Petition for Writ of Certiorari — Thomas Blackledge, Petitioner v. United States

Supreme Court briefAug 3, 2018

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No. _________

In The

Supreme Court of the United States

THOMAS BLACKLEDGE,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

_____________________

PETITION FOR WRIT OF CERTIORARI

_____________________

Lawrence H. Brenner

Counsel of Record

Sarah L. Greene

BRENNER & BRENNER

P. O. Box 787

Carrboro, NC 27510

(252) 349-0662

Counsel for Petitioner

GibsonMoore Appellate Services, LLC

206 East Cary Street ♦ P.O. Box 1460 (23218) ♦ Richmond, VA

804-249-7770 ♦

www.gibsonmoore.net

23219

Table of Contents

Page:

Table of Authorities ...................................................................................................... iii

Questions Presented ...................................................................................................... 1

Petition for a Writ of Certiorari .................................................................................... 1

Opinions Below .............................................................................................................. 2

Jurisdiction .................................................................................................................... 2

Constitutional and Statutory Provisions Involved ....................................................... 2

Statement of the Case ................................................................................................... 4

Proceedings Below .................................................................................... 4

II.

Factual Background ................................................................................. 6

Reasons for Granting the Writ .................................................................................... 14

Adam Walsh Act Generally.................................................................... 15

II.

Conflicts among the federal courts of appeals and/or state

supreme courts ....................................................................................... 17

Jurisdictions interpret the finding of Crane in different

ways, specifically as to whether a volitional control finding

is a requirement; therefore, this Court has a vested interest

in establishing a uniform standard ............................................ 17

Jurisdictions disagree as to what likelihood of recidivism

must be demonstrated to prove serious difficulty in

controlling behavior; therefore this Court has a vested

interest in establishing a uniform standard............................... 19

The Adam Walsh Act rulings inconsistently apply similar

evidence to support or find against volitional control in

commitment hearings; therefore this Court has a vested

interest in establishing a uniform standard............................... 21

III.

Kansas v. Crane and United States v. Comstock explicitly left open

Due Process challenges to the act and whether commitment for

an emotional disorder is permissible; therefore this issue is ripe

for adjudication....................................................................................... 24

To hold that a respondent is sexually dangerous, the court

must find by clear and convincing evidence that there is a

volitional control issue, and cases in various jurisdictions

have handled this issue differently ............................................. 24

Although past offending is relevant to the inquiry of

dangerousness, the respondent’s present condition must be

acknowledged ............................................................................... 25

IV.

By allowing civil commitments based primarily on an individual’s

private fantasies, the court acted as thought police ............................. 26

Committing someone who has openly expressed his fantasies but

does not have a volitional control issue will undermine and

invalidate the effectiveness of the Adam Walsh Act in protecting

the public ................................................................................................ 28

Conclusion .................................................................................................................... 30

Appendix

Opinion

United States Court of

Appeals For the Fourth Circuit

filed January 8, 2018 ....................................................................... App. A

Order Denying Petition for Rehearing

United States Court of

Appeals For the Fourth Circuit

filed May 8, 2018 ............................................................................. App. B

Table of Authorities

Page(s):

Cases:

Doe v. City of Lafayette,

377 F.3d 757 (7th Cir 2004) ........................................................................ 27, 28

In re Commitment of Laxton,

254 Wis.2d 185, 647 N.W.2d 784 (2002)........................................................... 18

In re Commitment of W.Z.

773 A.2d 97 (N.J. Super. A.D. 2001) .......................................................... 20, 25

In re Commitment of W.Z.,

173 N.J. 109, 801 A.2d 205 (2002) .................................................................... 19

In re Detention of Barnes,

658 N.W.2d 98 (Iowa 2003) ............................................................................... 18

In re Detention of Thorell,

149 Wash.2d 724, 72 P.3d 708 (2003) .............................................................. 18

In re Detention of Varner,

207 Ill.2d 425, 279 Ill.Dec. 506, 800 N.E.2d 794 (2003) .................................. 18

In re Dutil,

437 Mass. 9, 768 N.E.2d 1055 (2002) ............................................................... 18

In re Leon G.,

204 Ariz. 15, 59 P.3d 779 (2002) ....................................................................... 18

In re Thomas,

74 S.W.3d 789 (Mo.2002) .................................................................................. 19

In re Treatment & Care of Luckabaugh, 3

51 S.C. 122, 568 S.E.2d 338 (2002)................................................................... 18

In re Vantreece,

771 N.W.2d 585 (N.D.2009) .............................................................................. 18

Jacobson v. United States,

503 U.S. 540 (1992) ........................................................................................... 27

Kansas v. Crane,

534 U.S. 407 (2002) ........................................................................... 1, 15, 17, 24

iii

Kansas v. Hendricks,

521 U.S. 346 (1997) ....................................................................................... 1, 24

Laxton v. Bartow,

421 F.3d 565 (7th Cir. 2005) ....................................................................... 18, 20

People v. Superior Court,

44 P.3d 949 (Cal. 2002) ............................................................................... 19, 20

People v. Williams,

31 Cal.4th 757, 3 Cal.Rptr.3d 684, 74 P.3d 779 (2003) ................................... 18

Proctor v. State,

15 Okla. Crim. 338 (1918) ................................................................................. 26

Richard S. v. Carpinello,

589 F.3d 75 (2d Cir. 2009) .......................................................................... 17, 19

Stanley v. Georgia,

394 U.S. 557 (1969) ........................................................................................... 26

State v. Nelson,

727 N.W.2d 364 (Wis. Ct. App. 2006) ............................................................... 20

State v. White,

891 So.2d 502 (Fla. 2004) .................................................................................. 18

State v. White,

No. SC02-2277, 2004 Fla. LEXIS 2402 (Fla. Dec. 23, 2004) ........................... 21

United States v. Antone,

742 F.3d 151 (2014) ........................................................................................... 23

United States v. Bell,

884 F.3d 500 (4th Cir. 2018) ............................................................................. 21

United States v. Blackledge,

751 F.3d 188 (4th Cir. 2014) ............................................................................... 5

United States v. Bolander,

722 F.3d 199 (4th Cir. 2013) ............................................................................. 22

United States v. Caporale,

701 F.3d 128 (4th Cir. 2012) ....................................................................... 21, 22

United States v. Carta,

690 F.3d 1 (1st Cir. 2012) ................................................................................. 24

United States v. Comstock,

560 U.S. 126 (2010) ................................................................................... 1, 5, 16

United States v. Hall,

664 F.3d 456 (4th Cir. 2012) ............................................................. 1, 21, 22, 25

United States v. Shields,

649 F.3d 78 (1st Cir. 2011) ............................................................................... 19

United States v. Valle,

807 F.3d 508 (2d Cir 2015) ............................................................................... 27

United States v. Volungus,

730 F.3d 40 (1st Cir. 2013) ......................................................................... 23, 25

United States v. Wooden (Wooden I),

693 F.3d 440 (4th Cir. 2012) ....................................................................... 20, 21

United States v. Wooden (Wooden II),

887 F.3d 5917 (4th Cir. 2018) ................................................................ 21, 25-26

Van Grivensen v. G.R.H,

711 N.W.2d 587 (N.D. 2006) ............................................................................. 20

Van Orden v. Schafer,

129 F. Supp. 3d 839 (E.D. Mo. 2015) ................................................................ 29

Westerheide v. State,

767 So. 2d 637 (Fla. Dist. Ct. App. 2000) ................................................... 19, 20

Statutes:

18 U.S.C. § 2251(a) ........................................................................................................ 4

18 U.S.C. § 4247 ............................................................................................................. 3

18 U.S.C. § 4247(a)(5) .................................................................................................. 19

18 U.S.C. § 4247(a)(6) .................................................................................................. 19

18 U.S.C. § 4248 (“The Adam Walsh Act,”) .........................................................passim

28 U.S.C. § 1254(1) ........................................................................................................ 2

Questions Presented

The Adam Walsh Act, 18 U.S.C. § 4248 was enacted in 2006 to provide for the

indefinite civil commitment of individuals who, at the end of their current Federal

prison sentence, are found to be sexually dangerous. The Act was challenged under

the Necessary and Proper Clause and ultimately upheld in United States v. Comstock,

560 U.S. 126, 130 (2010). In determining whether an individual qualifies for

commitment under the act, Federal District and Circuit courts look to Kansas v.

