Friday, April 26, 2002
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Supreme Court Sets High Bar for Release of Sexually Violent Predators
By KENNETH OFGANG, Staff Writer/Appellate Courts
Prosecutors need not prove that a multiple sex offender’s prospects of re-offending are greater than 50 percent in order to obtain an extended commitment order under the Sexually Violent Predator Act, the state Supreme Court ruled yesterday.
In a ruling that a concurring justice said is likely to result in “all or nearly all” such offenders being kept behind bars, the high court overturned lower court rulings favoring the release of Patrick Henry Ghilotti.
A sexually violent predator may be committed, or recommitted, to a state hospital if there is a “substantial danger—that is, a serious and well-founded risk—of criminal sexual violence unless [the offender is] maintained in an appropriate custodial setting which offers mandatory treatment for the disorder,” Justice Marvin Baxter wrote for the majority.
New Hearing
The high court ordered a new hearing in Marin Superior Court to determine whether Ghilotti meets the criteria for involuntary hospitalization, according to the standard elucidated by Baxter. Mental health evaluators who concluded that Ghilotti was not likely to reoffend may be ordered by the trial judge to rewrite their reports to reflect that standard, the court further held.
Chief Justice Ronald M. George and Justices Joyce L. Kennard and Ming Chin joined Baxter’s opinion.
Justice Kathryn M. Werdegar concurred separately, agreeing with the majority that a trial judge can order evaluation reports rewritten when they reflect “material legal error.” But she rejected the “substantial danger” test, saying it presses the limits of constitutionality and goes beyond the Legislature’s intent that the law apply to “only those SVP’s who pose a danger distinct from and greater than the danger inevitably posed by such offenders in general.”
Dissenting Opinion
Justice Carlos Moreno, joined by Justice Janice Rogers Brown, argued in dissent that a trial judge may not order the rewriting of reports that the evaluators’ findings in Ghilotti’s case require his release.
But Moreno endorsed the substantial-danger test “with the understanding that it requires a heightened risk sufficient to ‘distinguish the dangerous sexual offender’ subject to civil commitment ‘from the dangerous but typical recidivist,’” using the language of a recent U.S. Supreme Court decision.
Ghilotti, 46, would have been the first person released from extended commitment since the SVP Act was passed in 1995.
The SVP Act allows the state to confine inmates whose prison sentences have expired, but who are deemed to be sexual predators, for successive periods of up to two years each.
To be classified as a sexually violent predator, an inmate must have been convicted of two violent sexual offenses and must be found to suffer from a mental disease or defect which makes the person “likely to engage in acts of sexual violence without appropriate treatment.”
Potential SVPs are screened by the Department of Corrections before their sentences expire. If corrections officials believe the inmate is an SVP, they notify the Department of Mental Health, which conducts a full evaluation.
DMH names two mental health professionals to conduct an evaluation. If both agree that the inmate meets the “likely to” standard, the director of mental health notifies the district attorney in the county where he was last convicted.
The district attorney may then file a petition for commitment to a state hospital, in which case a probable cause hearing—similar to a preliminary hearing in a felony case—is held. If probable cause is found, either side may request a jury trial on the issue of whether the inmate is an SVP.
If the DMH evaluators agreed that the inmate is not an SVP, the proceedings go no further and the inmate is released at the end of the sentence. But if the evaluators are divided, two additional, independent evaluators must be appointed. Only if both agree that the inmate is an SVP can proceedings go forward.
The initial commitment period is two years. An inmate may then be recommitted for unlimited, additional two-year periods if a judge or jury agrees that he is still likely to re-offend.
Ghilotti, whose criminal history goes back to childhood, was convicted in 1979 and 1985 for sex-related crimes, including raping four Marin County women. He admits raping at least six others and has spent nearly 22 years behind bars.
His 1985 conviction came after he had been out of prison for less than a year.
He was committed under the SVP Act at the end of his sentence, in 1997, following a jury trial. He did not contest being recommitted in 1999, but later petitioned for conditional release under the act.
DMH found him eligible for conditional release, but he rejected the conditions. His attorney, Marin Chief Deputy Public Defender Frank Cox, said the terms were so onerous his client thought he was better off waiting for the end of the two-year period and opposing recommitment.
“It looked like more punishment rather than more treatment,” Cox said of the release plan. Among other things, he told the METNEWS, it would have required his client to have “baby sitters” present whenever he was in the same room as a woman, even his wife.
When his case came up for two-year review, the evaluators submitted reports concluding that he was not likely to reoffend. DMH, however, concluded that reoffense was likely, based on comments in the reports suggesting that Ghilotti was at risk of reoffending in the absence of outpatient treatment.
Based on that conclusion, the director of mental health—an appointee of Gov. Gray Davis—asked the Marin district attorney to file a recommitment petition. Attached to the petition were declarations from the medical director at Atascadero State Hospital and a staff psychiatrist there, suggesting that Ghilotti was a danger to women.
The psychiatrist, who had supported conditional release, said Ghilotti needed to be in therapy and to continue taking Luprone, a drug that inhibits sexual functioning. While Ghilotti said he would continue taking the drug, she noted, fewer than 10 percent of sex offenders released from hospital commitments stay on their medication for more than two or three years.
Both the Marin Superior Court judge and the First District Court of Appeal panel rejected prosecutors’ contention that DMH can request recommitment even if the evaluators report that the statutory criteria have not been met.
Baxter partially agreed, saying that the department is bound by the evaluators’ conclusions unless they have used the wrong legal standard. If DMH and the district attorney seek recommitment despite the evaluators’ findings, and the judge finds that the evaluators have not committed material legal error, the proceedings must be dismissed and the offender released, Baxter said.
Cox said no decision has been made on whether to seek review in the U.S. Supreme Court. But given his “willingness and ability to seek out voluntary assistance,” Cox said, Ghilotti should be released even under the majority’s standard.
The decision, however, is “so unclear [in attempting ]to distinguish mentally impaired from criminally responsible persons that it does raise constitutional questions” that the U.S. Supreme Court may want to address, the defense attorney said.
Hallye Jordan, a spokeswoman for Attorney General Bill Lockyer, said the attorney general was “pleased that the court defined what ‘likely to reoffend’ means” and agreed that trial judges should have the authority to review experts’ reports.
The governor issued a statement hailing the decision. Ghilotti, he said, is “a violent, serial, sexual predator” who “should remain locked up.” Davis applauded “the high court’s wisdom in ensuring that proceedings to recommit him can now go forward.”
The case is People v. Superior Court (Ghilotti), 02 S.O.S. 1984.
Copyright 2002, Metropolitan News Company