Agid, J.
¶1 Robert Bergen appeals the trial court’s order denying him a less restrictive alternative (LRA) placement as a sexually violent predator (SVP). Bergen contends that by allowing the State to defeat a proposed LRA by showing that it is not in his “best interests,” RCW 71.09.090 violates his right to due process because it is not narrowly tailored to justify commitment of violent sex offenders. He also challenges as unconstitutionally vague the statutory requirements that an LRA be in the SVP’s “best interests” and “adequately protect the community.” He contends the trial court erred by failing to give the jury his proposed instruction defining “adequate community safety.” Finally, he asserts the trial court erred by allowing testimony that he participated in annual reviews because it encouraged the jury to speculate that the previous reviews did not support conditional release. We hold the statute does not deny Bergen’s right to due process and is not unconstitutionally vague. The stated legislative intent of the SVP statute indicates that the “best interests” standard applies to the mental health treatment needs of a violent sex offender, a standard which must be met to justify release to an LRA. And the terms “best interests” and “adequate community safety” can be understood by persons of common intelligence and reasonably applied within the statute’s intent. Finally, evidence of Bergen’s annual reviews was relevant foundation evidence. We therefore affirm.
[521] FACTS
¶2 On November 2, 2001, Robert Bergen was found to be an SVP and ordered committed to the Special Commitment Center (SCC). He was 74 years old at the time and was anticipating release on a 1997 conviction for communicating with a minor for immoral purposes. Bergen’s sex offense history spans 50 years, from 1947 through 1997, and includes convictions for indecent liberties, contributing to the delinquency of a minor, second degree assault, and communicating with a minor for immoral purposes, all of which involved minors, both male and female. The most recent offense occurred at his home, approximately 150 feet from an elementary school. At that time, witnesses reported Bergen talked to children passing by his home and parked his car by the school to offer to fix children’s bicycles.
¶3 In 2005, Bergen retained an independent forensic psychologist, Dr. Robert Prentky, to evaluate a plan for conditional release to an LRA placement. Based on the results of this evaluation, Bergen petitioned for an LRA under RCW 71.09.090. In support of the petition, Dr. Prentky advised that given Bergen’s advanced age, an LRA would be in his best interest and the proposed plan would adequately protect the community. On April 27, 2006, the trial court entered an order finding cause to schedule a jury trial to determine whether Bergen should be granted conditional release to an LRA.
¶4 At trial, Bergen presented his proposed conditional release plan, which returned him to the home where he committed the most recent offense. He proposed to reside there with his wife, follow the conditions of his sentence imposed on the 1997 conviction, and attend sex offender treatment. His plan also provided that he would register as a sex offender, agree to Global Positioning System (GPS) surveillance, not drive, not use the Internet, and comply with all conditions imposed by his supervising corrections officer.
[522] ¶5 Prentky also testified and opined that the release plan served Bergen’s best interests because it would allow him to live out the remainder of his life with his wife under less restrictive circumstances. He also described the plan as “close to water tight” and testified that it would provide more than adequate community safety. Prentky did not interview Bergen but testified that personal contact with Bergen was unnecessary because he was asked to address the “fairly narrow question” of whether the LRA was appropriate.
¶6 The State presented testimony from Dr. Paul Spizman, who conducted three statutorily required annual review evaluations1 of Bergen. Spizman interviewed Bergen, his wife, his nurse practitioner, and his proposed treatment provider. Spizman opined that Bergen suffers from pedophilia and antisocial personality disorder and that he would continue to be a high risk to reoffend if released under the proposed LRA.
¶7 Dr. Jonathon Allison, a forensic evaluator at the SCC, also testified for the State about an interview he conducted with Bergen in 2006 during an annual review. During that interview, Bergen said that he refused to participate in treatment at the SCC and that treatment was an indication of weakness. He also told Allison that he never hurt anyone “except to knock them unconscious,” described how he could do that with a “choke hold,” and said that his hand “was classified as a lethal weapon.” He denied the 1996 offense and said that if he was in a car and saw the victim, he would press his foot on the accelerator. He also told Allison, “ T would have been better off if I had killed the boy in my residence. My only mistake was to let him go.’ ”
¶8 The State also called Randy Green, the treatment provider Bergen suggested in his release plan. Green testified that he interviewed Bergen in December 2005 and that he was willing to treat Bergen if he was conditionally released. He also testified that the LRA was “as good as it’s [523] going to get,” but that he had concerns about it. He questioned the effectiveness of GPS surveillance to prevent offenses of the type Bergen most recently committed and the appropriateness of his wife as a chaperone given her age and denial of his history. He also noted Bergen’s history of denial and remorselessness. He further testified that given Bergen’s past treatment failures, it was unlikely that the proposed treatment would have a positive effect on him.
