Mentally Incompetent Defendant Has No Due Process Right Against Being Tried, Committed and Treated as Sexually Violent Predator

Moore v. Superior Court of Los Angeles County, California, 237 P.3d 530 (2010)

Overturning the decision of the California Court of Appeals, the California Supreme Court in a split decision has ruled that a mentally incompetent defendant has no due process right to avoid being tried and committed as a sexually violent predator. The court held that due process does not require mental competence on the part of someone undergoing a commitment or recommitment trial, which is a civil proceeding under the California Sexually Violent Predators Act. The strong governmental interest in protecting the public through the proper confinement and treatment of SVP's would be substantially thwarted by recognizing an SVP's right to delay or avoid confinement and treatment for a sexually violent mental disorder because his problems render him incompetent to stand trial. Recognition of such a due process right could prevent an SVP determination from being made at all. Such a scenario could often recur and would undermine the purpose and operation of the Act. The court found that public safety could suffer as a result.

Found in DMHL Volume 30 Issue 1

SVP Petition Cannot Be Filed in New York When Respondent Not in Custody for Sex Offense

In the Matter of the State of New York v. Rashid, 16 N.Y.3d 1, 2010 NY LEXIS 3339 (November 23, 2010)

The New York Court of Appeals has upheld the decision of the appellate court dismissing the Attorney General’s petition to commit this respondent under its Sex Offender Management and Treatment Act. Although the respondent had pled guilty to sodomy in 1991, he was incarcerated for robbery at the time the interagency notice was sent by the Department of Corrections that Rashid may be a sex offender. At the time the respondent received notice of the petition, he was in jail for petit larceny. Because the respondent was not subject to state custody or supervision, he was not a detained sex offender at the time the petition was filed for purposes of the Act. The Court also held that the proceedings commenced at the time the Attorney General filed the petition, not at the time notice was provided by the Department of Corrections.

Found in DMHL Volume 30 Issue 3

Prior Determination That Defendant Not a Mentally Disordered Sex Offender Not Bar to Later Civil Commitment as Sex Offender

In re Interest of D.H., 281 Neb. 554, 797 N.W.2d 263 (Neb. 2011)

The Nebraska Supreme Court held on May 20, 2011 that a 1991 determination at the time of a defendant’s conviction and sentence that he was not a “mentally disordered sex offender” under Nebraska’s sex offender law then in effect was not res judicata barring commitment proceedings in 2010 under Nebraska’s current Sex Offender Commitment Act. In so deciding, the Court followed a similar California case that found that a 1982 determination that the defendant was not a sex offender did not preclude a civil commitment proceeding 10 years later because the issue was the mental health of the defendant as he approached release, not as it existed at the time of his conviction. People v. Carmony, 99 Cal.App. 4th 317, 120 Cal.Rptr.2d 896 ( 2002). The Nebraska Court held that the Act provides for assessment of the defendant’s mental health, risk of recidivism and threat to public safety as he approaches release. Based upon the changeable nature of mental health and dangerous determinations, the assessment is not res judicata because the issue presented is not the same as that litigated at the time of his 1991 sentencing.

Found in DMHL Volume 30 Issue 6

Fourth Circuit Finds Federal Commitment of Sexually Dangerous Persons Does Not Violate Equal Protection

United States v. Timms, 664 F.3d 436 (4th Cir. 2012)

Reversing the decision of the United States District Court for the Eastern District of North Carolina, the Fourth Circuit Court of Appeals, in a decision written by Judge G. Steven Agee, held on January 9th that the federal scheme found in 18 U.S.C. § 4248 permitting civil commitment of sexually dangerous persons does not violate the Equal Protection Clause of the United States Constitution. Timms’ case was one of the first cases to arise under the Adam Walsh Child Protection and Safety Act of 2006. That section authorizes the civil commitment of individuals in the custody of the Bureau of Prisons who are determined to be a sexually dangerous person, defined as someone “who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others.” 18. U.S.C. § 4247(a)(5).

The Federal Correctional Institution in Butner, North Carolina is the federal institution to which prisoners in the custody of the Bureau of Prisons are now transferred for assessments as sexually dangerous persons. Most of these cases are therefore being heard before the North Carolina district court and appealed to the Fourth Circuit. Timms was in custody at Butner, completing a 100 month sentence for soliciting and receiving child pornography by mail, when the government filed a certificate to commit him. At the time the certificate was filed, the Comstock case, the first challenge to the federal sexually dangerous commitment scheme, was pending before the Fourth Circuit. The hearing on the merits of his case was therefore put on hold. The District Court in Comstock had found the statutory scheme unconstitutional on the grounds that Congress lacked authority to enact it, and the Fourth Circuit later upheld that decision. The United States Supreme Court reversed, upholding the authority of Congress to enact the statute under the Necessary and Proper Clause of the Constitution. United States v. Comstock, 130 S.Ct. 1949, 176 L.Ed.2d 878 (2010). Upon remand and then re-appeal, the Fourth Circuit determined in Comstock II that the statute did not violate the due process clause by requiring a court to find by clear and convincing evidence, rather than beyond a reasonable doubt, that the individual is a sexually dangerous person. United States v. Comstock, 627 F.3d 513 (4th Cir. 2010), cert. denied, 131 S.Ct. 3026, 180 L.Ed.2d 865 (June 20, 2011).

When his case finally came forward for hearing before the District Court after the Comstock I and II decisions, Timms argued that the statutory scheme violated the Equal Protection Clause of the Constitution. The District Court agreed, relying on Baxstrom v. Herold, 383 U.S. 107 (1966) that held that the government cannot provide less protection during civil commitment proceedings for prisoners who are completing there sentences than for nonprisoners. The district court reasoned that the federal government has no authority to commit sexually dangerous persons who are not in prison, and therefore individuals in the custody of the Bureau of Prisons are not being treated similarly with sexual predators in the community.

On appeal, the Fourth Circuit first determined that it had to decide whether to apply a strict scrutiny standard of review, as Timms argued, or the generally applicable rational basis standard.. Timms relied on Foucha v. Louisiana, 504 U.S. 71 (1992) and Addington v. Texas, 441 U.S. 418 (1979) that recognized that civil commitment constitutes a significant deprivation of liberty. However, the 4th Circuit found that these cases were decided on due process grounds, not equal protection, and the Supreme Court, despite being provided an opportunity to do so, never expressly established a heightened standard of review. As a general rule, the Court held that legislation is presumed to be valid and will be sustained if the statute is rationally related to a legitimate state interest. Following the First Circuit decision in United States v. Carta, 592 F.3d 34 (1st Cir. 2010), deciding this very same issue, the Court held that the generally-applicable standard is thus rational basis.

The Fourth Circuit next turned to the Equal Protection issue. Under the Equal Protection Clause, all persons similarly situated must be treated alike. The Court held that Congress had a rational basis for subjecting sexually dangerous persons in BOP custody to civil commitment. The Court found that the scope of the federal government’s authority for civil commitment differs so much from a state’s authority that there is a rational basis for the distinction Congress drew. Congress rationally limited its scope to sexually dangerous persons within BOP custody based on Congress’ limited police power and the federal interest in protecting the public from reasonably foreseeable harm from such persons.

Found in DMHL Volume 31 Issue 2

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

Texas Supreme Court Holds Expert Need Not Be Psychiatrist or Psychologist to Testify in SVP Commitment Proceeding

In re Commitment of Bohannan, 2012 Tex LEXIS 734 (Aug. 31, 2012)

The Texas Supreme Court ruled on August 31, 2012 that a licensed professional counselor and sex offender treatment provider was qualified to testify in a civil commitment proceeding for a sexually violent predator. Because the Texas statute did not limit expert testimony to only physicians or psychologists, the Court held that the general rule merely required an expert to have the knowledge, skill, experience, training or education to assist the trier of fact to understand the evidence or to determine a fact in issue.

On two separate occasions in 1982, the defendant Michael Wayne Bohannan stalked women, broke into their homes and raped them at knife point. He was sentenced to 25 years in prison, but was released on mandatory parole in 1991. In April 1992, he was charged with attempting to kidnap a nine-year-old girl at K-Mart and was returned to prison. The defendant was again released in 1998 on mandatory supervision and in 2000 moved to South Carolina to live with his mother. There he was convicted of indecent exposure to an eight-year-old girl in a toy store. He denied the allegations but was returned to prison in Texas. The defendant was again released on mandatory supervision in 2004, but in 2006 his release was revoked for viewing child pornography in a county law library.

At the defendant’s SVP civil commitment hearing, a board certified forensic psychiatrist and board certified forensic psychologist testified that Bohannan was a sexually violent predator. Bohannan designated a licensed professional counselor as his expert. She testified outside the presence of the jury that she had been in private practice since 2000 providing behavioral therapy treatment for sex offenders, had received more than 1000 hours of training, sees more than 100 clients each week and has completed 18 SVP assessments. She also testified that, like the other experts, she had reviewed Bohannan’s records and interviewed him personally. She scored him a “5” on the Static-99 and an “8” on the MnSOST, somewhat lower than the government’s psychologist. Using the Hare Psychopathy Checklist, she also determined that Bohannan was not psychopathic. She further testified that in her opinion Bohannan did not have a behavioral abnormality at this time. The trial judge refused to permit her to testify, finding that only a physician or psychologist could provide medical testimony as to a behavioral abnormality. The jury then found Bohannan to be a sexually violent predator and the court ordered him committed.

On appeal, the Texas Court of Appeals reversed the trial court and ordered a new trial, finding that the Texas statutory definition of behavioral abnormality has two components, the first being whether a defendant has an acquired or congenital condition, and a predisposition to commit a sexually violent act to which a medical expert must testify. The second component the Court determined was whether a defendant is likely to commit a sexually violent act for which a medical expert is not required.

