BILL REQ. #:  S-1380.2 

READ FIRST TIME 02/21/11.   

     AN ACT Relating to sexually violent predators; amending RCW 71.09.040, 71.09.060, 71.09.070, 71.09.090, 71.09.094, and 71.09.098; adding a new section to chapter 71.09 RCW; creating new sections; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   (1) Both federal and Washington courts have recognized on many occasions that the commitment process in chapter 71.09 RCW is a civil process. Nevertheless, Washington has continued to provide extra constitutional rights in chapter 71.09 RCW more associated with criminal law processes. The legislature is convinced that these processes have at times led to a focus on litigation rather than treatment.
     (2) The legislature intends to retain the high bar of reasonable doubt for a person's original commitment, but eliminate the requirement for a unanimous jury verdict normally reserved for criminal trials. The legislature finds that once it is established that a person is a sexually violent predator, a subsequent trial on the issue of whether the person continues to meet the sexually violent predator definition should not be held unless there is sufficient evidence that demonstrates a change in the person's condition since his or her last civil commitment trial proceeding. The legislature is also convinced that the clear and convincing evidence standard of proof used in other civil commitment proceedings in Washington should be equally applicable here.

Sec. 2   RCW 71.09.040 and 2009 c 409 s 4 are each amended to read as follows:
     (1) Upon the filing of a petition under RCW 71.09.030, the judge shall determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator. If such determination is made the judge shall direct that the person be taken into custody.
     (2)(a) Within seventy-two hours after a person is taken into custody pursuant to subsection (1) of this section, the court shall provide the person with notice of, and an opportunity to appear in person at, a hearing to contest probable cause as to whether the person is a sexually violent predator.
     (b) In order to assist the person at the hearing, within twenty-four hours of service of the petition, the prosecuting agency shall provide to the person or his or her counsel a copy of all materials provided to the prosecuting agency by the referring agency pursuant to RCW 71.09.025, or obtained by the prosecuting agency pursuant to RCW 71.09.025(1) (c) and (d).
     (c) At ((this)) the hearing, the court shall (((a))) (i) verify the person's identity, and (((b))) (ii) determine whether probable cause exists to believe that the person is a sexually violent predator. ((At the probable cause hearing,))
     (d) The state may rely upon the petition and certification for determination of probable cause filed pursuant to RCW 71.09.030. The state may supplement this with additional documentary evidence or live testimony.
     (e) The person may be held in total confinement at the county jail until the trial court renders a decision after the conclusion of the seventy-two hour probable cause hearing. The county shall be entitled to reimbursement for the cost of housing and transporting the person pursuant to rules adopted by the ((secretary)) department.
     (3) At the probable cause hearing, the person shall have the following rights in addition to the rights previously specified: (a) To be represented by counsel; (b) to present evidence on his or her behalf; (c) to cross-examine witnesses who testify against him or her; and (d) to view and copy all petitions and reports in the court file. The court must permit a witness called by either party to testify by telephone. ((Because this))
     (4) The probable cause hearing is a special proceeding((,)) and therefore discovery pursuant to RCW 71.09.070 or the civil rules shall not occur until after the hearing has been held and the court has issued its decision.
     (((4))) (5)(a) If the probable cause determination is made, the judge shall direct that the person be transferred to an appropriate facility for an evaluation as to whether the person is a sexually violent predator. The evaluation shall be conducted by a person deemed to be professionally qualified, pursuant to rules developed by the department, to conduct such an examination ((pursuant to rules developed by the department of social and health services)).
     (b) The judge shall require the person to complete any or all of the following procedures or tests if requested by the evaluator: (i) A clinical interview; (ii) psychological testing; (iii) plethysmograph testing; and (iv) polygraph testing. The judge may order the person to complete any other procedures and tests relevant to the evaluation.
     (c) The evaluation shall be completed regardless of whether a previous evaluation was performed before filing the petition for civil commitment.
     (d) The evaluation shall be conducted pursuant to rules developed by the department of social and health services. In adopting ((such)) rules pursuant to this section, the department ((of social and health services)) shall consult with the department of health and the department of corrections.
     (e) In no event shall the person be released from confinement prior to trial. ((A witness called by either party shall be permitted to testify by telephone.))

