Among other provisions, the Adam Walsh Child Protection and Safety Act of 2006 allows the federal government to indefinitely detain “sexually dangerous” offenders through a civil commitment process, which requires mandatory court hearings after such offenders have been certified by the U.S. Department of Justice (DOJ) as eligible for commitment. The Adam Walsh Act was named for the kidnapped and murdered son of America’s Most Wanted host John Walsh. [See: PLN, June 1996, p.12].

Under 18 U.S.C. § 4248, the federal government must obtain a “Certification of a Sexually Dangerous Person” before it can proceed in a civil commitment action. Under § 4247(a)(5), a “sexually dangerous person” is defined as one who has engaged or attempted to engage in sexually violent conduct or child molestation, and who is “sexually dangerous to others” or suffers from a serious mental illness, abnormality or disorder, as a result of which he would have “serious difficulty in refraining from sexually violent conduct or child molestation if released.”

To order civil commitment, a federal district court must find at an evidentiary hearing (no jury trial is required) that the government has met its burden of proof by clear and convincing evidence that an offender is a sexually dangerous person. If so, he may be confined in a suitable facility for mental health treatment until it is determined that he is no longer a danger to others. 18 U.S.C. § 4248(d). The standard of “clear and convincing evidence” is lower than the “beyond a reasonable doubt” standard required in criminal prosecutions, and when certifying prisoners for civil commitment the DOJ can consider conduct that did not result in an arrest, prosecution or conviction. In fact, offenders can be certified for civil commitment even if they have no prior criminal record of sex offenses.

According to investigative reporting by USA Today, the DOJ has certified 136 federal prisoners over the past six years but only 15 have been civilly committed following court hearings. The “Justice Department has either lost or dropped its cases against 61 of the 136 men” who have been certified since 2006. Of the prisoners certified as eligible for civil commitment who were eventually freed, some had been detained for more than four years pending a hearing.

“Things take time,” stated former U.S. Attorney George Holding. “These men are accused of being a threat to society, and the system has to play itself out.”

Often, though, offenders certified by the DOJ are ultimately determined not to be a threat to society deserving of civil commitment. Ironically, one of the prisoners who was released because he did not meet the civil commitment criteria was Graydon Comstock.
His case previously had been appealed to the U.S. Supreme Court, which upheld the constitutionality of the federal civil commitment process. See: United States v. Comstock, 130 S.Ct. 1949 (2010) [PLN, July 2011, p.31; Dec. 2010, p.44]. Comstock was freed in November 2011.

In addition to the federal government, around 20 states have civil commitment statutes for sex offenders. Notably, civil commitment is not imposed for past crimes, as prisoners have been convicted and sentenced for prior offenses before being certified for civil commitment proceedings. Indefinite civil commitment is instead intended to prevent crimes they might commit in the future − a disturbing concept reminiscent of the “thought police” from Orwell’s novel 1984 or the movie Minority Report.

While civil commitment is not supposed to be a form of punishment, the DOJ’s civil commitment unit is located within the federal prison complex in Butner, North Carolina − and prison by any other name is still prison. “Detainees are not prisoners, yet we are treated just like if not worse than criminals convicted of crimes,” observed Gerald Timms, who was certified for civil commitment.

Unsurprisingly, the DOJ has released no public statements concerning its singular lack of success in civilly committing prisoners the department has certified as sexually dangerous. Of the certified offenders who have had commitment hearings thus far, 15 have been committed and 17 ordered freed; thus, the DOJ has a less-than-impressive 47% success rate in cases that result in hearings – not counting other cases that the DOJ has voluntarily dismissed. Nor have DOJ officials issued any explanations regarding the defects and delays in a process that has kept offenders − who have usually finished their prison sentences − incarcerated for many years while awaiting civil commitment hearings.

Some outside observers, including the U.S. Court of Appeals for the Fourth Circuit, have described the lengthy delays in civil commitment proceedings as “troubling” (though not troubling enough to constitute a due process violation, according to the appellate court). See: United States v. Timms, 664 F.3d 436 (4th Cir. 2012).

Fred Berlin, Director of the Sexual Behaviors Consultation Unit at Johns Hopkins Hospital, stated in reference to the DOJ’s civil commitment process, “If it’s going to be done, it has to be done in a just and fair manner.” However, an examination of hearing transcripts and court pleadings in cases where federal prisoners facing civil commitment have eventually won their freedom reveals problems indicative of a systemic lack of justice and fairness.

Government experts, including many Bureau of Prisons (BOP) psychologists, almost always find that prisoners certified under the Adam Walsh Act are sexually dangerous − but such certification typically does not occur until offenders are close to completing their sentences and nearing release. These delays result in extending prisoners’ terms of incarceration when, had they been certified earlier, they presumably could have been receiving sex offender treatment while serving their prison sentences.

Conversely, most private (non-government) psychologists hired by defense attorneys find that offenders certified by the DOJ as sexually dangerous do not require indefinite civil commitment. Private psychologists appear in court transcripts to be more objective, thorough and nuanced in their observations and findings than their BOP counterparts.
Although readily acknowledging that prisoners who face civil commitment possess some measure of dysfunction in matters of a sexual nature, almost none of the private psychologists agreed with the DOJ’s conclusions that such offenders were dangerous enough to warrant continued confinement after serving their prison sentences.

Increasingly, federal judges are agreeing with the findings of private psychologists and defense experts in civil commitment cases, which has put the DOJ in the unusual position of losing more contested hearings than it wins. Courts have repeatedly found that the federal government failed to meet its burden of proof that prisoners certified for civil commitment are sexually dangerous or have a high risk of reoffending, as required by § 4248.

It is uncontroverted that many federal prisoners have been convicted of serious sex-related crimes. But the broadness of some federal criminal statutes – which, for example, make simple possession (or downloading) of child pornography a crime that results in a lengthy sentence – means that numerous prisoners are not guilty of a “hands-on” offense such as sexual assault or rape. That, and the fact that most of the crimes occurred years before and offenders have usually completed their prison sentences, make judges reluctant to order indefinite civil confinement.

Many of the federal prisoners certified by the DOJ for the civil commitment process end up in the Commitment and Treatment Program at Federal Correctional Institution (FCI) Butner in North Carolina. This includes both offenders sent to Butner by the BOP and others who have volunteered for sex offender treatment programs offered at the facility. Under the skewed reality of life behind bars, some prisoners volunteer for the programs in order to avoid harassment, physical violence and even rape in other federal prisons due to the nature of their crimes.

Thus, prisoners may exaggerate their sexual deviancies to obtain a transfer to FCI Butner, which is perceived to be a safer environment for sex offenders. Ironically this puts them at greater risk of being “Adam Walshed,” or certified for civil commitment, after they complete their sentences. Prisoners at Butner and other facilities have also discovered that statements they made to gain admittance to a sex offender treatment program (SOTP), and issues they discuss in treatment, are not treated as confidential and can be used against them in civil commitment hearings.

Further, the quality and thoroughness of reports prepared by BOP psychologists that the DOJ relies upon to prove its case in civil commitment proceedings are sometimes questionable. It appears that the government feels obligated to proceed in cases where proof may be less than substantial, perhaps due to perceived public hostility toward sex offenders and media coverage of heinous sex crimes. Judges in civil commitment proceedings, though, have shown a willingness to carefully sift through the facts before rendering decisions based on applicable legal standards.

According to records in two cases discussed below, federal district courts declined to impose civil commitment and ordered the defendants freed under strict conditions of supervised release or probation. The DOJ simply could not present enough proof to justify the courts finding otherwise. In one case the judge noted that the defendant had not committed a “hands-on” crime in decades, had undergone extensive treatment and was at an age where reoffending was unlikely. In the other case, the district court cast doubt on psychological tests used by the BOP in the initial screening process to determine whether an offender should be certified for civil commitment.

Responding to such judicial criticism of the BOP’s certification methodology, BOP spokesman Chris Burke said that prisoners are only certified as sexually dangerous after “careful assessments by mental health professionals.” However, the BOP reportedly suffers from a shortage of experienced psychologists, especially those qualified in the area of civil commitment. Often unable to attract sufficient experienced mental health staff, the BOP maintains a psychology pre-doctoral internship program in an effort to find potential candidates to hire.

Anthony Jimenez, a psychologist who ran the BOP’s civil commitment program from 2007 to 2008, acknowledged the inadequacy of the BOP’s expertise in this area and said that some prison psychologists had no experience in performing civil commitment certifications. “It was rushed, and initially,” he stated, “I believe, quality probably suffered.”

Jimenez also admitted that public pressure sometimes entered into the certification process. Although noting that the BOP consulted with staff attorneys before certifying an offender as sexually dangerous, he conceded that some prisoners were certified even though the evaluation might not have held up in court. According to Jimenez, “It’s not a willy-nilly, ‘this guy looks like a bad guy’ process. If we thought someone was really dangerous but there wasn’t a strong legal case, we might very well still push it for the public interest. Hopefully justice is served in the end.”

This admission comes as no surprise to defendants and their supporters who have claimed the government delays cases it doesn’t think it will win, just to keep prisoners incarcerated for as long as possible. More recently, though, the DOJ has begun voluntarily dismissing civil commitment cases – including 40 of the 136 cases brought since 2006.
When questioned, DOJ spokesman Charles Miller said the dismissals were due to “the totality of circumstances ... age, health status, change of circumstances, supervised release terms, family support and the opinions of all of the forensic experts.”

One private psychologist, Amy Phenix, offered her own analysis of the DOJ’s difficulty in making proper psychological determinations in civil commitment cases, noting that they “just didn’t have the same expertise” as outside mental health professionals. Which is an interesting statement considering that Phenix had helped train some of the government experts involved in the civil commitment certification process. “There were differences of opinion, and in some cases it was left up to the U.S. Attorney to make decisions about what to do,” she added.

Cases that have resulted in favorable rulings for the defendants serve as a chilling reminder of the power of the DOJ to arbitrarily deprive prisoners of their freedom for years after they have completed their sentences, by keeping them confined pending civil commitment hearings. The case of federal prisoner Sean Robert Francis, including the outcome of his § 4248 hearing before Judge Terrence W. Boyle, a federal judge in the Eastern District of North Carolina, is instructive.

In Francis’ case, a DOJ expert said he had testified in 150 to 200 trials involving sexually violent predators and sexually dangerous persons, and had been asked to render opinions about whether offenders certified by the government met the criteria under § 4248 “fifteen or sixteen times.” Of those 15 or 16 cases, he concluded that “nine or ten” met the criteria for sexual dangerousness. The expert stated that Francis had been “convicted of crimes of a sexual nature, of obscene phone calls on multiple occasions ... which involved the use of force or the threatened use of force ... [and there were] “multiple ... offenses [which] involved specific threats of rape or murder....”

Judge Boyle noted that “None of these convictions were hands-on crimes ... none of the threats were made in physically present context. They were all telephone threats.” The government expert agreed that Francis’ offenses were limited to threats made over the phone. “And you think that that established the type of predicate that is contemplated by child molestation or serious sexual crimes?” the court inquired. The expert indicated that was his “understanding” of the law.

The DOJ expert said that in this case, “several of the victims were identifiable victims and [Francis] had personal knowledge of and made specific threats that could certainly be ... perceived by the victims as real, material threats for their safety...,” which satisfied the first part of the required criteria under § 4248 because Francis was guilty of “threatened use of force.”

The court then asked the expert to address the second part of the criteria, regarding whether Francis suffered from a serious mental illness, abnormality or disorder. The government expert stated that Francis’ repeated pattern of making obscene telephone calls showed he had such a condition, based upon his self-confessions and various criminal investigations.

Judge Boyle acknowledged Francis’ penchant for obscene phone calls but stated, “[H]ere you have a person whose criminal history, if any, is all reliant on his own self-confession during therapy, when he had no foreseeable expectation that he would be Adam Walshed and detained civilly.” The court then addressed one of the major weaknesses of many civil commitment proceedings – the fact that some sex offenders confess to crimes they did not commit in order to be accepted into a treatment program. “If you don’t admit that you’re a sexual predator or sexual deviant, they don’t want you in the program because the program’s only for people who admit it.”

Under cross examination by Francis’ attorney, the same DOJ expert acknowledged that previous mental examinations performed at other prison medical facilities failed to find sufficient evidence that would require Francis to be certified as a sexually dangerous offender.