Crane, 534 U.S. 407 (2002) and Kansas v. Hendricks, 521 U.S. 346 (1997). See e.g.,

United States v. Hall, 664 F.3d 456 (4th Cir. 2012). Because of the complex nature of

these cases, the State and Federal courts have decided the issue of sexual

dangerousness in many different ways, leading to dramatically different conclusions.

Therefore, the questions presented are:

Whether the Adam Walsh Act unconstitutionally deprives a respondent of

their liberty interest by indefinitely civilly committing an individual for an

emotional impairment rather than a volitional one, a question explicitly left

open both by United States v. Comstock, 560 U.S. 126 (2010) and Kansas v.

Crane, 534 U.S. 407 (2002).

Whether the Adam Walsh Act violates due process by indefinitely civilly

committing an individual for their private thoughts.

Petition for a Writ of Certiorari

Thomas Blackledge respectfully petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Fourth Circuit.

Opinions Below

The opinion of the court of appeals (Pet. App. A) is unpublished but is reported

at 714 Fed. Appx. 247 (4th Cir. 2018). The district court order and findings are

unpublished.

Jurisdiction

The judgment of the court of appeals was entered on January 8, 2018. A

petition for rehearing was denied on May 8, 2018 (Pet. App. B). This Court has

jurisdiction pursuant to 28 U.S.C. § 1254(1).

Constitutional and Statutory Provisions Involved

U.S. Const. amend V.

The Fifth Amendment to the Constitution provides, in pertinent part: “No

person shall be … deprived of life, liberty, or property, without due process of law … .”

18 U.S.C. § 4248 provides, in pertinent part:

(a)

Institution of proceedings. In relation to a person who is in the

custody of the Bureau of Prisons, or who has been committed to

the custody of the Attorney General pursuant to section 4241(d),

or against whom all criminal charges have been dismissed solely

for reasons relating to the mental condition of the person, the

Attorney General or any individual authorized by the Attorney

General or the Director of the Bureau of Prisons may certify that

the person is a sexually dangerous person …. The court shall

order a hearing to determine whether the person is a sexually

dangerous person. A certificate filed under this subsection shall

stay the release of the person pending completion of procedures

contained in this section.

(b)

Psychiatric or psychological examination and report. Prior to the

date of the hearing, the court may order that a psychiatric or

psychological examination of the defendant be conducted, and

that a psychiatric or psychological report be filed with the court,

pursuant to the provisions of section 4247 (b) and (c).

(c)

Hearing. The hearing shall be conducted pursuant to the

provisions of section 4247(d).

(d)

Determination and disposition. If, after the hearing, the court

finds by clear and convincing evidence that the person is a

sexually dangerous person, the court shall commit the person to

the custody of the Attorney General. … [T]he Attorney General

shall place the person for treatment in a suitable facility, until -(1)

such a State will assume such responsibility; or

(2)

the person’s condition is such that he is no longer sexually

dangerous to others, or will not be sexually dangerous to

others if released under a prescribed regimen of medical,

psychiatric, or psychological care or treatment; whichever

is earlier.

…

18 U.S.C. § 4247 provides, in pertinent part:

…

(b)

Psychiatric or psychological examination. A psychiatric or

psychological examination ordered pursuant to this chapter shall

be conducted by a licensed or certified psychiatrist or

psychologist, or if the court finds it appropriate, by more than one

such examiner. Each examiner shall be designated by the court,

except that if the examination is ordered under section 4245,

4246, or 4248, upon the request of the defendant an additional

examiner may be selected by the defendant. …

(c)

Psychiatric or psychological reports. A psychiatric or

psychological report ordered pursuant to this chapter shall be

prepared by the examiner designated to conduct the psychiatric

or psychological examination, shall be filed with the court with

copies provided to the counsel for the person examined and to the

attorney for the Government, and shall include -(a)

the person’s history and present symptoms;

(b)

a description of the psychiatric, psychological, and medical

tests that were employed and their result;

(c)

the examiner’s findings; and

(d)

the examiner’s opinions as to diagnosis, prognosis, and -…

(D)

(d)

if the examination is ordered under section 4248,

whether the person is a sexually dangerous person;

Hearing. At a hearing ordered pursuant to this chapter the person

whose mental condition is the subject of the hearing shall be

represented by counsel and, if he is financially unable to obtain

adequate representation, counsel shall be appointed for him

pursuant to section 3006A. The person shall be afforded an

opportunity to testify, to present evidence, to subpoena witnesses

on his behalf, and to confront and cross-examine witnesses who

appear at the hearing.

Statement of the Case

Proceedings Below

On March 28, 1960, Petitioner Thomas Blackledge was convicted of First-

Degree murder and was sentenced to life in prison which was later commuted to eight

years. (J.A. 231). Mr. Blackledge was released on supervision on May 3, 1968 and was

discharged from parole on May 28, 1975. (J.A. 233).

On June 10, 1986, petitioner Thomas Blackledge was convicted of one count of

knowingly mailing visual depictions, the producing of which involved the use of

minors engaging in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(1);

and 16 counts of employing and using a minor child for the purpose of producing a

visual depiction of such conduct which visual depiction was or would be mailed in

violation of 18 U.S.C. § 2251(a). (J.A. 230). Mr. Blackledge was released on February

23, 2003. (J.A. 230).

Mr. Blackledge pled guilty on February 23, 2005 to one count of Sexual

Exploitation of Children-Second Offense (Class 4 Felony) and was sentenced to two

to six years in prison concurrent with his federal probation revocation. (J.A. 466-68).

Mr. Blackledge was found guilty on April 27, 2005 of one count of Violation of

Special Condition Prohibiting Defendant from Viewing and/or Possessing Child

Pornography and one count of Violation of the Law and was sentenced to six years in

prison and five years of probation. (J.A. 484-87).

Mr. Blackledge was certified as a sexually dangerous person on September 19,

2009. (J.A. 18-25). Mr. Blackledge was appointed counsel from the Federal Public

Defender on June of 2010 after the ruling in United States v. Comstock, 560 U.S. 126

(2010) upholding the Adam Walsh Act. On July 10, 2012, Mr. Blackledge’s counsel

filed a motion to withdraw due to conflict with Mr. Blackledge, and on July 18, 2012

after a hearing, the motion was denied. United States v. Blackledge, 751 F.3d 188,

190 (4th Cir. 2014). Counsel appealed the district court’s ruling. Id. Following a

hearing on August 10, 2012, while Mr. Blackledge’s counsel’s appeal was pending,

Mr. Blackledge was committed under the Adam Walsh Act. (J.A. 9, D.E. 74-76). On

Mr. Blackledge’s counsel’s appeal, the Fourth Circuit reversed and remanded, ruling

that Mr. Blackledge should be granted a new commitment hearing with new counsel.

Blackledge, 751 F.3d at 198-99.

On November 16, 2016, following a civil commitment hearing on May 16, 2016,

Mr. Blackledge was again committed under the Adam Walsh Act. (J.A. 712-714). The

court of appeals affirmed and denied Mr. Blackledge’s request for an en banc hearing.

(Pet. App. B).

II.

Factual Background

On January 20, 1960, when Mr. Blacklege was 15-years old, Mr.

Blackledge was “making out” with a 15-year-old female in his home. When Mr.

Blackledge began taking off his underwear, the female “protested…and became

hysterical.” (J.A. 231). They argued and Mr. Blackledge struck her. Id. They got

dressed and agreed that Mr. Blackledge would drive her home. Id. Mr. Blackledge

drove her to a vacant house and repeatedly struck her with a hammer and then drove

away. Mr. Blackledge told authorities that he intended to kill her. (J.A. 232).

Mr. Blackledge was tried as an adult and pled guilty by reason of insanity.

(J.A. 232). The court’s psychiatric evaluation found that Mr. Blackledge was not

insane but that he was “severely incapacitated by a disabling mental illness…

passive-aggressive personality, aggressive type.” Mr. Blackledge was convicted of

First-Degree murder and sentenced to life in prison. (J.A. 232).

While incarcerated, Mr. Blackledge was mentored by an older inmate, Robert

James Robinson, described as a “one-time tough con who had apparently natural

counseling abilities” (J.A. 233). Mr. Robinson was “very influential” in Mr.

