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Taking the Fifth-A Criminal Law Blog
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  • THE ADAM WALSH ACT AND CIVIL COMMITMENTS

    Section 4248 of the Adam Walsh Child Protection and Safety Act of 2006 Congress authorized the Attorney General and the Director of the Bureau of Prisons or their designees to order the continued incarceration of individuals who they believe to be sexually dangerous beyond the completion of their prison terms and to petition the court to order indefinite incarceration.

    The Supreme Court granted cert in United States v. Comstock to determine the constitutionality of the Federal Government holding prisoners after their prison term terminates. In Comstock the Fourth Circuit found the section to be beyond the limited powers granted to Congress by the Constitution. The Court determined that mental heath hospitalization has traditionally been a responsibility of the states.

    The First Circuit Court of Appeals, on the other hand found the statute to be legal in United States v. Volungus Volungus was convicted of possession of child porn. He was sentenced to 53 months and released on supervised release. The court revoked his release and sentenced him to 23 months. Two weeks before his 23 months were to end the attorney general petitioned to have him civilly committed. The First Circuit reasoned that since possession of porn is illegal due to its transportation in interstate commerce civil commitments are constitutional under the necessary and proper clause. When the Fourth Circuit considered the necessary and proper clause it found that the issue was not the underlining charges but rather the prevention of of sex crimes and the prevention and prosecution of most sex crimes are not crimes resulting from interstate conference.

    Section 4248 has several problems. First it allows one person, who is not a doctor, who is either a prosecutor or a warden to order the continued incarceration of an individual beyond the termination of his legal sentence. Second, it allows a judge, without a jury, but with certain procedural safeguards to order the indefinite commitment of the former prisoner. Third, it allows the commitment of anyone who is “sexually dangerous,” whether or not that person has committed a sexually violent crime. Fourth, it is doing all of this without constitutional authorization. What dictatorship is this?

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