2-8-2010 National:
Currently pending before the Supreme Court is an important case, United States of America v. Comstock, that will test whether Chief Justice Roberts and the Court's conservative majority are willing to extend the protections of federalism even to sex offenders. My initial impressions of the oral argument, held in January, suggest that the answer is no. But, of course, the nature of the oral argument is never a guarantee of the outcome of a case.
Comstock involves a challenge to a federal statute, 18 U.S.C. §4248, that authorizes the civil commitment of "sexually dangerous" persons by the federal government. The United States Court of Appeals for the Fourth Circuit invalidated the statute, stating that the law "grant[s] the federal government unprecedented authority over civil commitment – an area long controlled by the states."
In this column, I will focus on what impressions can be drawn from the oral argument in Comstock. Based upon my review of the argument transcript (as well as the briefs submitted to the Court), it seems likely that the Supreme Court will reverse the Fourth Circuit and uphold the statute as constitutional.
Such a reversal would tell us a great deal about how the current Court views the doctrine of federalism, in particular as it relates to the scope of the Necessary and Proper Clause in Article I of the Constitution. Furthermore, it is quite possible that a reversal would reveal that Chief Justice John Roberts and Justice Samuel Alito have less deferential views of states' rights than their predecessors, Chief Justice William Rehnquist and Justice Sandra Day O'Connor.
The Statute at Issue
Congress enacted Section 4248 in 2006, as part of the Adam Walsh Child Protection and Safety Act. Section 4248 specifically provides that the federal government may seek, in a civil proceeding, the commitment of any "sexually dangerous person" who is already in its custody – a description that ordinarily would cover any individual who has been convicted and imprisoned for violating a federal criminal law.
Under the Act, a "sexually dangerous person" is someone who "has engaged or attempted to engage in sexually violent conduct or child molestation" and who suffers from a severe mental illness that would cause the person to "have serious difficulty in refraining from sexually violent conduct or child molestation if released."
Significantly, Section 4248 authorizes the civil commitment of any "sexually dangerous" person in the custody of the federal Bureau of Prisons – even, upon the appropriate showing, permitting the civil commitment of such a person after he (or she) has completed serving the entire prison sentence flowing from his (or her) criminal conviction.
Section 4248 provides for a number of steps in the civil commitment process, including the requirement that the federal government must establish before the United States District Court by clear and convincing evidence that the person is sexually dangerous, in order to comply with the Constitution's Due Process clause.
The Federalism Issue the Statute Raises
Civil commitment of sex offenders is not novel; many, if not all, states have adopted statutes specifically authorizing civil commitment of sex offenders. The Supreme Court upheld the constitutionality of such procedures more than a decade ago in Kansas v. Hendricks and Kansas v. Crane. What is controversial about Section 4248, however, is that it authorizes the federal government to perform a task that generally has been performed only by the states.
Hence, the constitutional challenge before the Court is based upon federalism grounds – more precisely, whether Congress has the authority to enact a federal civil commitment law. That challenge has two parts. The first is based upon the Commerce Clause, set out in Article I of the Constitution, and the Supreme Court's decisions in United States v. Lopez and United States v. Morrison, in which the Court invalidated federal statutes for lacking a sufficient connection to interstate commerce. Section 4248 has been similarly challenged as an attempt by the federal government to regulate activity that is not sufficiently closely related to interstate commerce – and therefore is said to be unconstitutional on the ground that it exceeds the federal government's Commerce Clause power.
The second challenge is based upon the Necessary and Proper Clause, also set out in Article I. This challenge is based upon the understanding that the clause does not, alone, give Congress any power; rather, the clause can be invoked only, as the Fourth Circuit stated, "to effectuate powers specifically enumerated in the Constitution." Section 4248 is argued to be unconstitutional because the federal government's civil commitment authority, as set out in Section 4248, is not part of any of the Congressional powers that are specifically enumerated in the Constitution.
Comstock Before the Supreme Court: Highlights of the Oral Argument
In 2009, the Fourth Circuit agreed with the federalism arguments that have been made against Section 4248. Subsequently, two federal circuit courts of appeals – the Eighth and then the First – have rejected those arguments. This circuit split emerged while the federal government's petition for certiorari in Comstock was pending, and the Supreme Court granted the petition. The oral argument in January – at which Solicitor General Elena Kagan argued for the federal government – focused on the Necessary and Proper Clause.
During oral argument, the sharpest challenge to the federal government's claimed power came from Justice Antonin Scalia. He contended that the federal government's authority to detain a sex offender ended once that person's federal criminal sentence ended. Essentially, in Justice Scalia's view, the Necessary and Proper Clause may not reach any further than the length of the criminal sentence. It seems clear from the argument, then, that Justice Scalia is certain to vote to affirm the Fourth Circuit and invalidate the law. (Given his similar views on federalism, Justice Clarence Thomas is likely to vote with Justice Scalia, though – as has been the case since February 2006, according to Dahlia Lithwick of Slate.com – Justice Thomas did not say a word during oral argument.)
Solicitor General Kagan's response to Justice Scalia's questions emphasized that Section 4248 was meant to apply in transitional situations – as when the sex offender is scheduled for release from federal prison, yet is still dangerous, and no state is prepared to initiate its own civil commitment proceeding against the offender. The authority for federal civil confinement was based upon, in her words, the federal government's "responsibility to ensure that release of the people it has in its custody is done responsibly."
The members of the Court's liberal bloc – Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer – seemed to have been strongly persuaded by this argument. Notably, after Solicitor General Kagan analogized the situation presented by a case involving Section 4248 to a situation where "a very contagious form of resistant tuberculosis had become prevalent in the prison system and states were not able to deal with that" and Congress gave the federal government "appropriate quarantining authority," Justice Stevens pressed that analogy vigorously during the respondent's oral argument. It seems virtually certain that these three Justices will vote to reverse the Fourth Circuit and sustain the law.
Justice Sonia Sotomayor, who replaced Justice David Souter, is generally expected to vote with the liberal bloc, although it has been noted that she may be more deferential to the government on criminal matters than the members of that bloc are, given her experience as a prosecutor. Justice Sotomayor asked a number of questions of both attorneys during the oral argument in Comstock; in my view, based on those questions, there is no reason to believe that she won't vote with the liberal bloc in Comstock.
What about Chief Justice John Roberts and Justices Samuel Alito and Anthony Kennedy? Chief Justice Roberts asked a few questions, more of Solicitor General Kagan than her adversary, and I interpreted those questions as being skeptical of the federal government's claims. Still, the Chief Justice did not seem offended by the possibility that the Necessary and Proper Clause would authorize civil commitment after the end of the sex offender's criminal sentence. Justice Alito, on the other hand, seemed more receptive to the federal government's arguments on this point.
It is worth noting that prior to their appointments as judges to the federal courts of appeals, both Roberts and Alito served in the federal government – Roberts, in the Solicitor General's office; and Alito, in the U.S. Attorney's Office in New Jersey, the Criminal Division of the Justice Department, and the Solicitor General's office. Although Roberts and Alito certainly are ideologically conservative, they may be inclined to be pragmatic with respect to the need, in limited situations, for the exercise of federal power and authority. If they do vote to reverse the Fourth Circuit and sustain Section 4248 (and my guess is that at least Justice Alito will do so), then it would indicate their endorsement of a somewhat more flexible approach to federalism issues than that taken by their predecessors, Chief Justice Rehnquist and Justice O'Connor.
Finally, as to the occasionally surprising Justice Anthony Kennedy, he asked questions of both sides but seemed receptive to the tuberculosis analogy discussed above. I would expect him to vote with the liberal bloc, albeit perhaps on more narrow grounds. My final predicted tally, then, is that the Court will vote 6-3 or 7-2 – with the only question whether Chief Justice John Roberts will join Justices Scalia and Thomas in dissent – to reverse the Fourth Circuit and uphold Section 4248.
We'll know for certain soon enough. ..Source.. RODGER CITRON
February 8, 2010
US v. Comstock: Will the U.S. Supreme Court Uphold the Federal Government's Power to Commit Sex Offenders, or Invoke Principles of Federalism?
February 12, 2009
First Sexually Dangerous Individual Committed Under New Adam Walsh Child Protection and Safety Act
Now we see the fight between circuits begin, if folks remember the 4th Circuit held AWA Civil Commitment unconstitutional, but here in the 1st Circuit apparently it is constitutional. Who wins? Time for an upper court to decide..
2-12-2009 Massachusetts:
BOSTON, Feb. 12 /PRNewswire-USNewswire/ -- After a ten-day trial before Judge Patti B. Saris (Federal District Court Judge), Jeffrey Shields of Bath, Maine, was civilly committed to the custody of the Federal Bureau of Prisons as a sexually dangerous person. Shields is the first individual in the country to be civilly committed to federal custody as a sexually dangerous person.
