U.S. v. Wilkinson
| Decision Date | 22 June 2009 |
| Docket Number | Civ. No. 07-12062-MLW.,Civ. No. 07-12061-MLW. |
| Citation | 626 F.Supp.2d 184 |
| Parties | UNITED STATES of America, v. Steven B. WILKINSON, Respondent. United States of America v. Andrew M. Swarm, Respondent. |
| Court | U.S. District Court — District of Massachusetts |
Timothy G. Watkins, Ian Gold, Oscar Cruz, Jr., Federal Defender's Office, District of Massachusetts, Boston, MA, for Respondents.
This memorandum is based upon the transcript of the decision rendered orally on May 26, 2009, in which the court allowed respondents' Motions to Dismiss and issued a stay. This memorandum adds citations, deletes some colloquy, and clarifies some language.
* * *
Former federal prisoners and respondents in these two related cases, Steven Wilkinson and Andrew Swarm, have moved to dismiss their respective cases seeking their purportedly civil commitments as sexually dangerous persons pursuant to 18 U.S.C. § 4248, the Jimmy Ryce provision of the Adam Walsh Act ("the Act"). They assert that the Act is unconstitutional because it is beyond the power of Congress to legislate. This is a facial challenge to the statute.
This court understands that legislation is presumed to be constitutional. See, e.g. United States v. Morrison, 529 U.S. 598, 607, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). To be invalidated, there must be a "plain showing that Congress has exceeded its constitutional bounds." Id. That high standard has been met in these cases.
The court will, however, stay its order dismissing these cases based on the unconstitutionality of the statute pending appeal. The court may reconsider the stay if it decides that Wilkinson is entitled to relief on the merits, or if the Supreme Court denies the petition for certiorari in United States v. Comstock, or affirms the Fourth Circuit's decision in that case. 551 F.3d 274 (4th Cir.2009), aff'g 507 F.Supp.2d 522, 540 (E.D.N.C.2007).
Andrew Swarm was in Bureau of Prisons' custody serving a four month federal term of imprisonment following the revocation of his supervised release. His original sentence was 74 months in custody following his conviction for receipt and possession of child pornography in violation of 18 U.S.C. § 2252, and manufacturing marijuana in violation of 21 U.S.C. § 841. He was certified as a sexually dangerous person for purposes of § 4248 on February 20, 2007, one day before he was scheduled to be released. Swarm had a prior conviction in New York state court for attempted sexual abuse and second degree attempted endangering the welfare of a child.
Steven B. Wilkinson was in Bureau of Prisons' custody serving a 189 month federal term of imprisonment, which is scheduled to be followed by a five year term of supervised release, as a result of a conviction for the possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1). He was certified as a sexually dangerous person for purposes of § 4248 on February 13, 2008, the day he was scheduled to be released. He has prior convictions for rape, statutory rape and indecent assault.
As described in Comstock:
The only portion of the Act at issue here, § 4248, authorizes the federal government to civilly commit, in a federal facility, any `sexually dangerous' person `in the custody' of the Bureau of Prisons'—even after that person has completed his entire prison sentence. To initiate commitment under § 4248, the Attorney General need only certify that a person within federal custody is `sexually dangerous.' Such a certification, when filed with the district court in the jurisdiction in which the federal government holds a person, automatically stays that person's release from prison. In the cases at issue here, this stay has extended federal confinement well past the end of any prison term. Thus, pursuant to § 4248, the federal government has civilly confined former federal prisoners without proof that they have committed any new offense. Moreover, § 4248 empowers the Attorney General to prolong federal detention in this manner without presenting evidence or making any preliminary showing; the statute only requires that the certification contain an allegation of dangerousness. The statute defines a `sexually dangerous person' to be one who `has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others,' and who suffers from a severe mental illness such that he would `have serious difficulty in refraining from sexually violent conduct or child molestation if released.' However, neither `sexually violent conduct' nor `child molestation' are terms defined by the statute.
