In re Det. of Marcum (Majority, Concurrence and Dissent)Annotate this Case
John Marcum was civilly committed as an SVP for more than 15 years. He had been convicted of one count of indecent liberties against a child under the age of 14 and two counts of first degree child molestation. While he was on community placement for those offenses, Marcum committed second degree child molestation. He was convicted of that offense and sentenced to 89 months of incarceration. Just before his scheduled release in January 2000, the State petitioned to have Marcum civilly committed as an SVP. Marcum stipulated to commitment as an SVP in January 2001. He resided at the Special Commitment Center (SCC), where he participated in sexual deviancy treatment. In January 2009, he was transferred to a less restrictive alternative (LRA) where he remained for approximately two years. At the transition facility, Marcum battled depression and his behavior deteriorated, although not in a way directly related to sexual offending. Because of these behaviors, Marcum's treating psychologist, determined that he could no longer provide Marcum with sex offender treatment therapy. Accordingly, the Department of Corrections submitted a recommendation to the superior court that Marcum's LRA release be revoked. The reasons given all pertained to Marcum's refusal to work and generally negative attitude, and not to any sexual misconduct. In August 2013, Marcum filed a "Petition For An Unconditional Release Trial Pursuant To RCW 71.09.090 Annual Review Hearing." Because of the gains Marcum made in treatment over his many years in civil commitment, an evaluator in the report concluded that Marcum was no longer diagnosable as having pedophilia and no longer met the definition of an SVP. The trial court ultimately agreed with the State and denied Marcum's petition for a trial, noting in part that Marcum could not show changed mental condition "through positive response to continuing participation in treatment" because he had not engaged in treatment for two years. Marcum appealed, arguing that the superior court's denial of a release trial violated both statutory and constitutional protections. The Washington Supreme Court resolved this case on the threshold issue concerning the burden placed on the State by chapter 71.09 RCW at the ensuing show cause hearing. Because the State here failed to meet its threshold burden at the show cause hearing as set forth in RCW 71.09.090(2)(b), the Supreme Court reversed the Court of Appeals and held that Marcum was entitled to a full evidentiary hearing.