In July 2006, Congress enacted the Adam Walsh Child Protection and Safety Act of 2006, Pub.L. No 109-248, 120 Stat. 587 (2006), to combat sexual violence and to protect children. The legislation created, for the first time, a federal civil commitment program for sexually dangerous persons. To commit an individual under its provisions, the Government must establish that an individual: (1) had engaged in child molestation or sexually violent conduct in the past; (2) suffers from a mental illness, abnormality or disorder; and (3) would, because of that illness, abnormality or disorder, have serious difficulty in refraining from future acts of child molestation or sexually violent conduct in the future.
Evidence presented during the trial proved that Shields had numerous prior sexual offenses against children. In May of 1988, Shields was convicted of making obscene phone calls to two boys in Wakulla County, Florida. In January of 1989, in Camden, Maine, Shields fondled the genitals of a thirteen-year-old boy after luring him to an abandoned building. In April of 1989, Shields committed an indecent assault on a nine-year-old boy in an elementary school bathroom in Florida. In July of 1989, Shields sexually assaulted a fourteen-year-old boy in the bathroom of a private school in Bath, Maine and in September of 1989, Shields sexually assaulted a six-year-old boy outside the same school. In March of 1998, in Portland, Maine, Shields engaged in unlawful sexual contact with a twelve year old boy. While on probation for his 1998 offense, Shields was arrested by the Portland Maine Police for possession of child pornography and Shields later pled guilty to federal child pornography charges.
At trial, three psychologists opined that Shields suffered from pedophilia, a recognized mental disorder. In finding Shields sexually dangerous, Judge Saris found that, as a result of his pedophilia, Shields would have serious difficulty in refraining from future acts of child molestation if released into the community.
"When the Adam Walsh Act was passed in 2006, it sought to strengthen federal laws to protect our children. The civil commitment of Jeffrey Shields is one step toward keeping our children safe from sexual predators," said U.S. Attorney Michael J. Sullivan.
Pursuant to the provisions of the Adam Walsh Act, upon finding that he is a sexually dangerous person, Shields is committed to the custody of the Attorney General.
The case was handled by Assistant U.S. Attorneys Mark Grady and Eve Piemonte-Stacey, of Sullivan's Civil Division. ..News Source.. by U.S. Attorney's Office
August 30, 2008
HI- Felon in landmark case out of prison
Remember to read earlier reports on this landmark case.
8-30-2008 Hawaii:
Judge overruled federal attempts to keep sex offender in institution
Federal prison inmate Jay Abregana, held behind bars for more than a year beyond his release date, is now a free man after the government abandoned efforts to involuntarily commit him to a mental institution for sex offender treatment and evaluation.
The U.S. attorney's office invoked a new federal law — for the first time in Hawai'i, and just the second time nationally — in trying to brand Abregana as a sexually dangerous offender unable to control his desire to have sex with minors.
But federal District Chief Judge Helen Gillmor ruled last week that the government had not proved its case against Abregana, 38, and she ordered him released from custody.
Abregana was convicted in 2002 of sending child pornography through the mail. He was also convicted the same year of a state charge of misdemeanor sex assault against a 12-year-old boy in Hilo.
He finished serving his prison and parole terms in July 2007 but stayed in custody while the Justice Department pursued its claim that Abregana should be held in a mental facility indefinitely — perhaps for the rest of his life.
The U.S. attorney's office last week asked Gillmor to delay Abregana's release until it decided whether to appeal the judge's release order.
Yesterday, Assistant U.S. Attorney Lawrence Tong filed papers in court saying the Solicitor General's office had decided not to appeal.
-It would be interesting to know why they decided not to appeal this case.
Gillmor ordered Abregana released from the Federal Detention Center. ..News Source.. by Advertiser Staff
August 23, 2008
HI- Judge denies sex offender is further threat
Remember to read earlier report. This is one of those cases spawned by the retroactivity of the Adam Walsh Act's civil commitment hearings following a FEDERAL prison sentence, provision.
8-23-2008 Hawaii:
The government fails to convince the court to retain the man past his release date
A federal judge has denied the government's attempt to keep a convicted sexual offender in custody even after he completed his prison sentence.
