Sex Crimes

4th Circuit Approves Imprisonment of Sex Offender Convicted of a Nonexistent Crime

Although his conviction was invalid, the appeals court says, his civil commitment as a "sexually dangerous person" remains legal.


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William Welsh has been imprisoned for seven years even though he was convicted of a crime that everyone agrees he did not commit. That's OK, according to a federal appeals court, because Welsh is not really a prisoner; he's a patient, lawfully committed under a federal statute that allows indefinite detention of "sexually dangerous persons."

In 2011 Welsh, who had "repeated convictions for child molestation, sodomy, and sexual abuse dating back to 1979," pleaded guilty to violating the federal Sex Offender Registration and Notification Act (SORNA) by failing to update his registration information when he moved from Oregon to Belize. Five years later, in an unrelated case, the Supreme Court ruled that the SORNA provision under which Welsh was convicted did not require a sex offender to notify the state where he used to reside when he moved to another country. But by then, Welsh, whose two-year prison sentence would have ended in 2013, had been deemed sexually dangerous and sent to a treatment program at the Butner Federal Correctional Institution in North Carolina.

The provision that supposedly authorized Welsh's transfer, which like SORNA was included in the Adam Walsh Child Protection and Safety Act of 2006, applies to a person "in the custody of the Bureau of Prisons" who "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." Challenging his commitment, Welsh argued that he was never legally in the bureau's custody because he was convicted of a crime that did not exist.

Last Friday a three-judge panel of the U.S. Court of Appeals for the 4th Circuit (which includes North Carolina) rejected that reading of the law, saying, "The government's interest in ensuring it doesn't release dangerous individuals into society exists whenever it asserts legal custody over a person, even if the underlying conviction is ultimately vacated." The court added that civil commitment of sexually dangerous persons does not "depend solely on a criminal conviction because the Adam Walsh Act also authorizes the government to civilly commit individuals deemed incompetent to stand trial or for whom all criminal charges have been dismissed for reasons relating to their mental condition."

Judge Stephanie Thacker dissented. "The majority affirms a district court order denying relief to an individual who has spent the last seven years in federal custody without a valid conviction," she writes. Welsh's continued confinement cannot be constitutional, Thacker argues, because "the Adam Walsh Act is intrinsically tied to Congress's authority to criminalize conduct." The 2010 Supreme Court ruling that upheld the law, she notes, deemed it a "'necessary and proper' means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others."

By saying the lack of a valid conviction has no bearing on the legality of Welsh's commitment, Thacker says, her colleagues ignore the careful balance struck by the Adam Walsh Act. "In the United States, we detain for criminal conduct, not mere propensity," she writes. "This principle is so deeply embedded in our understanding of due process that it is indispensable in a free society. The Adam Walsh Act walks a tightrope by detaining for propensity a narrow group of individuals: those in legal custody of the Bureau of Prisons who are deemed 'sexually dangerous.'…Detaining for propensity a citizen who never should have been in federal custody in the first place is not only inequitable, it is offensive to the most basic tenets of justice."

While I agree with Thacker's conclusion, it seems to me the principle she is defending—that "we detain for criminal conduct, not mere propensity"—was sacrificed long ago. Even before states and the federal government began recasting punishment as treatment by continuing to confine sex offenders who have completed their prison sentences, state laws allowed preventive detention in mental hospitals of people who supposedly posed a danger to others, or even just to themselves. If that does not amount to detaining people based on "mere propensity," what does? Psychiatric language should not blind us to the reality that the government routinely locks people up based on fear of crimes they might commit in the future.

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  1. That’s a logical result of turning crimes into mental disorders and ordering “treatment.”

    Thomas Szasz would join the Founders in rolling over in his grave.

    1. Or political opinions. That’s next.

  2. Makes you want to argue an appeal before the courts, slap a copy of the Constitution down on the table, and rest your entire appeal on the question “Show the place in the Constitution where it allows government to keep Americans locked up and denied of Liberty without a criminal conviction”?

    Walking out on judges while saying that they are traitors to the Constitution is a great way to stand up to the court’s nonsense.

    1. “Show the place in the Constitution where it allows government to keep Americans locked up and denied of Liberty without a criminal conviction”?

      It’s on the back, written in invisible ink. It’s called the “FYTW clause.” You’ll need special sun glasses to see it though.

    2. Yeah, why don’t you try that and tell us how it goes for you?

      1. It’s really an incredibly ineffective way to argue in court, sadly.

    3. If you like the Constitution so much, why don’t you marry it?

  3. Whelp, good luck moving this conversation beyond “feelz” with the vast majority of Americans.

    1. Lol. Would you like to explain how it’s not about feelz for you?

    2. Feelz is all there is, Rhywun. See Human Action, Chapter 1, Section 2.

  4. Since it isn’t mentioned in the article:

    Duncan is a Bush 43 appointee.
    Diaz and Thacker are Obama appointees.

    1. I always hate these “who appointed them” things. It’s just a finger pointing exercise. I don’t give a flying fuck who appointed the shitlords.

      1. It’s important to point out because every two years people tell us that we have to vote Republican so they can appoint judges who will protect the constitution.

        1. It is important because it shows that almost none of these guys want to protect the constitution as a whole.

          1. The biggest mistake is to expect either side to be so uniform that every person is entirely predictable by their group identity.

  5. repeated convictions for child molestation, sodomy, and sexual abuse dating back to 1979,

    So, for clarity, the lack of conviction and propensity wasn’t for child molestation, sodomy, and sexual abuse. The lack of conviction and propensity was for not filing the proper paperwork in Belize, right?

    1. He should need in prison for life for the child molestations.

  6. It’s hard for me to get too upset about the inability to get a bad guy out from under a bad law on a technicality. I’d favor modifying or completely overturning the “Adam Walsh Child Protection and Safety Act of 2006” (just on the basis of the rule-of-thumb that legislation with tragic victims’ names attached is always bullshit), and I fully agree with those “mere propensity” criticisms. But nitpicking the “custody” provision just seems like a waste of time and effort on behalf of someone pretty low on the list to deserve such expenditures. Assuming that some legal aid organization was funding this appeal, surely there are better ways to allocate its resources.

  7. You guys do a lot of articles which peripherally defend child molesters.

    It’s starting to seem suspicious.

    1. Mencken, scoundrels, defending, Google.

    2. It’s because when it comes to sex offenders (not just the “real” offenders that truly hurt people, but anyone with that tag, including teens convicted of sending nude selfies to their partners, and in some cases kids as young as 8), our constitution seems to barely apply, if at all. Were any other group of criminals were treated this way, rest assured you’d see plenty of articles on that.

      It basically comes down to whether or not you believe our constitution needs to be applied equally or just in cases with which you agree. Whether it’s Mr. Rogers or Manson, everyone needs to be treated equally, otherwise why even bother having any laws and the constitution? People on their 10th DUI and multiple victims under the wheels retain more rights and less restrictions than the 14-year-old in Texas who had sex with his 13-year-old girlfriend.

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