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“ADAM WALSHED”: A DANGEROUS AND COSTLY RESPONSE TO SEXUAL PREDATION

Nov 15 2012
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Texas Finds Out-Patient Treatment More Effective than Indefinite Detention
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Former President George W. Bush in July 2006 signed into law the Adam Walsh Child Protection and Safety Act (“Walsh Act”). A disturbing byproduct of the Walsh Act is the authorization given to the federal government to indefinitely detain any sex offender after completion of his prison sentence, if a Department of Justice attorney certifies and establishes by clear and convincing evidence that he is a “sexually dangerous person” who poses a threat to the safety of the free community. If the offender is certified for what is called “civil commitment,” chances are he will be sent to the Commitment and Treatment Program at the Federal Correctional Institution in Butner, North Carolina.

The civil commitment provisions of the Walsh Act are codified in 18 U.S.C. § 4248. There are two critical elements associated with Walsh Act civil commitments as set forth in 18 U.S.C. § 4247: first, an offender is deemed sexually dangerous if he has “engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others;” and, second, the offender is sexually dangerous to others if he “suffers from a serious mental illness, abnormality, or disorder” to the extent that he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.

Put simply, an individual can be punished through civil commitment not for any crime he has committed but for crimes he may commit. This is a dangerous response to media inflamed hype over sexual predation.

This past March,USA Today reported that approximately 2,000 inmates convicted of sex offenses are committed to the U.S. Bureau of Prisons each year, many of these sex offenders are eligible for “sexually dangerous” certification.

USA Todayfound that since the Walsh Act became effective, 136 offenders were designated as “sexually dangerous” by the Bureau. That’s approximately 20 designations a year.

Through March of this year,USA Today’sinvestigation determined 15 “sexual predators” have been “Adam Walshed.” This process means that federal prison authorities, primarily through the Bureau’s own mental health “experts,” determined that 15 sex offenders were “sexually dangerous” and reported this information to the U.S. Justice Department prior to those offenders being released from custody. Either Justice Department attorneys or the Director of the Bureau of Prisons initiated civil commitment proceedings in the federal district court where the offender was confined. The district court conducted evidentiary hearings at which DOJ attorneys proved by clear and convincing evidence that the 15 offenders were in fact sexually dangerous. DOJ attorneys met their burden of proof requirement almost always through the testimony of Bureau mental health experts, while attorneys representing the offenders defended their clients with experts who testified the offenders were not “sexually dangerous.” After reviewing the evidence, the courts made determination that these 15 individuals were “sexual dangerous” and ordered them to be indefinitely confined until they are “no longer sexually dangerous to others.”

This past July the Fourth Circuit Court of Appeals, in the case of Sean Robert Francis, discussed in fact-specific detail of how easy it is for a sex offender to be ensnared by the Walsh Act. While the district court refused to “Adam Walsh” Francis, and the Fourth Circuit upheld that order, the Francis case is illustrative of the process of how sex offenders in federal custody can be “Adam Walshed.

“Francis was first arrested in 1998 at the age of 20 after he placed two threatening telephone calls to randomly-selected telephone numbers. In both telephone calls, Francis threatened to rape women who answered the telephone. Francis was convicted in a New York state court on two counts of aggravated harassment and was sentenced to a term of three years’ probation.

“Shortly after his conviction, Francis pleaded guilty to violating the terms of his probation for failing to participate in sex offender treatment, lying to his probation officer, and failing to report to his probation officer as directed. The state court imposed a sentence placing Francis on continued probation.

“In November 1999, Francis pleaded guilty to federal charges, including eight counts of making threatening interstate communications in violation of 18 U.S.C. § 875(c). These charges arose after Francis placed more than 100 telephone calls to women in several states. In these calls, Francis often asked the women about their sexual behavior, demanded that they masturbate, described any personal information he knew about them, stated that he had been watching them, threatened to harm them if they contacted the police or did not do as he directed, and threatened to rape or kill them. Francis was convicted and sentenced to a term of 22 months’ imprisonment and to a three-year term of supervised release.

“Based on these federal convictions, Francis’ probation resulting from the New York state convictions was revoked and, following that revocation, he received an additional sentence of six months’ imprisonment. Francis was released from incarceration in July 2001.

“In December 2001, a female college student, ‘Emily,’ accused Francis of rape. During the investigation conducted by a local police department, Francis stated that he had engaged in consensual sexual intercourse with ‘Emily.’ Francis was not arrested, and the police did not file charges in connection with this incident.

“Later in December 2001, Francis’ supervised release was revoked after he admitted to making about 50 threatening telephone calls similar in content to the previous calls for which he had been convicted. Based on this violation of the conditions of his supervised release, Francis was sentenced to a term of 24 months in prison. He was released in September 2003.

“Within three weeks after his release, Francis began making similar threatening telephone calls. As a result, in December 2003, Francis was charged with 26 counts of making interstate threatening communications …, and four counts of intimidating and threatening a victim … Francis was convicted and sentenced to a term of 70 months’ imprisonment and to a three-year term of supervised release.

“Before Francis’ release from prison on January 12, 2009, a BOP review panel determined, based on mental health evaluations completed while Francis was still incarcerated, that Francis did not meet the criteria of a sexually dangerous person under the [Walsh] Act. Upon his release Francis was not required to register as a sex offender.

“Francis’ term of supervised release included many requirements and conditions, including that to submit to periodic polygraph examinations. During one such examination in 2009, Francis described numerous sexual acts, for which he had not been arrested or charged, in which he claimed to have sexually assaulted or raped 27 victims. Francis later denied committing any of these acts.

“In September 2009, more than seven months after his release from prison, Francis’ supervised release term was revoked based on three violations unrelated to placing threatening telephone calls. The first violation occurred when a probation officer visiting Francis in his home observed that Francis had rented a pornographic movie. Francis admitted to the probation officer that he had viewed six pornographic movies.

“The second violation occurred after Francis stated during a polygraph examination that he had engaged in sexual relations with two women he had met on the internet. When Francis refused to identify the women, he violated the condition of his probation requiring that he provide requested information to his probation officer. As a result of committing these violations, Francis was expelled from a mandatory sex offender treatment program. This expulsion constituted the third violation of the terms of his supervised release.

“Based on his commission of these three violations, Francis was sentenced to serve a term of six months’ imprisonment and a 12-month term of supervised release …”

Francis was scheduled for release from prison in February 2010. DOJ attorneys, however, filed a Walsh certificate in the federal district court. The government alleged in its petition that prison mental health personnel had made a “preliminary determination” that Francis was a “sexually dangerous person” within the meaning of the Walsh Act. The Walsh petition effectively blocked Francis’ release until the court could conduct a mandatory evidentiary hearing.

At the hearing Francis testified about his lengthy history of making threatening telephone calls to women which began at age thirteen. Four forensic psychologists—two for the government and two for Francis—testified at the hearing. One of the government’s experts stated that Francis was “one of the most prolific sex offenders” he had ever evaluated. Both of Francis’ experts testified that he was not “sexually dangerous” within the meaning of the Walsh Act. The government’s experts, however, stated that the chances of Francis re-offending were between the range of 30 and 59.7 percent. The district court concluded that while Francis may have suffered from “a serious mental disorder,” that alone did not mean he could not refrain “from sexually violent conduct if he were released from custody.”

By the time the court made this ruling Francis had spent two years at Butner. According to theUSA Todayreport, two weeks after the district court ruling, guards at the Butner facility summoned Francis and told him to collect his personal belongings. He was given a bus ticket to New York City where he moved into suburban home with his father and stepmother. He found a job and maintains a low profile. While he was not required to register as a sex offender under New York law, he must wear a GPS ankle bracelet that monitors his movements.

