Only as strong as the missing link: the unsteady constitutionality of the Adam Walsh Act.

• Author: Burke, Elizabeth

"The federal government's power to punish crimes has drastically expanded in the past few decades....The tension between the federal government's law enforcement authority and its limited power is apparent in united States v. Comstock. This case is about how far the Constitution will allow the federal government to go in preventing crime." (1)

1. INTRODUCTION

   "We indeed live in a vulgar age." (2) Sex crimes against children, widely reviled and condemned by American society, occur with tragic frequency and have devastating, long-lasting effects on the victimized children. (3) Despite extensive legislation criminalizing and prescribing harsh penalties for the sexual abuse of minors, federal convictions for sex offenses involving children have increased sharply over the past two decades. (4) During the 1990s and early 2000s, several extraordinarily brutal sex crimes involving children captured the nation's attention. (5) These crimes received an enormous amount of media coverage and contributed to a public clamor for harsher penalties for child molesters. (6)

   In response to the public outcry, Congress enacted the Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act or the Act) "[t]o protect children from sexual exploitation and violent crime, to prevent child abuse and child pornography, to promote Internet safety, and to honor the memory of Adam Walsh and other child crime victims." (7) The Act, among other things, creates a national sex-offender registry, enhances existing penalties for federal sex offenses involving children, authorizes grants for community-safety programs, and establishes the Jimmy Ryce Civil Commitment Program (the civil-commitment provision) for sexually dangerous offenders, a hitherto unprecedented federal regulatory scheme. (8)

   The civil-commitment provision of the Adam Walsh Act authorizes the United States to seek the indefinite detention of any individual in its custody deemed to be "sexually dangerous to others." (9) To initiate a civil-commitment proceeding, the United States Attorney General or the Director of the Bureau of Prisons must file a certificate with the district court certifying a prisoner or detainee as sexually dangerous. (10) The filing stays the prisoner's release pending a hearing regarding the individual's status. (11) At the hearing, the government must prove by clear and convincing evidence that the individual is a sexually dangerous person within the meaning of the statute. (12) In order to meet its burden of proof, the government must establish three separate elements: that the defendant has, in the past, "engaged or attempted to engage in sexually violent conduct or child molestation"; that the defendant "suffers from a serious mental illness, abnormality, or disorder"; and that, as a result of said mental illness, abnormality, or disorder, the defendant "would have serious difficulty in refraining from sexually violent conduct or child molestation if released." (13) If the government succeeds, the defendant will be committed to the custody of the Attorney General, who will then endeavor to release the prisoner to the custody of an appropriate state official. (14) If no state will accept the individual into its custody, he will be committed to a federal facility. (15) once in federal custody, the statute sets forth a procedure by which the committed person may seek release once his condition is such that he is no longer sexually dangerous. (16)

   The civil-commitment provision of the Adam Walsh Act incited a flurry of litigation in the federal courts regarding Congress's power to enact the provision and the manner of its application. (17) While the United States has defended the Act as an appropriate exercise of Congress's power under the Necessary and Proper Clause, those challenging the Act have sharply criticized such reasoning, arguing that rationalization of the Act amounts to a piling of inferences, and thus betrays the traditional test for constitutionality under the Necessary and Proper Clause. (18) Those challenging the Adam Walsh Act have also argued that the civil-commitment provision denies defendants due process and equal protection of laws under the Fifth Amendment. (19) The Supreme Court granted certiorari to resolve the controversy in the circuit courts and held that the Act was a constitutional exercise of Congress's power under the Necessary and Proper Clause. (20) The Court refused to hear individual rights challenges to the Act, inviting the petitioners to raise due process challenges on remand. (21) The Fourth Circuit, on remand, concluded that the Adam Walsh Act did not deny defendants due process of law, a result not in complete harmony with other courts' conclusions. (22)

