State v. C.B.

Van Deren, J.

¶18 (concurring) — I write separately, since I concur with the majority’s opinion, only to point out that the legislative amendments to former RCW 10.77.110(1) (2000) created an ambiguity regarding the authority of the Washington State Department of Social and Health Services (Department) to medicate the criminally insane and those found not guilty by reason of insanity. Under the amendments, the legislature’s intent regarding how the Department is to involuntarily medicate those committed to its care as criminally insane and those found not guilty by reason of insanity for criminal offenses under RCW 10.77.110(1) is no longer as clear as it should be.

¶19 Until the legislature’s removal of language in former RCW 10.77.120(1) (2000) that stated that criminally insane individuals “shall be under the custody and control of the [Department’s] secretary to the same extent as are other persons who are committed to the [Department’s] secretary’s custody,” the statute appeared to allow the Department to proceed under RCW 71.05.217(7) when it requested authority to involuntarily medicate the criminally insane. And the legislative history of the 2010 deletion does not shed light on the purpose behind the change, nor did further 2010 amendments to chapter 10.77 RCW provide for a procedure applicable to the criminally insane for involuntary medication.

¶20 Thus, C.B’s argument that the legislature must intend that the criminally insane not be involuntarily medicated may be supported by the lack of reference to involuntary medication administration for those individuals and their exclusion from the procedures the Department can use for those committed under RCW 71.05.217(7).

¶21 Nevertheless, I concur in the result reached in this case because of the danger to self or others that a criminally insane person may pose, both as a matter of public and individual safety, and my refusal to believe or interpret the legislature’s actions as intending to allow such danger to go untreated by the Department if involuntary medication is the best treatment alternative for the individual.

Review denied at 173 Wn.2d 1027 (2012).