The Adam Walsh Act created a new statute for "civil commitment of a sexually dangerous person" and, with it, some difficult issues when advising your clients. Under 18 U.S.C. 4248, the Attorney General and/or the Director of the Bureau of Prisons may certify as a "sexually dangerous person" any person who is in the custody of the Bureau of Prisons or deemed incompetent or against whom all criminal charges have been dismissed solely because of the person's mental condition. "Sexually dangerous" means that the defendant has engaged or attempted to engage in sexually violent conduct or child molestation and that he suffers from a serious mental illness, abnormality or disorder resulting in serious difficulty refraining from sexually violent conduct or child molestation if released.
As the defendant approaches his sentence release date, the government can move for civil commitment under this new act, possibly for life. Once a certificate has been filed, the defendant is entitled to an adversarial hearing, but must remain in custody pending resolution of the issue. If, after the hearing, the court finds by clear and convincing evidence that the defendant is sexually dangerous, the Attorney General must either commit him to state custody for treatment or place him in a "suitable facility" until either the state agrees to take him or he no longer qualifies as "sexually dangerous."



The BOP has already begun certifying inmates under the statute. For these certifications, the BOP has been relying in part on statements made by the inmates during BOP treatment programs, particularly the Sex Offender Treatment Program at Butner, NC, and the Sex Offender Management Program at Devens, MA.
While the Butner Treatment Program is voluntary, inmates are placed involuntarily into the Devens Sex Offender Management Program. Both programs have evaluation and treatment components that may involve the disclosure of undetected offenses and bad thoughts. Refusing to participate in any part of the Devens program may carry harsh consequences, such as denial of halfway house placement, placement in the least desirable housing (even less desirable than usual), and a low-pay job (even lower than usual).



At a minimum, clients charged with sex offenses or with any hint of sexual impropriety in their record should be advised that anything they disclose in the BOP's sex offender programs (or in the sentencing process) may later be used to commit them once the criminal sentence is fully served. Counsel should consider whether to advise clients to avoid the voluntary Butner program and remain silent (at least to some degree) in the mandatory Devens program.
(Adapted from materials written by Amy Baron-Evans, National Federal Defender Sentencing Resource Counsel)
For more information, please visit http://www.nacdl.org/public.nsf/legislation/sexoffender?OpenDocument