Sec. 3   RCW 71.09.060 and 2009 c 409 s 6 are each amended to read as follows:
     (1)(a) The court or jury shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator.
     (b) When the determination is made by a jury, a verdict is reached when ten of twelve jurors agree.
     (2)(a) In determining whether or not the person would be likely to engage in predatory acts of sexual violence if not confined in a secure facility, the fact finder may consider only placement conditions and voluntary treatment options that would exist for the person if unconditionally released from detention on the sexually violent predator petition. The community protection program under RCW 71A.12.230 may not be considered as a placement condition or treatment option available to the person if unconditionally released from detention on a sexually violent predator petition. ((When the determination is made by a jury, the verdict must be unanimous.))
     (b) If, on the date that the petition is filed, the person was living in the community after release from custody, the state must also prove beyond a reasonable doubt that the person had committed a recent overt act. If the state alleges that the prior sexually violent offense that forms the basis for the petition for commitment was an act that was sexually motivated as provided in RCW 71.09.020(((15))) (17)(c), the state must prove beyond a reasonable doubt that the alleged sexually violent act was sexually motivated as defined in RCW 9.94A.030.
     (3)(a) If the court or jury determines that the person is a sexually violent predator, the person shall be committed to the custody of the department of social and health services for placement in a secure facility operated by the department of social and health services for control, care, and treatment until such time as: (((a))) (i) The person's condition has so changed that the person no longer meets the definition of a sexually violent predator; or (((b))) (ii) conditional release to a less restrictive alternative as set forth in RCW 71.09.092 is in the best interest of the person and conditions can be imposed that would adequately protect the community.
     (b) If the court or ((unanimous)) jury decides that the state has not met its burden of proving that the person is a sexually violent predator, the court shall direct the person's release.
     (c) If the jury is unable to reach a ((unanimous)) verdict, the court shall declare a mistrial and set a retrial within forty-five days of the date of the mistrial unless the prosecuting agency earlier moves to dismiss the petition. The retrial may be continued upon the request of either party accompanied by a showing of good cause, or by the court on its own motion in the due administration of justice provided that the respondent will not be substantially prejudiced. In no event may the person be released from confinement prior to retrial or dismissal of the case.
     (((2))) (4)(a) If the person charged with a sexually violent offense has been found incompetent to stand trial, and is about to be or has been released pursuant to RCW 10.77.086(4), and his or her commitment is sought pursuant to ((subsection (1) of)) this section, the court shall first hear evidence and determine whether the person did commit the act or acts charged if the court did not enter a finding prior to dismissal under RCW 10.77.086(4) that the person committed the act or acts charged.
     (b) The hearing on this issue must comply with all the procedures specified in this section. In addition, the rules of evidence applicable in criminal cases shall apply, and all constitutional rights available to defendants at criminal trials, other than the right not to be tried while incompetent, shall apply.
     (c) After hearing evidence ((on this issue)), the court shall make specific findings on whether the person did commit the act or acts charged, the extent to which the person's incompetence or developmental disability affected the outcome of the hearing, including its effect on the person's ability to consult with and assist counsel and to testify on his or her own behalf, the extent to which the evidence could be reconstructed without the assistance of the person, and the strength of the prosecution's case.
     (d) If((, after the conclusion of the hearing on this issue,)) the court finds, beyond a reasonable doubt, that the person did commit the act or acts charged, it shall enter a final order, appealable by the person((,)) on that issue, and may proceed to consider whether the person should be committed pursuant to this section.
     (((3))) (5) Except as otherwise provided in this chapter, the state shall comply with RCW 10.77.220 while confining the person. During all court proceedings where the person is present, the person shall be detained in a secure facility. If the proceedings last more than one day, the person may be held in the county jail for the duration of the proceedings, except the person may be returned to the department's custody on weekends and court holidays if the court deems such a transfer feasible. The county shall be entitled to reimbursement for the cost of housing and transporting the person pursuant to rules adopted by the secretary. The department shall not place the person, even temporarily, in a facility on the grounds of any state mental facility or regional habilitation center because these institutions are insufficiently secure for this population.
     (((4))) (6) A court has jurisdiction to order a less restrictive alternative placement only after a hearing ordered pursuant to RCW 71.09.090 following initial commitment under this section and in accord with the provisions of this chapter.

Sec. 4   RCW 71.09.070 and 2001 c 286 s 8 are each amended to read as follows:
     (1) Each person committed under this chapter shall have a current examination of his or her mental condition made by the department ((of social and health services)) at least once every year. ((The annual report shall))
     (2) The examination shall include an in-person interview of the committed person by the evaluator.
     (3) The evaluator shall prepare a report that includes consideration of whether:
     (a) The committed person currently meets the definition of a sexually violent predator ((and whether));
     (b) Conditional release to a less restrictive alternative is in the best interest of the person and;
     (c) Conditions can be imposed that would adequately protect the community.
     (4) The department ((of social and health services)) shall file ((this periodic)) the report with the court that committed the person under this chapter. The report shall be in the form of a declaration or certification in compliance with the requirements of RCW 9A.72.085 and shall be prepared by a professionally qualified person as defined by rules adopted by the secretary. A copy of the report shall be served on the prosecuting agency involved in the initial commitment and upon the committed person and his or her counsel.
     (5) Provided that the committed person participated in the most recent interview and evaluation completed by the department, the committed person may retain, or if he or she is indigent and so requests, the court may appoint a qualified expert or a professional person to examine him or her, and such expert or professional person shall have access to all records concerning the person.
     (6) The committed person shall provide proof of compliance with this section to the court when requesting appointment of an expert or professional person.