Blackledge’s good behavior and pursuit of education and helped Mr. Blackledge

“develop his emotional maturity.” (J.A. 234). Mr. Blackledge took classes while

imprisoned and received his high school diploma. (J.A. 237). He was valedictorian of

his class. While imprisoned, he also took college courses through the University of

Wyoming. (J.A. 237).

On August 24, 1964, Mr. Blackledge was evaluated by a psychiatrist who found

that Mr. Blackledge’s “emotional controls had improved and that he would probably

not resort to violence again under similar circumstances.” (J.A. 240).

From 1966 to 1968, Mr. Blackledge received “intense psychological counseling”

from Michael Gamble, a psychologist at Wyoming State Penitentiary. (J.A. 240). The

psychologist found that Mr. Blackledge had committed the 1960 homicide one month

after finding out he had been adopted and had done it out of fear that his adopted

parents might reject him as his natural parents had if they found out about the female

“[becoming hysterical] after his sexual advances.” (J.A. 240).

After Mr. Blackledge was released, he enrolled in college on scholarship,

married, and had a son. (J.A. 235-37). In 1972, Mr. Blackledge received a B.A. in

Psychology, Special Education, and Rehabilitation and Related Services, and in 1974

became employed as a social services case worker. (J.A. 237-38). Mr. Blackledge and

his wife divorced in 1976 after which Mr. Blackledge began to struggle with severe

anxiety which forced him to resign from his job. (J.A. 235-37). He voluntarily sought

therapy for several years and was able to work for periods of years on and off as his

anxiety fluctuated. (J.A. 238-39). He sought alcohol abuse treatment in 1985 and has

remained sober except for a period of relapse from 2003-2004. (J.A. 238-213). His

primary therapist was Ms. Bear who found that Mr. Blackledge coped by using

fantasy to handle his stress effectively. (J.A. 241).

In January or February of 1986, Mr. Blackledge, along with Mr. and Mrs. Esch,

created child pornography using the Esch’s three-year-old girl and two-year-old boy.

(J.A. 223-27). Mr. Blackledge took two photographs of each of his co-defendants

simulating sex with each of the children. (J.A. 223-27). Mr. Blackledge sent these

photographs to an undercover law enforcement agent. (J.A. 223).

In 1986, following the aforementioned offense, Mr. Blackledge’s defense

counsel asked Dr. Selkin, who had seen Mr. Blackledge in 1977, to evaluate Mr.

Blackledge. (J.A. 242). Mr. Blackledge disclosed to Dr. Selkin his “strong temptation”

to have sex with children but said he had never followed through on his desires. (J.A.

252). Dr. Selkin diagnosed him as “an addictive personality, with intense anxiety,

and periodic severe depression.” (J.A. 242). He also found that “immaturity and poor

judgment are additional significant diagnostic features.” (J.A. 242). He found that

Mr. Blackledge was not “criminally motivated because he responded well to therapy

[and] other forms of supervision, and because he has lived within the law for 15

successive years.” (J.A. 242). Mr. Selkin believed that Mr. Blackledge would be “safe

in the community should the Court see fit to grant him that opportunity.” (J.A. 242).

In 1986, Mr. Gamble was also consulted. (J.A. 241). Mr. Gamble had stayed in

touch with Mr. Blackledge after his release and saw a deterioration in Mr. Blackledge

in the 5-10 years before his 1983 offense. (J.A. 241). Mr. Gamble described that

“[w]hile imprisoned, defendant always had a good imagination, but was able to keep

his imagination and reality in proper perspective.” (J.A. 241). Mr. Gamble thought

from their recent discussions that Mr. Blackledge was no longer able to maintain that

perspective. (J.A. 241). He also noted that Mr. Blackledge “suppressed much

emotional pain, which only became observable…through a hindsight process after

[Mr. Blackledge] had left the institution.” (J.A. 241). Mr. Gamble expressed a belief

that Mr. Blackledge “is treatable, especially since [he] has always responded well to

counseling.” (J.A. 241).

In 1993, Mr. Blackledge entered sex offender treatment with the

Colorado Department of Corrections. He completed Phase I and began Phase II on

March 17, 2000. (J.A. 476). In February of 2003, the month of his release, he was

evaluated by one of his treatment providers, Dr. Vehar, who found that “due to his

sexual violence in the past at a young age and his history of antisocial behavior, Mr.

