August 5, 2010
Notable discussion of the impact of civil commitment on sentencing sex offendersThe Eighth Circuit handed down an interesting little ruling in a sex offender sentencing case today in US v. Jeffries, No. 09-3377 (8th Cir. Aug. 5, 2010) (available here). These excerpts from the opinion provides the highlights of the interesting argument made by the defendant and the Eighth Circuit's analysis:
Jeffries argues that the district court violated the admonition in § 3553(a) to “impose a sentence sufficient, but not greater than necessary” when it cited the need to protect the public as the basis for sentencing him at the top end of his guideline range. Jeffries acknowledges the specific instruction in § 3553(a)(2)(C) that district courts should consider the need for the sentence imposed to “protect the public from further crimes of the defendant.” According to Jeffries, however, the court should not have given so much weight to the need to protect the public because the government has the ability to obtain a civil commitment order and indefinitely detain him after the expiration of his sentence if it establishes that he is sexually dangerous to others....
Jeffries’ argument is based on the incorrect assumption that the recently enacted civil commitment provisions shifted the responsibility for protecting the public from district courts at sentencing to the Department of Justice at the time a prisoner is released. Jeffries has cited nothing in the language of the statute or its legislative history that supports this conclusion. Rather, the new provisions are “a modest addition to a longstanding federal statutory framework, which has been in place since 1855” for the civil commitment of the mentally ill. Comstock, 130 S. Ct. at 1961....
In short, there is no reason to conclude that the provisions at issue were meant to displace a district court’s initial discretion to consider potential danger to the public in choosing a defendant’s sentence. This is particularly true given the long-standing role that such considerations have played in courts’ sentencing decisions and the absence of any indication that Congress intended for the civil commitment of sexually dangerous prisoners to have any effect on sentencing. We believe that the civil commitment statutes are best viewed as a complement to the district court’s sentencing discretion. Accordingly, we conclude that the district court did not abuse its discretion by considering the need to protect the public when it imposed Jeffries’ sentence. The 360-month sentence that the district court imposed was within the properly calculated advisory guideline range and it was not substantively unreasonable.
I am impressed with both the cleverness of the defendant's statutory argument here, as well as by the thorough and thoughtful treatment that the Eighth Circuit gives to the argument as it rejects it.
UPDATE: A helpful reader sent me this follow-up note on this basic issue and how it was addressed by another circuit court a few years ago:
On the theme of your post on the 8th Circuit's decision about the relevance of prospective civil commitment to sentencing factors, I thought you (and maybe the defendant) might be interested in the Tenth Circuit's opinion two years ago in United States v. Pinson (10th Cir. 2008) (McConnell, J.) (pp. 27-29) (available here):
The Court affirmed a large upward variance for a mentally unbalanced defendant "though not without some qualms."
"[W]e take a moment to express our concern that courts use upward variances to increase the incarceration time for those who might pose a risk to the public because of their mental health problems. When a prisoner, soon to be released, may pose a substantial risk to himself or to others, the federal civil commitment statute provides a mechanism by which the facility director can further detain the inmate until this risk is ameliorated. . . . In order to impose such long-term commitment, the government must demonstrate at a hearing, by clear and convincing evidence, that the defendant poses a risk to the public because of a mental abnormality or personality disorder that is beyond his control. . . .
When a district court enhances a sentence because the defendant’s mental illness prevents him from controlling his actions, thereby increasing the risk he poses to the public, the district court in effect circumvents the civil commitment procedure and the procedural and substantive protections that go along with it: specifically, the clear and convincing evidence standard is replaced by the lower, preponderance of the evidence standard. This is particularly troubling given that the use of § 4246 provides for evaluation of the defendant’s risk after he has received treatment during incarceration; the prediction of the risk the defendant will pose to the public upon release, made before treatment, is far more imprecise. See Note, Booker, The Federal Sentencing Guidelines, And Violent Mentally Ill Offenders, 121 Harv. L. Rev. 1133, 1144 (2008) . . .
We stop short of prohibiting courts from considering whether a defendant’s mental illness justifies an upward variance because it causes him to pose a risk to the public. But we encourage sentencing courts to consider that civil commitment procedures will be available if the defendant continues to pose a considerable risk to the public after confinement, mitigating the need for a prophylactic upward variance."
August 5, 2010 at 11:54 AM | Permalink
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I think you meant "civil commITment."
Posted by: afm | Aug 5, 2010 12:31:50 PM
both of those opinions contain what i consider to be problematic elements.
in the 8th circuit case, the court justifies the max sentence and rejects the argument that civil commitment may be available later if the defendant meets that standard because the defendant may not qualify for civil commitment. the problem though, is that because the standards for civil commitment of sex offenders are much more lenient than the usual civil commitment standard, almost any violent sex offender can qualify. even beyond that, if civil commitment of sex offenders is treatment based rather than "continue to punish these people after their sentences are up based," that evaluation should be done as soon as possible in the process so that treatment can begin as soon as possible. on the state level, i know of at least one state that does conduct evalutions for the "risk of reofending for sex offenders and sentences ones with higher risk factors to more time. it seems very odd at the minimum to say that someone is sane through the trial, sentencing, serving their sentence, and only at release say they are too dangerous due to behavioral abnormalities to be release. the court's action appears to be more honest than giving a light sentence and then civil commitment - and its justifiable - it was a normal sentence within guideline range for the crime
the 10th circuit case is especially problematic in that the court simply ignores the discriminatory and equal protection aspects of raising sentences for someone based on mental illness. while the court noted due process concerns and did note some fairness issues, the court (and perhaps the defense attorney didn't think to raise it - since the defendant was so insane that he thought that representing himself was a good idea, its very likely this is the case) completely ignored the fact that raising sentences based on "dangerousness to the community" could operate to discriminate against the mentally ill. that is especially problematic given that the americans with disabilities act makes it illegal to discriminate against someone based on mental illness - beyond that, the 14th amendment makes it illegal to discriminate. effectively, the court said that despite the equal protection clause and despite the fact that the principles of the u.s. call for non-discrimination based on disability including mental illness, its perfectly okay to discriminate in criminal sentencing. its really a horrible decision by the 10th circuit and their word games are almost indefensible. that case showed exactly the traits that they claim to be bad - yet they still affirmed the conviction - the defendant in that case received a sentence more than twice what a person without a mental illness would have gotten. the court signs off on discrimination against hte mentally ill which would never be tolerated if against a different population - and ultimately encourages other courts to do the same. actions speak louder than words - and in that case what they don't talk about (the discriminatory aspect of the court holding) speaks even louder.
Posted by: virginia | Aug 6, 2010 6:20:36 PM
Did you know that treatment for former offenders has been proven effective and that most sex offenders never commit another crime? Did you also know that making it more difficult for former offender to reintegrate into society increases recidivism?
Would you like more *FACTS* ? If so, look at this website and please sign our petition:
CanadiansForAJustSociety [dot] webs [dot] com
Posted by: Steven Yoon | Aug 17, 2010 12:41:52 PM