Sex offender exceptionalism and preventive detention

Journal of Criminal Law and Criminology

Volumn 101, Issue 3, 2011, Pages 969-1004

  Yung, Corey Rayburn ^a  

^a UNIVERSITY OF ILLINOIS AT CHICAGO   (United States)

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EID: 84857589263     PISSN: 00914169     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (210)

1. 18 U.S.C. § 4248 (2006).
2. See United States v. Comstock, 507 F. Supp. 2d 522, 526 (E.D.N.C. 2007) (noting that even though Comstock's incarceration expired on November 8, 2006, pursuant to the government's certification of Comstock as a "sexually dangerous person, " Comstock's release was stayed pursuant to § 4248 for the entire duration of the proceedings).
3. Kansas v. Hendricks, 521 U.S. 346 (1997) at 559-60.
4. United States v. Comstock, 551 F.3d 274, 284 (4th Cir. 2009).
5. Sex Offenders' Release is Blocked, L.A. Times, Apr. 4, 2009, at A14 ("Chief Justice John G. Roberts Jr. has granted the Obama administration's request to block the release of certain sex offenders who have completed their federal prison terms. ").
6. Lyle Denniston, Release of Sex Offenders Delayed, SCOTUSblog (Apr. 3, 2009, 5:38 PM), http://www.scotusblog.com/2009/04/release-of-sex-offenders-delayed ("The Justice Department in the morning asked for a delay of the appeals court decision, but also sought an 'immediate, interim' stay while its request was awaiting the Chief Justice's reaction. Roberts, without seeking a response from the challengers to the federal law, by late afternoon issued his order fully staying the Circuit Court.").
7. United States v. Comstock, No. 08A863 (08-1224) (U.S. Apr. 3, 2009) (ordering a stay of the Fourth Circuit's ruling).
8. United States v. Comstock, 129 S. Ct. 2828 (2009) (granting certiorari).
9. Comstock's prison term expired in November 2006. Brief for Respondent at 2, United States v. Comstock, 130 S. Ct. 1949 (2009) (No. 08-1224) [hereinafter Respondents' Brief]. The Court did not issue its opinion in the case until May 17, 2010. United States v. Comstock, 130 S. Ct. 1949 (2010).
10. The Fourth Circuit heard the case on expedited review, issuing its decision in December 2010. United States v. Comstock, No. 07-7671(L), 2010 U.S. App. LEXIS 16976 (4th Cir. June 8, 2010) (granting expedited review).
11. United States v. Comstock, Nos. 07-7671, 07-7672, 07-7673, 07-7674, 07-7675, 2010 U.S. App. LEXIS 24830 (4th Cir. Dec. 6, 2010).
12. The number of sex offenders who have been released from civil commitment is astonishingly low. Meaghan Kelly, Note, Lock Them Up-and Throw Away the Key: The Preventive Detention of Sex Offenders in the United States and Germany, 39 Geo. J. Int'l L. 551, 560 (2008) ("[V]ery few of those committed are released, thus amounting to lifetime confinement. ").
13. See Jeffrey Toobin, Without a Paddle.
14. Can Stephen Breyer Save the Obama Agenda in the Supreme Court?, New Yorker, Sep. 27, 2010, at 34, 40.
15. United States v. Comstock, 130 S. Ct. 1949 (2010).
16. See N.C. Aizenman, Fate of Law Probably up to High Court, Wash. Post, Dec. 14, 2010, at A9.
17. See generally Corey Rayburn Yung, The Emerging Criminal War on Sex Offenders, 45 Harv. C.R.-C.L. L. Rev. 435 (2010) [hereinafter War on Sex Offenders].
18. Corey Rayburn Yung, One of These Laws Is Not Like the Others: Why the Federal Sex Offender Registration and Notification Act Raises New Constitutional Questions, 46 Harv. J. on Legis. 369 (2009).
19. Michael M. O'Hear, Perpetual Panic, 21 Fed. Sent'g Rep. 69, 69 (2008).
20. See Charlie Savage & Andrew W. Lehren, Haggling over Guantánamo's Fate, Int'l Herald Trib., Nov. 30, 2010, at 2.
21. John Q. La Fond, Preventing Sexual Violence: How Society Should Cope with Sex Offenders 145 (2005) (calling the use of civil commitment for sex offenders a "growth industry").
22. Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587.
23. See Eric S. Janus, Closing Pandora's Box: Sexual Predators and the Politics of Sexual Violence, 34 Seton Hall L. Rev. 1233 (2004).
24. Jeslyn A. Miller, Comment, Sex Offender Civil Commitment: The Treatment Paradox, 98 Calif. L. Rev. 2093, 2099-100 n.29 (2010).
25. "The political rhetoric tends to shape the problem of sexual violence in the form of the archetypal 'Beauty and the Beast' story, focusing intense attention on rare but vivid crimes. Such a narrow framing of the problem renders the huge proportion of sexual violence relatively invisible. " Janus, Office of the Pardon Attorney, U.S. Dep't of Just., Federal Statutes Imposing Collateral Consequences upon Conviction 1 (2003)20, at 1248.
26. Once the Attorney General certifies that a person within federal custody is "sexually dangerous" under § 4248: [T]he district court in the jurisdiction in which the federal government holds a person[] automatically stays that person's release from prison.... Moreover, § 4248 empowers the Attorney General to prolong federal detention in this manner without presenting evidence or making any preliminary showing; the statute only requires that the certification contain an allegation of dangerousness. United States v. Comstock, 551 F.3d 274, 277 (4th Cir. 2009) (emphasis added).
27. See Eric Janus, Failure to Protect: America's Sexual Predator Laws and the Rise of the Preventive State 2-3 (2006).
28. Kansas v. Hendricks, 521 U.S. 346 (1997); see War on Sex Offenders, Nicholas J. G. Winter, Dangerous Frames: How Ideas About Race & Gender Shape Public Opinion 4 (2008)5, at 453-55.
