Background: Under the Community Protection Act of 1990, a sexually violent predator (SVP) may be civilly committed upon the expiration of that person's criminal sentence. An SVP is a person who has been convicted of, or charged with, a sexually violent offense and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory acts of sexual violence if not confined to a secure facility. When it appears that a person may meet the criteria of an SVP, the prosecuting attorney of the county where the person was convicted or charged or the Attorney General's Office, if so requested by the prosecuting attorney, may file a petition alleging that the person is an SVP.

In preparation for a trial as to whether the person is an SVP, the court must direct that the person be evaluated by a professional as to whether the person is an SVP. The court recently determined that a polygraph examination could not be compelled as part of this evaluation because the right to a polygraph is not specifically authorized by statute. (See In re Hawkins, ** Wn.2d **, 238 P.3d 1175 (2010))

If a person is found at trial to be an SVP, the state is authorized by statute to involuntarily commit a person to a secure treatment facility. Civil commitment as an SVP is for an indefinite period. Once a person is committed, DSHS must conduct annual reviews to determine whether the person's condition has so changed such that the person no longer meets the definition of an SVP; or conditional release to a less restrictive alternative (LRA) is in the best interest of the person and conditions can be imposed to protect the community. Even if DSHS's annual review does not result in a recommendation of any type of release, the person may nonetheless petition the court for conditional release or unconditional discharge.

If a committed person petitions for conditional release or unconditional discharge, the court must set a show cause hearing. The prosecuting agency must first show that the committed person continues to meet the definition of an SVP and that placement in an LRA is not appropriate. The committed person may then present evidence that he or she has so changed that he or she no longer meets commitment criteria or that conditional release to a less restrictive alternative is appropriate. If the court finds that the state has not met its prima facie case or that probable cause exists, the court must set a review hearing. In order to prevail, the state must once again prove beyond a reasonable doubt that the person meets the definition of a sexually violent predator or that conditional release is not appropriate. If the state does not meet its burden, the person must be released.

Up until 2004, the demonstration that the person had so changed focused on actual changes in the committed person due to health issues or success in treatment. However, in In re Young, 120 Wn. App. 753, 86 P.3d 810 (2004), Mr. Young argued that because he was over the age of 60, he was statistically unlikely to commit a new sex offense and, therefore, he had so changed that he or she no longer met the definition of a sexually violent predator. The court concluded that statistical evidence regarding a sex offender's lower likelihood to recidivate at an advanced age constituted sufficient probable cause entitling Mr. Young to a review hearing. The Legislature responded by passing legislation to clarify that demographic factors alone, such as age, were insufficient to constitute probable cause. In order to constitute probable cause, the person must show an identified physiological change or a change in the person's mental condition brought about by treatment.

In In re McCuiston, 169 Wn.2d 633, 238 P.3d 1147 (2010), the court found that the Legislature did not have the constitutional authority to require a more stringent standard at a review hearing than is required at initial commitment and struck down the statutory limitation of factors the court may look at in determining probable cause. As the result of this decision and the lower threshold required to show probable cause and qualify for a review hearing, approximately 40 petitions for review hearings have been filed to date.

Washington's civil commitment law for SVPs includes many protections that are more aligned with criminal law than that of civil commitment. For example, current law requires a showing beyond a reasonable doubt by a unanimous jury in order to commit a person as an SVP. Civil commitment in general requires a burden of clear and convincing evidence and a jury verdict of ten to two. A significant number of states and the federal government under the Adam Walsh Act also apply these standards to civil commitment for SVPs.

Summary of Bill: In conjunction with an evaluation of a person alleged to be an SVP, the judge must require the person to complete any or all of the following tests requested by the evaluator: a clinical interview; psychological testing; plethysmograph testing; or a polygraph examination. The judge may order the person to complete any other procedures or tests relevant to the evaluation.

An initial commitment hearing may only be continued one time up to 12 months. The court may not grant further continuances unless the court finds the existence of extraordinary circumstances.

Discovery rules for SVP trial proceedings are specified. In particular:

the party presenting testimony must provide a report from the testifying expert summarizing the expert's opinions;
a party may take no more than ten depositions which are limited in time; depositions of experts, state personnel, and victims must occur by telephone;
the state must disclose general facts supporting its allegation that the person is an SVP with the petition for civil commitment; the person must disclose any voluntary treatment options in the community 40 days prior to trial or 120 days prior if the trial is continued;
a person petitioning for release to an LRA must disclose any proposed LRA at the show cause hearing; and
interrogratories and requests for admission do not apply to SVP proceedings.

