Four Years' Delay in Sexually Violent Person Commitment Hearing Ruled Unconstitutional

Facts of the Case

The Kansas Sexually Violent Predator Act (KSVPA) allows for civil commitment of sexually violent persons (SVPs) who are deemed too dangerous to be released into the community after their criminal sentences. It provides for an initial probable cause hearing to determine whether a person convicted of or charged with a sexually violent offense “suffers from a mental abnormality or personality disorder which makes the person likely to engage in repeat acts of sexual violence” (Kan. Stat. Ann. § 59-29a02 (2016)). That is, is there probable cause that the individual is an SVP? If so, the defendant is transferred to a secure facility to undergo evaluation to determine whether the person is an SVP. Within 60 days of the probable cause hearing, the state must prove at a civil commitment trial that the defendant is an SVP beyond a reasonable doubt.

In June 2009, Kansas filed a KSVPA petition against Todd Ellison, who was, at the time, finishing his sentence for a sexual offense. Probable cause was found, and Mr. Ellison was transported to a county jail to await trial. However, due to a series of motions, continuances, and administrative hindrances, he remained in jail without trial until March 2014, when the district court ordered his release, agreeing with his June 2012 motion that the KSVPA violated his constitutional due process rights, which included the right to a speedy trial. The state appealed, contending that Mr. Ellison did not have a right to a speedy trial, which was reserved for criminal cases, and even if he did, the district court erred in its assessment of the relevant speedy trial factors. The Kansas Court of Appeals accepted the state's second argument and held that although the district court applied the correct analytic framework, it failed to consider all the required factors. The court of appeals reversed and remanded the case for further development of those factors. Mr. Ellison appealed this reversal to the state supreme court.

Ruling and Reasoning

The Kansas Supreme Court affirmed the district court's ruling that the delay in Mr. Ellison's trial was excessive and violated his Fourteenth Amendment due process rights. Responding to the state's argument that the Sixth Amendment right to a speedy trial in criminal cases does not apply to civil proceedings, the court stated that due process nevertheless requires “the opportunity to be heard at a meaningful time and in a meaningful manner” when a state seeks to deprive someone of life, liberty, or property” (Ellison, p 21). The court recognized that civil commitment constitutes a deprivation of liberty, and a speedy trial enables individuals facing civil commitment to be heard at a meaningful time. Conversely, excessive delay in obtaining a trial violates due process.

The court determined that Barker v. Wingo, 407 U.S. 514 (1972), provides the appropriate framework to establish whether a trial delay is excessive. In Barker, the U.S. Supreme Court held that in assessing violations of the Sixth Amendment right to a speedy trial in criminal cases, courts should weigh four factors: “Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant” (Barker, p 530). This balancing of the defendant's and state's conduct is needed because defendants and states may have differing, and sometimes opposing, interests in moving toward trial.

Citing U.S. v. $8,850, 461 U.S. 555 (1983), the court analogized from the Sixth Amendment right to a speedy trial in criminal cases to the right to a speedy trial flowing from the Fourteenth Amendment in civil matters involving deprivation of life, liberty, or property. In $8,850, customs officials seized property and waited 18 months before filing for civil forfeiture. The U.S. Supreme Court used the Barker framework to determine that this delay was excessive and violated the owner's due process rights. In $8,850, the Supreme Court did not find a meaningful difference between the Sixth Amendment right to a speedy trial and the due process restriction against undue delay in the deprivation of property. The Kansas Supreme Court further opined that numerous other jurisdictions have incorporated a Barker or Barker-like analysis in assessing pretrial delay in SVP commitments.

The court applied the Barker test to Mr. Ellison's case and affirmed the district court's analysis. All parties agreed that the length of delay (over four years) was noteworthy. Whereas the state and Mr. Ellison differed in their assignments of reasons for delay, the court observed that even the most favorable accounting of responsibility allotted 326 days to the state, more than five times the statutory limit of 60 days. Furthermore, although the district court assigned Mr. Ellison responsibility for 461 days, nearly 1,000 days remained unaccounted for. The court held that the state had the responsibility not only to bring Mr. Ellison to trial (he had no responsibility to bring himself to trial) but also to provide evidence to justify any unaccounted for delays. Failure to do so weighed against the state, although the weight was not heavy, because the court did not necessarily assume malicious intent.

The third factor the court considered was the assertion of the right, which the court construed as having been made by Mr. Ellison in his June 2012 motion. However, the court found that this factor was neutral or weighed minimally in Mr. Ellison's favor because although the motion claimed that the KSVPA violated due process, it did not clearly assert the right to a speedy trial.

Finally, the court ruled that the delay was highly prejudicial. Focusing on Mr. Ellison's pretrial detention, the court noted that pretrial detention is even more prejudicial in civil commitment than it is in criminal law. Unlike in criminal cases, a civil commitment pretrial detainee gains no credit for time served and instead loses opportunities to secure treatment, rehabilitation, and release. Pretrial detention also has negative social and occupational consequences. Had Mr. Ellison been committed immediately, he would have had four years of treatment, four annual examinations, and four opportunities to petition for release. The Kansas Supreme Court therefore agreed with the district court and concluded that the Barker factors weighed in Mr. Ellison's favor.