In re Detention of Thorell

• Decision Date: 10 July 2003
• Docket Number: No. 71059-7, No. 70488-1, No. 69574-1, No. 70405-8., No. 71315-4, No. 70967-0
• Citation: 149 Wash.2d 724,72 P.3d 708
• Parties: In re the DETENTION OF Bernard THORELL, Petitioner. In re the Detention of Kenneth R. Gordon, State of Washington, Respondent. In re the Detention of Gordon Michael Strauss, Petitioner, In re the Detention of Charles Lee Johnson, Petitioner. In re the Detention of Casper William Ross, Respondent. In re the Detention of Roger Charles Bishop, Petitioner.
• Court: Washington Supreme Court

72 P.3d 708

149 Wash.2d 724

In re the DETENTION OF Bernard THORELL, Petitioner.

In re the Detention of Kenneth R. Gordon, State of Washington, Respondent.

In re the Detention of Gordon Michael Strauss, Petitioner,

In re the Detention of Charles Lee Johnson, Petitioner.

In re the Detention of Casper William Ross, Respondent.

In re the Detention of Roger Charles Bishop, Petitioner.

Nos. 69574-1, 70488-1, 70967-0, 71059-7, 71315-4, 70405-8.

Supreme Court of Washington, En Banc.

Argued May 29, 2002.

Decided July 10, 2003.

The Public Defender Association, David Hirsch, Dennis Carroll, Douglas McCrae, Leslie Garrison, Christine Gregoire, Attorney General, Sarah Sappington, Todd Bowers, Asst. Attorneys General, Washington Appellate Project, Jason Saunders, Nielsen, Broman & Assoc., James Dixon, Eric Broman, Seattle, for Petitioners.

Norm Maleng, King County Prosecutor, Michelle Hauptman, David Hackett, Jeffrey Dernbach, Deputies, Seattle, James Krider, Snohomish County Prosecutor, Seth Fine, David Thiele, Deputies, Everett, Suzanne Elliott, Seattle, for Respondents.

Lisa O'Toole, Seattle, for Amicus Curiae.

Tiller Wheeler Tiller, Peter Tiller, Centralia.

JOHNSON, J.

This case involves three issues regarding commitment proceedings under chapter 71.09 RCW, the sexually violent predator act (SVPA). The first issue is whether the fact finder must determine that the person facing commitment as a sexually violent predator (SVP) has serious difficulty controlling behavior and, if so, whether this determination must be a separate finding based upon a jury instruction. The second issue is whether the fact finder must consider less restrictive alternatives (LRAs) to total confinement during the initial commitment hearing and the scope of the LRAs to be considered. The third and final issue is whether actuarial instruments may be admitted to aid in the prediction of future dangerousness and, if these instruments are admitted, whether Frye¹ or Evidence Rule (ER) 702 is the appropriate test of their reliability.

After careful analysis, we resolve these issues as follows. First, we hold the fact finder need not make a separate finding that a person committed under chapter 71.09 RCW as an SVP has serious difficulty controlling behavior. Second, we reexamine our prior cases and hold that LRAs need not be considered at initial commitment and may be considered for the first time during the annual LRA review without violating principles of equal protection. We further hold that the LRAs to be considered are those provided for under the SVPA. Finally, we hold actuarial instruments may be admitted if they satisfy the requirements of ER 702.

Analysis

This case involves the consolidated petitions of six persons who have been civilly committed under chapter 71.09 RCW. Each petitioner presents a unique claim, but the three issues identified above exist to varying degrees for each of them. We begin by analyzing controlling precedent before applying the law to the facts of each petitioner's case.

I. Proof of Serious Difficulty Controlling Behavior

The first issue raised by the petitioners concerns whether the fact finder must determine that the person facing commitment as an SVP has serious difficulty controlling behavior under the United States Supreme Court's recent decision in Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 871, 151 L.Ed.2d 856 (2002). If this determination is required, we must also decide whether the determination must be a separate finding based upon a jury instruction. To resolve this issue, we begin by examining the progression of the United States Supreme Court's treatment of SVP commitment.

Freedom from bodily restraint has always been at the core of the liberty interest protected by the due process clause of the fourteenth amendment to the United States Constitution. Commitment for any reason constitutes a significant deprivation of liberty triggering due process protection. Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992). However, the civil commitment of an SVP satisfies due process if the SVP statute couples proof of dangerousness with proof of an additional element, such as "mental illness," because the additional element limits confinement to those who suffer from an impairment "rendering them dangerous beyond their control." Kansas v. Hendricks, 521 U.S. 346, 358, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (holding civil commitment of SVPs' constitutional under the Kansas sexually violent predator act (Kansas SVPA)).

