David Beneman cites his fellow defender Miriam Conrad for the following useful information about BOP and sex offender treatment:
Sexually Dangerous Persons
BOP has a new tool authorized this summer as part of the Adam Walsh Act. BOP may now "certify" inmates as "sexually dangerous persons" (SDP). Certification can occur prior to sentencing, or at any time after the commencement of probation or supervised release and prior to the completion of the sentence. We will all need to pay attention to the risk of this new federal SDP designation, 18 USC 4248.
SDP Commitment
In the past couple of weeks, Defenders have learned that just prior to release, clients are being transferred to the Butner, NC Federal Medical Center and certified as SDPs, based on a caseworker's review of records. We are told that of 500 cases reviewed to date, proceedings have been initiated in 11.
A "sexually dangerous person" is one who "has engaged or attempted to engage in sexually violent conduct or child molestation and . . . suffers from a serious mental illness, abnormality or disorder resulting in serious difficulty refraining from sexually violent conduct or child molestation if released." 18 U.S.C. 4247. The definition was added to the existing definitional statue in the in chapter 313 of title 18 which addresses mental disease or defect.
The Attorney General and/or the Director of the Bureau of Prisons may certify that a person is a "sexually dangerous person," 18 U.S.C. 4248, "[a]t any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant, or at any time after the commencement of probation or supervised release and prior to the completion of the sentence." 18 U.S.C. 4241(a). Note that under amended 18 U.S.C. § 3583(k), those convicted of violating 18 U.S.C. § 1201 (kidnapping) involving a minor, or of any offense under 18 U.S.C. §§ 1591(sexual trafficking of children), 2241 (aggravated sexual abuse), 2242 (sexual abuse), 2243 (sexual abuse of a minor), 2244 abusive sexual contact), 2245 (sexual abuse resulting in death), 2250 (failure to register as a sex offender), 2251 (sexual exploitation of children), 2251A (selling or buying children), 2252 (activities related to material involving sexual exploitation of minors), 2252A (child pornography), 2260 (production of child pornography), must be placed on supervised release for a mandatory minimum term of 5 years with a maximum of life.
We can expect review by BOP of anything in the PSR. The review may include psychological evaluations submitted by the defendant or ordered by the court for sentencing purposes, previous state or federal sex offenses, and anything in the BOP record, including admissions and other evidence gathered in the course of sex offender treatment or management.
At some point after a certificate has been filed, the person is entitled to an adversarial hearing with the right to counsel, the opportunity to testify, to present evidence, subpoena witnesses, and confront and cross-examine witnesses. 18 U.S.C. §4246. CJA counsel or a Federal Defender will be appointed for those who qualify. The statute does not contain a timetable for a hearing and the person remains in the custody of the Attorney General or the Bureau of Prisons pending resolution. 18 U.S.C. 4247(d), 4248(a)-(b).
How to Advise Clients
At a minimum, we need to advise clients charged with sex offenses or with any hint of sexual impropriety in their record that anything they disclose in the sentencing process, or in sex offender or substance abuse "treatment," or in any conversation with a BOP caseworker or counselor may be used to commit them, possibly for life.
Sex offender treatment is voluntary. Sex offender management appears to be BOP's choice. If a client volunteers for treatment, or is placed in a sex offender management program, then refuses to talk, BOP will assume the worst. If they talk, they run a risk of talking themselves into a 4248 commitment. Based on the numbers so far, BOP has sought commitments in roughly 2.5 % of cases reviewed. BOP retains the burden of proving that the client is a "sexually dangerous person", BUT the client remains detained pending that hearing and determination. Currently we expect the less BOP has to work with the better. Until we see how widespread SDP commitments are and how the courts will react to these cases, volunteering for treatment carries a real risk. In a management program trying to remain silent may be nearly impossible depending on the context and the client.
We need to be advising clients charged with sex offenses or with any hint of sexual impropriety in their record that anything they disclose in the sentencing process, or in sex offender or substance abuse "treatment," or anything they might say to a BOP counselor or caseworker may (will) be used against them for a possible SDP civil commitment under 18 U.S.C. 4248. Advise clients on the risks of participating in any voluntary treatment program, the choice not to participate, the option of remaining silent in any mandatory management program, and the remind them of the 5th Amendment rights regarding sexual misconduct or thoughts during any interaction or conversations with BOP personnel. “While the Fifth Amendment does not generally attach in civil commitment proceedings, it may nonetheless apply where a truthful answer might incriminate a defendant in future criminal proceedings or increase his punishment”.
