The U.S. Justice Department has studied, and found, that a majority of the nation’s incarcerated offenders have experienced some type of physical or sexual abuse and/or neglect. This was certainly the case with Byron Neil Antone.

The now 41-year-old Antone was raised on the Tohono O’odham Indian Reservation in Arizona—nine years with his mother and the rest with his grandmother and godmother. A February 4, 2014 opinion by the Fourth Circuit Court of Appeals reported that the mother and grandmother were alcohol abusers who often verbally and physically abused young Antone. The abuse and neglect did not stop there. A teenaged aunt sexually abused him several times when he was seven years old. By age 15, he had had sexual experiences with at least two adult women.


This dysfunctional home life undoubtedly contributed to the recurring behavioral problems Antone experienced growing up: school expulsions, school dropout in ninth grade, juvenile detention and unsteady employment. But whether the sexual abuse Antone experienced as a child contributed to him becoming a repeat sex offender is not as clear and certain.


Antone’s criminal sexual history began in 1991 when he was nineteen and arrested for sexual misconduct with a minor: two sexual acts with a sixteen-year-old girlfriend—one consensual, the other a forcible rape. He entered a guilty plea in the “tribal court” and served a 6-month jail sentence. Seven years later he was arrested, again by tribal authorities, with “threatening and disorderly conduct” for rubbing the buttocks of his 21-year-old cousin while she lay sleeping on a couch. He was given a 60-day jail sentence. During 1998 and 1999, Antone was charged by tribal authorities with four sexual misconduct offenses occurring between 1992 and 1997. The Fourth Circuit listed the four offenses:


1. Forcible rape of a fourteen or fifteen year old in 1992 or 1993; 2. Touching the crotch of an eleven-year-old in 1996; 3. Sexual assault of a woman of unknown age in 1997 during which she physically resisted his sexual advances (touching of breasts and crotch area) before escaping by jumping out a bedroom window; 4. Forcible rape of a 25-year-old woman in 1997.


In a consolidated plea agreement, Antone pled guilty to the four offenses and was sentenced to 3,600 days in jail by the tribal court.


The appeals court pointed out that during each of these sexual episodes, Antone was either intoxicated with alcohol or high on cocaine. His serious substance abuse included drinking on average 3 to 5 quarts of beer a day, and marijuana, LSD, and crack cocaine use regularly. Antone has no memory of any of these incidents.


In November 1999, Antone was sentenced in the United States District Court for Arizona on another “sexual misconduct” offense. This particular offense related to the 1997 forcible rape charge to which he pled guilty in the tribal court; and as part of a Federal plea agreement, he admitted to all the incidents that formed the basis of his consolidated plea agreement in tribal court. The decision to have Antone moved from tribal custody to Federal custody was initiated by Antone’s attorney who believed his client could benefit from a sex offender treatment program for Native Americans at the Federal Correctional Institute in Butner, North Carolina.


Antone received a 114-month sentence from the Federal district court. The U.S. Attorney’s Office and the Federal judge recommended that Antone participate in drug and sex offender treatment programs. He was committed to the Federal Bureau of Prisons where he remained from November 1999 through February 2007.


During his Federal penal incarceration, Antone maintained a good prison record. He did not use any alcohol or drugs, passing regular Breathalyzer tests and urine analysis. At his own initiative, he joined and participated in Alcoholics Anonymous and Narcotics Anonymous self-help programs. He completed a Drug Education Program and a “non-residential substance abuse program” while studying for and obtaining his GED. He worked as an “orderly” in his housing unit and received “superior” work performance reviews by prison staff. He received only four disciplinary infractions; two for fighting without injury and twice for minor rule violations.


Antone also regularly sought advice and counseling from the prison’s mental health staff about anger management while simultaneously taking classes in art, beading, meditation and guitar (teaching other inmates to play the guitar as well).

