The Adam Walsh Child Protection and Safety Act of 2006 (“Act”) permits the federal government to civilly commit any child sex offender deemed “dangerous” after they have completed service of their criminal sentence.


To accomplish civil commitment under the Act, the government must satisfy three elements to the appropriate federal district court: “ … that the person (1) has engaged or attempted to engage in sexually violent conduct or child molestation; (2) suffers from a serious mental illness, abnormality, or disorder; and (3) as a result, would have serious difficulty refraining from sexually violent conduct or child molestation, if released.”


Sexually Dangerous People Can be Detained Indefinitely


Adam Walsh detainees, as they are called, are sent to the Federal Correctional Institution at Butner, North Carolina where they can remain confined indefinitely, or even forever. A release mechanism for Adam Walsh detainees is provided through 18 U.S.C. § 4247(h). This statute permits an Act offender to file a motion for a discharge hearing with the commitment court. The statute provides in relevant part that:


“… counsel for [an Adam Walsh detainee] or his legal guardian may, at any time during such person’s commitment, file with the court that ordered the commitment a motion for a hearing to determine whether the person should be discharged from such facility, but no such motion may be filed within one hundred and eighty days of a court determination that the person should continue to be committed.”


Motion for Discharge


In other words, an Adam Walsh detainee can file a motion for a discharge hearing every six months. If the commitment court elects to conduct a discharge hearing under 18 U.S.C. § 4248(c), the Adam Walsh detainee must be given an “opportunity to testify, to present evidence, to subpoena witnesses on his behalf, and to confront and cross-examine witnesses who appear at the hearing.”


  • 4248(c) also requires the FCI Butner Director to “promptly” notify the commitment court if he or she “[(1)] determines that [an Adam Walsh detainee’s] condition is such that he is no longer sexually dangerous to others, or [(2)] will not be sexually dangerous to others if released under a prescribed regimen to medical, psychiatric, or psychological care or treatment.”


This § 4248(c) release mechanism imposes on the commitment court after notification by the FCI Butner Director a duty to “order the discharge of the [Adam Walsh detainee] or, on motion of the attorney for the Government or on its own motion, shall hold a hearing.”


Court Shall Order Release if No longer Sexually Dangerous


If the commitment court determines by a preponderance of the evidence that an Adam Walsh detainee has satisfied one of the two foregoing elements, the court shall order an immediate (or conditional) discharge of the detainee.


The procedural rule under these two statutes has been that an Adam Walsh detainee had to meet the strict evidentiary release burden in his § 4247(h) motion for discharge before securing an actual hearing under § 4248(c).


On August 2, 2017, the Fourth Circuit Court of Appeals issued a significant ruling, United States v. Maclaren, that dramatically changed the legal landscape for an Adam Walsh detainee seeking discharge through these two statutes.


Overcoming Government’s Motion to Oppose Release


The Fourth Circuit ruling provides that an Adam Walsh detainee is no longer required to “defeat the government’s challenge to his motion [for discharge] if his claim is to advance to an evidentiary hearing.”


The appeals court pointed out that the requirement that the Adam Walsh detainee overcome the government’s opposition to his discharge before he can secure an evidentiary hearing “is similar to a plaintiff filing a complaint and then having to overcome a defendant’s Rule 12(b)(6) motion to dismiss before proceeding to discovery.”


When a plaintiff files a civil lawsuit, he or she is required to file a complaint that “contain[s] sufficient factual matter, [if] accepted as true, to ‘state a claim to relief that is plausible on its face.’”


In other words, a well-pleaded complaint with plausible factual detail must be accepted as true and will survive a Rule 12(b)(6) motion to dismiss the lawsuit.


Detainee Has Right to Hearing if Sufficiently Pleads Facts


What this translates into for an Adam Walsh detainee was explained by the Fourth Circuit:


“Given that the requested relief is discharge, a district court should grant a § 4247(h) motion for a § 4248 discharge hearing if the motion contains sufficient factual matter, accepted as true, to state a claim for discharge that is plausible on its face.”


In effect, the Fourth Circuit has instructed the commitment court to accept as true “all well pleaded facts in the [§ 4247(h)] motion and construe them in the light most favorable to the [Adam Walsh] detainee.’


The prior procedural rule required an Adam Walsh detainee to establish with particular detail in his § 4247(h) motion that his psychological or psychiatric condition had improved and to specify exactly what he has done to meet the release conditions of § 4248(d)(2).


The Fourth Circuit observed that this procedural process “neither reflects the statute’s emphasis on the discharge hearing as the place for strict evidentiary burdens and fact-finding, nor accounts for the similarities between [an Adam Walsh detainee] and a plaintiff who has filed a complaint.”


The Fourth Circuit’s Maclaren ruling is not only significant but timely given the current policies being pushed by current Attorney General Jeff Sessions that the rule of law takes a backseat to his department’s political agenda.


An Adam Walsh detainee is entitled to his “day in court.” The Maclaren decision grants him that.