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Volokh Conspiracy

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?


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.