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Washington Civil Commitment Held in Contempt

by Ron Petersen and Tamara Menteer

On November 15, 1999, after 6 years overseeing an injunction, a federal judge issued a ruling finding the Washington state civil commitment facility known as The Special Commitment Center (SCC) , the nation's first civil commitment program designed to re-incarcerate sex offenders beyond the lengths of their original sentences, in contempt of court.

In Judge William L. Dwyer's ruling (Turay v. Seling, C91-664WD, Sharp v. Weston, C94-121WD, and Pedersen v. Hill, C94-211WD, Hall v. Quasim, C95-1111WD, and Petersen v. Dehmer, C96-415WD) he stated, "These basic treatment requirements were ordered long ago; the continued failure to achieve full compliance is unexcused." Judge Dwyer ordered the defendants, Mark Seling, Ph.D., Superintendent, and Vincent Gollogly, Ph.D., acting Clinical Director, to put into place what was ordered in 1994. If the defendants fail to do so, they will be fined $50 per resident, per day, beginning May 1, 1999. The current population of the SCC is 98 residents. The fines will go directly to the court where Judge Dwyer will administer the money to the residents.

Washington's Attorney General, Christine O. Gregoire, has appealed the contempt order to the Ninth Circuit Court of Appeals. In the judge's Finding of Fact he said, "The defendants have fallen into a pattern of first denying that anything is amiss at SCC, then engaging in a flurry of activity to make improvements before the next court hearing, then admitting at the hearing that shortfalls of constitutional magnitude still exist, then returning to denial." The Plaintiffs are here again forced to deal with the Defendants' denial in the form of appeal.

The residents of the SCC have gained little ground since the ruling of November 15, 1999. Several employee changes have resulted in a complete breakdown of the grievance and abuse policies. It is important to note the SCC is located wholly within a DOC prison facility and is entirely dependent upon DOC for all services. Commissary orders from the prison store have all but stopped since the contempt order was issued. Requests to transfer funds from resident accounts for the purpose of paying bills or purchases have come to a standstill.

Many residents view these tactics as retaliation for fighting the program in courts. The Attorney General of Washington has been instructing the defendants regarding what residents are entitled to, and that position has always been far below minimum standards. The majority of residents now believe that the civil commitment law that has incarcerated them, RCW 71.09, has only one purpose and that is to imprison them for the rest of their natural lives. In the years of operation the civil committees that have been released from SCC have done so through litigation. The SCC has yet to "cure" anyone.

Less than a week after the ruling, Washington's Governor, Gary Locke, promised the SCC a fast $18 million in an attempt to thwart a possible collapse of the program. Perhaps when Washington taxpayers find themselves paying 100 sex offenders $5000 per day to stay in prison, the irony of the issue could sink in we will see, come May 1, 2000.

There is one additional factor that is yet to show up on the balance sheet at least five more lawsuits are pending against the SCC. Judge Dwyer has not lost this point, and even reminded the state, "The importance of injunction compliance in these cases is underscored by two Washington Supreme Court decisions filed on October 21, 1999, In Re Detention of Turay, (139 Wn2d, p.379) and Campbell v. Washington, (139 Wn2d, p. 341)."

Dwyer also noted Young v. Weston (Vol. 192, Fd. Rep.3, p. 9715- amended ruling of 9th Circuit, Sept. 16, 1999, and Vol 176, Fd. Rep. 3, Case 1196, original ruling),raises the question whether the conditions of confinement are punitive for purposes of ex post facto and double jeopardy analysis, stating, "the present injunction proceedings are important not just in their own right but to the above-cited cases and to others brought by SCC residents in state and federal courts."

In his ruling, Judge Dwyer pointedly commented that the state did not have to create this law, but since it had done so, it would need to be fairly implemented. He noted that in order to come into full compliance, the program would need to develop bona fide release mechanisms, which would necessitate halfway houses and a systematic program for Less Restrictive Alternative sentences. He reprimanded the program, stating, "With nearly a hundred men in confinement, such a long delay is unacceptable in view of the time already allowed," and, "The record in these cases shows footdragging which has continued for an unconscionable time."

Although the state is given wide latitude in determining what is constitutionally adequate treatment per the U.S. Supreme Court Hendricks (521 U.S. at 368 n.4) ruling on this form of civil commitment, Judge Dwyer cited Youngberg (457 U.S. at 323 {1982}) in justifying that such decisions cannot depart from accepted professional judgement, practice or standards. He noted, "[T]he Defendants have departed so substantially from professional minimum standards as to demonstrate that their decisions and practices were not and are not based on their professional judgement."

Look for future articles regarding sexual offender civil commitment written by Whitestone Foundation in upcoming issues of PLN. Whitestone Foundation is a nonprofit organization with the mission to provide a forum for critical analysis of such civil commitment schemes as they unfold throughout the U.S. Subscription to the monthly newsletter can be obtained for the cost of $10.00 per year by writing to Whitestone at PO Box 1138, Bothell, and WA 98041-1138. Sorry stamps in trade for subscriptions are not accepted.

[Note: In 1998 DSHS paid 16 sex offenders at the CCC $10,000 each to settle their lawsuit for not receiving treatment while confined there. They were awarded some $260,000 in attorney fees as well.]

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Related legal case

Turay v. Seling