JOHNSON, Justice.
These consolidated criminal cases are before us on direct appeal pursuant to La. Const. art. V, § 5(D).
Defendants, Bryan Golston, Paul Baker, Calvin Watson, Lloyd Dell, and Reginald Jackson, are soon-to-be-released convicted sex offenders who have undergone the Sex Offender Assessment Panel ("SOAP") process pursuant to La. R.S. 15:560 et seq.
The SOAP framework was initially enacted in 2006
In order to provide additional guidance, the legislature also defined "mental abnormality" as:
La. R.S. 15:560.1(4).
If an offender is recognized as a "child sexual predator" ("CSP") or a "sexually violent predator" ("SVP"), the law imposes more extensive reporting and monitoring requirements pursuant to La. R.S. 15:560.3. This statute provides that an offender must adhere to the following mandates for the duration of his natural life:
La. R.S. 15:560.3(A). If the offender is unable to pay and no funds are available to the Department of Public Safety and Corrections, the electronic monitoring provision may be waived. La. R.S. 15:560.4.
In order to help determine whether offenders are classified as a SVP or CSP, the legislature created the Louisiana Sex Offender Assessment Panel, which consists of three members: a medical professional, the secretary of the Department of Corrections ("DOC") (or his designee), and the warden of the institution where the offender is incarcerated. The statute dictates that the medical professional must be a licensed Louisiana psychologist who has been engaged in clinical or counseling psychology for no less than three consecutive years, or a physician employed by the DOC whose "credentials and experience are not incompatible with the evaluation of the potential threat to public safety that may be posed by a sexually violent predator or a child sexual predator." La. R.S. 15:560.2(B)(1).
Upon receipt of a recommendation, the district court is required to schedule a hearing to review the panel's determination. La. R.S 15:560.2(I). The court must give notice to the defendant, his attorney of record, the office of the district attorney who prosecuted the offender for the underlying offense, and the victim of the underlying offense. Id. The notice must inform the offender that he has the right to be present at the hearing, that he has the right to present evidence, that he has a right to counsel, and that if indigent, an attorney will be appointed to represent him. Id. If the court finds by clear and convincing evidence that the offender meets the statutory definition of a SVP or CSP, he must comply with the additional
A classified SVP or CSP may petition the court for a review of its adjudication once every three years, "provided that the sex offender is currently receiving treatment from a court, or a treatment provider approved by the Department of Public Safety and Corrections, and good cause for such reconsideration is shown by the sex offender." La. R.S. 15:560.5. If the court grants review, it will refer the case to the panel for a new recommendation. The panel will forward its determination to the sentencing court. Again, if the court finds by clear and convincing evidence that the offender meets the definition of a SVP or CSP, he must remain in adherence with the provisions of La. R.S. 15:560.3. Id.
In the instant cases, SOAP panels recommended that each offender met the definition of either a SVP or CSP. Prior to their mandatory court hearings, the offenders each filed a Motion to Declare La. R.S. 15:560 et seq. Unconstitutional. The offenders argued the statutes violated their due process rights, rights against ex post facto legislation, and were void for vagueness.
The court held a hearing consisting of testimony from Dr. Susan Tucker, Mr. Reginald Peabody, and Mr. Barry Metheny— all of whom serve on sex offender assessment panels.
Following the hearing, the district court held La. R.S. 15:560 et seq. to be unconstitutionally vague. The court concluded that the SOAP statutory scheme failed to meet the requirements of due process because of vagueness caused by its failure to set forth standards to enable sex offenders to protect themselves against arbitrary and discriminatory forfeiture of property and liberty. The court found that the SOAP panel hearing is a critical stage of the process determining whether the court will find an offender to be a SVP or a CSP, and thus the penalties listed in La. R.S. 15:560.3 may be imposed on an offender only after a hearing that measures up to the essentials of due process and fair treatment.
