Civil Commitment: Pre-Emptive Strike against Future Acts by Convicted Sex Offenders

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair


In 1999 John Charles Volungus plead guilty in the United States District Court for the Western District of Kentucky to three federal criminal sex offenses: possession of child pornography; receipt of child pornography through interstate commerce by means of a computer; and use of a facility of interstate commerce (computer) to persuade a person under the age of eighteen to engage in a sexual act. 1/

He was sentenced to 53 months in the custody of the Federal Bureau of Prisons (“BOP”) to be followed by a term of supervised release. He was released from actual custody only to have his supervised release revoked. He was returned to the custody of the Bureau of Prisons for another23 months. This latter term of imprisonment expired on February 15, 2007. 2/

Although housed at a number of different facilities while in the custody of the BOP, Volungus was confined at the Federal Medical Center Devens in Ayer, Massachusetts (a prison hospital) when he completely satisfied his prison sentence. 3/


Shortly before Volungus’ February 2007 release date, the United States Government filed a petition to have him “civilly committed” as a “ sexually dangerous person” already in federal custody. The government’s action was based on a provision of the Adam Walsh Child Protection and Safety Act (Walsh Act), which was signed into law in 2006 by former President George W. Bush. This little known provision allows the government to request the civil commitment of any inmate committed to federal penal custody for a sex offense upon completion of the inmate’s federal sentence. 4/


The provision is known in the federal court system as a “Section 4248 proceeding.”

Section 4248 defines a “sexually dangerous person” as anyone “who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others.” 4248 says the individual becomes “sexually dangerous” when he/she “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.” 5/


Section 4248 is implemented by the government in the following manner: “A responsible federal official (the Attorney General, the director of the BOP, or the designee of either) may initiate [civil] commitment proceedings by petitioning the federal district court in the judicial district in which a targeted person is confined. The petition must certify to the court that the target, whom we shall call respondent, ‘is a sexually dangerous person.’ The filing of the petition stays the respondent’s release from federal custody, notwithstanding the expiration of his sentence, ‘pending completion of procedures’ described in the Walsh Act.

“Those procedures include an opportunity for the district court to order a mental health examination and to hold a ‘hearing to determine whether the [respondent named in the petition] is a sexually dangerous person.’ At the hearing, the respondent is entitled to counsel and to the opportunity ‘to testify, to present evidence, to subpoena witness on his behalf, and to confront and cross-examine’ the government’s witnesses.


“In prosecuting such a petition, the government has the burden of proving ‘by clear and convincing evidence that the [respondent] is a sexually dangerous person. If the court finds that the government has carried this heavy burden, it must commit the respondent to the custody of the Attorney General. The Attorney General is directed to defer to available state custody, that is, to ‘release the [respondent] to the appropriate official of the State in which [he] is domiciled or was tried if such State will assume responsibility for his custody, care, and treatment.’ In addition, the Attorney General is required ‘to make all reasonable efforts to cause such a State to assume responsibility.’ If such efforts prove unsuccessful, the Attorney General must retain federal custody and place the respondent in a suitable facility for treatment until either an eligible state ‘will assume … responsibility’ or the respondent’s condition is ameliorated to the extent that ‘he can safely be released, either conditionally or unconditionally.’


“The Walsh Act provides an array of post-commitment safeguards to ensure periodic evaluation of a committed person’s overall mental condition, potential dangerousness, and suitability for release. These include a requirement for an annual report setting forth a recommendation for or against continued commitment. If the director of the facility in which the person is confined determines that he is no longer sexually dangerous, the director must notify the court, which must either order the person’s release or schedule a hearing to determine whether release is appropriate. The person himself, through counsel, may petition the court for such a hearing, but not within 180 days after a judicial determination that commitment is appropriate.” 6/


The First Circuit Court of Appeals on January 8, 2010 rejected a constitutional challenge by Volungus that Congress lacked the authority to enact the civil commitment provision of the Walsh Act under either the Commerce Clause or the Necessary and Proper Clause of the U.S. Constitution. The appeals court essentially held that the Commerce Clause gives Congress the power to enact criminal laws and attach criminal penalties for violation of those laws. 7/


The Necessary and Proper Clause bestows upon Congress an ancillary authority to enact laws for the construction and operation of a prison system and to commit mentally ill prison inmates while they are in federal custody. 8/ It is the Necessary and Proper Clause, that gave Congress the “broad grant of incidental power” to enact provisions like Section 4248 of the Adam Walsh Act. 9/


Section 4248 is actually a close copy of the nearly two dozen laws enacted by the States which  permit these states to civilly commit indefinitely “dangerous” sex offenders upon completion of their criminal sentences—a practice that has been upheld by the United States Supreme Court over strenuous objections by civil libertarians that it is an abuse of state police powers, a denial of substantive due process of law, and constitutes cruel and unusual punishment. 10/


It is a subject we have explored in the past and about which we drew the conclusion we still hold today:

“While civil commitment has some due process protections attached to it, the process nonetheless has the unconstitutional smell of the WWII Japanese ‘internment camps’ and the modern ‘enemy combatant’ detention facilities. In all three situations, individuals are confined indefinitely not for what they have been convicted of doing but what it is believed they may do in the future … Preventive confinement, no matter the reason, is a dangerous concept—far more dangerous than the individuals it supposedly protects society from.” 11/


The First Circuit chose to follow the lead of the Eighth Circuit Court of Appeals which, in May 2009, also upheld the constitutionality of Section 4248. 12/ These two circuits broke ranks with the more conservative Fourth Circuit Court of Appeals which, last January, declared that Section 4248 was unconstitutional. 13/ The U.S. Supreme Court on June 22, 2009 granted certiorari in the Fourth Circuit case and will resolve the constitutional conflict between the circuits on the constitutionality of Section 4248. 14/


Beyond the constitutional problems inherent in civil commitments of so-called “sexually dangerous persons,” this practice is beyond a doubt the most costly form of confinement in America. In a March 2007 article the New York Times reported that it cost California taxpayers more than $147 million each year to confine approximately 450 such persons, and that the cheapest cost for such a commitment is in South Carolina where it costs more than $41,000 per year per person. There are now nearly 3,000 such persons in various types of state facilities across the country. Based on the high end cost of custody, care, and treatment of these persons in California and the low end costs in South Carolina, it can be seen that the nationwide costs for civil commitment is staggering.


Given these overwhelming costs of civil commitment, we strongly suspect the Federal government will find itself saddled with the costs for the custody, care and treatment of those federal inmates adjudicated “sexually dangerous persons” under Section 4248. Burdened with daunting budget shortfalls already, states are not going to accept additional costs associated with the indefinite (more often than not life time) custody, care and treatment of those federal inmates determined to be “sexually dangerous persons.” The states will inevitably leave them at the disposal of the U.S. government.


The constitutional repulsive nature of civil commitment of “sexually dangerous” inmates is underscored by the fact that both Congress and State legislatures have the authority to enact mandatory life terms for any sex offense they determine “dangerous.” Anyone convicted for these crimes would spend the rest of their life in prison. It’s that simple. Thus, there is absolutely no need for the costly practice of civil commitment.


There was no evidence in the case law record that John Volungus sexually abused any child. He solicited a minor online with the intent to have sex with the minor, but there is no indication the act was completed. As for the inmate involved in the Eighth Circuit case, Roger Dean Tom, he plead guilty in 1997 to one count of aggravated sexual abuse of a minor; the Fourth Circuit cases involved five inmates who challenged Section 4248: Earl Comstock plead guilty in 2000 to one count of receiving via computer a sexual image depicting a minor engaged in sexual activity; Shane Catron who was found incompetent to stand trial for aggravated sexual abuse of a minor; Thomas Matherly plead guilty to one count of possession of child pornography; Marvin Vigil plead guilty to one count of sexual abuse of a minor; and Markis Revland plead guilty to one count of possession of child pornography. 15/


The case law record does not indicate that any of the admitted sex offenders are either career or serial pedophiles. They were convicted of sex offenses relating to minors which, standing alone, does not make them “sexually dangerous persons.” If conviction alone were enough to make every sex offender a “sexually dangerous person,” then every convicted sex offender at both the federal and state level would have to be civilly committed following completion of their criminal sentence. Such an approach would not only be fiscally irresponsible but would be a tragic waste of human resources because there is no evidence that civil commitment protects society from “child sex predators.”


Finally, each one of these individuals pleaded guilty to the crimes for which they were convicted. They did so before Section 4248 became law.  Each can now make a reasonable challenge to their guilty pleas because they were not informed prior to pleading guilty—and prior to waiving the constitutional rights associated with a guilty plea, such as right to trial by jury—that they would one day be subjected to civil commitment. The very existence of Section 4248 now compels criminal defense attorneys to advise their clients prior to entering a guilty plea or accepting a plea bargain from the government that they are subject to civil commitment under Section 4248 upon completion of their criminal sentence. And, of course, this will prompt many defendants to elect to proceed to a costly trial and appeal because his neither their attorney, the prosecuting U.S. Attorney, or the trial court can guarantee the defendant will not face a Section 4248 proceeding upon completion of his “bargained” sentence.


The bottom line is this: Section 4248, and its state cousins, is a “feel good” law enacted for the benefit of high profile crime victim advocates, such as John Walsh, but these kinds of laws do not serve any legitimate penological objective or provide any meaningful protection to society. In fact, in the long run, these preventive detention laws actually harm society because they drain limited funds and human resources away from areas like education, poverty, drug abuse, job creation programs, etc. just to subsidize the “feel good” desires of crime victims.


Although it is contrary to popular sentiment, the only just solution to this problem is treatment, while incarcerated, designed to prevent repeat offending.  If this is unsuccessful, the criminal justice system has adequate imprisonment alternatives to prevent any future opportunity to offend.


1/ 18 U.S.C. § 2452(A)(a)(5)(A); 18 U.S.C. § 2252(a)(2); 18 U.S.C. § 2422(b)
2/ United States v. Volungus, 599 F.Supp.2d 68 (U.S.D.C. Mass. 2009)
3/ United States v. Volungus, 2010 U.S.App. LEXIS 428 (1st Cir. Jan. 8, 2010)
4/ 18 U.S.C. §§ 4241, 4247-4248
5/ 18 U.S.C. § 4248(a)(5)(6)
6/ Id, Lexis at 3-5
7/ U.S. Const. art. I, § 8, cl. 3
8/ U.S. Const. art. I, § 8, cl. 18; Ex parte Karstendick, 93 U.S. 396 (1876); Greenwood v. United States, 350 U.S. 366 (1956)
9/ Id., Lexis at 10
10/ Kansas v. Hendricks, 521 U.S. 346 (1997)
12/ United States v. Tom, 565 F.3d 497 (8th Cir. 2009)
13/ United States v. Comstrock, 551 F.3d 274 (4th Cir. 2009)
14/ United States v. Comstock, 129 S.Ct. 2828, 174 L.Ed.2d 551 (2009)
15/ United States v. Comstock, 507 F.Supp.2d 522 (W.D. North Carolina 2007)

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair