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.


It is seldom that we will share the views of Supreme Court Justices Clarence Thomas but we do in the Comstock case. Justice Thomas’ dissent made three compelling and convincing points:


“First, [§ 4248]’s definition of a ‘sexually dangerous person’ contains no element relating to the subject’s crime. It thus does not require a federal court to find any connection between the reasons supporting civil commitment and the enumerated power with which that person’s criminal conduct interfered. As a consequence, § 4248 allows a court to civilly commit an individual without finding that he was ever charged with or convicted of a federal crime involving sexual violence. That possibility is not merely hypothetical: The Government concedes that nearly 20% of individuals whom § 4248 proceedings have been brought fit this description.


“Second, § 4248 permits the term of federal civil commitment to continue beyond the date on which a convicted prisoner’s sentence has expired or the date on which the statute of limitations on an untried defendant’s crime has run. The statute therefore authorizes federal custody over a person at a time when the Government would lack jurisdiction to detain him for violating a criminal law that executes an enumerated power…


“Third, the definition of a ‘sexually dangerous person’ relevant to § 4248 does not require the court to find that the person is likely to violate a law executing an enumerated power in the future. Although the Federal Government has no express power to regulate sexual violence generally, Congress has passed a number of laws proscribing such conduct in special circumstances. All of these statutes contain jurisdictional elements that require a connection to one of Congress’ enumerated powers—such as interstate commerce—or that limit the statute’s coverage to jurisdictions in which Congress has plenary authority. Section 4248, by contrast, authorizes civil commitment upon a showing that the person is ‘sexually dangerous,’ and presents a risk ‘to others.’ It requires no evidence that this sexually dangerous condition will manifest itself in a way that interferes with federal law that executes an enumerated power or in a geographic location over which Congress has plenary authority.


“In sum, the enumerated powers that justify a criminal defendant’s arrest or conviction cannot justify his subsequent civil detention under § 4248.”


Beyond these statutory and constitutional concerns lies the greatest concern of all mentioned by Justice Thomas only in a footnote passing: § 4248 allows for a federal offender to be civilly committed for the rest of his natural life if the Government can prove “by clear and convincing evidence that the person committed a sex crime for which he was never charged.”


That’s scary. The whole notion that the Federal Government can put a person away for life after he has completed a criminal sentence for something like crack cocaine possession because at some point in his past he engaged in or attempted to engage in sexually violent conduct or child molestation is scary enough, but to say a person can be put away for life as a “sexually dangerous person” for a sex crime for which he was never charged, or proven beyond a reasonable doubt, is actually beyond scary. It borders on being a Gestapo-like police state.


Sex Crimes and Terrorism.


We have historically been a society that punishes people for what they do, not what they might do. The past two decades of child sexual assaults and acts of terrorism have changed the nation’s psyche. Our society is fully prepared to embrace the dangerous notion that our Government can lock away any individual it determines poses a threat of any kind to society. Today the governmental focus is on suspected violent sex offenders and terrorists but tomorrow the focus could shift to alcoholic derelicts, the homeless, the deformed and disabled, and those who don’t otherwise fit society’s ever-changing notions about who or what is “normal.”


Violent sex offenders and terrorists can be dealt with as criminals in our criminal justice system. We do not need anti-social terms as “sexually dangerous person(s)” or “enemy belligerent(s)”, and the host of non-criminal methods for dealing with those so designated, to protect society. When we resort to extreme measures of control like civil commitment and “indefinite [Gitmo] detention,” we have eroded the constitutional bricks and mortar upon which our nation was created and upon which it has been sustained.


We do not quibble with society’s inherent right to protect itself. That right is so elemental it requires no debate. But debate is not only required but demanded when society, through its elected officials, starts protecting itself not from individuals who have wronged it but from individuals who may wrong it at some point in the future. We will dissent, and dissent, as long as our government permits dissent (and we seriously question whether that will be very much longer). Thus, we join Justice Thomas in his dissent against laws like § 4248.


By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair