Sex offender exceptionalism and preventive detention.

Author:Yung, Corey Rayburn
Position:Symposium: Preventive Detention

    At the end of his thirty-seven-month prison sentence for possessing child pornography, Graydon Earl Comstock, Jr. expected to be released back into society. However, the federal government had other plans. It decided to test its newly authorized power to detain indefinitely persons designated as "sexually dangerous" who were already in federal custody. (1) Comstock's lawyers acted quickly to block the Government's efforts to essentially add a second period of incarceration to Comstock's prison term. (2) A federal district judge held that the new statute was beyond the scope of the Constitution's enumerated powers and the established procedures for determining Comstock's future dangerousness were constitutionally inadequate. (3)

    The Fourth Circuit reviewed the Government's appeal and unanimously affirmed the district court's judgment concerning the scope of federal power (while not reaching the due process question),q During this entire period of time, Comstock remained in federal prison even though his sentence was completed and not a single judge who had reviewed the case had found the government was constitutionally authorized to detain him via the new civil commitment statute. While the United States Attorneys waited for the Supreme Court to issue a writ of certiorari to hear the case, they sought a special order from the Court. (5) The Government's lawyers filed a motion with Chief Justice Roberts, while neither notifying the defense lawyers nor offering them an opportunity to be present, requesting that the Chief Justice prevent Comstock and other persons targeted for commitment from being released from federal custody. (6) With the stroke of a pen, Chief Justice Roberts ordered that Comstock continue to be detained until the Court reached a decision on the certiorari petition. (7)

    Months later, the Court decided to hear the case, (8) and all the while Comstock remained in a federal prison cell based upon the ruling of a single Justice who had only heard arguments from federal government attorneys before deciding to order Comstock's continued detention. By the time the Supreme Court issued its opinion in the case upholding the civil commitment statute, Comstock had spent approximately three and one-half years in federal prison beyond the period for which he was sentenced. (9) When the Fourth Circuit reversed the remaining grounds identified by the district court as constitutionally barfing Comstock's commitment to a federal sex offender facility, Comstock had spent four years in prison for which he had neither had a trial nor been sentenced. (10) The original sentence for possession of child pornography for which he was imprisoned was less than the time he served in prison pending the outcome of the Government's case to institutionalize him through its new civil commitment law. Now, if the experience with similar state laws is any guide, (11) Comstock will likely spend the rest of his life in another government detention facility.

    Comstock's long-term incarceration after his sentence expired is a microcosm of the general indifference displayed to the use of preventive detention for sex offenders. Although Comstock's case has become well-known for its importance in the continuing development of Court doctrine relating to the scope of federal power, (12) his individual story was virtually omitted from coverage of the case. Indeed, in all of the opinions by the Supreme Court Justices reviewing Comstock's case, no Justice even mentioned Comstock's name or the history of his case. (13) Comstock will likely be remembered as the man whose case shaped the doctrine that would eventually determine the constitutionality of President Obama's health care reform initiative, (14) but his individual fate will not even be a footnote in that history. And, unlike the detainees held as part of the War on Terror, the tale of Comstock's long term preventive detention based upon a single government actor simply has not been a concern of the public, media, scholars, and activists. Given the scant attention paid to Comstock, others without the virtue of a Supreme Court case may be similarly held with no hint of public scrutiny.

    The emerging war on sex offenders, as typical of wartime mentality, has been marked by substantial deviations from established legal doctrine, constitutional protections, and the rule of law. (15) Because of a high level of panic among the general population about sex offenders, (16) the use of preventive detention for sex offenders like Comstock has received little attention or scrutiny. While the population of the detention facility at Guantanamo Bay has slowly decreased, (17) the number of persons in state and federal detention centers dedicated to sex offenders has continued to climb. (18) With the courts largely rubberstamping the federal civil commitment of sex offenders allowed under the Adam Walsh Child Protection and Safety Act (AWA) in 2006, (19) the path has been cleared for an enormous expansion of sex offender detention. (20)

    Because of the limited attention given to these detentions, they represent a particularly dire threat to American liberties. (21) The normal societal and institutional checks against government abuse embodied in the media, public, Constitution, and courts have essentially been removed. Consequently, the various government agencies in the United States have virtually unfettered power to preventively detain sex offenders. And because of the expansive holdings of courts in these cases, the doctrinal precedents being set afford governments at all levels the ability to apply similar schemes to any vulnerable population in the United States. (22)

    Part II of this Article details the growing use of preventive detention of sex offenders at the state and federal levels and the statutory structure that has made such detentions possible. Part III places this emerging trend within the larger concerns related to the use of preventive detention in America. Part IV discusses how the shape of constitutional doctrines related to preventive detention has been fundamentally altered in a way that greatly expands the possibility of the future applications of such detention schemes. The Article concludes with some thoughts about how sex offender issues in this area relate to the overall topic of this symposium.


    Based upon the popular, but largely incorrect, belief that sex offenders have an abnormally high risk of recidivism, sex offenders represent an ideal population to target for preventive detention. (23) Indeed, if one believes that it is only a matter of time before a child molester will rape another child, it makes perfect sense to detain them indefinitely. (24) Further, if Americans think that the prototypical child molester is lurking in the bushes waiting to attack children, and is not a friend or family member, then focusing criminal justice resources on those already convicted of such crimes logically follows. These particular myths of extremely high recidivism rates and "stranger danger" have largely served to support various restrictions on sex offenders as well as substantiate court opinions upholding those restrictions. (25)

    Americans overwhelmingly believe that sex offenders are mentally deranged and that the risk of post-release recidivism is very high. (26) As one church leader stated in deciding to exclude sex offenders from his congregation: "[I]t would probably be easier for a congregation to accept a former murderer." (27) Courts have internalized this popular opinion in their decisionmaking. In Smith v. Doe, the Supreme Court wrote that Alaska's registration statute helped prevent the "frightening and high" risk of recidivism by sex offenders. (28) At the oral argument reviewing Kansas's sexual predator law, Chief Justice Rehnquist seemingly rejected the longstanding model of the American criminal justice system when he rhetorically asked, "So what's the State supposed to do, just wait till he goes out and does it again?" (29) The Eighth Circuit, in Doe v. Miller, relied on the unsubstantiated finding that sex offender recidivism "is between 20 and 25 percent." (30) The Fifth Circuit upheld special conditions on supervised release in United States v. Emerson based upon a U.S. probations officer's testimony that, in his "professional experience.., sex offenders ... have a recidivism rate of approximately 70%." (31)

    However, the best available evidence does not support those beliefs. The Department of Justice examined the criminal records of the 9,691 sex offenders, rapists, child molesters, statutory rapists, and those who committed sexual assault released in fifteen states in 1994. (32) The study found that sex offender recidivism among that population was far lower than believed and in line with other violent offenders. (33) The recidivism rate was only 5.3% for the critical first three years after release. (34) Further, the study found that the sex offender recidivism rate was almost 37% less than the non-sex offender population for all crimes during that same time frame. (35) The Bureau of Justice Statistics has found that sex offenders, as a group, have among the lowest recidivism rates of the various criminal populations studied. (36) The general recidivism studies should be understood with a significant caveat: because of underreporting, it is difficult to know the validity of these studies simply because a record of reoffense may never be created. (37) However, studies that focus on comparisons between stranger and known offenders do not suffer from the same deficiency.

    Among those studies, a clear pattern emerges that the inordinate focus on past offenders is misguided. Although the fear of strangers has been the hallmark of sex offenders, 90% of child molestations are committed by family members or acquaintances and friends of the family. (38) As Eric Janus has noted, "Sexual predators are...

To continue reading