In re the Detention of Nicholas Wygle

IN THE SUPREME COURT OF IOWA
No. 16–1732
Filed April 13, 2018
IN RE THE DETENTION OF NICHOLAS WYGLE,
NICHOLAS WYGLE,
Appellant.
Appeal from the Iowa District Court for Butler County, DeDra
Schroeder, Judge.
A person subject to commitment under the Sexually Violent
Predator Act requests interlocutory review of the denial of his motion to
dismiss the civil commitment proceedings. REVERSED AND
REMANDED WITH DIRECTIONS.
Michael H. Adams, Chief Public Defender, for appellant.
Thomas J. Miller, Attorney General, and Tyler J. Buller and
Keisha F. Cretsinger, Assistant Attorneys General, for appellee.
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APPEL, Justice.
In this case, Nicholas Wygle appeals a district court’s denial of his
motion to dismiss the State’s petition for his civil commitment as a
sexually violent predator (SVP) under Iowa Code chapter 229A (2016).
Wygle had been previously convicted of assault with intent to commit
sexual abuse. At the time the State initiated the civil commitment
proceedings, Wygle had discharged his sentence for his underlying
sexual offense but was residing at the Curt Forbes Residential Facility
while serving a special sentence under Iowa Code chapter 903B.
The State makes no claim that Wygle committed a recent overt act,
a requirement required for civil commitment under Iowa Code chapter
229A.4(2). The sole issue in this case is whether Wygle, by virtue of his
residency at Curt Forbes Residential Facility pursuant to Iowa Code
chapter 903B, is “presently confined” under Iowa Code section 229A.4(1)
and thus qualifies for SVP commitment under this section of the statute.
For the reasons expressed below, we conclude that Wygle is not
“presently confined” under Iowa Code section 229A.4(1), and as a result,
the State cannot commence an SVP proceeding in the absence of a recent
overt act, as required under Iowa Code section 229A.4(2). We therefore
reverse the decision of the district court and remand the case with
directions to dismiss the complaint.
I. Factual Background and Proceedings.
In July 2012, Wygle was convicted of assault with intent to commit
sexual abuse. The district court sentenced Wygle to serve an
indeterminate term of incarceration not to exceed two years. In addition,
the district court sentenced Wygle to serve a ten-year special sentence
pursuant to Iowa Code chapter 903B. On August 7, 2015, Wygle was
released from prison after having discharged his sentence on the assault
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with intent to commit sexual abuse charge. Wygle remained, however,
subject to the ten-year special sentence under Iowa Code section 903B.
Upon his release from prison, Wygle boarded a commercial bus and
travelled to a residential facility in Marshalltown. From there, he
transferred to the Curt Forbes Residential Facility in Ames.
On March 14, 2016, the State filed a petition to have Wygle civilly
committed as a sexually violent predator under Iowa Code chapter 229A.
At the time the petition was filed, Wygle was residing at the Curt Forbes
Residential Facility. The district court found probable cause pursuant to
Iowa Code section 229A.5(2) and ordered a trial.
On August 30, Wygle filed a motion to dismiss because he was no
longer “presently confined” under Iowa Code chapter 229A.4(1) and the
State had not alleged a recent overt act that might otherwise support a
section 229A.4(2) proceeding. The district court denied the motion.
Wygle filed an application for interlocutory appeal which we
granted. For the reasons expressed below, we conclude the district court
erred in not dismissing the petition.
II. Standard of Review.
This case involves a question of statutory interpretation. Review is
for errors at law. In re Det. of Geltz, 840 N.W.2d 273, 275 (Iowa 2013).
III. Discussion.
A. Introduction. Iowa Code chapter 229A governs petitions for
commitment of sexually violent predators. Iowa Code section 229A.4
“plots two separate courses” of civil commitment. In re Det. of Shaffer,
769 N.W.2d 169, 173 (Iowa 2009). First, the state may file a petition
when the person is “presently confined” for a sexually violent offense.
Iowa Code § 229A.4(1). Second, the state may file a petition when a
person has committed a recent overt act under certain circumstances.
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Iowa Code § 229A.4(2); see In re Det. of Gonzales, 658 N.W.2d 102, 104–
05 (Iowa 2003) (stating that the “confinement” referenced in the statute
“means confinement for a sexually violent offense”).
The sole issue in this case is whether under the facts and
circumstances Wygle was “presently confined” under Iowa Code section
229A.4(1). As we have recently noted, although due process generally
requires a recent overt act to support the drastic depravation of liberty
that results from a civil commitment, it is not necessary for the state to
allege a recent overt act under this section. In re Det. of Stenzel, 827
N.W.2d 690, 693 (Iowa 2013).
B. Constitutional Context of Overt-Act Requirement for Civil
Confinement Based on Dangerousness. Preventive detention is very
limited in American law because it is seen as antithetical to fundamental
liberty interests and the presumption of innocence. As Justice Jackson
noted over half a century ago in Williamson v. United States,
“Imprisonment to protect society from predicted but unconsummated
offenses is so unprecedented in this country and so fraught with danger
of excesses and injustice that I am loath to resort to it . . . .” 184 F.2d
280, 282 (2d Cir. 1950).
Further, our legal tradition has emphasized that involuntary civil
commitment is a “massive curtailment of liberty,” Humphrey v. Cady,
405 U.S. 504, 509, 92 S. Ct. 1048, 1052 (1972), and a “grievous loss,”
Vitek v. Jones, 445 U.S. 480, 488, 100 S. Ct. 1254, 1261 (1980). As
Justice Kennedy has observed, “[I]ncarceration of persons is . . . one of
the most feared instruments of state oppression and . . . freedom from
this restraint is essential to the basic definition of liberty in the Fifth and
Fourteenth Amendments.” Foucha v. Louisiana, 504 U.S. 71, 90, 112
S. Ct. 1780, 1791 (1992) (Kennedy, J., dissenting). In addition to the
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dramatic deprivation of liberty, cases have noted the social stigmatization
that arises from involuntary commitment. See Addington v. Texas, 441
U.S. 418, 425–26, 99 S. Ct. 1804, 1809 (1979); Stamus v. Leonhardt, 414
F. Supp. 439, 449 (S.D. Iowa 1976); Godwin v. State, 593 So. 2d 211,
214 (Fla. 1992); In re Det. of Harris, 654 P.2d 109, 111 (Wash. 1982) (en
banc).
“Courts have traditionally been the protector of individual rights
against state power . . . .” David L. Bazelon, Institutionalization,
Deinstitutionalization and the Adversary Process, 75 Colum. L. Rev. 897,
910 (1975). Given the truly weighty interests at stake, the power of the
state to involuntarily commit individuals is subject to due process
protections. The United States Supreme Court has repeatedly held that
the Due Process Clause of the United States Constitution contains a
substantive component that bars certain arbitrary, wrongful government
actions “regardless of the fairness of the procedures used to implement
them.” Zinermon v. Burch, 494 U.S. 113, 125, 110 S. Ct. 975, 983 (1990)
(quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S. Ct. 662, 665
(1986)); see James W. Ellis, Limits on the State’s Power to Confine
“Dangerous” Persons: Constitutional Implications of Foucha v. Louisiana,
15 U. Puget Sound L. Rev. 635, 644–45 (1992).
In order to narrowly limit the scope of involuntary civil
commitments to situations involving nonspeculative danger and satisfy
the demands of due process, many courts in the past have required the
state to show an overt act, attempt, or threat. For instance, in Stamus,
the federal district court held that the lack of an overt-act requirement
was a factor in finding an Iowa involuntary hospitalization statute
unconstitutional on due process grounds. 414 F. Supp. at 450–51; see
also Suzuki v. Yuen, 617 F.2d 173, 178 (9th Cir. 1980); Doremus v.
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Farrell, 407 F. Supp. 509, 514–15 (D. Neb. 1975); Lynch v. Baxley, 386 F.
Supp. 378, 391 (M.D. Ala. 1974). The rationale for an overt-act
requirement is that the present “dangerousness” required for civil
commitment is an amorphous concept that must be supported by some
concrete, individualized evidentiary showing to prevent arbitrary
confinement. See In re Kochner, 662 N.W.2d 195, 202 (Neb. 2003) (“The
recent violent act requirement is meant as a safeguard to ensure that the
liberty of the subject is not unjustly restrained.”); see also Reed Groethe,
Overt Dangerous Behavior as a Constitutional Requirement for Involuntary
Civil Commitment of the Mentally Ill, 44 U. Chi. L. Rev. 562, 574–79
(1977).
Beginning in the 1990s, states began to enact SVP-type statutes.