The defense expert attacked the very basis of the prosecution’s case – the appropriateness of the civil commitment certification process. He stated that “there’s no tool, no actuarial or statistical risk assessment tool that would be appropriate in this particular case with this type of [hands-off] offenses ... for which Mr. Francis has been adjudicated.... There’s no contact-based offenses.” He then argued that the “Static-99R” test generally relied upon in such cases was invalid because “It violates the most fundamental assumption of test use.... So it’s not appropriate in this case with Mr. Sean Francis to use any actuarial tool. It’s misleading at its most charitable.”

At the conclusion of the hearing, Judge Boyle found the DOJ had failed to meet its burden of proof that Francis had “engaged in or attempted to engage in sexually violent conduct or child molestation” and suffered “from a serious mental illness, abnormality, or disorder as a result of which he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.” The court noted Francis’ history of making obscene phone calls but said it was not persuaded by the government’s expert witness, and instead adopted the findings of the defense expert. The BOP was thus ordered “to release the Respondent to the custody of the appropriate United States Probation Office.” The DOJ appealed the court’s ruling. See: United States v. Francis, U.S.D.C. (E.D. N.C.), Case No. 5:10-HC-2013-BO; 2012 WL 174590 (Jan. 20, 2012).

Although most prisoners certified by the DOJ for civil commitment have been convicted of some form of sex-related crime, the certification process falters in the area of determining their probability of reoffending. Notably, the tests used in the certification process provide data related to the likelihood of recidivism by groups of offenders with similar characteristics, but not necessarily the individual probability of reoffending for the person being tested. Further, widely-varying scores given by psychologists who administer the same tests indicate that the process is far from an exact science.

As one appellate court put it, “The question of whether a person is ‘sexually dangerous’ is ‘by no means an easy one,’ and ‘there is no crystal ball that an examining expert or court might consult to predict conclusively whether a past offender will recidivate.’” See: United States v. Shields, 649 F.3d 78, 89 (1st Cir. 2011).

Most experts agree that released sex offenders are rarely convicted of another sex crime. For example, a 2003 study by the Bureau of Justice Statistics found that only 5.3% of sex offenders committed another sex-related offense within three years after their release from prison. Other studies dating from the 1980s maintain that many of the psychological methods used to predict who may be a dangerous offender can not be substantiated by any recognized scientific method. Despite that fact, psychologists have spent years sifting through the records of thousands of sex offenders to develop tests to determine which are likely to reoffend. Those tests, however, have been subject to criticism.

A Hawaii federal district court, after reviewing the government’s evidence and making specific findings as to the quality of the diagnostic tests used, found in favor of prisoner Jay Abregana at a civil commitment hearing. Abregana had a history of sex-related crimes that included exposing his genitals to a 12-year-old boy in a movie theater in 2000. That charge was dismissed without prejudice, but in 2001 he was arrested by U.S. postal inspectors for possession of child pornography. He pleaded guilty and was sentenced to 44 months in prison followed by three years of supervised release.

Abregana was transferred to FCI Butner but expelled from the SOTP program, and was released from BOP custody in 2004. He was rearrested for violations of his conditions of release, re-released, and subsequently rearrested for lewd emails. He was certified as a “sexually dangerous person” just prior to his completion of a new prison sentence in 2007.

DOJ experts used many of the same tests utilized in Francis’ case to contend that Abregana met the criteria for civil commitment under § 4248, including the Static-99 test, the Rapid Risk Assessment for Sexual Offense Recidivism (RRA-SOR) and the Minnesota Sex Offender Screening Tool-Revised (MnSOST-R). According to the court, “RRASOR consists of four items concerning a person’s prior sex offenses, his age, whether he has had a male victim, and whether he has had a victim outside of his family ... Static-99 is a brief actuarial instrument designed to estimate the probability of sexual and violent recidivism among adult males who have been convicted of at least one sexual offense against a child or non-consenting adult.... The MnSOST-R was developed in Minnesota to provide for a formal and uniform process to identify high-risk offenders at the time of their release from prison....”

The government and defense experts came up with widely-varied scores on the tests, which led the judge to comment that “the difference among the experts [was] reflective of the difficulty of psychiatric diagnosis.” As the U.S. Supreme Court stated in Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 1811 (1979), “Psychiatric diagnosis ... is to a large extent based on medical ‘impressions’ drawn from subjective analysis and filtered through the experience of the diagnostician ... [which] makes it very difficult for the expert physician to offer definite conclusions about any particular patient.”