The court dissected the procedural framework of the panel hearings, and highlighted the deficiencies in notice given to a defendant in two regards: the notice of the actual panel hearing and notice as to the criteria used by the panel in making its determination. The court noted the statutes require SOAP panels to review information provided by the offender, yet fail to provide a mechanism by which the offender is given notice of the panel meeting. Further, "[w]ithout notice of the criteria used, the offender is in no position to understand the type of information he needs to provide to the panel in mitigation of the criteria."
The court also found the statutory definitions of SVP, CSP and "mental abnormality" to be circular and insufficient guideposts for both the offenders and panel members. The court relied on the testimony of Dr. Tucker, who testified that SVP and CSP are not recognized psychiatric diagnoses in the DSM. Further, Dr.
Additionally, the court critiqued the inadequacies of the sentencing court hearing. It found that La. R.S. 15:560 et seq. failed to define the burden of proof, to outline whether an offender has a right to a psychological evaluation and who is to pay for it, or to provide a mechanism by which the court may appoint counsel. The court found the statutory evidentiary standard of "clear and convincing" evidence violated an offender's right to due process because of the punitive nature of the sanctions.
Finally, the court noted the severity of penalties imposed under La. R.S. 15:560.3. It found the registration, notification, internet usage monitoring requirements and firearm restrictions under La. R.S. 15:560.3 to place undue financial burdens on the offender and to restrict his personal liberties and freedom to change residences and secure employment. The court also specifically found the lifetime electronic monitoring requirement "subjects the offender to continued public scrutiny and humiliation that will likely limit the offender's job opportunities, housing options, and place restrictions on the offender that will counter his ability to become a productive and contributing member of society." The court concluded these penalties are deprivations to the offender's liberty and property that must meet the requirements of due process at both the panel hearings and court hearings.
The State filed a Motion for Direct Appeal to this Court.
The State first contends the SOAP statutory scheme is not susceptible to a vagueness analysis because it is not a criminal statute in that it fails to prohibit conduct, or contain standards governing future behavior. The act simply contains definitions, criteria and administrative procedures used to identify offenders who pose a risk to the public because of a mental abnormality.
The State also argues the defendants failed to carry their burden of proving a procedural due process violation. The SOAP statutory scheme fully complies with procedural due process requirements. The fundamental requirement of procedural due process is the right to a meaningful opportunity to be heard at a meaningful time. Because the panel recommendation is not a final action, but merely a preliminary step prior to a full contradictory hearing (where the offender receives prior notice, is present, is allowed to put on evidence, and is appointed counsel) there is absolutely no risk of erroneous deprivation of rights due to the lack of notice of the panel stage to the offender.
Further, there is no basis to support the court's contention that the burden of proof should be "beyond reasonable doubt."
The State asserts the court's contention that the SOAP scheme contains no fixed criteria for determining who is a SVP or CSP is patently false. The statutes contain a definition and a list of materials which are to be reviewed by the panel. Moreover, the panel's recommendation is forwarded to the court, along with all information considered and a factual basis explaining the panel's recommendation. This bifurcated procedure, coupled with clear definitions and a list of materials to be reviewed, provides fixed criteria to guide the exercise of discretion.
Additionally, the State argues the court erred in analyzing the SOAP statutory scheme as if it were a criminal provision. A "critical" stage has no meaning in an administrative context. Sex offender registration, notification and civil commitment schemes are not criminal proceedings. The sentencing court applied criminal due process requirements in striking down an administrative regulatory scheme. This erroneously extended protections and constitutional rights afforded only to criminal defendants to sex offenders undergoing an administrative procedure.
By contrast, the defendants argue that regardless of how the statutes are characterized, they are subject to a due process analysis. Relying heavily on Dr. Tucker's testimony, defendants argue the SOAP statutory scheme provides insufficient criteria to determine predator status. The only guidance given the panels is in the definitions section of the statute, and the court correctly called these definitions "circular." The panel is given no real definition, yet its recommendation is a large part of the court's determination of SVP or CSP status.