See John Q. La Fond, The Costs of Enacting a Sexual Predator Law, 4
Psychol. Pub. Pol’y & L. 468, 474 (1998). Unlike the usual general civil
commitment statutes, the new SVP statutes often did not require that an
individual have a “mental illness,” but only a “mental abnormality.” See
Kaitlyn Walsh, Note, Antisocial Personality Disorder and Donald DD.:
Distinguishing the Sex Offender from the Typical Recidivist in the Civil
Commitment of Sex Offenders, 44 Fordham Urb. L.J. 867, 884 (2017).
Further, the statutes required the state to show various formulations of
dangerousness in order to commit an individual as a sexually violent
predator. See Deirdre M. Smith, Dangerous Diagnosis, Risky
Assumptions, and the Failed Experiment of “Sexually Violent Predator”
Commitment, 67 Okla. L. Rev. 619, 661 (2015) [hereinafter Smith].
SVP statutes were attacked as arbitrary on several grounds. First,
many critics found the concepts of mental abnormality or mental
disorder to be “so vague and broad that it excludes almost no one.”
Eric S. Janus, Closing Pandora’s Box: Sexual Predators and the Politics of
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Sexual Violence, 34 Seton Hall L. Rev. 1233, 1237 (2004) [hereinafter
Janus]; see, e.g., Grant H. Morris, The Evil That Men Do: Perverting
Justice to Punish Perverts, 2000 U. Ill. L. Rev. 1199, 1206–07 (2000);
Stephen J. Morse, Fear of Danger, Flight from Culpability, 4 Psychol. Pub.
Pol’y & L. 250, 265 (1998).
Second, the ability to link the mental abnormality with future
behavior is fraught with difficulty. See Smith, 67 Okla. L. Rev. at 674–76
(describing absence of strong correlation between diagnosis of a
pedophilia or paraphilia with acts of sexual violence).
Third, and more generally, predicting future behavior is said to be
extremely difficult. Melissa Hamilton, Public Safety, Individual Liberty,
and Suspect Science: Future Dangerousness Assessments and Sex
Offender Laws, 83 Temp. L. Rev. 697, 726–31 (2011) [hereinafter
Hamilton, Public Safety] (describing the scientific problems with several
actuarial assessment models, noting that a meta-analyses of studies at
best show actuarial models to be less than “moderately predictive”); Lisa
Kavanaugh, Note, Massachusetts’s Sexually Dangerous Persons
Legislation: Can Juries Make a Bad Law Better?, 35 Harv. C.R.-C.L. L.
Rev. 509, 512 (2000) (“Most mental health professionals agree, however,
that advances in actuarial techniques have not yet significantly improved
their ability to predict long-term future dangerousness, which is the
centerpiece of most civil commitment schemes.”); Smith, 67 Okla. L. Rev.
at 675 (“Psychiatrists have long rejected the notion that they have a
special ability to predict future behavior, particularly dangerous
conduct.”). It has been claimed, for instance, that the predictions of
experts are little better than chance. See Smith, 67 Okla. L. Rev. at 700
(citing Rebecca L. Jackson et al., The Adequacy and Accuracy of Sexually
Violent Predator Evaluations: Contextualized Risk Assessment in Clinical
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Practice, 3 Int’l J. Forensic Mental Health 115, 124 (2004)); see also Erica
Beecher-Monas & Edgar Garcia-Rill, Danger at the Edge of Chaos:
Predicting Violent Behavior in a Post-Daubert World, 24 Cardozo L. Rev.
1845, 1860 (2003).
In recent years, there has been a trend in SVP cases away from
expert testimony based on clinical judgment in favor of expert testimony
based, at least in large part, upon an assessment of actuarial risk. See
Marcus T. Boccaccini et al., Field Validity of the STATIC-99 and MNSOST-
R Among Sex Offenders Evaluated for Civil Commitment as Sexually
Violent Predators, 15 Psychol. Pub. Pol’y & L. 278, 278–79 (2009). These
new tools, however, have been subject to substantial criticism. For
example, the STATIC-99 is based on a relatively small baseline statistical
sample of a little over1000 offenders from Canada and England who were
released from maximum security or mental health facilities. Id. at 280;
Leslie Helmus et al., Reporting Static-99 in Light of New Research on
Recidivism Norms 1 (2009), http://www.static99.org/pdfdocs/forum_arti
cle_feb2009.pdf. Critics have charged that the lack of a representative
baseline for comparison of American offenders released from a variety of
settings or who simply engaged in a recent overt act is problematic. See
Hamilton, Public Safety, 83 Temp. L. Rev. at 730 (“If the second
population differs in any risk-relevant way from the reference group, then
the predictive result is invalid.”); see also John A. Fennell, Punishment by
Another Name: The Inherent Overreaching in Sexually Dangerous Person
Commitments, 35 New Eng. J. on Crim. & Civ. Confinement 37, 59 (2009)
[hereinafter Fennell] (finding baseline of STATIC-99 nonrepresentative
because, among other things, the rate of sexual assault in Canada is
more than twice that of the United States and concluding models
overstate risk).
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Further, even taking the STATIC-99 at face value, there are many
false negatives and positives. Critics point out that the error rate for the
STATIC-99 is much higher than that ordinarily associated with risk
prediction research. Hamilton, Public Safety, 83 Temp. L. Rev. at 727.
In addition, critics note that the correlation coefficient—a metric showing
the strength of the correlation between two variables—for the STATIC-99
is very low and even for high risk offenders the STATIC-99’s performance
is “not much better than a coin flip.” Fred S. Berlin et al., The Use of
Actuarials at Civil Commitment Hearings to Predict the Likelihood of Future
Sexual Violence 4, 6 (2003), https://www.researchgate.net/publication/
9043223_The_Use_of_Actuarials_at_Civil_Commitment_Hearings_to_Pred
ict_the_Likelihood_of_Future_Sexual_Violence. 1 According to Judge
Richard Posner, even advocates of the STATIC-99 only claim moderate
predictive accuracy, and that while the actuarial approach “may be more
accurate than clinical assessments, . . . that may not be saying much.”
United States v. McIlrath, 512 F.3d 421, 425 (7th Cir. 2008); see
Hamilton, Public Safety, 83 Temp. L. Rev. at 739.
Finally, the lack of meaningful treatment and the potential of long-
term confinement without an end in sight has also drawn criticism.
According to one commentator, “it is far better to be punished than to be
1The body of literature questioning actuarial assessments of SVPs is substantial.
For a representative view, see Jessica M. Eaglin, Constructing Recidivism Risk, 67
Emory L.J. 59, 122 (2017) (“More caution and nuance is necessary in approaching the
use of recidivism risk tools in the administration of criminal justice.”); Fennell, 15 New
Eng. J. on Crim. & Civ. Confinement at 61 (stating laws relying on actuarial tools ask
science to “perform a task it cannot reliably perform”); Melissa Hamilton, Adventures in
Risk: Predicting Violent and Sexual Recidivism in Sentencing Law, 47 Ariz. St. L.J. 1, 61
(2015) (“To the extent that sentencing includes utilitarian concerns involving future
risk, science cannot save the legal system from a heavy measure of uncertainty.”); and
Hamilton, Public Safety, 83 Temp. L. Rev. at 754 (supporting a ban on use of actuarial
tools because of significant problems and lack of legal criteria to guide their use).
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treated.” Jeremiah W. White, Note, Is Iowa’s Sexual Predator Statute
“Civil”? The Civil Commitment of Sexually Violent Predators After Kansas
v. Crane, 89 Iowa L. Rev. 739, 774 (2004) (quoting Fred Cohen, The Law
and Sexually Violent Predators—Through the Hendricks Looking Glass, in
The Sexual Predator: Law, Policy, Evaluation and Treatment 1–5 (1999)).
Largely for the above reasons, the American Psychiatric
Association (APA) and the American Bar Association (ABA) have opposed
SVP statutes. The APA has strongly opposed enactment of SVP statutes
because of the role assigned to psychiatric expertise to identify those who
should be committed. In an amicus brief before the United States
Supreme Court in Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072
(1997), the APA challenged the breadth of SVP statutes, stated that
mental health professionals lack the ability to predict future violence
with accuracy, argued the term “mental abnormality” is a circular
concept when defined as a pattern of abnormal acts, and stated that
current treatments for SVPs have so little chance of being effective that
confinement under an SVP statute is effectively permanent. Brief for
American Psychiatric Association as Amicus Curiae Supporting
Respondent, Hendricks, 521 U.S. 346, 117 S. Ct. 2072 (Nos. 95–1649,
95–9075), 1996 WL 469200, at *18–19, 24, 28–29.
Similarly, in Barefoot v. Estelle, 463 U.S. 880, 103 S. Ct. 3383
(1983), the APA filed an amicus brief questioning the value of expert
testimony predicting future behavior in a death penalty case. Brief for
American Psychiatric Association as Amicus Curiae Supporting
Petitioner, Barefoot, 463 U.S. 880, 103 S. Ct. 3383 (No. 82-6080), at *4.
