Supreme Court to Tackle Indefinite Detention of Sex Offenders
Currently, the federal government has the right to indefinitely imprison some sex offenders after they have served their sentence. Is this a violation of their Constitutional rights?

July 19, 2009 /24-7PressRelease/ -- Supreme Court to Tackle Indefinite Detention of Sex Offenders

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Graydon Earl Comstock was sentenced to 37 months in a federal penitentiary in Butner, North Carolina for receipt of child pornography. Six days before Comstock was set to be released, the federal government applied for a civil commitment of Comstock under the 2006 Adam Walsh Child Protection and Security Act ("Adam Walsh Act") on the grounds he was "sexually dangerous." The government's application was accepted by the federal court in North Carolina.

Now, more than two years after Comstock finished serving his prison term, he still sits in a federal facility in Butner, even though the US District Court for the Eastern District of North Carolina and the 4th Circuit Court of Appeals both held his detention unconstitutional. Comstock's fate will be determined by the US Supreme Court, which is set to hear oral arguments this October.

The Adam Walsh Act

In 2006, President George Bush signed the Adam Walsh Act into law. The important piece of federal legislation strengthened federal child pornography laws and increased the penalties of other laws punishing sexual exploitation, assault and other crimes against children. It also created the National Sex Offender Registry.

A controversial section of the Act, 18 USC §4248, permits the federal government to civilly commit any "sexually dangerous" person currently in the custody of the Bureau of Prisons; in fact, such people can be imprisoned indefinitely.

Under the law, a person is considered sexually dangerous if he or she has engaged or attempted to engage in sexually violent conduct or child molestation, and if he or she is also considered sexually dangerous to others. The Act defines a person as sexually dangerous to others if he or she "suffers from a serious mental illness, abnormality, or disorder as a result of which he [or she] would have serious difficulty in refraining from sexually violent conduct or child molestation if released."

In order for the federal government to detain a sexually dangerous person, the person must still be in prison -- the government cannot seek civil commitment of a person who already has been released. The Attorney General is required to certify that the person is in fact sexually dangerous and submit the certification to a federal district court in the jurisdiction where the person is being held. The court then is required to hold a hearing to determine whether the person is sexually dangerous by clear and convincing evidence, a lower standard of proof than that required to find someone guilty of committing most crimes.

If the court finds the person to be sexually dangerous, then the person is turned over to federal custody. In theory, the Attorney General is then supposed to take reasonable steps to turn custody of the person over to the state. However, until this has occurred, the federal government has the authority to detain the person indefinitely, so long as he or she is still considered sexually dangerous.

Since the Adam Walsh Act was passed in 2006, the federal government has sought civil commitment of 95 people across the country, with 77 of them being current residents of the federal prison in Butner, North Carolina.

Comstock v US

Graydon Earl Comstock and four other inmates in the Butner facility filed suit in the District Court for the Eastern District of North Carolina, challenging the government's authority to detain them indefinitely under §4248. In the cases of all five inmates, the federal government's confinement extended well beyond the end of their prison terms. In 2007, the District Court ruled in favor of Comstock, finding the government had exceeded its authority and ruling that §4248 was unconstitutional. The court also said that the federal government's acts violated the ex-inmates' constitutionally-protected due process rights.

The government appealed the court's ruling to the 4th Circuit Court of Appeals, which sits in Richmond, Virginia. The 4th Circuit, however, agreed with the lower court's findings and also found the provision of the Adam Walsh Act allowing the federal government to indefinitely confine those it deemed "sexually dangerous" unconstitutional.

According to the 4th Circuit's opinion, the "Constitution does not empower the federal government to confine a person solely because of an asserted 'sexual dangerousness' when the government need not allege (let alone prove) that this 'dangerousness' violates any federal law."

The constitutionality of §4248 has been challenged in several district courts with mixed results, but the 4th Circuit was the first appellate court to issue an opinion on the controversial law. After the 4th Circuit's opinion, the 77 inmates being held under the Adam Walsh Act in North Carolina should have been freed, but in April 2009, Chief Justice John Roberts granted the federal government's request to block their release until the US Supreme Court had time to review the appellate court's decision.

Conclusion

§4248 of the Adam Walsh Act raises important constitutional concerns. The law basically gives the federal government the right to sentence someone indefinitely to prison without a jury trial and without meeting the heightened standard of proof required to impose a criminal sentence. This is potentially a serious infringement of an individual's rights to due process of law.

It is now up to the US Supreme Court to determine whether or not Congress overstepped the limits of its power by passing §4248. While the Court will hear arguments this fall, a decision will not be issued until sometime in the spring of 2010. Until then, Graydon Earl Comstock and 75 other men will continue to be held in the Butner federal penitentiary, even though they already have served every day of their court-imposed sentences for their crimes.

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