Meaning of ''Likely to Reoffend''
In a trilogy of cases, the California Supreme Court has provided guidance as to the meaning of "likely" to reoffend in various sections of the Sexually Violent Predator Act (SVPA).
In People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, it considered the meaning of "likely" in section 6601, subdivision (d), in the phrase, "likely to engage in acts of sexual violence without appropriate treatment and custody," the issue upon which evaluators are to opine as a precondition to the filing of a petition to commit or recommit an SVP.
The court reasoned that the word "likely" has no consistent meaning but may be used flexibly to cover a range of expectability from possible to probable (at pp. 916-917), and therefore, its precise meaning must be determined by consideration of the context. (Id. at pp. 917-918.)
The word "likely," "when used in this context, must be given a meaning consistent with the statute's clear overall purpose ... to protect the public from that limited group of persons who were previously convicted and imprisoned for violent sex offenses, and whose terms of incarceration have ended, and whose current mental disorders so impair their ability to control their violent sexual impulses that they do in fact present a high risk of reoffense if they are not treated in a confined setting." (Id. at p. 921.)
The danger to society posed by sex offenders does not "evaporate with an expert's prediction that the sufferer's risk of reoffense is no greater than 50 percent. 'Danger' is merely 'the state of being exposed to harm.' " (Id. at p. 920.)
The court therefore concluded that "likely to engage in acts of sexual violence ... as used in section 6601, subdivision (d), connotes much more than the mere possibility that the person will reoffend ... but does not require a precise determination that the chance of reoffense is better than even. It means that the person presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit such crimes if free in the community." (Ghilotti, at p. 922.)
Six months after Ghilotti, in Cooley v. Superior Court (2002) 29 Cal.4th 228, the California Supreme Court considered the meaning of "likely" in the phrase "likely to engage in sexually violent predatory criminal behavior upon ... release," which is the required determination at the probable cause hearing pursuant to section 6602.
The court applied the Ghilotti definition of "likely" stating, "We find no support in the statutory scheme or the legislative history for the notion that the Legislature intended a different definition of 'likely' to apply at the probable cause determination. 'A word or phrase will be given the same meaning each time it appears in a statute ... .' " (Cooley, supra, at p. 255.)
In People v. Roberge (2003) 29 Cal.4th 979, the California Supreme Court was again called upon to determine the meaning of "likely" as used in section 6600, subdivision (a), in the phrase, "likely to engage in sexually violent criminal behavior," which is the required determination at the trial to determine if a person is to be involuntarily committed as an SVP. (29 Cal.4th at p. 985.) The Supreme Court again applied the Ghilotti definition of "likely." (Id. at p. 986.)
In Foucha v. Louisiana (1992) 504 U.S. 71, the United States Supreme Court held that to commit a person to a mental institution in a civil proceeding, the state must prove by clear and convincing evidence that the person suffers from a mental illness and hospitalization is required for his own welfare and protection of others. (Id. at pp. 75-76.)
When the person has recovered his sanity or is no longer dangerous, he must be released. (Id. at p. 77.) Welfare and Institutions Code Section 6608, subdivision (a) of the Sexually Violent Predator Act (SVPA) satisfies, in part, this constitutional mandate by allowing an SVP to petition for conditional release upon a showing that he or she is not likely to engage in sexually violent criminal behavior if released under supervision and treatment. ( 6608, subd. (d).)