On further appeal, the Texas Supreme Court rejected the Court of Appeals’ bifurcated definition finding that the definition of behavioral abnormality was one all encompassing definition. It upheld the reversal, however, finding that the Texas statute did not require an expert to be a physician or psychologist. It noted that experts in criminal proceedings were required by statute to be physicians or psychologists, but no such requirement is found in the SVP statute therefore indicating that the legislature did not intend to impose such a requirement in SVP proceedings. The Supreme Court went on to find that the failure to permit Bohannan’s expert from testifying was not harmless error thus requiring a new trial.

Found in DMHL Volume 31 Issue 6

Virginia Supreme Court Finds Use of Video Conferencing to Conduct Annual SVP Review Hearing Provides Due Process

Shellman v. Commonwealth, _Va._, 733 S.E.2d 242 (Nov. 1, 2012, No. 120261)
available at: http://www.courts.state.va.us/opinions/opnscvwp/1120261.pdf

In a sexually violent predator’s (“SVP”) appeal of his recommitment to secure inpatient treatment, the Virginia Supreme Court held on November 1, 2012 that use of a two-way electronic video and audio communication system does not conflict with the respondent’s statutory and due process rights, including his right to counsel.

Reginald Shellman was convicted of aggravated sexual battery in Fairfax County Circuit Court in February 2001. Prior to his scheduled release, the Department of Corrections assessed him as a potential SVP and referred him to the Commitment Review Committee, which subsequently referred him to the Office of the Attorney General for a determination as to whether to seek commitment. Upon petition of the Attorney General and following the requisite hearings, the Fairfax County Circuit Court found Shellman to be a SVP and committed him to the Virginia Center for Behavioral Rehabilitation in Burkeville, Virginia, all in accordance with Chapter 9 of Title 37.2 of the Code of Virginia.

In 2011, the Virginia General Assembly amended Virginia Code § 37.2-910(A) to permit annual assessment reviews to be conducted, “whenever practicable,” by means of two-way electronic video and audio communications. As a result, and over the objection of the respondent, the court held Shellman’s annual review proceeding by video conference. Present in the courtroom in addition to the judge was counsel for the Commonwealth, respondent’s counsel, and respondent’s mother. The respondent and the Commonwealth’s expert, Mario Dennis, Ph.D., a clinical psychologist and Director of Forensic Services at the Center, appeared by video from the Center. At one point, the video feed was lost at both locations, but the hearing was suspended for a short time while the connection was reestablished. The respondent objected during the hearing and on appeal, arguing that the video conference violated his statutory rights in Virginia Code § 37.2-901 to be represented by counsel, to be present during the hearing, and to present evidence and to cross-examine witnesses. Although he could ask to speak in confidence with his attorney, he also argued that is ability to consult and interact with his counsel during the hearing was stifled, thus violating his due process right to counsel. The record did not reflect, however, that the respondent or his counsel actually indicated they wished to confer at any point during the proceeding.

The Supreme Court first held that there was no statutory violation. The statutes granting the respondent’s rights, including the right to counsel, and authorizing the use of video conferencing were both plain on their face, were not clearly ambiguous, and did not conflict with one another. The respondent demonstrated no prejudice in appearing by video conference and the statute permitting its use “whenever practicable” was a matter committed to the court’s sound discretion. The respondent’s mere objection to the video conference did not render its use “impracticable,” and as such, was a matter left to the court’s sound discretion.

Turning to the constitutional issue, the Court applied the Fourth Circuit’s decision in United States v. Baker, 45 F.3d 837 (4th Cir. 1995), in which that Court upheld the use of videoconferencing in the context of competency commitment hearings. The Court found that the goal of both processes is to test the opinions of experts. Whereas in a criminal trial the demeanor of the defendant and witnesses is a major concern, decisions to commit for competency restoration or as an SVP are both based not so much on the demeanor of the witnesses, but on the qualifications of the experts and the substance and thoroughness of their opinions. The Court then found that “the purpose of the annual assessment hearing is to determine whether, in light of the treatment received in the preceding year, the respondent remains a sexually violent predator and, if so, whether there is a less restrictive alternative to secure inpatient treatment.” The Court therefore held that the use of video conferencing in this context is neither unconstitutional on its face nor as applied in this case.

Found in DMHL Volume 32 Issue 1

Eight Circuit Upholds Administration of Antipsychotic Medication to Restore Competency of Defendant Accused of Failing to Register as Sex Offender

United States v. Mackey, 717 F.3d 569 (8th Cir. 2013)

The Eighth Circuit Court of Appeals upheld on June 10, 2013, the decision of the district court authorizing the government to involuntarily medicate a defendant accused of failing to register as a sex offender to restore him to competency to stand trial. Applying the standard in Sell v. United States, 539 U.S. 166 (2003), the Court found that the government has an important interest in bringing the defendant to trial for the non-violent status offense of failure to register as a sex offender. Unlike the Sixth Circuit in United States v. Grigsby, 712 F.3d 964 (6th Cir. 2013, reviewed above, the likelihood that the defendant might be sentenced to a term less than his pretrial confinement did not minimize that interest given the requirement for a minimum of five years, and the potential for a life time, of post-release supervision. Nor did the fact that the defendant might be found not guilty by reason of insanity, resulting in a lengthy period of civil commitment satisfy the government’s interest in his confinement, because there was no guarantee in spite of his delusional disorder that he would meet civil commitment criteria.