The government appealed, and in rejecting that appeal and upholding the district court’s finding, the appeals court pointed out that an Adam Walsh determination of sexual dangerousness involves a two-step analysis. First, the district court must determine whether the offender “had engaged or attempted to engage in sexually violent conduct or child molestation; and, second, whether the offender is “sexually dangerous to others.” The second step analysis has two elements: 1) whether the offender “suffers from a serious mental disorder, abnormality, or disorder; and 2) whether as a result of that condition the offender “would have serious difficulty in refraining from sexually violent conduct or child molestation if released.”

The Fourth Circuit held that the government did not prove these three elements in the Francis case by “clear and convincing evidence” (state of mind that involves a firm belief or conviction, without hesitancy, about the truth of a matter).

Besides being an affront to civil liberties, civil commitment of “sexual predators,” as these offenders are commonly referred to, is also an expensive proposition for cash-strapped state and federal budgets. TheNew York Timesreported in 2007 that it cost five times as much to keep a sex offender in a civil commitment setting than it does in a prison setting. More significantly is the fact that child sexual abuse has been declining in this country since 1990. The National Child Abuse and Neglect Data System of the University of New Hampshire reported a 40 percent decline of such cases between 1991 and 1999. The U.S. Department of Justice put the decline rate at 56 percent during that same period while the FBI’s Uniform Crime Reports and the National Crime Victimization Survey reported a 67 percent decline in sexual assaults of teenagers between 1998 and 2004.

Declining sexual assaults, the prohibitive costs associated with civil commitments, and the lack of success in civil commitments prompted the State of Texas to chart a different course than the Adam Walsh process. The Department of State Health Services explains:

“Across the nation states are dealing with sexually violent predators in an increasingly conservative manner by committing the SVP to inpatient treatment. The implementation of the outpatient civil commitment program in Texas is the first innovative type of civil commitment in the United States. The outpatient sexually violent predator program may appear to be a precarious endeavor to States [as well as the Federal government] who have committed millions of dollars to inpatient programs. The belief being these SVPs could not be contained and reside in communities without committing a new offense. However, to date [April 2010] the Texas outpatient program has shown the most success in the treatment of SVPs while maintaining the highest-level of community safety.

“There are a few similarities between Texas and other states civil commitment programs. First, sex offenders are assessed by the state and only the most predatory are referred to trial for civil commitment. Second, a trial is conducted and if the sexually violent predator is committed by judicial order, the SVPs remain in the outpatient program until their behavioral abnormality is changed to the extent that the SVP is no longer likely to engage in predatory acts of sexual violence.

“There is a significant difference between the Texas program and programs in other states. In other states, the civilly committed sex offender is placed in a locked, secure residential facility and can choose not to participate in sex offender treatment. In Texas, civilly committed SVPs are allowed to transition back into the community where they are mandated to actively participate and comply with intensive outpatient sex offender treatment and supervision.

“Sexually violent predators are civilly committed to protect the citizens of Texas and a paradoxical effect is that the outpatient program may do more to ensure public safety. Consider some of the inherent benefits that an outpatient sex offender treatment program has over a residential sex offender treatment program.

“The success rate for offenders treated in an inpatient setting [such as Butner] is about half of that for offenders treated in an outpatient setting. Consider the following percentage of treatment refusers: California’s 368 SVPs (80% refuse treatment), Wisconsin’s 232 SVPs (75% refuse treatment, and Florida’s 450 SVPs (70% refuse treatment). David Cuppenheimer, the Director of the Sex Offender Treatment Program at MCI-Norfolk reported that attorney’s routinely advise their clients to refuse treatment and avoid disclosure, which inhibits treatment. The prognosis for rehabilitating sexually violent predators in a prison setting is poor, the treatment needs for this population are very long term and the treatment for this population are very different than the traditional treatment modalities. Therefore a civil commitment procedure for the long term care and treatment of the sexually violent predator is found to be necessary by this legislature [Kansas]. Use of an outpatient program, in which treatment is mandated in Texas, can potentially provide for more long-term community safety than inpatient programs.

