WPIC 300.24 Aggravating Circumstance—Future Dangerousness [RCW 9.94A.535(3)(o)]

For the aggravating circumstance of future dangerousness, the above instruction may be used to supplement the primary statement of this aggravating circumstance, which appears in WPIC 300.02 (Aggravating Circumstance Procedure—Factors Alleged—Unitary Trial) or WPIC 300.06 (Aggravating Circumstance Procedure—Factors Alleged—Bifurcated Trial or Stand-Alone Sentencing Proceeding).

If not already provided to the jury, use WPIC 6.51 (Expert Testimony), if the opinion of a mental health professional will be offered to establish the lack of amenability element.

RCW 9.94A.535(3)(o).

This aggravating circumstance was added to the Sentencing Reform Act in 2005. The accompanying legislative history indicates that the statutory language was designed to codify existing common law aggravating circumstances. Laws of 2005, Chapter 68, § 1 (effective April 15, 2005).

Consistent with this principle, the statutory language includes both common law elements: (1) history of similar acts; and (2) non-amenability to treatment.

Prior offenses. Case law prior to the 2005 codification of the “future dangerousness” aggravating circumstance provided that a defendant's prior history of similar criminal acts may be established by past convictions or through the consideration of uncharged offenses. State v. Bedker, 74 Wn.App. 87, 96–98, 871 P.2d 673 (1994).

The 2005 statute uses the phrase “history of sex offenses” rather than “history of similar criminal acts.” Under prior case law interpreting the older wording, criminal acts that did not result in convictions were included. It is not clear whether they are still included under the new wording, in part because the SRA does not define the word “offense.”

Lack of amenability to treatment. This issue is usually established by the opinion of a mental health professional. See, e.g., State v. Pryor, 115 Wn.2d 445, 455, 799 P.2d 244 (1990). It is an open question as to whether the current opinion of a mental health professional is always required, or whether instead proof of other facts can suffice. In State v. Post, 118 Wn.2d 596, 615, 826 P.2d 172, amended by 837 P.2d 599 (1992), the state Supreme Court held that:

It is not clear whether Post was requiring the expert opinion in all cases, or simply holding that the expert opinion is one way the issue can be proved. In subsequent cases, the Washington Supreme Court allowed proof of other objective indications that the defendant is not amenable to treatment. See State v. Cannon, 130 Wn.2d 313, 334, 922 P.2d 1293 (1996) (lack of amenability to treatment established when rape was committed within two months of the defendant being required to undergo deviancy treatment); State v. McNallie, 123 Wn.2d 585, 591, 870 P.2d 295 (1994) (lack of amenability to treatment established by evidence of two prior treatment programs, with the current offense committed while in treatment). In a case pre-dating Post, the Court of Appeals held that an offense committed years after treatment is concluded is not by itself sufficient evidence. See State v. Miller, 60 Wn.App. 914, 918–20, 808 P.2d 186 (1991).

In determining a defendant's amenability to treatment, the Fifth Amendment precludes the jury from considering the defendant's silence or denials of guilt with respect to the current offense. The jury may, however, consider the defendant's denial of past offenses for which the defendant has already been punished. State v. Strauss, 93 Wn.App. 691, 697–701, 969 P.2d 529 (1999).

Bifurcated proceeding. The statutory presumption is that this aggravating circumstance will be presented to the jury in a separate, post-verdict proceeding. RCW 9.94A.537(4). This presumption may be overcome if the evidence supporting this aggravating circumstance is part of the res gestae of the charged crime, if the evidence is otherwise admissible in trial of the charged crime, and if the court finds that the probative value of the evidence of the aggravating circumstance is not substantially outweighed by its prejudicial effect on the jury's ability to determine guilt or innocence for the underlying crime.

Cross-reference. For further discussion of this aggravating circumstance, see Fine, 13B Washington Practice, Criminal Law and Sentencing, section 47:17 (3d ed.).