Shawn Mackey was indicted in June 2010 for failure to register as a sex offender in violation of the federal Sex Offender Registration and Notification Act. Mackey was detained pending trial and requested the district court to order a mental evaluation. He refused, however, to participate in the evaluation conducted at the Federal Detention Center in Seattle, Washington, but based upon the stipulation of both the government and Mackey, the district court found him to be suffering from a mental disease rendering him incompetent to stand trial. The court then ordered him to be committed to the custody of the Attorney General for evaluation and treatment, and a determination of whether he could be restored to competency.

In March 2012, the government moved the court to conduct a Sell hearing to determine whether Mackey could be medicated involuntarily. Two doctors at the United States Medical Center for Federal Prisoners in Springfield, Missouri, testified that Mackey was delusional and suffered from a “psychotic disorder not otherwise specified.” One psychologist tried to interview Mackey on seven occasions but he refused to talk with her in almost all of those instances. He did make some remarks reflecting a mental illness, including once that he owned Alaska, and on another occasion that his mother owned Alaska. A psychiatrist and Director of the Medical Center testified that Mackey was delusional and his thinking was disorganized. The psychiatrist testified that administration of antipsychotic medication would be necessary to restore Mackey to competency and there was a substantial probability that it would be successful, although Mackey had stated he absolutely did not want any medication. He also testified that medication would have a positive impact on other aspects of his life, including his personal hygiene and his ability to interact with his peers.

Both the district court and the Court of Appeals applied the Sell test finding 1) that an important governmental interest is at stake; 2) that involuntary medication will significantly further that governmental interest; 3) that involuntary medication is necessary to further that interest; and 4) that administration of the drugs is medically appropriate. The Eighth Circuit first reviewed de novo the district court’s legal determination that important government interests are at stake.

Mackey first contended that the nonviolent “status” offense of failure to register as a sex offender was not “serious” for the purposes of Sell. The Court rejected this argument finding that sex offenders who are not properly registered present a serious risk to the safety of the community. The legislative scheme was enacted to address deficiencies in prior law that had enabled sex offenders to fall through the cracks. Even though this offense does not itself harm others directly, the Court found that society has a strong interest in prosecuting the violation and imposing punishment.

Mackey also argued that there were special circumstances in his case. Specifically he argued that the maximum time that he was likely to receive if convicted would be 24-30 months under the sentencing guidelines approximating or exceeding the time he would already be held pre-trial. The government’s interest in his confinement would thus be achieved. The Court first found that the maximum sentence for the crime charged is ten years imprisonment, but it was impossible to know what sentence might be imposed when no conviction had yet been obtained or pre-sentence report received. In addition, a criminal sentence in this case also included mandatory post-release supervision of at least five years to life.

Mackey further argued that even if medication restored him to competency, he would most likely be found not guilty by reason of insanity and civilly committed. The Court next noted that even if Mackey could successfully raise an insanity defense, there was no guarantee that he would be found to meet the long term federal civil commitment criteria that he posed a substantial risk of bodily injury to another person or serious damage to the property of another. The Court then held that these circumstances did not outweigh the government’s interest in bringing Mackey to trial.

Turning to the other Sell factors, the Eighth Circuit held that the district court did not commit clear error in finding that the administration of antipsychotic medication would be substantially likely to restore Mackey’s competence to stand trial and would be substantially unlikely to have significant side effects. Mackey challenged the testimony of the two experts based upon testimony presented in other cases that treatment with medication for persons with grandiose delusional disorders, such as his, was not effective. The Eighth Circuit upheld the district court finding that the experts in this case had testified to the contrary and that medication was substantially likely to restore his competency, distinguishing their testimony from the testimony of experts in other cases.

Finally the Court held that the district court did not commit clear error in finding that medication was medically appropriate in this case based upon the testimony of the psychiatrist that the medication would not only restore Mackey’s competence to stand trial but would provide him with a better quality of life. Based upon these findings, the Eighth Circuit upheld the district court’s order authorizing the government to involuntarily treat Mackey with antipsychotic medication to restore his competency to stand trial.

Found in DMHL Volume 32 Issue 3

California Court Finds Unconstitutional Probation Condition Requiring Sex Offender to Waive Privilege against Self-Incrimination; PsychotherapistPatient Privilege Waiver Narrowed

People v. Friday, 225 Cal.App.4th 8, 170 Cal.Rptr.3d 38 (March 27, 2014)

Under California law, Penal Code § 1203.067, any person placed on probation for a registerable sex offense must waive his Fifth Amendment right against self-incrimination and submit to regular polygraph examinations, and must also waive his psychotherapist-patient privilege. The California Court of Appeals of the Sixth Appellate District held on March 27, 2014 that this statutory requirement that an offender waive his Fifth Amendment privilege against self-incrimination is overly broad and all-inclusive, and is therefore unconstitutional. The Court also held that the requirement that the offender waive the psychotherapist-patient privilege is only valid insofar as necessary to enable communication between the probation officer and psychotherapist as to the offender’s progress in treatment and his risk assessment scores.

