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January 8, 2010

First Circuit upholds sex offender civil commitment part of Adam Walsh Act

This coming Monday morning, the Supreme Court is scheduled to hear oral arguments in United States v. Comstock (08-1224), in which the US sought cert to answer this question:

Whether Congress had the constitutional authority to enact 18 U.S.C. 4248, which authorizes court-ordered civil commitment by the federal government of (1) "sexually dangerous" persons who are already in the custody of the Bureau of Prisons, but who are coming to the end of their federal prison sentences, and (2) "sexually dangerous" persons who are in the custody of the Attorney General because they have been found mentally incompetent to stand trial.

Perhaps not coincidentally, the First Circuit has issued an opinion today in US v. Volungus, No. 09-1596 (1st Cir. Jan. 10, 2010) (available here), which seeks to answer this question.  Here is how the Volungus opinion starts:

We are called upon to determine the constitutionality of a provision of the Adam Walsh Child Protection and Safety Act (Walsh Act), Pub. L. No. 109-248, 120 Stat. 587 (2006), a recently enacted federal law that provides in pertinent part for the civil commitment of a sexually dangerous person already in federal criminal custody in lieu of that person's release upon service of his full sentence. Id. § 320, 120 Stat. at 619-22, codified at 18 U.S.C. §§ 4241, 4247-4248 (which we shall call, as a shorthand, section 4248). The district court concluded that Congress lacked constitutional authority to enact this civil commitment provision and, therefore, dismissed the government's petition to enforce it against the respondent, John Charles Volungus. United States v. Volungus, 599 F. Supp. 2d 68, 77-78, 80 (D. Mass. 2009).  The government appeals from that ruling.

After careful consideration, we hold that the civil commitment provision comes within the legitimate scope of congressional power conferred by the Necessary and Proper Clause of the federal Constitution. Consequently, we reverse the decision below and remand for further proceedings.

January 8, 2010 at 04:04 PM | Permalink


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Got to love it. Even as another criminal court upholds an ILLEGAL law...Another State Supreme Court is ruling the retroactive application of sex offender rules is ILLEGAL and UNCONSTUTINAL.


Ind. Decisions - Supreme Court decides another ex post facto challenge to sex offender law requirements
In Gary M. Hevner v. State, filed late this afternoon, a 6-page, 5-0 opinion, the Supreme Court concludes: "Because of the ex post facto provisions of the Indiana Constitution, the trial court may not order Hevner to register as a sex offender," reversing the trial court decision, which had been affirmed by this March 31, 2009 NFP Court of Appeals opinion.

In today's opinion, Justice Rucker writes:

We consider a claim that the Indiana Sex Offender Registration Act (“the Act”) constitutes retroactive punishment forbidden by the Ex Post Facto Clause contained in the Indiana Constitution because it requires the defendant to register as a sex offender, when the Act contained no such requirement at the time the defendant committed the triggering offense. * * *

At the time Hevner committed his crime, a person convicted for the first time of possessing child pornography was not considered a sex offender and thus was not required to register as such. * * * While Hevner was awaiting trial in 2006, the Legislature repealed Ind. Code § 5-2-12-4 and recodified the statute at Ind. Code § 11-8-8-4.5. See Pub. L. No. 140-2006, §§ 13, 41. Effective July 1, 2007 – before Hevner was convicted but after he was charged – the legislature amended the statute to require anyone convicted of possession of child pornography to register as a sex offender regardless of whether the person had accumulated a prior unrelated conviction. * * * Thus, at the time of his conviction, Hevner was required to register as a sex offender. * * *

As a general rule, a court must sentence a defendant under the statute in effect on the date the defendant committed the offense. Biddinger v. State, 868 N.E.2d 407, 411 n.6 (Ind. 2007). Between October and November of 2005, when Hevner committed the crime of possession of child pornography, only persons convicted of a prior possession offense were required to register as sex offenders under the Act. By the time of Hevner‟s trial and sentencing the Legislature had amended the Act making it applicable to first time offenders. As applied to Hevner the Act violates the prohibition on ex post facto laws contained in the Indiana Constitution because it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when the crime was committed. * * *

Because of the ex post facto provisions of the Indiana Constitution, the trial court may not order Hevner to register as a sex offender. And for the same reasons we discussed in State v. Pollard, Hevner is not subject to prosecution for violation of Ind. Code § 35-42-4-11, the residency restriction statute. * * *
However, having been convicted of possession of child pornography, a sex offense at the time Hevner committed his crime, he is subject to conditions of probation that “have a reasonable relationship to the treatment of the accused and the protection of the public.” Hale v. State, 888 N.E.2d 314, 319 (Ind. Ct. App. 2008), trans. denied. We cannot conclude that prohibiting Hevner from residing within 1,000 feet of school property is an unreasonable condition.

We reverse that portion of the trial court‟s sentencing order directing Hevner to register as a sex offender. This cause is remanded for further proceedings.

Posted by: rodsmith3510 | Jan 8, 2010 9:14:27 PM

First Circuit. First in news and last in the National League. What crap. Some person is sentenced to a crime of a determinate sentence and then some state or federal court can give the guy more time base on....? What? Likelihood of recidivism?. What BS is going on here? All criminals are likely to commit some other crime. Like all politicians are likely to lie about their sexual proclivities.

Posted by: mpb | Jan 10, 2010 6:19:01 PM

I'm a paralegal student online with Everest College and studying to be an attorney. My interest is in case, write it and apply the law, criminal and civil.

Posted by: Kermit Bricker | Apr 21, 2010 10:32:45 AM

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