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Martin v. Reinstein5/13/1999
In this special action, Petitioners challenge the constitutionality of Arizona's Sexually Violent Persons Act, Arizona Revised Statutes Annotated ("A.R.S.") sections 36-3701 through -3716 (Supp. 1998). On October 14, 1998, we heard oral argument and issued an order accepting jurisdiction, denying relief, and indicating that an opinion would follow. This is that opinion.
I. BACKGROUND
A. Arizona's Sexually Violent Persons Act
In 1995, the Arizona legislature determined that the public should be protected from persons who suffer from a mental disorder that makes them likely to commit violent sexual offenses; it further determined that such persons should be treated. In response to these concerns, the legislature passed the Sexually Violent Persons Act, which, in general terms, allows the State to confine persons who have previously been found guilty of violent sexual acts or have been charged with such crimes but were deemed incompetent to stand trial for them, if those individuals also suffer from a "mental disorder" that makes them "likely to engage in acts of sexual violence" in the future. See A.R.S. § 36-3701(7)(b) (definitions). The legislature recognized that such individuals do not suffer from a usual mental illness or disease that would make them subject to civil commitment under Arizona's general mental health statutes and therefore created a new statutory scheme, the Sexually Violent Persons ("SVP") Act. The legislature's goal was to find a way to treat sexually violent persons and to protect the public from them until they are no longer dangerous to others.
How the Act Operates
Before a potential SVP is released from custody, the attorney general or county attorney may petition the court for a determination that probable cause exists to believe that the person is an SVP and requires continued treatment and detention for the protection of the public. See A.R.S. §§ 36-3704, 36-3705. If such an order issues, the SVP is detained in a secure facility. See id. § 36-3705(B). He may request a hearing on the probable cause determination and, if that determination is affirmed, may request a jury trial. See id. §§ 36-3705(C), 36-3706. The Arizona Rules of Civil Procedure and Evidence apply to the proceedings. See id. § 36-3704(B)(4).
During the process, the Act provides procedural safeguards closely paralleling those that apply in criminal cases; for example, an accused SVP is entitled to appropriate notices and hearings, a probable cause determination, appointed counsel, and a jury trial. See id. §§ 36-3704 to -3707. As in a criminal case, the prosecution must prove its case beyond a reasonable doubt. See id. § 36-3707(A).
If the accused is determined by the factfinder to be an SVP, the court may either (1) commit the SVP to the custody of the Department of Health Services, where he must be afforded "care, supervision or treatment until the person's mental disorder has so changed that the person would not be a threat to public safety if the person was conditionally released to a less restrictive alternative or was unconditionally discharged," id. § 36-3707(B)(1), or (2) " rder that the person be released to a less restrictive alternative." Id. § 36-3707(B)(2). An SVP under the care of the Department of Health Services must be afforded treatment and must be examined at least annually to determine whether his mental disorder has sufficiently improved that he no longer poses a danger to the public. See id. § 36-3708. In addition, the SVP may petition annually for a change of status. See id. §§ 36-3709(B), 36-3714(B). The state bears the burden at each review to show, beyond a reasonable doubt, that continued
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