              IN THE SUPREME COURT OF IOWA
                           No. 138 / 04-1707

                           Filed April 7, 2006


IN RE DETENTION OF WILLIE BRADFORD,

      Appellant.


      Appeal from the Iowa District Court for Black Hawk County,

Stephen C. Clarke and George L. Stigler, Judges.



      Respondent appeals from order for commitment as sexually violent

predator under Iowa Code chapter 229A (2003). AFFIRMED.



      Mark C. Smith, First Assistant State Public Defender, and Michael H.

Adams, Assistant Public Defender, Des Moines, for appellant.



      Thomas J. Miller, Attorney General, Sharon K. Hall, Denise A.

Timmins, and Andrew B. Prosser, Assistant Attorneys General, for appellee.
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LARSON, Justice.

        Willie Bradford has appealed an order for commitment as a sexually

violent predator under Iowa Code chapter 229A (2003), alleging that the

statute is unconstitutional on ex post facto and double jeopardy grounds.

We affirm.

        I. Facts and Prior Proceedings.

        In 1991 Bradford was convicted of second-degree sexual abuse and

indecent contact with a minor and was sentenced to concurrent terms of

twenty-five and two years, respectively. Both offenses are “sexually violent”

offenses as defined by Iowa Code section 229A.2(10)(a). He was confined at

the Anamosa State Penitentiary, but was eligible to be released on June 1,

2004.    Prior to his release date, proceedings were commenced to have

Bradford confined as a sexually violent predator. Acting pursuant to Iowa

Code section 229A.3(5), a prosecutors’ review committee appointed by the

attorney general determined that Bradford met the definition of a “sexually

violent predator” and requested the district court to determine that probable

cause existed to believe Bradford was a sexually violent predator. The

district court found probable cause and set a jury trial on the matter.

Bradford filed a motion to dismiss on the constitutional grounds he now

urges, but his motion was denied, and the case proceeded to a jury trial.

        At the trial, the State introduced the videotaped deposition of Anna

Salter, Ph.D., who had examined Bradford to determine whether the court

should order confinement. Dr. Salter testified that Bradford suffered from

pedophilia and that he is likely to engage in predatory acts constituting

sexually violent offenses if not confined in a secure facility. See Iowa Code

§ 229A.1.     Dr. Salter based her opinion on “an extensive history of

molesting female children under the age of thirteen.” Dr. Salter used four

tests to determine Bradford’s likelihood to reoffend and rated Bradford as a
                                      3

high risk for reoffending. On one test, he scored the highest possible rating.

At the time of the interview, the expert testified “he’s not old enough [so]

that we can count on age reducing his risk for recidivism.” She noted that

Bradford had not done well in the treatment program that had been

provided for him.

      Following the trial, the jury found that Bradford is a sexually violent

predator as defined by Iowa Code section 229A.2(11). The court ordered

Bradford to be committed to the custody of the department of human

services “for control, care, and treatment until such time as his mental

abnormality has so changed that he is safe to be placed in a transitional

release program or discharged.” See Iowa Code § 229A.7(4).

      II. The Issues.

      Bradford contends that, because his criminal offenses in 1991

predated the enactment of our sexually violent predator act in 1998, the

application of the act to him violated ex post facto and double jeopardy

provisions of both the United States and Iowa Constitutions.           These

arguments have been rejected by this court in a series of cases on the

ground that chapter 229A is a civil, not criminal, statute. See In re Det. of

Garren, 620 N.W.2d 275, 283-86 (Iowa 2000); see also In re Det. of Palmer,
691 N.W.2d 413, 422 (Iowa 2005); In re Det. of Ewoldt, 634 N.W.2d 622, 623

(Iowa 2001); In re Det. of Williams, 628 N.W.2d 447, 451 (Iowa 2001).

      However, Bradford argues that the nature of chapter 229A has

changed dramatically because the legislature has amended three sections of

that chapter and has enacted a new statute in chapter 901A (relative to

punishment of persons previously committed as sexually violent predators).

The upshot of all of this, according to him, is that the statute has been

transformed from civil to criminal, thus implicating ex post facto and double

jeopardy principles.
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      These statutory changes since Garren are the addition of (1) section

229A.5B (making it a misdemeanor for a person to leave a secure facility

without permission), (2) section 229A.5C (providing for suspension of the

treatment process during prosecution for any criminal offense committed

while confined as a sexually violent predator), and (3) section 229A.8(1)

(providing rebuttable presumption that commitment should continue). The

fourth statutory change is the addition of Iowa Code section 901A.2(6),

which provides a possible life sentence for persons in a transitional release

program or who have been discharged under chapter 229A if they are

subsequently convicted of a predatory or sexually violent offense. Although

the State contends the issues raised by these amendments are not ripe for

adjudication because they have not yet affected Bradford, we prefer to

affirm the district court’s decision on its merits.

      III. Merits.

      In Garren we held that chapter 229A is civil in nature, relying largely

on Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501

(1997). In Hendricks the Court noted that, while it usually defers to the

categorization of a statute by the legislature, this is not necessarily

dispositive in determining whether the proceeding in question was civil or
criminal. Id. at 361, 117 S. Ct. at 2082, 138 L. Ed. 2d at 515. However, the

Court will reject the legislature’s manifest intent only if a challenging party

provides the “clearest proof that the statutory scheme [is] so punitive either

in purpose or effect as to negate [the State’s] intention to deem it civil.” Id.

at 361, 117 S. Ct. at 2082, 138 L. Ed. 2d at 514-15 (alterations in original)

(citation omitted). In Garren we relied on the following two-part test of

United States v. Ward, 448 U.S. 242, 248-49, 100 S. Ct. 2636, 2641, 65

L. Ed. 2d 742, 749-50 (1980):
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      [First,] whether Congress, in establishing the penalizing
      mechanism, indicated either expressly or impliedly a preference
      for one label or the other. Second, where Congress has
      indicated an intention to establish a civil penalty, [the Court]
      inquire[s] further whether the statutory scheme [is] so punitive
      either in purpose or effect as to negate that intention.

(Citations omitted).

      In Garren we noted that the legislature had specifically labeled the act

as civil and placed it between two other civil provisions.      Garren, 620

N.W.2d at 280. We then focused on whether the statute was so punitive in

nature as to negate the intention that it should be civil. In resolving that

issue, we noted the factors set out in Kennedy v. Mendoza-Martinez, 372

U.S. 144, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963):

      Whether the sanction involves an affirmative disability or
      restraint, whether it has historically been regarded as a
      punishment, whether it comes into play only on a finding of
      scienter, whether its operation will promote the traditional
      aims of punishment—retribution and deterrence, whether the
      behavior to which it applies is already a crime, whether an
      alternative purpose to which it may rationally be connected is
      assignable for it, and whether it appears excessive in relation
      to the alternative purpose assigned . . . .

372 U.S. at 168-69, 83 S. Ct. at 567-68, 9 L. Ed. 2d at 660-61.

      In applying these factors, we adopted reasoning similar to that of

Hendricks—while chapter 229A did impose an affirmative constraint upon

the individual, this was not sufficient to make it criminal in nature in view

of the fact that the confinement of mentally unstable persons has long been

cited as a classic example of nonpunitive detention.       See Garren, 620

N.W.2d at 280 (citing Hendricks, 521 U.S. at 363, 117 S. Ct. at 2083, 138

L. Ed. 2d at 516 (quoting United States v. Salerno, 481 U.S. 739, 748-49,

107 S. Ct. 2095, 2102, 95 L. Ed. 2d 697, 710 (1987)).

      Although Garren held that chapter 229A is civil in nature and has

been reaffirmed in subsequent cases, these cases have not addressed the

specific issues involved in this appeal, i.e., whether the effect of recent
                                      6

statutory amendments following Garren have altered the nature of chapter

229A by making it a criminal statute.

      A. Section 229A.5B. In 2001 the Iowa legislature enacted section

229A.5B.    This section makes it a simple misdemeanor for a person

detained pursuant to chapter 229A to leave the facility without permission,

to be knowingly and voluntarily absent from the place where the person is

required to be, or to leave the custody of persons transporting or guarding

the committed person. Bradford argues that this new section must be

contrasted with other statutes regarding a person leaving a facility for

mentally ill patients, such as Iowa Code sections 229.13 and 229.14B, or

leaving a facility after commitment for substance abuse as provided in Iowa

Code section 125.85(5). Unlike these other statutes, which merely provide

mechanisms for returning an escaped person to custody, section 229A.5B

imposes criminal sanctions on persons escaping from custody imposed

under chapter 229A. Therefore, Bradford contends, this suggests that

chapter 229A is now criminal in its entirety.

      While section 229A.5B makes it a criminal offense to escape after

being committed, it does nothing to alter the civil nature of the underlying

commitment. The criminal penalty is not imposed because the person is in
chapter 229A confinement, but because he has committed the crime of

escape while being so confined. Furthermore, we will not assume that the

legislature’s placing of a criminal provision within a statute we have held to

be civil in nature evidences an intent to transform the whole chapter into

one that is criminal in nature. This inference sought by Bradford falls short

of the “clearest proof” required to make chapter 229A criminal in nature.

