The SVP law became effective in 1996 and is contained in Welfare and Institutions Code sections 6600 through 6609.3. SVP "means a person who has been convicted of a sexually violent offense against one or more victim and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he will engage in sexually violent criminal behavior."
Comment: The SVP law is essentially a stop gap mechanism to the older, weaker sex crime sentencing laws. The real solution lies in the legislation including one strike sex laws under PC667.61 in 1994, habitual sexual offenders under PC667.71 and three strikes under PC667(b)-(i). The passage of the Jessica's Law initiative in 2006 also gave prosecutors stronger charging and sentencing options. Together, these statutes give prosecutors and law enforcement much more control over public safety , as we do not have to rely on the diagnosis of mental health experts. This is especially so because a defendant who commits sexually violent offenses may not even qualify for SVP treatment if he does not have a diagnosed mental disorder.
The SVP Process: As a person nears the end of his or her prison term, the Prison Board determines if that person was convicted (however long ago) of at least one sexually violent offenses against at least one victim. If so, the person is referred for evaluation by two mental health experts who have to both concur that the person has a diagnosed mental disorder so that he is likely to engage in acts of sexual violence without appropriate treatment and custody. (The most common mental disorder involved is Pedophilia or Paraphilia). Those who do meet the criteria are referred by the Director of Mental Health to the District Attorney's Office with a request for a Petition of SVP commitment. The District Attorney's Office then files a petition which blocks the prisoner's release on parole. The DA's petition demands a trial to prove that the person is an SVP who should be civilly committed to a state hospital (Coalinga) for treatment in a locked setting. If the DA is successful at trial, the defendant is committed for an indeterminate term at Coalinga State Hospital. Although the SVP trial is considered civil and not criminal in nature, the law requires that the DA prove the SVP case beyond a reasonable doubt and requires a unanimous verdict of all 12 jurors. The jury is given instructions that their role is not to punish since the person has already served their time. There are many challenges to this type of trial as it relies on the opinion of mental health experts who are often in disagreement with one another. The defense will have their own experts. Also the jury has to make decisions on the risk to reoffend based on actuarial tables and statistics.
Comment: Note that prisoners who have committed sexually violent offense but who are not diagnosed with mental disorder as described above are NOT referred for SVP commitment and are simply paroled into the community with no SVP tag. They are usually monitored by parole and all have a lifetime sex registration requirement. The same thing occurs if jury does not find the SVP petition true beyond a reasonable doubt; the person is paroled and is a 290 registrant.
If the jury finds the SVP petition true, the SVP is sent to Coalinga State hospital for an indeterminate term. They are encouraged to participate in sex offender treatment which consists of 5 phases. The first four phases are in the locked Coalinga facility. The 5th phase and last phase is a Community Outpatient Treatment. For information on the program see CA Dept of Mental Health.
Even though the prosecution has a right to a jury trial to determine if someone should be committed as an SVP, we do not have that right of jury trial if an SVP patient or the hospital petitions that SVP is ready for the last phase of treatment in the community. That is just a hearing before a Judge.
Before the court can decide whether the SVP should be transitioned into this community-based treatment phase, it must hold a hearing where the opinions of the treating doctors, the opinion of the Director of the mental hospital, and the opinions of any other independent doctors appointed to evaluate the SVP are presented. The court then decides whether the SVP can safely be treated in the community. The standard of proof is by preponderance of the evidence and there is no right to a jury trial.
Public Notification of SVP Release to Outpatient Treatment: Until the passage of AB2450 (WI 6609.1) became law on 1/1/05, there was no requirement that the community be notified of the proposed release location. The law now actually requires notification to certain community agencies including Sheriff/PD, DA, and County Counsel. We've interpreted the spirit of the law as one that allows the public to be notified and to respond. An elaborate system for receiving public comment has been established and the Court is required to consider all public comment in making its determination about the appropriateness of a specific community placement.
What are the timelines for release of an SVP to outpatient treatment once the court orders such release? W&I section 6608(f) provides that the placement arrangement needs to be made within 30 days unless good cause for not doing so is presented to the court. However, because of the complex and challenging process of finding appropriate housing, the Court will often find good cause for the placement occurring at a later date.
What are the consequences if the court finds that there is no longer good cause to exceed the 30 day period? The court could release an SVP unconditionally into the community. In that case, there would be no community supervision other than the sex offender registration requirement. The court could accept any proposal by the Department of Mental Health despite adverse public input as being the only available solution. For example, the court could order placement in an area that might have some public safety concerns, i.e. near a lake where families relax and play. The rationale is that a specific location that law enforcement is aware of and the community knows about is more protective of public safety than outright unconditional release with no controls over where the SVP lives.
Can any person/ agency make a recommendation for SVP placement in the community to the court, other than the Department of Mental Health? Yes. W&I section 6609.1 repeatedly refers to the potential of a placement recommendation being proposed by one other than the Department of Mental Health. For example, "... or when any other person proposes a placement location to the court and the department or its designee is made aware of the proposal."