The district court further noted that while Abregana had committed a sex-related crime, “neither of the other [non-government] experts, Dr. Rosell and Dr. Barbaree, consider Abregana to suffer from a serious mental disorder.... The U.S. Supreme Court precedent makes clear that the ‘serious difficulty’ language does not require total or complete lack of control, but does require that it must be difficult, if not impossible, for the person to control his dangerous behavior. See Kansas v. Crane, 534 U.S. 407, 411 (2002) (citing Kansas v. Hendricks, 521 U.S. 346, 358 (1997)).... These are difficult questions that require clearer and more convincing proof than is available in the circumstances before the Court.” Abregana was therefore ordered released. See: United States v. Abregana, 574 F.Supp.2d 1145 (D.Hawaii 2008).

The DOJ’s case against another federal prisoner, Markis Revland, also collapsed for lack of “clear and convincing evidence.” According to the district court, Revland’s “only convictions, which conceivably could be labeled as somehow involving child molestation, were two incidents of indecent exposure,” both in 1999, one of which involved public urination. “The government does not suggest that [this] incident involved ‘exploitation’ of minors, ... [and] the government did not prove that respondent engaged in conduct of a sexual nature with them ... or touched other children.”

The DOJ relied heavily on “self-reported” incidents from Revland when he was enrolled in the SOTP program at FCI--Butner, where he admitted to 149 incidents of “hands-on” child sexual abuse. The district court, however, “having consid-ered the matter carefully ... concludes that the government has failed to prove” that any of those incidents actually occurred.

“The court finds that respondent invented the 149 incidents because he was desperate to remain in the SOTP at FCI-Butner. Respondent testified, quite convincingly, that he had been beaten and raped at knifepoint by fellow inmates while incarcerated at the federal prison in Leavenworth, Kansas; that he feared for his life if he remained at Leavenworth; that he sought and obtained admission to FCI-Butner’s SOTP in order to be transferred away from Leavenworth; that once in the SOTP he was encouraged by SOTP staff to ‘get it all out,’ i.e., ‘confess’ everything; and that he felt compelled to make up a long list of sex offenses, lest he be deemed ‘uncooperative’ and returned to the institution from which he had come.”

Revland “would be the Charles Manson of child molesters if even a small portion of the 149 incidents had actually happened,” the court wrote, quoting one of the experts in the case, adding that Revland had “no documented history of ever committ[ing] a ‘hands-on’ sexual offense” and that “the government offered no evidence to independently verify that any of these incidents occurred or that any of them – even one – ever resulted in investigation or prosecution.” Consequently, the DOJ’s petition for civil commitment was denied. See: United States v. Revland, U.S.D.C. (E.D. N.C.), Case No. 5:06-HC-02212; 2011 WL 6749814 (Dec. 23, 2011).

In January 2012, Judge Terrence W. Boyle ruled against the DOJ in a civil commitment hearing for prisoner Jeffrey Neuhauser, who had a history of sex-related offenses. The DOJ contended that Neuhauser suffered from a mental disorder of “hebephilia” – a primary sexual preference for adolescents undergoing puberty. Judge Boyle rejected the government’s argument. “Although hebephilia has been proposed to be included as a mental disorder in the revision of the DSM [Diagnostic and Statistical Manual of Mental Disorders], it has been rejected as a proper mental disorder by numerous psychologists...,” he stated. “The Court finds that it would be inappropriate to predicate civil commitment on a diagnosis that a large number of clinical psychologists believe is not a diagnosis at all, at least for forensic purposes.”

The DOJ’s own expert had admitted that hebephilia was controversial. Regardless, the district court held that even if hebephilia was considered a legitimate diagnosis, the DOJ had still failed to prove that Neuhauser was at high risk of reoffending. He was therefore ordered freed on supervised release with conditions that included polygraph testing and participation in a sex offender treatment program. See: United States v. Neuhauser, U.S.D.C. (E.D. N.C.), Case No. 5:07-HC-2101-BO; 2012 WL 174363 (Jan. 20, 2012).
The Eastern District of North Carolina is the epicenter of federal civil commitment cases, since FCI Butner is located in that district. As a result the Fourth Circuit, which has jurisdiction over federal courts in North Carolina, hears numerous appeals of civil commitment decisions (the Supreme Court’s Comstock opinion originated from a Fourth Circuit ruling).

