DOJ Issues "Final Rule" under AWA for Civil Commitment of a Sexually Dangerous Person

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11-21-2008 National:

DEPARTMENT OF JUSTICE

Bureau of Prisons
28 CFR Part 549
[BOP Docket No. 1145]
RIN 1120-AB45

Civil Commitment of a Sexually Dangerous Person

AGENCY: Bureau of Prisons, Justice.

ACTION: Final Rule.

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SUMMARY: In this document, the Bureau of Prisons (Bureau) finalizes its
proposed rule providing definitions and standards relating to the
certification of persons as sexually dangerous for the purpose of civil
commitment, as authorized by the Adam Walsh Child Protection and Safety
Act of 2006 (Pub. L. 109-248) (Walsh Act), enacted July 27, 2006, which
amended title 18 of the United States Code, Chapter 313.

DATES: This rule is effective December 22, 2008.

FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General Counsel, Bureau of Prisons, phone (202) 307-2105.

SUPPLEMENTARY INFORMATION: A proposed rule on this subject was published August 3, 2007. We received six comments on the proposed rule. One was in support of the rule. We discuss the issues raised by the remaining five comments below.

Also, in the proposed rule, we stated that these rules would be added to 28 CFR part 549, as ``new'' subpart F. However, subpart F currently contains regulations regarding ``Fees for Health Care Services.'' These rules will instead be added to 28 CFR part 549 as new subpart H, and are renumbered accordingly.

Description of Bureau Mental Health Professionals

Several commenters requested more detail concerning the
qualifications of the Bureau mental health professionals who will be
making determinations regarding the eligibility of persons for civil
commitment under these regulations.
The Bureau's Certification Review Panel (CRP), similar to the
practice of several states' civil commitment systems, is composed of a
variety of persons, including qualified health services staff as well
as legal counsel. Included on the panel are appropriately-credentialed
psychologists. These psychologists review each inmate's case thoroughly
before the CRP decides to certify an inmate for civil commitment.

Definition of ``Conduct of a Sexual Nature''

Section 549.72 of the proposed rule (now Sec. 549.92 of the final
rule) defined the term ``sexually violent conduct'' as ``any unlawful
conduct of a sexual nature with another person (``the victim'') that
involves'' certain elements further enumerated in the regulation.
Several commenters called for a definition of the term ``conduct of a
sexual nature,'' raising concerns that this language could be
interpreted as including ``flirting,'' certain terms of endearment, or
other ``harmless conduct.''
At the outset, we note that our terminology is not limited solely
to ``conduct of a sexual nature,'' but also includes the necessary
initial component that such conduct be ``unlawful.'' Further, the term
``conduct of a sexual nature'' is not activated as a consideration
unless accompanied by another qualification among those listed in the
regulation. The conduct must involve one of the following:
(a) The use or threatened use of force against the victim;
(b) Threatening or placing the victim in fear that the victim, or
any other person, will be harmed;
(c) Rendering the victim unconscious and thereby engaging in
conduct of a sexual nature with the victim;
(d) Administering to the victim, by force or threat of force, or
without the knowledge or permission of the victim, a drug, intoxicant,
or other similar substance, and thereby substantially impairing the
ability of the victim to appraise or control conduct; or
(e) Engaging in such conduct with a victim who is incapable of
appraising the nature of the conduct, or physically or mentally
incapable of declining participation in, or communicating unwillingness
to engage in, that conduct.
Further, a person cannot be committed based on conduct alone. A
sexually dangerous person is one who also ``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.'' 18 U.S.C. 4247(a)(6). This requires
the Bureau to review not only a person's behavioral history, but also
his or her mental condition and risk of engaging in sexually violent
conduct or child molestation in the future to determine whether he or
she should be certified as a sexually dangerous person.

HIV Infected Innmates' ``Innocent'' Conduct

Several commenters expressed concerns that Sec. 549.72(b) of the
proposed regulation (now Sec. 549.92(b) of the final rule) ``could be
used to impose civil commitment on a defendant infected with HIV who
had flirted with, or otherwise indicated an innocent desire to have
intercourse (which was never consumated [sic]) with someone.''
In reconsidering this provision, the Bureau has determined that the
best course of action is to remove this paragraph from Sec. 549.92.

Constitutionality of the Walsh Act

One commenter stated that ``[t]he Walsh Act was recently held
unconstitutional. * * * See United States v. Comstock, 06-HC-2212-BR
(E.D. N.C., U.S.D.J).'' (United States v. Comstock, 507 F. Supp. 2d 522
(E.D. N.C. 2007).)
The case cited by the commenter does not have any immediate effect
on the authority for this regulation. On September 7, 2007, the
district court found 18 U.S.C. 4248 unconstitutional in that case, but
the court stayed its order pending the government's appeal of the
ruling. The district court recognized that other district courts had
upheld the constitutionality of 18 U.S.C. 4248, in the face of similar
challenges. See United States v. Shields, 522 F. Supp. 2d 317, 341 (D.
Mass. Nov. 7, 2007); United States v. Carta, 503 F. Supp. 2d 405, 407
(D. Mass. 2007); United States v. Harnden, No. 06-6960 (C.D. Cal. Dec.
27, 2006). See also United States v. Dowell, No. 06-1216 (W.D. Okla.
Nov. 26, 2007 and Dec. 5, 2007); United States v. Abregana, No. 07-385
(D. Hawaii, Aug. 22, 2008). But see U.S. v. Tom, Civil No. 06-3947 (D.
Minn. May 23, 2008).

The Regulation Violates the Fifth and Sixth Amendments of the United
States Constitution

One commenter posited that the Bureau intends to ``apply its
regulation(s) retrospectively and based on any evidence regardless of
source or conviction. [This] violate[s] the Fifth Amendment, U.S.
Const., where applied retroactively/retrospectively to alleged conduct
predating the enabling statute's enactment as attaching new legal
consequences.'' The commenter argues that 18 U.S.C. 4248 violates the
Fifth Amendment because it attaches new legal consequences to conduct
that pre-dated the effective date of the statute.
Section 4248, and the regulations implementing the statute, do not
have retroactive effect. Rather, they permit civil commitment based on
a determination that a person ``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.'' 18 U.S.C. 4247(a)(6). While past behavior is
taken into account, it is only one of several factors to be considered.
The determination whether to certify an inmate for civil commitment is
based also on a person's current mental condition and risk of future
unlawful sexual conduct. Past conduct is used for evidentiary purposes.
Thus, neither section 4248 nor these regulations attaches new legal
consequences solely to past behavior. See Kansas v. Hendricks, 521 U.S.
346, 370-71, 117 S. Ct. 2072, 2086, 138 L.Ed.2d 501 (1997) (Kansas'
Sexually Violent Predators Act does not have retroactive effect, but
rather, permits involuntary confinement based on determination that
person currently both suffers from mental abnormality or personality
disorder and is likely to pose future danger to public; to the extent
that past behavior is taken into account, it is used solely for
evidentiary purposes).
The same commenter also argued that ``the intention to rely on any
evidence regardless of source or conviction would * * * violate a
prisoner's Sixth Amendment right to have a jury of one's peers
determine the facts in accord with the Court's reasoning.''
The Sixth Amendment would not be implicated by these regulations.
First, we note that the civil commitment proceeding contemplated under
the Walsh Act is not a criminal proceeding to which Sixth Amendment
jury rights would attach. See, e.g., Poole v. Goodno, 335 F.3d 705,
710-11 (8th Cir. 2003) (``There is no clearly established

[[Page 70280]]

