Indefinite Detention: Preemptive Punishment for Future Sex Crimes
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
On May 17, 2010 the United States Supreme Court in United States v. Comstock upheld a federal statute that gives Government the power to civilly commit indefinitely a “sexually dangerous person” after he has completed serving his criminal sentence. The statute, 18U.S.C. Sec. 4248, was the subject of one of our blogs earlier this year. §4248 has three basic components. First, it allows a federal district court to civilly commit an offender currently in the “custody of the [Federal] Bureau of Prisons” if that offender (1) has previously “engaged or attempted to engage in sexually violent conduct or child molestation,” (2) currently “suffers from a serious mental illness, abnormality, or disorder,” and (3) “as a result of” those conditions is “sexually dangerous to others” in that “he would have serious difficulty in refraining from sexual violent conduct or child molestation if released.”
Second, before the “sexually dangerous” determination can be made, the U.S. Justice Department must certify to the federal district court that the offender meets the “sexually dangerous” criteria. When the Government files this certification, the offender’s release from custody on his criminal sentence is automatically stayed until the Government has an opportunity at a fact-finding hearing to prove by “clear and convincing evidence” (psychiatric reports, etc) that the offender is “sexually dangerous.” § 4248 permits an offender to be represented by counsel, the right to testify at the hearing, present evidence, subpoena witnesses on his behalf, and confront and cross examine Government witnesses.
Third, if the Government carries the “sexually dangerous” burden, the district court will order the offender’s continued commitment in “the custody of the Attorney General” who must “make all reasonable efforts to cause” the State where the offender was convicted or his domicile State to “assume responsibility for his custody, care, and treatment.” If neither State will accept the offender under that legal obligation, the Attorney General “shall place the person for treatment in a suitable [federal] facility.”
All 50 states have established some kind of system for the mandatory registration of sex offenders and community notification. A few states have gone so far as to impose residency restrictions on sex offenders. But less than half of the States (22) have enacted civil commitment statutes similar to § 4248. The primary reason for the lack of overwhelming support at the state level for such statutes is costs: $64,000 a year to confine a “sexually dangerous” offender under civil commitment. That is precisely why most states with civil commitment provisions will not accept federal offenders determined to be “sexually dangerous.” They simply cannot afford to confine them for indefinite and extended periods of time. They already have too many on their hands.
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