Defendants argue panel hearings are a critical stage of this process, and thus must comport with due process requirements. Once a panel makes a recommendation that a person is a predator, that finding goes to the sentencing judge who is compelled to conduct a hearing. It is the panel recommendation that triggers a hearing by the court. Defendants point out that no notice is given to the offender who is the subject of the panel hearing. Notice and the opportunity to be heard are basic elements of due process. While the statutes require the panel to consider information from the convicted offender, this mandate is meaningless because offenders are not made aware of the panel meeting, nor advised of the criteria used to make the decision. Defendants further argue the statutes are deficient in failing to require current information or a current psychological evaluation of the offender. The end result is that the panels are forced to rely on outdated information collected by people who may or may not be trained in the field of psychology.
Additionally, defendants assert there are insufficient due process protections at the court hearing. There is no criteria for the judge to determine who is a sexual predator; no assignment of the burden of proof; no opportunity for current information about the offender, including independent psychological examinations; no funding for expert psychological assistance or for counsel for indigent offenders; no criteria for the use and determination or the weight to be given to the information and recommendation of the panel; and an insufficient standard of proof to meet due process requirements and avoid false positives.
As a general rule, deferential standards of review apply to factual and other trial determinations, while determinations
After reviewing the record, briefs and jurisprudence, we find the district court erred in finding La. R.S. 15:560 et seq. to be unconstitutionally vague. We agree with the State that the SOAP statutes are technically insusceptible to a void for vagueness analysis. The "void-for-vagueness" doctrine provides that a criminal statute must meet two requirements to satisfy due process: (1) adequate notice to individuals that certain contemplated conduct is proscribed; and (2) adequate standards for those charged with determining the guilt or innocence of an accused. State v. Turner, 2005-2425 (La.7/10/06), 936 So.2d 89, 99. The purpose of the doctrine is to ensure that "a criminal statute does not contain a standard so vague that the public is uncertain as to the proscribed conduct and the factfinder is unfettered by any legally fixed standards as to what is prohibited by the statute." Id. at 99-100. In State ex rel. Olivieri v. State, 00-0172 (La.2/21/01), 779 So.2d 735, 745-50, this Court held that retroactive application of "Megan's Law" (La. R.S. 15:542-542.1.4), requiring registration of sex offenders and public notification, did not impose punishment and therefore did not violate state and federal Ex Post Facto Clauses, even though the failure to comply with the registration and notification requirements is a crime and the offenders must pay the cost of notification. Implicit in our holding was the finding that Louisiana's statutory scheme for registration of sex offenders is merely a civil regulatory framework. Id. at 747. Similarly, the SOAP statutory scheme contains no prohibition of conduct. The stated purpose of the SOAP statutory scheme is nearly identical to that stated in Louisiana's sex offense registration scheme analyzed in Olivieri. Thus, the stated purpose of the SOAP scheme, like that found in Olivieri, is non-punitive. We hold the SOAP statutory scheme is not a criminal provision, but rather a regulatory scheme, and thus cannot be unconstitutionally vague.
Further, we find no due process violations in the SOAP scheme, and hold it is constitutionally valid. Individuals are constitutionally guaranteed the right to due process of law. Procedural due process requires that before an individual is deprived of a property or liberty right, the individual must be provided with notice and an opportunity to be heard. Thibodeaux v. Donnell, 2008-2436 (La.5/5/09), 9 So.3d 120, 126. The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Davis v. Scherer, 468 U.S. 183, 202, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984).
