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4 August 2007
[Federal Register: August 3, 2007 (Volume 72, Number 149)]
[Proposed Rules]
[Page 43205-43209]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03au07-21]
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DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Part 549
[BOP Docket No. 1145]
RIN 1120-AB45
Civil Commitment of a Sexually Dangerous Person
AGENCY: Bureau of Prisons, Justice.
ACTION: Proposed rule.
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SUMMARY: In this proposed rule, the Bureau of Prisons (Bureau) provides
definitions and standards relating to the certification of persons as
sexually dangerous for the purpose of civil commitment, as authorized
by The Adam Walsh Child Protection and Safety Act of 2006 (Pub. L. 109-
248) (Walsh Act), enacted July 27, 2006, which amended title 18 of the
United States Code, Chapter 313.
DATES: Comments are due by October 2, 2007.
ADDRESSES: Submit comments to the Rules Unit, Office of General
Counsel, Bureau of Prisons, 320 First Street, NW., Washington, DC
20534. You may view an electronic version of this rule at http://www.regulations.gov.
You may also comment via the Internet to the Bureau at BOPRULES@BOP.GOV. or by using the http://www.regulations.gov
comment form for this regulation. When submitting comments
electronically you must include the BOP Docket No. in the subject box.
FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General
Counsel, Bureau of Prisons, phone (202) 307-2105.
SUPPLEMENTARY INFORMATION:
Posting of Public Comments
Please note that all comments received are considered part of the
public record and made available for public inspection online at http://www.regulations.gov.
Such information includes personal identifying
information (such as your name, address, etc.) voluntarily submitted by
the commenter.
If you want to submit personal identifying information (such as
your name, address, etc.) as part of your comment, but do not want it
to be posted online, you must include the phrase ``PERSONAL IDENTIFYING
INFORMATION'' in the first paragraph of your comment. You must also
locate all the personal identifying information you do not want posted
online in the first paragraph of your comment and identify what
information you want redacted.
If you want to submit confidential business information as part of
your comment but do not want it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment. You must also prominently identify confidential
business information to be redacted within the comment. If a comment
has so much confidential business information that it cannot be
effectively redacted, all or part of that comment may not be posted on
http://www.regulations.gov.
Personal identifying information identified and located as set
forth above will be placed in the agency's public docket file, but not
posted online. Confidential business information identified and located
as set forth above will not be placed in the public docket file. If you
wish to inspect the agency's public docket file in person by
appointment, please see the FOR FURTHER INFORMATION paragraph.
This proposed rule provides definitions and standards for review by
the Bureau of persons in its custody for certification to federal
district courts as ``sexually dangerous persons,'' as authorized by
title 18 U.S.C. Chapter 313. The Adam Walsh Child Protection and Safety
Act of 2006 (Pub. L. 109-248) (Walsh Act), enacted July 27, 2006,
amended title 18 of the United States Code, Chapter 313, to add a new
section 4248. Section 4248 authorizes the Bureau to certify to federal
district courts that certain persons are ``sexually dangerous persons''
for whom civil commitment is required. Certification stays the release
of the person and initiates district court proceedings pursuant to 18
U.S.C. 4248(a), (b), (c), and (d).
The filing of the certificate by the Bureau stays the release of
the person; however, the final determination that a person is ``a
sexually dangerous person'' subject to civil commitment is made by the
court after proceedings held pursuant to 18 U.S.C. 4248(b) and (c),
which make applicable the procedures set forth in 18 U.S.C. 4247(b),
(c), and (d). As provided in Sec. 4248(b), the court may order that a
psychiatric or psychological examination of the person be conducted,
and that a psychiatric or psychological report be filed with the court.
Pursuant to Sec. 4248(c), a hearing shall be conducted in which the
person shall be represented by counsel, and be afforded an opportunity
to testify, present evidence, subpoena witnesses on his or her behalf,
and confront and cross-examine witnesses who appear at the hearing. If
the court finds by clear and convincing evidence that the person is a
sexually dangerous person, the court shall commit him/her to the
custody of the Attorney General as detailed in Sec. 4248(d).
