In re Bradford

• Decision Date: 07 April 2006
• Docket Number: No. 04-1707.,04-1707.
• Parties: In re Detention of Willie BRADFORD, Appellant.
• Court: Iowa Supreme Court

712 N.W.2d 144

In re Detention of Willie BRADFORD, Appellant.

No. 04-1707.

Supreme Court of Iowa.

April 7, 2006.

Mark C. Smith, First Assistant State Public Defender, and Michael H. Adams, Assistant Public Defender, Des Moines, for appellant.

Thomas J. Miller, Attorney General, Sharon K. Hall, Denise A. Timmins, and Andrew B. Prosser, Assistant Attorneys General, for appellee.

LARSON, Justice.

Willie Bradford has appealed an order for commitment as a sexually violent predator under Iowa Code chapter 229A (2003), alleging that the statute is unconstitutional on ex post facto and double jeopardy grounds. We affirm.

I. Facts and Prior Proceedings.

In 1991 Bradford was convicted of second-degree sexual abuse and indecent contact with a minor and was sentenced to concurrent terms of twenty-five and two years, respectively. Both offenses are "sexually violent" offenses as defined by Iowa Code section 229A.2(10)(a). He was confined at the Anamosa State Penitentiary, but was eligible to be released on June 1, 2004. Prior to his release date, proceedings were commenced to have Bradford confined as a sexually violent predator. Acting pursuant to Iowa Code section 229A.3(5), a prosecutors' review committee appointed by the attorney general determined that Bradford met the definition of a "sexually violent predator" and requested the district court to determine that probable cause existed to believe Bradford was a sexually violent predator. The district court found probable cause and set a jury trial on the matter. Bradford filed a motion to dismiss on the constitutional grounds he now urges, but his motion was denied, and the case proceeded to a jury trial.

At the trial, the State introduced the videotaped deposition of Anna Salter, Ph. D., who had examined Bradford to determine whether the court should order confinement. Dr. Salter testified that Bradford suffered from pedophilia and that he is likely to engage in predatory acts constituting sexually violent offenses if not confined in a secure facility. See Iowa Code § 229A.1. Dr. Salter based her opinion on "an extensive history of molesting female children under the age of thirteen." Dr. Salter used four tests to determine Bradford's likelihood to reoffend and rated Bradford as a high risk for reoffending. On one test, he scored the highest possible rating. At the time of the interview, the expert testified "he's not old enough [so] that we can count on age reducing his risk for recidivism." She noted that Bradford had not done well in the treatment program that had been provided for him.

Following the trial, the jury found that Bradford is a sexually violent predator as defined by Iowa Code section 229A.2(11). The court ordered Bradford to be committed to the custody of the department of human services "for control, care, and treatment until such time as his mental abnormality has so changed that he is safe to be placed in a transitional release program or discharged." See Iowa Code § 229A.7(4).

II. The Issues.

Bradford contends that, because his criminal offenses in 1991 predated the enactment of our sexually violent predator act in 1998, the application of the act to him violated ex post facto and double jeopardy provisions of both the United States and Iowa Constitutions. These arguments have been rejected by this court in a series of cases on the ground that chapter 229A is a civil, not criminal, statute. See In re Det. of Garren, 620 N.W.2d 275, 283-86 (Iowa 2000); see also In re Det. of Palmer, 691 N.W.2d 413, 422 (Iowa 2005); In re Det. of Ewoldt, 634 N.W.2d 622, 623 (Iowa 2001); In re Det. of Williams, 628 N.W.2d 447, 451 (Iowa 2001).

However, Bradford argues that the nature of chapter 229A has changed dramatically because the legislature has amended three sections of that chapter and has enacted a new statute in chapter 901A (relative to punishment of persons previously committed as sexually violent predators). The upshot of all of this, according to him, is that the statute has been transformed from civil to criminal, thus implicating ex post facto and double jeopardy principles.

