Daniel L. Pens v. Kit Bail Kenneth W. Ducharme Isrb Chairperson

The Washington State Indeterminate Sentence Review Board (Board) appeals the district court’s grant of Daniel Pens’ habe-as corpus petition. The district court held the Board violated Pens’ fifth amendment right against self-incrimination by imposing an exceptional minimum sentence based on statements Pens made during post-eonviction, court-ordered, confidential therapy. We affirm.

I

Pens was convicted in 1981 on two counts of first degree rape and committed to the Western State Hospital (WSH) sexual psychopath treatment program. The WSH therapists assured Pens information he revealed during treatment would not be disclosed to the courts. As part of treatment Pens confessed numerous additional completed and attempted rapes, other crimes and deviant behavior. After three years WSH returned Pens to court with a report detailing his confessions and statements during treatment and concluding he was “not amenable to treatment” and “not safe to be at large.”

Based on the WSH report, the trial judge recommended and the Board sentenced Pens to an exceptional 20-year minimum term reduced by about three years for time served at WSH. In justifying his sentencing recommendation, the judge…