APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
540 N.E.2d 1064, 184 Ill. App. 3d 937, 133 Ill. Dec. 198 1989.IL.945
Appeal from the Circuit Court of Cook County; the Hon. James M. Bailey, Judge, presiding.
PRESIDING JUSTICE FREEMAN delivered the opinion of the court. WHITE and CERDA, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN
Defendant appeals from an order of the circuit court denying his petition for discharge from the custody of the Director of the Department of Corrections, pursuant to section 9 of "An Act in relation to sexually dangerous persons . . ." (the Act) (Ill. Rev. Stat. 1987, ch. 38, par. 105-9). Defendant contends that the trial court erred by denying his petition because he provided the court with sufficient evidence for it to conclude that he appeared to be no longer sexually dangerous, although it was impossible to determine with certainty under conditions of his present institutional case. Defendant also claims that it was mandatory for the court to release him upon the condition that he participate in a plan or course of conduct devised for him to help assure the protection of the public.
The State argues that the trial court did not err by denying defendant's petition because it properly found that defendant was still a sexually dangerous person. However, the State also argues that, even if there was sufficient evidence to find that defendant no longer appeared dangerous, defendant's release was not mandatory because the court found that the release plan devised by the Menard Psychiatric Center was inadequate to protect the public.
In his reply brief, defendant counters that making his release dependent upon his ability to formulate a release plan that is unobjectionable to the court, when the type of semi-structured facilities found necessary by the court are unavailable, renders the statute unconstitutional.
The record reveals that in May 1982, defendant surrendered himself to Chicago police and confessed his involvement in three sexual assaults of women who resided at a Chicago college campus. Defendant was later charged with two counts of rape (Ill. Rev. Stat. 1981, ch. 38, par. 11-1), one count of attempt (Ill. Rev. Stat. 1981, ch. 38, par. 8-4), and three counts of home invasion (Ill. Rev. Stat. 1981, ch. par. 12-11(a)(2)). However, defendant then petitioned for commitment under the Act (Ill. Rev. Stat. 1981, ch. 38, par. 105-1 et seq.) and was found to be a sexually dangerous person as defined by section 1.01 of the Act. He was then committed to the custody of the Director of the Department of Corrections.
On December 15, 1986, defendant filed a petition seeking his discharge pursuant to section 9 of the Act. A hearing was held on July 15, 1987, at which Michael Dolan, defendant's supervising psychologist at the Menard Psychiatric Center, testified in support of defendant's petition. Dolan stated that he had been involved in defendant's treatment since his commitment to the facility in 1982 and that defendant's therapy, in general, consisted of group sessions three times each week for a total of six hours each week. Based on these contacts with defendant, Dolan felt that defendant had now resolved the issues that contributed to his sexual offense to the point where there was a reasonable expectation that defendant could function in the community without choosing to sexually offend again. Dolan categorized his confidence level in defendant's rehabilitation at the 96 percentile. However, he conditioned his recommendation for defendant's discharge upon defendant's cooperation and participation in a continued treatment plan. The release plan devised for defendant required: (1) full-time employment or vocational training, specifically, defendant's enrollment at Southern Illinois University and residence within the campus area; (2) no relocation without the notification of and approval by the Department of Corrections; (3) intensive supervision through parole services; (4) absolute abstention from all drugs and alcohol with enforcement assured by the voluntary use of Anabuse; and (5) continued outpatient therapy.
Dolan acknowledged that defendant's previous assaults had occurred at a college campus, yet he maintained that the safety of the public could be reasonably assured even though defendant would be thrust from an intensely structured environment to an unsupervised setting of an apartment or dormitory. Dolan indicated that defendant had no major infractions at Menard, that he had been allowed to work in areas outside the confines of the facility and that he had participated in fishing trips.
The second witness was Dr. Sam Parwatikar, who was a board-certified psychiatrist at the Menard Psychiatric Center. He testified in support of defendant's petition. Dr. Parwatikar became the supervisor of the sexual-offender program in 1985 and became involved with defendant at that time. Since March 1985, Dr. Parwatikar saw defendant once each month for a 15- to 30-minute session. He stated that, in his opinion, defendant understood some of the problems related to his childhood conflicts that cause him to sexually offend and that defendant also understood the importance of avoiding drugs and alcohol which lowered his inhibitions and, thus, contributed to his offenses. Therefore, Dr. Parwatikar felt that he could recommend that defendant be released to a semi-structured environment contingent upon his continued participation in therapy.
Dr. Parwatikar acknowledged that there were no "half-way" facilities that could provide defendant with a semi-structured environment and that defendant felt he would need such a facility. However, he stated that he had reviewed the plan devised for defendant and "felt comfortable" with the criteria set forth in the plan. Dr. Parwatikar also admitted that there were no guarantees that defendant would not sexually offend again or that defendant would refrain from using drug and alcohol. In addition, Dr. Parwatikar stated that defendant could still be sexually dangerous if he was not able to understand the reasons for his behavior and that this was the reason that continued therapy was necessary. In explanation, Dr. Parwatikar stated that defendant had been able to put some of his past sexual behaviors and experiences into perspective based upon an understanding of his childhood conflicts. However, because life is dynamic, once in the community and constantly confronted with new situations, defendant would need to resolve those conflicts in the context of these new situations. Furthermore, Dr. Parwatikar admitted that it was more than likely that defendant still experienced sexual fantasies about rape.
The hearing was then adjourned for several weeks so that defendant could be evaluated by a court-ordered psychiatrist. When the hearing reconvened on August 4, 1987, Michael Dolan was recalled. Dolan testified that there had been much adverse publicity regarding the case and, for this reason, the release of defendant to Southern Illinois University was now contraindicated because defendant would have difficulty adjusting to the intense hostility. Therefore, Dolan suggested that the earlier release plan should be amended to reflect this change in circumstances. He stated, however, that he still felt that defendant should be released to an unsupervised setting, such as off-campus housing at another university where meals would be provided and utilities paid. However, he admitted that no definite plan was in place and presently there was no place for defendant to live upon his release except for his parents' home, which might be less than ideal. Dolan also admitted that, based on defendant's history, there was a high probability that defendant, in an unsupervised setting, would return to drug and alcohol use when confronted with outside pressures. ...