As recounted in Justice Blackman’s dissent, according to the APA,
approximately two out of three predictions by psychiatrists of long-term
future dangerousness were erroneous. Barefoot, 463 U.S. at 920, 103
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S. Ct. at 3408 (Blackmun, J., dissenting). Justice Blackmun wondered
how juries could separate valid from invalid expert opinions “when the
‘experts’ themselves are so obviously unable to do so.” Id. at 929, 103
S. Ct. at 3413.
The ABA opposed SVP statutes in its Criminal Justice Mental
Health Standards. Specifically, standard 7-10.7 provides that once a
sentence has expired, commitment may occur only under a general
commitment statute and calls for repeal of all statutes that provide for
postsentence commitment of offenders using criteria that differ from the
general civil commitment criterial. Christopher Slobogin, The American
Bar Association’s Criminal Justice Mental Health Standards: Revisions for
the Twenty-First Century, 44 Hastings Const. L.Q. 1, 16 (2016); see also
In re Blodgett, 510 N.W.2d 910, 920 n.5 (Minn. 1994) (noting that the
ABA had urged that sexual psychopath laws be repealed due to problems
with the ability of psychiatrists to diagnosis and treat such individuals).
Given the interests at stake and the problems implementing SVP
statutes, it is not surprising that the Kansas Supreme Court and a
federal district court came to the conclusion that SVP statutes did not
pass constitutional muster. In re Care & Treatment of Hendricks, 912
P.2d 129, 138 (Kan. 1996), rev’d sub nom. Hendricks, 521 U.S. 346, 117
S. Ct. 2072; Young v. Weston, 898 F. Supp. 744, 751 (W.D. Wash. 1995).
In Young, the Washington State Psychiatric Association submitted an
amicus brief arguing that the notion of a “sexually violent predator” is
not a medical concept but an “unacceptable tautology.” 898 F. Supp. at
750.
Notwithstanding the opposing of the APA and ABA, the United
States Supreme Court, by a 5–4 margin, upheld the Kansas SVP statute
in Hendricks, 521 U.S. 346, 117 S. Ct. 2072. Justice Thomas concluded
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that the term “mental abnormality” was sufficiently narrow to satisfy due
process even though it did not amount to a mental illness as previously
required for civil commitment in the Court’s precedents Addington and
Foucha. Hendricks, 521 U.S. at 358–60, 117 S. Ct. at 2080–81; see id. at
374, 117 S. Ct. at 2088 (Breyer, J., dissenting). In a cautionary and
arguably prescient concurring opinion, however, Justice Kennedy
emphasized that if the term “mental abnormality” proved to be too
imprecise, the precedents of the Court “would not suffice to validate it.”
Id. at 373, 117 S. Ct. at 2087 (Kennedy, J., concurring).
The United States Supreme Court again considered a challenge to
the Kansas SVP statute in Kansas v. Crane, 534 U.S. 407, 122 S. Ct. 867
(2002). In an opinion by Justice Breyer, the Supreme Court emphasized
that SVP statutes must distinguish between “the dangerous sexual
offender whose serious mental illness, abnormality, or disorder subjects
him to civil commitment, and the dangerous but typical recidivist
convicted in an ordinary criminal case.” Id. at 413, 122 S. Ct. at 870. As
in Hendricks, the Supreme Court emphasized the need to identify a
narrow class of persons subject to SVP commitment. See id. Crane
seems to assume that it would be possible for a fact finder to
meaningfully distinguish a true predator from an ordinary recidivist.
Some might conclude that if a high authority declares a statute to
be narrow often enough, it must be so. But there is reason to believe
that because of the amorphous standards and community fear,
fact finders are not able to identify a narrow class of persons subject to
SVP commitment. The numbers of persons committed have grown far
larger than anticipated. Janus, 34 Seton Hall L. Rev. at 1251. In
practice, much as Justice Kennedy cautioned, the narrow legal stiletto
may be something of a blunderbuss.
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As a result, and notwithstanding Hendricks and Crane, the overt-
act requirement still has a role to play in considering the
constitutionality of SVP statutes. The overt-act requirement serves as a
reinforcing mechanism or a spine for the spongy concept of “mental
abnormality” and the speculative nature of causation in any individual
case. The overt-act requirement, though not necessarily perfect,
certainly has a winnowing effect and contributes to distinguishing a
sexual predator from an ordinary recidivist. If not for a clear showing of
current dangerousness by an overt act, SVP commitment would look a
lot more like punishment and a lot less like civil commitment, thereby
giving rise to double jeopardy and ex post facto difficulties. The narrow
class of persons subject to SVP commitment should not be identified in a
speculative numbers game. It must be based on proof of individualized
danger.
The Washington Supreme Court held in In re Personal Restraint of
Young that the recent overt-act requirement is generally mandated by
due process because the state must show current dangerousness. 857
P.2d 989, 1008 (1993) (en banc), superseded by statute on other grounds,
Wash. Rev. Code Ann. §§ 71.09.020, .090–.098 (West), as recognized in In
re Det. of Thorell, 72 P.3d 708, 720–21 (2003) (en banc). The Young court
has further held that when an individual is incarcerated for violation of
their release into community placement, due process requires the state
allege and prove a recent overt act. Id. at 1009; see also In re Det.
Albrecht, 51 P.3d 73, 78 (Wash. 2002) (en banc).
While a recent overt act is generally required in Washington, there
is an exception for situations where the offender is presently incarcerated
for sex crimes. Young, 857 P.2d at 1009. The rationale for this approach
was outlined in People v. Martin, 165 Cal. Rptr. 773, 780 (Ct. App. 1980).
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In Martin, a California appellate court observed that the state was not
required to prove the absurd, namely, that a recent overt act occurred,
when the offender had been incarcerated. Id.
But as noted in a concurring opinion in In re Detention of Fair, the
absurdity of requiring a recent overt act can be overstated. 219 P.3d 89,
96–97 (Wash. 2009) (en banc) (Fairhurst, J., concurring). In Fair, an
individual was convicted of sex crimes against children. Id. at 97. When
incarcerated, the individual had literally no access to children, and thus
he had no opportunity to engage in an overt act because there were no
potential victims. Id. But, as pointed out by Justice Fairhurst in her
concurring opinion, the absurdity doctrine does not always apply simply
because a person is incarcerated. Id. Justice Fairhurst persuasively
argued that if it can be proved that the alleged SVP’s diagnosis and
pattern of behavior indicates that the individual did have an adequate
opportunity while incarcerated to commit a recent overt act against the
type of victim the individual was predisposed to victimize, an overt act
might be required. Id. For example, Justice Fairhurst noted that a male
prisoner serving time for raping an adult male victim could be placed in
the general population of the prison where there is opportunity to harm
other prisoners. Id. at 97 n.2. Under this circumstance, Justice
Fairhurst noted, due process would require an overt act before such a
prisoner could be committed as an SVP. Id. at 97 & n.2.
The bottom line is SVP statutes threaten to deprive individuals of
what from time immemorial has been the weightiest of interests—the
interest in individual liberty. Yet, the vague and flexible standards of
SVP statutes allows, if not encourages, a better-safe-than-sorry approach
that tolerates false positives but abhors false negatives. Further, in order
to survive due process scrutiny, the SVP statutes are said to target a
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narrow class of persons, but the terms utilized are sufficiently vague and
the causation elements sufficiently doubtful that there must be some
other limiting concept if fact finders are going to be able to distinguish
between sexual predators and ordinary recidivists. The overt-act element
in SVP statutes like Iowa’s serves that function.
C. Overview of Relevant Iowa Code Provisions Related to SVP
Confinement and Special Sentences.
1. Relevant provisions of Iowa Code chapter 229A. Iowa’s Sexually
Violent Predator Act was enacted in 1998. 1998 Iowa Acts ch. 1171
(codified at Iowa Code chapter 229A (1999)). Similar SVP committal
statutes were enacted in about twenty states and federally, beginning
with Washington state in 1990. See Isaac D. Buck, The Indefinite
Quarantine: A Public Health Review of Chronic Inconsistencies in Sexually
Violent Predator Statutes, 87 St. John’s L. Rev. 847, 848 & n.8, 851–54
(2013).
While the “presently confined” language that forms the basis of this
appeal is found in a discreet provision of Iowa Code section 229A.4(1)
(2016), a review of the SVP chapter provides context. In addition to
outlining the structure of the statute, we review statutory language
related to “commitment,” “custody,” and “prison” to help us set the
framework for determining the meaning of “presently confined” in Iowa
Code section 229A.4(1). See Iowa Ins. Inst. v. Core Grp. of Iowa Ass’n for
Justice, 867 N.W.2d 58, 72 (Iowa 2015) (holding “we read statutes as a
whole rather than looking at words and phrases in isolation”).
Chapter 229A begins with a lengthy section describing legislative
findings supporting the statute. Iowa Code § 229A.1. The legislative
findings emphasize the limitations of services provided “in a prison
setting” and that the modalities of treatment available in a prison setting
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are different from those needed for rehabilitating sexually violent
predators. Id. While section 1 of the chapter does not prove a
legislatively enforceable command, it certainly provides mood music for
the interpretation of the SVP statute with a theme emphasizing the
limited impact of prison on the rehabilitation of sexually violent
predators.
Section 2 of the SVP statute provides several legislatively crafted
definitions. Id. § 229A.2. Unfortunately there is no statutory definition
of the term “presently confined” as utilized in section 4 of the statute.
The definition section does provide a definition of a “sexually violent
predator” as a person “convicted of or charged with a sexually violent
offense and who suffers from a mental abnormality which makes the
person likely to engage in predatory acts constituting sexually violent
offenses, if not confined in a secure facility.” Id. § 229A.2(12). The
definitional section of chapter 229A further provides that if a person is
not “confined” at the time of the filing of a petition, the person may be a
sexually violent predator “only if the person commits a recent overt act.”
Id. § 229A.2(5).
The definitional section distinguishes between confinement in a
secure facility and transitional release. Id. § 229A.2(13). The statute
provides that “transitional release” means “a conditional release from a
secure facility. Id. Thus, transitional release and confinement in a
secure facility are not the same thing.
Section 3 of the SVP statute is a notice provision. Section 3
requires that “agenc[ies] with jurisdiction” provide notice to the attorney
general and a multidisciplinary team established by the department of
corrections ninety days prior to the “anticipated discharge” of a person
who has been convicted of a sexually violent offense “from total
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confinement.” Id. § 229A.3(1)(a). An exception to the ninety-day-notice
requirement allows written notice to be given as soon as practicable
when a person has been returned “to prison” for no more than ninety
days as a result of revocation of parole. Id. In this situation, written
notice shall be given as soon as practicable following the person’s
“readmission to prison.” Id.
Section 3 of the statute is the only provision in the statute to use
the term “total confinement.” It is not used in Iowa Code section
229A.4(1). Yet, it is clear that the legislature contemplated that
anticipated discharge from total confinement was a potential trigger of an
SVP proceeding. The contemplated SVP proceeding in the section 3
notice provision was not likely one resulting from the recent-overt-act
prong of section 229A.4(2), because the concept of notice of anticipated
discharge from total confinement does not have any meaning in the
context of a petition based on a “recent overt act.”
Section 3 provides that the statutorily required notice must be
provided by an agency with jurisdiction. Id. § 229A.3(1). An “agency
with jurisdiction” is defined as
an agency which has custody of or released a person serving
a sentence or term of confinement or is otherwise in
confinement based upon a lawful order or authority, and
includes but is not limited to the department of corrections,
the department of human services, a judicial district
department of correctional services, and the Iowa board of
parole.
Id. § 229A.2(1).
Once the proper notice has been provided, the multidisciplinary
team is directed to assess whether or not the person meets the definition
of an SVP and to notify the attorney general of its assessment within
thirty days of receiving notice. Id. § 229A.3(4). The attorney general is
18
directed to appoint a prosecutor’s review committee and to review the
SVP determination of the multidisciplinary team with the committee’s
assistance. Id. § 229A.3(5). We have held that this notice to the attorney
general is not an essential step in the filing of an SVP petition, because
the notice “is only intended to be a heads-up to an approaching
discharge date in case a determination to file a section 229A.4(1) petition
appears to be a possibility.” In re Det. of Huss, 688 N.W.2d 58, 63 (Iowa
2004).
Section 4 of the statute contains the gateway language to a petition
for commitment under the SVP statute, the interpretation of which
provides the fighting issue in this appeal. Section 4 provides a two-track
approach to SVP commitment. The first track is provided by Iowa Code
section 229A.4(1). Under Iowa Code section 229A.4(1), the state may file
a petition alleging that a person who is “presently confined” is a “sexually
violent predator.” The language of the “presently confined” track in Iowa
Code section 229A.4(1) does not contain a requirement of a recent overt
act.
The next subsection of section 4 provides the second track leading
to a potential SVP commitment. Iowa Code § 229A.4(2). Under Iowa
Code section 229A.4(2), the state may file a petition alleging that a
person is a sexually violent predator “if it appears that a person who has
committed a recent overt act” meets any one of three statutory criteria.
Id. § 229A.4(2). The three statutory criteria are where the person
(1) “was convicted of a sexually violent offense and has been discharged
after the completion of the sentence imposed for the offense,” (2) was
charged with a sexually violent offense but acquitted by reason of
insanity and “has been released from confinement or any supervision,” or
(3) was charged with a sexually violent crime but was found incompetent
19
to stand trial, and “has been released from confinement or any
supervision.” Id.
The first statutory criteria under section 229A.4(2) is most relevant
here. In order for the recent-overt-act track to be available, a person
must have been “discharged after the completion of the sentence
imposed for the offense.” This provision, when read in conjunction with
the notice provision which emphasizes the “anticipated discharge . . .
from total confinement,” id. § 229A.3(1)(a), appears to establish a route
to commit a person nearing the end of total confinement, and a separate
track for a person who has been “discharged after the completion of the
sentence for the offense, id. § 229A.4(1)–(2).”
Section 5 of the statute outlines the procedures for making a
preliminary determination as to whether probable cause exists to believe
the person named in the petition is a sexually violent predator. Id.
§ 229A.5(1). Upon a finding of probable cause, the person named in the
petition shall be “taken into custody.” Id. If the person is in custody at
the time of the filing of the petition, the court is directed to determine
whether the person should be transferred “to an appropriate secure
facility” pending the outcome of the proceedings. Id. An “appropriate
secure facility” is defined as “a state facility that is designed to confine
but not necessarily to treat a sexually violent predator.” Id. § 229A.2(2).
The probable cause hearing is to be held within seventy-two hours of the
person being taken into custody or transferred to an appropriate secure
facility, but the hearing may be waived by the respondent. Id.
§ 229A.5(2).
After the hearing, if the court determines that probable cause does
exist to believe the respondent is a sexually violent predator, the court is
to have the respondent transferred to an appropriate secure facility for
20
an SVP evaluation. Id. § 229A.5(5). We have said that at a probable
cause hearing under chapter 229A, “the district court is only making a
preliminary determination that there are sufficient facts in the petition to
form a reasonable belief that the individual is an SVP.” In re Det. of
Mead, 790 N.W.2d 104, 111 (Iowa 2010).
Section 5B of the SVP statute deals with “escape from custody.”
Iowa Code § 229A.5B. For the purposes of the escape provision, a
person is in “custody” if he or she “has been placed in a transitional
release program or . . . is under release with or without supervision.” Id.
§ 229A.5B(1). If a person escapes, the attorney general or the chief law
enforcement officer of the political subdivision where the violation occurs
may make a public announcement if that person remains “unconfined.”
Id. § 229A.5B(3). This section demonstrates that the legislature was
capable of using broad language of “custody” that expressly included
“release with or without supervision.” Notably, such expansive language
is absent from Iowa Code section 229A.4(1).
Section 5C of the SVP statute addressed criminal offenses
committed while a person is detained or subject to an order of
commitment. Id. § 229A.5C. If a person commits a public offense while
detained under the SVP chapter, the civil commitment proceedings or
treatment process shall be suspended until the criminal proceedings,
“including any term of confinement,” are completed. Id. § 229A.5C(1).
Civil commitment proceedings are suspended due to the commitment of
a public offense. Id. Upon the completion of any term of confinement
resulting from the commission of the public offense, a new ninety-day-
trial demand automatically begins. Id. § 229A.5C(5).
Section 7 of the Act describes the trial of a commitment proceeding
under Iowa Code chapter 229A. Among other things, the section
21
emphasizes that the rules of evidence applicable in criminal proceedings
shall apply as well as the right to a trial before a jury with a unanimous
verdict beyond a reasonable doubt. Id. § 229A.7(4)–(5).
Section 229A.8A through section 229A.9B address issues related
to the release of a “committed person.” The statute makes clear that a
person is still considered committed when in a transitional release
program. Id. § 229A.8A(1) (stating the department of human services is
authorized to provide “supervision of committed persons placed in such a
[transitional release] program”); id. § 229A.8A(6) (stating the department
of human services is responsible for “restrictions on confinement and the
movement of committed persons” and for assessing the progress of
“committed persons in the [transitional release] program”). Further, a
“committed person” who violates a release plan may be taken into
custody and returned to a secure facility. Id. § 229A.9B(1). In this
section, the legislature demonstrated its ability to use the term
“committed” rather than “confined” and to define “committed” as
including persons in transitional release programs.
