MEMORANDUM
To:

Defenders, CJA Counsel

From: Amy Baron-Evans, Sara Noonan
Re:

Adam Walsh Act III: It’s Not the Sentence, It’s the Commitment . . .

Date: September 10, 2007, as revised September 25, 2007
Title III of the Adam Walsh Child Safety and Protection Act of 2006 (“Adam
Walsh Act” or “the Act”) established the Jimmy Ryce Civil Commitment Program for
Dangerous Sex Offenders, now codified at 18 U.S.C. §§ 4247, 4248. Under this new
program, the AG or anyone authorized by the AG or the Director of BOP may seek to
civilly commit anyone in BOP custody by “certifying” him (or her) as “sexually
dangerous.”
Civil commitment for sexual dangerousness is, as a practical matter, a life
sentence. According to a recent New York Times article, 19 states have passed laws
allowing for civil commitment of the sexually dangerous, under which over 2600 people
have been civilly committed.1 Of those, only 252 – less than 10% – have been granted a
full discharge from custody. The Washington State Institute for Public Policy comes up
with different numbers but a statistically similar discharge rate, reporting that 4,534
people have been committed under state sexually dangerous person laws, only 494 of
whom have been discharged or released (an additional 85 people died while in custody).2
Defense counsel must act from the moment appointed to protect clients against
the risk of civil commitment, and should contact clients serving sentences in BOP
custody or on supervised release to warn them of the dangers. It is not only clients who
are charged with or convicted of a sex offense who need to be warned and protected. To
date, BOP has identified 10,000 to 12,000 inmates as eligible for review, has reviewed
less than half of those, and has filed 46 “sexually dangerous” certifications. Those
certified include inmates in BOP custody for non-contact or non-sex offenses such as
felon in possession of a firearm, bank robbery, simple assault at a VA hospital,
distribution of crack, and possession of child pornography. Many of the inmates certified
as sexually dangerous had no federal sex offense convictions at all, but were certified
based upon prior state convictions listed in the PSR, and, according to a proposed BOP
regulation, a person may be certified based on any information from any source
1

See Monica Davey and Abby Goodnough, Doubts Rise as States Hold Sex Offenders After Prison, N.Y.
Times (March 4, 2007) (chart entitled “Civil Commitment Around the Country,” setting forth statistics for
sexually dangerous commitments in Arizona, California, Florida, Illinois, Iowa, Kansas, Massachusetts,
Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, North Dakota, Pennsylvania, South
Carolina, Texas, Virginia, Washington, Wisconsin between 1990 and 2006).

2

See Washington State Institute for Public Policy, Comparison of State Laws Authorizing Involuntary
Commitment of Sexually Violent Predators: 2006 Update (Aug. 2007), available at
http://www.wsipp.wa.gov/rptfiles/07-08-1101.pdf.

whatsoever, including uncorroborated admissions allegedly made during sex offender or
other “treatment,” or denial of child molestation or sexually violent conduct. The
Attorney General recently bragged to Congress that “the Bureau of Prisons has 30
inmates [now 46] certified as sexually dangerous persons (not limited to those
incarcerated for sex offenses).”3
This memorandum describes the new civil commitment law and how BOP is
interpreting and using it, gives a status update on pending certification cases, and
suggests ways to protect clients against being certified in the future. Please let us know if
we have missed anything or gotten anything wrong, if you have additional suggestions
for how best to deal with the issues, or if there have been any important developments in
your cases that might be helpful to others.
TABLE OF CONTENTS
I.

Who Can Be Considered for Civil Commitment under §
4248………………………………………………………………………….. 3

II.

What Happens When BOP Certifies an Inmate as a “Sexually Dangerous
Person”……………………………………………………………………... 4

III.

Litigation Update on Closed or Pending § 4248 Cases ………………….. 5

IV.

Who Is at Risk of Being Certified “Sexually Dangerous” by BOP……...11
A.

“Sexually Violent Conduct”…………………………………………...12

B.

“Child Molestation”……………………………………………………15

C.

“Engaged or Attempted to Engage”…………………………………..16

D.

“Serious Mental Illness, Abnormality or Disorder”………………..,, 17

E.

“Serious Difficulty in Refraining from Sexually Violent Conduct or
Child Molestation”……………………………………………………..18

V.

How Best to Protect Clients………………………………………………. 20
A.

When Appointed……………………………………………………..... 20

B.

On Pretrial Release / Probation / Supervised Release……………… 22

3

See Statement of Alberto R. Gonzales before the Committee on the Judiciary, U.S. Senate, Concerning
Oversight of the Department of Justice at 11 (April 17, 2007), available at http://www.cspan.org/pdf/Attorney%20General%20Gonzales%20Written%20Statement.pdf.

2

I.

C.

Plea and Sentencing…………………………………………………… 23

D.

In Custody……………………………………………………………... 24

Who Can be Considered for Civil Commitment under § 4248?

Under 18 U.S.C. § 4248(a), the Attorney General or any individual authorized by
the Attorney General or the Director of the Bureau of Prisons has the power to certify as
“sexually dangerous” anyone in BOP custody. See 18 U.S.C. § 4248(a). In practice and
in a rule published for comment on August 3, 2007, BOP interprets this to mean that
anyone in BOP custody is fair game. See 72 Fed. Reg. at 43206 (BOP “may consider
whether any person in its custody should be certified as a sexually dangerous person”)
(emphasis added). Pretrial detainees and those incarcerated for non-criminal supervised
release violations are as vulnerable as those serving time for conviction of a crime.
Those in BOP custody for a violation of the DC criminal code are also subject to
certification. To date, 12 of the 46 people certified were in custody on supervised release
revocations, 4 were DC prisoners who were simply being housed by BOP, and 2 were in
custody for military convictions.
Importantly, the inmate need not be in BOP custody for anything to do with a
sex crime and need not have ever been convicted of a sex crime. While everyone
currently facing a certification does have at least one sex-related conviction (often under
state law), such convictions are not a prerequisite. As discussed in Part IV, infra, the
statute requires only that the person have “engaged or attempted to engage” in sexually
violent conduct or child molestation; a criminal conviction or charge is not required. See
18 U.S.C. § 4247(a)(5). BOP recently confirmed that it will consider all “evidence” of
sexually violent conduct or child molestation from any source, “whether or not a
conviction resulted, and whether or not the person’s present custody is based on the
conduct in question.” See 72 Fed. Reg. at 43207. Of the 46 people with pending
sexually dangerous certifications, approximately 9 were in BOP custody for child
pornography convictions and another 4 were in custody for offenses entirely unrelated to
sex. Of those 4, none had ever been convicted of a federal sex offense.
There need not be any question about the inmate’s sanity or competency before BOP can
file a certificate, although those who have been adjudicated incompetent under 18 U.S.C.
§ 4241 or whose charges have been dismissed solely for reasons relating to their mental
condition are also eligible for commitment under § 4248. See 18 U.S.C. § 4248(a); 72
Fed. Reg. at 43206. To date, only 1 of the 46 people BOP has certified as sexually
dangerous was previously deemed incompetent. Notably, under the Adam Walsh Act,
the government can now move for a competency hearing anytime after the
commencement of probation or supervised release and prior to the completion of the
sentence. See 18 U.S.C. § 4241(a). Thus, it as least possible that a client who has served
his full prison term and is now on supervised release is at risk of being declared
incompetent and, thereafter, civilly committed as a sexually dangerous person. A more
likely risk – and one that we have already seen – is that a person on supervised release

3

will end up back in BOP custody on a technical violation, and will then be certified as
sexually dangerous.
II.

What Happens When BOP Certifies an Inmate as a “Sexually Dangerous
Person”?

