August 2012 National:by Prison Legal News: Federal Sex Offender Civil Commitment Process Under Fire by Derek Gilna
Excerpts:
Among other provisions, the Adam Walsh Child Protection and Safety Act of 2006 allows the federal government to indefinitely detain “sexually dangerous” offenders through a civil commitment process, which requires mandatory court hearings after such offenders have been certified by the U.S. Department of Justice (DOJ) as eligible for commitment. The Adam Walsh Act was named for the kidnapped and murdered son of America’s Most Wanted host John Walsh. [See: PLN, June 1996, p.12].
Under 18 U.S.C. § 4248, the federal government must obtain a “Certification of a Sexually Dangerous Person” before it can proceed in a civil commitment action. Under § 4247(a)(5), a “sexually dangerous person” is defined as one who has engaged or attempted to engage in sexually violent conduct or child molestation, and who is “sexually dangerous to others” or suffers from a serious mental illness, abnormality or disorder, as a result of which he would have “serious difficulty in refraining from sexually violent conduct or child molestation if released.”
To order civil commitment, a federal district court must find at an evidentiary hearing (no jury trial is required) that the government has met its burden of proof by clear and convincing evidence that an offender is a sexually dangerous person. If so, he may be confined in a suitable facility for mental health treatment until it is determined that he is no longer a danger to others. 18 U.S.C. § 4248(d). The standard of “clear and convincing evidence” is lower than the “beyond a reasonable doubt” standard required in criminal prosecutions, and when certifying prisoners for civil commitment the DOJ can consider conduct that did not result in an arrest, prosecution or conviction. In fact, offenders can be certified for civil commitment even if they have no prior criminal record of sex offenses.
According to investigative reporting by USA Today, the DOJ has certified 136 federal prisoners over the past six years but only 15 have been civilly committed following court hearings. The “Justice Department has either lost or dropped its cases against 61 of the 136 men” who have been certified since 2006. Of the prisoners certified as eligible for civil commitment who were eventually freed, some had been detained for more than four years pending a hearing.
