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Court Orders Washington DOC to Stop Dragging Its Feet on Sex Offender Release Plans

Court Orders Washington DOC to Stop Dragging Its Feet
on Sex Offender Release Plans

by Hank Balson

The Washington Court of Appeals ruled in May that the state's Department of Corrections (DOC) has been illegally delaying decisions on early release plans for sex offenders, depriving certain prisoners of their earned early release credits without due process. The court held that DOC must act on proposed release plans in a timely manner, so as to ensure the inmate has a genuine opportunity to benefit from the earned early release credits.

Washington prisoners incarcerated for sex offenses are eligible to earn early release credits that may enable them to transfer to community custody prior to the completion of their maximum sentence. As such prisoners approach their earned early release date, they are required to submit a plan for transferring to community custody. DOC used to prohibit certain prisoners from submitting community custody plans if the state was considering referring them for possible civil commitment proceedings.

In 2002 the Washington Court of Appeals ruled that DOC could not deprive a prisoner of his earned early release credits solely because DOC was considering referring that prisoner for civil commitment under Washington's sex offender civil commitment statute. See: In re the Personal Restraint Petition of Dutcher, 114 Wn. App. 755, 60 P.3d 635 (2002). Regardless of DOC's civil commitment considerations, the court held, the Department must allow prisoners to submit a community release plan, and must make decisions about prisoners' eligibility for community custody based on the merits of the release plan.
In response to that ruling DOC adopted a new practice, requiring all prisoners being considered for civil commitment to wait until DOC obtained a forensic psychological evaluation before their release plans could be approved or denied. The purpose of the evaluation was to help DOC decide whether to refer prisoners to prosecutors for possible civil commitment. However, DOC failed to ensure that forensic psychological evaluations were obtained prior to prisoners' earned early release dates. In some cases, DOC wasn't even scheduling the evaluations until many months after a prisoner's earned early release date had passed. Consequently, some prisoners were being held long past their earned release dates, in violation of state statutes and the requirements of due process.

Although the Department of Corrections is free to obtain a forensic psychological evaluation of a prisoner if it so chooses, the Court ruled that DOC is not authorized to postpone consideration of a prisoner's community custody plan while it awaits the results of such an evaluation.

The ruling applies to prisoners with determinate sentences as well as prisoners under the jurisdiction of Washington's Indeterminate Sentence Review Board.
The petitioners in this case were represented by Seattle attorneys Hank Balson of the Public Interest Law Group, PLLC, and Suzanne Elliott. The state did not seek review in the state supreme court. See: In re Liptrap, 111 P.3d 1227 (Wa. App. Div. I, 2005).

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Related legal case

In re Liptrap

¶ 20 The department responded by allowing Dutcher and other similarly situated inmates to submit a release plan. But now, the department has instructed its staff not to investigate a release plan until a forensic psychological evaluation of the inmate is completed and available for review. An internal memo reflecting the department's response to the Dutcher decision, dated February 2003 and authored by the Assistant Deputy Secretary of the Department of Corrections, succinctly states the department's current practice. The memo spells out the duty of the *473 Community Corrections Officer (CCO) to " pend" investigation of a proposed plan until a forensic report has been completed and reviewed:
Policy 350.200 will be updated and reflect the following:
" It will not exclude this category of offender from submitting a plan.
**1233 " If an inmate has been referred for civil commitment as a sexually violent predator and found by the End of Sentence Review Committee to appear to meet the definition of a sexually violent predator, the CCO must, as part of their investigation of the plan, review the End of Sentence Review file.... CCOs must review all psychology reports, psychiatric reports and all forensic psyc reports. If a forensic psyc report is not yet available the CCO is to pend their investigation until one is completed and reviewed. Only after all information has been reviewed, may a plan be accepted or denied.

¶ 21 Petitioners argue the newly amended policy suffers from the same defect identified in Dutcher. That is, the department has created another unauthorized exemption from its obligation to timely review proposed plans on their merits. The department responds that the new policy protects community safety because it ensures a thoroughly informed decision by the community custody officer who reviews a proposed plan.

¶ 22 The record does not demonstrate that the department needed information learned in the forensic evaluation in order to reject Liptrap's and Norwood's release plans. The department denied Liptrap's release plan in May 2004 "due to day care close to proposed residence". [FN4] The department denied Norwood's release plan in March 2004 because his proposed address was in a neighborhood with many young children. [FN5] A residence near young children is a legitimate statutory reason for disapproving a release plan *474 for a sex offender. RCW 72.09.340(3). [FN6] No reason appears why the department could not have rejected the proposed release plans months earlier, citing residence location as the reason.

FN4. Offender Chronological Report of Jeffrey Liptrap, at 12.

FN5. Offender Chronological Report of Daniel Sellers, at 19-21.

FN6. The statute provides in relevant part:
"For any offender convicted of a felony sex offense against a minor victim after June 6, 1996, the department shall not approve a residence location if the proposed residence: (a) Includes a minor victim or child of similar age or circumstance as a previous victim who the department determines may be put at substantial risk of harm by the offender's residence in the household; or (b) is within close proximity of the current residence of a minor victim, unless the whereabouts of the minor victim cannot be determined or unless such a restriction would impede family reunification efforts ordered by the court or directed by the department of social and health services. The department is further authorized to reject a residence location if the proposed residence is within close proximity to schools, child care centers, playgrounds, or other grounds or facilities where children of similar age or circumstance as a previous victim are present who the department determines may be put at substantial risk of harm by the sex offender's residence at that location." RCW 72.09.340(3).

¶ 23 There is of course no statute precluding the department from obtaining a forensic evaluation of a sex offender who is approaching his earned early release date. The petitioners do not question the department's right to do so. The issue raised by the petitioners is whether delay in obtaining an evaluation justifies delay in the consideration of the release plan.

¶ 24 The department justifies the delay on the basis of the grave risk that Liptrap and Norwood will reoffend, a risk well documented in their evaluations. The department is right to be concerned about the risk. But if there is to be extended confinement for sex offenders based on their risk of reoffense, it must be accomplished within the constraints of due process, such as the initiation of a civil commitment proceeding. Administrative delay in deciding whether a particular inmate qualifies for a civil commitment referral does not justify delay in consideration of the inmate's release plan, if he has become eligible for transfer into community custody.

¶ 25 As we said in Dutcher, a practice of institutionalized delay, though it may appear "superficially sensible and administratively efficient," is actually "at odds with both public safety and the purpose of earned early release." *475 Dutcher, 114 Wash.App. at 764, 60 P.3d 635. Such a practice undercuts important policy objectives that are embodied in the statutes. First, early release credits have significance in prison management:
**1234 Early release programs are important prison management tools, which help DOC maintain control over the prison population by providing an incentive for an inmate to conform his behavior to prison rules. Denying earned early release credits to every sex offender DOC believes eligible for eventual referral to civil commitment leaves a dangerous class of inmates with little reason to obey prison rules or participate in prison treatment programs.
... An inmate whose motivation to engage in treatment programs is the possibility of earning early release credits, but who is ineligible for release because of the potential referral, may well end up in the community without benefit of treatment.
Dutcher, 114 Wash.App. at 764, 60 P.3d 635. Second, for many of the prisoners who are referred by the End of Sentence Review Committee, no civil commitment proceedings will be initiated. [FN7] A rule that keeps sex offenders in confinement long after their earned early release dates means that these prisoners--who are among the most likely to reoffend--will eventually arrive in the community without a comprehensive release plan and subject to little or no supervision. As we said in Dutcher, the "community custody system was designed in part to help an offender become established in the community and minimize his risk to reoffend." Dutcher, 114 Wash.App. at 765, 60 P.3d 635. A policy that arbitrarily delays consideration and approval of a viable release plan "contravenes this objective." Dutcher, 114 Wash.App. at 765, 60 P.3d 635.

FN7. In Dutcher, we cited a 1998 study stating that two-thirds of the prisoners referred by the Department do not actually become respondents in sexual predator proceedings. See Dutcher, 114 Wash.App. at 764 n. 26, 60 P.3d 635. At oral argument in this case, counsel for the department represented that according to a 2004 report, now 50 percent of the department's referrals result in civil commitment proceedings.

*476 ¶ 26 The department must act on proposed release plans in a timely manner, so as to ensure the inmate has a genuine opportunity to benefit from the earned early release credits. In Crowder, the department followed its program, worked with the prisoner to identify a suitable placement, and eventually released him into community custody. His actual release came several months after his earned early release date, but the delay was justifiable because the placements he initially proposed were unsatisfactory. The department has not stated a legitimate reason for treating Liptrap and Norwood differently from Crowder.

¶ 27 We conclude that the department's application of its new policy to Liptrap and Norwood deprived them of earned early release credits in violation of due process. This practice should not continue.

¶ 28 Sellers persuasively argues for similar relief. Although an inmate under the jurisdiction of the Indeterminate Sentence Review Board generally does not have a liberty interest in being released before serving a full maximum sentence, the inmate "may be entitled to relief ... where the Board fails to follow the law or its own procedures." In Re Personal Restraint Petition of Marler, 108 Wash.App. 799, 810, 33 P.3d 743 (2001).

¶ 29 The board is required by statute to make decisions about an inmate's duration of confinement. RCW 9.95.009(2). We held in Marler that a board decision finding an inmate to be "conditionally parolable" subject to preparation by the Department of Corrections of a "Mutual Agreement Program" or MAP (essentially, a structured plan for transition to the community) "does not qualify as a decision on the duration of confinement unless the MAP process occurs within a predictable time frame." Marler, 108 Wash.App. at 810, 33 P.3d 743. Although a joint policy of the board and the department contemplated 90 days for development of a MAP, more than 14 months passed after the board *477 determined Marler to be parolable, and the department had failed to develop a MAP for Marler. We concluded the board had unlawfully delegated its duty to make a decision on the duration of confinement to the department. Thus, remand to the board to ensure immediate implementation of a **1235 MAP was appropriate. Marler, 108 Wash.App. at 810-11, 33 P.3d 743.

¶ 30 Like in Marler, the Indeterminate Sentence Review Board found Sellers parolable, but subject to the department approving a reasonable parole plan. Sellers submitted a plan in September 2003. The department, having identified Sellers for potential civil commitment proceedings, postponed consideration of his parole plan pending a forensic psychological evaluation. The department did not assign a psychologist to perform the forensic evaluation until six months after Sellers submitted a parole plan. As of May 7, 2004, the department was still awaiting a completed evaluation for Sellers. [FN8]

FN8. Declaration of Kimberly Acker.

¶ 31 Sellers' evaluator has since concluded that Sellers does not meet the statutory criteria for civil commitment, according to the representation made by petitioners' counsel at oral argument. Thus, Sellers' petition too is now technically moot; the department is no longer refusing to consider his release plan. We will reach the merits, however, for the same reasons as with Liptrap and Norwood.

¶ 32 The department has an obligation under RCW 72.04.070 to prepare conditions of supervision under which an inmate who is eligible for parole may be released from custody. Under the current form of policy 350.200, the department considers itself obligated to obtain a forensic psychological evaluation before preparing a supervision plan. The department's policy fails to ensure that a plan of supervision will be prepared within a reasonable time after the inmate becomes eligible for parole. Under the reasoning of Marler, the board's decision to make Sellers' parole subject to action by the department was not a duration of confinement decision. A determination that an inmate is parolable is illusory when conditioned upon review by the department, unless review can be completed within a predictable timeframe reasonably close to the parolability determination. Following Marler, we conclude that the board's decision to delegate approval of Sellers' parole plan to the department deprived him of his statutory right to a duration of confinement decision, in violation of due process.

¶ 33 In summary, the three petitioners have satisfied the requirements of RAP 16.4 and have shown unlawful restraint.


127 Wash.App. 463, 111 P.3d 1227