association has represented every person

charged under Revised Code of Washington (RCW)

71.09 (the "predator" law) in King County, and currently

represents eight clients under that law in state and

federal courts. The law is nearly identical to the Kansas

law at issue in this case. The Association was founded in

1969 and is the largest public defender office in

Washington.

The Washington Defender Association (WDA) is

a state-wide non-profit corporation whose approximately

670 members include most of the organized public

defender offices in Washington (17 programs are

members) as well as assigned counsel. The WDA, with

the assistance of grants from the American Bar

Association Bar Information Project, developed the

tanda (1984, 1989).

These Standards have been endorsed by the Washington

State Bar Association as providing minimum

requirements for providing legal representation to poor

persons accused of crimes in Washington. The WDA

presented a seminar on representation under the

"sexually violent predator" law in October, 1995.

The National Legal Aid and Defender

Association (NLADA) is a_ private, non-profit

Eee

membership organization based in Washington, D.C.

Founded in 1911, the Association is the only national

organization devoted solely to assuring the delivery of

high quality legal services to poor people. The

Association often appears as an amicus party on issues

of broad concern that address the constitutional right to

counsel and equal access to and fairness in the justice

system. Its national membership includes members of

the indigent defense and civil legal service bars, and

professionals who provide related services. Many of the

nation’s public defender organizations, as well as

assigned counsel and private criminal defense

practitioners, are NLADA members.

The California Attorneys for Criminal Justice is

the largest organization of criminal defense lawyers in

California and regularly appears as amicus curiae in

cases important to the administration of justice.

California has a statute similar to the one in Kansas.

The Minnesota State Public Defender supervises

a state-wide public defense system of more than 500

attorneys. Each year, approximately 240 Minnesota sex

offenders complete their sentences. Under the

Minnesota Sexually Dangerous Persons Act and

Minnesota Sexual Psychopathic Personality Act, each of

these persons is in jeopardy of being confined

indeterminately, based on crimes for which they have

been convicted and sentenced. The constitutionality of

post-punishment sex offender commitment laws is of

great interest to Minnesota defenders.

The Amici support the position of the

Respondent Mr. Hendricks and the decision of the

‘Kansas Supreme Court. Jn the Matter of Hendricks, 912

P.d 129, 131 (Kan. 1996), cert. granted, 116 S.Ct. 1540

(1996). The parties have consented to participation by

amici.

SUMMARY OF ARGUMENT

The Kansas Sexually Violent Predator Act (K.S.A.

59-29a01 et. seq.) and its predecessor law in Washington

were designed to extend indefinitely the prison terms of

sex offenders who otherwise would be released. By

reviewing the legislative history in Washington, one can

see the punitive purpose underlying these laws. By

examining the implementation of the law in Washington,

one can discern the punitive impact of these laws.

In response to public outcry, the Legislatures in

both states dramatically increased criminal sentences, but

such amendments could not retroactively be applied to

prisoners who had been given "short" sentences.

Because the target prisoners were not mentally ill and

therefore could not be civilly committed, both

Legislatures created new "civil commitment" systems

which do not require proof of mental illness, which are

predicated on criminal acts for which the person already

has been punished, which commit the person to a prison,

and which delay any recognition of the need for

treatment until the completion of the criminal sentence.

The statutes permit a second prosecution based

on an offense for which the person already has been

convicted and served his sentence. They extend

incarceration and penalize offenders more harshly than

the law permitted at the time they committed their

offenses. The laws violate the protections of the Double

Jeopardy and Ex Post Facto provisions of the United

AD OER> SY ar Oe re

States Constitution. In addition, because they are

punitive and are applied to people who are not mentally

ill, commitment under the law violates the Substantive

Due Process protections of the Fifth and Fourteenth

Amendments to the U.S. Constitution. Foucha v.

Louisiana, 504 U.S. 71 (1992).

The Court in granting habeas corpus relief from

commitment under the Washington statute in Young v.

Weston, supra, 898 F. Supp. 744, 749, noted that "the

absence of a mental illness requirement is apparent both

in the statutory language and in its legislative history”.

Recognizing that sex offenders are not classically

mentally ill, the Legislature required only proof of a

"mental abnormality" or "personality disorder". No

recent overt act was required. "Mental abnormality" is

circularly defined to predict future crimes based on the

commission of past crimes.

The sexual offense is proven again, not in a

confidential proceeding as is the case under

Washington’s civil commitment law (Involuntary

Treatment Act (ITA), RCW 71.05) but in a public trial.

Committed offenders are called "predators" not

"patients", are confined in a prison and may be shot for

attempting to escape. The person may be released only

if he proves he is "safe to be at large”.

The legislature’s description of a statute as civil

does not foreclose the possibility that it has a punitive

character. Montana Dept. of Revenue v. Kurth Ranch,

128 L.Ed d 767, 777 (1994). The question is whether

the sanciion, disadvantage or penalty imposed constitutes

punishment. Austin v. United States, 125 L.Ed.d 488, 498

(1993).

The legislative history of the Washington,

California, and Minnesota "predator" statutes, and the

six-year-history of incarceration under the Washington

law provide overwhelming evidence that the purpose and

effect of these statutes, and their companion Kansas

statute, are punitive. Each of the states which enacted

laws after Washington used similar language in its

statute and in the arguments in favor of passing the laws.

As in Kansas (See Respondent’s Brief at 15),

persons detained under the Washington statute have

been denied constitutionally minimal treatment. The

actual implementation of the Washington law, in denying

constitutional treatment for six years, shows that the law

by its nature is not designed to provide treatment but to

provide a basis for preventive detention which otherwise

would have no legal foundation.

Nearly four years after the first detainees under

the "predator" law entered the Washington "Special

Commitment Center," U.S. District Court Judge William

Dwyer found following a jury trial that the state had

denied constitutionally adequate treatment. Turay v.

Weston, C91-664WD (June 3, 1994). Order and

Injunction, Appendix A. Nearly six years after the

implementation of the law, April 2, 1996, Judge Dwyer

found that "more remains to be done to achieve full

compliance." Order on Renewed Motion, Appendix B.

This Court should uphold the decision of the

Kansas Supreme Court in finding the Kansas Act

unconstitutional, and should find that the purpose and

effect of the Act are punitive, violating Substantive Due

Process, Ex Post Facto, and Double Jeopardy protections

of the Fifth and Fourteenth Amendments. .

ARGUMENT

I. The Legislative History in Washington, Minnesota,

and California Makes Clear The Punitive Purpose of

the ’Predator’ Law Upon Which Kansas’ Act Was

Modeled and of Similar Laws in Other States

Washington

Kansas modeled its “predator” law upon

Washington’s RCW 71.09. Hendricks, supra, 912 P.d

129, 131. Washington was the first state to enact such

a law and has the tongest history of its application.

There is little doubt that the primary motive

behind the "Community Protection Act of 1990" and the

"Sexually Violent Predator" law was to keep sex

offenders in prison. As the District Court noted in

Young v. Weston, supra, there is substantial evidence that

the Washington Legislature intended to extend the

confinement of persons sentenced under the older,

"lenient", determinate sentencing laws, who could not be

committed civilly. Id., at 746, fn. 1, and 750, fn. 3.

After public outcry in Washington over several

notorious sexual crimes, the Task Force on Community

Protection ("Task Force") was formed to recommend

changes in the laws related to sexual offenders. ' Its

The chairperson of the Task Force was King County

"Final Report" was entitled "an act relating to criminal

offenders." Final Report of the Task Force on

Community Protection, III-1 ( hereinafter “Final

Report") (Emphasis supplied.) Appendix K. Concern

was expressed over a perceived "gap" in the criminal laws

that permitted dangerous sex offenders to be released

into the community after completing their prison terms.

Young v. Weston, at 750, fn. 3.

The Task Force called for lengthened sentences

for sexual crimes’ but struggled with the question of how

to continue confinement for those who constitutionally

were entitled to freedom at the end of their criminal

sentences. In the words of David Boerner, Task Force

member and chief drafter of the Statute:

I had no doubt that if the legislature was to

extend the length of sentences previously

imposed, the courts would find the legislation

unconstitutional. While the members of the Task

Force could accept that legal judgment, they

Id not t.

Boerner, ing Vi : Int a

Word, 15 U. Puget Sound L. Rev. 535, 549-50 (1992).

Prosecutor Norm Maleng. On the group were two women

whose children had been the victims of vicious sexual assaults.

Introductory Letter to Governor Booth Gardner, Final Report

of the Task Force on Community Protection (1989).

2 The Legislature accepted these recommendations. _See

RCW 9.94A.310; -.320; and -.360(17).

(Emphasis supplied.) *

As outlined by the Task Force, the law was

designed to prevent the release of "known dangerous

offenders who are highly likely to commit very serious

crimes". Final Report, p. [1-20 (1989).