BOP is in the process of conducting an initial review of all inmates to determine
whether or not they merit a closer look as a potential committee under § 4248, working
backwards from those due to be released immediately to those due to be released later.
At minimum, this involves reviewing each inmate’s PSR and BOP file. If BOP believes
an inmate merits further attention, BOP staff conducts a more searching evaluation. The
evaluation usually occurs at FCI-Butner or FMC-Devens, although BOP will conduct it at
the facility where the inmate is housed if it is administratively easier to do so. No
Miranda warnings are given and the inmate is not provided with an attorney during
this process. The inmate is given a form to sign which states that (1) he consents to an
evaluation consisting of interviews, review of records, and testing, (2) he understands that
it will be used to determine his eligibility for civil commitment as a sexually dangerous
person after he serves his sentence, (3) he understands that the results will be related to
BOP officials and “others with a need to know” including the court, the government, and
his lawyer, and (4) the evaluation will be completed whether or not he participates. See
Notice of Psychological Evaluation, available at
http://www.fd.org/odstb_AdamWalsh.htm. Many inmates have made statements or
admissions during this coercive process that are then used to support a sexually
dangerous certification.
Based on a review of the certifications to date, BOP appears to be looking
particularly for a prior contact sex offense conviction, though it has made clear that it
need not limit itself to those offenders. See Part IV, infra, for further discussion of
BOP’s proposed criteria. Particular attention has been paid to those offenders who have
been given a “sex offender” PSF. All inmates who are due to be released within a
relatively short period of time are being “fast tracked” for review.
If BOP certifies that a person is sexually dangerous, the certificate is filed with
the court for the district in which the person is confined. See 18 U.S.C. § 4248(a). Filing
the certificate stays the inmate’s release pending a decision on the merits. There is
no bail, no probable cause hearing, and no other mechanism through which the basis for
holding the inmate beyond his release date can be determined by a neutral judicial
officer.4 Many of the people currently facing certifications were due to be released in a
matter of days (matter of hours, for a few) when their certifications were filed. Some
4

This is different from similar state laws, the overwhelming majority of which provide for a judicial
probable cause determination at the outset of proceedings. See Ariz. Rev. Stat. § 36-3705; Cal. Wel. &
Inst. Code § 6602(a); Fla. Stat. § 394.915; 725 Ill. Comp. Stat. § 207/30; Iowa Code § 2297A.5; Kan. Stat.
Ann. § 59-29a05(b); Mass. Gen. Laws ch. 123A, § 12C; Minn. Stat. § 253B.07(7); Mo. Rev. Stat. §
632.489; N.H. Rev. Stat. § 135-E:7; N.J. Stat. § 30:4-27.28; N.D. Cent. Code § 25-03.3-11; S.C. Code Ann.
§ 44-48-80; Va. Code Ann. § 37.2-906; Wash. Rev. Code § 71.09.040; Wis. Stat. § 980.04.

4

have now been incarcerated for upwards of ten months past their release dates.5 BOP
houses and treats these detainees exactly the same as prisoners serving time on a criminal
conviction, with the only difference being that the § 4248 detainees do not have to work.
If they choose to, however, they are paid the same amount as prisoners.
Section 4248 offers scant procedural protection to those facing pending
certificates. In addition to the lack of a probable cause determination, there is no set time
within which the hearing on the merits must occur. The statute does not require the
government to prove sexual dangerousness beyond a reasonable doubt, which is the
standard utilized by half of the states with similar laws,6 but by clear and convincing
evidence. See 18 U.S.C. § 4248(d). The person has no right to a jury trial and, if
committed, will not be released until either a state assumes responsibility for his custody,
care and treatment, or he is “no longer sexually dangerous to others, or will not be
sexually dangerous to others” if released under a prescribed regimen. See 18 U.S.C. §§
4247(d), 4248(c) & (d).
III.

Litigation Update on Closed or Pending § 4248 Cases

AFPDs in four districts (C.D. Cal., E.D. N.C., D. Mass, and D. Haw.) have been
handling all of the § 4248 certifications. Those with older cases have already filed
copious dismissal motions challenging the constitutionality of § 4248. If you are
appointed to represent a client facing a pending sexually dangerous certification, your
first step should be to contact the AFPDs listed below to take advantage of the enormous
amount of thought and work that has already gone into these challenges. CJA counsel
should also contact their local Defender office to enable us to keep track of all § 4248
certifications.
All of the briefs and the two court decisions discussed here are available at
http://www.fd.org/odstb_AdamWalsh.htm.
C.D. of Cal. (1 case). In the first § 4248 certification ever filed (and the only one
filed in California), AFPD Myra Sun argued (among other things) that § 4248 violates
due process because it permits the government to detain inmates past their release and
stigmatize them as “sexually dangerous” without a prompt post-deprivation hearing
before a neutral decision maker to test the correctness of the governmental action. To
demonstrate the need for a prompt hearing, Myra pointed out that the government had
certified her client as sexually dangerous despite disagreement between BOP staff who

5

Even if a client has an immediately impending release date, do not relax your guard. Given BOP’s ability
to manipulate good time credits and the like and its policy of fast-tracking those due to be released sooner,
release dates are not a reliable measure of risk. Clients are not safe until they are literally out the door and,
even then, they run the risk of being sent back to BOP for violating their release conditions.
6

See Ariz. Rev. Stat. § 36-3707; Cal. Wel. & Inst. Code § 6604; Ill. Comp. Stat. § 207/35(f); Iowa Code §
2297A.7; Kan. Stat. Ann. § 59-29a10; Mass. Gen. Laws ch. 123A, § 14(d); S.C. Code Ann. § 44-48-100;
Tex. Health & Safety Code § 841.062; Wis. Stat. § 980.05(3)(a).

5

saw him and rated him “low-risk” and other BOP employees who considered him
dangerous based on a paper review and the defendant’s score of “4” on the Static-99.
The Static-99 is a widely-used actuarial tool that takes into account various
characteristics or factors that have been shown to demonstrate some value in predicting
recidivism in sex offenders. Although considered the standard test in the field, the actual
predictive value of the Static-99 has been widely questioned, even by the test’s authors.
See Andrew Harris, Amy Phenix, R. Karl Hanson & David Thornton, Static-99 Coding
Rules Revised – 2003 at 3 (acknowledging that the “weaknesses of the Static-99 are that
it demonstrates only moderate predictive accuracy . . . and that it does not include all of
the factors that might be included in a wide-ranging risk assessment”) (citations omitted),
available at http://www.fd.org/odstb_AdamWalsh.htm.
Very basically, the Static-99 reviews three types of factors: offender
demographics, criminal history, and victim characteristics. See id. at 4-5. The
“demographic factors” include the offender’s age (no points are assessed for anyone who
will be 25 or older at the time of release) and whether he has lived with an intimate
sexual partner for two or more years (if yes, no points are assessed). See id. at 4-5, 2326. The “criminal history factors” – which score convictions for nonsexual violent
offenses committed at the same time as or prior to the most recent sex offense, sex
offenses (both charges and convictions) committed prior to the most recent sex offense,
convictions for non-contact sex offenses committed at the same time or prior to the most
recent sex offense, and sentencing dates – can only be assessed based on an official
record: “Self-report is generally not acceptable to score these five [criminal history]
items.” See id. at 11. The “victim factors” score convictions involving unrelated victims,
stranger victims, and male victims (no points assessed if victims were related, known to
the offender, or female). See id. at 48, 52, 54, 56. Victim information from non-sexual
offenses or offenses relating to prostitution/pandering, possession of child pornography,
or public sex with consenting adults is not scored. See id. at 11. Polygraph results may
not be used to assess the criminal history or victim factors. See id. at 11. Scores of 6 and
higher are treated as “high risk” of sexual or violent recidivism under the Static-99,
though the actual extent of the risk varies over time. See id. at 57.7
7

Although outside the scope of this memo, it should be noted that the authors of the Static-99 recommend
numerous limitations on use of the test, including that the test not be used on:
ƒ
ƒ
ƒ

ƒ

Women
Young offenders
Those whose only sex offenses consist of:
o crimes relating to child pornography, including possessing, selling, transporting, and even
creating if only pre-existing or digital images were used;
o statutory rape where the ages were close and the sex was consensual;
o prostitution-related offenses, including pimping or pandering, soliciting, seeking or hiring
prostitutes, or offering prostitution services;
o sex in public locations with consenting adults;
o possession of obscene materials; or
o indecent behavior without a sexual motive (e.g., urinating in public) and
Anyone who has never had a sex offense conviction.

