Liability to injured third parties; special relationships; duty of care

Gottschalk v. Pomeroy Development, Inc., 893 N.W.2d 579 (Iowa 2017)

The Iowa Supreme Court holds that the state owed no duty of care to a private facility resident who was sexually abused by another resident who had been discharged by a court from a state violent sex offender program and then ordered by another court into the private facility due to dementia; further, no duty of care was owed to the private facility.

Found in DMHL Volume 36, Issue 2

Showing That a Father Poses a Serious Risk of Psychological or Emotional Harm to His Children Is a Sufficient Basis to Award Custody to Grandparents; Ruling Not Disturbed

In re Marriage of O'Donnell-Lamont, 91 P.3d 721 (Or. 2004), cert. denied, 125 S. Ct. 867 (2005)

Following a divorce, a bitter court battle over who should have custody of the children from the marriage often ensues.  The dispute may focus on who is the children's "psychological parent" (i.e., the parent to whom the children are most emotionally attached) or whether one of the parents pose a risk of psychological or emotional harm to the children...

Found in DMHL Volume 25 Issue 1

Sex Offender Registration/Therapy Can’t Be Condition Parole on TX Inmates Convicted of Non-Sexual Offense Without Finding They’re Threat to Society Because Lack of Sexual Control; Ruling Not Disturbed

Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004), cert. denied, 126 S. Ct. 427 (2005)

Texas sometimes requires sex offender registration and sex offender therapy as a condition of release on parole from incarceration.  While SVP commitment requires a hearing and is generally limited to offenders convicted of a specified sexual offense, these parole conditions could be imposed without a hearing and regardless of whether the inmate had been convicted of a sexual offense...

Found in DMHL Volume 25 Issue 1

Massachusetts Court Permits Evidence of Sex Offender’s Lack of Participation in Treatment, but Not His Refusal to Participate, to Be Used at Commitment Hearing

Commonwealth v. Hunt, 971 N.E.2d 768 (Mass. 2012)

The Massachusetts Supreme Judicial Court has held that a prisoner’s refusal to participate in sex offender treatment programs that require a waiver of confidentiality does not violate his Fifth Amendment privilege against self-incrimination, but does violate fundamental fairness embodied in the therapist-patient privilege. A prisoner’s refusal to participate in sex offender treatment may therefore not be admitted into evidence in a civil commitment proceeding or used by evaluators to formulate an opinion as to whether the prisoner is a sexually dangerous predator (“SDP”), but his simple failure to receive any treatment may be so used.

In 1990, the defendant pled guilty to three charges of raping a child, the daughter of his live-in girlfriend, and an unrelated burglary charge, and was sentenced to 8-15 years in prison. Several times while in prison, the defendant was offered sex offender treatment. As a condition of treatment, however, he was required to sign an agreement allowing the therapist to provide information concerning his progress to the Department of Corrections and the parole board. While temporarily committed to the Massachusetts sex offender treatment center awaiting a hearing on the civil commitment petition, the defendant was again offered treatment but was required to sign a statement acknowledging that anything he said or disclosed in discussion with his therapist might be reviewed by qualified examiners to determine whether he was a SDP. The defendant refused the treatment arguing that admission of that evidence would violate his privilege against self-incrimination.

At trial in 2008, the Commonwealth offered three experts who testified that the defendant was properly diagnosed with pedophilia and was likely to offend again. The defendant offered three psychologists who testified that the defendant may or may not meet the definition of pedophilia, but was not likely to sexually re-offend. Two of his experts testified that he did not have a sexual abnormality and one did. Before and during trial, the defendant moved to bar any reference to his refusal to participate in treatment, arguing that information concerning his refusal would violate his Fifth Amendment privilege against self-incrimination. The trial court denied his motion and a jury thereafter found him to be a SDP.

The Massachusetts Supreme Court relied on the United States Supreme Court case of McKune v. Lile, 536 U.S. 24 (2002), in finding that no mandatory penalty arose in Massachusetts from a prisoner’s refusal to participate in treatment. In McKune, the U.S. Supreme Court held that an incriminating statement may be deemed “compelled” when the penalties for the defendant’s refusal to incriminate himself may be so severe that they are capable of coercing incriminating testimony. The Supreme Court specifically found in that case, however, that a convicted prisoner’s participation in a sexual abuse treatment program where he was required to complete a sexual history form detailing prior sexual activities regardless of whether such activities constituted uncharged crimes was not compelled even though his refusal to participate resulted in the automatic curtailment of his visitation rights and other prison privileges, and required transfer to a maximum security unit. Here, the Massachusetts Court found that an offender faces only the possibility that if he refuses to participate, the Commonwealth may offer such refusal in evidence at a future SDP hearing or an expert may use his refusal to support his opinion that the defendant is a SDP. Since the defendant’s silence was not being used against him in a criminal proceeding, his silence was insufficient alone to support a SDP finding. Instead the Commonwealth was merely giving evidentiary value to his refusal. His 5th Amendment right against self-incrimination was therefore not violated.

Nonetheless, the Massachusetts Supreme Court went on to recognize that, under the common law, evidence that a defendant has refused sex offender treatment would constitute unfair prejudice. The Court pointed to the legislature’s recognition of the importance of confidentiality in communications between patients and psychotherapists through its enactment of an evidentiary privilege. Citing the United States Supreme Court’s decision in Jaffee v. Redmond, 518 U.S.1 (1996), the Massachusetts Court found that the waiver of confidentiality during sex offender treatment poses a substantial risk of impeding the development of an atmosphere of confidence and trust, chilling the candor of communication and diminishing the likelihood of successful treatment. If the Commonwealth provided treatment without the requirement of a waiver of confidentiality, the inference a jury might derive from his refusal to participate would be fair and reasonable. But the Court drew a distinction between evidence that a defendant “refused” treatment, which might prejudice a jury, and evidence that the defendant “did not receive” treatment. The Court recognized that the lack of treatment itself, either because treatment was simply not offered or because the defendant refused treatment, was directly relevant as to whether the defendant might re-offend and thus meet the definition of a SDP. Therefore, the Court held that evidence that a defendant did not receive sex offender treatment is admissible, but it is error to admit evidence that a defendant refused treatment when he could receive such treatment only by waiving confidentiality and the therapist-patient privilege.

Found in DMHL Volume 31 Issue 6

Civil Commitment of Sexually Dangerous Individuals

In re Johnson, 2016 ND 29, 2016 WL 669398 (ND Feb. 18, 2016)

Release of an individual from civil commitment under the state’s sexually dangerous individual law ordered upon finding that the district court failed to cite on the record facts establishing by clear and convincing evidence that the offender “has a present serious difficulty controlling his behavior.”

Background: Jeremy Johnson was committed as a sexually dangerous individual in 2012, and in 2013, Johnson petitioned the court for discharge. Finding that Johnson was still a sexually dangerous individual, the district court continued his commitment; Johnson appealed and the North Dakota Supreme Court remanded the case for further findings of fact on the question of whether Johnson had difficulty controlling his behavior. On remand, the district court made additional findings and again issued an order continuing Johnson’s commitment. Johnson appealed the district court’s order continuing his commitment as a sexually dangerous individual, arguing that the court’s findings were insufficient to demonstrate that he had serious difficulty controlling his behavior.

Holdings: The Supreme Court of North Dakota concluded that the district court’s order and findings were insufficient and reversed the order continuing Johnson’s commitment, directing that Johnson be released from civil commitment. Specifically, the Supreme Court of North Dakota found that the district court had not put forward specific factual findings to support the legal conclusion that Johnson’s mental disorder involved serious difficulty controlling his behavior that sufficed to “distinguish a dangerous sexual offender whose disorder subjects him to civil commitment from the dangerous but typical recidivist in the ordinary criminal case.” When the district court fails to put forward such findings, it errs as a matter of law.

Notable Points:

Lack of progression in treatment is not sufficient: The Supreme Court of North Dakota made it clear that an actual finding of serious difficulty controlling behavior must be made in order to justify denial of a petition for discharge from civil commitment of a sexually dangerous individual. Specifically, this means that a court may not rely solely on evidence of lack of progression in treatment to prove that a committed individual has difficulty controlling his behavior—such lack of progress does not necessarily equate to a serious difficulty controlling behavior. Although the Supreme Court conceded that lack of progress in treatment “may indicate serious difficulty controlling behavior” it “decline[d] to infer one equals the other.” The State must present specific evidence (and the court must make a specific finding) regarding whether a defendant has serious difficulty controlling his behavior.

Found in Found in DMHL Volume 35, Issue 1

Liability of Correctional and Mental Health Officials

Glasgow v. Nebraska, 819 F.3d 436 (8th Cir. 2016)

Correctional and mental health officials do not owe a duty to third parties for injuries inflicted by inmates who are returned to the community following assessment by those officials. 

Background: Nikko Jenkins was a mentally ill inmate who was released from prison after 10.5 years of his sentence because the state changed Jenkins’ recommendation from inpatient to outpatient treatment, which accelerated his release. Upon his release, Jenkins killed 4 people in Omaha, one of them Curtis Bradford. Bradford’s mother, Velita Glasgow, filed suit against the state of Nebraska, among other defendants, for violation of Bradford’s substantive due process rights under the Fourteenth Amendment (§1983) and a state law negligence claim, arguing that the state acted with deliberate indifference in accelerating a dangerous prisoner’s release and violated Bradford’s right to life. Additionally, she argued that the state had a duty to protect Bradford from their prisoners and the state abandoned that duty when they knowingly released a mentally-ill prisoner who allegedly threatened to kill someone if he was released. The district court dismissed Glasgow’s claim, stating that the complaint was “devoid of any plausible allegation against [the] defendants.” Glasgow appealed.

Holding: The Eighth Circuit affirmed the lower court’s dismissal of all claims. An official may be sued if they violated a statutory or constitutional right that was “clearly established” at the time of the conduct. The Eighth Circuit held that “there is no general substantive due process right to be protected against the release of criminals from confinement.” Furthermore, because there was no evidence that the state’s conduct created a significant risk to a precisely defined group of people and that, if that group existed, Bradford was a part of that group, the state was not required by the Due Process clause to protect Bradford’s life from private actors. The court quickly did away with the negligence claim by holding that the plaintiff did not provide any legal authority to explain that the state had a legal duty to Bradford.

Found in DMHL Volume 35, Issue 2

Sentencing of Persons with Mental Illness

United States v. Kluball, 843 F.3d 716 (7th Cir. 2016)

Seventh Circuit holds a defendant’s history of mental illness and ineffective treatment can be considered by the sentencing judge as a prediction of the potential for future misconduct without violating the defendant’s due process rights when reasonably based on factually accurate information.

Background: Alexander Klubal pled guilty and was sentenced to 10-years confinement for transporting a 17-year-old girl across state lines to engage in prostitution. A presentence report detailed Kluball’s history of mental illness, which included diagnoses of oppositional defiant disorder, attention deficit hyperactivity disorder, bipolar disorder, posttraumatic stress disorder, and depression. Klubal had received counseling, was hospitalized several times, and was treated with drugs including Adderall, Depakote, Eskalith, Fluoxetine, lithium, Prozac, Remeron, Ritalin, Seroquel, Strattera, Valium, Zoloft, Zydis, and Zyprexa. None of the treatments succeeded or lasted very long. During sentencing, the judge remarked that Kluball’s history of mental illness did not alleviate any responsibility for his crimes and suggested that mental health treatment would not have a lasting impact on his ability refrain from engaging in criminal conduct in the future. The judge then sentenced Kluball to the statutory maximum of 10 years. Kluball appealed the sentence, challenging the judge’s assertion that treatment would not have a lasting impact on his conduct as a violation of his due process rights.

Holding: The Seventh Circuit affirmed the 10-year sentence finding no violation of due process.

Notable Point:

Sentencing: The Seventh Circuit explained that during sentencing judges are routinely required to make predictions about a defendant’s future conduct and response to treatment. The court explained that such predictions do not violate due process when they are based on accurate information rather than unsupported speculation. The court was satisfied that Kluball’s history of mental illness and response to past treatment was factually accurate and sufficient to support the judge’s predictions about Kluball’s future conduct.

Found in DMHL Volume 35, Issue 4