The Walsh Act also amended 18 U.S.C. 4247 to include a definition
of ``sexually dangerous person.'' The amended statute defines
``sexually dangerous person'' as ``a person who has engaged or
attempted to engage in sexually violent conduct or child molestation
and who is sexually dangerous to others.'' The amended statute defines
``sexually dangerous to others'' to mean that a person ``suffers from a
serious mental illness, abnormality, or disorder as a result of which
he would have serious difficulty in refraining from sexually violent
conduct or child molestation if released.''
The statute does not define the terms ``sexually violent conduct''
or ``child molestation'' and the Bureau proposes these regulations to
interpret them. Although the Bureau has, in part, looked to federal
criminal statutes for language to assist in defining these terms, we do
not rely upon the provisions themselves, case law interpretations of
them, or other related statutory history. Rather, the Bureau's
[[Page 43206]]
primary intent is to create definitions of terms that are
comprehensive, easily understood, familiar to the general public, and
readily applicable by Bureau staff.
In addition to providing definitions for ``sexually violent
conduct'' and ``child molestation,'' these regulations clarify the
process by which the Bureau will determine whether a person in its
custody has engaged or attempted to engage in sexually violent conduct
or child molestation, and how the Bureau will assess whether such a
person would be sexually dangerous to others if released.
Section 549.70 Purpose and Application
This section explains that the subpart provides definitions and
standards for Bureau review of persons for certification to federal
district courts as ``sexually dangerous persons,'' as authorized by
title 18 U.S.C. Chapter 313.
The section further provides that the subpart applies to persons in
Bureau custody, including those: (1) Under a term of imprisonment; (2)
for whom all criminal charges have been dismissed solely for reasons
relating to the person's mental condition; or (3) in Bureau custody
pursuant to 18 U.S.C. 4241(d).
The Bureau accordingly may consider whether any person in its
custody should be certified as a sexually dangerous person. Persons the
Bureau will review for this purpose include those under a term of
imprisonment. Because these persons have been serving sentences in
Bureau custody, staff will have documentation including, but not
limited to, records and information generated in criminal or civil
proceedings, information provided by the United States Attorneys'
offices or other federal or non-federal authorities, any statements or
admissions by the person, and any available medical records.
Additionally, the Bureau will have had the opportunity to provide
mental health assessments, care, and treatment as indicated.
The Bureau will also review for certification persons in our
custody for whom all criminal charges have been dismissed solely for
reasons relating to the person's mental condition, or pursuant to 18
U.S.C. 4241(d). For these persons, Bureau staff will have had the
opportunity to provide forensic mental health studies, hospitalization,
and care and treatment pursuant to other provisions in 18 U.S.C.
Chapter 313. Additionally, Bureau staff will have had the opportunity
to work closely with the U.S. Attorneys' offices who can provide
evidence of conduct necessary for certification.
The final paragraph of this section states that the Bureau may
certify that a person is a sexually dangerous person when review under
this subpart establishes reasonable cause to believe that the person is
a sexually dangerous person. This specifies the degree of informational
or evidentiary support required for the Bureau to conclude that a
person is a sexually dangerous person, and hence that civil commitment
proceedings should be initiated under 18 U.S.C. 4248. The required
support for such a certification by the Bureau is information
sufficient to provide reasonable cause to believe that the person
satisfies the relevant statutory criteria as set forth in 18 U.S.C.
4247(a)(5)-(6). The Bureau will consider any available information in
its possession in determining whether there is a sufficient basis for a
sexually dangerous person certification, and may transfer the person to
a suitable facility for psychological examination in order to obtain
information for this purpose.
Section 549.71 Definition of ``Sexually Dangerous Person''
The Bureau defines this term as a person who has engaged or
attempted to engage in sexually violent conduct or child molestation
and has been assessed as sexually dangerous to others by a Bureau, or
Bureau-contracted, mental health professional. This definition derives
from 18 U.S.C. 4247(a)(5), as amended by the Walsh Act, which states
that the term `` `sexually dangerous person' means a person who has
engaged or attempted to engage in sexually violent conduct or child
molestation and who is sexually dangerous to others.''