The trial court and defendants primarily focus on alleged due process deficiencies at the panel stage. The panel is not statutorily mandated to conduct a hearing, but only to review materials and make an initial recommendation to a sentencing court. Thus, the court's reference to the panel meeting as a "hearing" is a mischaracterization. The SOAP panel serves a screening function by reviewing the available evidence and forming a recommendation to the sentencing court. The lack of formal notice of the panel meeting does not result in a violation of the offenders' constitutional rights. Under the SOAP statutes, an offender receives notice of the court hearing and apprisal of his right to present evidence and his right to counsel, including the right to appointed counsel if
The court placed great weight on the influence of the panel's recommendation over the ultimate determination of whether a defendant is a SVP or CSP. The court is required to accept the panel recommendation as evidence, like any other evidence. Although courts will likely rely on the findings of the panel when reaching its ultimate conclusion, the court below failed to note the importance of the fact that an offender has the opportunity to present his own rebuttal evidence, which could include his own independent psychological evaluation. Further, the statutes clearly ensure that the reason for the panel's recommendation is transparent to the court. The statutes require the factual basis, along with all information relied on by the panel, to be included with the recommendation and sent to the court.
In sum, any perceived procedural due process shortfalls in the SOAP panel review are remedied by the protections afforded to a defendant under La. R.S. 15:560.2(I), which assigns courts the ultimate determination, after a contradictory hearing conducted with the defendant who has the opportunity to present his own evidence as to whether he should be declared a SVP or CSP. No offender under the SOAP scheme is subjected to enhanced requirements without this contradictory hearing. These are the hallmark requirements of procedural due process.
We also disagree with the court that the "clear and convincing evidence" burden of proof provided by the statute is insufficient. We find Supreme Court jurisprudence relative to civil commitments instructive. In Addington v. Texas, the Supreme Court held that the State must prove mental illness and present dangerousness by clear and convincing evidence before an individual can be civilly committed to a mental institution under state law. 441 U.S. at 433, 99 S.Ct. 1804. Notably, the Court held that proof beyond a reasonable doubt was not required, but proof by preponderance of the evidence fell short of satisfying due process. Id. at 432-33, 99 S.Ct. 1804. The Supreme Court reaffirmed this standard in Foucha v. Louisiana, noting that a State can "confine a mentally ill person if it shows by clear and convincing evidence that the individual is mentally ill and dangerous." 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992).
The court also attacked the lack of clarity in the SOAP scheme, specifically the definitions under La. R.S. 15:560.1. We hold the court erred in its analysis, finding guidance in the United States Supreme Court's decisions in Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) and Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002). The criteria and definitions contained in the SOAP statutes are substantially the same as those upheld by the Supreme Court in Kansas v. Hendricks, supra. In Hendricks, the Supreme Court considered the constitutionality of Kansas' Sexually Violent Predator Act, which established procedures for the civil commitment of persons who, due to a "mental abnormality" or a "personality disorder," are likely to engage in "predatory acts of sexual violence." The defendant claimed the Kansas Act was violative of substantive due process because it only required a finding of a "mental abnormality" rather than demanding proof of "mental illness." The Kansas Supreme Court agreed, invalidating the Act on the ground that the precommitment condition of a "mental abnormality" did not satisfy what it perceived to be the substantive due process requirements that involuntary civil commitment must be predicated on a "mental illness" finding. 521 U.S. at 350, 117 S.Ct. 2072.
However, the Supreme Court reversed, finding the Kansas Act comported with due process requirements. Id. at 371, 117 S.Ct. 2072. The Kansas Act established a civil commitment procedure for the long-term care and treatment of the sexually violent predator. The Act defined a "sexually violent predator" as "any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence." Id. at 352, 117 S.Ct. 2072. A "mental abnormality" was defined as a "congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others." Id. Kansas argued that the Act's definition of "mental abnormality" satisfied "substantive" due process requirements, and the Supreme Court agreed. Id. at 356, 117 S.Ct. 2072. The Court noted it has routinely sustained civil commitment statutes when they have coupled proof of dangerousness with the proof of some additional factor, such as a "mental illness" or "mental abnormality." Id. at 358, 117 S.Ct. 2072. The Court found the Kansas Act was similar in that it required a finding of future dangerousness, and then linked that finding to the existence of a "mental abnormality" or "personality disorder" that makes it difficult, if not impossible, for the person to control his dangerous behavior. Id.
