U.S. v. Wilkinson

• Decision Date: 20 August 2009
• Docket Number: Civ. No. 07-12061-MLW.
• Parties: UNITED STATES of America, v. Steven B. WILKINSON, Respondent.
• Court: U.S. District Court — District of Massachusetts

646 F.Supp.2d 194

UNITED STATES of America, v. Steven B. WILKINSON, Respondent.

Civ. No. 07-12061-MLW.

United States District Court, D. Massachusetts.

August 20, 2009.

Jennifer A. Serafyn, Jennifer C. Boal, Mark J. Grady, Mark T. Quinlivan, United States Attorney's Office, Boston, MA, for Petitioner.

Timothy G. Watkins, Ian Gold, Federal Defender's Office, District of Massachusetts, Boston, MA, for Respondent.

MEMORANDUM AND ORDER

WOLF, District Judge.

I. SUMMARY

In February, 2007, Steven Wilkinson was concluding a federal sentence for being a felon in possession of a firearm which he began serving in 1991. The day before he was to be released from federal custody and turned over to the Commonwealth of Pennsylvania for detention due to a parole violation, the Bureau of Prisons certified Wilkinson as a sexually dangerous person under the pertinent provisions of the then new Adam Walsh Child Protection and Safety Act of 2006 (the "Adam Walsh Act"), 18 U.S.C. § 4248. The Bureau of Prison's certification was essentially based on the facts that Wilkinson had pled guilty to statutory rape in 1976, when he was nineteen years old, was convicted of rape in 1982, and pled guilty to indecent assault of a female in 1991.

The Bureau of Prison's certification constituted a request that Wilkinson be civilly committed as a sexually dangerous person. The court conducted a hearing and decided that there was a proper basis to detain Wilkinson pending a resolution of this case. See United States v. Wilkinson ("Wilkinson I"), 2008 WL 427295, at *11 (D.Mass. Feb. 14, 2008). Therefore, the certification resulted in Wilkinson's continued federal detention.

Wilkinson's case has presented many constitutional and other issues raised by the first federal statute to provide for the civil commitment of sexually dangerous individuals. After receiving the reports of two examiners, the court conducted an evidentiary hearing to determine whether the government had proven that Wilkinson is sexually dangerous.

The court also addressed Wilkinson's claim that the Adam Walsh Act is unconstitutional. In June, 2009, the court held that the Adam Walsh Act is unconstitutional because it exceeds Congress' power under the Commerce Clause of the United States constitution and is not necessary or proper to effectuate any other enumerated legislative or executive power. See United States v. Wilkinson ("Wilkinson II"), 626 F.Supp.2d 184, 185-86 (D.Mass.2009). This is an issue that has split the district courts and several circuits that have decided it. Id. at 186-87. The Supreme Court will hear a case which should decide this issue in the coming term. See United States v. Comstock, 551 F.3d 274 (4th Cir. 2009), aff'g 507 F.Supp.2d 522, 540 (E.D.N.C.2007), cert. granted ___ U.S. ___, 129 S.Ct. 2828, 174 L.Ed.2d 551 (2009). In view of the uncertainty of the law and the risk that Wilkinson might be found to be sexually dangerous, the court stayed his release from federal custody, at least until the merit of the government's request for civil commitment was decided. Wilkinson II, 626 F.Supp.2d at 195.

The court is now addressing whether Wilkinson's civil commitment is justified assuming the Adam Walsh Act is constitutional. For the reasons described in detail in this memorandum, the government has failed to prove that Wilkinson is properly subject to civil commitment.

The Supreme Court has made clear that an inmate cannot be civilly committed merely because he may be dangerous if released. Rather, the constitution generally requires reliance on the criminal law to deter rational people from committing crimes and to imprison them if by committing a crime they nevertheless prove to be dangerous. Civil commitment is constitutionally permissible only if the government proves by clear and convincing evidence that a person is dangerous because he has a serious mental condition which causes him to have serious difficulty in making reasoned choices and controlling his behavior.

The government has not established that Wilkinson has a serious mental impairment which causes him to have serious difficulty in controlling his behavior generally or, as required in this case, will cause him to have serious difficulty in refraining from sexually violent conduct or child molestation if released. Like many prisoners, Wilkinson has an Antisocial Personality Disorder. No one has diagnosed Wilkinson as having pedophilia or any mental abnormality that involves unnatural sexual urges.

The government has not proven that Antisocial Personality Disorder alone ever causes a person to have serious difficulty in controlling his conduct. In essence, the evidence indicates that individuals with severe forms of that disorder may often make unlawful choices, but they are able to control their conduct.

In addition, Wilkinson's Antisocial Personality Disorder is not now severe, and the government has not proven that it causes him serious difficulty in controlling his behavior generally or will cause him serious difficulty in refraining from committing sexual crimes if released. Unlike many prisoners with that diagnosis, Wilkinson worked hard and generally behaved well while serving his long federal sentence. Moreover, Wilkinson will be in his mid-fifties when he is released from federal and state custody. The evidence indicates that both Antisocial Personality Disorder and the risk of sexual recidivism diminish substantially by that age. The evidence also demonstrates that substance abuse contributed considerably to Wilkinson's commission of the crimes that make him eligible to be considered for civil commitment. His substance abuse has been in remission while incarcerated. Wilkinson will be required to participate in substance abuse and sex offender treatment programs during the five years of his federal Supervised Release. In any event, as the government acknowledges, substance abuse is not a permissible basis for a civil commitment.

As the government has failed to prove that Wilkinson may be civilly committed under the Adam Walsh Act, he would ordinarily be entitled to be released now to the custody of the Commonwealth of Pennsylvania to begin serving a sentence for his parole violation. In the current circumstances it may be appropriate to lift the stay of this case and to order Wilkinson's release for that purpose. Therefore, if the parties are unable to reach an agreement concerning the stay, the court will decide if it should be lifted.

II. PROCEDURAL HISTORY

As described earlier, in February, 2007, Wilkinson was serving a federal sentence that began in 1991 for being a felon in possession of a firearm. He was certified as a sexually dangerous person for the purposes of the then new Adam Walsh Act on February 12, 2007, the day before he was scheduled to be released from federal custody. After a three-day hearing, in February, 2008, the court "found probable cause to believe that Wilkinson will have serious difficulty in refraining from sexually violent conduct in the future as a result of a possible antisocial personality disorder." Wilkinson I, 2008 WL 427295, at *11.

Wilkinson moved for a psychological examiner to be appointed and to report to the court regarding whether he is sexually dangerous. See 18 U.S.C. §§ 4247(b), (c). The court construed §§ 4247(b) and 4248(b) to permit the appointment of one court-designated examiner and, if requested, an examiner selected by the respondent. See Wilkinson I, 2008 WL 427295, at *12. Wilkinson requested that Dr. Barbara Schwartz be designated by the court as the sole examiner. The government requested that Dr. Anna Salter also be appointed as an examiner. The court declined to adopt the position of either party because it found that "§§ 4247(b) and 4248(b) are not intended to create a battle of experts selected by each party, or to allow the defendant to select the sole expert." Id.

The court subsequently designated two examiners. Dr. Barry Mills, a Board Certified Forensic Psychiatrist on the faculty of the Harvard Medical School who the parties agreed was qualified, was made the court-designated examiner. At Wilkinson's request, the court appointed Dr. Schwartz, the Program Director of the Maine Department of Corrections Sex Offender Treatment Program, as his designee. Id. at *14. The court allowed the government's proposed examiner, Dr. Salter, to provide expert assistance to the government. See Feb. 8, 2008 Order.

Dr. Mills and Schwartz each filed reports as required by 18 U.S.C. § 4247(c). Dr. Mills opined that Wilkinson was not sexually dangerous and should not be civilly committed. Dr. Schwartz disagreed.

With the agreement of the parties, the court decided to conduct a hearing on the merits before deciding Wilkinson's motion to dismiss or his motion for a Daubert hearing in the hope that a decision on the merits might be reached quickly and moot the complex issues presented by the motion to dismiss.

At the hearing on the merits, the court heard the testimony of Dr. Schwartz, Dr. Mills, and Wilkinson, and received many exhibits. The court declined to hear the testimony of Dr. Salter, in part because she had not examined Wilkinson and in part because, as held earlier, the Adam Walsh Act does not contemplate a battle of the parties' paid experts. Wilkinson I, 2008 WL 427295, at *12. On the sixth day of trial, Wilkinson moved for Judgment on Partial Findings pursuant to Fed.R.Civ.P. 52(c). He argued that even if the Adam Walsh Act's civil commitment scheme were valid, the government had not proven by clear and convincing evidence that Wilkinson would have a serious difficulty refraining from future sexual violence. The court took the matter under advisement.

The court subsequently heard oral argument on Wilkinson's motion to dismiss on the ground that the Adam Walsh Act exceeded Congress' power to legislate. The court allowed the motion to dismiss on the ground that the 18 U.S.C. § 4248 is unconstitutional...