Supreme Court law which holds that due process requires a jury trial in
civil commitment proceedings or that incorporates the Seventh Amendment
right to a jury for such cases.''); United States v. Sahhar, 917 F.2d
1197, 1207 (9th Cir. 1990), cert. denied, 499 U.S. 963 (1991) (jury
trial is ``neither a necessary element of the fundamental fairness
guaranteed by the due process clause, nor an essential component of
accurate factfinding'') (citing McKeiver v. Pennsylvania, 403 U.S. 528,
543 (1971)).
Further, the Walsh Act authorizes the Bureau only to certify to
federal district courts that certain persons are ``sexually dangerous
persons'' for whom civil commitment is required. The filing of the
certificate by the Bureau stays the release of the person; however, the
final determination that a person is ``a sexually dangerous person''
subject to civil commitment is made by the court after proceedings held
pursuant to 18 U.S.C. 4248(b) and (c), which make applicable the
procedures set forth in 18 U.S.C. 4247(b), (c), and (d). As provided in
section 4248(b), the court may order that a psychiatric or
psychological examination of the person be conducted, and that a
psychiatric or psychological report be filed with the court. Pursuant
to section 4248(c), a hearing shall be conducted in which the person
shall be represented by counsel, and be afforded an opportunity to
testify, present evidence, subpoena witnesses on his or her behalf, and
confront and cross-examine witnesses who appear at the hearing. If the
court finds by clear and convincing evidence that the person is a
sexually dangerous person, the court shall commit him/her to the
custody of the Attorney General as detailed in section 4248(d).
Based on the foregoing discussion, the Bureau now adopts the
proposed rule as final, with minor changes.

Executive Order 12866

This rule falls within a category of actions that the Office of
Management and Budget (OMB) has determined to constitute ``significant
regulatory actions'' under section 3(f) of Executive Order 12866 and,
accordingly, it was reviewed by OMB.
The Bureau has assessed the costs and benefits of this rule as
required by Executive Order 12866 section 1(b)(6) and has made a
reasoned determination that the benefits of this rule justify its
costs. This rule will have the benefit of avoiding confusion caused by
the statutory change, while allowing the Bureau to operate under the
definitions stated in the regulations. There will be no new costs
associated with this rulemaking.

Executive Order 13132

This regulation will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, under Executive Order 13132,
we determine that this rule does not have sufficient Federalism
implications to warrant the preparation of a Federalism Assessment.

Regulatory Flexibility Act

The Director of the Bureau of Prisons, under the Regulatory
Flexibility Act (5 U.S.C. 605(b)), reviewed this regulation and by
approving it certifies that it will not have a significant economic
impact upon a substantial number of small entities for the following
reasons: This rule pertains to the correctional management of persons
in the custody of the Bureau of Prisons, and its economic impact is
limited to the Bureau's appropriated funds.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by Sec. 804 of the Small
Business Regulatory Enforcement Fairness Act of 1996. This rule will
not result in an annual effect on the economy of $100,000,000 or more;
a major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

List of Subjects in 28 CFR Part 549

Prisoners.

Dated: November 17, 2008.
Harley G. Lappin,
Director, Bureau of Prisons.

0
Under rulemaking authority vested in the Attorney General in 5 U.S.C.
301; 28 U.S.C. 509, 510 and delegated to the Director, Bureau of
Prisons in 28 CFR 0.96, we amend 28 CFR part 549 as follows.

Subchapter C--Institutional Management

PART 549--MEDICAL SERVICES

0
1. Revise the authority citation for 28 CFR part 549 to read as
follows:

Authority: 5 U.S.C. 301; 10 U.S.C. 876b; 18 U.S.C. 3621, 3622,
3524, 4001, 4005, 4042, 4045, 4081, 4082 (Repealed in part as to
offenses committed on or after November 1, 1987), 4241-4248, 5006-
5024 (Repealed October 12, 1984 as to offenses committed after that
date), 5039; 28 U.S.C. 509, 510.

0
2. Add a new subpart H, to read as follows:

Subpart H--Civil Commitment of a Sexually Dangerous Person

Sec.
549.90 Purpose and application.
549.91 Definition of ``sexually dangerous person.'' [FEDREG][VOL]*[/
VOL][NO]*[/NO][DATE]*[/DATE][RULES][RULE][PREAMB][AGENCY]*[/
AGENCY][SUBJECT]*[/SUBJECT][/PREAMB][SUPLINF][HED]*[/
HED]*[REGTEXT][CONTENTS][SECHD]*[/SECHD]
549.92 Definition of ``sexually violent conduct.''
549.93 Definition of ``child molestation.''
549.94 Definition of ``sexually dangerous to others.''
549.95 Determining ``serious difficulty in refraining from sexually
violent conduct or child molestation if released.''