See Allen v. Illinois, 478 U.S.364, 372, 106 S. Ct.2988, 92 L. Ed. 2d 296 (1986); Estelle v. Smith, 451 U.S.454, 101 S. Ct.1866, 68 L. Ed. 2d 359 (1981). This remains an evolving area and we need to keep a vigilant eye.
For some ideas, see the cases addressing sex offender treatment which in the past often including use of polygraphs, as a condition of supervised release. These cases look at some of the 5th Amendment issues. Several circuits have endorsed polygraph testing as part of sex offender treatment for those on supervised release. · United States v. Lee, 315 F.3d 206, 213 (3d Cir. 2003
US v. York, 357 F.3d 14, 22 (1st Cir. 2004)
United States v. Dotson, 324 F.3d 256, 261 (4th Cir. 2003)
United States v. Zinn, 321 F.3d 1084, 1089-90 (11th Cir. 2003)(a polygraph "may provide an added incentive for the offender to furnish truthful testimony to the probation officer. Such purpose would assist the officer in his or her supervision and monitoring of the appellant.)
A case that stands for stronger 5th amendment rights is United States v. Antelope, 395 F.3d 1128 (9th Cir. 2005)( defendant who had been incarcerated for a refusal to answer questions that he deemed incriminating while on supervised release could raise a Fifth Amendment challenge to the revocation of that release.) the case notes the difference between admitting conduct to which you have been convicted vs. uncharged conduct.
On penile plethysmograph testing as a condition of supervised release see United States v. Weber, 451 F.3d 552 (9th Cir. 2006)(the particularly significant liberty interest in being free from plethysmograph testing requires a thorough, on-the-record inquiry into whether the degree of intrusion caused by such testing is reasonably necessary 'to accomplish one or more of the factors listed in § 3583(d)(1)' and 'involves no greater deprivation of liberty than is reasonably necessary, given the available alternatives.)
Sex Offender Treatment and Management Programs
BOP currently has one sex offender treatment program (SOTP) at Butner with 112 beds, and a sex offender management program (SOMP) at Devens with 400 participants. In the Adam Walsh Act, Congress directed BOP to expand these programs. See 18 U.S.C. §3621(f)(1). According to Dr. Andres Hernandez, the Director of Sex Offender Treatment for BOP, the BOP is "actively working to expand sex offender services by implementing SOMPs and SOTPs, as well as a forensic evaluation service." See Statement of Andres E. Hernandez at http://energycommerce.house.gov/108/Hearings/09262006hearing2039/Hernandez.pdf
BOP counts as "sex offenders" those serving a sentence for a sex offense and those with any sex offense in their history. This regulation has been struck down for including past offenses, but it remains on the books and BOP continues to follow it. See Fox v. Lappin, 409 F. Supp.2d 79 (D. Mass. 2006) (enjoining BOP from notifying local jurisdiction under section 4042(c) of release of prisoner serving federal felon in possession sentence based on 1981 state sex offense); Simmons v. Nash, 361 F.Supp.2d 452 (D.N.J. 2005) (enjoining BOP from notifying local jurisdiction under section 4042(c) of release of prisoner serving federal drug sentence based on 1983 state offense of attempting to promote adult prostitution).
See
US v. Whitney, 2006 U.S.Dist. LEXIS 74524 (D. Mass.Oct. 26, 2006)(Civil commitment sought for drug defendant with a juvenile history of sexual assaults).
Inmates participating in the SOTP do so on a voluntary basis, are subjected to polygraph exams and penile plethysmography, must accept responsibility for their "crimes," and are either required or encouraged to admit previously undetected offenses and bad thoughts. BOP keeps a record of all of this. Dr. Hernandez used this information in studies, which he reported to treatment professionals and to Congress, finding that while only a small percentage of Internet offenders had known contact offenses at the time of sentencing, over 80% disclosed contact offenses during "treatment." Dr. Hernandez concluded, "these Internet child pornographers are far more dangerous to society than we previously thought." See Hernandez Statement.
Sex offender management involves "risk assessment" and "management." This apparently is not voluntary. It is a way to segregate sex offenders and control what they do, say and read. It may also involve disclosure of undetected offenses and bad thoughts.
Dr. Hernandez' testimony seems to push for a BOP assumption that regardless of what our clients have actually been convicted of, or admitted, most “sex crime” related clients are dangerous, serial hands-on sex abusers. For example, Dr. Hernandez says, “Eighty-five percent of inmates [convicted of possessing or distributing child pornography] were in fact contact sexual offenders, compared to only 26 percent known at the time of sentencing.” His message; in reality the “lookers” are really “touchers” so they are dangerous. As for his facts, those come from the self confessions of those he and the BOP work with.