The Task Force’s proposed “Community

Protection Act” called for a new post-sentence, indefinite

“civil commitment" law for a class of sex offenders who

soon would be released whom the Task Force chose to

label "sexually violent predators." The Task Force

subtitled its package “an act relating to criminal

offenders." Final Report, III-1 (emphasis added). The

Legislature quickly enacted the law with only minor

modifications. ‘ The Act, including what became RCW

3 This unwillingness to be bound by constitutional restraints

was acknowledged by one of the drafters of the statute, Ida

Ballasiotes, a member of the Task Force and now a

Washington State Representative, who told ABC News that

she knew that the Community Protection Act "flies in the face

of the Bill of Rights." ABC TV "Turning Point", September

21, 1994,

4 One senator said he proposed a castration amendment

because he thought it had a realistic chance of passing,

whereas his alternative proposal -- the death penalty -- did

not. See comments of Senator Saling, from Excerpts from

Hearing of the Senate Law and Justice Committee , January

9, 1990, Appendix C. See also, Scheingold, et al., The

islation, 15 U. Puget Sound L. Rev. 809, 816-18

(1992) (describing the mood of public outrage). Professor La

71.09, et seg., went into effect July 1, 1990.°

During legislative hearings, Mr. Boerner testified

that despite changes "strengthening and toughening,

lengthening sentences", there would still be "gaps

remaining” that were “unacceptable in terms of

protection of the community."

[U]p to now, under the cr'mina! law{'s] generally

accepted principles,

one can't impose penalties

retroactively. People who are in the system now,

in prison, being prosecuted now, must have their

sentences and the length of those sentences

determined by the law that was in existence at

the time of their crime. And so we have a

number of people who are under the old law who

simply can’t be charged under the criminal law.

Senate Committee Hearing, January 10, 1990,

(transcribed by Defender Association staff) Appendix D,

p. 1 (emphasis added).

Fond wrote: "No politician wants to face a sixty-second

political attack on television by his campaign opponent

claiming ‘he voted against community safety and in favor of

sexually violent predators.” Washington's Sexually Violent

Predator Law: A Deliberate Misuse of the Therapeutic State

for Social Control, 15 U. Puget Sound L. Rev. at 655, 706).

5 See generally

15 U. Puget

Sound L. Rev. ariissz This volume collects articles from

detailing the political climate and process leading to the

passage of the Community Protection Act of 1990.

The Task Force saw its role as closing this "gap":

The Task Force was created principally to answer

one question: What gaps in our law and

administrative structures allow the release of

known dangerous offenders who are highly likely

to commit very serious crimes?

Final Report, p. I1-20. The Task Force emphasized:

"(W]e must have the means to detain sexually violent

predators whose confinement is not insured by our

current laws." Final Report, IV-7. Having identified the

operative "end point" for "state control,” i.e. release from

prison under the earlier sentencing law, the Task Force

looked for a way to fill the "gap" by extending the state’s

control. Id., 11-20-21.

The Task Force noted that the involuntary

treatment law allows indefinite commitment, but is "quite

restrictive in its definitions.” ° It wrote:

Under current laws, sexually violent predators

only qualify for civil detention when a mentai

illness or mental disorder is present. The Task

Force examined the histories of some individual

violent predators who had been judged not to

have a mental illness or mental disorder and

6 Boerner testified: "[the Task Force] did not begin with the

intent to create a civil commitment system that would address

the problem.” Senate Committee Hearing, January 10, 1990,

p. 1. The Task Force's “path to civil commitment of sexually

violent predators” is described by Boerner in Confronting

Violence, at 547-77.

therefore were not detainable. The Task Force

concluded that existing laws do not offer a

sufficient safety net for confinement of sexually

violent predators who meet these end points.

The Task Force believes a safety net must be

created to reduce future acts of violence. The

Task Force proposes creating a new civil

commitment statute for sexually violent predators.

Final Report, II-21. Boerner elaborated:

Now [the civil commitment system] was

attempted to be applied to [Shriner] and the

courts determined that he did not fit the

definitions of the existing involuntary

commitment law. We don’t really challenge that

finding based on that legal system. That system

| it’s a defined Mr. Shriner j

Senate Law and Justice Committee Hearing, January 10,

1990, p. 1 (emphasis added).’

7 Mr. Shriner was convicted of sexually mutilating a young

boy. The boy’s mother was appointed to the Task Force. See

also Senate testimony: (Boerner: “these individuals are not

mentally ill"). This was echoed by other Task Force members,

including Maleng, Senate Committee Hearing, January 9,

1990, (contrasting the “classically mentally ill" with the

Statute’s targets who do not fit the "classic definition of

mental illness") and Lucy Berliner, of the Harborview Sexual

Assault Center, who testified:

The Law Targets People Who Are Not Mentally Ill

Instead of requiring either a "mental illness” or

“mental disorder," the Task Force used the terms

“mental abnormality" and “personality disorder." RCW

71.09.020(1). * Boerner told the Senate Committee:

... | understand the concern about a definition

of what does one mean by mentally abnormal.

Now, the personality disorder is a defined term

and there is a body behind that. Mental

abnormality is not. It’s been used before, but the

And as everyone has said, it is quite true that sex

offenders generally do not suffer from mental illness

as we think of it classically like such disorders as

schizophrenia, and | think that was precisely for that

reason that we proposed an alternative civil

commitment process so that we would not be

conveying to the community or considering these

individuals in the same way.

