Young, In re

Citation122 Wn.2d 1,857 P.2d 989
Decision Date09 August 1993
Docket Number57838-9,Nos. 57837-1,s. 57837-1
CourtUnited States State Supreme Court of Washington
Parties, 62 USLW 2141 In re the Personal Restraint Petition of Andre Brigham YOUNG, Petitioner. In re the Detention of Andre Brigham YOUNG, Appellant. In re the Personal Restraint Petition of Vance Russell CUNNINGHAM, Petitioner. In re the Detention of Vance Russell CUNNINGHAM, Appellant. En Banc

The Defender Ass'n, Robert C. Boruchowitz, Anne Engelhard, James A. Doerty, William O. Salen, for petitioners/appellants.

Norm Maleng, King County Prosecutor, Timothy Michael Blood, Senior Deputy, Seattle, for respondent.

John Q. La Fond, Professor of Law, Tacoma, Kenneth S. Kagan, Johnson City, NY, amicus curiae for petitioners/appellants on behalf of the American Civil Liberties Union of Washington.

David A. Summers, Edmonds, amicus curiae for petitioners/appellants on behalf of Washington State Psychiatric Ass'n.

DURHAM, Judge.

In this case, the sexually violent predator provisions of the Community Protection Act of 1990 are challenged by two people who have been civilly committed under its authority. Important constitutional and technical issues are raised by this unique legislation, which seeks to protect our citizens by incapacitating and attempting to treat those whose mental abnormalities create a grave risk of future harm. Although the ultimate goal of the statute is to treat, and someday cure those whose mental condition cause them to commit acts of sexual violence, its immediate purpose is to ensure the commitment of these persons in order to protect the community. In this sense, it is similar to any other civil commitment. However, the Legislature has found that the exceptional risks posed by sexual predators, and the seemingly intractable nature of their illness, necessitates a specially tailored civil commitment approach. After exhaustive review of the numerous challenges raised by petitioners, we conclude that the sex predator provisions of the Community Protection Act of 1990 are constitutional. However, for reasons stated below, we reverse petitioner Cunningham's commitment, and remand petitioner Young's case for consideration of less restrictive alternatives.

The numerous issues raised by Young and Cunningham can be categorized as follows: First, petitioners claim that the act violates the ex post facto clause and the prohibition against double jeopardy. Resolution of those issues depends on whether the law is civil or criminal in nature. Second petitioners raise several substantive due process arguments. They claim that the State lacks sufficient justification to deprive them of their liberty, and that the sex predator statute amounts to unconstitutional preventive detention. They also contend, as a substantive matter, that dangerousness must be proved by evidence of a recent overt act, and that they are entitled to less restrictive conditions of confinement. Third, petitioners argue that there are several procedural deficiencies. They claim that the probable cause hearing should not be held ex parte, that the jury verdict should be unanimous, that the selection of the juries was flawed, that the act is void for vagueness, and that they were unconstitutionally denied a right to remain silent. Finally, several evidentiary issues are raised.

I. BACKGROUND
1. The Act

The Community Protection Act of 1990 (the Act) was passed in response to citizens' concerns about the State's laws and procedures regarding sexually violent offenders. See Governor's Task Force on Comm'ty Protec., Final Report I-1 (1989) (hereinafter Report ). The impetus for convening the task force was the commission of two violent crimes: the murder of a Seattle woman by an offender on work release, and the violent sexual attack on a young Tacoma boy. Report, at I-1. The Act contains 14 separate sections, dealing with such topics as registration of sex offenders, crime victims' compensation, background checks, and increased penalties for sex offenders. Laws of 1990, ch. 3, p. 12.

Part X of the Act is entitled "Civil Commitment" and is codified at RCW 71.09 (hereinafter Statute). Under the Statute, those defendants who are determined to be "sexually violent predators" can be involuntarily committed after they have served their sentences. The Legislature enacted extensive findings. Among those, the Legislature stated:

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 and those features render them likely to engage in sexually violent behavior.... 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....

RCW 71.09.010.

A "sexually violent predator" is someone "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). Crimes of sexual violence are enumerated in the Statute, and include crimes not usually considered sex offenses if they are determined beyond a reasonable doubt to have been "sexually motivated". RCW 71.09.020(4)(c). The term "personality disorder" is not defined by the Statute, but the term "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". RCW 71.09.020(2). "Predatory" acts are those directed at strangers, or individuals groomed by the offender for the purpose of victimization. RCW 71.09.020(3).

Under the Statute, when a person's sentence for a sexually violent offense has expired or is about to expire, the State is authorized to file a petition alleging the person to be a sexually violent predator. RCW 71.09.030; see also RCW 71.09.025. When the petition is filed, a judge must determine ex parte if "probable cause exists to believe that the person named in the petition is a sexually violent predator". RCW 71.09.040. When probable cause is found, the person is taken into custody and transferred to a facility for evaluation, pursuant to rules developed by the Department of Social and Health Services (DSHS). Within 45 days, the court shall conduct a trial to determine if the person is a sexually violent predator. RCW 71.09.050. Either party, or the court, may demand a jury trial.

The detainee has a statutory right to counsel. In addition, the detainee may be examined by a qualified expert of his or her choice. Both services will be provided if the person is indigent. RCW 71.09.050. The burden is on the State to prove, beyond a reasonable doubt, that the detainee is a sexually violent predator. RCW 71.09.060(1). If so, then he or she shall be committed to a facility "for control, care, and treatment" until "safe to be at large". RCW 71.09.060(1). The Statute limits treatment centers to mental health facilities located within correctional institutions. RCW 71.09.060(3); RCW 10.77.220.

The detainee must be examined annually to determine his or her mental condition, and the results must be provided to the trial court. RCW 71.09.070. In addition, the person may obtain an additional examination at state expense, if necessary. RCW 71.09.070. If it appears that the person is no longer a sexually violent predator then the secretary of DSHS shall authorize the detainee to petition the court for release. RCW 71.09.090. When such a petition is filed, the court must order a hearing within 45 days. At the hearing, a jury may be demanded by either party, and the burden is on the State to prove, beyond a reasonable doubt, that the detainee is not safe to be at large. RCW 71.09.090(1).

A detainee may also petition the court directly without the approval of the secretary. RCW 71.09.090(2). Upon filing such a petition, a show cause hearing is held, at which time the petitioner has the right to be represented by appointed counsel, but not the right to be present. If the court finds probable cause that the detainee is no longer dangerous, then a full hearing is held with the same procedures as above. The court will not hold any further hearings unless the detainee can show a change of circumstances. RCW 71.09.100.

2. Andre Brigham Young

The petition in Andre Brigham Young's case was filed on October 24, 1990, 1 day prior to his release from prison for his most recent rape conviction. The certification for determination of probable cause (certificate) references two psychological evaluations of Young and describes his criminal history, which includes six violent felony rapes of adult female strangers. These rapes, which the record suggests may be only a partial accounting of Young's sexual assaults, occurred over the past 31 years during the intermittent periods when Young was not in custody.

Young's first series of known rapes occurred in the fall of 1962, when he broke into the respective homes of four different women, forcing them to engage in sexual intercourse. On at least two of these occasions, Young threatened his victims with a knife. In another incident, he raped a young mother with a 5-week old infant nearby. Young was convicted in October 1963 on four counts of first degree rape, with two deadly weapon findings.

Less than a year later, while free on an appeal bond for his 1963 convictions, Young entered the home of another woman. With her child present, he exposed himself, threatened to hurt the child, and threatened to rape and kill the woman. Fortunately, he was frightened away. Young was charged with attempted rape, but was never tried for this offense because he...

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