Jeffrey David Allen Friday pled no contest to possession of child pornography that he had downloaded to his computer in August 2012. Information revealed that he had been downloading pornography since he was 14 or 15 years old and was 19 at the time of the offense with which he was charged. Because there was “no identifiable victim,” his level of risk as a future offender was not assessed. He had no prior convictions.

As part of a plea agreement, Friday agreed to spend six months in jail without early release. The trial court suspended imposition of the sentence and imposed a three-year term of probation, including six months in jail and mandatory participation in a sex offender management program as a condition of probation. The court required Friday to comply with the following probation conditions: (1) to waive any privilege against self-incrimination and participate in polygraph examinations, which must be part of the sex offender management program; (2) to waive any psychotherapist-patient privilege to enable communication between the sex offender management professional and the probation officer; (3) not to purchase or possess any pornographic or sexually explicit material as it relates to minors, as defined by the probation officer; (4) not to possess or use any data encryption technique program; and (5) not to frequent, be employed by, or engage in any business where pornographic materials are openly exhibited. Both the conditions requiring waiver of the privilege against self-incrimination and the psychotherapist-patient privilege are required under California law.

Friday appealed the conditions of probation arguing that the requirement that he waive his privilege against self-incrimination and the psychotherapist-patient privilege were overbroad and therefore in violation of his constitutional rights. He also challenged as overbroad the condition requiring him to participate in polygraph examinations. He further challenged as vague and lacking a requirement of scienter or knowledge of the conditions prohibiting purchase or possession of pornography, possession or use of data encryption, and frequenting businesses where pornography is exhibited. The Appellate Court agreed with most of his arguments.

The Appellate Court first reviewed the requirements of the California law, Penal Code § 1203.067, that were enacted in 2010 to amend the Sex Offender Punishment, Control, and Containment Act of 2006. The amendments mandate that any person placed on formal probation for any offense requiring registration as a sex offender after July 1, 2012 successfully complete a sex offender management program. Subdivision (b)(3) requires the offender to waive his privilege against self-incrimination and participate in polygraph examinations as part of the program. Subdivision (b)(4) requires the offender to waive any psychotherapist-patient privilege to enable the sex offender management professional to communicate with the supervising probation officer. Specifically, the sex offender management professional must communicate with the probation officer at least once a month about the offender’s progress in the program and dynamic risk assessment issues and share pertinent information with the certified polygraph examiner as required. The professional must also administer the State-Authorized Risk Assessment Tool for Sex Offenders (SARATSO) in two forms, the “SARATSO dynamic tool” and the “SARATSO future violence tool,” and provide these scores to the probation officer. The probation officer must in turn provide the scores to the Department of Justice which makes the scores accessible to law enforcement on its website.

The statute also requires the California Sex Offender Management Board to publish certification requirements for sex offender management programs and professionals. All certified programs must implement a “Containment Model” of treatment, the goal of which is “community and victim safety.” In direct contradiction of the statute, the certification standards state that “invocation of the Fifth Amendment right not to incriminate oneself during a sexual history polygraph cannot legally result in revocation.” Also, polygraphs must be used to enhance the assessment process and to help monitor the sex offender’s deviant fantasies and external behaviors, including access to potential victims.

The Court then reviewed the language of the Fifth Amendment and its jurisprudence. The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” Under Minnesota v. Murphy, 465 U.S. 420 (1984), the Fifth Amendment right may be asserted in any proceeding, civil or criminal or judicial, investigatory or adjudicatory, and protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or lead to other evidence that could be so used. The Fifth Amendment does not, however, provide an absolute right to remain silent. Under “use and derivative use immunity,” a witness may be compelled to testify provided the state does not use the testimony or any use derived from it in a criminal prosecution against the witness.

The Court then found that the probation condition in this case required Friday to waive any privilege against self-incrimination and forgo any claim of immunity from prosecution. The Court found that the waiver included any claim of immunity Friday might have from prosecution for any past acts, whether sexual offenses or otherwise, that might be revealed through treatment or polygraph examination, and not just those related to the offense for which he was convicted. Although the Court recognized that convicted felons lose some of those constitutional rights that law-abiding citizens enjoy, Murphy held that the privilege against self-incrimination applies to both prisoners and probationers.

The Court also recognized that the state may require probationers to answer questions as a condition of probation provided the statements are not used against the probationer in a criminal prosecution. The Court stated that the requirement that the offender waive his right to self-incrimination undoubtedly furthers the public safety when it allows a sex offender who admits to ongoing dangerous offenses that would otherwise go unreported, but the Court found that the scope of the waiver goes too far in this case because it would allow the prosecution of an offender for any offense. The Court found that the state could accomplish the same goal by requiring the offender to answer questions truthfully without requiring a waiver of the privilege. If necessary, immunity could then be given the offender.