Thus, the Bureau's regulations contemplate a two-step analysis to
determine whether a person is sexually dangerous. The first step
involves a review of the person's prior and current conduct to
determine whether there is evidence of sexually violent conduct or
child molestation. Relevant conduct may be any conduct of the person
for which evidence or information is available, and is not limited to
offenses for which he/she has been convicted or is presently
incarcerated, or for which he/she presently faces charges. The Bureau
will derive information regarding the person's conduct from his/her
Pre-Sentence Investigative Report, Statement of Reasons, Criminal
Judgment, and any other available source, as indicated in Sec.
549.70(c). This may include (but is not limited to) records and
information generated in criminal or civil proceedings, information
provided by the United States Attorneys' offices or other federal or
non-federal authorities, any statements or admissions by the person,
and any available medical records.
The second step of consideration involves an assessment by Bureau,
or Bureau-contracted, mental health professionals whether the person
will be sexually dangerous to others. This involves a psychiatric or
psychological analysis of the person to assess whether he/she suffers
from a serious mental illness, abnormality, or disorder as a result of
which he/she would have serious difficulty in refraining from sexually
violent conduct or child molestation if released. In this assessment as
well, the Bureau will consider any available information in its
possession, as indicated in Sec. Sec. 549.75 and 549.70(c). Documents
to be reviewed may include (but are not limited to) records and
information generated in criminal or civil proceedings, information
provided by the United States Attorneys' offices or other federal or
non-federal authorities, any statements or admissions by the person,
and any available medical records.
Whereas the first step of analysis is a review of the person's
conduct, the second step is an assessment of whether a mental condition
exists, and if so, how it will affect the person's ability to refrain
from sexually violent conduct or child molestation if released. If the
criteria for both steps are met, the person qualifies for certification
as a sexually dangerous person under the provisions of Sec. 4248(a).
Section 549.72 Definition of ``Sexually Violent Conduct''
The Bureau defines this term as any unlawful conduct of a sexual
nature with another person (``the victim'') that involved the following
(for each provision, we note the statutory derivation):
The use or threatened use of force against the victim;
Threatening or placing the victim in fear that the victim,
or any other person, will be harmed. This, and the previous bulleted
item's, language derive from 18 U.S.C. 2241(a) and 2242(1);
Rendering the victim unconscious and thereby engaging in
conduct of a sexual nature with the victim. This language derives from
18 U.S.C. 2241(b)(1);
Administering to the victim, by force or threat of force,
or without the knowledge or permission of the victim, a drug,
intoxicant, or other similar substance, and thereby substantially
[[Page 43207]]
impairing the ability of the victim to appraise or control conduct.
This language derives from 18 U.S.C. 2241(b)(2)(A); or
Engaging in such conduct with a victim who is incapable of
appraising the nature of the conduct, or physically or mentally
incapable of declining participation in, or communicating unwillingness
to engage in, that conduct. This language derives from 18 U.S.C.
2242(2).
Sexually violent conduct also includes engaging in any conduct of a
sexual nature with another person with knowledge of having tested
positive for the human immunodeficiency virus (HIV), or other
potentially life-threatening sexually-transmissible disease, without
the informed consent of the other person to be potentially exposed to
that sexually transmissible disease. This language acknowledges the
growing concerns surrounding potential transmission of sexual diseases
that have the potential to cause significant harm to the victim's
health or even endanger life. Several states have enacted laws which
criminalize such conduct, including Arkansas, California, Florida,
Georgia, Idaho, Illinois, Iowa, Louisiana, Michigan, Missouri, Nevada,
New Jersey, Oklahoma, South Carolina, South Dakota, Tennessee,
Virginia, and Washington. The Bureau, therefore, treats exposing
another to a potentially life-threatening sexually transmissible
disease without his or her informed consent as sexually dangerous. Such
conduct is similar in nature to the conduct of a poisoner, who uses no
overt force or threat against the victim, but is properly regarded as a
violent offender, in that he surreptitiously introduces an injurious
substance into another 's body.