Senate Committee Hearing, January 10, 1990, p. 9.

8 Justice White warned of the dangers of committing someone

for a personality disorder. He said that it would be only a

step away from dangerousness courts. He pointed out that

the state’s rationale, that a person who once committed a

crime and now has an antisocial perscnality that sometimes

leads to aggressive conduct can be civilly committed

indefinitely, would permit the state to hold indefinitely any

insanity acquitee, or for that matter any prisoner who is not

mentally ill but who has a personality disorder that may lead

to criminal conduct. As Justice White said in language that

fits exactly here, "The same would be true of any convicted

criminal, even though he has completed his prison term.”

Foucha v. Louisiana, 118 L. Ed d at 450.

definitions that have been given, provided behind

it, simply don’t add anything in our judgment.

liction, by the fi f wl ill} :

the future. That’s how it was used in the model

penal code... The protections come _on_the

procedural side, not on the definitional side.

State Senator Phil Talmadge queried:

And frankly, mv concern is the use of the term

mental or [sic] abnormality is so vague that

anybody who’s been a sex offender in times past

will be deemed to be mentally abnormal and

could be pulled up under the net of the bill. I

think that’s the argument.

Professor Boerner responded:

That’s the argument and I think there’s some

validity to it. Abnormality is a very broad term.

Senate Committee Hearing, January 10, 1990, p.

7(emphasis added).

The District Court agreed that “mental

abnormality" has no clinical meaning and will vary from

clinician to clinician. See, Young v. Weston, at 750, fn.2.

In its preamble to the statute, the Legislature

admitted that the target population was not mentally ill.

It said that the target group "do not have a mental

disease or defect that renders them appropriate for the

existing involuntary treatment act..." and that

in contrast to persons appropriate for civil

commitment under chapter 71.05 RCW, sexually

violent predators generally have antisocial

personality features which are unamenable to

existing mental illness treatment modalities...

RCW 71.09.010. (emphasis added) ”

The Legislature attempted to circumvent the

mental illness prerequisite for civil commitment by

creating a new status of "mental abnormality", which is

an element of the status of "predator" and is circularly

defined as a condition which predisposes a person to

commit criminal sexual acts. RCW 71.09.020.

The Statute also permits commitment based on

“personality disorder", which covers a broad range of

people, including most convicted of a crime, and which

this Court has held may not be used to commit someone

civilly. Foucha v. Louisiana, supra."

9 It added: "The legislature further finds that the prognosis

for curing sexually violent offenders is poor, the treatment

needs of this population are very long term, and the treatment

modalities for this population are very different than the

traditional treatment modalities for people appropriate for

commitment under the involuntary treatment act." RCW

71.09.010.

10 According to the Diagnostic and Statistical Manual IV,

"The overall prevalence of Antisocial Personality Disorder in

community samples is about 3% in males and about 1% in

females. Prevalence estimates within clinical settings have

varied from 3% to 30%, depending on the predominant

In a demonstration of the pretense of a mental

illness requirement in the statute, the State in Young

called a psychologist who testified that Mr. Young

suffered from "a personality disorder not otherwise

specified" and from a "ental abnormality", a "paraphilia

not otherwise specified", neither of which alone would

support a finding that he is a "predator" but together

would allow the psychologist to say that more likely than

not Mr. Young would reoffend. Jn re Young, 122 Wn.2d

1, 15-16,71.

The Punishment Imperative of the Law Is Evident in

Its Application Only Just Prior to Release From Prison

The Statute authorizes indefinite detention of

persons previously charged or convicted of a listed

“sexually violent offense," RCW 71.09.020(4), but only

just prior to their release from confinement into the

community. RCW 71.09.030. Incarceration under this

law does not coincidentally follow completion of a

criminal sentence. It may not occur before the end of

the sentence. As Judge Coughenour noted, the statute

has a punishment imperative and is inextricably linked to

the traditional goals of punishment. Young v. Weston,

898 F. Supp. 744, 753. The law first exacts the maximum

possible punishment, despite the fact that any mental

disorder which causes crime should be known at the

time of sentencing.

The statute prohibits detention of "predators" on

characteristics of the populations being sampled. Even higher

prevalence rates are associated with substance abuse

treatment settings and prison or forensic settings." DSM IV,

at 648.

the grounds of any state mental facility or regional

habilitation center. RCW 71.09.060(3).

If a judge determines that there is probable cause

to believe that the person is a “sexually violent

predator,""' the person is taken under warrant (either

from prison or the community) to SCC in Monroe,

Washington, a maximum-security Department of Social

and Health Services facility located within a Department

of Corrections (DOC) prison. The person is subjected

to an evaluation. RCW 71.09.040, -.050. Over

objection, the accused are detained in jail during trial.