The Court also pointed out that a secondary purpose of the program was treatment and rehabilitation of the offender. By encouraging the offender to reveal and discuss mental dysfunctions, but compelling him to disclose incriminating information that could be used against him in subsequent prosecutions would discourage honesty and openness between the offender and his therapist and therefore thwart the purpose of the program. The Court also declined to limit the parameters of the waiver, finding that the statutory language was plain on its face and it had no authority to so limit it other than to hold it unconstitutional.

The Court also found that parameters of the polygraph examinations were overly broad and no limits were placed on the questions that could be asked. Under California case law, the Court found that conditions of probation are invalid when they have (1) no relationship to the crime for which the offender was convicted, (2) relate to conduct which is not in itself criminal, and (3) require or forbid conduct not reasonably related to future criminality. The Court held that the questions that could be posed during polygraph examinations must reasonably relate to the offender’s successful completion of the sex offender management program; the crime for which the offender was convicted; or to criminal behavior, whether past or future.

The Court then reviewed the arguments related to waiver of the psychotherapist-patient privilege, finding that the privilege falls within the zone of privacy first recognized by the United States Supreme Court in Griswold v. Connecticut, 381 U.S. 479 (1983). In this case, the statutory language states that the purpose of the waiver is to enable communication between the sex offender management professional and the supervising probation officer. The Court held that it would narrowly construe the requirement that the offender waive the privilege only as necessary to allow the sex offender management professional to communicate with the probation officer and provide the SARATSO scores. The Court also permitted the probation officer to communicate the scores to the Department of Justice to make them available to law enforcement. But beyond those communications, the information would remain confidential and could not be provided to third parties or used to prosecute the offender.

Finally, the Court also agreed with the defendant that the requirements of scienter, or knowledge that the conditions of probation would be violated, must be added to the conditions. The Court found that the offender could inadvertently or unknowingly come into possession of pornographic materials, obtain encryption programs that are readily available, or enter into an establishment that openly displays pornographic materials. The Court determined that the term “frequent” was also imprecise. The Court therefore modified the remaining terms to require that the offender not knowingly purchase or possess pornographic material, not knowingly utilize encryption techniques, and not knowingly enter into an establishment that openly displays pornographic material.

Found in DMHL Volume 33 Issue 2

Sexually Violent Person

No due process violation in delay of over two years (due to prison sentence in unrelated matters) between finding that defendant is a sexually violent person and the start of his confinement based on that finding

Gilbert v. McCullough, 776 F.3d 487 (7th Cir. 2015)

Carl C. Gilbert, Jr. had his parole revoked twice after he violated the conditions of his parole. These violations occurred while a civil commitment petition was pending against him, but because Gilbert was sentenced to prison after his second parole revocation, he served that sentence before being transferred to a Wisconsin Department of Health Services ("DHS") facility as a civilly committed person (a jury having found that he qualified as a sexually violent person). Gilbert argued on habeas review that his commitment was contrary to the Supreme Court's decision in Foucha v. Louisiana, 504 U.S. 71 (1992) because the interposition of his prison term caused a delay between his commitment verdict and his entry in DHS care, meaning that there was no ”current" determination that he was a sexually violent person when he entered DHS care. After the Supreme Court of Wisconsin rejected Gilbert’s due process argument, both the federal district court for the Eastern District of Wisconsin and the Court of Appeals for the Seventh Circuit expressed concern regarding the delay, but ultimately held that the decision to reject Gilbert’s due process claim did not qualify as “contrary to or an unreasonable application of clearly established United States Supreme Court precedent.”

Although the Seventh Circuit acknowledged that “[w]ere the question presented to us as an initial question of federal constitutional law, we might reach a different result” and that the “two-and-a-half year delay between the order of commitment and Gilbert's entry into DHS care is certainly a concern for us,” they found themselves “constrained…by the narrow scope of habeas review.” In distinguishing Foucha, the Seventh Circuit found that, unlike in that case, there was “no suggestion that Gilbert no longer suffers from a mental disorder.” Further, there was no ruling or even intimation that “Gilbert could be committed, or that his commitment could continue, if he no longer had a mental disorder,” which would have been a holding contrary to Foucha.

Found in DMHL Volume 34 Issue 1

Sexually Dangerous Offender

Establishing personal jurisdiction over defendant for civil commitment hearing does not require service of summons under Rule 4

United States v. Perez, 752 F.3d 398 (4th Cir. 2014)

Jose De La Luz Perez appealed the determination of the district court that he was a "sexually dangerous person” under the Adam Walsh Child Protection and Safety Act of 2006 (the “Act”). On appeal, Perez asked the Fourth Circuit to vacate the civil commitment order, contending that the district court lacked personal jurisdiction because the government failed to serve him with a summons pursuant to Rule 4 of the Federal Rules of Civil Procedure. The Fourth Circuit affirmed the order, holding that although the Federal Rules of Civil Procedure are broadly applicable in civil commitment proceedings, that does not mean that they “cannot be displaced by specific procedural provisions included in the Act.” The central question on appeal was whether the Act required the government “to serve a summons pursuant to Rule 4 [of the Federal Rules of Civil Procedure] upon a respondent in federal custody despite the obvious differences between the initiation of civil commitment proceedings under § 4248 and a typical civil action.”