6

In her motion to dismiss, Myra pointed out that her client had received a “4,”
which represented only a “Moderately-High” risk, even assuming that the test was a valid
predictive tool and that it had been properly administered and scored. Her motion
became moot, however, when the court granted the government’s own ex parte motion to
dismiss the petition. The reason? The court-appointed expert had issued a report
disagreeing with BOP and finding the defendant not appropriate for commitment, based
in large part on his relatively low Static-99 score. The victory remains marred, however,
by the sobering fact that by the time the government decided to reverse course, Myra’s
client – who was in BOP custody for a federal drug offense -- had been held by BOP
(much of the time in solitary confinement) for close to 4 months past his release date.
E.D. of N.C. (35 cases). AFPD Jane Pearce, RWS Eric Brignac and paralegal
Graham Hollett have borne the brunt of § 4248, representing 35 of the 46 people certified
as sexually dangerous by BOP. Jane and her team won an early motion for an in-court
hearing on the merits (the government wanted the defendant to attend the hearing via
videoconference). They then filed two motions to dismiss raising a number of
constitutional challenges to the statute.
First, they argued that Congress exceeded its power under the Commerce Clause
and the Necessary and Proper Clause in enacting § 4248 because the statute’s goal is to
deter violent sex offenses, traditionally a matter of state police power, and because
Congress failed to identify or draw any connection between that goal and any economic
or commercial activity. Second, they argued that the statute violates due process because
it permits individuals to be indefinitely detained without basic procedural protections,
noting that the statute does not require a prior sex offense charge or conviction, the
burden of proof is not beyond a reasonable doubt, key statutory terms are not defined,
and the statute may be interpreted to shift the burden to the defendant to disprove sexual
dangerousness following an initial commitment order. Third, they argued that § 4248
violates equal protection by arbitrarily drawing lines based on status as a federal prisoner
rather than requiring at least the existence of a sex offense criminal history. Fourth, they
argued that the statute operates as a form of preventive detention and constitutes criminal
proceedings, in violation of the Double Jeopardy Clause, the Ex Post Facto Clause, the

Id. at 5, 15. They further recommend that test results be adjusted when used on anyone who has been at
liberty for long periods of time without committing another sex offense. See id. at 7 (“[t]he Static-99 is not
applicable to offenders who have had more than 10 years at liberty in the community without a sexual
offence before they were arrested for their current [non-sexual] offence”). Supervised release or probation
violations are countable only when they constitute a chargeable offense; even “high risk” behavior such as
a convicted sex offender loitering in an area where children are present is considered an uncountable
“technical violation,” not a “sex offense,” because non-sex offenders could not be charged criminally for
that behavior. See id. at 16. Arrests or charges, convictions overturned on appeal, institutional rules
violations, and driving accidents or convictions for negligence causing injury or death never count (except
in the rare instance that they fall within the definition of a “prior sex offense”), and felon in possession
convictions count only if the weapon was actually used in the commission of a sexual or violent offense.
See id. at 28, 32, 35-42. Any offenses that occurred after the most recent sex offense “do not count for
Static-99 purposes.” Id. at 21.

7

Sixth Amendment right to a jury trial, and the Eighth Amendment prohibition against
cruel and unusual punishment.
On September 7, 2007, the district court issued a 59-page opinion finding that §
4248 “is not a necessary and proper exercise of Congressional authority and that the use
of a clear and convincing burden of proof violates the substantive due process rights of
those subject to commitment under the statute.” See Memorandum and Order, dated
Sept. 9, 2007 at 3 (Britt, J.), available at http://www.fd.org/odstb_AdamWalsh.htm. The
opinion is required reading for anyone representing a § 4248 defendant.
With respect to the question of congressional authority, the court rejected the
government’s argument that civilly committing sexually dangerous people is “necessary
and proper” to further the power to prosecute federal crimes, finding that power (which
itself must be tied to an enumerated power) is not implicated when exercised against
people who have already been punished for their crimes or against whom all charges have
been dropped, as § 4248 would permit. Id. at 14-15. Nor is § 4248 “necessary and
proper” under the Commerce Clause because it contains no jurisdictional nexus and
because it attempts to regulate non-economic violence. Id. at 17-19; see also US v.
Morrison, 529 U.S. 598 (2000); US v. Lopez, 514 U.S. 549, 561 (1995).
The court also rejected the government’s argument that § 4248 derives from
Congress’s power to prevent the commission of crimes, which itself derives from the
power to prosecute, which in turn derives from an (unspecified) enumerated power,
because § 4248 is not limited to preventing specific federal crimes and “[t]he federal
government simply does not have the broad power generally to criminalize sexually
dangerous conduct and child molestation:”
§ 4248 is not a law aimed at preventing federal crimes by persons in federal
custody; it is a law designed to prevent the commission of sexually violent
conduct and child molestation generally, and it is designed to continue the
confinement of certain individuals so they cannot commit crimes when released
from federal custody.
Id. at 20, n.10; 24. In any event, the court found that § 4248 is not “necessary” because:
Finding that a person has engaged in the statutorily undefined ‘sexually violent
conduct’ or ‘child molestation’ and that a person has a mental abnormality
inclining him or her to sexual deviance or violence of one kind or another is
simply not a reliable indication of the likelihood that (s)he will commit a federal
crime, i.e., a type of criminal conduct that the federal government has the
authority to regulate, and thus commitment of such a person cannot accurately be
described as an action necessary to the execution of an enumerated federal power.

8

Id. at 27. The court further found that § 4248 is not “proper” because it “deprives the
states of parens patriae and police powers and impermissibly intrudes upon an area
historically regulated by the states.” Id. at 44-45.8
Turning to the burden of proof issue, the court held that because § 4248 requires
the government to prove that an individual engaged or attempted to engage in sexually
violent conduct or child molestation, the burden of proof as to that element must be
beyond a reasonable doubt. See id. at 45-46 (“[w]here factual findings of criminal acts
must precede the taking of an individual’s liberty, those findings must be made beyond a
reasonable doubt”) (relying on In re Winship, 397 U.S. 358 (1970)). The court found that
while a lesser standard may be appropriate for determining whether an individual is
suffering from a mental illness or abnormality and is therefore unlikely to refrain from
sexually violent conduct, requiring proof beyond a reasonable doubt to determine the
initial “explicit factual question [relating to the defendant’s past conduct] answerable
only with specific, potentially knowable facts” will not overburden the government,
render the commitment scheme less effective, or erect an unreasonable barrier to
treatment, and will enhance the reliability of the result:
Given the class of potential candidates for commitment, i.e., all federal prisoners
regardless of their criminal backgrounds, and the intent of the statute to prevent
sexually dangerous persons from engaging in further sexually dangerous conduct,
there should be no reasonable doubt that those committed under § 4248 have
actually engaged or attempted to engage in at least one previous act of sexual
violence or child molestation.
Id. at 51-52, 55.
On the downside, the court rejected the argument that § 4248 is in effect a
criminal statute, ruling that Supreme Court precedent “specifically dictates that § 4248 be
characterized as a civil scheme.” Id. at 7 (citing Kansas v. Hendricks, 521 U.S. 346
(1997)). The court found that Congress’s choice to call § 4248 a “civil commitment”
statute, and its apparent goal of protecting the community from sexually violent predators
rendered the statute sufficiently similar to the Kansas statute reviewed in Hendricks to
warrant the same result. It did not, however, address numerous differences between the
two statutes, including the lack of congressional findings about recidivism rates or the
effectiveness of treatment for the sexually dangerous, § 4248’s inclusion in the criminal
code, its failure to provide numerous procedural protections, and its requirement that the
court engage in factual inquiries as to whether or not the defendant actually engaged in
sexually violent conduct or child molestation.9 Compare Hendricks, 521 U.S. at 351-53,
8

Here, the court engages in a lengthy and useful comparison between §§ 4246 and 4248. See id. at 32-41.
Keep in mind, though, that § 4246 may be an unconstitutional exercise of congressional power in its own
right. See, e.g., id. at 21 n.11 (noting that the Supreme Court has not addressed the constitutionality of §
4246 to the extent it attempts to protect the general welfare of the community).

9

Interestingly, the court did distinguish the Kansas scheme in the portion of the opinion addressing the
standard of proof issue. See id. at 56-57.

9

361, 364, 368-69 (discussing Kansas statute’s legislative findings, its procedural
protections including requiring a sex offense conviction or charge, a probable cause
hearing, proof beyond a reasonable doubt, and an annual re-hearing at which the
government is subject to the same burdens, and its placement in the Kansas probate
code); see also Allen v. Illinois, 478 U.S. 364, 371 (1986) (noting that “[t]he initial
inquiry in a civil commitment proceeding is very different from the central issue in . . . a
criminal prosecution. In the latter case[] the basic issue is a straightforward factual
question – did the accused commit the act alleged?”) (citation omitted).10 The court did
not reach the remainder of the defendants’ arguments.
The decision was a huge victory for Jane’s team, but the war is far from over.
The defendants remain in custody pending the government’s anticipated motion to stay
release pending appeal and, depending on the resolution of that motion, may very well
languish there for months, years or life, depending on the outcome in the Fourth Circuit
and, potentially, the Supreme Court.
D. Mass. (9 cases). In Massachusetts, several AFPDs (including Page Kelley,
Judith Mizner, Timothy Watkins, Stellio Sinnis, and William Fick), two co-counsel (Eric
Tennen and John Swomley), and one intrepid RWS (Martin Vogelbaum) have been
sharing responsibility for nine § 4248 certifications that are currently pending before four
different judges. On May 16, 2007, the team filed a 75-page dismissal motion raising: (1)
Congress’s power to enact the statute under the Commerce and Necessary and Proper
Clauses; (2) § 4248’s punitive / criminal nature and its failure to provide for protections
due under the Ex Post Facto Clause and the Fourth, Fifth, Sixth and Eighth Amendments;
(3) equal protection on the grounds that the class of all federal prisoners is overbroad and
irrational, and that prisoners with “serious difficulty refraining from” conduct under §
4248 are treated differently than prisoners who pose “substantial risk of serious bodily
injury to another person” under § 4246; (4) due process on the grounds that the statute
does not require a sex offense charge or conviction, a probable cause hearing, adequate
notice, a sufficient burden of proof, or a jury; (5) due process based on the statute’s
failure to adequately define key terms; and (6) a particularly interesting due process
challenge based on the government’s inability to submit expert testimony on whether a
person will have “serious difficulty in refraining from” certain conduct, because the
available science in the field of “predicting recidivism” is not sufficiently reliable to meet
current evidentiary standards, much less a “clear and convincing” burden of proof.
10