29. See, e.g., Eilene Zimmerman, Churches Slam Doors on Sex Offenders, Salon (Apr. 26, 2007), http://www.salon.com/life/feature/2007/04/26/sexoffenders_church.
30. Kansas v. Hendricks, 521 U.S. 346 (1997)
31. 538 U.S. 84, 103 (2003) (quoting McKune v. Lile, 536 U.S. 24, 34 (2002).
32. Transcript of Oral Argument, Kansas v. Hendricks, 521 U.S. 346 (1997) (Nos. 95-1649, 95-9075), 1996 U.S. Trans. LEXIS 80, at *41.
33. 405 F.3d 700, 707 (8th Cir. 2005).
34. 231 F. App'x 349, 352 (5th Cir. 2007).
35. Lawrence A. Greenfeld, Recidivism of Sex Offenders Released from Prison in 1994, at 2 (2003), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/rsorp94.pdf.
36. Kansas v. Hendricks, 521 U.S. 346 (1997)
37. Kansas v. Hendricks, 521 U.S. 346 (1997) at 24.
38. Kansas v. Hendricks, 521 U.S. 346 (1997) at 2.
39. See Dwight H. Merriam, Residency Restrictions for Sex Offenders: A Failure of Public Policy, 60 Plan. & Envtl. L. 3, 4 (2008).
40. Kirk Heilbrun et al., The Science of Sex Offenders: Risk Assessment, Treatment, and Prevention, 4 Psychol. Pub. Pol'y & L. 138, 139-140 (1998).
41. See Ellen Perlman, Where Will Sex Offenders Live?, Governing Mag., June 2006, at 56, available at http://www.governing.com/topics/public-justice-safety/Sex-Offenders-Live.html.
42. Janus, Lance Tapley, The Worst of the Worst: Supermax Torture in America, Boston Rev., Nov./Dec. 2010, at 3.
43. Wash. Rev. Code Ann. § 71.09 (West 2008).
44. Janus, Lance Tapley, The Worst of the Worst: Supermax Torture in America, Boston Rev., Nov./Dec. 2010, at 14-15.
45. See Tom Prettyman, Federal And State Constitutional Law Challenges to State Sex Offender Laws, 29 Rutgers L.J. 1075, 1080-81 (1998).
46. Roxanne Lieb, Wash. State Inst. for Pub. Policy, Washington's Sexually Violent Predator Law: Legislative History and Comparisons with Other States 1 (1996), available at http://www.wsipp.wa.gov/rptfiles/WAsexlaw.pdf.
47. See War on Sex Offenders, Nicholas J. G. Winter, Dangerous Frames: How Ideas About Race & Gender Shape Public Opinion 4 (2008)5, at 447-53.
48. Janus, Lance Tapley, The Worst of the Worst: Supermax Torture in America, Boston Rev., Nov./Dec. 2010, at 22.
49. Minnesota ex rel. Pearson v. Prob. Ct. of Ramsey Cnty., 309 U.S. 270, 277 (1940).
50. Baxstrom v. Herold, 383 U.S. 107 (1966).
51. Kansas v. Hendricks, 521 U.S. 346 (1997) at 111-12, 114.
52. Civil commitment had proven to be an extremely costly system, prone to abuse, with no actual success in treatment. Janus, Lance Tapley, The Worst of the Worst: Supermax Torture in America, Boston Rev., Nov./Dec. 2010, at 22.
53. Rudolph Alexander, Jr., The United States Supreme Court and the Civil Commitment of Sex Offenders, 84 Prison J. 361, 363 (2004).
54. Janus, Lance Tapley, The Worst of the Worst: Supermax Torture in America, Boston Rev., Nov./Dec. 2010, at 22.
55. Andrew J. Harris, The Civil Commitment of Sexual Predators: A Policy Review, in Sex Offender Laws: Failed Policies, New Directions 339, 343 (Richard G. Wright ed., 2009).
56. Janus, Lance Tapley, The Worst of the Worst: Supermax Torture in America, Boston Rev., Nov./Dec. 2010, at 22.
57. Kelly, Nicholas J. G. Winter, Dangerous Frames: How Ideas About Race & Gender Shape Public Opinion 4 (2008)1, at 552-53 ("Today 20 states have SVP laws, providing for the indefinite detention of about 2,700 offenders. "). Among the states that have SVP laws are: Washington, Kansas, Minnesota, Wisconsin, Iowa, New Jersey, California, Texas, Arizona, Illinois, North Dakota, Missouri, Florida, Massachusetts, South Carolina, Pennsylvania, Virginia, New York, New Hampshire, and Nebraska. Harris, Office of the Pardon Attorney, U.S. Dep't of Just., Federal Statutes Imposing Collateral Consequences upon Conviction 1 (2003)48, at 371 n. ii.
58. Kelly, Nicholas J. G. Winter, Dangerous Frames: How Ideas About Race & Gender Shape Public Opinion 4 (2008)1, at 560. One study indicated that civil commitment of sex offenders amounts to a life sentence in approximately 90% of cases. See Kathy Gookin, Wash. State Inst. for Pub. Policy, Comparison of State Laws Authorizing Involuntary Commitment of Sexually Violent Predators: 2006 Update, Revised (2007), available at http://www.wsipp.wa.gov/rptfiles/07-08-1101.pdf.
59. See Harris, Office of the Pardon Attorney, U.S. Dep't of Just., Federal Statutes Imposing Collateral Consequences upon Conviction 1 (2003)48, at 350-57.
60. Kansas v. Hendricks, 521 U.S. 346 (1997)
61. Kansas v. Hendricks, 521 U.S. 346 (1997)
62. Kansas v. Hendricks, 521 U.S. 346 (1997)
63. See Miller, Office of the Pardon Attorney, U.S. Dep't of Just., Federal Statutes Imposing Collateral Consequences upon Conviction 1 (2003)20, at 2110-11.
64. Kansas v. Hendricks, 521 U.S. 346 (1997).
65. Brief for Petitioner at 8-10, Kansas v. Hendricks, 521 U.S. 346 (1997) (No. 95-1649) (internal citations omitted).
66. Kansas v. Hendricks, 521 U.S. 346 (1997) at 11.
67. Hendricks, 521 U.S. at 361.
68. See Janus, Lance Tapley, The Worst of the Worst: Supermax Torture in America, Boston Rev., Nov./Dec. 2010, at 19-20.
69. See John Matthew Fabian, To Catch a Predator, and Then Commit Him for Life: Analyzing the Adam Walsh Act's Civil Commitment Scheme Under 18 U.S.C. § 4248, Champion, Feb. 2009, at 44, 45.
70. See War on Sex Offenders, Nicholas J. G. Winter, Dangerous Frames: How Ideas About Race & Gender Shape Public Opinion 4 (2008)5, at 450-51.
71. Kris Axtman, Efforts Grow to Keep Tabs on Sex Offenders, Christian Sci. Monitor, July 28, 2006, at 1.
72. Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587.
73. See Press Release, White House Office of the Press Sec'y, Fact Sheet: The Adam Walsh Child Protection and Safety Act of 2006 (July 27, 2006), available at http://georgewbush-whitehouse.archives.gov/news/releases/2006/07/20060727-7.html.
74. 18 U.S.C. § 4248(a) (2006). 68Kansas v. Hendricks, 521 U.S. 346 (1997) § 4248(d).
75. Kansas v. Hendricks, 521 U.S. 346 (1997) § 4247(a)(5)-(6). 70Kansas v. Hendricks, 521 U.S. 346 (1997) § 4248(a).
76. See 18 U.S.C. §§ 4248(a), (d). 72Id. § 4248(a) ("A certificate filed under this subsection shall stay the release of the person pending completion of procedures contained in this section. ").
77. See U.S. v. Shields, 522 F. Supp. 2d 317, 332-333 (D. Mass. 2007).
78. 18 U.S.C. §§ 4247(d), 4248(a), (d). 75Id. § 4247(d) ("At a hearing ordered pursuant to this chapter the person whose mental condition is the subject of the hearing shall be represented by counsel and, if he is financially unable to obtain adequate representation, counsel shall be appointed for him pursuant to section 3006A. The person shall be afforded an opportunity to testify, to present evidence, to subpoena witnesses on his behalf, and to confront and cross-examine witnesses who appear at the hearing. ").
79. Fabian, Office of the Pardon Attorney, U.S. Dep't of Just., Federal Statutes Imposing Collateral Consequences upon Conviction 1 (2003)62, at 46.
80. 18 U.S.C. § 4248(d). 78Id. § 4247(e).
81. Kansas v. Hendricks, 521 U.S. 346 (1997)
82. See 18 U.S.C. § 4248(e).
83. Kansas v. Hendricks, 521 U.S. 346 (1997) § 4247(c).
84. See Fabian, Office of the Pardon Attorney, U.S. Dep't of Just., Federal Statutes Imposing Collateral Consequences upon Conviction 1 (2003)62, at 48.
85. Kansas v. Hendricks, 521 U.S. 346 (1997)
86. Karl Hanson & David Thornton, Static-99 Coding Form, available at http://www.static99.org/pdfdocs/static-99-coding-rules_e71.pdf.
87. Kansas v. Hendricks, 521 U.S. 346 (1997)
88. Kansas v. Hendricks, 521 U.S. 346 (1997); see also Andrew Harris, Amy Phenix, R. Karl Hanson & David Thornton, STATIC-99 Coding Rules (2003).
89. See Richard Wollert, Low Base Rates Limit Expert Certainty When Current Actuarials Are Used To Identify Sexually Violent Predators: An Application of Bayes's Theorem, 12 Psychol. Pub. Pol'y & L. 56 (2006).
90. Ctr. for Sex Offender Mgmt., Recidivism of Sex Offenders (May 2001), www.csom.org/pubs/recidsexof.html (last visited Nov. 20, 2010).
91. See, e.g., United States v. Adams, 385 F. App'x 114, 116-17 (3d Cir. 2010) (citing the STATIC-99 results in affirming a district court sentence).
92. United States v. McIlrath, 512 F.3d 421, 425 (7th Cir. 2008) (noting that "[t]he methodology employed by Static 99 to predict the probability of recidivism has been accepted in a number of cases").
93. Bagent v. Mayberg, No. 1:07-cv-01687-AWI-SKO, 2010 U.S. Dist. LEXIS 94053, at *5 (E.D. Cal. Sept. 9, 2010) (recommending that an offender committed to a sex offender treatment facility not be released even though his STATIC-99 score was based largely on conduct for which he was not convicted).
94. United States v. Irey, 612 F.3d 1160, 1213 (11th Cir. 2010).
95. United States v. Farley, 607 F.3d 1294, 1318 n.11 (11th Cir. 2010).
96. See, e.g., Harris, Phenix, Hanson, & Thorton, Office of the Pardon Attorney, U.S. Dep't of Just., Federal Statutes Imposing Collateral Consequences upon Conviction 1 (2003)87, at 3-5.
97. Robert A. Prentky et al., Sexually Violent Predators in the Courtroom: Science on Trial, 12 Psychol. Pub. Pol'y & L. 357, 384-85 (2006).
98. See John Q. La Fond, The Costs of Enacting a Sexual Predator Law, 4 Psychol. Pub. Pol'y. & L. 468, 472 (1998).
99. See at 495-96 (stating that in Washington state sex offenders can undergo treatment while in prison but they are required to waive confidentiality).
100. See Janus, Lance Tapley, The Worst of the Worst: Supermax Torture in America, Boston Rev., Nov./Dec. 2010, at 23.
101. W. Lawrence Fitch, Sexual Offender Commitment in the United States, 989 Annals N.Y. Acad. Sci. 489, 496 (2003).
102. See La Fond, Office of the Pardon Attorney, U.S. Dep't of Just., Federal Statutes Imposing Collateral Consequences upon Conviction 1 (2003)93, at 495-96 (explaining that prisoners are punished by participating in prison treatment programs).