Blackledge’s risk to re-offend is moderate to high.” (J.A. 399-400).

On February 23, 2003, Mr. Blackledge was released on supervision to

his son’s home in Greeley, Colorado. (J.A. 399). On or about September 3, 2003, Mr.

Blackledge purchased a computer with Internet access. On October 16, 20, or

November 20, 2003, he told his therapist, Kim Ruybal, that he had looked at child

pornography on this computer. (J.A. 403-32). Law enforcement subsequently

searched his computer and found 12,000 photos, 17 of which depicted what appeared

to be “nude minor children.” (J.A. 399). In February of 2004, Ms. Ruybal found that

Mr. Blackledge “is not amenable to treatment” and that he “appears at an extremely

high risk to re-offend both sexually and non-sexually.” (J.A. 403-32).

On May 26, 2004, Mr. Blackledge took a polygraph examination in which he

disclosed that he had been going to chat rooms and engaging in sexual discussions

with minors. (J.A. 480). He said that he exchanged nude photos with five females

aged 13 to 18. (J.A. 480). He also admitted to viewing child pornography. (J.A. 480).

The polygraph “revealed” that he “admitted fantasies about minors 100% of the time

during masturbation.” (J.A. 480). He denied meeting, photographing, or videotaping

any minors. (J.A. 480).

In June of 2004, Mr. Blackledge was evaluated by Dr. Stephen Brake. (J.A.

455). Dr. Brake found that Mr. Blackledge’s account of the number of minors he had

had sexual contact with as an adult had varied but was at least 12 and at most 20.

(J.A. 480). Dr. Brake found that Mr. Blackledge is a “psychopath and a sexual

predator who remains at high risk as a sexual offender” and that he “requires

treatment in a closed and contained facility.” (J.A. 481-82).

On November 16, 2016, following a May 16, 2016 renewed civil

commitment hearing, Mr. Blackledge was again committed under the Adam Walsh

Act. (J.A. 712-714).

Of the three prongs that must be met to be justify civil commitment

under the Adam Walsh Act, prongs one and two were stipulated and therefore not in

dispute. (J.A. 26-190). Therefore, much of the hearing focused on whether Mr.

Blackledge met the “serious difficulty” prong of the Adam Walsh Act. (J.A. 26-190).

At the time of the trial, Mr. Blackledge was seventy-one. (J.A. 678-711).

All of the experts agreed that individuals above age seventy sexually recidivate at a

rate of three percent. (J.A. 26-190). The United States’ expert, Dr. Gary Zinik,

described individuals who recidivate after age seventy as “rare birds” (J.A. 111),

further noting that “if we wanted to be right most of the time, we should release 70

year-old sex offenders because…we would be correct probably 96, 97 percent of the

time.” (J.A. 110). In regards to this issue, the court’s appointed independent evaluator

Dr. Frank Wood testified that “[t]here is an inevitable corollary to that rarity…rare

events occur so infrequently that you can't get evidence that distinguishes people who

are going to have that rare event from people who are not going to have it” (J.A. 132),

indicating his belief that recidivists over age 70 are so few and far between that it is

scientifically incoherent to predict who they might be. (J.A. 141).

In addition to age, another dominant focus at the hearing was Mr. Blackledge’s

frank testimony about his sexual fantasies. (J.A. 26-190). He testified that he

fantasizes about having sex with young girls, and that in his fantasies, the young

girls are not hurt. (J.A. 13-15). However, he described the idea that the young girls

are not hurt by having sex with an adult as a delusion; he testified as to his awareness

that, outside of fantasy, children are harmed by having sex with adults. (J.A. 41-43).

When questioned about his supposed belief that children are harmed by sexual

contact with adults solely because of social stigmatization of such contact, Mr.