U.S. District Judge Helen Gillmor ordered the government yesterday to release Jay Abregana, 38, from federal custody. The government immediately asked Gillmor to stay her order for seven days as it considers whether it will appeal. Gillmor did not decide on the request, but Abregana remains in custody.
The case involves the first test in Hawaii of the Adam Walsh Child Protection and Safety Act, designed to protect children from sexual exploitation, violent crime, child abuse and child pornography. One of the law's provisions allows judges to send someone who is deemed a sexually dangerous person to prison not because he committed a crime, but because he poses a danger to the public.
Adam Walsh is the 6-year-old boy whose abduction and murder in 1981 spurred his father, John Walsh, to create the National Center for Missing and Exploited Children and the long-running television show "America's Most Wanted."
In a written decision issued yesterday, Gillmor said the government did not prove, by clear and convincing evidence, that Abregana is sexually dangerous to others. She said the government has not proved that Abregana suffers from a serious metal illness, abnormality or disorder that would make it difficult for him to refrain from sexually violent conduct or child molestation if he is released.
Abregana pleaded guilty in November 2001 to transporting child pornography for sending 16 diskettes containing child pornography to an undercover U.S. postal inspector. The diskettes contained images of Abregana having sex with a 15-year-old boy. Gillmor sentenced Abregana in March 2002 to 44 months in prison followed by three years' probation.
Also in 2002, a state judge sentenced Abregana to a concurrent one-year jail term for fourth-degree sexual assault for exposing himself and masturbating in front of a 12-year-old boy in a movie theater in November 2000.
While in federal prison Abregana was kicked out of a sex offender treatment program for having sex with other inmates.
Abregana completed his federal prison term in November 2004 but was back in prison by June 2005 after he admitted having sex with a 17-year-old boy in a Neiman Marcus restroom at Ala Moana Center.
Gillmor resentenced Abregana to 20 months in prison followed by 16 months' probation.
Abregana completed his second prison term but was back in custody in March 2007 for failing to submit for drug testing, possessing a computer, viewing pornography and for contacting minors through e-mail communications.
Gillmor sent Abregana back to prison for four more months. He was supposed to be released last July, but the government kept him in prison pending its application to keep him there indefinitely as a sexually dangerous person. ..News Source.. by Nelson Daranciang
August 9, 2008
HI- Hawaii felon in landmark case
There is no doubt this is a confusing case, first see earlier conviction and notice he (Jay) and his brother (Jed) were involved in that case, but we are following Jay only. This is another example of civil commitment following a FEDERAL court conviction, under the Adam Walsh Act.
7-21-2008 Hawaii:
'Sexually dangerous' man served sentence, but remains confined
Convicted of sending child pornography through the mail, sex offender Jay Abregana completed his federal prison sentence a year ago, but is still behind bars because authorities consider him a "sexually dangerous person" who should be committed to a mental institution, perhaps for the rest of his life.
Abregana is the first person in Hawai'i, and only the second in the country, to be tried under a 2006 federal law that allows the government to detain sex offenders for mental treatment after they have completed incarceration and parole.
His behavior after his criminal convictions — in prison and during brief releases from prison — contributed to the decision last summer by U.S. Bureau of Prisons experts to label him sexually dangerous, court records show.
Federal officials invoked a new section of the Adam Walsh Act — a federal law named after the murdered son of television's "Most Wanted" show host John Walsh — that allows for the involuntary commitment of dangerous sex offenders when they are due to be released from prison.
The federal civil commitment law is patterned after similar laws enacted by some 19 states around the country. Hawai'i has no such law.
Abregana's lawyer, Federal Deputy Public Defender Pamela Byrne, has argued in legal papers that Abregana is not the violent, predatory "monster" that Congress had in mind when it passed the civil commitment law.
Byrne declined to comment further on the case while it is pending before U.S. District Judge Helen Gillmor.
The prosecutor, Assistant U.S. Attorney Larry Tong, also declined to comment, but argued in legal papers that Abregana would have "serious difficulty refraining from" new crimes if he is released.
Multiple offenses
Abregana, 38, was convicted in March 2002 of a federal charge of transporting child pornography through the mail. He was sentenced to 44 months in prison plus another three years of supervised release, the federal form of parole.
He also was convicted in state court in May 2002 of misdemeanor sex assault after admitting that he exposed himself to 12-year-old boy in a Hilo movie theater in 2000.
The prison bureau invoked the federal statute (under the Adam Walsh Act) to commit Abregana to a mental institution in July 20, 2007, the day he was to be released back into the community from Hawai'i's Federal Detention Center.
When he was first convicted in 2002, Abregana was sent to Butner Federal Correctional Institute in North Carolina, where he briefly participated in a sex offender treatment program, court records show.
He was expelled from the program because he performed oral sex acts on five other inmates in the treatment program, according to court records.-It seem rather STUPID to, first send him for sex offender therapy which officials believed he needed, THEN because he commits another sex act kick him out of therapy. The newer sex acts are obvious proof of the need for therapy. (UPDATE: A reader pointed out, that these may have been consensual legal acts, in that sense I would be incorrect saying "Obvious need for treatment.") So, is denying him therapy supposed to be PUNISHMENT, and is that in the best interests of society?
Abregana was then returned to Hawai'i to complete his sentence at the Federal Detention Center here.
He began his three-year supervised release term in late November 2004, but that was revoked in mid-2005. The revocation occurred after Abregana admitted having sex with a 17-year-old boy in a public restroom at Ala Moana Center. He also failed to report for drug testing and sex offender treatment.
Abregana was ordered back to prison for 20 additional months and was released again in mid-November 2006.
By April of last year, Abregana was behind bars again. His supervised release was revoked for a number of new violations, including use of a computer to make e-mail contact with three boys, ages 10, 12 and 14.-Here is the obvious proof, that by kicking him out of therapy, a governmental decision, then allowing supervised release WITHOUT FINISHING THERAPY, Jay goes on to commit more offenses. While Jay committed the offenses, the government MUST TAKE RESPONSIBILITY for their plain DUMB decisions causing new offenses. Kicking someone out of therapy makes no sense whatsoever.
Results of first case
Abregana was not supposed to have access to a computer at all, let alone use it to communicate with minor children.
He had created a profile on a site called buddiespace.com, claiming to be a 14-year-old and posting someone else's photograph as his own.
In the e-mails, Abregana asked the boys about their interests, whether they had girlfriends and whether they would send him photographs of themselves, according to evidence presented to Gillmor.
Gillmor ordered Abregana held in custody until he had "maxed out" his criminal sentence.
Last month, after the defendant had been held almost a year past his final release date, Gillmor presided over a three-day hearing (civil commitment) to determine if Abregana should be committed for mental treatment. She heard testimony from prosecution and defense experts and told the lawyers she wanted to issue a ruling as soon as possible.
Defense attorney Byrne argued that the civil commitment section of the law (Adam Walsh Act), which is named after Jimmy Ryce, a 10-year-old Florida boy who was abducted, raped and killed in 1995, was not meant to target a non-violent offender such as Abregana.
She (Defense Attorney) asserted that there was little in the congressional record (because everything was done behind closed doors) to indicate lawmakers "intended the drastic, last-resort remedy of potentially lifelong 'civil incarceration' to apply to non-violent offenders who had engaged in consensual conduct with post-pubescent teenagers."
Tong argued that government experts had submitted sufficient proof to demonstrate that Abregana has a serious mental disorder, hebephilia, which "involves the sexual arousal to adolescents."
And he asserted the disorder would cause Abregana "serious difficulty in refraining from sexually violent conduct or child molestation if released."
Abregana said in a letter to the judge last year that "deep down inside, I am humbly sorry utterly remorseful for my past actions."
While in prison, he learned from therapists and counselors "that there is no cure for my actions or behaviors" but they had given him a tool to handle what he called his "deviancies."
"Your honor, that tool is knowledge. And because of that knowledge, I've grown to understand and be more aware of high risk situations which will lead to immoral crimes," he wrote.
"And I'm proud to say that I can now walk away from them even before I think about it," he said in his letter.
The federal government lost its only other attempt to involuntarily commit a sex offender for mental treatment earlier this year in Oklahoma.
In that case, the prison inmate had been convicted of sexually assaulting his 6-year-old stepdaughter and the 8-year-old daughter of a friend in the early 1980s.
The defendant, Carl Dowell, was repeatedly released and then returned to prison from 1998 through 2006. The revocations were always based on drug violations.
There was no evidence of sexual misconduct by Dowell during 44 months of release time, the judge in the civil commitment case found. In fact, Dowell had remarried and was frequently in contact with his wife's two young granddaughters, with no showing of improper conduct toward the little girls, according to court records in that case.
Dowell was released from custody in January. ..News Source.. by Jim Dooley, Advertiser Staff Writer