The regulation does not require that the person be convicted of or
presently charged with the conduct in question. As provided in Sec.
549.70(c), all available evidence and information in Bureau possession
may be used in determining whether the person has engaged in such
conduct. For example, if a person is serving a term of imprisonment for
an offense under chapter 109A, 110, or 117 or Sec. 1591 of title 18 of
the United States Code, it may be clear from the definition of the
offense of conviction that he/she engaged or attempted to engage in
sexually violent conduct or child molestation. But even if the offense
for which the person is incarcerated is not facially sexual in nature,
the available evidence or information, such as records and information
generated in criminal or civil proceedings, information provided by the
United States Attorneys' offices or other federal or non-federal
authorities, any statements or admissions by the person, and any
available medical records, may show that he/she in fact engaged in such
conduct.
Moreover, even if no actual or attempted sexually violent conduct
or child molestation was involved in the offense for which the person
is presently incarcerated, there may be evidence or information
indicating that he/she engaged in such conduct in the past, such as
records or information generated in state criminal proceedings or civil
commitment proceedings, information provided by the United States
Attorneys' offices or other federal or non-federal authorities, any
statements or admissions by the person, and any available medical
records.
Likewise, for a person in the custody of the Bureau for reasons
other than serving a term of imprisonment, for whom charges were
dismissed based on his/her mental condition, or committed under 18
U.S.C. 4241(d) for incompetency to stand trial or undergo post-release
proceedings, information may be available from the U.S. Attorney's
office concerning pending or dismissed charges, which shows that the
person engaged or attempted to engage in sexually violent conduct or
child molestation, or information may be available that he/she engaged
or attempted to engage in such conduct at some time in the past.
Regardless of the source, any evidence of sexually violent conduct
or child molestation in which the person engaged or attempted to engage
may be considered--whether or not a conviction resulted, and whether or
not the person's present custody is based on the conduct in question--
and all available evidence and information may be taken into account in
determining whether the person engaged or attempted to engage in such
conduct.
In addition to being part of what must be found to have occurred in
the past--that the person engaged or attempted to engage in ``sexually
violent conduct'' or ``child molestation''--these terms figure into the
required assessment that the person is sexually dangerous to others,
since that is defined to mean that the person suffers from a serious
mental illness, abnormality, or disorder as a result of which he or she
would have ``serious difficulty in refraining from sexually violent
conduct or child molestation if released.'' 18 U.S.C. 4247(a)(6). The
same definitions of ``sexually violent conduct'' and ``child
molestation'' apply in the assessment of the person's ability to
refrain from such conduct if released.
Section 549.73 Definition of ``Child Molestation''
The Bureau defines this term as any unlawful conduct of a sexual
nature with, or sexual exploitation of, a person under the age of 18
years.
As with ``sexually violent conduct,'' a determination that a person
has engaged or attempted to engage in ``child molestation'' does not
require that the person be convicted of or presently charged with the
conduct in question, and all available evidence and information may be
used in determining whether the person has engaged or attempted to
engage in such conduct. The discussion above of Sec. 549.72 provides
more detailed discussion of these matters, and applies as well in
relation to ``child molestation.''
Section 549.74 Definition of ``Sexually Dangerous to Others''
The Bureau defines this term to mean that a person suffers from a
serious mental illness, abnormality, or disorder as a result of which
he or she would have serious difficulty in refraining from sexually
violent conduct or child molestation if released. This language derives
from 18 U.S.C. 4247(a)(6).
As provided in Sec. 549.70(c), the Bureau, or Bureau-contracted
mental health professionals, may use all available information about
conduct and mental condition to determine a person's sexual
dangerousness to others. For example, it is not necessary that the
person have been charged with or convicted of any criminal act related
to the conduct being considered--a limitation that could prevent a
mental health professional from considering probative and relevant
evidence such as long-established patterns of behavior, admissions of
criminal activity previously undetected by authorities, and statements
of intent to commit future sexually violent crimes or acts of child
molestation. By considering all conduct and other relevant information,
a mental health professional can conduct a full assessment of a
person's difficulty in refraining from committing a future sexually
violent crime or child molestation.
Section 549.75 Determining ``Serious Difficulty in Refraining From
Sexually Violent Conduct or Child Molestation if Released''
This section explains that, when assessing a person's ``serious
difficulty in refraining from sexually violent conduct or child
molestation if released,'' Bureau, or Bureau-contracted, mental health
professionals may consider, but are not limited to, any evidence:
[[Page 43208]]
Of the person's repeated contact, or attempted contact,
with one or more victims;
Of the person's denial of or inability to appreciate the
wrongfulness, harmfulness, or likely consequences of engaging in
sexually violent conduct or child molestation;
Established through interviewing and testing of the
person, or other risk assessment tools, that are relied upon by mental
health professionals;
Established by forensic indicators of inability to control
conduct, such as:
(1) Offending while under supervision,
(2) Engaging in offense(s) when likely to get caught,
(3) Statement(s) of intent to re-offend, or
(4) Admission of inability or difficulty to control behavior; or
Indicating successful completion of, or failure to
successfully complete, a sex offender treatment program.
These criteria are not meant to be an exhaustive list, but rather are
illustrative of practical, probative, and relevant evidence used by
mental health professionals when assessing patient risk.
Executive Order 12866
This rule falls within a category of actions that the Office of
Management and Budget (OMB) has determined to constitute ``significant
regulatory actions'' under section 3(f) of Executive Order 12866 and,
accordingly, it was reviewed by OMB.
The Bureau has assessed the costs and benefits of this rule as
required by Executive Order 12866 Section 1(b)(6) and has made a
reasoned determination that the benefits of this rule justify its
costs. This rule will have the benefit of avoiding confusion caused by
the statutory change, while allowing the Bureau to operate under the
definitions stated in the regulations. There will be no new costs
associated with this rulemaking.
Executive Order 13132
This regulation will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, under Executive Order 13132,
we determine that this rule does not have sufficient Federalism
implications to warrant the preparation of a Federalism Assessment.
Regulatory Flexibility Act
The Director of the Bureau of Prisons, under the Regulatory
Flexibility Act (5 U.S.C. 605(b)), reviewed this regulation and by
approving it certifies that it will not have a significant economic
impact upon a substantial number of small entities for the following
reasons: This rule pertains to the correctional management of offenders
committed to the custody of the Attorney General or the Director of the
Bureau of Prisons, and its economic impact is limited to the Bureau's
appropriated funds.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by Sec. 804 of the Small
Business Regulatory Enforcement Fairness Act of 1996. This rule will
not result in an annual effect on the economy of $100,000,000 or more;
a major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
List of Subjects in 28 CFR Part 549
Prisoners.
Dated: July 24, 2007.
Harley G. Lappin,
Director, Bureau of Prisons.
Under rulemaking authority vested in the Attorney General in 5
U.S.C. 552(a) and delegated to the Director, Bureau of Prisons, we
propose to amend 28 CFR part 549 as set forth below.
Subchapter C--Institutional Management
PART 549--MEDICAL SERVICES
1. Revise the authority citation for 28 CFR part 549 to read as
follows:
Authority: 5 U.S.C. 301; 10 U.S.C. 876b; 18 U.S.C. 3621, 3622,
3524, 4001, 4005, 4042, 4045, 4081, 4082 (Repealed in part as to
offenses committed on or after November 1, 1987), 4241-4248, 5006-
5024 (Repealed October 12, 1984 as to offenses committed after that
date), 5039; 28 U.S.C. 509, 510.
2. Add a new subpart F, to read as follows:
Subpart F--Civil Commitment of a Sexually Dangerous Person
Sec.
549.70 Purpose and application.
549.71 Definition of ``sexually dangerous person.''
549.72 Definition of ``sexually violent conduct.''
549.73 Definition of ``child molestation.''
549.74 Definition of ``sexually dangerous to others.''
549.75 Determining ``serious difficulty in refraining from sexually
violent conduct or child molestation if released.''
Subpart F--Civil Commitment of a Sexually Dangerous Person
Sec. 549.70 Purpose and application.