Sec. 5   RCW 71.09.090 and 2010 1st sp.s. c 28 s 2 are each amended to read as follows:
     (1) If the secretary determines that the person's condition has so changed that either: (a) The person no longer meets the definition of a sexually violent predator; or (b) conditional release to a less restrictive alternative is in the best interest of the person and conditions can be imposed that adequately protect the community, the secretary shall authorize the person to petition the court for conditional release to a less restrictive alternative or unconditional discharge. The petition shall be filed with the court and served upon the prosecuting agency responsible for the initial commitment. The court, upon receipt of the petition for conditional release to a less restrictive alternative or unconditional discharge, shall within forty-five days order a hearing.
     (2)(a) Nothing contained in this chapter shall prohibit the person from otherwise petitioning the court for conditional release to a less restrictive alternative or unconditional discharge without the secretary's approval. The secretary shall provide the committed person with an annual written notice of the person's right to petition the court for conditional release to a less restrictive alternative or unconditional discharge over the secretary's objection. The notice shall contain a waiver of rights. The secretary shall file the notice and waiver form and the ((annual)) report prepared pursuant to RCW 71.09.070 with the court. If the person does not affirmatively waive the right to petition, the court shall set a show cause hearing to determine whether probable cause exists to warrant a hearing on whether the person's condition has so changed that: (i) He or she no longer meets the definition of a sexually violent predator; or (ii) conditional release to a proposed less restrictive alternative would be in the best interest of the person and conditions can be imposed that would adequately protect the community.
     (b) The committed person shall have a right to have an attorney represent him or her at the show cause hearing, which may be conducted solely on the basis of affidavits or declarations, but the person is not entitled to be present at the show cause hearing. At the show cause hearing, the prosecuting ((attorney or attorney general)) agency shall present prima facie evidence establishing that the committed person continues to meet the definition of a sexually violent predator and that a less restrictive alternative is not in the best interest of the person and conditions cannot be imposed that adequately protect the community. In making this showing, the ((state)) prosecuting agency may rely exclusively upon the ((annual)) report prepared pursuant to RCW 71.09.070. ((The committed person may present responsive affidavits or declarations to which the state may reply.))
     (c) If the prosecuting agency meets its foregoing prima facie burden, the committed person shall then bear the burden to show, by a preponderance of the evidence, that his or her condition has so changed since entry of the most recent commitment order that he or she no longer meets the definition of a sexually violent predator, or that a proposed less restrictive alternative is in his or her best interest and includes conditions that can be imposed that adequately protect the community. The prosecuting agency may reply. Absent a finding of good cause by the trial court, only documentary evidence may be submitted to the court at the show cause hearing. The court shall not consider release to a less restrictive alternative unless a proposal meeting the conditions of RCW 71.09.092 is presented to the court at the show cause hearing.
     (d) If the court at the show cause hearing determines that either: (i) The ((state)) prosecuting agency has failed to present prima facie evidence that the committed person continues to meet the definition of a sexually violent predator and that no proposed less restrictive alternative is in the best interest of the person and conditions cannot be imposed that would adequately protect the community; or (ii) ((probable cause exists to believe)) there is a preponderance of evidence that the person's condition has so changed that: (A) The person no longer meets the definition of a sexually violent predator; or (B) release to a proposed less restrictive alternative would be in the best interest of the person and conditions can be imposed that would adequately protect the community, then the court shall set a hearing on either or both issues.
     (((d))) (e) If the court has not previously considered the issue of release to a less restrictive alternative, either through a trial on the merits or through the procedures set forth in RCW 71.09.094(1), the court shall consider whether release to a less restrictive alternative would be in the best interests of the person and conditions can be imposed that would adequately protect the community, without considering whether the person's condition has changed. ((The court may not find probable cause for a trial addressing less restrictive alternatives unless a proposed less restrictive alternative placement meeting the conditions of RCW 71.09.092 is presented to the court at the show cause hearing.))