2. Relevant provisions of Iowa Code chapter 903B. Iowa Code
chapter 903B provides for a “special sentence” for sex offenders. A
person who commits certain sexual offenses that are class “C” felonies or
greater is subject to a lifetime special sentence. Id. § 903B.1. A person
who commits certain sexual offenses that are class “D” felonies or
misdemeanors is subject to a ten-year special sentence in addition to any
other punishment provided by law. Id. § 903B.2.
Chapter 903B distinguishes between a sentence and a special
sentence. The legislature provided in Iowa Code section 903B.1 that
“[t]he special sentence imposed under this section shall commence upon
completion of the sentence imposed under any applicable criminal
22
sentencing provisions for the underlying criminal offense.” Id. § 903B.1
(emphasis added). The special sentence is not a continuation of the
sentence for the underlying crime.
Those serving a special sentence are placed on the corrections
continuum established in chapter 901B for intermediate criminal
sanctions. Id. The intermediate criminal sanctions under chapter 901B
ranges from Level One (self-monitoring, including fines, community
service, mediation, victim and offender reconciliation), Level Two
(probation and parole), Level Three (quasi-incarceration, including
residential treatment facilities and work release facilities), Level Four
(short-term incarceration, including jail), and Level Five (long-term
incarceration). Iowa Code §§ 901B.1–.2.
D. Positions of the Parties. Wygle concedes that he was serving
a special sentence under Iowa Code chapter 903B while residing at Curt
Forbes Residential Facility. He maintains, however, that this does not
qualify as the “present confinement” under Iowa Code section 229A.4(1).
Wygle cites the introductory language of Iowa Code section 229A.1
in support of his position. Wygle notes that Iowa Code section 229A.1
declares that the prognosis for rehabilitating sexually violent predators in
a prison setting is poor and that the treatment modalities for sexually
violent predators is very different from those available in a prison setting.
To Wygle, these passages in the introductory section of Iowa Code
chapter 229A suggest that total confinement is required to establish that
the offender is presently confined under Iowa Code section 229A.4(1).
Wygle further draws support from language in the notice provision
of Iowa Code section 229A.3(1)(a). According to Wygle, the use of the
terms “total confinement,” “returned to prison,” and “readmission to
prison” in the notice provision of the SVP statute supports his
23
interpretation that the term “presently confined” in Iowa Code section
229A.4(1) refers to total confinement in prison.
Wygle next analyzes Iowa Code chapter 903B. Upon a violation of
the terms of a special sentence, a revocation of release may be ordered
and the person imprisoned for not more than two years for the first
revocation, and five years for subsequent revocations. Iowa Code
§ 903B.2. Wygle argues that special sentence in which a person faces
the possibility of imprisonment cannot be considered the same as
imprisonment itself.
Wygle supplements his argument with a citation to In re Detention
of Lewis, a case decided by the Washington Supreme Court under its
SVP statute. 177 P.3d 708 (Wash. 2008) (en banc). In Lewis, Lewis was
in custody awaiting retrial of a conviction different from the predicate
conviction. Id. at 709. The state sought to commit him as an SVP under
a state statute with a two-track approach similar to Iowa’s statute. Id. at
710. Lewis alleged that when he was incarcerated on another offense
awaiting trial, the state must prove a recent overt act in order to begin
commitment proceedings under Washington’s SVP statute. Id. at 709.
The court held that Lewis was “about to be released from total
confinement” and, as a result, the state was not required to prove an
overt act. Id.
Wygle argues that Lewis provides the rationale for the two-track
SVP gateway. Wygle notes that Lewis observed that before a person may
be subject to SVP commitment, a recent overt act is generally required in
order to satisfy due process concerns. Id. at 711. According to Wygle,
Lewis noted that where offenders are incarcerated and have not been in
the community since their original conviction, the state lacks the
opportunity to prove dangerousness with an overt act. Id. Under these
 24
circumstances, according to Lewis, the state is not required to prove the
impossible, namely, a recent overt act. Id. Lewis further observed that
the legislature had concluded that “offenders in confinement ‘do not have
access to potential victims and therefore they will not engage in an overt
act.’ ” Id. at 713 (quoting Wash. Rev. Code Ann. § 71.09.010 (West)).
Under the facts and circumstances of the case, the Lewis court
held that Lewis was “about to be released from total confinement” under
the statute. Id. As a result, the state was not required to prove an overt
act. Id. Wygle argues, however, that his situation is different because,
unlike Lewis, he has, in fact, been released from total confinement and
that a recent overt act is therefore required. He notes that an
unpublished opinion of the court of appeals has cited Lewis favorably.
See In re Det. of Johnson, No 10–1462, 2012 WL 1860242, at *5 (Iowa Ct.
App. May 23, 2012).
In response, the State recognizes that the term “presently confined”
is not defined in Iowa Code chapter 229A. The State contrasts, however,
Iowa’s use of the phrase “presently confined” in Iowa Code section
229A.4(1) with statutes from other jurisdictions that employ the more
specific phrase “total confinement.” See, e.g., Fla. Stat. Ann.
§ 394.912(11) (West, Westlaw through 2018 2d Reg. Sess.); N.H. Rev.
Stat. Ann. § 135-E:4 (Westlaw through ch. 7 2018 Reg. Sess.). The State
thus reasons that the use of the term “presently confined” rather than
the clearer phrase “total confinement” in Iowa Code section 229A.4(1)
represents a deliberate legislative choice that should be honored by the
courts.
The State recognizes, however, that the term “total confinement” is
used in the notice provision of Iowa’s SVP statute. Iowa Code
§ 229A.3(1)(a). Yet, the State observes, the definition section of “agency
25
with jurisdiction”—the party with notice obligations under Iowa Code
section 229A.3(1)(a)—includes the Iowa Board of Parole. Id. § 229A.2(1).
If the Iowa Board of Parole has an obligation to provide notice of the
release of a potential SVP, the State argues, the statute must include
release from parole as a triggering event. Therefore, according to the
State, the term “presently confined” in Iowa Code section 229A.4(1) must
include release from parole.
The State argues that Iowa caselaw supports its broad
construction of the term “presently confined.” The State notes that in
Shaffer, the court declared that the phrase should not be given a
“hypertechnical definition” and held that a person who was incarcerated
in prison beyond his discharge date was presently confined. 769 N.W.2d
at 174–75. The State further notes that in In re Detention of Willis, the
court held that detention in a county jail is confinement. 691 N.W.2d
726, 729 (Iowa 2005). Thus, according to the State, one need not be in
prison to be considered “presently confined” under the statute.
Like Wygle, the State directs our attention to what it regards as
persuasive out-of-state authority as well. In Jackson v. California
Department of Mental Health, the United States Court of Appeals for the
Ninth Circuit held that under California’s SVP law, the statutory
requirement that a person be in custody when a petition is filed includes
situations in which a person is on parole. 318 F App’x 582, 586–87 (9th
Cir. 2009). The State also cites Kansas authority, which it asserts
stands for the proposition that an SVP action may be brought at any
time when the respondent is serving any part of a sentence, “including a
period of postrelease supervision.” In re Care & Treatment of Sporn, 215
P.3d 615, 618 (Kan. 2009).
26
Finally, the State claims that public policy supports its position.
The State argues that a person on parole, although less confined than a
person in prison, still has limited opportunities to commit recent overt
acts compared to a person not under state supervision. As a result, the
State asserts we should not require a recent overt act when a person is
on parole for a sexually violent offense.
E. Relevant Iowa Caselaw. In Stamus, a federal district court
struck down the civil commitment statute in Iowa Code chapter 229 on
due process grounds because the statute did not require a showing of
dangerousness through a recent overt act. 414 F. Supp. at 451.
Subsequent to Stamus, we have repeatedly held in the civil commitment
context that a recent overt act, attempt, or threat was required to show
that the person is likely, if allowed to remain at liberty, to inflict physical
injury on himself or herself or on others. In In re Mohr, we declared that
because predicting dangerousness was “a difficult if not impossible task,”
a finding of mental illness alone could not be sufficient to justify an
indefinite detention, but must also include a showing of a recent overt
act, attempt, or threat. 383 N.W.2d 539, 542 (Iowa 1986). In In re
Foster, we emphasized that evidence to support a judgment of
dangerousness supporting a civil commitment must come in the form of
a “recent overt act, attempt or threat.” 426 N.W.2d 374, 377 (Iowa 1988)
(quoting Stamus, 414 F. Supp. at 451). In State v. Huss, the court
warned that expert speculation about dangerousness grounded in
statistical probabilities cannot justify a commitment absent proof of a
recent overt act. 666 N.W.2d 152, 162–63 (Iowa 2003).