The court also referred to court decisions finding that another provision of the Adam Walsh Act – the
Sex Offender Registration and Notification Act (“SORNA”) – is a civil statute. The analogy is inapt;
although both were created under Adam Walsh, SORNA and § 4248 are entirely different statutory
schemes, motivated for different purposes and serving different (albeit related) goals. Even if it were
appropriate to rely on SORNA caselaw for § 4248 purposes, a number of courts have determined that at
least portions of SORNA are in fact punitive and subject to ex post facto challenges. See, e.g., United
States v. Stinson, Criminal Action No. 3:07-00055 (S.D. W. Va. Sept. 7, 2007); United States v. Sallee, No.
CR-07-152-L (W.D. Okla. Aug. 13, 2007) (unpublished); United States v. Muzio, 2007 WL 2159462 (E.D.
Mo. July 26, 2007); United States v. Bobby Smith, 481 F. Supp. 2d 846 (E.D. Mich., Mar. 8, 2007). See
generally Adam Walsh II: Sex Offender Registration / Failure to Register, Adam Walsh II, Supplement 1,
and Adam Walsh II, Supplement 2 (reviewing all cases to date), available at
http://www.fd.org/odstb_AdamWalsh.htm.

10

Approximately two weeks before Judge Britt’s decision in the E.D. N.C., Judge
Tauro of D. Mass. issued a terse 11-page opinion denying the defendants’ facial
congressional authority and due process challenges on the ground that they failed to
establish that there were “no set of circumstances” under which § 4248 could be
constitutional.11 The opinion also rejected (without serious analysis) the defendants’
equal protection and vagueness challenges, found that § 4248 is civil, not criminal, and
held that the challenge to the sufficiency of expert testimony was premature. The Mass.
team will be arguing these same issues before Judge Saris later this month, who will have
the benefit of Judge Britt’s more recent decision when issuing her own ruling.
D. Haw. (1 case). AFPDs Peter Wolff and Pamela Byrne have the dubious
distinction of representing the only defendant outside of North Carolina and
Massachusetts who is facing a pending sexually dangerous certification. Their case is
relatively new, but they will no doubt be raising similar constitutional challenges to those
raised in the other cases.
IV.

Who Is at Risk of Being Certified “Sexually Dangerous” by BOP?

In the world of § 4248, the biggest victory is to avoid a certification being filed
against your client in the first place. Judging from the certifications filed to date, the
clients most at risk for a “sexually dangerous” certification are those who have a history
of at least one contact sex offense, whether it consists of a current or prior federal
conviction or a prior state conviction. At the same time, BOP has published a regulation
making clear that certifications need not be limited to persons with such a history. Thus,
while BOP may have exhibited some restraint in the initial round of “test case”
certifications, it may not continue to do so going forward.
By statute, a “sexually dangerous person” is “a person who has engaged or
attempted to engage in sexually violent conduct or child molestation and who is sexually
dangerous to others.” See 18 U.S.C. § 4247(a)(5). A person is “sexually dangerous to
others” if s/he “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.” See 18 U.S.C. § 4247(a)(6). Key terms such as “sexually
violent conduct,” “child molestation,” and “serious difficulty” are not defined by statute.
BOP has recently published for comment a rule that would ostensibly interpret
these terms but which, in fact, goes much further than permissible or necessary. The
proposed rule begins with the ominous caveat that BOP’s “interpretations” of the
essential elements of § 4248(a) are not constrained by law: “Although the Bureau has, in
11

In contrast to Judge Tauro, Judge Britt in the E.D.N.C. found that the issues of congressional authority
and due process/burden of proof constituted cognizable facial challenges because if Congress lacked the
authority to enact the civil commitment scheme at issue, or if the clear and convincing standard was
insufficient as a matter of due process, the statute could not be constitutionally applied to anyone. See
Memorandum (Britt, J.) at 6-7.

11

part, looked to federal criminal statutes for language to assist in defining these terms, we
do not rely upon the provisions themselves, case law interpretations of them, or other
related statutory history.” See 72 Fed. Reg. at 43205. “Rather, the Bureau’s primary
intent is to create definitions of terms that are comprehensive, easily understood, familiar
to the general public, and readily applicable by Bureau staff.” Id. at 43205-06. In other
words, the proposed definitions are overly broad, deceptively simplistic, malleable, and
unsupported (and unsupportable) by federal law. Accordingly, they ought to receive no
deference from a reviewing court.12 This memorandum does not attempt to provide
definitions that the courts should use. Presumably, that will be developed through
caselaw with the assistance of qualified experts, as distinct from the Attorney General or
BOP.
A.

“Sexually violent conduct”

BOP has proposed the following:
§ 549.72. Definition of “sexually violent conduct.” For purposes of this
subpart, “sexually violent conduct” includes:
(a) Any unlawful conduct of a sexual nature with another person
(“the victim”) that involves:
(1) The use or threatened use of force against the victim;
(2) Threatening or placing the victim in fear that the victim,
or any other person, will be harmed;
(3) Rendering the victim unconscious and thereby engaging
in conduct of a sexual nature with the victim;
(4) Administering to the victim, by force or threat of force,
or without the knowledge or permission of the victim, a
drug, intoxicant, or other similar substance, and thereby
substantially impairing the ability of the victim to
appraise or control conduct;
(5) Engaging in such conduct with a victim who is
incapable of appraising the nature of the conduct, or is
physically or mentally incapable of declining
participation in, or communicating unwillingness to
engage in, that conduct; or
(b) Engaging in any conduct of a sexual nature with another person
with knowledge of having tested positive for the human
immunodeficiency virus (HIV), or other potentially lifethreatening sexually-transmissible disease, without the
12

If an agency issues rules interpreting a statute rather than rules filling gaps that Congress implicitly or
explicitly authorized the agency to fill, courts owe no Chevron deference to the agency’s interpretation.
See U.S. v. Mead Corp., 533 U.S. 218 (2001); Skidmore v. Swift & Co., 323 U.S. 134 (1944). Whatever
deference is owed depends upon the degree of the agency’s care or thoroughness in formulating the rule, its
consistency in adhering to its interpretation, whether it promulgated the rule through formal notice and
comment processes, its relative expertness in the area, and the persuasiveness or validity of its reasoning.
See Mead Corp., 533 U.S. at 228.

12

informed consent of the other person to be potentially exposed
to that sexually transmissible disease.
72 Fed. Reg. at 43208-09.
Subpart (a). The proposed rule is ostensibly based on 18 U.S.C. §§ 2241 and
2242.13 In truth, however, BOP has ignored the statutory text in ways that allow the rule
to reach conduct well beyond what §§2241 and 2242 actually prohibit. First and most
obviously, the rule has no mens rea requirement. Both §§ 2241 and 2242 require that a
defendant act knowingly; BOP’s proposed rule would not require any culpable mental
state. This omission might be acceptable if BOP otherwise limited the scope of the
proposed definition, for instance by requiring an actual conviction. But by
simultaneously rejecting the need for a conviction (or even a criminal charge) and
dispensing with a mens rea requirement, BOP would leave open the possibility that
reckless or negligent conduct (such as one extremely drunk person having sex with
another extremely drunk person) could qualify as “sexually violent” for purposes of a
“sexually dangerous” determination.
Even more troubling, the proposed rule greatly expands the conduct for which a
person can be deemed “sexually violent.” Both §§ 2241 and 2242 require that the
defendant “cause[] another person to engage in a sexual act.” See 18 U.S.C. §§ 2241(a),
2242(1). A “sexual act” consists of: (A) penile penetration of the vulva or anus, (B)
contact between the mouth of one person and the genitals or anus of another, (C) genital
or anal penetration with any object with intent to abuse, humiliate, harass, degrade, or
arouse or gratify the sexual desire of any person, or (D) the intentional touching, not
through clothing, of the genitals of a minor under 16 with intent to abuse, humiliate,
harass, degrade, or arouse or gratify the sexual desire of any person. See 18 U.S.C. §
2246(2)(A)-(D). But BOP’s proposed rule would count “any conduct of a sexual nature”
as sexually violent so long as it is accomplished by one of the enumerated means.
Fondling a sleeping adult on the train may be creepy or even criminal, but it is a far cry
from the sexual violence inherent in forcible rape. BOP’s proposed rule, however, makes
no such distinction – unlike the criminal provisions on which it is purportedly based.
Subpart (a)(5). In addition to the above, subpart (a)(5) of BOP’s proposed rule
expands upon § 2242(2)14 by including conduct of a sexual nature with a person who is
“mentally” incapable of declining participation. Cf. 18 U.S.C. § 2242(2)(B) (proscribing
engaging in a sexual act with a person who is “physically incapable of declining
participation”) (emphasis added). Here, again, the lack of any criminal conviction or
13

