Washington's Sexually Violent Predator Law: A Deliberate Misuse of the Therapeutic State for Social Control

Washington's Sexually Violent Predator Law: A Deliberate Misuse of the Therapeutic State for Social Control John Q. La Fond* I. INTRODUCTION In 1990, the Washington legislature enacted a number of laws designed to protect the community against sex offenders and to assist the victims of sex crimes.' By far the most controversial of these laws is a sexual psychopath law2 that is unique in American history. Sexual psychopath laws authorize indeterminate commitment for treatment and control of sex offenders believed to suffer from a mental disease or disorder and thought to be dangerous. Although most states no longer * Professor of Law, University of Puget Sound. B.A. (1965), J.D. (1968), Yale University. The Author wishes to acknowledge the insightful comments, criticisms, and suggestions of David Boerner, Robert Boruchowitz, John Mitchell, Christopher Rideout, Jenifer Shaw, David Wexler, and the invaluable research and editorial assistance of Beth Fujimoto and Katey Miller. 1. The legislature passed a number of important laws relating to sex offenders. These provisions were enacted as part of the Community Protection Act, 1990 Wash. Laws ch. 3. Some of the key provisions are as follows: First, penalties for most sex crimes were increased by an average of 50%. See 1990 Wash. Laws ch. 3, §§ 701-702 (codified at WASH. REV. CODE §§ 9.94A.310 to -.320 (Supp. 1990-91)). Second, the period of postrelease supervision for certain sex offenders was extended. Id. §§ 301(3), 304(4) (codified at WASH. REV. CODE §§ 13.40.020(3), .210(4) (Supp. 1990-91)). Third, mandatory treatment for juvenile sex offenders was established. I& § 302(5) (codified at WASH. REV. CODE § 13.40.160(5) (Supp. 1990-91)). Fourth, outpatient treatment for juveniles was made available as a sentencing option. Id. § 302(5)(b)(ii) (codified at WASH. REV. CODE § 13.40.160(5)(b)(ii) (Supp. 1990-91)). Fifth, convicted sex offenders were required to register with the police. Id §§ 401-409 (codified at scattered sections of WASH. REV. CODE). The legislature also enacted a number of programs to assist victims of sex crimes. For example, the Community Protection Act established a grant program for the provision of community-based treatment services for sex crimes victims. Id. §§ 12011210 (codified at WASH. REV. CODE §§ 43.280.010 to -.902 (Supp. 1990-91)). Finally, the Act established an office for a crime victims' advocate. See id. § 1202. Although the governor vetoed this latter part of the bill, he promulgated an executive order establishing the office. See "Governor's Explanation of Partial Veto" following 1990 Wash. Laws ch. 3. 2. WASH. REV. CODE ch. 71.09 (Supp. 1990-91). 655 656 University of Puget Sound Law Review [Vol. 15:655 utilize these laws, a majority of states, including Washington,3 have used them in the past.4 The Washington law, however, is different from prior sexual psychopath laws in two fundamental respects. First, a person subject to commitment must serve his full prison term before he can be committed under this law. Thus, commitment is not in lieu of conviction and punishment; it is in addition to punishment.5 Second, the law does not require any allegation or proof of recent criminal wrongdoing, dangerous behavior, deteriorating mental state, or even inappropriate conduct before the state may seek possible lifetime confinement.' The prosecutor need only convince a judge or jury that the individual is a "sexually violent predator."7 To accomplish this task, the government must show simply that the individual is a "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."' In sum, a single conviction for a qualifying sex crime at any time in the past, together with a mental health profes3. WASH. REV. CODE ch. 71.06 (1989), repealed prospectively by 1984 Wash. Laws ch. 209 (codified at WASH. REV. CODE § 71.06.005 (1989)). 4. See generally SAMUEL JAN BRAKEL ET AL., THE MENTALLY DISABLED AND THE LAW 739-40 (3d ed. 1985). 5. Under the Washington law, petitions for commitment may be sought for those who have served or are serving prison terms, those who have been found incompetent to stand trial, or those who have been found not guilty by reason of insanity. WASH. REV. CODE § 71.09.030 (Supp. 1990-91). 6. Only the District of Columbia permits commitment under its sexual psychopath law without a previous filing of a criminal charge. D.C. CODE ANN. § 22-3504(a) (1989). Prosecutors rarely invoke commitment under this law against unwilling defendants. Commitment is occasionally used with agreement of both the prosecutor and defendant in connection with a pending criminal charge and the law requires a guilty plea in such cases. Prosecutors virtually never use the law to commit someone who is living in the community and is not charged with a sex offense. Telephone interview with David L. Norman, Staff Attorney, Public Defender Service, Mental Health Division, St. Elizabeths Hosptial, Washington, D.C. (June 30, 1992). 7. See WASH. REV. CODE § 71.09.060(1) (Supp. 1990-91). 8. Id. § 71.09.020(1). For a more thorough description of proceedings under the statute, see Brian G. Bodine, Comment, Washington's New Violent Sexual Predator Commitment System: An UnconstitutionalLaw and an Unwise Policy Choice, 14 U. PUGET SOUND L. REV. 105, 115-19 (1990). As discussed below, by not requiring recent evidence of dangerous behavior, the law increases the risk that experts will inaccurately predict that individuals are likely to commit crimes unless confined. The law also makes it virtually impossible for anyone who has committed a single qualifying sex crime to avoid commitment by obeying the law. 1992] Washington's Sexually Violent PredatorLaw 657 sional's purported diagnosis and prediction of "likely" reoffense at any time in the future, is legally sufficient 9 to incarcerate someone for the rest of his or her life in a psychiatric prison.1 0 This Article will demonstrate that the Washington legisla9. Both the Washington State Attorney General's Office and the King County Prosecuting Attorney's Office have adopted filing standards for deciding whether to seek commitment of any indiviudal as a sexually violent predator under the Washington law. Office of the Attorney General, Sexually Violent Predator Filing Standards, Final Draft (Dec. 18, 1990) (on file with the University of Puget Sound Law Review) [hereinafter Attorney General Standards]; Office of the Prosecuting Attorny, King County, Filing Standards, Washington Section 20 (on file with the University of Puget Sound Law Review) [hereinafter King County Standards]. Although the filing standards vary in minor details, they are substantially the same. The sections on filing considersations provide that normally, petitions are to be filed only when each of the enumerated circumstances have been (...truncated)