(a) This subpart provides definitions and standards for review of
persons for certification to federal district courts as sexually
dangerous persons, as authorized by title 18 U.S.C. Chapter 313, by
Bureau of Prisons (Bureau), or Bureau-contracted, staff.
(b) This subpart applies to persons in Bureau custody, including
those:
(1) Under a term of imprisonment;
(2) For whom all criminal charges have been dismissed solely for
reasons relating to the person's mental condition; or
(3) In Bureau custody pursuant to 18 U.S.C. 4241(d).
(c) The Bureau may certify that a person in Bureau custody is a
sexually dangerous person when review under this subpart provides
reasonable cause to believe that the person is a sexually dangerous
person. In determining whether a person is a sexually dangerous person
and should be so certified, the Bureau, or Bureau-contracted staff,
will consider any available information in its possession, and may
transfer the person to a suitable facility for psychological
examination in order to obtain information for this purpose.
Sec. 549.71 Definition of ``sexually dangerous person.''
For purposes of this subpart, a ``sexually dangerous person'' is a
person:
(a) Who has engaged or attempted to engage in:
(1) Sexually violent conduct; or
(2) Child molestation; and
(b) Has been assessed as sexually dangerous to others by a Bureau,
or Bureau-contracted, mental health professional.
Sec. 549.72 Definition of ``sexually violent conduct.''
For purposes of this subpart, ``sexually violent conduct''
includes:
(a) Any unlawful conduct of a sexual nature with another person
(``the victim'') that involves:
(1) The use or threatened use of force against the victim;
[[Page 43209]]
(2) Threatening or placing the victim in fear that the victim, or
any other person, will be harmed;
(3) Rendering the victim unconscious and thereby engaging in
conduct of a sexual nature with the victim;
(4) Administering to the victim, by force or threat of force, or
without the knowledge or permission of the victim, a drug, intoxicant,
or other similar substance, and thereby substantially impairing the
ability of the victim to appraise or control conduct;
(5) Engaging in such conduct with a victim who is incapable of
appraising the nature of the conduct, or physically or mentally
incapable of declining participation in, or communicating unwillingness
to engage in, that conduct; or
(b) Engaging in any conduct of a sexual nature with another person
with knowledge of having tested positive for the human immunodeficiency
virus (HIV), or other potentially life-threatening sexually-
transmissible disease, without the informed consent of the other person
to be potentially exposed to that sexually transmissible disease.
Sec. 549.73 Definition of ``child molestation.''
For purposes of this subpart, ``child molestation'' includes any
unlawful conduct of a sexual nature with, or sexual exploitation of, a
person under the age of 18 years.
Sec. 549.74 Definition of ``sexually dangerous to others.''
For purposes of this subpart, ``sexually dangerous to others''
means that a person suffers from a serious mental illness, abnormality,
or disorder as a result of which he or she would have serious
difficulty in refraining from sexually violent conduct or child
molestation if released.
Sec. 549.75 Determining ``serious difficulty in refraining from
sexually violent conduct or child molestation if released.''
In determining whether a person will have ``serious difficulty in
refraining from sexually violent conduct or child molestation if
released,'' Bureau, or Bureau-contracted, mental health professionals
may consider, but are not limited to, evidence:
(a) Of the person's repeated contact, or attempted contact, with
one or more victims;
(b) Of the person's denial of or inability to appreciate the
wrongfulness, harmfulness, or likely consequences of engaging or
attempting to engage in sexually violent conduct or child molestation;
(c) Established through interviewing and testing of the person, or
other risk assessment tools, that are relied upon by mental health
professionals;
(d) Established by forensic indicators of inability to control
conduct, such as:
(1) Offending while under supervision;
(2) Engaging in offense(s) when likely to get caught;
(3) Statement(s) of intent to re-offend; or
(4) Admission of inability to control behavior; or
(e) Indicating successful completion of, or failure to successfully
complete, a sex offender treatment program.
[FR Doc. E7-14943 Filed 8-2-07; 8:45 am]
BILLING CODE 4410-05-P