RCW 71.09.060(3) permits incarceration in the county

11 A "sexually violent predator" is: “any 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." RCW 71.09.020(1).

"Mental abnormality” is defined 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 safety and health of others." RCW

71.09.020(2). No definition is provided for the term

"personality disorder.”

"Predatory" means: “acts directed towards strangers or

individuals with whom a relationship has been established or

promoted for the primary purpose of victimization.". RCW

71.09.020(3).

" See Lynch v. Baxley, 744 F.d 1452 (11th Cir.1984) (use of

jails to hold involuntary civil committees violates due process.)

The ITA does not authorize jail detention.

jail for up to seven days pending a court hearing. If the

State prevails at trial, the person is indefinitely

committed to SCC until it is proven that he or she is

"safe to be at large." RCW 71.09.060, -090, and -.100.

Under an equal protection analysis, the

Washington Supreme Court added a less restrictive

alternative requirement to the Statute. Young at 47.

The Legislature then amended the law to prohibit

consideration of less restrictive alternatives at the

probable cause hearing even though such consideration

is required under the ITA: "In no event shall the person

be released from confinement prior to trial." RCW

71.09.040(4). See, RCW 71.05.240. ”

The law provides for potentially lifetime

incarceration in a maximum security prison for someone

who has had one conviction for a sexual offense, at any

time, in any state. The law applies only when the

accused have completed or nearly completed their entire

prison sentence. It is linked to a crime for which the

person has been punished. It also may be applied to

people found not guilty by insanity who are about to be

released because they no longer are insane.

The law creates a new category of sexually violent

13. A post-Young amendment to the release provisions,

setting numerous requirements for the committed person to

meet, bear out the Legislature’s punitive intent. See e.g.,

RCW 71.09.090-098. These provisions make the possibility of

release unlikely. See Foucha v. Louisiana, 118 L.Ed.d 437, 470

(1993) (Thomas,J., dissenting) n.10.

predators, a term which conjures up frightening images

of animals and suggests a punitive, not a therapeutic

approach. By intent and design, the law is punitive.

Minnesota

The legislative history in Minnesota shows that its

"predator" law also was intended to extend the criminal

incarcerations of convicted sex offenders currently

serving criminal sentences which were viewed, in

retrospect, as being too short.

The SDP Act was enacted in a Special Session in

1994. Minn.Stat.Ann.Sec.253B, subds. 7a,18b (1996).

Following a Minnesota Supreme Court decision

overturning a sex offender's commitment, /n re

Linehan,518 N.W. d 609, pet. for reh. den.(Minn. 1994),

the Attorney General presented a bill to the Legislative

Task Force on Sexual Predators. His proposal formed

the core of the SDP Act passed by the Legislature. He

presented a "three prong approach" to “take every step

to assure the public that dangerous sexual psychopaths

will not be turned loose on our families, friends and

communities." Testimony of Attorney General Hubert

Humphrey III Before the Legislative Task Force on

Sexual Predators, August 11, 1994 (Appendix E)

(hereinafter Attorney General Testimony.)

In proposing a "predator" statute, Mr. Humphrey

said: “The question before us today is simple: how do

we protect the public from some of the most dangerous

criminals in society. " Attorney General Testimony at 1.

. . [W]e propose changes in state criminal laws to

give prosecutors more tools to keep patterned sex

offenders and pedophiles locked up longer as

criminals to avoid the dilemmas inherent in even

the tightest civil commitment policy.

Attorney General Testimony at 2.

The Attorney General wanted "a new commitment

standard which we think may apply better to the

criminals we are trying to get at." Id., at 3, emphasis

added. An Assistant Attorney General who was a

member of the Legislative Task Force testified:

To put it in kind of stark terms, if you have two

criminal sentencing systems and under the first

one for a particular crime you're sentenced to

two years and under the next one you're

committed to twenty years, and after the two

years society sees a need to civilly commit you

because of the danger that you'll pose....there’s a

very obvious reason to treat person number one

different from person number two.

Statement of John Kirwin, August 11, 1994 Hearing of

the Legislative Task Force on Sexual Predators. “

14 The statement was transcribed by a research assistant for

Professor Eric Janus at the William Mitchell College of Law.