After the Attorney General files the certification, § 4248 directs the district court to adjudicate a person's alleged sexual dangerousness. If the district court finds the person to be sexually dangerous by clear and convincing evidence, the court must commit the person to federal custody. Only then does § 4248 direct the Attorney General to make `all reasonable efforts' to transfer responsibility for the person to an appropriate state authority. Unless and until a state assumes this responsibility, § 4248 authorizes federal confinement for as long as the person remains `sexually dangerous.'
551 F.3d at 276-77 (internal citations omitted)(emphasis in original).
The issue of whether the Act is constitutional has divided the two circuits that have decided it and judges of the United States District Court for the District of Massachusetts as well. The Fourth Circuit in Comstock, and Judge George O'Toole in United States v. Volungus, 599 F.Supp.2d 68 (D.Mass.2009), have found the Act is unconstitutional. The Eighth Circuit in United States v. Tom, 565 F.3d 497 (8th Cir.2009), Judge Patti Saris in United States v. Shields, 522 F.Supp.2d 317 (D.Mass.2007), and Judge Joseph Tauro in United States v. Carta, 503 F.Supp.2d 405 (D.Mass.2007), have found the Act is constitutional. This court finds that the reasoning of Comstock and Volungus is more persuasive.
The court will not reiterate all of the reasoning of those decisions. It will, however, emphasize certain points persuasively made in Comstock and Volungus, and also address some other issues argued by the government in the cases before it.
At the May 21, 2009 hearing, the government argued that Congress had the power to enact § 4248 pursuant to two provisions of Article I, Section 8, of the Constitution. Transcript of May 21, 2009 Hearing ("Tr.") 5-6. The first relied upon by the government is the Commerce Clause, which authorizes Congress to "regulate Commerce ... among the several States." U.S. Const. art. I, § 8. The second provision relied upon by the government is the Necessary and Proper Clause, which provides that Congress has the power "[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." Id.
At the May 21, 2009 hearing, the government acknowledged that the power to legislate provided by the Necessary and Proper Clause must be rooted in an enumerated power in Article I or some other Article of the Constitution. Tr. 5. As the Fourth Circuit described in Comstock, 551 F.3d at 278-279, this is correct. The correctness of this conclusion is also indicated by the Supreme Court's decision in Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 247, 80 S.Ct. 297, 4 L.Ed.2d 268 (1960), and by Professor Lawrence Tribe's discussion in his treatise. See Laurence H. Tribe, American Constitutional Law, 805 (3rd Ed. 2000).
The government also acknowledged that the power of the federal government to operate a penal system is not itself an enumerated power. Tr. 7-9. Rather it is a power implied by the enumerated power to legislate, and is related to the implied powers to prosecute and punish crimes, which are recognized as implied powers in Tom, 565 F.3d 497, 502 (8th Cir.2009)(citing Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 393, 60 S.Ct. 907, 84 L.Ed. 1263 (1940)). Therefore, contrary to the government's contention in its original memorandum opposing the motion to dismiss, Gov. Memo. in Opp'n to Mot. to Dismiss at 8-10, the power to operate a penal system is not itself a foundation for an exercise of Congress's authority under the Necessary and Proper Clause.
Apparently in contrast to the arguments made in Comstock and Tom, the government argues here that the test for deciding Wilkinson and Swarm's facial challenges to § 4248 is provided by the Supreme Court's decision in United States v. Salerno, 481 U.S. 739. 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), rather than by the Supreme Court's decisions in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and Morrison, 529 U.S. at 598, 120 S.Ct. 1740. See Suppl. Gov. Memo. in Opp'n to Mot. to Dismiss at 2-6. Lopez and Morrison were used as the framework to decide Comstock and Tom, and the other analogous cases. See Comstock, 551 F.3d at 279-280; Tom, 565 F.3d at 501-503.
Salerno involved a Substantive Due Process and Eighth Amendment facial challenge to the Bail Reform Act. 481 U.S. at 746, 107 S.Ct. 2095. The Supreme Court wrote: ...
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