103. United States v. Zehnter, 1:06-cr-0219, 2007 U.S. Dist. LEXIS 4700, *2-*3 (N.D.N.Y. Jan. 23, 2007) ("Defendant, nevertheless, contends that the report also needs to be excluded from use by the Bureau of Prisons because the Bureau of Prisons may use information in the report to determine that he is a sexually dangerous person within the meaning of the Adam Walsh Act and, therefore, be subjected to civil commitment under that Act.") (internal citation omitted).
104. See Monica Davey & Abby Goodnough, Doubts Rise as States Hold Sex Offenders After Prison, N.Y. Times, Mar. 4, 2007, at 1 ("But many of those committed get no treatment at all for sex offending, mainly by their own choice. In California, three-quarters of civilly committed sex offenders do not attend therapy. Many say their lawyers tell them to avoid it because admission of past misdeeds during therapy could make getting out impossible, or worse, lead to new criminal charges. ").
105. Kansas v. Hendricks, 521 U.S. 346 (1997)
106. Kansas v. Hendricks, 521 U.S. 346 (1997) ("Admitting to previous crimes is a crucial piece of a broad band of treatment, known as relapse prevention, that is used in at least 15 states and has been the most widely accepted model for about 20 years. ").
107. Kansas v. Hendricks, 521 U.S. 346, 361 (1997).
108. 18 U.S.C. §§ 4247(a)(5)-(6), 4248(a), (d) (2006).
109. United States v. Comstock, 130 S. Ct. 1949, 1955 (2010).
110. See Allison Retka, Missouri's Sexual Predator Law Called Punitive, Preventative, Mo. Lawyers Media, Dec. 19, 2010, http://molawyersmedia.com/blog/2010/12/19/svp-law-called-punitive-preventative/(subscription required, on file with the Journal of Criminal Law and Criminology) ("Of the 150 sex offenders committed under the law since 1999, not one has completed treatment and been released."); Treatment for Sex Offenders Crunches State Budgets; 'Civil Commitment' Programs Create Political Quandary, Wash. Post, Jun. 27, 2010, at A2 ("Wisconsin has released 61 sex offenders since adopting a civil-commitment system in 1994. But in Minnesota, no one has ever gotten out. One man was released provisionally but got pulled back for a technical violation and later died in confinement. 'Are Minnesota sex offenders that much more dangerous than Wisconsin sex offenders? Why can't we do that?' asked Eric Janus, an expert on civil commitment who heads William Mitchell College of Law in St. Paul. Missouri and Pennsylvania have released one patient each. Nebraska has released one person since 2006. Texas has yet to release anyone from its outpatient program. That contrasts with states such as California, which has put nearly 200 offenders back into the community, and New Jersey, where 123 have been let go.") [hereinafter State Budgets].
111. See Retka, 105; State Budgets, Nicholas J. G. Winter, Dangerous Frames: How Ideas About Race & Gender Shape Public Opinion 4 (2008)05.
112. The only requirement in these types of cases is that a person be in the custody of the Bureau of Prisons. 18 U.S.C. § 4248(a).
113. Respondents' Brief, Office of the Pardon Attorney, U.S. Dep't of Just., Federal Statutes Imposing Collateral Consequences upon Conviction 1 (2003)9, at 2 (citing statistics for the Eastern District of North Carolina).
114. See Amy Baron-Evans & Sara Noonan, Grid & Bear It, Champion, July 2008, at 58, 59.
115. Kansas v. Hendricks, 521 U.S. 346 (1997) at 58.
116. 18 U.S.C. § 4247(a)(6) (2006).
117. 28 C.F.R. § 549.93 (2010).
118. Kansas v. Hendricks, 521 U.S. 346 (1997) § 549.92.
119. Baron-Evans & Noonan, Nicholas J. G. Winter, Dangerous Frames: How Ideas About Race & Gender Shape Public Opinion 4 (2008)09, at 58.
120. Because the statute has only begun to be applied, there have been no such cases yet. However, child pornography alone has served as the sole crime underlying an SVP designation. See United States v. Comstock, 627 F.3d 513, 517 (4th Cir. 2010) ("Matherly had pled guilty to one count of possession of child pornography in violation of 18 U.S.C. § 2252(a)(5)(B) and § 2252(b)(2) and received a sentence of 41-months imprisonment, followed by a 3-year term of supervised release. The Government certified him as a 'sexually dangerous' person on November 22, 2006, one day before his projected release date. ").
121. United States v. Bolander, No. 01-CR-2864-L, 2010 U.S. Dist. LEXIS 134749, at *1-2 (S.D. Cal. Dec. 21, 2010) ("Defendant is a federal prisoner who is being held in the custody of the Bureau of Prisons pending the resolution of civil commitment proceedings pursuant to the Adam Walsh Child Protection and Safety Act of 2006, 18 U.S.C. § 4248. In February 2002, Defendant was committed to the custody of the Bureau of Prisons to serve three sentences of imprisonment, arising from a conviction for possession of child pornography and two violations of supervised release. Defendant was also sentenced to a three-year term of supervised release. Shortly before Defendant was to be released, the Government filed a 'Certification of a Sexually Dangerous Person' under 18 U.S.C. § 4248(a). As a result, Defendant has remained in custody beyond his term of incarceration.").
122. 72 Fed. Reg. 43205, 43206 (proposed Aug. 3, 2007) (codified at 28 C.F.R. § 549) (the proposed regulations were "not limited to offenses for which he/she has been convicted or is presently incarcerated, or for which he/she presently faces charges" but include "any conduct of the person for which evidence or information is available").