The Act specifies that persons committed as Sexually

Dangerous Persons are not to be considered "vulnerable

adults" for purposes of the protections of the Vulnerable

Adult Act, Minn. Stat. $626.557 (Supp. 1994). Persons

committed under this law, unlike all other committed or

institutionalized persons, are deprived of the protections of

California

The California “Sexually Violent Predators” law,

article 4, Division 6, Part 2, Chapter 2, of the Welfare

and Institutions Code (Sections 6600 et sec.),'° uses the

same terms as the Washington and Kansas statutes. '°

Article 4 consists of a “judicial commitment” process in

which a state prison inmate, who otherwise would be

released on parole, is subject to indefinite incarceration

in renewable two-year periods in the Department of

Mental Health, housed in a secure, locked facility under

the jurisdiction of the Department of Corrections."

that Act.

15 Unless otherwise noted, all statutory references are to the

Welfare and Institutions Code.

16 (See RCW 71.09.020(1), and Cal. Welf. & Inst. Code,

sec. 6600(a).) "Mental abnormality” in the Washington statute

is defined exactly the same as the California definition of

“diagnosed mental disorder.” (See RCW 71.09.020(2), and

Cal. Welf. & Inst. Code, sec. 6600(c).) Both statutes apply

retroactively to those who were in custody as of the effective

date of the act. Both statutes allow the State to initiate the

involuntary commitment process only after a person has

served their entire criminal sentence. Neither requires the

State to show any new criminal conduct since the person's

commitment to prison. (See RCW 71.09.025 and 71.09.030,

and Cal. Welf. & Inst. Code, sec. 6600 and 6601(a).)

17 U.S. Magistrate John Moulds found that the lack of

adequate care for mentally ill prisoners by the Department of

Corrections constitutes cruel and unusual punishment because

of deliberate indifference on the part of the Department. The

ruling affects about 28,000 mentally ill prisoners. (Analysis

A Los Angeles trial court has found the statute

“essentially and predominantly penal in nature and that

its retroactive application is barred by" ex post facto

prohibitions. People v. Rasmuson, et.al., No. ZM 001798

et.seq., Los Angeles Superior Court, June 12, 1996, at 7,

Appendix G. The Court wrote:

..it is apparent from the legislative history...that

the Legislature intended to enact a measure to

reach those whose determinate sentences were

nearing completion and whose custodial release

the Legislature sought to prevent." /d.,at 21."

The court emphasized that any treatment is

delayed for many years and then occurs in a penal

setting, which is counter-therapeutic, and the law

“prioritizes incapacitation over treatment and

rehabilitation." /d.,at 24-25, citing Wettstein, A

ia ve on Washi : Violent

Predator Statute, 15 Univ. of Puget Sound L. Rev. 597,

614-619 (1992).

California’s experience was similar to those in

Washington, Kansas, and Minnesota. There was a

prepared for the April 25, 1995 hearing of the Senate

Committee on Criminal Procedure, at p. 9.) Appendix F.

18 Another California court upheld the law but required an

evidentiary hearing on probable cause. People v. Hubbar,

Santa Clara Co. No. 140294. The California Supreme Court

remanded a petition for review to the Sixth Appellate District.

The Second Appellate District has scheduled a hearing on

Rasmuson.

— —

perceived gap in the laws:

Under current law there is no legal authority to

detain and treat sexually violent offenders who

are likely to commit new offenses because of

their mental abnormality and defects. There is no

procedure to prevent the release into

unsuspecting communities of sexually violent

offenders who have completed their prison

sentences.

SB 1143 Analysis for Senate Committee on Criminal

Procedure, April 25, 1995, p.2., Appendix F."*

A host of initiatives and statutes sought to

increase criminal penalties in general and punishment

for sex crimes in particular.” (See, e.g., Penal Code

sections 667(b) through (i) and 1170.12, the so-called

“Three Strikes And You're Out” initiative; Penal Code

19 Committee reports are authoritative sources for finding

legislative intent. Zuber v. Allen, 396 U.S. 168 (1969).

20 The California Director of Corrections intervened in a case

involving Christopher Hubbart, who was due to be paroled in

1994. "Immediately afterwards, Hubbart was diagnosed as

suffering from severe paraphilia, a catch-all term for sexual

disorders that are otherwise undefined. Although Hubbart

committed no act of misconduct to violate parole, the CDC

revoked his parole for psychiatric treatment the day he was

due to be released. In 1995, Governor Wilson singled out

Hubbart in his State of the State message and urged the

Legislature to enact a statute that would keep him and other

prisoners from returning to the community.” (See Erickson,

“Sexually Violent Predators” (1996) Forum magazine, vol. 23,

no. 1, p. 127).

section 667.61 et seq., the one and two strikes sex law

providing for a lifetime commitment (Stats. 1994, c. 800

(AB wag To address also prisoners entitled to

parole, the Legislature passed the "predator" act.

Governor Wilson said when signing the law, "Some of

the most dangerous criminals will no longer be released

simply because the law is so absurdly lenient." Los

Angeles Times, October 11, 1995, A-3.