The state's burden of proof for the initial commitment hearing and review hearing is changed from beyond a reasonable doubt to clear and convincing. When a determination is made by the jury, a verdict is reached when ten of 12 jurors agree. In evaluating the person's mental condition and risk to reoffend, the fact finder may consider any prior or existing sex offender treatment efforts the person has engaged in, or refused to engage in, prior to trial. The fact finder may only consider placement conditions and voluntary treatment options that would exist for the person if unconditionally released from detention on the SVP petition.

The state is required to conduct a review of the person's mental condition once every two years rather than annually. A person may retain, or if the person is indigent, the court may appoint, his or her own expert for evaluation only if the person participating in the most recent interview and evaluation completed by the department.

At a show cause hearing to determine whether a person is entitled to a review hearing, the state has the initial burden to prove a prima facie case that the person meets the definition of an SVP or release to an LRA is not appropriate; if the state meets its burden, the committed person must show by a preponderance of the evidence that his or her condition has so changed so as to justify conditional or unconditional release. Only documentary evidence may be submitted at the show cause hearing. If the state does not meet its prima facie burden or the committed person meets its burden by a preponderance of the evidence, the court must order a review hearing.

The burden of proof at the review hearing depends on the remedy sought and whether the secretary has authorized the petition:

If the issue is whether the person should be unconditionally discharged, the committed person must prove by a preponderance of the evidence that the person's condition has so changed that he or she no longer meets the definition of an SVP;
If the issue is whether the person should be conditionally released to an LRA and the secretary has authorized the petition, the prosecuting agency must prove by clear and convincing evidence that conditional release to an LRA is not in the person's best interest or the public cannot be adequately protected;

If the issue is whether the person should be conditionally released to an LRA and the secretary has not authorized the petition, the committed person must prove by a preponderance of the evidence that conditional release is in the person's best interest and the public can be adequately protected.

This act applies to all individuals committed or awaiting commitment under chapter 71.09 RCW either on, before, or after the effective date of this section, whether confined in a secure facility or on conditional release.

Staff Summary of Public Testimony: PRO: This bill changes the procedures related to civil commitment. Other states have passed legislation based on Washington's model, but have departed from the Washington criteria where it has simply become too expensive. Commitment is a civil process and therefore procedures do not need to rise to the level of a criminal trial. For example, the defense has brought in experts from Canada and New Zealand at a cost of $500 to $600 per hour. As a result, the defense bar outspends the prosecution by nearly 2:1. This bill will save costs by bringing the law into line with other civil commitment provisions.

In September, the Supreme Court reversed a provision that encouraged treatment. Since that time, treatment has gone down and approximately 30 cases have been ordered for trial. The bill requires an SVP to show by a preponderance of evidence at the show cause hearing in order to obtain a new trial. There are many cost savings provisions in this bill and they all make a great deal of sense. The Attorney General's office is not currently staffed for the number of cases that have been ordered. It is important that the SVP actually participate in the annual review. The evaluator's conclusions are diluted every year with less information and the SVP can simply wait it out until he will qualify for a new hearing. A polygraph will not necessarily be required in every case, but the statute would allow this to be required where the information is needed.

CON: The intent section which states that the annual review system creates the consequence of removing the incentive to treatment is simply not true. There is no evidence that this is happening. It is just the opposite. There is more incentive to participate in an annual review system rather than a biennial system. When you force an individual into testing or forensic interviews, you end up with invalid test results. We are in support of cutting costs and reducing litigation. The style of litigation of the prosecutor's office is often designed to ratchet up defense costs. For example, we will get extensive lists of witnesses that do not include contact information and a fraction of which may be eventually called at trial. This creates a circumstance where the defense must interview and/or depose all of these witnesses at extensive cost to the state. Both the defense and prosecution are very good at their job, but there is a culture of unconstitutionality on the part of some prosecutors' offices. The court has made it clear that RCW 71.09 is constitutional by a slim margin. The state has lost many of its most recent appeals and they are now seeking to have those findings reversed in the Legislature. Many of the things in this bill are a violation of the separation of powers. This bill is a radical rewriting of RCW 71.09 and many of these amendments will end up costing the state more money. It doesn't make sense to reduce the burden of proof when the prosecutors have admitted that they rarely lose these cases.

The superior court judges have issues with the provision that removes judicial discretion limits to order more than one continuance. Judges want to retain the ability to order a continuance based on fairness and judicial equity. Trial courts would like to maintain sound discretion when necessary because of the unavailability of the parties or the judicial calendar.