¶9 Additional witnesses for the State included Randall Griffith, Bergen’s nurse practitioner at the SCC; Joseph Beard, a detective who oversees and conducts registration of sex offenders in Snohomish County; and Tela Wilson, a community corrections officer. Griffith testified that aside from mild arthritis, Bergen was “very fit for his age” and “very mobile.” Beard testified that the Department of Corrections asked him to investigate Bergen’s proposed LRA, including the proposed release address. He said a day care, elementary school, soccer field, and parks were in close proximity to Bergen’s home, and school bus stops were visible from his home. Wilson testified that GPS surveillance monitors whether an offender is within 75 to 200 feet of the home and alerts a corrections officer once the offender leaves that vicinity.
¶10 The trial court instructed the jury that the State had to prove beyond a reasonable doubt that Bergen’s proposed LRA was not in his best interests or did not include conditions that would adequately protect the community.2 The court refused to give Bergen’s proposed instruction defining “adequate community safety.” The jury returned a verdict finding that the State had proved both factors beyond a reasonable doubt.
Free access — add to your briefcase to read the full text and ask questions with AI
Agid, J.
¶1 Robert Bergen appeals the trial court’s order denying him a less restrictive alternative (LRA) placement as a sexually violent predator (SVP). Bergen contends that by allowing the State to defeat a proposed LRA by showing that it is not in his “best interests,” RCW 71.09.090 violates his right to due process because it is not narrowly tailored to justify commitment of violent sex offenders. He also challenges as unconstitutionally vague the statutory requirements that an LRA be in the SVP’s “best interests” and “adequately protect the community.” He contends the trial court erred by failing to give the jury his proposed instruction defining “adequate community safety.” Finally, he asserts the trial court erred by allowing testimony that he participated in annual reviews because it encouraged the jury to speculate that the previous reviews did not support conditional release. We hold the statute does not deny Bergen’s right to due process and is not unconstitutionally vague. The stated legislative intent of the SVP statute indicates that the “best interests” standard applies to the mental health treatment needs of a violent sex offender, a standard which must be met to justify release to an LRA. And the terms “best interests” and “adequate community safety” can be understood by persons of common intelligence and reasonably applied within the statute’s intent. Finally, evidence of Bergen’s annual reviews was relevant foundation evidence. We therefore affirm.
[521] FACTS
¶2 On November 2, 2001, Robert Bergen was found to be an SVP and ordered committed to the Special Commitment Center (SCC). He was 74 years old at the time and was anticipating release on a 1997 conviction for communicating with a minor for immoral purposes. Bergen’s sex offense history spans 50 years, from 1947 through 1997, and includes convictions for indecent liberties, contributing to the delinquency of a minor, second degree assault, and communicating with a minor for immoral purposes, all of which involved minors, both male and female. The most recent offense occurred at his home, approximately 150 feet from an elementary school. At that time, witnesses reported Bergen talked to children passing by his home and parked his car by the school to offer to fix children’s bicycles.
¶3 In 2005, Bergen retained an independent forensic psychologist, Dr. Robert Prentky, to evaluate a plan for conditional release to an LRA placement. Based on the results of this evaluation, Bergen petitioned for an LRA under RCW 71.09.090. In support of the petition, Dr. Prentky advised that given Bergen’s advanced age, an LRA would be in his best interest and the proposed plan would adequately protect the community. On April 27, 2006, the trial court entered an order finding cause to schedule a jury trial to determine whether Bergen should be granted conditional release to an LRA.
¶4 At trial, Bergen presented his proposed conditional release plan, which returned him to the home where he committed the most recent offense. He proposed to reside there with his wife, follow the conditions of his sentence imposed on the 1997 conviction, and attend sex offender treatment. His plan also provided that he would register as a sex offender, agree to Global Positioning System (GPS) surveillance, not drive, not use the Internet, and comply with all conditions imposed by his supervising corrections officer.
[522] ¶5 Prentky also testified and opined that the release plan served Bergen’s best interests because it would allow him to live out the remainder of his life with his wife under less restrictive circumstances. He also described the plan as “close to water tight” and testified that it would provide more than adequate community safety. Prentky did not interview Bergen but testified that personal contact with Bergen was unnecessary because he was asked to address the “fairly narrow question” of whether the LRA was appropriate.