The Fourth Circuit pointed to a “streamlined procedure for initiating commitment proceedings against individuals in BOP custody” contained in the statutory language that served to supplant the usual summons requirements of Rule 4. Apart from the view that the text of the statute is sufficient to displace the summons requirement of Rule 4, the Fourth Circuit pointed out that while “physical custody is no longer necessary to endow a civil court with personal jurisdiction over a defendant, it is clearly sufficient to do so," and so the fact that the government “has physical custody over the respondent in § 4248 civil commitment proceedings obviates the need for a summons.”

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

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

Sentencing of Defendants with Intellectual Disability and/or Psychiatric Issues

State v. Dabney, No. 42650-2014, 2016 WL 768121 (Idaho Feb. 29, 2016)

Trial court did not abuse its discretion when it (1) declined to reduce the sentence of defendant convicted of sexually abusing two children based upon the mitigating developmental and psychiatric circumstances, and (2) relinquished defendant to custody of Board of Correction when a suitable community-based placement could not be found.

Background: Darrien Dabney, a developmentally disabled 18-year-old, forcibly sodomized two 6-year-old boys with whose family he had been living for less than a month. He was indicted for two counts of lewd conduct and ultimately pled guilty pursuant to a plea agreement: the State would dismiss the other count and would recommend a suspended sentence of 20 years (5 fixed and the remaining indeterminate), with Dabney to be committed to a secure residential center for mentally delayed adults. When the district court determined that no suitable community placement could be found, it relinquished jurisdiction over Dabney and remanded him to the custody of the Idaho Board of Correction. Dabney filed a motion asking for reconsideration of his sentence, and, finding that Dabney had not presented any new information in support of his motion, the lower court denied reconsideration of his sentence or relinquishment of jurisdiction.

Holdings: The Supreme Court of Idaho affirmed (1) the defendant’s sentence, (2) the lower court’s order relinquishing jurisdiction, and (3) the lower court’s order denying the motion to reduce the sentence.

Notable Points:

The district court did not abuse its discretion in pronouncing its sentence or relinquishing jurisdiction over defendant: The Supreme Court of Idaho held that the trial court’s sentence was not unreasonable despite the mitigating evidence presented. Although mitigating circumstances included the defendant’s abusive upbringing, sexual abuse at age 10, and extensive psychiatric issues, the sentencing decision was not an abuse of discretion because it was based primarily on the need to protect the community. Because no suitable community placement existed, the court did not err when it eventually relinquished jurisdiction over the defendant. The trial court had retained jurisdiction for a period of time following sentencing, but once it was determined that there was no appropriate community-based facility that could allow for treatment of the defendant, it was not unreasonable for it to relinquish its jurisdiction. This holding was supported by the fact that the defendant had “ample opportunity to provide evidence regarding placements to allay [the] court’s concerns, [but] he did not do so.”

Incarcerating defendant instead of placing him on probation is constitutional: The Supreme Court also held that the district court’s decision not to place Dabney on probation clearly did not violate any of his constitutional rights. Because Dabney had already been sentenced to prison—and the only issue before the court was whether the sentence would be suspended and Dabney would be placed on probation—he had no constitutional or inherent right to be released prior to the expiration of his prison term

Found in Found in DMHL Volume 35, Issue 1

Sex Offenders; Post-Sentence Civil Commitment

State v. LeMere, 879 N.W.2d 580 (Wis. 2016)

Wisconsin Supreme Court rejects offender’s post-conviction motion to withdraw his guilty plea to child sexual assault charges, where offender argued his attorney’s failure to advise him that he could be civilly committed as a violent sex offender violated his Sixth Amendment right.

Background: LeMere was charged with one count of first-degree sexual assault of a child under the age of 13, one count of second-degree reckless endangerment, and one count of strangulation and suffocation. A status conference became a plea hearing when counsel for the parties informed the court that they had negotiated a plea agreement. Under the agreement, LeMere agreed to plead guilty to first-degree sexual assault of a child under the age of 13 in exchange for the other two charges against him being dismissed. The court then informed LeMere about the consequences of a guilty plea, including the possibility of continued civil commitment after the completion of his criminal incarceration. LeMere indicated that he understood and the court noted that LeMere appeared capable of understanding the proceedings. At a subsequent sentencing hearing, the court ordered 30 years of initial confinement followed by 15 years of extended supervision. One year later LeMere filed a motion to withdraw his guilty plea and vacate his conviction. He argued ineffective assistance of counsel because he was not informed of the possibility of lifetime civil commitment as a sexually violent person. The circuit court denied the motion and the court of appeals affirmed.

Holding: On appeal, the Wisconsin Supreme Court affirmed, holding that the failure to inform a defendant of the possibility of lifetime civil commitment does not form the basis of a claim of ineffective assistance of counsel and is not a violation of the Sixth Amendment.