     (3)(a) At the hearing resulting from subsection (1) or (2) of this section, the committed person shall be entitled to be present and to the benefit of all constitutional protections that were afforded to the person at the initial commitment proceeding. The prosecuting agency shall represent the state and shall have a right to a jury trial and to have the committed person evaluated by experts chosen by the state. The department is responsible for the cost of one expert or professional person to conduct an evaluation on the prosecuting agency's behalf. The committed person shall also have the right to a jury trial and the right to have experts evaluate him or her on his or her behalf and the court shall appoint an expert if the person is indigent and requests an appointment. Evaluations pursuant to this section shall be subject to all requirements specified in RCW 71.09.040.
     (b) Whenever any person is subjected to an evaluation under (a) of this subsection, the department is responsible for the cost of one expert or professional person conducting an evaluation on the person's behalf. When the person wishes to be evaluated by a qualified expert or professional person of his or her own choice, such expert or professional person must be permitted to have reasonable access to the person for the purpose of such evaluation, as well as to all relevant medical and psychological records and reports. In the case of a person who is indigent, the court shall, upon the person's request, assist the person in obtaining an expert or professional person to perform an evaluation or participate in the hearing on the person's behalf. Nothing in this chapter precludes the person from paying for additional expert services at his or her own expense.
     (c) If the issue at the hearing is whether the person should be unconditionally discharged, the burden of proof shall be upon the ((state)) prosecuting agency to prove ((beyond a reasonable doubt)) by clear and convincing evidence that the committed person's condition remains such that the person continues to meet the definition of a sexually violent predator. Evidence of the prior commitment trial and disposition is admissible. The recommitment proceeding shall otherwise proceed as set forth in RCW 71.09.050 and 71.09.060.
     (d) If the issue at the hearing is whether the person should be conditionally released to a less restrictive alternative, the burden of proof at the hearing shall be upon the ((state)) prosecuting agency to prove ((beyond a reasonable doubt)) by clear and convincing evidence that conditional release to any proposed less restrictive alternative either:
     (i) Is not in the best interest of the committed person; or
     (ii) Does not include conditions that would adequately protect the community. ((Evidence of the prior commitment trial and disposition is admissible.))
     (e) Evidence of the prior commitment trial and disposition is admissible in any proceeding under this subsection. The proceeding shall otherwise proceed as set forth in RCW 71.09.050 and 71.09.060.
     (4)(a) ((Probable cause)) Sufficient evidence exists to believe that a person's condition has "so changed," under subsection (2) of this section, only when evidence exists, since the person's last commitment trial, or less restrictive alternative revocation proceeding, of a substantial change in the person's physical or mental condition such that the person either no longer meets the definition of a sexually violent predator or that a conditional release to a less restrictive alternative is in the person's best interest and conditions can be imposed to adequately protect the community.
     (b) A new trial proceeding under subsection (3) of this section may be ordered, or a trial proceeding may be held, only when there is current evidence from a licensed professional of one of the following and the evidence presents a change in condition since the person's last commitment trial proceeding:
     (i) An identified physiological change to the person, such as paralysis, stroke, or dementia, that renders the committed person unable to commit a sexually violent act and this change is permanent; or
     (ii) A change in the person's mental condition brought about through positive response to continuing participation in treatment which indicates that the person meets the standard for conditional release to a less restrictive alternative or that the person would be safe to be at large if unconditionally released from commitment.
     (c) For purposes of this section, a change in a single demographic factor, without more, does not establish ((probable cause)) sufficient evidence for a new trial proceeding under subsection (3) of this section. As used in this section, a single demographic factor includes, but is not limited to, a change in the chronological age, marital status, or gender of the committed person.
     (5) The jurisdiction of the court over a person civilly committed pursuant to this chapter continues until such time as the person is unconditionally discharged.