The establishment of a new “civil commitment”

scheme was inconsistent with the repeal of the Mentally

Disordered Sexual Offender Act in 1981. (Former Welf.

& Inst. Code sections 6300 et seq.)

.. the Legislature recognizes and declares that

the commission of sex offenses is not in itself the

product of mental disease. ... persons convicted

of a sex offense after the effective date of this

section, who are believed to have a serious,

substantial, and treatable mental illness, shall be

transferred to a state hospital for treatment under

the provisions of Section 2684 of the Penal

Code.” (Emphasis added.) (Historical Note to

section 6300, section 4 of Stats 1981, c. 928, p.

3485.)

Further, the Legislature was advised that

[mJany sexual predators, however, do not have a

major mental disorder and are therefore not

eligible for the Mentally Disordered Offender

Program....they are not appropriate for the civil

commitment system....”

Report of Assembly Committee on Public Safety, April

18, 1996, pp.4-5. Appendix H

The delay in treatment stands in stark contrast to

the MDO law which specifically requires the Department

of Corrections to render treatment while in prison and

before MDO proceedings are initiated. (Pen. Code

sections 2960, 2962(d)(1).)

Postponement of treatment belies any

therapeutic purpose. As the court wrote in Young v

The punishment imperative also undermines the

State’s purported interest in treating violent

sexual predators. ... Of course, it defies reason to

suggest that the mental abnormalities or

personality disorders causing violent sexual

predation surface only at the termination of a

prison term. ...The failure of the state to provide

treatment prior to the completion of the

punishment phase strongly suggests that

treatment is of secondary rather than primary

concern. “ (Id., 898 F.Supp. at 753.)

Il. The Failure to Provide Constitutionally Required

Treatment to People Committed As Predators’

Demonstrates the Law’s Punitive Intent and Violates

Substantive Due Process Protections

Ip Kansas, the director of the "predator" program

admitted that it provided "essentially no treatment". J.A.

393. The failure to meet constitutionally minimal

treatment requirements is the inevitable consequence of

a law which did not have treatment as a goal, but used

treatment as a jurisdictional pretext. Because

Washington has used the "predator" law for four years

longer than Kansas, its experience provides a window

through which to view the Kansas practice. Both states

took a similar approach to the "treatment" facility. They

hired staff who were not experienced in treating sex

offenders and they located the facility within a prison.

JA 400, Resp. Br.15; Washington findings discussed

infra.

Federal and state courts in Washington have

found that the Special Commitment Center denies

constitutionally required treatment to its inmates.

Because the laws in the two states share the same design

and purpose, it is logical that Kansas will continue to

deny constitutional treatment as Washington has.

There is a

. constitutional right to receive such individual

treatment as will give [an involuntarily committed

person] a realistic opportunity to be cured or to

improve his or her mental condition. [Citations

omitted} Adequate and effective treatment is

constitutionally required because, absent

treatment, the hospital is transformed ‘into a

penitentiary where one could be held

indefinitely’. . .

Wyatt v Stickney (M.D Ala 1971) 325 F.Supp. 781, 784,

affd. sub nom Wyatt v Anderholt ,503 F.d 1305(Sth Cir.

1974) (emphasis added).

U.S. Court Finds Treatment Inadequate

In an “Order and Injunction", the U.S. District

Court found that the Washington SCC treatment staff

was not experienced or adequately trained; that

treatment plans with objective measures of progress had

not been developed; that clinical direction was absent;

that the trust necessary to establish therapeutic

relationships was missing; that treatment staff had

verbally abused and strip searched residents; and that

the program had failed "to meet constitutional standards

to date." Order and Injunction, Appendix A. ™

The Court issued its First Supplemental Order in

August, 1994, denying the state’s request for a 180 day

extension to conduct a nationwide survey to determine

prevailing professional standards. It noted: "The SCC

program has been in operation for four years.

Defendants [state] should already know prevailing

professional standards." Appendix I, at 3.

21 The Statute fails to provide transitional programs such as

work release. Recent amendments purport to allow

conditional release but saddle detainees with the burden of

establishing a mechanism for release. RCW 71.09.090-098.

Dr. Vernon L. Quinsey, who was commissioned by SCC to

critique its program, cited the lack of “any provision for

aftercare and community supervision” as "fatal" to any realistic

hope for successful therapy. LaFond, Washington's Sexually

Violent Predator Law: A Deliberate Misuse of the Therapeutic

State for Social Control, 15 U. Puget Sound L. Rev. at 655,

706. In addition, the Legislature has created a crime of

escape for a person released under the Statute to a less

restrictive alternative who leaves the state without permission.

RCW 9A.76.120. Leaving the state without permission while

under a less restrictive alternative under the ITA, RCW 71.05,

is not defined as a criminal act.

