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.