There is some support for basing the definition of “sexually violent conduct” on the conduct proscribed
by §§ 2241 and 2242. See 42 U.S.C. § 14071 (defining “sexually violent offense” to mean “any criminal
offense in a range of offenses specified by State law which is comparable to or which exceeds the range of
offenses encompassed by aggravated sexual abuse or sexual abuse (as described in sections 2241 and 2242
of Title 18 or as described in the State criminal code) or an offense that has as its elements engaging in
physical contact with another person with intent to commit aggravated sexual abuse or sexual abuse (as
described in such sections of Title 18 or as described in the State criminal code)”).
14

BOP claims to have derived subpart (a)(5) from 18 U.S.C. § 2242(2). See 72 Fed. Reg. at 43206-07.

13

mens rea requirement raises significant questions. When is a person “mentally
incapable” of declining participation? Are people with undisclosed mental illnesses or
mental disabilities or diagnosed sexual addictions “mentally incapable of declining” an
invitation to engage in any conduct of a sexual nature? If so, it would appear from BOP’s
proposed rule that an inmate could be considered “sexually violent” for engaging in such
conduct even if he or she had no idea that an apparently willing participant was secretly
“mentally incapable” of saying no.
In fact, it appears that BOP bases this definition not on § 2242(2) but rather on its
own Program Statement regarding standard inmate “sex offender” classification. Under
Program Statement 5100.08 (formerly, 5100.07), BOP can assign an inmate a Sex
Offender Public Safety Factor if information in the PSR indicates that the inmate had
sexual contact with a person who is “physically or mentally incapable” of granting
consent. See Fed. Bureau of Prisons, U.S. Dept. of Justice, Program Statement 5100.08,
Inmate Security Designation and Custody Classification Manual, ch. 5 at 8, Ex. 3 (2006).
There is no equivalent prohibition in a federal criminal statute.15 Thus, it appears that, at
least in this context, BOP equates “sexually violent conduct” meriting civil commitment
with conduct that is minimally necessary to be administratively classified a “sex
offender.”
Subpart (b). At subpart (b), BOP proposes to define “sexually violent conduct”
as including any conduct of a sexual nature with another person with knowledge of
having tested positive for HIV “or other potentially life-threatening sexuallytransmissible disease, without the informed consent of the other person to be potentially
exposed to that sexually transmissible disease.” This is not a federal crime under §§ 2241
or 2242 or any other statute. BOP justifies its proposed rule in three ways. First, the
proposed rule “acknowledges the growing concerns surrounding potential transmission of
sexual diseases that have the potential to cause significant harm to the victim’s health or
even endanger life.” See Fed. Reg. at 43207. Second, it refers to 18 states that “have
enacted laws which criminalize such conduct.” Id. Third, it asserts that “[s]uch conduct
is similar in nature to the conduct of a poisoner, who uses no overt force or threat against
the victim, but is properly regarded as a violent offender.” Id.
None of these explanations supports the proposed rule. 18 U.S.C. § 4248 is not a
public health statute, and BOP has no authority to define “sexually violent conduct”
based on public health concerns. While there may be a rational correlation between
sexual violence and people who engage in sexual acts intending to cause substantial
bodily harm or death by transmitting a potentially deadly disease, see, e.g., Cal. Health &
Safety Code § 120291, BOP’s proposed rule would not require any intent to harm or
knowledge that the disease is potentially life threatening. Nor would it require that
15

Ironically, inmates being assigned a “sex offender” public safety factor have more protection than those
being classified as “sexually dangerous” for purposes of civil commitment. To classify an inmate as a “sex
offender,” the inmate must have had either a criminal conviction for a sex offense or a sex-related charge
that was dismissed as part of a plea bargain. See PS 5100.08, ch. 5 at 8. To classify an inmate as “sexually
dangerous,” however, an uncorroborated allegation is sufficient. See 72 Fed. Reg. at 43207.

14

transmission of the disease through the alleged conduct even be possible. In these
respects, it is broader than any criminal law, state or federal.16
The lack of intent to harm renders BOP’s analogy to a poisoner inapt. Poisoners
intend to do harm to another person, though they accomplish it by surreptitious means.
One who has sex knowing that s/he has tested positive for a “potentially life threatening
disease” – which can include virtually any STD depending on how broadly BOP decides
to interpret the potential threat17 – may not know the disease is potentially life threatening
or that it is capable or likely to be transmitted through his or her conduct.18 Or, s/he may
intentionally engage in “conduct of a sexual nature” knowing that it is unlikely or
impossible to transmit the disease through that conduct, such as clothed contact or
fondling. Such conduct, where the person has an intent not to harm cannot fairly or
rationally be classified as “sexually violent.” BOP, however, has not drawn such basic
distinctions in its proposed rule. As a result, any inmate with a medical history of a
sexually transmissible disease is potentially at risk for a determination that he or she
engaged in “violent” sexual conduct.
B. “Child molestation”
As with “sexually violent conduct,” the phrase “child molestation” is not defined
in Title 18. Black’s Law Dictionary defines “child molestation” as typically requiring a
victim under the age of 14, and physical sexual contact. See Black’s Law Dictionary, 8th
Ed. (2004) (“child molestation” means “[a]ny indecent or sexual activity on, involving, or
surrounding a child, usu[ally] under the age of 14” and “sexual activity” means “sexual
intercourse” or other “physical sexual activity” in which both persons participate).
In contrast, BOP interprets “child molestation” to mean:

16

16 of the 18 states cited by BOP limit their criminal statutes to cases involving the potential transmission
of HIV or AIDS, and all require conduct likely to result in the transmission of the disease (e.g., sexual
penetration and/or contact with the genitals of one person and the genitals, mouth or anus of another and/or
the exchange of bodily fluids). See Ark. Code Ann. § 5-14-123(b); Cal. Health & Safety Code § 120291;
Fla. Stat. Ann. § 796.08(5); Ga. Code Ann. § 16-5-60(c)(1); Ida. Code § 39-608(1); Ill. Comp. Stat. § 5/1216.2; Ia. Code Ann. § 709C.1; La. Rev. Stat. § 14:43.5; Mich. Comp. Laws Ann. § 333.5210(1); Mo. Stat. §
191.677; Nev. Rev. Stat. § 201.205; N.J. Stat. § 2C:34-5; Okla. Stat. Ann. § 1031(B); S.C. Code § 44-29145(1); S.D. Code § 22-18-31; Tenn. Code Ann. § 39-13-109; Va. Code Ann. § 18.2-67.4:1; Wash. Rev.
Code § 9A.36.011(1)(b).

17

For example, according to the National Institutes for Health, all but one of the most common sexually
transmitted diseases can either be fatal in its own right or, if left untreated, can cause potentially fatal
complications in later pregnancies. See
http://www3.niaid.nih.gov/healthscience/healthtopics/sti/default.htm (HIV/AIDS, Chlamydia, gonorrhea,
genital herpes, human papillomavirus and genital warts, pelvic inflammatory disease, and syphilis).
18

For instance, a person may rationally believe that having sex with a condom will protect his or her
partner from any transmission. Accord Cal. Health & Safety Code § 120291 (criminalizing uninformed sex
only when performed without a condom and with specific intent to infect the other person with HIV).

15

§ 549.73. Definition of “child molestation.” For purposes of this subpart,
“child molestation” includes any unlawful conduct of a sexual nature with, or
sexual exploitation of, a person under the age of 18 years.
See 72 Fed. Reg. at 43209, § 549.73.19
By equating “child” with a “person under the age of 18,” BOP’s proposal would
reach any allegation of statutory rape regardless of the circumstances.20 It would also
reach non-contact offenses such as the transportation offenses proscribed in Chapter 117.
And, of course, it would reach any “conduct of a sexual nature,” whatever that is. In
these ways, the proposed regulation is more expansive than even the broad definition of
“child molestation” currently used in the Federal Rules of Evidence. See Fed. R. Evid.
414(d) (“child molestation” defined as a crime involving both a child under the age of 14
and (1) conduct proscribed by Chapter 109A committed in relation to that child; (2)
conduct proscribed by Chapter 110; (3) contact with the genitals or anus of the child; (4)
contact between the genitals or anus of the defendant and any part of the child’s body; or
(5) deriving sexual pleasure or gratification from the infliction of death, bodily injury of
physical pain on the child).
Note that, by including “sexual exploitation” of a person under the age of 18,
BOP would treat possession of child pornography as a form of “child molestation” for
purposes of civil commitment.
C.

