California Supreme Court Finds Evaluation and Certification Procedures Not Commitment Criteria under Mentally Disordered Offender Act

People v. Harrison, 57 Cal.App.4th 1211, 164 Cal.Rptr.3d 167, 312 P.3d 88 (2013)

The California Mentally Disordered Offender Act, Penal Code § 2962, requires a state prisoner either during or after parole to be civilly committed whenever a Department of Corrections and Rehabilitation chief psychiatrist certifies that he suffers from a serious mental disorder that is not or cannot be kept in remission without treatment, that the disorder was one of the causes of or an aggravating factor in the crime, that the prisoner has been in treatment for at least 90 days within the year preceding release on parole, and that the prisoner presents a substantial risk of physical harm to others as a result of the disorder. The California Supreme Court reversed the ruling of the Court of Appeals that held that the evaluation and certification procedures used to determine a prisoner is a mentally disordered offender also constitute the criteria which the state must prove to civilly commit him.

Kelvin Harrison had been convicted of battery with serious bodily injury in March 2009 and sentenced to two years in prison. At his parole release date in February 2010, Harrison was required to accept treatment as a mentally disordered offender and in April 2010, the Board of Parole Hearings upheld that determination. Harrison then petitioned for a hearing in superior court challenging the Board’s determination. At trial, a forensic psychologist testified that he had interviewed Harrison at the request of the Parole Board in March 2010, and had reviewed his mentally disordered offender evaluations, his psychiatric records and prison file. Harrison had been discharged from the military in 1983 with a diagnosis of schizophrenia and depression. The psychologist testified that he diagnosed Harrison as suffering from schizophrenia, paranoia type, which impaired his thoughts and perceptions of reality and grossly impaired his behavior. Harrison displayed paranoid and grandiose delusions that San Luis Obispo County officials and law enforcement were conspiring against him and trying to do him harm. He further testified that Harrison’s schizophrenia was an aggravating factor in his crime. At the time of the offense, Harrison believed that grapes in a bag on the ground were filled with blood, interpreting this to mean his victim intended to harm him. He then struck the victim several times with a pipe. Harrison had also received more than 90 days of treatment within the prior year, both in prison and at Patton State Hospital. The psychologist also testified that Harrison lacked insight into his disorder ant that he was prone to misinterpret environmental clues suggesting he was at physical risk. As a result, Harrison was unable to control his behavior, unlikely to seek treatment, and therefore presented an ongoing risk of committing violent crime. After hearing the evidence presented, the superior court found Harrison met the criteria for a mentally disordered offender and committed him to the Department of State Hospitals for one year.

The California Mentally Disordered Offender Act was enacted in 1985 and requires a prisoner convicted of certain felonies related to a severe mental disorder who continues to pose a danger to the public to receive appropriate treatment until the disorder can be kept in remission. The purpose of the Act is to protect the public while treating severely mentally ill offenders. The initial commitment is a condition of parole. Prior to release on parole, the person in charge of treating the prisoner and a psychiatrist from the Department of State Hospitals must evaluate the prisoner. If the prisoner is at the time being treated in a state hospital, the person treating the prisoner and a psychiatrist from the Department of Corrections and Rehabilitation must examine him. These evaluators must find, and a chief psychiatrist of the Department of Corrections and Rehabilitation must certify, that the prisoner has a severe mental disorder, that the disorder is not in remission or cannot be kept in remission without treatment, that the disorder was a cause of or an aggravating factor in a crime for which he was sentenced, that the prisoner had been in treatment for 90 days or more in the year preceding his release on parole, and the prisoner represents a substantial danger of physical harm to others because of the disorder. If the professionals conducting the evaluation disagree, the Board of Parole Hearings must order a further examination by two independent professionals. A prisoner who wants to challenge his certification may request a hearing before the Board of Parole Hearings. If he disagrees with this decision, the prisoner may petition the superior court for a determination as to whether he met the statutory criteria as of the date of the Parole Board hearing. The burden is on the state to prove the statutory criteria beyond a reasonable doubt.

Harrison appealed the commitment decision to the Court of Appeals arguing that the statutory criteria also included the evaluation and certification procedures because they were contained in the same statute, and the state had failed to present evidence that they had been performed. The Court of Appeals agreed and ordered his release on the grounds that there was no evidence in the record that Harrison had been evaluated and certified by the various staff specified in the statute. The Court of Appeals held that the criteria required to certify a prisoner as a mentally disordered offender included not only the substantive criteria used by the mental health professionals to determine whether he was such an offender, but also the procedures by which that determination was made.