123. See, e.g., Jason Cantone, Rational Enough to Punish, but Too Irrational to Release: The Integrity of Sex Offender Civil Commitment, 57 Drake L. Rev. 693, 694-95 (2009): A jury found Crane guilty of four criminal charges and sentenced him to thirty-five years to life in prison. However, the Kansas Supreme Court reversed all of the convictions except for lewd and lascivious behavior. Addressing the attempted sodomy and attempted rape charges, the court found that a "fatally defective" complaint denied Crane his due process rights. The kidnapping conviction was reversed because there was insufficient evidence. Fearing that the last charge could be dropped in a retrial, the prosecutor accepted a plea for aggravated sexual battery, and Crane was sentenced to time served. With Crane's victims outraged and the community fearing the release of another sex offender who would prey on its children, the prosecutor sought to declare Crane a sexually violent predator (SVP) under the Kansas Sexually Violent Predator Act (KSVPA), which allowed indefinite civil commitment. To civilly commit Crane, the State needed to prove: (1) that Crane was convicted of a sex crime and (2) that he suffered from a mental condition that makes him likely to engage in future sexual predatory acts. Crane's guilty plea to the lesser charge of aggravated sexual battery guaranteed the first element would be met. To prove the second element, the State relied upon a psychiatrist from Crane's original trial who found Crane to be a sexual deviant and exhibitionist who enjoyed fearful responses from victims. This established the necessary elements for a commitment, and the jury unanimously committed Crane after ninety minutes of deliberation.
124. See, e.g., Steele v. Murphy, 365 F.3d 14, 17 (1st Cir. 2004).
125. See generally Jenny Roberts, The Mythical Divide Between Collateral and Direct Consequences of Criminal Convictions: Involuntary Commitment of "Sexually Violent Predators", 93 Minn. L. Rev. 670 (2008).
126. See Janus, Lance Tapley, The Worst of the Worst: Supermax Torture in America, Boston Rev., Nov./Dec. 2010, at 3.
127. See Smith v. Doe, 538 U.S. 84, 90 (2003).
128. See Human Rights Watch, No Easy Answers: Sex Offender Laws in the U.S. 50 (2007).
129. See Paula Reed Ward, Residency Restrictions for Sex Offenders Popular, but Ineffective, Pittsburgh Post-Gazette, Oct. 26, 2008, at B1.
130. See Human Rights Watch, Nicholas J. G. Winter, Dangerous Frames: How Ideas About Race & Gender Shape Public Opinion 4 (2008)22, at 100.
131. See Corey Rayburn Yung, Banishment by a Thousand Laws: Residency Restrictions on Sex Offenders, 85 Wash. U. L. Rev. 101, 124 (2007).
132. See John Q. La Fond, Can Therapeutic Jurisprudence Be Normatively Neutral? Sexual Predator Laws: Their Impact on Participants and Policy, 41 Ariz. L. Rev. 375, 410-11 (1999) ("Most states have increased criminal sentences for convicted sex offenders and more sex offenders are actually serving longer prison terms. Some states have passed mandatory life sentences for certain sex offenders. ").
133. See 18 U.S.C. § 3509(m) (2006).
134. See Bill Would Modify IDs for Sex Offenders, Monterey County Herald (Cal.), May 26, 2010, at A5 ("Driver's licenses in Delaware are marked with the letter 'Y,' and Louisiana emblazons licenses with the words 'sex offender.'").
135. See John Gramlich, Lawsuits Test Crackdown on Sex Criminals, STATELINE (Apr. 18, 2008), http://www.stateline.org/live/details/story?contentId=302066.
136. See Robert Crowe, Is It Tarot or Porno? Offender in Trouble, San Antonio Express-News, Oct. 9, 2008, at 1A ("[I]n 1997, Texas became the first state to allow surgical castration for repeat sex offenders. ").
137. See Kennedy v. Louisiana, 128 S. Ct. 2641, 2651 (2008) (Five States have since followed Louisiana's lead [in imposing the death penalty for rape of a child]: Georgia, see Ga. Code Ann. § 16-6-1 (2007) (enacted 1999).
138. Montana, see Mont. Code Ann. § 45-5-503 (2007) (enacted 1997).
139. Oklahoma, see Okla. Stat., Tit. 10, § 7115(K) (West 2007 Supp.) (enacted 2006).
140. South Carolina, see S.C. Code Ann. § 16-3-655(C)(1) (Supp. 2007) (enacted 2006); and Texas, see Tex. Penal Code Ann. § 12.42(c)(3) (West Supp. 2007) (enacted 2007); see also § 22.021(a).).
141. See, e.g., Mark Donald, Hello My Name Is Pervert, Dallas Observer, Jan. 11, 2001, at 34 ("Among their numbers is an even smaller percentage who kidnap and maim and murder and who set the harsh tone of the war against all sex offenders. ").
142. Brian Friel, The War on Kiddie Porn, Nat'l J., Mar. 25, 2006, at 40 ("No matter what happens in Congress, law enforcement officials expect child porn-and the war on porn-to continue expanding. ").
143. Dave Johnston, Proposed Sex-Criminal Law Reaches Too Far, U. Cal. San Diego Guardian, Mar. 12, 2007, available at http://www.ucsdguardian.org/opinion/proposedsexcriminallawreachestoofar ("Americans have a growing cache of weapons in the war on sexual predators.").
144. Lisa B. McPheron, Team Formed to Keep Track of Sex Offenders, Press Enterprise (Riverside, Cal.), Jan. 20, 2006, at B08a ("'This is a pandemic issue that we can't take serious enough,' she said. 'This is a war.'") (quoting activist Erin Runnion); Tough Child Sex Crimes Bill Now Law in California.
145. Loopholes for Child Rapists Closed, U.S. Newswire, Oct. 4, 2005 ("'This is the real battleground in the war against child molesters,' said PROTECT executive director, Grier Weeks. 'For every child abducted by a stranger, there are tens of thousands who are prisoners in their own homes. Today, we won a major victory for these children.'").
146. Maria Vogel-Short, Rarely Seen, Always There, N.J. Law., Dec. 23, 2002, at 1 ("It's a plain, nondescript room on the fifth floor of Trenton's Justice Complex, where handpicked cops who can work computers with the same ease that others work radar or stakeouts, quietly wage war on child molesters and others who can be nailed via the computer. ").
147. War on Sex Offenders, Nicholas J. G. Winter, Dangerous Frames: How Ideas About Race & Gender Shape Public Opinion 4 (2008)5, at 458.
148. To Catch a Predator (NBC).
149. War on Sex Offenders, Nicholas J. G. Winter, Dangerous Frames: How Ideas About Race & Gender Shape Public Opinion 4 (2008)5, at 459-71.
150. See, e.g., Smith v. Doe, 538 U.S. 84 (2003).
151. See, e.g., Kansas v. Hendricks, 521 U.S. 346 (1997).
152. See, e.g., Doe v. Miller, 405 F.3d 700 (8th Cir. 2005).
153. See, e.g., United States v. May, 535 F.3d 912, 920 (8th Cir. 2008) ("As was the case in Smith, SORNA's registration requirement demonstrates no congressional intent to punish sex offenders. ").
154. United States v. Pitts, No. 07-157-A, 2007 U.S. Dist. LEXIS 82632, at *16-17 (M.D. La. Nov. 7, 2007) ("As to the first prong of the test, the Congress clearly intended this to be a civil, nonpunitive, regulatory regime. Congress stated that intent in the text of the statute by declaring that the Sex Offender Registration and Notification Act was established 'in order to protect the public from sex offenders and offenders against children.' Nothing in the Walsh Act suggests that this was intended to be anything else.") (internal citation omitted).
155. United States v. Cardenas, No. 07-80108-Cr-Hurley/Vitunac, 2007 U.S. Dist. LEXIS 88803, at *29 (S.D. Fla. Nov. 5, 2007) ("Like the Alaska statute in Smith, SORNA was entirely codified in a section of the code, civil in nature, which is devoted to 'Public Health and Welfare,' with the exception of the new federal failure to register crime which is codified in Title 18. The preponderance of SORNA relates to a national registration system that cures defects in the state systems and provides uniformity in the management of sex offender registration information. For these reasons, this Court finds that SORNA is a civil, non-punitive law.").
156. United States v. Buxton, No. CR-07-082-R, 2007 U.S. Dist. LEXIS 76142, at *11 (W.D. Okla. Aug. 30, 2007) ("Congress expressly stated that the purpose of SORNA was 'to protect the public from sex offenders and offenders against children.' This Court concurs with the above cases wherein the courts concluded that SORNA's stated purpose is non-punitive.") (internal citation omitted).
157. United States v. Hinen, 487 F. Supp. 2d 747, 755 (W.D. Va. 2007).
158. United States v. Lang, No. CR-07-0080-HE, 2007 U.S. Dist. LEXIS 56642, at *5 (W.D. Okla. June 5, 2007).
159. United States v. Mason, 510 F. Supp. 2d 923, 929 (M.D. Fla. 2007).
160. See Wayne Logan, Constitutional Collectivism and Ex-Offender Residence Exclusion Laws, 92 Iowa L. Rev. 1 n.9 (2006). programs that stop sexual violence before it happens. We need to look at what can help those released from prison to succeed so that they don't victimize again-and that probably means housing and jobs and treatment and community support. Given that current laws are extremely popular, taking truly effective measures may exact a high political price. But that's surely not too much to pay to prevent the kidnap, rape or murder of another child.
161. Wetterling, Nicholas J. G. Winter, Dangerous Frames: How Ideas About Race & Gender Shape Public Opinion 4 (2008)46.
162. See Gordon, Nicholas J. G. Winter, Dangerous Frames: How Ideas About Race & Gender Shape Public Opinion 4 (2008)44, at 1A.
163. Barbara Polichetti, Residency Limits on Sex Offenders Questioned, Providence J., Dec. 6, 2008, at A2: Patty Wetterling has spent 19 years trying to find out what happened to her son, Jacob, abducted at age 11 while riding his bike near the family's Minnesota home. But although she is well aware that statistics show sexual assault is the prime motivation in child kidnappings, Wetterling doesn't back tough residency restrictions for convicted sex offenders.... As one of the conference's keynote speakers, Wetterling, a former math teacher who now serves as director of sexual violence prevention for the Minnesota Department of Health, said she came to Rhode Island to "talk about hope. " "The topic of sex offenders is one that promotes fear, and I know that fear because I lived it, " she said. "I lived it and I didn't like it so I have moved [toward] hope. I have hope that I will find out what happened to my son. " "And we must have hope that sex offenders will succeed in their rehabilitation, because that is the ultimate safety for our children. "
164. See Gary Craig, Cost and Number Committed Surpass State's Expectations, Rochester Democrat & Chron., Dec. 24, 2010, available at 2010 WLNR 25407862: The program is far costlier than imprisoning criminals: a civilly detained offender costs four times the spending for an inmate jailed in a state prison. New York's average price tag to treat sex offenders in secured facilities-about $175,000 a person-makes it the costliest program of its kind in the country, slightly more than in California.... For New York lawmakers, this will create a demand for tens of millions of tax dollars in coming years at the same time that officials face dire budgetary constraints.
165. Kansas v. Hendricks, 521 U.S. 346 (1997)
166. Baron-Evans & Noonan, Nicholas J. G. Winter, Dangerous Frames: How Ideas About Race & Gender Shape Public Opinion 4 (2008)09, at 58 (noting that in its initial attempts to commit persons, the "[Bureau of Prisons] is presumably exercising the utmost care in filing [Sexually Dangerous Person] certifications in order to minimize judicial discomfort with the statute").
167. United States v. Hernandez-Arenado, 571 F.3d 662, 663 (7th Cir. 2009): This case presents us with the question of whether a person held by the United States Immigration and Customs Enforcement ("ICE"-formerly the Immigration and Naturalization Service (INS) who is placed in a facility run by the Bureau of Prisons ("BOP"), is in the custody of the BOP for purposes of the Adam Walsh Child Protection and Safety Act of 2006 (the "Act") or whether he is in the custody of the ICE and therefore does not fall within that Act. Under the Act, if he is in the custody of the BOP and is certified to be a sexually dangerous person, his release from custody is stayed and he is subject to civil commitment. (internal citation omitted).
168. United States v. Joshua, 607 F.3d 379, 381 (4th Cir. 2010): Appellee Benjamin Barnard Joshua was an Army officer stationed in Germany. He was prosecuted by military court-martial in 1995 for sexually molesting children in violation of the Uniform Code of Military Justice (the "UCMJ"). After Joshua pleaded guilty, the court-martial sentenced him to 25 years imprisonment. The court-martial also ordered loss of pay and dishonorable discharge. Joshua began serving his prison sentence with an Army garrison in Germany. He was later transferred to the United States Disciplinary Barracks in Leavenworth, Kansas ("USDB Leavenworth"), operated by the military. In June 2001, when USDB Leavenworth was being downsized, the Army transferred Joshua to the BOP. He was initially housed at the Federal Correctional Institute in Sandstone, Minnesota, and later transferred to the Federal Correctional Institute in Butner, North Carolina. Because of his military prisoner status, the BOP housed Joshua under a May 1994 "Memorandum of Agreement" between the Army and BOP (the "Memorandum") regarding "Transfer of Military Prisoners to the Federal Bureau of Prisons. " Under this agreement, the BOP promised to house up to 500 military prisoners for the Army's convenience. The BOP has called such prisoners "[c]ontractual boarders. " Although they become "subject to all []BOP administrative and institutional policies and procedures, " the Memorandum states that military prisoners within BOP facilities remain "in permanent custody of the U.S. Army, " which "retain[s] clemency authority. " On March 9, 2009, eight days before Joshua's scheduled release, the Attorney General certified him as "sexually dangerous" and the government filed a petition for civil commitment under § 4248. Joshua moved to dismiss the petition, claiming that he was not "in the custody of the Bureau of Prisons. " (internal citations omitted).
169. United States v. Parker, 2010 U.S. App. LEXIS 19327 (4th Cir. Sep. 16, 2010).
170. Respondents' Brief, Office of the Pardon Attorney, U.S. Dep't of Just., Federal Statutes Imposing Collateral Consequences upon Conviction 1 (2003)9, at 3: After Respondent Shane Catron was found not competent to stand trial, the government filed a "Certificate of Mental Disease or Defect and Dangerousness" under 18 U.S.C. § 4246. Two months later, the government withdrew the § 4246 certificate and substituted a certificate pursuant to § 4248. Throughout his competency study, the § 4246 certification process, and the initial period of his § 4248 certification, Mr. Catron was hospitalized at the Federal Medical Center in Butner, North Carolina. He is now incarcerated in the segregated housing unit of FCI-Butner.
171. United States v. Broncheau, Nos. 5:06-HC-2219-BO, 5:07-HC-2101-BO, 5:07-HC-2148-BO, 5:07-HC-2166-BO, 5:07-HC-2025-BO, 5:07-HC-2185-BO, 5:07-HC-2206-BO, 5:08-HC-2037-BO, 5:07-HC-2063-BO, 2010 U.S. Dist. LEXIS 126202, at *1 (E.D.N.C. Nov. 22, 2010) ("Respondents are former federal prisoners who have had Certifications of a Sexually Dangerous Person pursuant to 18 U.S.C. § 4248 filed against them by the federal government under the Adam Walsh Child Protection and Safety Act of 2006.").
172. United States v. Comstock, 130 S. Ct. 1949 (2010).
173. United States v. Carta, 592 F.3d 34, 38 (1st Cir. 2010).
174. Kansas v. Hendricks, 521 U.S. 346 (1997) at 39-40 ("The district court may have assumed that the statutory concept is delimited by the consensus of the medical community, but this is not so. Further, a mental disorder or defect need not necessarily be one so identified in the DSM in order to meet the statutory requirement. ").
175. United States v. Ayers, 371 F. App'x 162, 163 (2d Cir. 2010): [Ayers's] sole challenge is to the district court's failure to prohibit the use of testing results in any future civil commitment proceedings. The absence of such a prohibition does not intrude on a cognizable liberty interest. The Self-Incrimination Clause of the Fifth Amendment is expressly limited to "any criminal case. " Moreover, federal regulations contemplate that civil commitment decisions will be based on all available relevant evidence. Ayers nevertheless suggests that because no statutory or constitutional provision expressly bars the use of the ordered examination results during civil commitment proceedings, the district court was required to provide such protection to ensure that the condition did not reach farther than required by legitimate sentencing concerns. The argument misunderstands the nature of the relevant inquiry under 18 U.S.C. § 3583(d)(2), which focuses on the unnecessary deprivation of liberty as reflected in an existing right. (internal citations omitted).
176. War on Sex Offenders, Nicholas J. G. Winter, Dangerous Frames: How Ideas About Race & Gender Shape Public Opinion 4 (2008)5, at 444-46.
177. Kansas v. Hendricks, 521 U.S. 346 (1997)
178. See generally
179. Kansas v. Hendricks, 521 U.S. 346 (1997) at 440-46.
180. Fabian, Office of the Pardon Attorney, U.S. Dep't of Just., Federal Statutes Imposing Collateral Consequences upon Conviction 1 (2003)62, at 45.
181. State Budgets, Nicholas J. G. Winter, Dangerous Frames: How Ideas About Race & Gender Shape Public Opinion 4 (2008)05.
182. See Perlman, Office of the Pardon Attorney, U.S. Dep't of Just., Federal Statutes Imposing Collateral Consequences upon Conviction 1 (2003)38.
183. War on Sex Offenders, Nicholas J. G. Winter, Dangerous Frames: How Ideas About Race & Gender Shape Public Opinion 4 (2008)5, at 455-58.