“Engaged or attempted to engage”

Under the plain language of the statute, a person need not have been charged with
or convicted of any sex crime in order to be “sexually dangerous.” See 18 U.S.C. §
4247(a)(5) (defining a “sexually dangerous person” as one who has “engaged or
attempted to engage in sexually violent conduct or child molestation”) (emphasis added).
According to BOP, “[r]elevant conduct may be any conduct of the person for
which evidence or information is available, and is not limited to offenses for which
he/she has been convicted or is presently incarcerated, or for which he/she presently faces
charges.” See 72 Fed. Reg. at 43206. In assessing sexual dangerousness, BOP will
consider “any available information in its possession,” see 72 Fed. Reg. at 43208, §
549.70(c), including the presentence report, the judgment and commitment order, the
statement of reasons, records and information obtained from outside agencies (e.g., state
or federal courts presiding over past criminal or civil proceedings, the USAO and/or
federal law enforcement agencies, state prosecutors and/or law enforcement, federal or
19

BOP has not defined “unlawful conduct of a sexual nature.”

20

Sexual contact with a person under the age of 18 could also be classified as “sexually violent conduct”
under proposed § 549.72(a)(5) under the theory that a minor is always “mentally incapable” of accepting or
declining participation. See PS 5100.08, ch. 5 at 8, Ex. 3 (directing a sex offender PSF for any inmate with
a history of “[a]ny sexual contact with a minor or other person physically or mentally incapable of granting
consent (indecent liberties with a minor, statutory rape, sexual abuse of the mentally ill, rape by
administering a drug or substance”)).

16

state probation offices, public or private treatment providers, etc.), records relating to
conduct while in custody, medical and psychological records, and any statements or
admissions made by the inmate. See id. at 43206; BOP Certification Review Panel
Guidelines; Interim Procedures for Implementation of Walsh Act Civil Commitment of
Sexually Dangerous Persons (Dec. 21, 2006), posted on
http://www.fd.org/odstb_AdamWalsh.htm. Moreover, BOP would hold itself to a
particularly low evidentiary burden, requiring only “information sufficient to provide
reasonable cause to believe that the person satisfies the relevant statutory criteria.” See
72 Fed. Reg. at 43206.
It is critically important to understand that it does not matter why the client is in
BOP custody or whether he has any prior sex offense conviction. If a client has
anything in his past that suggests prior sexual misconduct, if he admits to prior
misconduct or deviant desires or fantasies in “treatment,” or if he is likely to
fabricate sexual deviance for amusement, attention or to please his interrogators in
“treatment,” he is in jeopardy.
D.

“Serious mental illness, abnormality or disorder”

By statute, a person is “sexually dangerous to others” if he or she “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.”
See 18 U.S.C. § 4247(a)(6). The Supreme Court has held that a sexually dangerous civil
commitment scheme must at a minimum require “some proof of serious difficulty in
controlling behavior” as shown by the nature of the psychiatric diagnosis and the severity
of the mental abnormality, among other things. See Kansas v. Crane, 534 U.S. 407, 413
(2002). Whether or not specific types of mental disorders will suffice to show the
requisite volitional element remains an open question. Id. As a constitutional matter, it is
clear that the disorder must distinguish a person subject to civil commitment from other
persons likely to recidivate but who are more properly dealt with through criminal
proceedings. Id. at 412. Otherwise, civil commitment is a mechanism for retribution or
general deterrence which are functions of the criminal law, not civil commitment. Id.
BOP has not attempted to define “serious mental illness, abnormality, or
disorder,” but a review of the certifications it has filed provides some sense of which
diagnoses are likely to raise a red flag. All of the people certified as sexually dangerous
to date appear to have been diagnosed with pedophilia, paraphilia, antisocial personality
disorder, or some combination of those three. Many also have additional diagnoses for
such conditions as exhibitionism, voyeurism, fetishism, sexual sadism, frotteurism, or
bipolar, borderline, depressive, or histrionic personality disorders. Substance abuse
and/or dependence is another commonly cited factor, whether it be alcohol, marijuana,
hallucinogens, cocaine, opiates, or amphetamines. The diagnoses relied upon by BOP in
its certifications have either been made by BOP or during previous contacts with criminal
justice and/or mental health systems in connection with prior state or federal cases.

17

Many of these diagnoses, standing alone, apply too broadly to the general prison
population to satisfactorily distinguish committable offenders from incorrigible ones.
See, e.g., Crane, 534 U.S. at 412 (noting that 40% to 60% of the male prison population
is diagnosable with antisocial personality disorder) (citation omitted). But any one of
them combined with a history of sexual misconduct of any sort will almost certainly
garner close scrutiny from BOP. At the very least, counsel should be extremely wary of
submitting anything to the court, the USAO, the USPO, or BOP that reflects a diagnosis
of pedophilia, paraphilia, any other disorder suggesting sexual deviance, or antisocial
personality disorder.
E.

“Serious difficulty in refraining from sexually violent conduct
or child molestation”

In assessing whether a person will have “serious difficulty in refraining” from
future misconduct BOP proposes the following:
§ 549.75. Determining “serious difficulty in refraining from sexually
violent conduct or child molestation if released.” In determining
whether a person will have “serious difficulty in refraining from sexually
violent conduct or child molestation if released,” Bureau, or Bureaucontracted, mental health professionals may consider, but are not limited
to, evidence:
(a) Of the person’s repeated contact, or attempted contact, with
one or more victims;
(b) Of the person’s denial of or inability to appreciate the
wrongfulness, harmfulness, or likely consequences of engaging
or attempting to engage in sexually violent conduct or child
molestation;
(c) Established through interviewing and testing of the person, or
other risk assessment tools, that are relied upon by mental
health professionals;
(d) Established by forensic indicators of inability to control
conduct, such as:
(1) Offending while under supervision;
(2) Engaging in offense(s) when likely to get caught;
(3) Statement(s) of intent to re-offend; or
(4) Admission of inability to control behavior; or
(e) Indicating successful completion of, or failure to successfully
complete, a sex offender treatment program.
See 72 Fed. Reg. at 43209.
The emphasis on inmate admissions in proposed § 549.75(b), (c), (d)(3), (d)(4),
and (e) makes clear that any statements made by a client regarding past sexual
conduct or thoughts, whether made in the context of “treatment” or otherwise,
whether true or not, will be used by BOP to certify him as “sexually dangerous.” In

18

an internal document, BOP states that a “self-admission made in a clinical setting (e.g.,
during SOTP or SOMP programming activities or individual counseling) may be less
probative than “[a]dmissions made and documented for an official proceeding or
investigation where the inmate had an opportunity to contest factual assertions (e.g.,
Presentence Investigation Report (PSR), Statement of Reasons (SOR), court transcript).”
See BOP Certification Review Panel Guidelines at 6, available at
http://www.fd.org/odstb_AdamWalsh.htm. Yet in its proposed regulation, BOP states
that it will assess dangerousness based upon “the person’s denial of or inability to
appreciate the wrongfulness, harmfulness, or likely consequences of engaging or
attempting to engage in sexually violent conduct or child molestation” (§ 549.75(b)),
interviews with the inmate (§ 549.75(c)), statements of intent to re-offend (§ 549.75(d)),
and admissions of an inability to control behavior (§ 549.75(e)). The proposed regulation
allows BOP to use sex offender “treatment” as a two-edged sword. If an inmate
participates in treatment, he will be required to make all sorts of damning admissions
(true or not), which will then be used for a sexually dangerous certification (§ 549.75(c),
(d)(3), (d)(4)). If he refuses to make such admissions, he will be deemed to be in denial
or unable to appreciate the wrongfulness of his conduct and/or desires, or will otherwise
fail to “successfully” complete treatment (§ 549.75(b), (e)).
Inmate admissions, which are made most often in the context of sex offender
“treatment,” have proven to be a particularly fertile source of evidence for BOP in § 4248
cases. For the past several years, BOP has offered two major programs for sex offenders
in custody. The Sex Offender Treatment Program (“SOTP”) was operated from 1990 to
2007 at FMC-Butner in North Carolina. BOP recently closed the SOTP at Butner,
transferred the remaining participants to FMC-Devens, and has rededicated FMC-Butner
to housing § 4248 inmates. During the time of its operation at Butner, the SOTP was a
voluntary, 18-month program in which participants were housed and “treated” together
through the use of intensive therapy, psychological tests, polygraph examinations, and
phallometric / penile plethysmograph assessments. See Sex Offender Treatment Program
(2003), available at http://www.fd.org/odstb_AdamWalsh.htm. Whether or not the SOTP
will continue at FMC-Devens is still unclear. Early reports were that the BOP was
closing the program entirely to new enrollees. We have recently received information,
however, suggesting that BOP will be continuing the now-defunct Butner program in
essentially the same form at FMC-Devens, meaning that it will continue to be available to
inmates serving a sentence of 24 months or longer who request placement in the program.
The Sex Offender Management Program (“SOMP”) was established in 2004 as an
involuntary “inmate control” program at FMC-Devens in Massachusetts, to which certain
inmates classified with a sex offender PSF are assigned. Although the SOMP itself is not
“therapeutic,” inmates are encouraged to participate in the same types of “treatment,”
tests, and risk assessments as in the SOTP. If an inmate in the SOMP chooses not to
participate in treatment, he suffers repercussions such as maintenance level pay,
assignment to the “least desirable housing” available, and denial of CCC placement. See
Sex Offender Management Program (March 1, 2004), available at