These statutory changes since Garren are the addition of (1) section 229A.5B (making it a misdemeanor for a person to leave a secure facility without permission), (2) section 229A.5C (providing for suspension of the treatment process during prosecution for any criminal offense committed while confined as a sexually violent predator), and (3) section 229A.8(1) (providing rebuttable presumption that commitment should continue). The fourth statutory change is the addition of Iowa Code section 901A.2(6), which provides a possible life sentence for persons in a transitional release program or who have been discharged under chapter 229A if they are subsequently convicted of a predatory or sexually violent offense. Although the State contends the issues raised by these amendments are not ripe for adjudication because they have not yet affected Bradford, we prefer to affirm the district court's decision on its merits.

III. Merits.

In Garren we held that chapter 229A is civil in nature, relying largely on Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). In Hendricks the Court noted that, while it usually defers to the categorization of a statute by the legislature, this is not necessarily dispositive in determining whether the proceeding in question was civil or criminal. Id. at 361, 117 S.Ct. at 2082, 138 L.Ed.2d at 515. However, the Court will reject the legislature's manifest intent only if a challenging party provides the "clearest proof that the statutory scheme [is] so punitive either in purpose or effect as to negate [the State's] intention to deem it civil." Id. at 361, 117 S.Ct. at 2082, 138 L.Ed.2d at 514-15 (alterations in original) (citation omitted). In Garren we relied on the following two-part test of United States v. Ward, 448 U.S. 242, 248-49, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742, 749-50 (1980):

[First,] whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other. Second, where Congress has indicated an intention to establish a civil penalty, [the Court] inquire[s] further whether the statutory scheme [is] so punitive either in purpose or effect as to negate that intention.

(Citations omitted).

In Garren we noted that the legislature had specifically labeled the act as civil and placed it between two other civil provisions. Garren, 620 N.W.2d at 280. We then focused on whether the statute was so punitive in nature as to negate the intention that it should be civil. In resolving that issue, we noted the factors set out in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963):

Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment — retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned....

372 U.S. at 168-69, 83 S.Ct. at 567-68, 9 L.Ed.2d at 660-61.

In applying these factors, we adopted reasoning similar to that of Hendricks — while chapter 229A did impose an affirmative constraint upon the individual, this was not sufficient to make it criminal in nature in view of the fact that the confinement of mentally unstable persons has long been cited as a classic example of nonpunitive detention. See Garren, 620 N.W.2d at 280 (citing Hendricks, 521 U.S. at 363, 117 S.Ct. at 2083, 138 L.Ed.2d at 516) (quoting United States v. Salerno, 481 U.S. 739, 748-49, 107 S.Ct. 2095, 2102, 95 L.Ed.2d 697, 710 (1987)).

Although Garren held that chapter 229A is civil in nature and has been reaffirmed in subsequent cases, these cases have not addressed the specific issues involved in this appeal, i.e., whether the effect of recent statutory amendments following Garren have altered the nature of chapter 229A by making it a criminal statute.

A. Section 229A.5B. In 2001 the Iowa legislature enacted section 229A.5B. This section makes it a simple misdemeanor for a person detained pursuant to chapter 229A to leave the facility without permission, to be knowingly and voluntarily absent from the place where the person is required to be, or to leave the custody of persons transporting or guarding the committed person. Bradford argues that this new section must be contrasted with other statutes regarding a person leaving a facility for mentally ill patients, such as Iowa Code sections 229.13 and 229.14B, or leaving a facility after commitment for substance abuse as provided in Iowa Code section 125.85(5). Unlike these other statutes, which merely provide mechanisms for returning an escaped person to custody, section 229A.5B imposes criminal sanctions on persons escaping from custody imposed under chapter 229A. Therefore, Bradford contends, this suggests that chapter 229A is now criminal in its entirety.

While section 229A.5B makes it a criminal offense to escape after being committed, it does nothing to alter the civil nature of the underlying commitment. The criminal penalty is not imposed because the person is in chapter 229A confinement, but because he has committed the crime of escape while being so confined. Furthermore, we will not assume that the legislature's placing of a criminal provision within a statute we have held to be civil in nature evidences an intent to transform the whole chapter into one that is criminal in nature. This inference sought by Bradford falls short of the "clearest proof" required to make chapter 229A criminal in nature. See Hendricks, 521 U.S. at 361, 117 S.Ct. at 2082, 138 L.Ed.2d at 514-15.

In addition,...