“Treatment programs made in an inpatient setting does not readily transfer to the community because the client does not have to develop internal controls (i.e. identifying triggers and deviant behaviors to stop these prior to the act) due to the intensive external controls (i.e. locked facility, security, etc.) in place. Inpatient clients do not have to contend with the ‘normal’ stresses of the free world, the availability of alcohol and drugs, and the inadvertent contact with potential victims. Clients that do not choose to participate in the inpatient treatment setting still have the obstacle of applying this in the community. Eventually, these sex offenders will be released back to the community and other states must confront the issues that Texas deals with directly throughout the offender’s treatment.

“The outpatient program also has the advantages of maintaining the highest level of protection available in the community while protecting the civil rights of the client through a restrictive transition and assimilation back into the community.”

Indefinite detention of potential sex offenders through the federal Adam Walsh Act, or similar state statutes, is not the solution. It provides for lock down, inpatient treatment in a mental health facility which is virtually identical to the inpatient treatment offered in the prison setting. Beyond its ineffectiveness and staggering costs, Adam Walsh programs offend the historical penal objectives of punishment for crimes committed, not for crimes are likely to be committed. Sean Francis lost two years of his life because the Bureau of Prisons and Department of Justice “got it wrong.” We simply should not lock people up because they are a perceived threat. Lock up should be exclusively reserved for those who have been found guilty of crimes committed.