See Hendricks, 521 U.S. at 361, 117 S. Ct. at 2082, 138 L. Ed. 2d at 514-

15.
                                      7

      In addition, there are sound reasons for the legislature to criminalize

escapes from 229A confinements but not escapes from other settings. One

of the main purposes of chapter 229A is the protection of the public. See

Iowa Code § 229A.1 (Sexually violent predators have “antisocial personality

features that are unamenable to existing mental illness treatment

modalities and that render them likely to engage in sexually violent

behavior.”). To punish the escape of such persons is logical; it tends to

deter escapes and aids the protection of the public.             In addition,

commitment under chapter 229A is long-term, compared to treatment

under chapter 229 (mental illness), which is “intended to provide short-term

treatment” to those with mental disorders. Iowa Code § 229A.1; see also

Iowa Code § 125.85(1) (providing commitment for term not to exceed ninety

days for substance abuse). The escape of a sexually violent predator is

therefore a greater risk to the community and more disruptive to their

treatment plan, thus warranting a more serious response.

      Although the specific issue raised here has apparently not been

adjudicated in other states, many states have criminalized escape by

sexually violent predators, yet their courts have held their sexually violent

predator laws to be civil in nature. For example, Florida has made escaping
from civil commitment a second-degree felony, see Fla. Stat. § 394.927(1),

yet it has held that the statute is civil in nature. See Westerheide v. State,

831 So. 2d 93, 100 (Fla. 2002). Missouri law creates a class “D” felony for

escape from commitment, which includes commitment pursuant to its

sexually violent predator act. See Mo. Rev. Stat. § 575.195. Missouri

courts have, nonetheless, held its sexually violent predator act to be civil in

nature.   See Thomas v. State, 74 S.W.3d 789, 790 (Mo. 2002).            In re

Commitment of Fisher, 164 S.W.3d 637 (Tex.), cert. denied, Fisher v. Texas,

126 S. Ct. 428, 163 L. Ed. 2d 326 (2005), involved a sexually violent
                                      8

predator act that provided for outpatient civil commitment subject to many

restrictions. The Texas court found that its commitment process was civil

in nature, even though a separate section of the statute provided that a

violation of one of the commitment requirements is a third-degree felony. In

the case of People v. Runge, 805 N.E.2d 632, 639 (Ill. App. Ct.), appeal

denied, 813 N.E.2d 227 (Ill. 2004), an Illinois appellate court held that the

escape statute, which criminalized escape by a civilly committed person

under Illinois’s sexually violent predator act, did not violate constitutional

equal protection guarantees. In Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140,

155 L. Ed. 2d 164 (2003), the Supreme Court held that Alaska’s sex

offender registration act was civil, even though a knowing failure to comply

subjects a person to criminal prosecution.

      We conclude that the addition of a criminal component to the civil

commitment statute does not alter the overall nature of the statute and that

it remains civil, not criminal.

      B. Iowa Code section 229A.5C.         In 2002 the legislature again

amended the sexually violent predator act by adding section 229A.5C. This

section provides that, if a person commits a criminal offense during

treatment, the treatment process will be suspended until the criminal
proceedings, including any term of confinement, are complete. According to

Bradford,

      [a]rguably chapter 229A is intended to serve a dual purpose:
      protection of the public and long-term, meaningful treatment of
      sex offenders. If punishment of those confined is not intended,
      why would the needed long-term, meaningful treatment be
      suspended during coexisting criminal proceedings? In either
      case, the person would be confined, so public safety is not at
      issue. Confinement under chapter 229A for treatment and
      confinement awaiting trial or serving a sentence is still
      confinement. Certainly a person may receive treatment while
      awaiting trial, and may receive treatment while serving a
      sentence of incarceration.
                                     9

      We disagree with Bradford’s observation that “punishment of those

confined is . . . intended” by this statutory amendment. If a person is

“punished” under section 229A.5C, it is because he has been found guilty of

a separate crime committed while confined as a sex offender. His argument

that continued confinement under chapter 229A best suits the legislature’s

twin goals of treatment and protection of the public does not give sufficient

consideration to the safety of persons confined with him. Section 229A.5C,

we believe, is a rational effort to deter crimes under those conditions. We

do not believe the legislature intended to forego criminal prosecution for

persons committed under chapter 229A, and we find the policy reasons

presented by Bradford to the contrary unpersuasive.