On January 9, 2012, the Fourth Circuit rejected the government’s appeal of an adverse decision in a civil commitment hearing involving prisoner Clyde Hall. Although the Court of Appeals found that Hall had previously engaged in “past acts of child molestation” in the 1980s and 90s, and suffered from “a serious mental illness, abnormality, or disorder,” it agreed with the district court’s finding that the DOJ had failed to prove “by clear and convincing evidence, that Hall, as a result of these disorders, ‘would have serious difficulty in refraining from ... child molestation if released.’”

The appellate court noted that the government and defense experts in the case had “arrived at conflicting opinions,” but affirmed the lower court’s decision to credit the testimony of the defense expert and Hall, who testified in his own behalf. One contributing factor cited by the Fourth Circuit was that Hall had spent 28 months in the community after completing a sex offender treatment program and had not committed another sex crime during that time. See: United States v. Hall, 664 F.3d 456 (4th Cir. 2012).

Although it appears from the cases cited above that many judges are justifiably skeptical of the federal civil commitment process, that has not dissuaded the DOJ from continuing to certify prisoners as sexually dangerous who may or may not eventually be found eligible for civil commitment under § 4248, including those who have committed “hands-off” sex offenses. Judge Boyle complained during a court hearing in 2011 about the lengthy, indefinite civil commitment process once a prisoner is certified by the DOJ. “There’s no horizon. It’s just darkness,” he said.

Another issue that has yet to be addressed by the DOJ is preparing offenders awaiting civil commitment hearings for their eventual release back into the community. Such prisoners are often prevented from participating in educational and rehabilitative programs available to those in the general prison population. As a result, offenders whose civil commitment cases are ultimately dismissed, or who prevail at their court hearings, are unprepared in terms of their post-release employment, housing and treatment requirements.

Clearly the entire federal civil commitment process is in need of serious improvement. If the government intends to civilly commit certain offenders after they have completed their prison sentences, not for what they have done but for what they might do in the future, then changes are necessary to ensure that our justice system lives up to its name.

The DOJ should seek to certify only those convicted sex offenders who meet the applicable criteria and are likely to reoffend. If prisoners require sex offender treatment, they should receive it while serving their prison terms; the DOJ should not wait until they have almost finished their sentences before certifying them for civil commitment proceedings. The civil commitment process needs to be expeditious, to ensure it is not used as a means to improperly detain offenders after they complete their prison sentences. Further, the certification process should be based on objective, scientific methodology that evaluates the individual dangerousness and probability of reoffense of the person being tested.

As of March 2012, 59 federal prisoners were awaiting civil commitment hearings. The DOJ has since argued in its appeal to the Fourth Circuit in Sean Francis’ case that the courts should approve civil commitment for offenders who engage in “hands-off” non-contact crimes – such as making obscene phone calls, exhibitionism and, presumably, soliciting sex from law enforcement officers posing as minors on the Internet. This would, of course, greatly increase the potential pool of federal prisoners eligible for civil commitment proceedings.

The Fourth Circuit rejected the DOJ’s argument on July 16, 2012, finding that the district court had “appropriately considered the evidence as a whole using the framework provided in the Act and concluded that Francis was not sexually dangerous to others, within the meaning of the Act, because the government failed to meet its burden of proof regarding this required component for civil commitment under the Act.” The district court’s judgment in favor of Francis was therefore affirmed. See: United States v. Francis, U.S. Court of Appeals for the Fourth Circuit, Case No. 12-1205; 2012 WL 2877668.

Despite yet another adverse ruling, the DOJ will most likely continue to certify offenders for civil commitment whether they meet the necessary criteria or not, in order to keep them in prison for as long as possible. That, apparently, is what passes for “justice” in the federal civil commitment process.

Sources: www.usatoday.com, www.newsobserver.com, www.raleighpublicrecord.org, http://forensicpsychologist.blogspot.com, www.nacdl.org, www.bjs.ojp.usdoj.gov

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