Our first case considering the meaning of the term “presently
confined” in Iowa Code section 229A.4(1) is Gonzales, 658 N.W.2d 102.
In Gonzales, the respondent had been convicted of a sexually violent
27
offense, had discharged the sentence for that crime, but had
subsequently been sentenced to prison for operating a motor vehicle
without the owner’s consent. Id. at 102. The question presented in
Gonzales was whether the term “presently confined” in Iowa Code section
229A.4(1) should be read to mean presently confined for a sexually
violent offense or, in the alternative, should the statute be read to mean
any time a person is presently confined, even for a nonsexual crime like
operating a motor vehicle without the owner’s consent. Id. at 104–05.
The Gonzales court held that the term “presently confined” meant
presently confined for a sexually violent offense. Id. at 106. The
Gonzales court recognized that the legislature did not expressly qualify
the term “presently confined” in Iowa Code chapter 229A.4(1). Id. at
104–05. Yet, the Gonzales court reasoned that in order to impose civil
commitment consistent with the constitutional commands of due
process, there generally must be a recent overt act. Id. at 105. When a
person is imprisoned for a sexually violent offense, the recent overt act
could be deemed to be the underlying offense. Id. But to allow a
nonsexual act to be deemed to be a recent overt act, according to the
Gonzales court, would “raise serious constitutional issues.” Id. The
court favorably cited Stamus as recognizing “the constitutional
importance of showing a recent overt act” in chapter 229 civil
commitments. Gonzales, 658 N.W.2d at 105. The Gonzales court also
favorably cited the discussion in Mohr, which noted that our rules for
hospitalization of mentally ill persons require a physician’s diagnosis
including “a detailed statement of facts, symptoms and overt acts
observed or described to him or her, which led to the diagnosis.”
Gonzales, 658 N.W.2d at 105 (quoting Mohr, 383 N.W.2d at 542). The
Gonzales court further favorably cited a passage in Lynch, which stated,
28
A mere expectancy that danger-productive behavior might be
engaged in does not rise to the level of legal significance
when the consequence of such an evaluation is involuntary
confinement. To confine a citizen against his will because he
is likely to be dangerous in the future, it must be shown that
he has actually been dangerous in the recent past and that
such danger was manifested by an overt act, attempt or
threat to do substantial harm to himself or to another.
Gonzales, 658 N.W.2d at 105 (quoting Lynch, 386 F. Supp. at 391). We
further cited a leading Iowa academic, Professor Randall Bezanson, for
the proposition that
[t]he requirement that a prediction of dangerousness . . .
must be based on prior overt manifestations of danger is
necessary both in order to protect the reliability of the
prediction under the clear and convincing standard of proof
. . . and in order to satisfy constitutional standards.
Id. at 106 (quoting Randall P. Bezanson, Involuntary Treatment of the
Mentally Ill in Iowa: The 1975 Legislation, 61 Iowa L. Rev. 261, 295 n.161
(1975)).
Because the respondent was not “presently confined” for a sexually
violent offense and the state failed to even allege a recent overt act, the
Gonzales court reversed the commitment order of the district court and
remanded the case with instructions to dismiss the action. Id. There
can be little question that the meaning of the term “presently confined”
in the statute was driven in large part by the generally applicable due
process requirement that before a person is civilly committed, there must
be a showing of dangerousness based on recent overt acts.
Two years later, we returned to the meaning of the term “presently
confined” in Willis, 691 N.W.2d 726. In that case, Willis had been
convicted by a jury of a sexually violent offense, but not yet been
sentenced. Id. at 727–28. He resided in the custody of the Henry
County Sheriff. Id. at 728. The state filed an SVP petition asserting
Willis was presently confined for a sexual offense under Iowa Code
29
section 229A.4(1) even though he had not been sentenced for the
underlying offense. Id.
As in Gonzales, the Willis court analyzed the issue presented by
looking at the larger due process constitutional context of the SVP
statute. Willis, 691 N.W.2d at 729–30. The court observed that the
absence of a recent act when in secure confinement “does not paint the
same picture” as the same in a normal life situation. Id. at 729. The
court reasoned that the legislature could conclude that for persons in
secure confinement the underlying sexually violent offense could be
considered a recent overt act consistent with due process. Id. Further,
the filing of an SVP commitment petition must necessarily be delayed
until near the end of confinement for the underlying sexual offense. Id.
at 730.
Our next SVP case involving whether a person is “presently
confined” under Iowa Code section 229A.4(1) is Shaffer, 769 N.W.2d 169.
In this case, Shaffer was imprisoned at the Anamosa State Penitentiary
for a sexually violent offense when the state filed its SVP petition. Id. at
171. Shaffer argued, however, that the state miscalculated his release
date for the sexually violent offense and that, at the time the state filed
its SVP petition, his sentence had already expired. Id. at 171–72. The
interesting question in Shaffer was whether a person could be considered
presently confined when being held beyond his release date. Id. at 173.
The Shaffer court answered the question in the affirmative. Id. at
175. The court reasoned that in Willis the fact that the later judicial
proceedings could have shown the present confinement of Willis to be
unlawful did not matter. Shaffer, 769 N.W.2d at 174. The court
observed that although subsequent caselaw demonstrated that the state
had miscalculated Shaffer’s release date, the miscalculation, which was
30
made in good faith, did not alter the fundamental fact that Shaffer, at the
time the SVP petition was filed, was presently confined. Id. at 174. The
implication of Shaffer was that SVP proceedings were designed to provide
a seamless transition for dangerous offenders from being presently
confined for sexually violent offenses to civil confinement and treatment
under the SVP statute. See id. at 175. As a result, the physical
circumstances of whether a person was “presently confined” for a
sexually violent offense was key, and the result was not affected by a
miscalculation of a release date. See id.
Finally, in Stenzel, we considered a case in which the respondent
was convicted of both a sexually violent offense and the nonsexual
offenses of burglary and arson. 827 N.W.2d at 693. The sentence for the
sexually violent offense and the sentence for the nonsexual offenses were
to be served consecutively. Id. Stenzel claimed that he first served his
sentence for the sexually violent offense. Id. Stenzel argued that at the
time the state filed its SVP petition, his sentence for the sexually violent
offense had been discharged and that he was then presently confined as
a result of the nonsexual offenses. Id.
The Stenzel court rejected the respondent’s arguments. Id. at 701.
The Stenzel court emphasized that in a situation involving concurrent
sentences for sexually violent and nonsexually violent offenses, it was
illogical to try to determine which sentence was first served. Id. at 700–
01. Further, according to the Stenzel court, it made little sense to
evaluate a person presently committed years before anticipated release.
Id. at 700. The Stenzel court further noted that under Iowa Code section
229A.3(1), the attorney general and the multidisciplinary team
established in chapter 229A was to receive notice of the anticipated
discharge of a person convicted of a sexually violent offense. Id. at 699.
 31
The Stenzel court cited favorably an out-of-state case, Fair, 219
P.3d 89 (majority opinion). Stenzel, 827 N.W.2d at 701. In Fair, the
Washington Supreme Court noted that when a person is in continuous
confinement for sexual and nonsexual offenses, it would be absurd to
require proof of an overt act because of the lack of opportunity to commit
an overt act in the community. 219 P.3d at 92.
Obviously, the above cases do not directly address the question of
whether a person is presently confined when residing at a halfway house
pursuant to a special sentence under Iowa Code chapter 903B. The
cases do stand for the general propositions, however, that we construe
the phrase “presently confined” in context with the larger statutory
framework and seek to provide it with a practical gloss that recognizes
both the underlying purposes of the statute and the due process
dimension underlying the ordinary requirement of a recent overt act to
support involuntary civil commitment.
F. Cases from Other Jurisdictions. Cases from other
jurisdictions have addressed the question of what showing must be made
before a person may be civilly committed because of dangerousness.
As noted previously, many states have enacted SVP statutes.
Because SVP statutes in other jurisdictions often use different
nomenclature than utilized by the Iowa legislature, however, cases from
other state appellate courts have limited applicability in the
interpretation of Iowa Code chapter 229A. Yet, the reasoning of out-of-
state cases may inform our analysis of the Iowa statute.
In Lewis, the Washington Supreme Court considered the meaning
of the term “total confinement” in its SVP statute. 177 P.3d at 711.
According to the Lewis court, total confinement meant “confinement
inside the physical boundaries of a facility or institution operated or
32
utilized under contract by the state or any other unit of government for
twenty-four hours a day.” Id. at 713 (quoting Albrecht, 51 P.3d at 77). In
Lewis, however, the statute expressly referred to the requirement of “total
confinement.” Under the Iowa statute, while the term “total confinement”
appears in the notice provision of Iowa Code section 229A.3(1)(a), the
term utilized by the legislature in the gateway provision authorizing the
filing of SVP petitions, is simply “presently confined.” Iowa Code
§ 229A.4(1).