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization

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  • Avatar I’m Home ★★★★★ 3 years ago
    He took time out of his day to answer my legal questions and didn’t even charge me. I would definitely recommend him to you.
  • Avatar Tad Nieschwietz ★★★★★ 3 years ago
    Gave free consultation on getting gun rights back. He truly cares about gun rights and getting you the help you deserve. 100% worth a callPositive
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  • Avatar Maher Abbara ★★★★★ 3 years ago
    Very professional, great quality work, and very friendly and helpful. Overall, their service is phenomenal. I recommend Mr. Floyd to anyone.
  • Avatar Thomas McLaughlin ★★★★★ 3 years ago
    Mr. Floyd took the time to explain his experience with the law to me in layman's terms. Definitely give him a call.Positive
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  • Avatar Zarrie Adkins ★★★★★ 3 years ago
    He was honest , knowledgeable , and professional about what we talked about. Most lawyers are just about the money , but not john.Positive
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  • Avatar Keisha Gaches ★★★★★ 3 years ago
    He was very truthful and honest with us very great man I would recommend him and we would use him again
  • Avatar Samyra Carrasquillo ★★★★★ 3 years ago
    Very professional honest and works hard currently working my husband’s appeal I pray he does his best workPositive
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  • Avatar Raul Perez ★★★★★ 3 years ago
    I contacted John T. Floyd Law firm and I was very satisfied with service extremely helpful and friendly thank you Mr. FloydPositive
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  • Avatar Johnny Johnson Jr ★★★★★ 3 years ago
    This law frim was informative,great response time ,and the attorney called back not some secretary or legal assistant thank u guys for all your help wish it was more like youPositive … More
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  • Avatar Dana Adkison ★★★★★ 3 years ago
    I would highly recommend Mr Floyd. He was very helpful and knowledge with a legal question I had.Positive
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  • Avatar Crecencio Fabian ★★★★★ 3 years ago
    He explained my case better then any other lawyerPositive
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  • Avatar Barry Lewis ★★★★ 3 years ago
    Very informative
  • Avatar Ismael Flores ★★★★★ 3 years ago
  • Avatar Haley Danielle Lummus ★★★★★ 3 years ago
  • Avatar Eddie Villarreal ★★★★★ 3 years ago
  • Avatar Neil Productions ★★★★★ 4 years ago
    Had the pleasure speaking with John Floyd on a personal matter, he was very responsive, nothing but exceptional, and he really cares about you with sincerity and most importantly knows … More what is he talking about! No games or bs, his approach to my situation even though I knew it was probably way smaller then what he normally takes on, he was extremely helpful and didn't care about the size of the matter like other attorneys do. He really looked out for my best interests. You can tell he has decades of experience doing what he does just by chatting with him. I would highly recommend him.
  • Avatar S A ★★★★★ 4 years ago
    Words can’t describe how grateful I am for working with John, he went above and beyond my expectation. I was wrongly accused and hired many lawyers before hiring John Floyd but they … More all disappointed me, I had lost hope until a friend of mine referred me to John. From the start he had my best interest in mind and gave helpful advice, he explained the process and guided me. He put more work and time than all my previous lawyers that cost me thousands of dollars. He was constantly communicating with court and defended me more than all lawyer i had hired before him. Don’t waste your time and money like I did, believe me when I say I hired countless lawyers before him and no one came close to John. I’m forever thankful for him for fighting for my innocence and getting my case dismissed. Thank you so much🙏🏼🙏🏼
  • Avatar Gary Watch ★★★★★ 4 years ago
    I called Mr Floyd and left a message, with in the hour I received a call back with much more information then I could have ever expected. Mr Floyd was very informative on every question … More I had for him. He seemed like he cared, instead of like most attorneys that you talk to that are just out for a quick buck. If you want someone that is going to shoot strait with you, and has your best interest in hand, this is you guy. This was the best experience that I have ever had with an lawyer.
  • Avatar Saman Daftarian ★★★★★ 4 years ago
    I can state with confidence that Mr. Floyd and his team are the most competent and professional lawyers one can hope for. My case was quite complex and I admit that as a law student … More I was not the most patient client. Mr. Floyd did a phenomenal job of managing the bench, prosecution and myself! The result was above expectation, and I will never hesitate to recommend this firm regardless of the caliber of the case at issue.
  • Avatar calvin robinson ★★★★★ 4 years ago
    It was a pleasure working with Mr. Floyd. I contacted him regarding a legal matter and he was extremely knowledgeable about the law, and responded in a timely manner. I appreciated … More the fact I did not feel rushed, and he made sure he thoroughly answered all questions I had. I would highly recommend him!Positive
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  • Avatar Alan Howk ★★★★★ 4 years ago
