U.S. v. Shields

Decision Date07 November 2007
Docket NumberCivil Action No. 07-12059-PBS.,Civil Action No. 07-12058-PBS.,Civil Action No. 07-12056-PBS.
Citation522 F.Supp.2d 317
PartiesUNITED STATES of America, Petitioner, v. Jeffrey SHIELDS, Respondent. United States of America, Petitioner, v. Joel Wetmore, Respondent. United States of America, Petitioner, v. Charles Peavy, Respondent.
CourtU.S. District Court — District of Massachusetts

Mark T. Quinlivan, Hayford A. Farquhar, United States Attorney's Office, Boston, MA, for Petitioner.

John G. Swomley, Swomley & Associates, Page Kelley, Judith H. Mizner, William W. Fick, Federal Defenders, Boston, MA, for Respondents.

MEMORANDUM AND ORDER

PATTI B. SARIS, District Judge.

I. INTRODUCTION

In July 2006, Congress enacted the Adam Walsh Child Protection and Safety Act of 2006, Pub.L. No 109-248, 120 Stat. 587 (2006), to combat sexual violence and to "protect children from sexual exploitation and violent crime." Among other things, the Adam Walsh Act creates national child abuse and sex offender registries, increases federal criminal penalties for violent and sexually violent crimes against children, and provides grants to states to establish, enhance, and operate civil commitment programs for sexually dangerous persons. Section 302 of the Adam Walsh Act, entitled the Jimmy Ryce Civil Commitment Program (hereinafter "the Act" or "Section 4248"),1 authorizes and establishes procedures for the potentially lifetime commitment of a "sexually dangerous person." See 18 U.S.C. § 4248(a).

Charles Peavy, Jeffrey Shields, and Joel Wetmore, the respondents,2 are three individuals currently in the custody of the Bureau of Prisons ("BOP") pursuant to a government certification that each is a "sexually dangerous person" under the Act. Each respondent was certified to be a "sexually dangerous person" one day before he was scheduled to be released from federal custody. As a result of the certification, each respondent's release was stayed. See 18 U.S.C. § 4248(a).

At the time of his certification, Mr. Peavy was serving a six month term for assault. Mr. Shields was serving a fifty-seven month federal term of imprisonment for a child pornography offense. Mr. Wetmore was serving an eighty-seven month term for a child pornography offense.

Pursuant to 18 U.S.C. § 4248(a), the government has requested hearings to determine whether each respondent is a "sexually dangerous person" subject to "civil" commitment to the custody of the Attorney General. On May 16, 2007, respondents filed a motion to dismiss the commitment proceedings, asserting that the Act is facially unconstitutional. Respondents assert multiple facial challenges to the civil commitment regime, arguing that it:

1) exceeds congressional authority under Article I, Section 8 and is inconsistent with the Tenth Amendment;

2) denies respondents equal protection of the laws;

3) subjects respondents to criminal proceedings without required constitutional protections;

4) denies respondents due process of law by failing to provide necessary procedural protections;

5) denies respondents due process of law by failing to define key terms adequately; and

6) denies respondents due process of law by requiring, expert testimony that is insufficiently reliable to meet the evidentiary standard required for commitment.

The Act is the first federal statute to provide for the commitment of sexually dangerous persons. Many states have statutes allowing for the civil commitment of sexually violent predators. The Supreme Court has rejected a constitutional challenge to one such statute. See Kansas v. Crane, 534 U.S. 407, 409, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002); Kansas v. Hendricks, 521 U.S. 346, 350, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). To date, three courts have reviewed constitutional challenges to Section 4248. See United States v. Comstock 507 F.Supp.2d 522, 526, 2007 WL 2588815, at *1 (E.D.N.C. Sept.7, 2007) (holding the Act unconstitutional because it is "not a necessary and proper exercise of Congressional authority and ... [because] the use of a clear and convincing burden of proof violates the ... due process rights of those subject to commitment under the statute"); United States v. Carta, 503 F.Supp.2d 405, 407 (D.Mass.2007) (Tauro, J.) (upholding the Act as to all facial challenges but denying respondents' motions to dismiss without prejudice to the court's consideration of an as-applied challenge); United States v. Hamden, No. 06-6960 (C.D.Cal. Dec. 27, 2006) (rejecting respondent's facial and as-applied challenges but finding that Section 4248 "must be read to afford persons certified under it an opportunity for a probable cause hearing within a reasonable period of time").

After a hearing on September 17, 2007, the Court DENIES the motion to dismiss. Among other things, it holds: (1) that the Act was a necessary and proper exercise of congressional power; (2) that the clear and convincing burden of proof with respect to the required finding that a person "has engaged or attempted to engage in sexually violent conduct or child molestation," 18 U.S.C. 4247(a)(5), violates the Due Process Clause; and (3) that Section 4248 must provide persons certified under it an opportunity for a probable cause hearing before a neutral decisionmaker within a reasonable period of time following any detention beyond their scheduled date of release.

II. STATUTORY FRAMEWORK

A. Sexually Dangerous Person

A "sexually dangerous person" is defined under the Act as one who "has engaged or attempted to engage in sexually

violent conduct or child molestation and who is sexually dangerous to others." 18 U.S.C. § 4247(a)(5) (emphasis added). A person is "sexually dangerous to others" if the person "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." 18 U.S.C. § 4247(a)(6). The statute does not define the terms "sexually violent conduct" or "child molestation."

B. Statutory Procedures

The Act authorizes the Attorney General, or any person authorized by the Attorney General or the BOP, to certify as "sexually dangerous" any person within any of three categories:3 1) those who are in the custody of the Bureau of Prisons; 2) those who have been committed to the custody of the Attorney General pursuant to 18 U.S.C. § 4241(d) based on incompetence to stand trial; and 3) those against whom all charges have been dismissed solely for reasons relating to their mental condition. 18 U.S.C. § 4248(a). Once such certification is filed with the clerk of the district court, the release of the certified individual is stayed pending the completion of a "hearing" to determine whether the certified person is a "sexually dangerous person." Id. Thus, if the government has certified a prisoner as a "sexually dangerous person," he will be held in custody even after his sentence has expired. The statute does not provide for any type of preliminary hearing or review by a neutral decisionmaker before the stay of release goes into effect.

Between certification and the court hearing, the court may order a psychiatric or psychological examination of the certified individual and require "that a psychiatric or psychological report be filed with the court." 18 U.S.C. § 4248(b). Up to seventy-five days are allotted for completion of the evaluation once ordered by the court. 18 U.S.C. § 4247(b).

At the hearing, the certified person shall be represented by counsel (including appointed counsel under 18 U.S.C. § 3006(A)) and "shall be afforded an opportunity to testify, to present evidence, to subpoena witnesses on his behalf, and to confront and cross-examine" any testifying witnesses. 18 U.S.C. § 4247(d). If, after the hearing, the court finds, by clear and convincing' evidence, that the certified individual is a sexually dangerous person, it must commit the individual, to the custody of the Attorney General. 18 U.S.C. § 4248(d). The Attorney General must then "make all reasonable efforts" to cause the State in which the individual is domiciled or was tried to assume responsibility of his "custody, care, and treatment." Id. If no State will assume such responsibility the Attorney General must place the individual for treatment in a suitable facility. Id.

The individual will remain committed until a State assumes responsibility for him, his "condition is such that he is no longer sexually dangerous to others," or he will not be so "if released under a prescribed regimen of medical, psychiatric, or psychological care or treatment." Id. A committed individual, or his counsel or legal guardian, has the right to request a review of his commitment by the court. 18 U.S.C. § 4247(h). There is no limit on the number of motions for review that a committed individual may pursue, but he may only file such a motion after 180 days have passed since the last court determination that he should remain committed. Id.

III. DISCUSSION
A. Congressional Authority to Enact Section 4248

Respondents' first challenge is that Section 4248 is facially unconstitutional because it exceeds congressional power under Article I, Section 8 of the Constitution, which provides:

The Congress shall have power to ... regulate commerce with foreign nations, and among the several states, and with the Indian tribes ... [a] nd ... [t] o make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

U.S. Const. art. I, § 8. Respondents assert that neither the Commerce Clause nor the Necessary and Proper Clause authorizes the Act. As the language of Article I, Section 8 makes clear, to be valid under the Necessary and Proper Clause, an Act of Congress...

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