# Amicus Curiae Brief — Kansas v. Hendricks

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0004%3A14

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1996
- **Citation:** 518 U.S. 1004

## Text

| Supreme fourt, ¥.&
FIiEEOD

iO || Ate LO 1995
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

v.

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

eI

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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

iv

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... ._._ .

23

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
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i ca ea a ean 16, 20
i sic cake ce ub ewad eet 16
is 56 cacdivamheewben ach 8
i ann» bd dies 3 che Gael | 20
ee ee 15, 20
ee cab ees iude Gas ou wed 0 16
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

2

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

3

‘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

4

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

5

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

6

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

1
The chairperson of the Task Force was King County

7

"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

9
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.

10

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.

11

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:

12

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.

13

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

14

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

15

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.

16

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.

17

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.

18

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

19

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

20

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

21

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.

22

— —

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).

23

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....”

24

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

25

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

26

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.

27

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."

28

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).

29

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

30

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
Counsel of Record

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 August 16, 1996

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0004%3A14. Public record. Not legal advice.