The Washington State Supreme Court will decide whether dozens of sexually violent offenders already committed to McNeil Island may be granted new trials each year at public expense.

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Taxpayers may be on the hook for an additional $22.5 million a year for experts and lawyers in civil-commitment trials, depending on what the Washington Supreme Court decides.

The case,
State v. McCuistion,
hinges on how easily sexually violent predators can obtain new trials seeking their freedom.

If the state loses, dozens of sexually violent offenders already committed to McNeil Island may be granted new trials each year.

Currently, state psychologists evaluate the sex offenders every year to see if they meet the criteria for continued confinement. Offenders have a right to hire their own evaluators. State law says an offender has to show progress in treatment or be physically incapacitated to get a new trial.

David McCuistion, a sex offender committed in 2003, sued the state, saying the law violated his constitutional rights because it denied him a hearing to show new evidence. Although he had neither taken treatment nor become physically disabled, McCuistion, armed with his psychologist’s report, argued that he no longer met the criteria for commitment.

In September 2010, the Supreme Court ruled 5-to-4 in McCuistion’s favor. State officials responded in panic.

The King County Prosecutor’s Office said that sex offenders now would be able “to obtain expensive annual recommitment trials for the price of an expert report, which is paid for at public expense.” Offenders would only need a psychologist to opine they no longer met criteria, for any reason.

Each new trial could cost from $300,000 to $450,000, according to the Office of Financial Management.

The Supreme Court granted a request by the Attorney General’s Office to reconsider its decision. The court withdrew its previous decision and heard arguments in May.

That action put on hold about 35 cases of sexually violent predators who were making arguments similar to McCuistion’s.

The Supreme Court’s decision is expected later this year.