   This Note will examine constitutional challenges to the Adam Walsh Act, analyze the history of relevant jurisprudence, discuss the flaws in the Supreme Court's opinion, and offer recommendations for legislative modification. (23) Parts II.A and II.B will discuss the history of sexually violent person (SVP) laws at the state and federal level. (24) Part II.C will review the various constitutional challenges brought against the Act. (25) In Part II.D, this Note will discuss the Supreme Court's reasoning in United States v. Comstock (26) Part III.A will analyze the weakness of the Court's opinion in Comstock, and suggest that the Court's analysis of the Adam Walsh Act under the Necessary and Proper Clause is, at best, tenuous. (27) Part III.B will offer alternative arguments for constitutional justification of the Act under the Commerce Clause. (28) Part III.C offers recommendations for legislative changes to avoid additional litigation regarding the Act's due process guarantees. (29)

2. HISTORY

   1. State Civil-Commitment Statutes: An Established Tradition

      Determining the most effective way to draft civil-commitment legislation has frustrated state legislatures for over a century. (30) The first state laws authorizing indefinite civil commitment for sexual offenders emerged during the first half of the twentieth century. (31) In several different states, individuals subject to proceedings under these laws brought suit, claiming the laws violated their rights to equal protection and due process under the Fourteenth Amendment. (32) States responded by arguing that the enactment of civil-commitment provisions was justified, citing both the states' parens patriae power--the power of a state to protect those unable to care for themselves--and the states' general police power to protect the community as a whole. (33)

      In Addington v. Texas (24) the Supreme Court laid to rest many constitutional challenges to the various state civil-commitment laws. (35) Responding to the petitioner's due process claims, the Court ruled that the clear and convincing standard of proof utilized by most state civil-commitment statutes comported with constitutional due process requirements. (36) Despite this decisive victory for proponents of SVP laws, the laws eventually fell out of favor due to sharp criticism from the Group for the Advancement of Psychiatry and the American Bar Association's Criminal Justice Mental Health Standards, in addition to research demonstrating the ineffectiveness of then-existing treatment programs. (37)

      Subsequent nationwide changes in sentencing policies resulted in a trend toward long, determinate sentences for sex offenders, a radical change from the previous policy encouraging short, indeterminate sentences. (38) In an effort to impose uniformity and equity on sex-offender sentencing, courts sentenced sex offenders to the average prison sentence accompanying the same crime imposed during the indeterminate sentencing regime. (39) However, this policy resulted in shorter net sentences, leading to the premature release of mentally ill offenders who presented a high risk of recidivism. (40)

      In 1990, Washington passed the first modern SVP law in response to a particularly brutal crime committed by a recently released sex offender and rising public concern regarding sex offender recidivism rates. (41) Subsequently, nineteen other states and the District of Columbia enacted civil-commitment provisions for sexually dangerous offenders. (42) The reemergence of SVP laws, however, has not been without challenge; the Supreme Court again considered the constitutionality of sexually violent predator civil-commitment statutes in Kansas v. Hendricks (42) and again in Kansas v. Crane. (44)

      In Hendricks, an inmate nearing the end of his prison sentence challenged the constitutionality of the Kansas Sexually Violent Predator Act's civil-commitment provision. (45) Hendricks alleged the statute's definitions were ambiguous, which caused inconsistent application of the law, and therefore violated his constitutional right to due process. (46) Hendricks also alleged the Kansas Sexually Violent Predator Act violated the Double Jeopardy Clause and the Ex Post Facto Clause of the United States Constitution. (47) The Court disagreed, holding that the statute complied with due process requirements because it required a finding that the subject's existing mental abnormality was linked to the high likelihood of future dangerousness. (48) The Court rejected Hendricks' Double Jeopardy claim, reasoning that the legislature intended the statute to operate as a civil measure because the statute's purpose was neither retribution nor deterrence. (49) Accordingly, because the purpose of the Act was not punishment, the Court concluded that the statute did not implicate the Ex Post Facto Clause. (50) Subsequently, in Crane, the Court clarified its holding in Hendricks, ruling that, in order to comport with constitutional due process requirements, the subject of the proceedings did not have to have a complete and total lack of control over his behavior, but required reviewing courts to conduct some type of control inquiry. (51) The Court's decisions in Crane, Hendricks, and Addington...