¶6 The State presented testimony from Dr. Paul Spizman, who conducted three statutorily required annual review evaluations1 of Bergen. Spizman interviewed Bergen, his wife, his nurse practitioner, and his proposed treatment provider. Spizman opined that Bergen suffers from pedophilia and antisocial personality disorder and that he would continue to be a high risk to reoffend if released under the proposed LRA.
¶7 Dr. Jonathon Allison, a forensic evaluator at the SCC, also testified for the State about an interview he conducted with Bergen in 2006 during an annual review. During that interview, Bergen said that he refused to participate in treatment at the SCC and that treatment was an indication of weakness. He also told Allison that he never hurt anyone “except to knock them unconscious,” described how he could do that with a “choke hold,” and said that his hand “was classified as a lethal weapon.” He denied the 1996 offense and said that if he was in a car and saw the victim, he would press his foot on the accelerator. He also told Allison, “ T would have been better off if I had killed the boy in my residence. My only mistake was to let him go.’ ”
¶8 The State also called Randy Green, the treatment provider Bergen suggested in his release plan. Green testified that he interviewed Bergen in December 2005 and that he was willing to treat Bergen if he was conditionally released. He also testified that the LRA was “as good as it’s [523] going to get,” but that he had concerns about it. He questioned the effectiveness of GPS surveillance to prevent offenses of the type Bergen most recently committed and the appropriateness of his wife as a chaperone given her age and denial of his history. He also noted Bergen’s history of denial and remorselessness. He further testified that given Bergen’s past treatment failures, it was unlikely that the proposed treatment would have a positive effect on him.
¶9 Additional witnesses for the State included Randall Griffith, Bergen’s nurse practitioner at the SCC; Joseph Beard, a detective who oversees and conducts registration of sex offenders in Snohomish County; and Tela Wilson, a community corrections officer. Griffith testified that aside from mild arthritis, Bergen was “very fit for his age” and “very mobile.” Beard testified that the Department of Corrections asked him to investigate Bergen’s proposed LRA, including the proposed release address. He said a day care, elementary school, soccer field, and parks were in close proximity to Bergen’s home, and school bus stops were visible from his home. Wilson testified that GPS surveillance monitors whether an offender is within 75 to 200 feet of the home and alerts a corrections officer once the offender leaves that vicinity.
¶10 The trial court instructed the jury that the State had to prove beyond a reasonable doubt that Bergen’s proposed LRA was not in his best interests or did not include conditions that would adequately protect the community.2 The court refused to give Bergen’s proposed instruction defining “adequate community safety.” The jury returned a verdict finding that the State had proved both factors beyond a reasonable doubt.
I. “Best Interests” Standard
A. Due Process
¶11 Bergen first argues that the statutory provision that allows the State to defeat a LRA based on proof that it is not [524] in the offender’s best interest violates his right to due process. He argues that the “best interests” standard in ROW 71.09.090 does not relate to dangerousness and mental illness concerns that justify involuntary commitment. Thus, he contends, it is not narrowly tailored to serve the compelling state interest in treating sex predators and protecting society from their actions.
f 12 A statute is presumed constitutional, and the party challenging it bears the burden of proving it is unconstitutional beyond a reasonable doubt.3 The due process clause of the constitution requires that a person shall not be deprived of life, liberty, or property without due process of law.4 When a state’s laws impinge on fundamental rights, they must further compelling state interests and be narrowly drawn to serve those interests.5 The threshold question in any due process challenge is whether there has been a deprivation of a protected interest in life, liberty, or property.6 When there is no alleged violation of a fundamental right, the challenged state action is not subject to strict scrutiny but need only be rationally related to a legitimate government interest.7
¶13 Bergen asserts that he has a fundamental liberty interest in his conditional release because “[i]nvoluntary civil commitment and indefinite detention are serious infringements of an individual’s liberty interest.”8 Bergen cites case law involving due process challenges to the initial [525] SVP commitment, not to a postcommitment petition for an LRA, which is at issue here.9 Thus, we must first determine whether Bergen has a liberty interest in a petition for an LRA once he has already been committed as an SVP. In this analysis, it is important to recognize that Bergen does not contend he is no longer an SVP. He seeks release into the community as an adjudicated SVP.