    Spoke with John Floyd about a 45 year old criminal case I was involved in. I had very little information about the case and John helped me search what records were available and gave … More me guidance to find more information. He was very professional and took his time helping me. I may need to hire a lawyer on this case and Mr. Floyd will be the man.Thanks John.
  • Avatar CMCustom Cycles ★★★★★ 4 years ago
    Very professional and straight forward. He's not going to waste your time or money. Very knowledgeable in a large range of possible matters one could face living in these days … More and times. If ever you need legal assistance, this is who I would suggest. Awesome!Positive
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  • Avatar Greg Page ★★★★★ 4 years ago
    I called about some legal questions I needed to get clarified and John was able to give me clarification and sound advice. I will definitely contact John for all future legal questions … More and issues.Thank you John!Positive
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  • Avatar Kristen Rankin ★★★★★ 4 years ago
    Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
  • Avatar Kedar Puranik ★★★★★ 4 years ago
    John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
  • Avatar Joseph Sivadon ★★★★★ 4 years ago
    What a great attorney, this guy really took time out of his day to answer my questions and explain my case to me. Very grateful, thank you so muchPositive
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  • Avatar Lex Strider ★★★★★ 4 years ago
    Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
  • Avatar karim khalifa ★★★★★ 4 years ago
    Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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  • Avatar James Haggard ★★★★★ 4 years ago
    Great service, very knowledgable and happy to help with any questions I had
  • Avatar David Sustaita ★★★★★ 4 years ago
    Quick to action and helpful and knowledgeable with entertainment industry based issues!
  • Avatar Chad Groves ★★★★★ 4 years ago
    Responded on a holiday week. Very knowledgeable and reassuring.
  • Avatar Mark Fein ★★★★★ 4 years ago
    Very professional
  • Avatar Bthomason903 Bthomason903 ★★★★★ 4 years ago
  • Avatar Anton Jasser ★★★★★ 4 years ago
  • Avatar Alma Garza ★★★★★ 4 years ago
  • Avatar Victory 2020 ★★★★★ 6 years ago
    I want to thank John T. Floyd and all of his team. He is the best lawyer who cares aboutHis clients and fights really hard to get the best outcome. He is a fighter and he is awesome!!!I … More recommend if any one needs criminal defense , he is the BEST. We had a really serious caseAnd we are very thankful for the outcome. Thank you John!!!!! God bless you!!!!!!
  • Avatar Alma Garcia Cunningham ★★★★★ 6 years ago
    The attorneys at John T. Floyd Law Firm work diligently to achieve the best possible results for their clients. They are caring and knowledgeable professionals. Their expertise in the … More law and their experience as trial attorneys makes them the right choice as a defense attorney. I recommend this law firm highly.
  • Avatar Rajiv Patel ★★★★★ 6 years ago
    From beginning to end this firm handled my case like the top tier professionals they are. I would not trust ANYONE else with my legal needs after having less than stellar experiences … More with other teams. Thank you Floyd!!!
  • Avatar Jose Tapia ★★★★★ 6 years ago
    I really felt like the team cared about my case and am super satisfied with the outcome. Would not recommend anyone else!
  • Avatar Sagar Patel ★★★★★ 6 years ago
    These guys do amazing work and have phenomenal service! Hands down best in the Houston area!!
  • Avatar RAYNINN ★★★★★ 6 years ago
    John and Chris are true professionals! Love those guys like family!
  • Avatar Virginia Martin ★★★★★ 6 years ago
    Mr. Floyd and his team are very knowledgeable, informative, and helpful.
  • Avatar Darla Latham ★★★★★ 6 years ago
    A team you can depend on to stand up and fight for you to prove the truth the whole truth!
  • Avatar Veronica Elorza ★★★★★ 6 years ago
  • Avatar Karetta Lux ★★★★★ 7 years ago
    Mr. John T. Floyd represented me.I couldn't be happier with the outcome he managed to achieve on an VERY Important case that was dismissed the day of Trial. He is patient & … More very knowledgeable of the legal system. I HIGHLY recommend him to anyone in need of a lawyer!John, I am forever grateful & satisfied with the effort you put forth & all you did for me. Thank you isn't enough!God bless you & your family!
  • Avatar GM ★★★★★ 8 years ago
    The John T. Floyd Law Firm assisted me, and I can tell you that the attorney took the time to answer my questions, and I didn't feel rushed or dismissed as I have experienced in … More the past with attorneys. The attorney was very nice and extremely knowledgeable. Initial impressions and continued excellent customer service are big factors for me and as such I would highly recommend this firm.
  • Avatar Sandra Bivens ★★★★★ 8 years ago
    I thank you for your efforts to help Felons regain their Civil rights, and for the information on possession , I am A convicted Felon, no violent history. I am an expert shot, I am … More 76 yoa, and very concerned about the present lake of Security in our State and Country. God Bless and Prosper you in your efforts, Your friend, Sonny Bivens
  • Avatar Mike Kittelson ★★★★★ 8 years ago
    I really appreciated both Chris and John helping with my legal questions and concerns. Both are good guys and I would not hesitate to recommend them.
  • Avatar Robert Hair ★★★★★ 8 years ago
    Extremely helpful!!! Helping me understand the law.

John T. Floyd is Board Certified in Criminal Law By the Texas Board of Legal Specialization

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