A second out-of-state case dealing with somewhat similar issues is
Sporn, 215 P.3d 615. In that case, the respondent was convicted of a
sexually violent offense. Id. at 616. As he approached release on parole
but while still in prison, the state initiated an SVP action against him,
but a jury found that he was not an SVP. Id. After he prevailed in the
SVP action and was released on parole, Sporn violated the terms of
parole by viewing pornography and sexually explicit material on his
computer. Id. Upon his return to prison on the parole violation, the
state brought a second SVP case against him. Id.
Unlike the Iowa statute, the Kansas statute makes it clear that a
person returned to prison for violation of parole in a case involving an
underlying sexually violent offense may be subject to an SVP
commitment proceeding. Id. at 617–18. The state argued that under the
statute, the relevant trigger was impending release from prison. Id. at
618. The Kansas court, however, held the prior SVP action was res
judicata and the state was barred from bringing a second action. Id. at
620. In passing, however, the Kansas Supreme Court cited other Kansas
caselaw for the proposition that an SVP petition could be filed during the
“complete sentence” which “includes the prison sentence, the maximum
good time credit allowance, and a period of postrelease supervision.” Id.
33
at 618 (emphasis added) (quoting In re Care & Treatment of Johnson, 85
P.3d 1252, 1257 (Kan. Ct. App. 2004)). The Kansas Supreme Court,
however, did not necessarily endorse the notion that an SVP petition
could be filed when a person is on parole, but instead held that under
the statute, there could only be one procedure per complete sentence.
Id.
There is one federal case that the parties have cited considering
SVP interpretive issues. In Jackson, the court construed the term “in
custody” in California’s SVP statute to include situations when a person
is on parole. 318 F. App’x at 586. The language of the California
statute, however, is materially different than Iowa Code chapter 229A.
G. Discussion. For purposes of determining whether residency at
the Curt Forbes Residential Facility pursuant to Iowa Code chapter 903B
is “presently confined” under Iowa Code section 299A.4(1), there are a
number of plausible linguistic options. The term “presently confined”
could include situations where the respondent is out in the community
during the day but not free to come and go as he or she pleases and is
required to physically report and reside in a specific location. Or, the
term plausibly could be interpreted in a narrower fashion to include only
something more akin to total confinement. Because the term “presently
confined” is ambiguous, we may turn to tools of statutory construction to
assist us in resolving the question. See State v. McCullah, 787 N.W.2d
90, 94 (Iowa 2010).
As in Gonzales, we approach the question of statutory
interpretation in the context of the constitutional limitations of civil
commitment. See 658 N.W.2d at 105. We have repeatedly stated that as
a general matter, a recent overt act is a requirement if civil commitment
is to satisfy the demands of due process. See id. An exception has been
34
carved out for persons incarcerated for sexual offenses, but that
exception is based upon the absurdity or impossibility of committing
recent overt acts when incarcerated. See Martin, 165 Cal. Rptr. at 780
(finding due process does not require “the absurd be done” when a
person is incarcerated—namely, requiring the state to show a recent
overt act which “cannot, as a practical matter, be committed during
confinement”); Young, 857 P.2d at 1008 (stating requiring a recent overt
act for incarcerated individuals would create “an impossible condition”).
But, if the requirement of showing a recent overt act is not absurd or
impossible, then the overt-act requirement is applicable. Albrecht, 51
P.3d at 78 (holding the state was required to show proof of a recent overt
act for individual who was recently released from incarceration into the
community).
Even in conditions of total confinement, the absurdity or
impossibility exception to the recent-overt-act requirement may have
limits. As Justice Fairhurst demonstrated in her concurrence in Fair,
the absurdity or impossibility exception to the recent-overt-act
requirement imposed by due process might not apply in a prison setting
where the prisoner is placed in the general population in a prison of
adult males and the class of victims the offender preys upon is adult
males. 219 P.3d at 97 & n.2 (Fairhurst, J., concurring). Under such
conditions, sexual assault may not be impossible or absurd.
In any event, under conditions of less than total confinement, the
rationale for the absurdity or impossibility exception is severely
undermined, and as in Gonzales, any interpretation that the recent-
overt-act requirement is waived in situations involving less than total
confinement would “raise serious constitutional issues.” 658 N.W.2d at
105. If fairly possible, we will construe a statute to avoid doubt as to
35
constitutionality. Simmons v. State Pub. Def., 791 N.W.2d 69, 74 (Iowa
2010); Thompson v. Joint Drainage Dist. No. 3-11, 259 Iowa 462, 468, 143
N.W.2d 326, 330 (1966).
Our construction of the statute is thus driven by the need to
comply with the demands of due process identified above. We begin our
analysis by looking at the statute in its broader context. See Geltz, 840
N.W.2d at 275. The preamble to the statute emphasizes that because
the prognosis for rehabilitating sexually violent predators “in a prison
setting is poor” and the treatment modalities required are very different
from those in a prison setting, civil commitment is necessary. Iowa Code
§ 229A.1. Although only indirectly persuasive on the precise question at
hand, the language of the preamble at least suggests the legislature
considered the dichotomy between prison settings and other settings to
be an important impetus to the enactment of the SVP provisions of Iowa
Code chapter 229A.
The notice provision of Iowa Code section 229A.3 tends to reinforce
the centrality of the distinction between prison and other settings. When
a person who may be considered to be an SVP is “confined,” the agency
with jurisdiction over the person must provide notice to the attorney
general and a multidisciplinary team established by the department of
corrections of “the anticipated discharge date” of the person convicted of
a sexually violent offense “from total confinement.” Id. § 229A.3(1). The
use of the terms “confined” and “total confinement” in the same section
are not precisely parallel. When read in tandem with the general
language about “prison” in the preamble, however, the language in
section 229A.3(1) and .3(1)(a) indicates that when persons who are
confined in prison are released from total confinement, including, for
36
example, placed on parole or work release, the ninety-day-notice
mechanism is triggered.
Analysis of the language of various sections of Iowa Code chapter
229A tends to reinforce an interpretation that presently confined means
total confinement. Plainly, the legislature knew how to utilize broad
phrases that expressly included custody other than total confinement in
three places of the statute. Iowa Code section 229A.5B expressly
provides that the term “custody” as used in the section includes persons
“in transitional release program” or “under release with or without
supervision.” Iowa Code section 229A.8A(6) states that the department
of human services is authorized to place “restrictions on confinement
and the movement of committed persons” and to assess the progress of
“committed persons in the [transitional release] program.” Plainly,
committed persons can include persons in transitional release. Finally,
Iowa Code section 229A.9B provides that a “committed person” who
violates “a release plan” may be returned to a “secure facility.”
Obviously, if a committed person may violate a release plan, a person on
a release plan may be a committed person. The legislature’s use of broad
language in these three provisions of the statute, in contrast to the
unadorned language in Iowa Code section 229A.4(1), suggests that the
term “confinement” was not to be broadly construed as suggested by the
State. See Miller v. Marshall County, 641 N.W.2d 742, 749 (Iowa 2002)
(“We assume the legislature intends different meanings when it uses
different terms in different portions of a statute.”).
Further, the rationale for not requiring a recent overt act as
explained in the caselaw tends to support the notion that the critical
time for triggering the SVP statute is release from total confinement. The
cases emphasize that when in prison, there is much less opportunity for
37
a person previously convicted of a sexual offense from committing a
recent overt act. Willis, 691 N.W.2d at 729; Lewis, 177 P.3d at 711.
Because of the intense supervision in prison and the resulting
comparative lack of opportunity to commit a recent overt act, our cases
hold that the original conviction of a sexual offense can be deemed to be
the equivalent of a recent overt act for due process purposes. Stenzel,
827 N.W.2d at 698. But while “[t]he absence of sexually predatory acts
in a setting of secure confinement does not paint the same picture as the
absence of such acts in a normal life situation,” the observation has less
force when an offender is not totally confined but has much lessened
restraint on his or her personal freedom. Willis, 691 N.W.2d at 729.
Yet, we are troubled by one aspect of the interpretation of presently
confined to mean total confinement. Assume, for instance, that a person
is not totally confined but is on parole for an underlying sexually violent
crime. That person then commits a recent overt act. Such a person
could not be committed under Iowa Code section 229A.4(1). But, the
person also could not be committed under the recent-overt-act track of
Iowa Code section 229A.4(2). Under Iowa Code section 229A.4(2), a
person may be subject to commitment if there is a recent overt act and if
the person “has been discharged after the completion of the sentence
imposed for the offense.” Thus, a person on parole for a sexually violent
crime arguably has not completed the sentence imposed for the offense
and cannot be committed under Iowa Code section 229A.4(2). One may
question whether the legislature intended that a person convicted of a
sexually violent offense but on parole could not be committed as an SVP
under any circumstance.
