More for the "Who Cares About Due Process For Sex Offenders?" File

Q: Can the federal government hold people in custody indefinitely when they have not been charged with, or convicted of, any crime?

|The Volokh Conspiracy |

If my posting a few days ago ("Denying Bail") on the unconstitutionality of an Arizona statute categorically denying bail to individuals charged with sexual assault didn't convince you that our current legislative war on "sex offenders" is careening off the constitutional rails and posing a real threat to our civil liberties, you might want to have a look at US v. Welsh, the subject of a recently-filed cert petition now before the Supreme Court.

Under the federal Sex Offender Registration and Notification Act (SORNA), 18 USC § 4842-48, the Attorney General or the Director of the Federal Bureau of Prisons may designate any individual who is "in custody of the Bureau of Prisons" as a "sexually dangerous person," defined as someone who has "engaged or attempted to engage in sexually violent conduct or child molestation … [and] 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."

A court must then hold a hearing, and if it finds "by clear and convincing evidence that the person is a sexually dangerous person, … it shall commit the person to the custody of the Attorney General." An individual so designated can be held in custody indefinitely, to be released when he is deemed (based on required annual examinations) to no longer be a "sexually dangerous person."

William Welsh has a number of convictions for child molestation and sexual abuse dating back to 1979. In 2011 he was no longer in custody, having served his required prison and probationary sentences. He was, however, required to register on Oregon's Sex Offender Registry because of his prior convictions. When he traveled to Belize in 2011 and failed to update the address listed on his registration, he was charged, and pled guilty, to violating SORNA's registration requirements—a felony—and he was sentenced to 673 days in prison.

A few weeks prior to his release, the Attorney General designated him a "sexually dangerous person"; the reviewing court agreed, and he was committed to Butner Federal Correctional Institution in North Carolina. He has been there ever since.

In 2016, however, his conviction (for having failed to update his registration) was vacated, after the Supreme Court, in US v. Nichols, 136 S.Ct. 113, held that SORNA did not require a person to update his registration when he was traveling to a foreign country.

So he petitioned for a release from custody, arguing that because he had not lawfully been "in custody" of the Bureau of Prisons—he was, once his conviction was overturned, presumed, like the rest of us, to be innocent of any crimes—he could not, lawfully, have been subject to the commitment proceeding for "sexually dangerous persons" in the first place.

But his request for release was denied, first by the federal district court and then by the 4th Circuit [opinion here].

Our friends at the Cato Institute have submitted a truly outstanding brief [available here] in support of Welsh's cert petition, and of his claim that he is being held unlawfully, which eloquently describes why this case matters:

This case is the first time in the modern era that the Federal Government has successfully asserted a continuing power to civilly commit an individual who has been neither lawfully charged with nor convicted of a federal crime. Absent a lawful basis for custody, that power inheres in the several States. The Federal government has no roving authority to initiate involuntary civil-detention proceedings….

It cannot be that the Federal Rules and our system of justice are so stunted that they would permit a constitutional violation to persist indefinitely, without any apparent cure. The Federal Government's sole response is to say that in seeking to indefinitely confine Mr. Welsh, it acted to help protect the public. But the Federal Government's motivesw do not matter; what matters is whether the Federal Government acted pursuant to a power delegated to it by the People under our Constitution. And that question persists no matter how unpalatable we may find the underlying issue.

Nicely put. I would only add: Mr. Welsh may well be a terrible person. But we do not lock people up—even terrible people—unless and until they have been charged with violating the law and have been found, beyond a reasonable doubt, to have done so by a jury of their peers.

It's pretty fundamental to our whole system. It sometimes leads to "unpalatable" consequences, but we live with them because of the importance of the underlying principle, for all of us.

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  1. “When he traveled to Belize in 2011”

    A well known sex tourism stop. Which explains not updating his address.

    So yes Mr. Welsh may well be a terrible person.

    1. Well, yes. Anyone who would choose to travel to, or live in, a place where sex is practiced is OBVIOUSLY a terrible person.

      1. “William Welsh has a number of convictions for child molestation and sexual abuse dating back to 1979”

        Yes, OBVIOUSLY a terrible person.

        Normal people might visit Belize for any number of reasons, unlike habitual child sex offenders.

        1. I yield to your OBVIOUSLY greater knowledge of what habitual child sex offenders do.

        2. Yeah, that’s the kind of circular logic that actually makes sense when you making decisions for yourself, but cannot be the basis for legal decisions.

          Normal people might visit Belize for any number of reasons, say, we like beaches or sleeping with adult women. A habitual child-sex offender might ALSO have these reasons.

          If we are going to punish him for something, he has to know ahead of time what those things are. “Behaving like a typical habitual child-sex offender” is much too vague. He doesn’t have an academic sense of what an abstract habitual child-sex offender likes, only what he likes.

          You have to be able to tell him ahead of time, and you have to actually tell him, he may not visit Belize. Without such a warning, no, the government is powerless to punish him.

      2. Isn’t sex practiced in the United States? Obviously we are all TERRIBLE people!

        1. What would lead you to make such a shocking suggestion? Sex? HERE? I don’t think so. Well, maybe in Ohio, but we don’t discuss THEM in polite society.

        2. Practice? I just do it.

  2. But we do not lock people up – even terrible people – unless and until they have been charged with violating the law and have been found, beyond a reasonable doubt, to have done so by a jury of their peers.

    Unfortunately, that conclusion doesn’t really follow from the rest of the post. The issue in that case is about the scope of when the federal government can lock people up without a jury determination. Regardless of what the federal government can or cannot do, there are states that have been doing precisely this for a long time. Minnesota, for example, committed hundreds of people as Sexually Dangerous Persons, and after decades of the program existing it had never fully discharged a single person. See Karsjens v. Jesson (D. Minn. 2015), rev’d (8th Cir. 2017).

    Indeed, the procedural posture of the case you describe is virtually identical to at least one case in Minnesota — i.e. Man is released from prison and lived on the outside without incident, but then was erroneously returned to prison, where he was screened in as a Sexually Dangerous Person, and subsequently committed as a result.

    1. The entire “Sex Offenders Registry” issue is rife with injustices, rotten with political grandstanding, and rotten to the core. The ways it is dysfunctional are seemingly without end. A man can be convicted of ‘distributing child pornography’ for having, on his phone, pictures of a minor female to whom he is legally married. He is therefore placed on a sex offender registry. And nobody involved in the process on the government side says “Wait a minute; this is patently ridiculous!”

      There are times when I think justice would be better served if, instead of a registry, convicted sex offenders were publicly branded with a red-hot iron, with the proviso that people who supported this were also put on a registry, and required to wield the branding iron when chosen by lottery. Maybe if they had to listen to the screams and smell the burning flesh they would FUCKING THINK before they trashed a man’s life over bullshit.

      1. Unless, of course, they’re sadomasochists. Then it’s a sweetheart deal.

    2. “there are states that have been doing precisely this for a long time.”

      Nothing requires that the convict stay in the state past the post-conviction supervision, and in some cases, they can leave before the post-prison supervision ends. This is clearly the desired end-goal of oppressive limits on registrants.

      1. For this reason, when an action seeking indefinite civil commitment is going to be commenced, the petition is generally filed shortly before the offender is scheduled to be discharged from prison, and a hold order is granted.

    3. Yeah, the amicus brief is just a federalism argument. The other problems were already addressed in Kansas vs Hendricks and given its quasi-blessing. Unfortunately, a federalism argument has already been rejected in United States vs Comstock.

      This is kind of a one-off argument. Welsh was convicted of something under federal law which was later determined not to be a crime. So can the feds civilly commit someone when the only predicate offense was a state crime? I suspect the court will say no, but it won’t help many people.

  3. “But we do not lock people up – even terrible people – unless and until they have been charged with violating the law and have been found, beyond a reasonable doubt, to have done so by a jury of their peers.”

    That’s wrong Prof. Post and you know it.

    You’re using criminal standards in a civil situation–kinda cheap.

    The key thing is: “A court must then hold a hearing. . . .”

    it’s not some arbitrary decision by the AG or DoJ.

    There’s an actual hearing (presumably) with the defendant able to use all defenses available in a civil court (e.g. cross-examination, calling witnesses for the defense and specialists, etc.).

    1. Not sure if you are being sarcastic, but seeing as the defendant was committed to a Federal Prison, the civil/criminal distinction seems less than compelling.