¶14 Liberty interests may arise from either of two sources: the due process clause and state laws.10 The due process clause does not, of its own force, create a liberty interest when an inmate seeks release before serving the full maximum sentence.11 Similarly, the due process clause does not create a liberty interest when an SVP seeks release before the court has determined that he or she is no longer likely to reoffend or that he or she is entitled to conditional release to an LRA.12
¶15 But state statutes or regulations can create due process liberty interests where none would have otherwise existed.13 “By enacting a law that places substantive limits on official decisionmaking, the State can create an expectation that the law will be followed, and this expectation can rise to the level of a protected liberty interest.”14 Thus, laws that dictate a particular outcome based on particular facts can create liberty interests, but laws granting a significant degree of discretion cannot.15
¶16 In In re Personal Restraint of Cashaw, the court held that certain procedural regulations for parole hearings did [526] not create a liberty interest.16 Because an inmate cannot be released unless the Indeterminate Sentence Review Board determines that the inmate has been rehabilitated, the court concluded that the decisions on an inmate’s parolability are not guided by “ ‘substantive predicates’ ” and “ ‘specific directives’ ” from which “ ‘a particular outcome must follow.’ ”17 Rather they were “ ‘subjective appraisals’ ” of the degree to which an inmate has been rehabilitated and a “ ‘discretionary assessment of a multiplicity of imponderables.’ ”18
¶17 Similarly, in In re Detention of Enright, this court held that an SVP does not have a liberty interest in a hearing on his classification as a level III sex offender.19 Citing Cashaw, the court held that because risk assessment classifications involve “subjective appraisals” by a committee that assigns risk levels and local law enforcement, both of which are vested with significant discretion in making that determination, the sex offender registration and disclosure statutes did not create a substantive liberty interest in the risk assessment classification.20
f 18 Here, as in Enright, the due process clause does not create a liberty interest in a conditional release to an LRA because an SVP offender does not have a liberty interest in being released before a court determines that the SVP is entitled to such a release. But RCW 71.09.090, the statute that provides for an LRA, contains “substantive predicates” and “specific directives” from which “a particular outcome must follow.” The statute provides that an SVP who petitions for an LRA is entitled to a show cause hearing in which the court determines whether probable cause [527] exists to warrant a hearing on whether the conditional release to an LRA is appropriate.21 If the court determines probable cause exists, the SVP is entitled to a jury trial in which the State may defeat the LRA only by proof beyond a reasonable doubt that the LRA either is not in the offender’s best interests or does not adequately protect the community.22
¶19 Thus, unlike the parole procedures in Cashaw or the classification procedures in Enright, this determination is not based on discretionary assessments or subjective appraisals by nonjudicial entities or law enforcement, but involves a judicial determination of probable cause and requires the State to affirmatively defeat the LRA by proof beyond a reasonable doubt of one of two statutory factors. The statute further provides that at this hearing, the SVP shall be entitled “to the benefit of all constitutional protections that were afforded to the person at the initial commitment proceeding.”23 Thus, the statutory provisions that allow an SVP to petition for an LRA dictate a particular outcome based on particular facts and therefore create a liberty interest in a conditional release to an LRA. Consequently, we will apply strict scrutiny and determine whether the statutory procedures are narrowly tailored to serve a compelling state interest.
¶20 In reviewing substantive due process challenges to the SVP statute, our courts have recognized that “the State has a compelling interest both in treating sex predators and protecting society from their actions.”24 But the State must prove that a person is both mentally ill and dangerous to justify civil commitment under the due process clause of the constitution.25 Here, the State met that burden when Bergen was adjudicated an SVP. As the State [528] points out, he does not challenge that finding or seek release but only seeks an alternative placement as an SVP. Thus, his continued commitment is still supported by findings of mental illness and dangerousness and his unchallenged status as an SVP. The LRA determination is a separate inquiry and is focused on whether the SVP — who has already been found to be dangerous and mentally ill — should be transferred to an LRA that will continue to serve the statutory objectives of treating the SVP and keeping the community safe.
¶21 The stated legislative intent of RCW 71.09.090 includes the following findings about the appropriateness of LRAs:
[C]ivil commitment pursuant to chapter 71.09 RCW address [es] the “very long-term” needs of the sexually violent predator population for treatment and the equally long-term needs of the community for protection from these offenders. The legislature finds that the mental abnormalities and personality disorders that make a person subject to commitment under chapter 71.09 RCW are severe and chronic and do not remit due solely to advancing age or changes in other demographic factors.
... [A] mere advance in age or a change in gender or some other demographic factor after the time of commitment does not merit a new trial proceeding under RCW 71.09.090. [A] new trial ordered under [such] circumstances . . . subverts the statutory focus on treatment and reduces community safety by removing all incentive for successful treatment participation in favor of passive aging and distracting committed persons from fully engaging in sex offender treatment.
. . . The legislature has, under the guidance of the federal court, provided avenues through which committed persons who successfully progress in treatment will be supported by the state in a conditional release to a less restrictive alternative that is in the best interest of the committed person and provides adequate safeguards to the community and is the appropriate next step in the person’s treatment.