Symposium: Preventative Detention: Sex Offender Exceptionalism and Preventive Detention

September 2012:

Abstract:
The emerging war on sex offenders, as typical of wartime mentality, has been marked by substantial deviations from established legal doctrine, constitutional protections, and the rule of law. Because of a high level of panic among the general population about sex offenders the use of preventative detention for sex offenders has received little attention or scrutiny.

While the population of the detention facility at Guantanamo Bay has slowly decreased, the number of persons in state and federal detention centers dedicated to sex offenders has continued to climb. With the courts largely rubber stamping the federal civil commitment of sex offenders allowed under the Adam Walsh Child Protection and Safety Act (AWA) in 2006, the path has been cleared for an enormous expansion of sex offender detention.

Because of the limited attention given to these detentions, they represent a particularly dire threat to American liberties. The normal societal and institutional checks against government abuse embodied in the media, public, Constitution, and courts have essentially been removed.

We authorize government to detain indefinitely those who are deemed “sexually dangerous” at our peril. Instead of waiting for someone to commit a wrong, the government acts to restrict liberty of persons who have yet to commit a wrong (but the government believes will likely do so in the future). The criminal justice system offers plenty of opportunities for the government to prosecute someone before harm is done using inchoate and conspiracy crimes.

To go beyond those already broad tools, the circumstances should be highly exceptional, the danger should be real and imminent, and the net should be cast narrowly. In the case of sex offender civil commitment, the circumstances are no more dangerous than for other serious crimes, the risk is speculative based upon pseudo-science, and the net is far too broad.

Because of these aspects of sex offender civil commitment laws, America should fundamentally reconsider its approach to fighting sexual violence. Laws like AWA, premised on myths that allocate substantial resources in a never ending war, do not create a just or better society. ..Source.. by Corey Rayburn Yung, University of Kansas School of Law

The Adam Walsh Act: Un-Civil Commitment

2009:

Abstract:
Congress enacted the Adam Walsh Child Protection and Safety Act of 2006 ("the Adam Walsh Act") with the aim of "protect[ing] children from sexual exploitation and violent crime." Among other measures, the Act creates a National Sex Offender Registry, establishes a post-conviction civil commitment scheme, increases punishments for a variety of federal crimes against children, and strengthens existing child pornography prohibitions. The scope of this note is limited to an analysis of the commitment portion of the Act ("Commitment Provision"). This provision authorizes the federal government to civilly commit, in a federal facility, any "sexually dangerous" person "in the custody" of the Bureau of Prisons - even after that person has completed his entire prison sentence.

Recently, the Supreme Court granted certiorari on question of whether or not enactment of the Commitment Provision was within Congress‘s authority. This note will show that Congress lacked the authority to enact the Commitment Provision under either its enumerated or incontestable federal powers. For this reason, the Commitment Provision cannot enacted as a Necessary and Proper exercise of a legitimate federal power. The Necessary and Proper Clause by itself creates no constitutional powers; it merely allows Congress to enact legislation auxiliary to an enumerated or incontestable federal power. Thus, because Congress lacked the authority to enact the Commitment Provision under either its enumerated or incontestable federal powers, it cannot be a Necessary and Proper exercise of those powers and is therefore unconstitutional.

The discussion will begin with an overview of the relevant Supreme Court precedents bearing on a constitutional determination of this kind. This note will show that a proper reading of these precedents demonstrates that the clause upon which the federal government most often defends its power to regulate this subject, the Commerce Clause, is wholly inapplicable to an act like the Adam Walsh Act - legislation aimed at criminal law enforcement where States historically have been sovereign.

Next will be an evaluation of the current split between the Court of Appeals for the Fourth Circuit (“Fourth Circuit”) and the Court of Appeals for the Eighth Circuit (“Eighth Circuit”). This note will show that only the Fourth Circuit, which held the Commitment Provision beyond congressional authority, performed an extensive analysis of the relevant Supreme Court precedents in reaching its holding. The Eighth Circuit, on the other hand, relied only on its own, distinguishable precedents. Thus the only Circuit court to analyze the constitutionality of the Commitment Provision under current Supreme Court jurisprudence has found it to be unconstitutional.

This note will show further that the Commitment Provision does not fit readily into the specific schemes where federal civil commitment has be found constitutional - namely in situations where it is used to prevent and prosecute federal crimes.

Finally, this note will show that the Commitment Provision does not satisfy the due process rationales for which the Supreme Court has found state-authorized civil commitment constitutional. The structure of the Commitment Provision neither comports with the classic rationale for lower proof burdens in state civil commitment schemes, nor does it provide for a probable cause hearing within a reasonable amount of time and the general practice is to keep prisoners locked for months beyond their release dates.

For the remainder of this paper: by Emily Barker, University of California Hastings, College of the Law