19

http://www.fd.org/odstb_AdamWalsh.htm. After Adam Walsh, BOP is planning to
expand the mandatory SOMP across the country.21
For inmates in both programs, failing to disclose additional, undetected offenses
and/or victims has been viewed as indicative of a refusal or unwillingness to fully
participate in therapy. Some inmates who volunteered for the SOTP but declined to
admit any hands-on victims were expelled for being “in denial.” Clients who participated
in the program have recounted intense pressure to increase the number of hands-on
victims over time in order to be deemed to be “making progress.” BOP required updated
“Victim Lists” every six months, encouraged inmates to compete with each other on who
was more “forthcoming,” and made no attempt to corroborate. As a result of this routine
coercion, inmates kept scorecards in their cells so that they would remember to report a
higher number of victims when next asked, and were never required to provide victim
names or other identifying information. Ostensibly, this was to promote disclosure
without fear of self-incrimination, but it has allowed BOP to “tally up” unlimited
“evidence” of multiple hands-on victims with no corroboration whatsoever. Indeed, the
numbers of hands-on victims BOP claims were admitted by child pornography offenders
in its “treatment” program are incredible on their face. See Julian Sher & Benedict
Carey, Debate on Child Pornography’s Link to Molesting, New York Times (July 19,
2007) (describing “study” conducted by SOTP officials purporting to show that 155
inmates convicted only of simple child pornography possession had admitted to
committing contact sex offenses against 1,777 victims and noting that BOP has since
withdrawn the “study” from publication and refused to allow its authors to discuss their
“findings” with law enforcement and others).
The overwhelming majority of inmates against whom BOP has filed “sexually
dangerous” certifications participated in either the SOTP or the SOMP. In each case,
BOP has used the statements, admissions, test results and other information gleaned
during those programs to support its case for commitment, as well as statements made in
state sex offender treatment-like programs, to the FBI or to probation. BOP has done so
despite explicit warnings from the Static-99 authors not to rely on self-reports when
assessing past conduct. See Harris et al., Static-99 Coding Rules at 4, 11, 13, 27, 31, 35,
43, 46. And it has done so even though none of the inmates received any warning that
their statements could be used to have them civilly committed as “sexually dangerous.”
Given the enormous risk to program participants, defense counsel must
recommend against participation in sex offender “treatment” whether volunteering for
sex offender treatment as a condition of release, volunteering for the SOTP, or
participating “voluntarily” in treatment in the SOMP. The unfortunate (and ironic) result
of BOP’s use of sex offender “treatment” as a trap rather than revising its disclosure
policies to permit inmates to safely engage in treatment is that no client can safely
receive any form of sex offender treatment while in the system.

21

In addition to the SOMP at FMC-Devens, SOMPs are slated to open in Petersburg, Virginia, Marion,
Illinois, and Seagoville, Texas. We are not aware of any plans to open stand-alone SOTPs in any BOP
facility other than possibly FMC-Devens.

20

V.

How to Best Protect Clients
A.

When appointed

Assume from the moment you are appointed that your client is at risk of a
civil commitment down the road. Everyone who has been charged with a federal crime
– irrespective of the charge – is at some risk of civil commitment under § 4248, or at least
of being certified by BOP. As things currently stand, it appears that the people most at
risk are (1) those who have been convicted of a contact offense, (2) those whose PSRs
contain any other information suggesting a previous contact offense or an inclination,
however slight, toward sexual misconduct (e.g., formal charges, uncorroborated
allegations, psychological diagnoses / reports), (3) those who have a history of undetected
misconduct disclosed by the person before or during custody or while on probation or
supervised release, (4) those who have a history of psychological treatment and/or
diagnoses suggesting any form of sexual deviance and/or antisocial personality disorder,
and (5) those likely to invent sex offense histories or interests to please their inquisitors.
None of that would be apparent upon appointment, unless the client is charged with a sex
offense. Any client, no matter the current charge, may have something in his background
that will draw BOP’s attention. Plan pretrial, trial, plea negotiation and sentencing
strategy with an eye toward avoiding or minimizing the risk.
Make sure the client understands the risk. Whether or not a particular client
fits into any of the “high risk” categories may not be apparent until well into the
representation, if at all. Clients held pretrial are already in the custody of BOP and are
immediately vulnerable. Those released on bail may be required to participate in a
psychological evaluation or some form of treatment as a condition of release –
information that will wind up in the hands of BOP or DOJ in the event your client is
convicted. See US v. Zehntner, 2007 WL 201106 (N.D. N.Y. Jan. 23, 2007) (rejecting
defense request to preclude BOP from obtaining psychological report prepared during
court-ordered pre-sentence evaluation). Therefore, it is imperative that clients understand
what § 4248 means for them and how to protect themselves when you are not at their
side.
Explain early and often what § 4248 empowers the government to do. Clients
must understand the importance of honestly confiding in counsel about their backgrounds
so that we can better advise and protect them while they are in the system. They should
also understand that the risk is both of a potential civil commitment and of a new federal
prosecution, since, after the Adam Walsh Act, there is no longer a statute of limitations
for federal sex offenses,22 or a state prosecution, as federal authorities can report

22

18 U.S.C. § 3299 now reads, “Notwithstanding any other law, an indictment may be found or an
information instituted at any time without limitation for any offense under section 1201 involving a minor
victim, and for any felony under chapter 109A, 110 (except for section 2257 and 2257A), or 117, or section
1591.”

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information of sexual abuse to state authorities. Clients must know the mantra: Say
nothing, sign nothing.
This is a particularly crucial message for those clients who are naturally inclined
to talk about their past behavior in order to justify or explain it and are thus ill-suited to
follow advice to remain silent. If such clients, who tend to have an overdeveloped sense
of their own persuasive abilities, have any sexual misconduct in their background, they
must understand that there is no way they will be able to “mitigate” their past by
“explaining” their point of view to federal authorities, whether a probation officer, a
doctor, a counselor, an agent or a prosecutor. It may be worthwhile to emphasize that the
government gives no credit for “substantial assistance” in a § 4248 evaluation, and to
remind them that if they are offered anything that sounds like an offer to reduce or
prevent commitment, they should be immediately on guard, remain silent, and ask to
speak to an attorney.
B.

On Pretrial Release / Probation / Supervised Release

Oppose any release conditions that require the client to discuss sexual
history, answer questionnaires, or undergo polygraph or phallometrtic testing.
Defendants on pretrial or presentence release are often required to undergo psychological
evaluation, or ordered to participate in sex offender or other treatment as a condition of
release. Similarly, those sentenced to probation or on supervised release are routinely
required to answer all inquiries made by the probation officer, participate in treatment as
required by the probation officer, and waive the confidentiality of any treatment session.
Counsel must oppose any condition that requires the defendant to answer
questions about his sexual history, fill out sexual history questionnaires, or submit to
polygraph or phallometric testing, as well as more seemingly benign requirements, such
as that the defendant answer all questions put to him by pretrial services or probation
without limitation.
There are two bases for the objection. The primary one has to be reasonable fear
of self incrimination for use in the current or a future prosecution (quite credible now that
there is no federal statute of limitations), since the courts may hold that civil commitment
is not a “criminal prosecution.” 23 The secondary one is fear of civil commitment.
Explain to the court how the civil commitment process works. Because almost all of the
§ 4248 certifications are in E.D.N.C. and D. Mass., most district courts have no
experience with the new law and no understanding of how the government has used
“treatment” to amass “evidence” for civil commitment certifications.
Take the Fifth. The Fifth Amendment “not only protects the individual against
being involuntarily called as a witness against himself in a criminal prosecution but also
23

As discussed in Part III, supra., two courts have found that § 4248 is a civil statute, notwithstanding
strong arguments to the contrary. See Motions to Dismiss Civil Commitment Proceedings, available at
http://www.fd.org/odstb_AdamWalsh.htm.