Just four days before his scheduled release from prison on February 27, 2007, the Government filed a certification motion under the civil commitment provisions of the Adam Walsh Child Protection and Safety Act of 2006, codified in 18 U.S.C. § 4248.  Antone was transferred to the Federal facility in Butner where he remained housed pending a hearing on the Government’s certification motion—a process delayed for several years as appeals to the civil commitment provisions of § 4248 were appealed through the courts. A mandatory evidentiary hearing was conducted over a three-day period in October 2011.


At the evidentiary hearing it was established that Antone had not engaged in any “sexual misconduct” during his extended incarceration. It was, however, established that Antone had not participated in any sex offender treatment programs. Antone and his former attorney both sketched out the detailed efforts they had taken to secure such treatment but was barred participation because his release date was too far in the future. When treatment did become available to him in September 2008, some nineteen months after the Government filed its certification motion, he refused to participate because any statements made during the treatment process “could be used against him” in the commitment proceeding.


Also, during the three-day evidentiary hearing the Government presented two expert witnesses in support of its position that Antone is a “sexually dangerous person” within the meaning of § 4248 while Antone presented one expert witness, a U.S. probation officer from Arizona, and a specialist and counselor from the facility at which he was imprisoned to refute the Government’s proposed designation. A U.S. Magistrate Judge rejected the Government’s “sexually dangerous person” designation but this finding was overruled by the district court judge who said the “combination of Antone’s serious mental illness—namely antisocial personality disorder and polysubstance dependence—would cause him to have serious difficulty in refraining from sexually violent conduct if released.” The judge then civilly committed Antone under § 4248.


The Fourth Circuit reversed the district court judge, finding that the Government had not presented “clear and convincing evidence that Antone’s mental illnesses would cause him to have serious difficulty refraining from sexually violent conduct.” The appeals court made this finding after an exhaustive and comprehensive analysis of all the evidence presented at the evidentiary hearing. The court summed up his findings this way:


“Factfinding is ‘a dynamic, holistic process that presupposes for its legitimacy that the trier of fact will take into account the entire record before it.’ When ‘the court’s account of the evidence is not plausible in light of the record viewed in its entirety,’ then it is not entitled to deference upon our review. Here, the district court disposed of more than a decade of evidentiary data points in a single sentence, and we cannot find that it properly took into account all substantial evidence.


“Nor can we, on the merits of the matter, find that the Government presented clear and convincing evidence that Antone will have serious difficulty refraining from re-offending if released. The Supreme Court has stated that the serious difficulty element is intended to distinguish the ‘dangerous sexual offender’ from the ‘dangerous but typical recidivist convicted in an ordinary criminal case who, having been convicted and punished for one crime, proceeds through his own free choice to commit another.’ Here, then, the Government must demonstrate that Antone’s particular manifestation of his mental illnesses are so severe and controlling as to deprive him of his liberty for an indeterminate future.


“That is not the case. Clear and convincing evidence equips a factfinder with ‘a firm belief or conviction, without hesitancy,’ of the truth of the matter asserted, and, on the record before us, we possess no such conviction about the grip strength of Antone’s mental illness on his behavior. We have already cited the substantial evidence in the record indicating that Antone has developed a level of general and social self-regulation; indeed, on these facts, we are hard-pressed to suggest much else that he could possibly do to undercut the notion that he would have serious difficulty in restraining from re-offending. What’s more, Antone’s civil commitment is based on two mental disorders that are undisputedly prevalent in the nationwide prison population … We conclude that, under the clear and convincing evidence standard, the Government has failed to distinguish Antone’s alleged volitional impairment from that of a ‘dangerous but typical recidivist.’”


And therein lies the true danger of the civil commitment provisions of the Adam Walsh Act. Absent the Forth Circuit’s adherence to the rule of law, a brief, cursory examination of the evidence could have resulted in a lifetime commitment of an offender who is not a “sexually dangerous person.” Civil commitment is simply too Orwellian for us to accept.  Punishing individuals for “PreCrime”/future dangerousness may have been popular feel good legislation, but it is a scary reality for people who had done their time and paid their debt to society.