Sec. 6   RCW 71.09.094 and 2001 c 286 s 11 are each amended to read as follows:
     (1) Upon the conclusion of the evidence in a hearing held pursuant to RCW 71.09.090 or through summary judgment proceedings prior to such a hearing, if the court finds that there is no legally sufficient evidentiary basis for a reasonable jury to find that the conditions set forth in RCW 71.09.092 have been met, the court shall grant a motion by the state for a judgment as a matter of law on the issue of conditional release to a less restrictive alternative.
     (2) Whenever the issue of conditional release to a proposed less restrictive alternative is submitted to the jury, the court shall instruct the jury to return a verdict in substantially the following form: Has the state proved ((beyond a reasonable doubt)) by clear and convincing evidence that either: (a) The proposed less restrictive alternative is not in the best interests of respondent; or (b) the proposed less restrictive alternative does not include conditions that would adequately protect the community? Answer: Yes or No.
     (3) Whenever the issue of unconditional release is submitted to the jury, the court shall instruct the jury to return a verdict in substantially the following form: Has the state proved by clear and convincing evidence that the committed person's condition remains such that the person continues to meet the definition of a sexually violent predator? Answer: Yes or No.

Sec. 7   RCW 71.09.098 and 2009 c 409 s 11 are each amended to read as follows:
     (1) Any service provider submitting reports pursuant to RCW 71.09.096(6), the supervising community corrections officer, the prosecuting agency, or the secretary's designee may petition the court for an immediate hearing for the purpose of revoking or modifying the terms of the person's conditional release to a less restrictive alternative if the petitioner believes the released person: (a) Violated or is in violation of the terms and conditions of the court's conditional release order; or (b) is in need of additional care, monitoring, supervision, or treatment.
     (2) The community corrections officer or the secretary's designee may restrict the person's movement in the community until the petition is determined by the court. The person may be taken into custody if:
     (a) The supervising community corrections officer, the secretary's designee, or a law enforcement officer reasonably believes the person has violated or is in violation of the court's conditional release order; or
     (b) The supervising community corrections officer or the secretary's designee reasonably believes that the person is in need of additional care, monitoring, supervision, or treatment because the person presents a danger to himself or herself or others if his or her conditional release under the conditions imposed by the court's release order continues.
     (3)(a) Persons taken into custody pursuant to subsection (2) of this section shall:
     (i) Not be released until such time as a hearing is held to determine whether to revoke or modify the person's conditional release order and the court has issued its decision; and
     (ii) Be held in the county jail, at a secure community transition facility, or at the total confinement facility, at the discretion of the secretary's designee.
     (b) The court shall be notified before the close of the next judicial day that the person has been taken into custody and shall promptly schedule a hearing.
     (4) Before any hearing to revoke or modify the person's conditional release order, both the prosecuting agency and the released person shall have the right to request an immediate ((mental examination)) evaluation of the released person. If the conditionally released person is indigent, the court shall, upon request, assist him or her in obtaining a qualified expert or professional person to conduct the ((examination)) evaluation. Evaluations pursuant to this section shall be subject to all requirements specified in RCW 71.09.040.
     (5) At any hearing to revoke or modify the conditional release order:
     (a) The prosecuting agency shall represent the state, including determining whether to proceed with revocation or modification of the conditional release order;
     (b) Hearsay evidence is admissible if the court finds that it is otherwise reliable; and
     (c) The state shall bear the burden of proving by a preponderance of the evidence that the person has violated or is in violation of the court's conditional release order or that the person is in need of additional care, monitoring, supervision, or treatment.
     (6)(a) If the court determines that the state has met its burden referenced in subsection (5)(c) of this section, and the issue before the court is revocation of the court's conditional release order, the court shall consider the evidence presented by the parties and the following factors relevant to whether continuing the person's conditional release is in the person's best interests or adequate to protect the community:
     (i) The nature of the condition that was violated by the person or that the person was in violation of in the context of the person's criminal history and underlying mental conditions;
     (ii) The degree to which the violation was intentional or grossly negligent;
     (iii) The ability and willingness of the released person to strictly comply with the conditional release order;
     (iv) The degree of progress made by the person in community-based treatment; and
     (v) The risk to the public or particular persons if the conditional release continues under the conditional release order that was violated.
     (b) Any factor alone, or in combination, shall support the court's determination to revoke the conditional release order.
     (7) If the court determines the state has met its burden referenced in subsection (5)(c) of this section, and the issue before the court is modification of the court's conditional release order, the court shall modify the conditional release order by adding conditions if the court determines that the person is in need of additional care, monitoring, supervision, or treatment. The court has authority to modify its conditional release order by substituting a new treatment provider, requiring new housing for the person, or imposing such additional supervision conditions as the court deems appropriate.
     (8) A person whose conditional release has been revoked shall be remanded to the custody of the secretary for control, care, and treatment in a total confinement facility as designated in RCW 71.09.060(1). The person is thereafter eligible for conditional release only in accord with the provisions of RCW 71.09.090 and related statutes.

NEW SECTION.  Sec. 8   A new section is added to chapter 71.09 RCW to read as follows:
     The provisions of this chapter shall be liberally construed to serve the remedial purposes of the chapter, including protection of the public from sexually violent predators and the provision of treatment for sexually violent predators.

NEW SECTION.  Sec. 9   This act applies to all individuals currently 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.

NEW SECTION.  Sec. 10   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION.  Sec. 11   This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.