The United States Supreme Court recently clarified Hendricks' mental illness element in SVP commitment proceedings as one requiring "proof of serious difficulty in controlling behavior." Crane, 534 U.S. at 413,122 S.Ct. 867. The Court advised this proof must be considered in the context of the features of the case, such as the nature of the psychiatric diagnosis and the severity of the mental abnormality. Crane, 534 U.S. at 413,122 S.Ct. 867. Although the United States Supreme Court agreed with the State of Kansas that the State need not prove a total lack of control, the Court rejected Kansas' position that it need not prove any lack of control. Put another way, the Court recognized that "lack of control" could not be demonstrated with precision, but required proof "sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him [or her] to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case." Crane, 534 U.S. at 413,122 S.Ct. 867. Significantly, the United States Supreme Court specified neither the quantum of proof that it required nor the means of establishing the proof. Instead, the Court's constitutional guidance in this area was given in the context of respondent Crane's specific circumstances. Crane, 534 U.S. at 414,122 S.Ct. 867.

Although the Crane opinion did not discuss the facts of the underlying SVP commitment in detail, the specific circumstances of the case illuminate the Court's reasoning. Crane was convicted of lewd and lascivious behavior and pleaded guilty to aggravated sexual battery for two incidents. In re Crane, 269 Kan. 578, 586, 7 P.3d 285 (2000). Prior to his parole, Kansas entered a petition to have Crane declared an SVP under the Kansas SVPA. Crane, 269 Kan. at 579, 7 P.3d 285.

The Kansas SVPA definition of mental illness is substantially the same as Washington's and permits the civil detention of a person convicted of any of several enumerated sexual offenses if it is proved beyond a reasonable doubt the individual suffers from a "mental abnormality"—a disorder affecting "emotional or volitional capacity which predisposes the person to commit sexually violent offenses"—or a "personality disorder," either of which "makes the person likely to engage in repeat acts of sexual violence." Kan. Stat. Ann. § 59-29-a02(a), (b) (Supp. 2002).²

Several psychologists examined Crane to determine whether he had a mental abnormality or personality disorder under the Kansas SVPA. The psychologists determined Crane suffered from exhibitionism and antisocial personality disorder. Crane, 269 Kan. at 579, 7 P.3d 285. The opinion of one of the examining psychologists was that the two disorders in combination placed Crane's condition within the range of disorders covered by the Kansas SVPA. However, the State's experts concluded that Crane's mental disorders did not impair his volitional control to the degree he could not control his dangerous behavior. Crane, 269 Kan. at 581, 7 P.3d 285.

Crane moved for summary judgment, arguing that Hendricks required the State to prove he was unable to control his violent behavior. Alternatively, Crane sought a jury instruction that would have required the jury to decide whether his diagnosed disorders had the effect of impairing his volitional control to such an extent that he was unable to control his behavior. Crane, 269 Kan. at 581, 7 P.3d 285. The trial court denied Crane's summary judgment motion and did not instruct the jury that it must find Crane lacked volitional control.³ Crane, 269 Kan. at 581, 7 P.3d 285. The jury found, beyond a reasonable doubt, that Crane was an SVP, and he was civilly committed. Crane, 269 Kan. at 586, 7 P.3d 285.

The Kansas Supreme Court reversed Crane's civil commitment, holding the trial court erred by refusing to instruct the jury it must find Crane's mental disability so impaired his volitional control that he was unable to restrain his dangerous sexual behavior. Crane, 269 Kan. at 586,7 P.3d 285. The court reasoned that because Crane had not been diagnosed with a mental abnormality, but a personality disorder, which "by definition does not include a volitional impairment," his civil commitment violated due process. Crane, 269 Kan. at 586,7 P.3d 285. The court held that, in the absence of a diagnosed volitional impairment, to satisfy its burden of proof the State must prove, not merely a likelihood that Crane would engage in repeat acts of sexual violence, but also an inability to control violent behavior. Crane, 269 Kan. at 585-86,7 P.3d 285. Because the sufficiency of the State's proof was a question for the jury, and the jury had not been instructed to make a finding that Crane could not control his behavior, the court reversed Crane's civil commitment and remanded for a new trial. Crane, 269 Kan. at 593,7 P.3d 285.

The Kansas Supreme Court based its holding solely on its reading of Hendricks.⁴ The court reasoned, "the plain language of the majority opinion in Hendricks" mandated a finding of volitional impairment. Crane, 269 Kan. at 586, 7 P.3d 285. The court supported its plain language argument by seizing on several Hendricks passages explicitly referring to volitional impairment, by relying on Hendricks' pedophilia diagnosis, which arguably demonstrated Hendricks' volitional impairment, and by referring to Hendricks' concession that when stressed he could not...