184. Kansas v. Hendricks, 521 U.S. 346 (1997) at 455-56.
185. Kansas v. Hendricks, 521 U.S. 346 (1997) at 459-63.
186. Kansas v. Hendricks, 521 U.S. 346 (1997) at 468-72.
187. Kansas v. Hendricks, 521 U.S. 346 (1997) at 463-67.
188. Kansas v. Hendricks, 521 U.S. 346 (1997).
189. For example, in the context of residency restrictions on sex offenders, new constitutional claims are regularly attempted with occasional success. See, e.g., Mann v. Ga. Dep't of Corr., 653 S.E.2d 740 (Ga. 2007) (holding that retroactive application of residency restriction to a preestablished residence was an unconstitutional taking of the sex offender's property).
190. Harris, Office of the Pardon Attorney, U.S. Dep't of Just., Federal Statutes Imposing Collateral Consequences upon Conviction 1 (2003)48, at 340.
191. War on Sex Offenders, Nicholas J. G. Winter, Dangerous Frames: How Ideas About Race & Gender Shape Public Opinion 4 (2008)5, at 472-73.
192. Kansas v. Hendricks, 521 U.S. 346 (1997)
193. Radley Balko, More on Drug Czar's Bid To End War on Drugs, Reason Hit & Run (May 14, 2009), http://reason.com/blog/show/133496.html.
194. Janus, Lance Tapley, The Worst of the Worst: Supermax Torture in America, Boston Rev., Nov./Dec. 2010, at 22-23.
195. See, e.g., Keith Matheny, Areas Fear Predators' Releases: States Struggle with What To Do When Sexually Violent Offenders Finish Their Sentences, USA Today, Mar. 4, 2010, at 3A.
196. War on Sex Offenders, Nicholas J. G. Winter, Dangerous Frames: How Ideas About Race & Gender Shape Public Opinion 4 (2008)5, at 475-77.
197. Rafeal Hermoso, Police Brutality an Endemic, Not Isolated Problem, Orange County Reg., Sept. 28, 1999, available at LEXIS.
198. See Morse v. Frederick, 551 U.S. 393, 397 (2007) (creating what appears to be a drug use speech exception for students).
199. Tom C. Rawlings, Employment Division, Department of Human Resources v. Smith: The Supreme Court Deserts the Free Exercise Clause, 25 Ga. L. Rev. 567, 593 (1991) (defining a limitation to the Free Exercise Clause related to the use of drugs for religious purposes).
200. See Robert J. Cottrol, Submission Is Not the Answer: Lethal Violence, Microcultures of Criminal Violence and the Right to Self-Defense, 69 U. Colo. L. Rev. 1029, 1032 n.8 (1998).
201. See Michael D. Blanchard & Gabriel J. Chin, Identifying the Enemy in the War on Drugs: A Critique of the Developing Rule Permitting Visual Identification of Indescript White Powder in Narcotics Prosecutions, 47 Am. U. L. Rev. 557, 603-05 (1998). The impact of the drug war on the scope of Fourth Amendment protection from unreasonable search and seizure has been dramatic. Intensified law enforcement efforts involving wiretaps, as well as innovations in search and seizure such as police saturation patrols and street sweeps, drug courier profiles, aerial surveillance, drug testing, thermal surveillance, and the demise of the 'knock and announce' rule, all justified by the exigencies of the War on Drugs, have significantly encroached on Fourth Amendment protections of personal privacy. (footnotes omitted); see also Frank Rudy Cooper, The Un-Balanced Fourth Amendment: A Cultural Study of the Drug War, Racial Profiling and Arvizu, 47 Vill. L. Rev. 851 (2002).
202. David A. Moran, The New Fourth Amendment Vehicle Doctrine: Stop and Search Any Car at Any Time, 47 Vill. L. Rev. 815 (2002).
203. Michael J. Reed, Jr., Comment, Florida v. Bostick: The Fourth Amendment Takes a Back Seat to the Drug War, 27 New Eng. L. Rev. 825 (1993).
204. See Randy E. Barnett, Bad Trip: Drug Prohibition and the Weakness of Public Policy, 103 Yale L.J. 2593, 2612 (1994) ("[T]he property rights acknowledged by the Fifth Amendment have been greatly undermined by civil asset forfeitures. When the drug war finally ends, these rights and freedoms will only be regained with great struggle. ").
205. See Kathleen R. Sandy, The Discrimination Inherent in America's Drug War: Hidden Racism Revealed By Examining the Hysteria Over Crack, 54 Ala. L. Rev. 665, 668 (2003): Sixth Amendment rights have also been whittled down to fight the War on Drugs. Those accused of selling drugs have no right to confront their accuser, presumably to protect informants, even though the Sixth Amendment clearly states that the accused shall enjoy the right... to be informed of the nature and cause of the accusation [and] to be confronted with the witnesses against him.
206. See. at 668-69 ("Traditionally, the Eighth Amendment's ban on 'cruel and unusual punishments' has been used to require that any punishment is proportional to the crime committed. Mandatory minimums have taken away judicial discretion in sentencing and mock the idea of proportional punishment. In 1997, a low-level crack dealer on a first offense charge would have served ten years and six months, while a weapons charge would have earned seven years and seven months and rape would have earned a mere six years and five months. ").
207. See Gonzales v. Raich, 545 U.S. 1 (2005) (rejecting Ninth and Tenth Amendment arguments in upholding the Controlled Substances Act as applied under the Commerce Clause power).
208. See Robert Michael Dykes, Comment, Cache and Prizes: Drug Asset Forfeiture in California, 20 W. St. U. L. Rev. 633, 646 (1993) ("Our cornerstone of legal rights, the Constitution, particularly the Fourth, Fifth, Sixth and Fourteenth Amendments, has suffered serious erosion in the name of the 'War on Drugs.'").
209. Tamar Lewin, Rethinking Sex Offender Laws for Youths Showing Off Online, N.Y. Times, Mar. 21, 2010, at A1 ("In most states, teenagers who send or receive sexually explicit photographs by cellphone or computer-known as 'sexting'-have risked felony child pornography charges and being listed on a sex offender registry for decades to come. ").
210. Lawrence v. Texas, 539 U.S. 558 (2003).