      1. Sigh. You just don’t get it. It’s not criminal because we don’t call it criminal.

        1. Got it and rejected it.

          1. That was sarcasm, Matt.

            1. It was supposed to be sarcasm, but it ran into Poe’s Law

  4. The answer to Professor Post’s question is that for better or for worse, the state has a police power which not only includes the right to involuntarily commit them if they appear dangerous, if includes the right to appoint guardians of its choosing who represent they are unable to manage their own affais and who then have power to lock them up “voluntarily,” supposedly for their own good.

    The difference here is the Federal government does not have this power.

  5. Are there other circumstances where a hearing can constitute enough due process to deprive a person of life or liberty without being charged with a crime?

    Perhaps terrorist sympathizers who can not be shown to have done anything more than voice opinions?

    Perhaps someone who advocates in private the violent overthrow of the US government?

    Perhaps a journalist who decapitates Trump in effigy on TV?

    1. Your post assumes government servants would abuse their power. Certainly, *that* will never happen …

    2. Your post assumes government servants would abuse their power. Certainly, *that* will never happen …

    3. “Are there other circumstances where a hearing can constitute enough due process to deprive a person of life or liberty without being charged with a crime?”

      You mean like immigration hearings?

    4. When a person is put on a psychiatric hold and deemed to be a danger to themselves.

  6. A: Yes.
    Q: Is it legal?
    A: No.
    Q: Who cares?
    A: Not enough judges to matter.

  7. Guantanamo is another unfortunate precedent, from an admittedly different context…

    1. It’s been awhile, but I thought that Guantanamo wasn’t a civil commitment. Instead, it (holding prisoners) was justified Constitutionally as necessary and proper to the war power. The big remaining issue was whether or not we had committed to something more under the Geneva Conventions.

      1. There was also a brief interlude in which the President’s bureaucracy claimed the authority to hold an American citizen, seized in the United States, at Guantanamo. They weren’t able to get him there, so they had a shell game for a while where different stateside military officers ordered the guy held until the mandamus writs reached them, at which point (surprise!) it turned out that he had JUST been transferred to another, undisclosed location.
        They eventually dropped the shell game and remanded the fellow to the civilian justice system.

  8. Has the supposed “Rev” AK registered his address yet?

    1. Are you sure he has an address?

  9. But we do not lock people up – even terrible people – unless and until they have been charged with violating the law and have been found, beyond a reasonable doubt, to have done so by a jury of their peers.

    Eh ? It happens all the time. I recall Mr Manafort being put in jail because of allegations of witness tampering well before he had been convicted of anything. Again, perhaps not the most sympathetic guy, but he’s just the most obvious example of a common practice. You don’t make bail, or the judge decides to revoke your bail, you go to jail. No jury required. No conviction required.

    1. People get held for an alleged crime all the time. In the subject case, it turns out there was no crime.

      So what is the authority to hold him? The argument is this ongoing dangerousness needs an actual crime and conviction to be ongoing from.

      1. People get held for an alleged crime all the time

        Yes, as I said. The question I’m asking is, given that people get held (in jail) for an alleged crime all the time, how can you write :

        But we do not lock people up – even terrible people – unless and until they have been charged with violating the law and have been found, beyond a reasonable doubt, to have done so by a jury of their peers.

        and hold down a job as a law professor ?

  10. It is the protection of rights for the people that seem the least deserving that is key to a just society.

    As is said with the First Amendment, no one has to protect nice speech we agree with.

    If we do not ensure due process for all, then eventually we will end up with due process for none. That is simply the way power and government tends to work,

    1. “If we do not ensure due process for all, then eventually we will end up with due process for none. That is simply the way power and government tends to work”

      Fortunately, we can still cheat and decide what “process” is actually “due”.

  11. Rumor has it there are 40 people held at a military base in Cuba who haven’t been getting due process for about 15 years.

    1. Might as well clean the place out and execute them.

  12. For almost a hundred years states utilized an informal civil commitment process in which a family member or friend could petition a court to have someone committed to an insane asylum. The application would be supported by a physician’s certificate stating the individual was “insane,” or a “lunatick” and away they went. No jury and no reasonable doubt standard.

    I say this not to justify the current instance, but rather to place it (albeit only briefly) in a broader historical context. The “sky is falling” rhetoric that is used may be a bit hyperbolic, which is pretty much par for the course when blogging about your legal niche.

    1. Frances Farmer would have disagreed, if her brain hadn’t been electrically fried and she hadn’t been so busy getting gang-banged in a “mental health” hospital.

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