In Kansas v. Crane, the Court again considered the constitutionality of the Kansas Act. The Kansas Supreme Court relied on Hendricks to find that despite evidence the defendant suffered from a volitional impairment, his commitment was unconstitutional absent a specific finding that he was unable to control his behavior. The Supreme Court vacated that decision,
The SOAP statutory definitions identify those offenders who constitute a risk to the public safety due to an inability to control their behavior. These statutory definitions put an offender on notice and particularly describe to the court offenders who are subject to the SOAP requirements. Based on the statutory definitions, the statutes allow an offender to put forth evidence showing that he is not likely to engage in additional sex offenses against children or predatory sexually violent offenses because he lacks a sufficient history of offenses to indicate a lustful disposition toward children or a "mental abnormality." The definitions and criteria provide sufficient constitutional protections to subject an individual to involuntary civil commitment under the holdings of Hendricks and Crane, and the SOAP scheme requirements are considerably less severe than civil commitments. The criteria used, requiring a finding of dangerousness and an additional factor indicating lack of volitional control, satisfy the requirements of the Due Process Clause. Hendricks, 521 U.S. at 346, 117 S.Ct. 2072; Crane, 534 U.S. at 407, 122 S.Ct. 867.
The district court's decision was also influenced by Dr. Tucker's dissatisfaction with the statutory definitions and her testimony that SVP and CSP were not defined in the DSM. While SVP and CSP are not recognized diagnoses in the DSM, the lack of diagnostic categories of offenders subject to SOAP provisions does not render the law unconstitutional. Understandably, Dr. Tucker may prefer terms be defined based on medical definitions. However, there is no constitutional requirement that legal terms or concepts addressing mental abnormalities or mental illnesses be defined based on the DSM. As the Supreme Court recognized in discussing civil commitment statutes in Hendricks:
Hendricks, 521 U.S. at 359, 117 S.Ct. 2072 (internal citations removed). We note this medical versus legal terminology issue is recurrent in other areas as well. For example, Louisiana's enactment of the M'Naghten Rule (La. R.S. 14:14) defining "insanity" that renders a person exempt from criminal responsibility cannot be found within the DSM or any other diagnostic manual used in the medical community. Like the SOAP definitions, "insanity" defines a legal concept—not a diagnostic category of medical significance.
We further observe that although the court stated concerns that the statutory
Finally, to the extent the district court's decision implies a substantive due process violation, we find it is in error. Substantive due process rights are balanced against the police power of a governing authority to protect the health, safety, morals and general welfare of the people. State v. Edwards, 00-1246 (La.6/1/01), 787 So.2d 981, 992. Governments have an inherent need "to protect the safety and welfare of their citizens from the unrestrained liberty of some individuals." Edwards, 787 So.2d at 992. The SOAP scheme was enacted to protect the public from sex offenders, and especially sexually violent predators and child predators, who likely pose a high risk of recidivism. The Supreme Court has recognized that "sex offenders are a serious threat in this Nation" and "the victims of sex assault are most often juveniles." Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1, 4, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003). Further, the Court has expressed "grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class," noting "[t]he risk of recidivism posed by sex offenders is frightening and high." Smith v. Doe, 538 U.S. 84, 103, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2002) (citing McKune v. Lile, 536 U.S. 24, 34, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002)). Based on Hendricks and Crane, supra, we find the SVP and CSP classifications constitutional.
For the above reasons, we reverse the district court's finding that La. R.S. 15:560 et seq. is unconstitutionally vague. We find La. R.S. 15:560 et seq. to be a regulatory, rather than criminal statutory scheme, and thus not subject to a void for vagueness analysis. Further, even applying a due process analysis, we find no due process violations. The SOAP statutory scheme provides offenders with notice and a meaningful opportunity to be heard at a court hearing to determine SVP or CSP status. Additionally, we find the statutory definitions constitutionally sufficient to allow the panel to make its recommendation and the court to make a determination of SVP or CSP status.
La. R.S. 15:560.4(E) provides:
