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Originally published Thursday, May 3, 2012 at 11:21 AM

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High court changes mind on sex offenders; state relieved

Sexually violent offenders already committed to McNeil Island must show progress in treatment to be granted a new trial seeking their freedom, the state Supreme Court ruled Thursday.

Seattle Times staff reporter

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Sexually violent offenders already committed to McNeil Island must show progress in treatment to be granted a new trial aimed at seeking their freedom, the state Supreme Court ruled Thursday in a rare reversal of a previous decision.

State officials breathed a sigh of relief after the 6-3 decision in State v. McCuistion. The state estimated that taxpayers would have faced an additional $22.5 million in annual costs for experts and lawyers in new civil-commitment trials if the Supreme Court had ruled against it.

Washington's civil-commitment law, the nation's first, allows the state to indefinitely lock up sex offenders beyond their prison sentence if they suffer from a mental abnormality or personality disorder and are deemed too dangerous for the community.

"It's great, great news for us and the state in terms of no unnecessary spending on new trials," said Brooke Burbank, state assistant attorney general in charge of civil commitments, who argued the case. Offenders won't be entitled to a hearing just because a defense expert supports their release, she said.

State officials also see the ruling as a victory because sex offenders must undergo treatment and won't be able to get new trials simply because they've gotten older.

Thursday's decision is a blow to sex offenders at McNeil Island, where about half of the 280 offenders housed at the Special Commitment Center have refused treatment. Among them is David McCuistion, who brought the case after being committed in 2003.

Reached by telephone at the high-security center, McCuistion said many of the offenders are dismayed. "It's like all the air was let out," he said. "It's a bad ruling and a political ruling" based on money.

Pending the decision, cases were put on hold for about three dozen sexually violent predators in Washington who were making arguments similar to McCuistion's.

Despite the ruling, McCuistion said he still won't participate in any treatment. "You have to admit to all crimes whether you did them or not, and a couple of them I didn't do," he said.

Between 1980 and 1993, McCuistion was convicted several times for crimes such as third-degree rape, attempted indecent liberties, phone harassment and second- and third-degree assault.

Evaluated yearly

Since its passage in 1990, Washington's law has faced repeated legal challenges and unpredictable and mounting costs, The Seattle Times reported in a January series, "Price of Protection."

Currently, state psychologists evaluate the sexually violent predators at the center every year to see if they meet the criteria for continued confinement. Offenders have a right to hire their own evaluators. State law says that to get a new trial an offender first has to show progress in treatment or be physically incapacitated.

McCuistion sued the state, saying it violated his constitutional rights because it denied him a hearing to show new evidence.

Although he had not undergone treatment or become physically disabled, McCuistion, armed with his psychologist's report, argued that he didn't meet the criteria for continued commitment.

In September 2010, the Supreme Court ruled 5-4 in McCuistion's favor. The Attorney General's Office was stunned, predicting that sex predators would burden the courts with needless trials costing taxpayers tens of millions of dollars each year. The Supreme Court granted the state's motion to reconsider and heard arguments last May.

Justice James Johnson changed his mind after rehearing the case; recently elected Justice Charles Wiggins agreed with the majority in part, leading to the 6-3 decision.

McCuistion's attorney, Nancy Collins, was disappointed in the decision. "With this recent ruling, the jailers hold the keys to release in absolute terms," she said.

Collins, of the Washington Appellate Project, said the benefits of treatment are debatable, yet offenders will be forced to participate if they want a chance at release.

Attorney General Rob McKenna said hasn't seen such a stark reversal by the Supreme Court in decades. The earlier McCuistion decision "sought to force the state to re-fight — at huge expense — cases already proven beyond a reasonable doubt," McKenna said. "This would have in effect rewritten state laws protecting the public from mentally ill predators, opening the flood gates for countless new trials."

Each new trial would have cost from $300,000 to $450,000.

Christine Willmsen: 206-464-3261 or cwillmsen@seattletimes.com. On Twitter @Christinesea.

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