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privileges him not to answer official questions put to him in any other proceeding, civil or
criminal, formal or informal, where the answers might incriminate him in future criminal
proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). The Ninth Circuit has held
that a person on supervised release cannot be forced to detail his sexual history in
treatment without being given use and derivative use immunity from future prosecution.
See US v. Antelope, 395 F.3d 1128, 1130-31 (9th Cir. 2005). The court found a “real and
appreciable” risk of self-incrimination where the treatment would have required the
defendant to reveal his full sexual history and take a polygraph examination, and his
counselor intended to turn over any evidence of past crimes to law enforcement. Id. at
1135.
Forcing a defendant to choose between potentially incriminating himself and
having his pretrial or presentence release, probation, or supervision revoked constitutes
compulsion in violation of the Fifth Amendment. See id. at 1138-39; see also Lefkowitz,
414 U.S. at 82-83 (state may not force public contractors to give potentially incriminating
testimony before grand jury or be disqualified from performing public contract); Garrity
v. New Jersey, 385 U.S. 493, 496-97, 499 (1967) (state may not use threat of discharge to
secure incriminatory evidence against an employee); US v. Fowlkes, 2005 WL 1404776,
*1 (9th Cir., June 16, 2005) (probationer ordered to participate in sex offender treatment
has Fifth Amendment rights during any required polygraph testing); US v. Saechao, 418
F.3d 1073, 1075 (9th Cir. 2005) (government cannot require probationer to answer
incriminating questions posed by probation officer or face probation revocation);
Zehntner, 2007 WL 201106 at *1 (defendant retains Fifth Amendment right over
statements made during mental health treatment that was required as condition of presentence release if later used by BOP to penalize defendant). Note, however, that the
right to remain silent in probation interviews or treatment sessions must be affirmatively
invoked by the defendant, unless the government expressly or by implication asserts that
invocation of the privilege will result in revocation, in which case failure to invoke is
excused. See Minnesota v. Murphy, 465 U.S. 420, 427-29 (1984) (interview with
probation officer not sufficiently compulsory to excuse defendant’s failure to invoke right
to silence). To be safe, you should invoke it on your client’s behalf at the hearing at
which the condition is imposed, before any questions can be posed to (and potentially
answered by) your client. And the client must understand that, when he is out of your
sight, he must say the magic words – “I invoke my Fifth Amendment right to remain
silent” – even if he has good reason to believe he will suffer repercussions for doing so.
C.

Plea and Sentencing

Keep the record clean. The client should say as little as possible at a change of
plea or sentencing.
•

Admit only the elements of the crime at the change of plea hearing. A guilty plea
does not waive Fifth Amendment rights at sentencing. See Mitchell v. US, 526
U.S. 314, 325 (1999). Whatever is admitted at the plea colloquy can be used, but
a defendant cannot be compelled to admit facts beyond the elements at sentencing
and no adverse inference can be drawn from the defendant’s silence. Id. at 325,

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328-30. Even the Fifth Circuit agrees. See Kincy v. Dretke, 92 Fed. Appx. 87, 91
(5th Cir. 2004) (defendant retains Fifth Amendment rights through sentencing).
•

Always attend the pre-sentence interview and do not allow probation to ask any
questions about sexual history.

•

Do not permit an evaluation if it would reveal any contact history or if there is a
risk that it would result in one of the “red flag” diagnoses (pedophilia, paraphilia,
any form of sexual deviance or antisocial personality disorder). If you are unsure
and want to have your client evaluated, make sure that your expert has a
comprehensive understanding of § 4248 and what BOP has been doing with it.
The results of any evaluation should always be communicated to you orally and
no report should be written without your express approval. If you must move for
funds for an expert, do it ex parte. See Ake v. Oklahoma, 470 U.S. 68 (1975).

•

Object to anything in the PSR that is inaccurate or exaggerated, have the
information redacted, or reissued without the offending information, and have the
court take custody of and destroy all copies of the earlier version. It may sound
paranoid, but remember that BOP has pledged to review “evidence” from any
source when evaluating defendants for sexual dangerousness.

•

If you have had your client evaluated and the results are good, consider asking the
court to find by clear and convincing evidence (at least) that your client is not a
sexually dangerous person within the meaning of § 4248.

•

Whenever there is a good faith belief of potential incrimination, assert the Fifth on
the record as to any questions relating to sexual history for the entire period that
the defendant is in the custody of BOP, or on probation or supervised release.
D.

In Custody

Challenge a sex offender designation based on anything other than the
current offense of conviction. For years, BOP has classified inmates as “sex offenders”
based on old state convictions or even old state charges that were dismissed as part of a
plea agreement. Several courts have struck down BOP’s policy of classifying inmates as
“sex offenders” and notifying local authorities of their release on the basis of something
other than the current federal offense. See Fox v. Lappin, 409 F.Supp.2d 79, 86 (D.
Mass. 2006) (policy invalid insofar as it classifies inmates as sex offenders based on prior
state convictions); Simmons v. Nash, 361 F.Supp.2d 452, 456-57 (D. N.J. 2005)
(classification as sex offender can be triggered only by current federal conviction);
accord Henrikson v. Guzik, 249 F.3d 395, 399 (5th Cir. 2001) (only if current federal
offense is a crime of violence or drug trafficking may BOP notify local authorities of
inmate’s release). Nonetheless, BOP has continued to designate inmates as “sex
offenders” based on prior charges and/or convictions. A sex offender designation will
render an inmate immediately eligible for placement in the SOMP, which in turn will
expose him to pressure to admit undetected contact offenses whether true or not.

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Advice: Say nothing, sign nothing, invoke the Fifth. The Fifth Amendment
right to remain silent exists whenever a person must choose between potential
incrimination and punitive governmental action. With no statute of limitations for federal
sex offenses, an inmate cannot discuss his sexual history without fear of a new federal
prosecution. There is no doubt that BOP will share information received in the course of
“treatment” with state and federal law enforcement authorities. Participants in the SOTP
are required to sign a form acknowledging that program staff, BOP, DOJ, and USPO
“may share information regarding my case,” that program staff “will report any incidents
or suspicion of child abuse or neglect, past or present, to law enforcement agencies,” and
that “admission to unreported crimes may result in additional criminal prosecution.” See
Sex Offender Treatment Program Consent Form (June 2001), available at
http://www.fd.org/odstb_AdamWalsh.htm. SOMP participants are told that their
statements will not be kept confidential if staff suspects either “child abuse” or “potential
harm to self or others.” See Sex Offender Management Program (March 1, 2004),
available at http://www.fd.org/odstb_AdamWalsh.htm. And those subjected to a sexually
dangerous person evaluation are told to sign a form stating that they understand the
information obtained will be shared with “others with a need to know,” including the
DOJ. See Notice of Psychological Evaluation, available at
http://www.fd.org/odstb_AdamWalsh.htm.
While BOP may constitutionally impose “adverse consequences” for refusing to
participate in treatment by denying certain privileges, it cannot cross the line into
unconstitutional compulsion. McKune v. Lile, 536 U.S. 24, 43-44 (2002).
Unconstitutional compulsion exists if the term of imprisonment is extended. Id. at 38, 52
(no majority opinion in McKune, but the four in the plurality and O’Connor in
concurrence agree that if refusal to make admissions of guilt and discuss sexual history
results in less desirable conditions, there is no problem, but if it raises the sentence,
including by taking good time credits, then it is unconstitutional; the four in dissent
would have held both results unconstitutional); Donhauser v. Goord, 314 F.Supp.2d 119
(N.D. N.Y. 2004) (prison cannot penalize inmate for refusing to participate in sex
offender treatment by taking good time credits). Thus, although your client may be
penalized while in custody, the only way he can be held longer than his sentence is if he
talks and thereby provides the necessary support for a § 4248 certification.
Regularly check in on high-risk clients. Try to stay in contact with clients
throughout their sentences, particularly those who have been designated a sex offender or
who are otherwise vulnerable to an SDP certification. Tell clients to remain silent and
contact you immediately if they are transferred to an SOMP, told they are going to be
“further evaluated” for § 4248 purposes, or handed notice of § 4248 certification. If this
happens to one of your clients, contact the Defender office for the district in which your
client is being held immediately for further help and instructions. When clients are
isolated in custody, they are at the greatest risk of waiving their Fifth Amendment rights.
Ideally, go through old client files, look for those with contact sex offenses mentioned in
the PSR, and advise them about § 4248 and their rights.

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