      C. Iowa Code section 229A.8(1). In 2002 the legislature amended

chapter 229A to add this language:

             Upon civil commitment of a person pursuant to this
      chapter, a rebuttable presumption exists that the commitment
      should continue. The presumption may be rebutted when facts
      exist to warrant a hearing to determine whether a committed
      person no longer suffers from a mental abnormality which
      makes the person likely to engage in predatory acts
      constituting sexually violent offenses if discharged, or the
      committed person is suitable for placement in a transitional
      release program.

Iowa Code § 229A.8(1).

      Bradford argues that this amendment, like those previously

discussed, criminalizes commitments and shows an intent by the legislature

to shift the emphasis of chapter 229A from civil to criminal. He contends

that “the legislature has shifted accountability for the continued

confinement to the confined person.” He argues that,

      [r]ather than confining a committed person until they are no
      longer a threat, and requiring the state to justify such
      confinement on a periodic basis, chapter 229A now requires
      the person to be held until he can prove he is entitled to an
                                       10
      opportunity to     make    the    state   justify   his   continued
      confinement.

      Bradford overstates the extent of the burden imposed on him by this

statute. He is not required to prove he is entitled to discharge, or even that

he is entitled to a hearing; he is required only to show some facts exist to

warrant a hearing on the need for continued confinement.

      The legislature has provided no rationale for this amendment, but we

believe it is likely based on the very practical assumption that, unless there

is some evidence of improvement sufficient to trigger a hearing, the State,

which has already proven the need for confinement beyond a reasonable

doubt, need not repeatedly prove its case. A committed person still has the

right to “have a current examination of the person’s mental abnormality

made once every year,” Iowa Code § 229A.8(2), and an “annual report shall

be provided to the court that committed the person under this chapter.”

Iowa Code § 229A.8(3).
      According to Bradford’s argument, the effect of the 2002 rebuttable

presumption amendment is to alter the purpose and effect of chapter 229A

to make it punitive, since the confinement is no longer linked to the stated

purpose of the commitment, which is “ ‘to hold the person until his mental
abnormality no longer causes him to be a threat to others.’ ” Garren, 620

N.W.2d at 280 (quoting Hendricks, 521 U.S. at 363, 117 S. Ct. at 2083, 138

L. Ed. 2d at 516). We disagree. The amendment still shows an intent to

hold committed persons only as long as necessary—until they are no longer

a threat to others. A committed person may petition the court for discharge

or placement in a transitional release program at the annual review

provided by Iowa Code section 229A.8(4).          If the person shows by a

preponderance of the evidence that a final hearing should be held

concerning his condition, the court must set a hearing within sixty days.
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Iowa Code § 229A.8(5)(e). At the final hearing, the State must show the

need for continued confinement by proof beyond a reasonable doubt. Iowa

Code § 229A.8(6)(d).   The burden is to show that the person’s mental

abnormality remains such that he is likely to commit sexually predatory

acts if discharged or placed in a transitional program.          Iowa Code

§ 229A.8(6)(d)(1), (2). We conclude that section 229A.8(1) does not shift the

burden of proof on confinement to the committed person and does not

evidence an intent to criminalize chapter 229A.

      D. Iowa Code section 901A.2(6).       Iowa Code section 901A.2(6),

enacted in 2002, is also claimed by Bradford to evidence an intent to

transform sexually violent predator commitments into criminal cases.

Under this section, if a person who has been placed in a transitional release

program or discharged pursuant to chapter 229A is subsequently convicted

of a sexually predatory or sexually violent offense, he shall be sentenced to

life imprisonment (with or without the possibility of parole, depending on

whether the subsequent offense is greater than a misdemeanor). Bradford

argues that this new provision, which in itself is obviously criminal in

nature, changes the nature of the entire chapter from civil to criminal.

      Section 901A.2(6) changes the effect that a commitment under
chapter 229A may have in the future, but that does not alter chapter 229A

itself. To be sentenced in accordance with section 901A.2(6), a person must

have committed a new sexually violent or predatory offense. At this point,

the goals of retribution and deterrence are appropriate, and Bradford does

not argue otherwise. The enactment of this section, however, does not

make an original commitment under chapter 229A criminal in nature.

      IV. Conclusion.

      We conclude that none of the amendments discussed make chapter

229A punitive in nature; therefore, ex post facto and double jeopardy
                                    12

protections do not apply. Bradford has not shown, by the “clearest proof,”

that the statute is now punitive and has not offered any persuasive reasons

why this court should depart from its contrary conclusion in Garren. We

therefore affirm.

      AFFIRMED.
