Civil Commitment of Sexually Violent Predators.
A sexually violent predator (SVP) is a person who has been convicted of, found not guilty by reason of insanity of, or found incompetent to stand trial for a crime of sexual violence, 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 in a secure facility.
Petitions for Civil Commitment.
A county prosecuting attorney, or the Attorney General if requested by the county prosecuting attorney, may petition for indefinite civil commitment of a person as an SVP when it appears that a person:
Filing a petition for indefinite civil commitment triggers a probable cause determination, followed by a full evidentiary trial. At trial, the state has the burden of proving beyond a reasonable doubt that the person is an SVP. If found to be an SVP, the person is committed to the custody of the Department of Social and Health Services (DSHS) for control, care, and treatment at the Special Commitment Center on McNeil Island.
Determination of Whether to Petition for Civil Commitment.
When it appears that a person may meet the criteria of an SVP, the agency with jurisdiction must make a referral and provide certain relevant information to the applicable county prosecuting attorney and the Attorney General. The county prosecuting attorney is authorized to obtain all records relating to the person if such records are deemed necessary to fulfill the county prosecuting attorney's duties. The county prosecuting attorney is also authorized to utilize the inquiry judge procedures under state law to compel the production of any records necessary to determine whether to petition for indefinite civil commitment of the person as an SVP. The Attorney General may be granted the same authorizations if requested by the county prosecuting attorney.
Conditional Release to a Less Restrictive Alternative.
The DSHS must conduct an annual examination of the mental condition of each person civilly committed as an SVP to determine whether the person's condition has changed. If an SVP's condition changes such that conditional release to a less restrictive alternative (LRA) is in the best interest of the person and conditions can be imposed that adequately protect the community, then the DSHS must authorize the person to petition the court. An SVP may also petition the court without the DSHS's approval. A petition for conditional release to an LRA must include a proposed placement plan with a residence, treatment plan, and other conditions. The court must make certain findings before granting an SVP a conditional release to an LRA, including that the person will be under supervision of the Department of Corrections (DOC) and is willing to comply with supervision requirements.
Community Custody.
Community custody is the portion of a person's criminal sentence served in the community under supervision of the DOC following the person's release from confinement. Courts are required to order community custody for persons convicted of certain offenses. Alternatively, a person convicted of certain offenses may qualify for a special sentencing alternative, where the person receives a reduced or waived term of confinement and instead serves a longer term of community custody.
A person in community custody is subject to conditions imposed by the DOC and the court. The DOC may establish and modify the person's conditions of community custody based on risks to community safety, and issue an arrest warrant if the person violates those conditions. A person who violates conditions of community custody may be subject to sanctions depending on the type of violation, the underlying offense, and other conditions.
Supervision Compliance Credit.
A person may earn supervision compliance credit to reduce the period of time the person is required to serve in community custody. Supervision compliance credit is awarded for complying with supervision terms and making progress towards the goals of an individualized supervision case plan, including:
Certain persons do not qualify for supervision compliance credit, including any person completing community custody as part of a sentencing alternative, any person released and currently being supervised by the Indeterminate Sentence Review Board, and any person subject to supervision under the Interstate Compact for Adult Offender Supervision.
Civil Commitment of Sexually Violent Predators.
County prosecuting attorneys and the Attorney General are authorized to utilize the inquiry judge procedures to compel the production of records relevant to, rather than necessary for, determining whether to petition for the civil commitment of a person as a sexually violent predator (SVP). County prosecuting attorneys and the Attorney General are also authorized to execute and serve civil investigative demands to any public agency that may be in possession, custody, or control of specified documentary material believed to be relevant to the determination of whether to seek the civil commitment of a person as an SVP, in order to compel the public agency served to produce such documentary material and permit inspection and copying. Civil investigative demands:
Supervision Compliance Credit.
A person may not earn supervision compliance credit on any cause served concurrently with a less restrictive alternative subject to supervision by the Department of Corrections.
The substitute bill: (1) eliminates the provisions of the original bill related to modifying certain statutory requirements, restrictions, and procedures for the civil commitment of sexually violent predators (SVPs), and expanding the definitions of sexually violent offense and recent overt act; (2) restores the provision of current law authorizing county prosecuting attorneys and the Attorney General to utilize the inquiry judge procedures, and provides that such procedures may be used to compel the production of records relevant to, rather than necessary for, determining whether to petition for a person's civil commitment as an SVP; (3) authorizes county prosecuting attorneys and the Attorney General, rather than only the Attorney General, to issue civil investigative demands as part of determining whether to petition for a person's civil commitment as an SVP; and (4) limits the scope of civil investigate demands to only compelling public agencies to produce specific documentary material, rather than compelling any person to produce specific documentary material, answer interrogatories, or give oral testimony.
(In support) This bill strikes a balance between public safety and community concerns by addressing the need for treatment and care of sexually violent predators (SVPs), clarifying elements of related legislation enacted in 2021, and giving the Department of Social and Health Services (DSHS) and the Special Commitment Center (SCC) more opportunities to make determinations. Sexually violent predators are an inherently high-risk, high-needs population. One purpose of the civil commitment system is to provide SVPs with treatment and a path for safe reintegration, which may be accomplished through less restrictive alternatives (LRAs) where SVPs continue to receive outpatient treatment in a controlled environment. The current process for conditional release to LRAs and the associated litigation are sources of confusion for judges. This bill ensures that the civil commitment process operates deliberately and smoothly with multiple clear steps before an individual is released, which will yield better placements that local communities are more likely to recognize and accept as necessary. The Attorney General will also be authorized to gather information needed to make thoughtful decisions before filing civil commitment petitions, and an existing loophole that allows SVPs to earn community custody credit will be closed.
(Opposed) This bill is not a clarification of existing law; it is a massive change that came out of nowhere without consulting necessary stakeholders. The DSHS can barely run the SCC on McNeil Island, which has already lost about half of its staff. The DSHS should not be given more responsibility and money. This bill is rushed and unvetted, undoes long deliberated changes, and risks rendering the underlying civil commitment statutes unconstitutional.
Virtually all recent LRA placements have been agreed. It is uncontested that persons on LRA placements are far safer than sex offenders released from prison on a day-to-day basis, and are more heavily supervised than any other types of offenders. Less restrictive alternatives are effective tools for transitions, treatment, and community safety. Currently, county prosecuting attorneys and the Attorney General may petition for a person's civil commitment as soon as there is probable cause. However, this bill creates an imbalance where the same person would be forced to wait for up to a year before being authorized to petition for release even if there is probable cause for a change in circumstances. People will be warehoused and delayed for no reason. This bill also limits what the trier of fact may consider when evaluating a proposed LRA placement. Judges and juries should be given all available options, rather than having those options limited arbitrarily.
This bill also seeks to give the state unfettered access to information, requiring residents to produce whatever the government wants without any judicial oversight or compensation. The existing inquiry judge procedures already produce thousands of pages of discovery. It is unclear what the state needs that it does not already have access to.
(Other) This bill may undermine progress made with placing people in safe and secure LRAs. The state's current approach to civil commitment is considered a national model that other jurisdictions have looked at emulating, which is something the state should be proud of. All LRAs have been agreed for the past five years, which shows that defense attorneys and social workers have considerable experience putting together LRA placements. Placing all LRA planning in the hands of the SCC will result in more trials and appeals, necessitate the hiring of additional contract attorneys, and stress an already overburdened public defense system. This bill also appears to violate longstanding case law, which may prompt further litigation. The Office of Public Defense will incur costs related to recruiting, training, and retaining attorneys, and the current expert rates and caps imposed on defense counsel are grossly inadequate to support litigation going forward.
(In support) Representative Mari Leavitt, prime sponsor; Kerry Werner, Attorney General's Office; and Steve Worthington, City of University Place, WA.