Notable Points:

Failure to inform about the possibility of lifetime civil commitment as a sexually violent person distinguished from failure to inform about possibility of deportation: The Wisconsin Supreme Court distinguished this case from the failure to inform a defendant about the possibility of deportation, which the U.S. Supreme Court ruled was a violation of the Sixth Amendment. The Wisconsin Supreme Court emphasized that unlike deportation, civil commitment is not automatic or penal in nature. The court also explained that civil commitment is not meant to be permanent and is rehabilitative in nature.

Found in DMHL Volume 35, Issue 2

Sex Offenders; Conditions of Probation

Vermont v. Cornell, 2016 VT 47 (Vt. 2016)

Vermont Supreme Court rules that certain probation conditions placed by the trial court on a convicted sex offender improperly infringe on the offender’s liberty, privacy and autonomy rights.

Background: Owen Cornell was convicted of lewd and lascivious behavior with a 12- year-old boy in 2013. His prison sentence was suspended and multiple probation conditions were imposed. Cornell appealed the conditions, arguing that the “boilerplate” restrictions were invalid for a number of reasons (e.g., not sufficiently individualized, in violation of due process rights, impermissible delegation of authority to his probation officer). On remand, the trial court took consideration of additional information submitted by Cornell and testimony from his probation officer, then issued 21 new probation conditions. Cornell objected to six of the conditions, arguing that four of them had already been deemed unlawful in previous cases and two of them infringed on his liberty, privacy and autonomy rights under the U.S. and Vermont Constitutions.

Holding: The Vermont Supreme Court affirmed two conditions (prohibition on violent or threatening behavior; prohibition from places where children are known to congregate) and remanded as to four conditions. The Court found the delegation of authority to the probation officer to dictate treatment requirements to be overbroad. The Court found the condition of requiring probation officer approval for living and working location to be insufficiently specific to Cornell. The Court also agreed with Cornell that the condition requiring him to give search and seizure privileges to his probation officer was unconstitutional because it did not require reasonable suspicion for such searches. Finally, the Court found the condition imposing a blanket restriction on computer use to be overly restrictive, given that Cornell did not utilize any such technology in his offense. Concerning the computer restriction condition, the Court summarized, “We do not see a sufficient justification for such a sweeping restriction, which would render nearly all the activities of life incalculably difficult in the modern age, when such a condition would not have prevented the crime of which [a defendant] was convicted” (internal quotations removed, quoting U.S. v. Barsumyan, 517 F.3d 1154 (9th Cir. 2008)).

Notable Points:

Insufficiency of proof for “boilerplate” conditions: Prior to considering the specific challenges, the Court engaged in a brief excursus to note that the State’s “proof” concerning the appropriateness of probation conditions was insufficient, in that it merely rested upon the testimony of the probation officer that Cornell was a sex offender.

Balancing Fourth Amendment rights in sex offender cases: In the latter portion of the opinion the Court addressed the conditions that Cornell had argued infringed his liberty, privacy and autonomy rights. The Court discussed the balance of interests, including somewhat lessened rights of the probationer, but the overall need to narrowly tailor such conditions in order to avoid infringing liberty and privacy interests. The Vermont Supreme Court noted that some states (e.g., California, Indiana) have allowed suspicionless searches of probationers (and parolees), but that Vermont would continue to require reasonable suspicion for such searches.

Found in DMHL Volume 35, Issue 2

Sex Offender; Probation Violation

Zebbs v. Com., 785 S.E.2d 493 (Va. Ct. App. 2016)

A defendant whose probation requirements necessitate a sex offender program may be held in violation of his probation when he refuses to abide by a central requirement of the program, namely admitting to the misconduct for which he was convicted. Defendant who entered an Alford plea is treated as if he entered a guilty plea after conviction; therefore, an admission of guilt to the crimes he was charged with does not invoke Fifth Amendment protection.

Background: Defendant Zebbs entered an Alford plea, pleading guilty to forcible sodomy, among two other charges. An Alford plea is treated the same as a guilty plea after the defendant is tried and convicted. Zebbs was required to successfully complete a sex offender treatment program to satisfy the terms of his probation, among other terms. Admitting to the offense for which the offender received probation is a mandatory part of the program. Zebbs refused to admit to his misconduct, arguing that it was a violation of his Fifth Amendment right to require him to verbally incriminate himself and punish him for not doing so. The circuit court found Zebbs in violation of his probation, and he subsequently appealed.

Holding: A valid Fifth Amendment claim must include an admission that may carry the risk of incrimination and a substantial penalty for not giving the incriminating testimony. There was no risk of incrimination here because the misconduct Zebbs was required to admit to had already been litigated and thus an admission after the fact would not give rise to incrimination. Double jeopardy would bar the prosecution of Zebbs for admitting to misconduct for which he had been tried and convicted. Therefore, the Fifth Amendment did not protect Zebbs from cooperating with the sex offender treatment terms and the circuit court did not err in finding that he violated his probation by not completing the treatment.

Found in DMHL Volume 35, Issue 2