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Washington Supreme Court Grants Full Evidentiary Hearing for Civilly Committed SVP

by Mark Wilson

The en banc Supreme Court of Washington held that a civilly committed sexually violent predator (“SVP”) was entitled to an evidentiary hearing. The State failed to carry its burden of making a prima facie showing that he continues to meet the SVP definition and that conditional release to a less restrictive alternative would be inappropriate.

John M. Marcum was convicted of Washington sex crimes against children in 1989. While on community placement for those offenses, he molested another child. He was convicted of that offense in 1994 and sentenced to 89 months in prison.

Just before his January 2000 release, the State petitioned to have Marcum civilly committed as an SVP. Marcum stipulated to the commitment in January 2001 and was transferred to the Special Commitment Center (“SCC”), where he participated in sex offender treatment.

In January 2009, Marcum was transferred to a less restrictive alternative (“LRA”) transitional facility where he remained for about two years. While there, Marcum struggled with depression, and his behavior deteriorated. He refused to work, objecting that wages were too low and that he could do only sedentary jobs. He lay in bed until late in the day, refused to exercise, and traded stamps for cigarettes in violation of facility rules. He did not, however, exhibit any sex offending behavior, and he consistently participated in sex offender treatment.

Due to his behavior and attitude, Marcum’s treating psychologist determined that he could no longer provide Marcum sex offender treatment. The Department of Corrections then recommended that Marcum’s LRA be revoked because of Marcum’s refusal to work and negative attitude, but not on the basis of any sexual misconduct. Marcum stipulated to the LRA revocation in May 2011. The court granted the revocation because his LRA placement was conditioned on his participation in sex offender treatment.

In August 2013, Marcum filed a “Petition for an Unconditional Release Trial Pursuant to RCW 71.09.090 Annual Review Hearing.” He attached the report of former SCC employee, Dr. Paul Spizman, who concluded that Marcum was no longer diagnosable as having pedophilia and no longer met the SVP definition.

The State responded with an annual report dated April 15, 2013 of its evaluator, Dr. Regina Harrington, who concluded that Marcum continued to meet the SVP definition. She also found that Marcum continued to be suitable for LRA community placement and acknowledged that Marcum had reached the maximum benefit of inpatient treatment.

At a show cause hearing, the trial court agreed with the State that it had met its threshold burden by showing that Marcum continued to be an SVP, as evidenced by Dr. Harrington’s report. It then denied Marcum’s petition because he had not engaged in treatment for two years. The Court of Appeals affirmed.

The Washington Supreme Court reversed, reiterating its earlier holding in State v. McCuistion, 275 P.3d 1092 (Wash. 2012), “concerning the State’s threshold burden at a show cause hearing concerning a civilly committed detainee. The purpose of the show cause hearing is to determine whether the detainee is entitled to an evidentiary hearing.”

The Court found that the State failed to satisfy its burden under RCW 71.09.090(2)(b). While the State presented evidence that Marcum continued to meet the SVP definition, it did not present evidence that “a less restrictive alternative” was not in Marcum’s best interest and “conditions cannot be imposed that adequately protect the community.” Therefore, the Court held that Marcum was entitled to a full trial under RCW 71.09.090. See: In re Det. Of Marcum, 403 P.3d 16 (Wash. 2017). 

 

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In re Det. Of Marcum




 

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