On February 26, 2003, U.S. District Judge Barbara Rothstein upheld an injunction and contempt order issued against the superintendent and clinical director of the Special Commitment Center ("SCC") at McNeil Island, Washington. The SCC houses former prisoners civilly committed as "sexually violent predators." In 1994, U.S. District Judge William Dwyer issued an injunction that required SCC to provide constitutionally adequate mental health treatment to its residents. In 1999, Judge Dwyer held SCC in contempt for failing to take all reasonable steps to comply with the injunction. Since that time, the court has on several occasions held that SCC has yet to comply with the injunction and continued the 1999 contempt sanctions. A detailed history of the SCC and the litigation its creation spawned was discussed in the following issues of PLN: May 2000, pg. 8; Sept. 2000, pg. 20; Aug. 2001, pg. 21 & 32.


Judge Rothstein held a two-day evidentiary hearing in December 2002 to determine whether SCC had achieved substantial compliance with the injunction and, if so, whether the contempt sanctions against it should be purged. The court noted six specific steps SCC must take in order to achieve injunction compliance: (1) fund and establish less restrictive alternative ("LRA") facilities in locations other than McNeil Island; (2) develop additional LRA space soon enough so that residents can apply for LRA status and receive prompt placement if they are found eligible; (3) appoint a new ombudsman; (4) develop vocational training facilities and programs; (5) fully implement an effective grievance procedure; and (6) revive and continue regular consultations regarding the special needs population, and finalize the "Measures of Progress" program for the special needs population.


After reviewing testimony and evidence presented at the December hearing regarding these six issues, Judge Rothstein concluded that SCC remains in contempt of the 1994 injunction provisions. Although the court recognized that SCC had made "progress toward injunction compliance in several important areas," it nonetheless concluded that SCC's "progress appears influenced by the impending date of the compliance hearing," that it is "evident that the improvements [SCC has] made come, in no small part, in response to the court's contempt orders and to the accrual of sanctions," and that "injunction compliance remains incomplete."


For example, SCC has yet to fund and establish off-island LRAs. Although SCC officials have identified three potential sites for an LRA in King County, they have failed to garner she support of local officials and have faced "fierce community opposition" to the placement of any LRA within King County. Moreover, SCC does not have funding for the construction or operation of an off-island LRA.


The court also determined that SCC has failed to ensure that sufficient LRA space will be available for residents approved for such placements. The on-island LRA site will reach its capacity by mid-2003 and is not an option for many residents who have obtained court ordered LRA status without the approval of SCC staff. Residents who obtain LRA status without the support of SCC staff are not eligible for placement at the on-island site, meaning that most will remain within the secure facility unless they can afford to arrange for home placements. This absurd procedure has resulted in more than half of the LRA-eligible residents remaining confined to a closed environment, and does not amount to substantial injunction compliance. To date no SCC resident has been released by SCC officials. All releases have been judicially ordered.


SCC also failed to substantially comply with its duty to establish a vocational training program. Although SCC hired an expert with numerous years of experience in the vocational rehabilitation field, SCC lacks the funds and facilities necessary to properly implement the programs suggested by the expert. Thus, because most of the vocational programs suggested by the expert are still in the "development phase," injunction compliance remains elusive.


SCC likewise has not made sufficient progress in providing for "special needs" residentsresidents who have developmental disabilities, major psychiatric disorders, or brain injuries. Although SCC has developed a program entitled "Measures of Progress," which is aimed at addressing the mental health issues of the special needs population, it is only in a trial period "and therefore the efficacy and adequacy of these tools remain uncertain." Additionally, SCC has failed to request and secure adequate funding for maintaining the Measures of Progress program. Thus, injunction compliance cannot be obtained until these obstacles are overcome.


Finally, Judge Rothstein found that substantial evidence of "backsliding" demonstrated a lack of injunction compliance. Specifically, the court concluded that "SCC has not achieved consistency in the way treatment plans are conceived and recorded," that SCC's treatment program "continues to suffer from frequent changes in policy and practice," that "confusion exists as to eligibility for LRA consideration and the steps necessary to gain release," and that the overall "quality of treatment plans has actually decreased." Because these deficiencies seriously undermine a resident's ability to obtain release, Judge Rothstein concluded that they must be corrected before SCC would be deemed in compliance with the court's injunction.


In light of the foregoing, the court denied SCC's motion to dissolve the injunction and continued the accrual of contempt sanctions, but refused to order SCC to remit the financial sanctions to SCC residents. The court also scheduled another injunction compliance hearing for October 20, 2003. See Turay, et al. v. Seling, et al., USDC WD WS, Case No. C91-664R .

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