Sec. 549.90 Purpose and application.

(a) This subpart provides definitions and standards for review of
persons for certification to federal district courts as sexually
dangerous persons, as authorized by title 18 U.S.C. Chapter 313, by
Bureau of Prisons staff or contractors (collectively referred to in
this Part as ``the Bureau'').
(b) This subpart applies to persons in Bureau custody, including
those:
(1) Under a term of imprisonment;
(2) For whom all criminal charges have been dismissed solely for
reasons relating to the person's mental condition; or
(3) In Bureau custody pursuant to 18 U.S.C. 4241(d).
(c) The Bureau may certify that a person in Bureau custody is a
sexually dangerous person when review under this subpart provides
reasonable cause to believe that the person is a sexually dangerous
person. In determining whether a person is a sexually dangerous person
and should be so certified, the Bureau will consider any available
information in its possession and may transfer the person to a suitable
facility for psychological examination in order to obtain information
for this purpose.

[[Page 70281]]

Sec. 549.91 Definition of ``sexually dangerous person.''

For purposes of this subpart, a ``sexually dangerous person'' is a
person:
(a) Who has engaged or attempted to engage in:
(1) Sexually violent conduct; or
(2) Child molestation; and
(b) Has been assessed as sexually dangerous to others by a Bureau
mental health professional.


Sec. 549.92 Definition of ``sexually violent conduct.''

For purposes of this subpart, ``sexually violent conduct'' includes
any unlawful conduct of a sexual nature with another person (``the
victim'') that involves:
(a) The use or threatened use of force against the victim;
(b) Threatening or placing the victim in fear that the victim, or
any other person, will be harmed;
(c) Rendering the victim unconscious and thereby engaging in
conduct of a sexual nature with the victim;
(d) Administering to the victim, by force or threat of force, or
without the knowledge or permission of the victim, a drug, intoxicant,
or other similar substance, and thereby substantially impairing the
ability of the victim to appraise or control conduct; or
(e) Engaging in such conduct with a victim who is incapable of
appraising the nature of the conduct, or physically or mentally
incapable of declining participation in, or communicating unwillingness
to engage in, that conduct.


Sec. 549.93 Definition of ``child molestation.''

For purposes of this subpart, ``child molestation'' includes any
unlawful conduct of a sexual nature with, or sexual exploitation of, a
person under the age of 18 years.


Sec. 549.94 Definition of ``sexually dangerous to others.''

For purposes of this subpart, ``sexually dangerous to others''
means that a person suffers from a serious mental illness, abnormality,
or disorder as a result of which he or she would have serious
difficulty in refraining from sexually violent conduct or child
molestation if released.


Sec. 549.95 Determining ``serious difficulty in refraining from
sexually violent conduct or child molestation if released.''

In determining whether a person will have ``serious difficulty in
refraining from sexually violent conduct or child molestation if
released,'' Bureau mental health professionals may consider, but are
not limited to, evidence:
(a) Of the person's repeated contact, or attempted contact, with
one or more victims of sexually violent conduct or child molestation;
(b) Of the person's denial of or inability to appreciate the
wrongfulness, harmfulness, or likely consequences of engaging or
attempting to engage in sexually violent conduct or child molestation;
(c) Established through interviewing and testing of the person or
through other risk assessment tools that are relied upon by mental
health professionals;
(d) Established by forensic indicators of inability to control
conduct, such as:
(1) Offending while under supervision;
(2) Engaging in offense(s) when likely to get caught;
(3) Statement(s) of intent to re-offend; or
(4) Admission of inability to control behavior; or
(e) Indicating successful completion of, or failure to successfully
complete, a sex offender treatment program.

[FR Doc. E8-27723 Filed 11-19-08; 8:45 am]

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