JURY BIAS RESULTING IN INDEFINITE COMMITMENT: EXPANDING PROCEDURAL PROTECTIONS IN SVP CIVIL COMMITMENT PROCEEDINGS UNDER THE MATHEWS TEST.

INTRODUCTION 2077 I. HISTORY OF SEXUALLY VIOLENT PREDATOR STATUTES 2079 A. Civil Commitment of the Mentally Ill 2080 B. Constitutional Challenges to State SVP Statutes 2080 C. The Federal Statute and Recent Challenges 2083 II. CURRENT PROCEDURAL PROTECTIONS IN SVP CIVIL COMMITMENT PROCEEDINGS 2084 A. Overview of the SVP Civil Commitment Proceeding 2085 B. Respondents' Rights at Trial 2086 III. EMPIRICAL FINDINGS ON SVP CIVIL COMMITMENT PROCEEDINGS 2089 IV. THE MATHEWS TEST 2092 A. State Appellate Courts' Mathews Analysis 2094 1. Characterizing the Private Interest 2094 2. The Risk of Error 2095 3. The Government's Interest and Burden 2097 V. EXPANDING PROCEDURAL PROTECTIONS IN SVP CIVIL COMMITMENT PROCEEDINGS 2097 A. Characterizing the Private Interest 2097 B. The Risk of Error 2099 1. Mandatory Bench Trials 2100 2. Respondent's Unilateral Right to Request--or Waive-- a Jury Trial 2101 C. The Government's Interest and Burden 2102 VI. LIKELY COUNTERARGUMENTS 2103 CONCLUSION 2105

INTRODUCTION

For Richard Rude, prison provided the structure and guidance he needed to transform his life. (1) When Richard first arrived, he received an infraction for heroin possession. (2) But eventually, Richard, a previously nonreligious individual, began attending church; (3) he became actively involved in the prison's ministry, serving as an assistant group director and later a group leader. (4) Richard was serving a sixteen-year-and-two-month sentence for sexual assault. (5)

While incarcerated, Richard underwent sex offender treatment, attending two-hour group sessions four times a week and individual sessions twice a month. (6) His provider reported that Richard "made significant progress." (7) Richard acknowledged the causes of his behavior and addressed his previously misguided beliefs. (8) He expressed regret for his past behavior and the pain he caused to his victim. (9) Additionally, while incarcerated, Richard reconnected with his daughter, married a fellow ministry volunteer, and regained his sobriety. (10)

However, days before Richard's scheduled release from prison, the government petitioned to place him into civil commitment. (11) A jury found Richard to be a "sexually violent predator," (12) and he was committed to the McNeil Island Special Commitment Center for life. (13) As of 2014, Richard was still committed, (14) and in all likelihood he will remain in the facility for the rest of his life. (15) Although Richard's clinicians and family believe that he deserves a second chance, the state denied his petition for release. (16)

Twenty states, the District of Columbia, and the federal government have enacted Sexually Violent Predator (SVP) laws that permit the civil commitment of sex offenders. (17) Under these laws, imprisoned sex offenders serving criminal sentences are transferred to treatment facilities and held indefinitely. (18) As one individual describes civil commitment, "It's worse than prison. In prison I wasn't happy, but I was content because I knew I had a release date." (19) An estimated 5,400 individuals are currently civilly committed under these laws. (20)

The cost to confine an individual under civil commitment programs is not insignificant. For example, the State of Washington pays over $185,000 per year to confine a single individual....