Pember v. Shapiro
2011 ND 31 (2011)
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Rule of Law:
A state's civil commitment statute for sexually dangerous individuals is not punitive in nature if it serves the dual, non-punitive purposes of public protection and individual treatment. Therefore, the use of an individual's admissions made during mandatory treatment in a commitment hearing does not violate the Fifth Amendment right against self-incrimination.
Facts:
- G.R.H. was civilly committed as a sexually dangerous individual and was participating in a treatment program.
- To progress in the treatment program, G.R.H. was required to take a polygraph examination, which he failed.
- Following the failed polygraph, G.R.H. made several admissions to his caretakers that were previously unknown.
- G.R.H. admitted that he had engaged in sex with his girlfriend during visitation and used a credit card for phone sex, both of which were against treatment rules.
- G.R.H. also admitted to previously undisclosed sexual activity with twelve teenage girls.
- As a result of these admissions, G.R.H. was demoted to a lower treatment level.
- The State's expert witness, Dr. Lynne Sullivan, later used these admissions as part of the basis for her professional opinion that G.R.H. should remain committed.
Procedural Posture:
- G.R.H. was civilly committed as a sexually dangerous individual by a North Dakota district court (trial court) in 2004.
- The North Dakota Supreme Court (highest court) affirmed the initial commitment order on appeal.
- G.R.H. filed subsequent petitions for discharge, which were denied by the district court in 2006 and 2007; the 2007 denial was also affirmed on appeal by the North Dakota Supreme Court.
- In April 2009, G.R.H. filed his most recent petition for discharge in the Ward County District Court.
- After an evidentiary hearing featuring expert testimony, the district court denied the petition, finding by clear and convincing evidence that G.R.H. remained a sexually dangerous individual.
- G.R.H. (appellant) appealed the district court's denial of his discharge petition to the North Dakota Supreme Court, with the State (appellee) defending the lower court's order.
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Issue:
Does the use of an individual's admissions made during mandatory sex offender treatment in a subsequent civil commitment hearing violate the Fifth Amendment right against self-incrimination on the grounds that North Dakota's civil commitment statute for sexually dangerous individuals is punitive rather than civil in nature?
Opinions:
Majority - Sandstrom, J.
No. North Dakota's civil commitment statute for sexually dangerous individuals is civil, not punitive, in nature, and therefore the use of admissions made during treatment does not violate the individual's right against self-incrimination. The court applied the factors from Kennedy v. Mendoza-Martinez and concluded that G.R.H. failed to show by the 'clearest proof' that the statute is so punitive as to be criminal. The statutory scheme, which closely resembles the one upheld in Kansas v. Hendricks, is designed to protect the public and treat individuals, not to punish them. It contains significant procedural safeguards, such as requiring a finding of a mental disorder linked to dangerousness, a clear and convincing evidence standard, and the right to an annual discharge hearing. Because the statute's purpose is civil and regulatory, the Fifth Amendment privilege against self-incrimination does not prevent the court from considering admissions made in a therapeutic context to assess an individual's current dangerousness.
Dissenting - Kapsner, J.
Yes. The dissent argues that the State failed to prove by clear and convincing evidence that G.R.H. remains a sexually dangerous individual, contending that his continued confinement is based on fragile and unreliable predictive evidence. The actuarial instruments (like the MnSOST-R and RRASOR) used to predict G.R.H.'s future dangerousness have been questioned and even discredited by the State's own expert witness. The only recent behaviors cited as evidence of his lack of control—having consensual sex with his girlfriend and using phone sex lines—are violations of institutional rules, not 'sexually predatory conduct.' The dissent concludes that depriving an individual of liberty indefinitely based on such flimsy predictions and minor rule infractions does not meet the high evidentiary standard required for civil commitment.
Analysis:
This decision reinforces the legal distinction between punitive criminal statutes and civil regulatory schemes, particularly in the context of confining sexually dangerous individuals. By classifying North Dakota's statute as civil, the court significantly limits the application of constitutional protections like the Fifth Amendment right against self-incrimination within these proceedings. The ruling creates a difficult dilemma for committed individuals: they must make candid admissions to progress in treatment, but those very admissions can then be used as evidence to prolong their confinement. This case solidifies the high bar set by Kansas v. Hendricks, making it extremely difficult to challenge such commitment statutes as being unconstitutionally punitive.