Yet, the need to conform our construction of the statute to the
demands of due process, along with the other features of the statute
38
cited above, convinces us that the recent-overt-act requirement cannot
be waived unless it would be impossible or absurd to require it. As a
result, we construe Iowa Code section 229A.4(1) to require total
confinement before the State may proceed on an SVP commitment
without a recent overt act.
We also think that Wygle is entitled to prevail for another reason.
Wygle is not a resident of Curt Forbes Residential Facility on parole as a
result of his sentence for the underlying sexual offense. Instead, he was
returned to prison as a result of his special sentence under Iowa Code
section 903B.1. Under Iowa Code section 903B.1, the special sentence
commences after the “completion of the sentence imposed under any
applicable criminal sentencing provisions for the underlying criminal
offense.” The legislature has thus made it clear that a sentence and a
special sentence are simply not the same thing. Under Iowa Code
section 229A.4(1), a person must be presently confined for a sexually
violent crime. Under our interpretation, a special sentence cannot be
considered part of the sentence for the original crime under the statute.
Further, Iowa Code section 229A.4(2) requires a recent overt act when
someone “has been discharged after the completion of the sentence
imposed for the offense.” The term “sentence” in this provision also does
not include the special sentence under Iowa Code section 903B.1.
This interpretation is consistent with the sequence of legislative
actions. The SVP statute was originally enacted in 1998 at a time when
there was no special-sentence provision. Not surprisingly, there is
nothing in the SVP statute that accommodates the later enacted statute.
When the legislature enacted Iowa Code 903B in 2003, the legislature
made no attempt to integrate the terms of Iowa Code chapter 903B with
the SVP statute. The inference may be made that the legislature did not
39
attempt to integrate the statutes because they were stand-alone
provisions.
In addition to making sense under the language of the statutes,
this interpretation also avoids serious constitutional problems. Under
Iowa Code section 903B.2, a special sentence for certain sexually violent
crimes can last a lifetime. To suggest that a person who has been
released into the community but is serving a special sentence after his
discharge from his sentence for the underlying offense could be subject
to an SVP proceeding many years or even decades later without a recent
overt act merely because of the existence of a special sentence would
plainly stretch the statute beyond the boundaries of due process. The
caselaw clearly emphasizes that as a general proposition, due process
requires a recent overt act before a person can be civilly committed.
Gonzales, 658 N.W.2d at 105.
For all the above reasons, we conclude that a person who has
completely discharged the sentence for the underlying sexual crime and
is serving a special sentence under Iowa Code chapter 903B is not
“presently confined” for the purposes of Iowa Code section 229A.4(1).
IV. Conclusion.
Based on our review, the judgment of the district court is reversed
and the case remanded to the district court for dismissal of the SVP
action.
REVERSED AND REMANDED WITH DIRECTIONS.
All justices concur except Mansfield, Waterman, and Zager, JJ.,
who dissent.
40
#16–1732, In re Det. of Wygle
MANSFIELD, Justice (dissenting).
I respectfully dissent. In my view, an individual convicted of a
sexually violent offense who is required as part of his sentence to stay at
a facility under the jurisdiction of the district department of correctional
services is “presently confined” within the meaning of Iowa Code section
229A.4. See Iowa Code § 229A.4 (2016). Therefore, the State did not
have to prove a recent overt act to bring a petition seeking Nicholas
Wygle’s commitment as a sexually violent predator.
I begin with a dictionary definition. The first definition of “confine”
is “to hold within a location.” Confine, Merriam-Webster’s Collegiate
Dictionary (11th ed. 2014). Likewise, our false imprisonment statute
punishes wrongful confinement and states that “[a] person is confined
when the person’s freedom to move about is substantially restricted by
force, threat, or deception.” Iowa Code § 710.7. In this sense, Wygle was
“presently confined.”
Along the same lines, a person at a facility like the Curt Forbes
Residential Facility is generally considered to be “in custody.” See also
id. § 719.4 (indicating that the offenses under “[e]scape or absence from
custody” apply to prisons, jails, and community-based correctional
facilities); State v. Halverson, 857 N.W.2d 632, 634 (Iowa 2015) (stating
that the defendant “was in the custody of the residential facility—
commonly referred to as a halfway house . . . .” (emphasis added)).
I agree that the statute is inartfully drafted and that any
interpretation, including the majority’s, is going to result in loose ends.
But “[w]e have rejected previous attempts to apply a hypertechnical
definition of the phrase ‘presently confined.’ ” In re Det. of Shaffer, 769
N.W.2d 169, 174 (Iowa 2009). In Shaffer, we held that an individual was
41
presently confined because he was, in fact, confined even though he was
being held unlawfully past his discharge date. Id. at 175. In In re
Detention of Willis, we held that an individual was presently confined
because he was in jail after having been convicted of a sexually violent
offense even though he had not been sentenced. See 691 N.W.2d 726,
729 (Iowa 2005). In In re Detention of Gonzales, we held that presently
confined means “confined for a sexually violent offense,” although the
statute contains no such requirement. See 658 N.W.2d 102, 104–06
(Iowa 2003). In In re Detention of Stenzel, we clarified that so long as
someone is “continuously confined on a term of imprisonment that
includes a sexually violent offense,” the person is presently confined
regardless of the order in which the sentences are served. See 827
N.W.2d 690, 697–701 (Iowa 2013).
Using the practical interpretation of “presently confined” that we
have heretofore followed, I would hold that someone who is convicted of a
sexually violent offense and has been continuously in some type of
custody thereafter, such as Wygle, is presently confined within the
meaning of Iowa Code section 229A.4(1). This is true whether the
custodial arrangement is part of the initial sentence or the special
sentence. Once the person has been released from confinement, e.g., he
or she has been paroled into the general community, then the State must
allege and prove a recent overt act under section 229A.4(2)(a).
This interpretation allows the statute to operate in the binary
manner that was clearly intended by the legislature. That is, where there
has been a continuous confinement that originated when the person
committed a sexually violent offense, the person is “presently confined”
under Iowa Code section 229A.4(1). Once the confinement has been
broken and the person is generally unrestrained to commit other sexual
42
offenses, the person “has been discharged after the completion of the
sentence imposed,” and the state must prove a recent overt act under
section 229A.4(2)(a).
I recognize this interpretation does not follow the typical view of
what it means to be “discharged after the completion of the sentence.”
Normally we do not accord that status to someone who has been merely
released on parole. (The majority’s interpretation of Iowa Code section
229A.4 is vulnerable to the same criticism.) However, this interpretation
dovetails with our prior caselaw. Furthermore, unlike the majority’s
interpretation, it treats the special sentence as a form of parole, which is
exactly what the legislature has said it is. See Iowa Code §§ 903B.1, .2.
At the same time, it also avoids potential constitutional concerns.
In my view, the majority somewhat overstates those concerns. In
the majority’s view, once a person who committed a sexually violent
offense has been moved from total confinement to a halfway house where
it might be at least possible to commit a new sexually violent overt act,
the state has to prove such an act. It can no longer rely on the earlier
offense.
No prior case that I’m aware of has adopted this rule. Rather, we
have said,
The significance of a recent overt act in predicting future
conduct is not the act but the inference against a particular
propensity that arises from the absence of an overt act. The
absence of sexually predatory acts in a setting of secure
confinement does not paint the same picture as the absence
of such acts in a normal life situation.
Willis, 691 N.W.2d at 729; see also Stenzel, 827 N.W.2d at 699–700
(quoting this language). In other words, under our precedent, the key
question is not whether it might be theoretically possible for the
respondent to have committed a new overt act. That’s always possible,
43
even in a maximum security prison. Instead, the critical inquiry is
whether the respondent has been moved to a setting that allows one to
draw the inference the respondent is not dangerous based upon the
absence of sexually violent acts. I would conclude that threshold has not
been met.
The majority relies heavily on jurisprudence from Washington. But
the Washington Supreme Court held it was constitutional to commit an
individual as a sexually violent predator who had been released from
prison for the past ten years and merely made threats that he would
commit new sexually violent offenses. In re Det. of Danforth, 264 P.3d
783, 786, 792 (Wash. 2011) (en banc). Due process could be satisfied by
threats that “have created a reasonable apprehension of [sexually violent]
harm in the mind of an objective person who knows of the history and
mental condition of the person.” Id. at 792. If the “recent overt act”
requirement can be met by a mere threat, it logically follows that the
“presently confined” requirement can be met by halfway house
confinement. In both instances, there is no hard and fast constitutional
rule that recent sexually violent conduct must be proved unless it would
have been totally impossible for the respondent to have engaged in such
conduct.
I would therefore affirm the district court’s denial of Wygle’s motion
to dismiss.
Waterman and Zager, JJ., join this dissent.