The State appealed that decision to the California Supreme Court. The Supreme Court, by contrast, reviewed the legislative history and found that the legislature had clearly distinguished between the substantive criteria used by the specified mental health professionals to determine whether a prisoner is a mentally disordered offender from the process by which the determination was to be made. In addition, the Department of Corrections and Rehabilitation and the Department of State Hospitals, the two state agencies responsible for implementing the law, both had adopted implementing regulations setting out the criteria for determining which offenders are mentally disordered offenders, specifying only the substantive criteria, and not the procedures by which the determination is made. The Supreme Court therefore found that an administrative agency’s interpretation of a statute governing its powers and duties is entitled to great weight. The Court held that this interpretation also comports with the purpose of the statute. It said that the public’s interest in safety and the prisoner’s need for treatment are not furthered by having the trier of fact determine whether a particular certification was performed by a specified professional or at a particular place.

The Supreme Court compared this Act with the Sexually Violent Predator Act, Welf. & Inst. Code, § 6600 et seq., another involuntary commitment scheme sharing the same purpose. Before an SVP commitment petition may be filed two evaluators must agree that the person has a diagnosed mental disorder and is likely to engage in acts of sexual violence without appropriate treatment. The Court stated that in these cases the State does not need to prove this concurrence to the trier of fact. Rather it is a collateral procedural condition designed to ensure that SVP proceedings are initiated only when there is a substantial factual basis for doing so.

The Court also reasoned that requiring the State to prove only that a chief psychiatrist certified the prisoner as presenting substantial harm to others, as Harrison argued, and not that the prisoner actually did meet these requirements would raise constitutional concerns. It stated that the equal protection clause of the federal and state constitutions would require proof of present dangerousness. The Supreme Court also found that simply because the criteria only contains the substantive provisions of the statute and not the procedural conditions, the Court of Appeals fear that the Department of Corrections would not follow them and the prisoner could not then challenge compliance with them was not possible. A defendant in any case may raise similar procedural challenges before a trial court. These include objections to venue or speedy trial rights. If the prisoner raises the flaw prior to trial, he may obtain the relief needed without resort to a full trial. Here, however, Harrison did not object to any defect in the procedures underlying the evaluation process and therefore waived them. Absent an objection, the State does not have an obligation to prove compliance with the underlying procedures.

The Supreme Court therefore held that the Mentally Disabled Offender statute only requires that the prisoner meet the substantive criteria that must be proved beyond a reasonable doubt. The statute does not require that compliance with the evaluation and certification procedures be proved to the trier of fact. That becomes a question of law to be addressed by the court upon the prisoners’ objection.

Found in DMHL Volume 33 Issue 2

NGI

Delay in commitment proceedings justified by acquittee’s misconduct

United States v. Conrad, 776 F.3d 253 (4th Cir. 2015).

Defendant-appellant Samuel Robert Conrad III, currently serving an eight-year term of imprisonment, appealed both the district court’s denial of his motion to dismiss commitment proceedings arising from a 2007 insanity acquittal (arising from a separate set of offenses) and the district court’s order to delay those commitment proceedings until he is released from prison. At issue for the Fourth Circuit on Appeal was 18 U.S.C. § 4243, which provides the “procedural framework for the evaluation and commitment of defendants adjudicated NGI.”

Initially, Conrad’s § 4243 hearing following the 2007 acquittal resulted in the district court’s imposition of a conditional release, which was subsequently revoked when Conrad was charged by the Commonwealth of Virginia for the murder of his sister-inlaw. Conrad appealed the revocation of his conditional release, and the order originally granting it was vacated by the Fourth Circuit in 2010 based on that court’s determination that the language of § 4243 “allows only two forms of disposition--unconditional release or indefinite commitment; it does not authorize conditional release.” A new hearing was thus required under § 4243(e), but never actually took place because in 2013 Conrad was charged with possession of a firearm by a convicted felon and conspiracy to distribute controlled substances—charges which lead to his current incarceration. When Conrad moved to dismiss the pending § 4243 commitment proceedings arising from the prior case (arguing that § 4243 was no longer applicable to him because he could not pose a threat to public safety while incarcerated), the district court denied his motion, ordering instead that a delay of the proceedings until Conrad completes his current term of imprisonment would best serve the statute's purposes.”

The Fourth Circuit affirmed the denial of Conrad’s motion to dismiss as well as the order delaying the § 4243 proceedings. In affirming the denial of the motion to dismiss, the Fourth Circuit held that § 4243 “applies on its face to NGI acquittees” and “unambiguously requires a hearing to determine commitment or release,” and so in the absence of any “provision permitting nullification of the statute's applicability through subsequent commission of crime and incarceration,” the district court was within its discretion to refuse dismissal of the § 4243 hearing. Further, the Fourth Circuit held that the delay ordered by the district court was permissible, confronting the timing requirement of § 4243(c) which “requires a hearing within 40 days of the NGI verdict, which, under a separate provision, may be extended only by 30 days, and only by the director of the facility to which the acquittee has been committed.” The Fourth Circuit stated that both parties agreed that there is at least one implicit exception to the 40-day requirement of § 4243(c) and cited to other opinions in which a delay greater than 40 days was allowed and found to be justified due to “circumstances outside of the acquittee's control--such as a commitment facility's inadequate resources to promptly conduct the evaluation.” Given this precedent, the Fourth Circuit stated that a delay would “would seem even more fitting” in circumstances within the acquittee’s control and held that because Conrad “has been the principal architect of the delay he faces, and such delay is reasonable under the statute when the acquittee is serving a term of incarceration” the district court did not err in delaying the proceeding.

Found in DMHL Volume 34 Issue 1

Sexually Dangerous Offenders

Period in confinement pending civil commitment determination not applicable as “credit” toward time served for criminal sentence

United States v. Hass, 575 Fed. Appx. 139 (4th Cir. 2014) (unpublished per curiam opinion)

In appealing the district court’s judgment revoking his supervised release and sentencing him to eighteen months in prison followed by an additional thirty months of supervised release, defendant Johnny Hass argued that the district court erred in fashioning his sentence by refusing to factor in time he spent in Bureau of Prisons (“BOP”) custody awaiting civil commitment proceedings. After the Government certified that Hass qualified as a sexually dangerous person under the Adam Walsh Child Protection and Child Safety Act of 2006, the court stayed his release pending the outcome of a hearing to determine whether Hass was sexually dangerous. After his supervised release was revoked and a new prison sentence imposed by the district court, Hass argued on appeal to the Fourth Circuit that he should have been granted credit for time served equal to the time he spent in BOP custody awaiting his civil commitment hearing.

Given the deference due to the district court, the Fourth Circuit stated it would only reverse if the sentence imposed was “plainly unreasonable.” A sentence can be either procedurally or substantively unreasonable. Procedural reasonability is determined by examining the district court’s consideration of “applicable 18 U.S.C. § 3553(a) (2012) factors and the policy statements contained in Chapter Seven of the Guidelines.” Substantive reasonability is determined by examining whether the district court stated a “proper basis for concluding that the defendant should receive the sentence imposed.”

The Fourth Circuit rejected Hass’ claim that failing to give him credit for his prior time spent in BOP custody was a basis for plain error, stating that “it is unthinkable to lend support to any judicial decision which permits the establishment of a line of credit for future crimes.” Because Hass “was being sentenced for violating the terms of his supervised release” and cited “no precedent to support his claim that over-service of a prior sentence is even a proper consideration for a court when imposing a revocation sentence,” the Fourth Circuit affirmed the sentence imposed by the district court.

Found in DMHL Volume 34 Issue 1

Sexually Violent Predators

Burden of proof on Commonwealth to prove in annual review hearing that continued involuntary confinement necessary

Gibson v. Com., 287 Va. 311, 756 S.E.2d 460 (2014)

Overruling Commonwealth v. Bell, 282 Va. 308, 714 S.E.2d 562 (2011), the Supreme Court of Virginia held that the Commonwealth is the party who bears the burden of proving that no suitable, less restrictive alternative to involuntary inpatient treatment exists for someone declared to be a sexually violent predator. After a jury found that the defendant, Donald Gibson, was a sexually violent predator within the meaning of Va. Code Ann. § 37.2-900, the circuit court continued the trial in order to hear additional evidence related to Gibson’s suitability for conditional release as an alternative to involuntary commitment.

In moving forward, Gibson argued that the burden was on the Commonwealth to prove “by clear and convincing evidence” that the elements of Va. Code Ann. § 37.2-912 were not satisfied, whereas the Commonwealth, relying on Commonwealth v. Bell, argued that burden was on Gibson to prove “by a preponderance of the evidence that he meets the criteria for conditional release.”