SCC Conditions SCC More Severe Than those in Prison

A King County, Washington, trial court found

that the conditions of confinement under RCW 71.09

and the lack of constitutionally adequate treatment

violated substantive due process, but declined to dismiss

the petition.” Appendix J. A civil commitment scheme

violates substantive due process if it imposes a regimen

which essentially is identical to that imposed upon felons

with no need for psychiatric care. Allen v. Illinois, 478

U.S. 364, 373 (1986). In many respects, the conditions

at SCC are more severe than those imposed upon

incarcerated criminals and than those imposed upon the

same detainees when they were in prison under their

criminal sentences. See FFA-S, 11, 13, 14, 16, 27, 28;

Appendix J, p. 5.

The level of security for those detained under the

Statute is high. FFA-2, 3, 4, 5, 6, 7, 11, 12, 14, and 16.

SCC is located within a DOC institution. Residents

may be shot for attempting to escape. FFA-6. Medical,

food, library and visitation services are provided by

DOC. FFA-2, 3. DOC guards provide external security

and some internal security. FFA-3. When residents

leave SCC they are transported in full prison gear

including jumpsuits and shackles. FFA-11. They may be

strip searched without reasonable suspicion any time

they leave the facility, even though under constant

armed surveillance while gone. FFA-11. Electronic

® The Findings of Fact and Conclusions of Law and Order

issued by Judge Armstrong on 11/7/94 in Jn re Campbell, No.

93-2-15348-1, are attached as Appendix J and referred to

hereinafter as "FFA."

audio and visual monitors are in place throughout the

facility. FFA-4. The program director had no training

or experience in sex offender treatment before being

hired by SCC. FFA-23. There are more treatment

opportunities for convicted sex offenders in prison than

at SCC. FFA-27.

Residents have been verbally abused and

subjected to racial epithets. FFA-29. Expert testimony

characterized the inconsistent application of rules and

policies as cruel. FFA-13. The lack of reasonable

opportunity to improve one’s "condition" and be released

from civil commitment is also cruel.”

In Reno v. Flores, 123 L. Ed. d 1, 16-17 (1993),

this Court analyzed a substantive due process challenge

to a regulation concerning the custodial detention of

juveniles. Finding no due process violation, the court

said: the government did not intend to punish, the

conditions were decent and humane, and the detention

was not punitive because it was not excessive in relation

to the governmental interest. Id., at 17. The "predator"

law does intend to punish, the conditions at SCC are not

decent and humane, and the detention is excessive and

punitive.

Unlike in Allen v. Illinois, supra, in which

offenders may be released “after the briefest time in

* Confinement for mental illness is crue! and unusual

punishment unless accompanied by adequate treatment.

Ohlinger v. Watson 652 F. d 775, 778, n.6.(9th Cir. 1981).

confinement", release under the "predator" statutes is not

likely because treatment has been unavailable. The

Legislature presumed that persons committed were

"unamenable" to treatment and would require "very long

term" treatment. RCW 71.09.010.

This Court wrote in Nixon v. Administrator of

General Services, 433 U.S. 425,476 n.40 (1977):

[Pjunishment is not restricted purely to

retribution for past events, but may include

inflicting deprivations on some blameworthy or

tainted individual in order to prevent his future

misconduct.

Deprivation of liberty in a maximum security

setting in which constitutionally adequate treatment has

been denied is punishment. A statutory scheme which

legitimizes community condemnation by labeling

committees "sexually violent predators," which seeks to

obtain the commitment through open court hearings and

open court files, and which presumes a lengthy loss of

liberty is inconsistent with a real treatment rationale.

It is punitive in design, intent, purpose and effect.

"It is the effect, not the form, of the law that

determines whether it is ex post facto." Weaver v.

Graham, 450 U.S. at 31. (Emphasis supplied.) The

overall design and effect of the statute must bear out the

non-punitive intent. United States v. Ward, 448 US.

242,248-249 (1980). The intent, design and effect of the

Statute prove it to be penal.

CONCLUSION

This law may have been well-intentioned as an

effort to respond to public fear. But it was designed to

do something which the Constitution does not permit--

extend prison sentences after the fact, and detain people

under the guise of civil commitment who are not

mentally ill. In the process, it also punishes people twice

for the same offense. Professor La Fond wrote: " ...In

America, we punish a citizen for what he has done and

not for what we think he may do." La Fond, supra, at

pp. 702-703.

The Kansas Supreme Court was correct in its

ruling and we urge the Court to affirm.

Respectfully submitted,

Addie Hailstorks Robert C. Boruchowitz

National Legal Aid & Director, Seattle-King

Defender Association County Defender Association

1625 K St. NW President, Washington

Washington, DC 20006 Defender Association