WA Legal Roundup - Washington State Supreme Court
Wow, the Dean has been slacking here. Well, not so much. Due to an arbitration that took priority over blogging, eating, sleeping, taking the dog out. If anyone wants some carpet, there's some slightly "used" carpet in the craigslist free section. It's really only worth it if your place is already decorated in brown and yellow.
Fair was 22 and liked to diddle kids. Fair committed other crimes when on community supervision and, while incarcerated for 15 years for those crimes, admitted to diddling more kids during sex offender treatment. He also admitted there that he didn't think there was anything wrong with having sex with kids.
The issue before the court was "[w]hether the State must plead and prove a recent overt act where the offender has been confined continuously since being incarcerated for a predicate sexual conviction." The prior version of the law didn't have a section specifically dealing with the lack of access to children during incarceration. However, when you don't have a recent overt act, you must still satisfy due process. The hitch here is that Fair was released into the community under community custody just prior to his long incarceration for other crimes, and Fair argued that a recent overt act during that time period would have to be proven.
So here's where it gets sticky, another case in which there was a community confinement required a recent overt act: "Our holding in Albrecht applied only to a recent release from confinement -- not a prior release into the community before a lengthy incarceration.
Does that logic seem iffy at best to you? Shouldn't the release having been further in the past require a stronger showing that he's a current threat than Albrecht?
The court instead turned to Hendrickson:
We held that when, "on the day a sexually violent predator petition is filed, an individual is incarcerated for a sexually violent offense, RCW 71.09.020(6), or for an act that would itself qualify as a recent overt act, RCW 71.09.020(5), due process does not require the State to prove a further overt act occurred between arrest and release from incarceration."
The court relied on the fact that he was incarcerated most recently under his special sentencing alternative revocation. However, that was the crime for which he was in community custody. The incarceration was essentially due to the robbery. While I don't agree that Fair is a candidate for anything other than a padded cell at this point, this seems to be skirting around the intent of the legislature in enacting 71.09.020(5).
Fairhurst's concurrence agrees with the result, but hangs her hat on RCW 71.09.030 (which, in my humble view, seems more appropriate):
(1) A person who at any time previously has been convicted of a sexually violent offense is about to be released from total confinement;
. . .; or
(5) a person who at any time previously has been convicted of a sexually violent offense and has since been released from total confinement and has committed a recent overt act.
Fair seems to fit the bill under subsection 1.
Is this an overruling of Albrecht? While not an express refutation, it certainly seems so. The dissent points out a quote which seems startlingly on point:
We are asked to determine whether the State must allege a recent overt act in order to commit an offender as a sexually violent predator when the offender has been released from total confinement into the community and then returned to total confinement. We conclude that after a person has been released into the community, due process would be subverted by failing to require proof of a recent overt act.
Under the majority and concurrence, the logic seems to fail that quote. While there is no clear refutation, the 5 in favor of the result seem to break away from the language in Albrecht.