The Virginia Supreme Court noted that statements in Commonwealth v. Bell seemed to conflict with the earlier decision McCloud v. Com., 269 Va. 242, 261, 609 S.E.2d 16, 26 (2005) which held that “the burden of proving that there is no suitable less restrictive alternative to involuntary confinement rests with the Commonwealth, and that burden cannot be shifted to the [respondent].” Finding no reason “to draw a distinction between an initial sexually violent predator trial and an annual review hearing in terms of which party bears the burden of proof on the issue whether there are no suitable less restrictive alternatives to involuntary confinement,” the Supreme Court of Virginia overruled Bell and returned to the rule in McCloud instead of reconciling the two by drawing such a distinction.

Found in DMHL Volume 34 Issue 1

Sexually violent offender (Iowa)

Iowa’s statutory scheme allowing continuing community supervision of offenders who no longer meet the criteria for institutional commitment does not violate the due process clauses of the Iowa or United States Constitutions

In re Det. of Matlock, 860 N.W.2d 898 (Iowa 2015)

Calvin Matlock, a person civilly committed under Iowa’s Sexually Violent Predator Act, argued that his supervised release violated the Due Process Clauses of both the Iowa and the United States Constitutions. The Iowa Supreme Court held that an order of supervised release did not violate either state or federal due process so long as the supervisee “continues to suffer from a mental abnormality, the testimony supports the need for supervision, and the supervision strikes the right balance between the need to protect the community and the person's liberty interest.” Examining the specific release conditions imposed on Matlock, however, the Court found that “the plan [was] more consistent with a person just paroled from prison or on probation, not a person released from a civil commitment.” Of particular concern was the fact that “many of the conditions in the agreement appear[ed] to bear no relationship to Matlock’s treatment or the protection of the public.” Especially problematic was the fact that the Department of Corrections, which was responsible for supervising Matlock’s release, had never supervised a person released from the Civil Commitment Unit for Sexual Offenders, and was supervising Matlock as it would any sex offender released from prison. Ultimately, the Iowa Supreme Court remanded the case back to district court “to review the release conditions and enter the appropriate order consistent with due process.”

Found in DMHL Volume 34 Issue 2

Not guilty by reason of insanity commitment

In proceeding by the state to extend NGRI acquittee’s commitment beyond the length of the maximum prison sentence for the originally charged offense(s), the individual facing extended commitment has the right to refuse to testify in the proceeding

Hudec v. Superior Court Orange County, 339 P.3d 998 (Cal. 2015)

Charles Hudec, a person diagnosed with paranoid schizophrenia, was found not guilty by reason of insanity of killing his father and was committed to a state hospital for a period of time reflecting the maximum sentence for voluntary manslaughter. In March 2012, the district attorney petitioned to extend Hudec’s commitment pursuant to Cal. Penal Code § 1026.5. That section allows a person’s commitment to be extended if, because of mental disorder, he “represents a substantial danger to others.” The section also states that a person so tried is “entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings.” The California Supreme Court noted that, although § 1026.5 does not “expressly grant NGI [sic] extension respondents all the rights of a criminal defendant,” the statute “reflects a legislative effort to prescribe procedures fair to both the respondent and the People.” The Court found the right to refuse to testify among those afforded because recognition of the right would not result in “any absurd consequence”—such as would ensue were a respondent to attempt to assert the right not to be tried while mentally incompetent.

Found in DMHL Volume 34 Issue 2

Sexually violent offenders

Rational basis exists for different standards of review under California law for civilly committed sexually violent offenders and other civilly committed persons, so that such difference does not violate equal protection clause of 14th amendment

Seeboth v. Allenby, 2015 WL 3772754 (9th Cir. 2015)

Cliff Allenby, a sex offender civilly committed under California’s Sexually Violent Predator Act (“SVPA”), filed a habeas petition claiming that the absence of a recommitment trial timing provision in the SVPA was a violation of equal protection. Under California law, other civilly committed persons—specifically mentally disordered offenders and those found not guilty by reason of insanity—have a statutory right to a recommitment trial within a defined period of time. The state and district courts denied the petition, holding that sexually violent predators are not “similarly situated” to other groups of civilly committed offenders for the purpose of an equal protection challenge to the lack of a timing provision in the SVPA.

On appeal, the Ninth Circuit affirmed, concluding that it was neither objectively unreasonable nor contrary to clearly established federal law for the state courts to hold that the lack of a recommitment trial timing provision in the SVPA was not an equal protection violation. The Court held that the use of the rational basis test was reasonable, and that the state legislature had a rational reason to “distinguish between individuals who have been found to be mentally ill and dangerous and individuals who have been found to be mentally ill and sexually dangerous” (emphasis in original).

Found in DMHL Volume 34 Issue 2

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