Blackledge replied that, upon growing older, the child “[learns] new information” and

then “realizes the damage,” (J.A. 42) (emphasis added) further explaining that the

damage is caused at the time of sexual contact but may not be realized until the child

is old enough to understand what has happened to them. (J.A. 42-43). Mr. Blackledge

testified that he had not always understood that children were harmed by sexual

contact with adults but that in sex offender therapy in Colorado he started to develop

this understanding. (J.A. 63). He also testified that he developed this understanding

by talking online in a chat room to a victim of sexual violence and empathizing with

her experience of harm. (J.A. 63). Finally, when asked if he was aware that he had

done harm to children, he acknowledged the ripple effects of harm, answering “not

only to the children, but also to their parents and family and friends.” (J.A. 66).

The government also argued that Mr. Blackledge had trouble with authority

figures such that he would be likely to disregard or violate conditions of release. (J.A.

46-48). Other evidence contradicted this view: his lack of disciplinary violations,

disruptive, or rebellious behavior during his many years in jail and prison; his lack

of probation violations or trouble with his probation officer during his seven years on

parole from 1968 to 1975; his long history of seeking out and successfully

participating in mental health and substance abuse treatment both in community

and prison settings (J.A. 240-243); and the fact that he held two steady jobs for three

and four years respectively during his only substantial period in the community as

an adult (J.A. 238).

The Government also argued that Mr. Blackledge’s past offenses, particularly

his 2004 probation violation, meant that he would be likely to offend again upon

release, particularly because he viewed child pornography even after developing a

safety plan in sex offender therapy. (J.A. 111). When asked if he had followed this

safety plan, Mr. Blackledge replied that he ignored his safety plan in regard to looking

at child pornography on the internet but that he practiced it “in regards to everyday

life.” (J.A. 49). And although Mr. Blackledge did look at child pornography in 2004,

he was aware that doing so “[created] a self-perpetuating downward spiral” (J.A. 29).

Because of this, he decided to self-report his conduct to his counselor within two

months of purchasing the computer, knowing full well that this would mean he would

be sent back to prison. (J.A. 59-60).

The district court ordered Mr. Blackledge committed under the Adam Walsh

Act. (J.A. 712-713). The court in its Findings and Conclusions spent numerous pages

recounting Mr. Blackledge’s criminal history but accorded none of its words to the

positive changes Mr. Blackledge has demonstrated throughout his history. (J.A. 67991). In discussing Mr. Blackledge’s incarceration from 1960 to 1968, the court

includes no mention of Mr. Blackledge’s participating in counseling during his time

in prison, or the fact that a medical evaluator found in 1964 that his volitional control

had increased, nor his positive relationships with staff and other inmates, nor his

lack of any conduct violations. (J.A. 681). The court also includes no mention of Mr.

Blackledge’s life from 1968 to 1985, a period of time during which he was in the

community, five years of which he was on probation (during which time he did not

violate his probation); a time in which he received a Bachelor’s Degree, held two

steady jobs for several years, and voluntarily sought and participated in years of

counseling and substance abuse treatment. (J.A. 681-82). The court merely briefly

notes, when discussing Mr. Blackledge’s imprisonment from 1986 to 2003, that Mr.

Blackledge participated in sex offender treatment in Colorado; it does not mention

that Mr. Blackledge successfully participated in thirteen years of sex offender

treatment in Colorado from 1990 to 2003 which he credits for having increased his

compassion and empathy such that he understands that children are harmed by

sexual contact with adults. (J.A. 682-685). The court does not mention the remarkable

fact that in 2004, when Mr. Blackledge looked at child pornography, he turned

himself in to his counselor within two months of doing so, feeling that returning to

prison was worth avoiding the harm caused to himself and others by his behavior.

(J.A. 685). The court does not mention the fact that Mr. Blackledge testified that he

was indeed applying the safety plan he learned in sex offender treatment in Colorado

to his everyday real life (juxtaposed with internet pornography fantasizing). (J.A.

685).

Mr. Blackledge appealed the order citing in particular the fact that only

3% of sex offenders over age 70 recidivate, the court’s overreliance on past offenses,

and a study which was not admitted into evidence. (J.A. 715). The court of appeals

affirmed, finding the district court’s reasoning plausible, and denied Mr. Blackledge’s

request for an en banc hearing. (Pet. App. B).

Reasons for Granting the Writ

Crane and Hendricks left a great deal of room for variation in how courts

might apply the “serious difficulty” standard. As such, it has been applied in a wide

variety of idiosyncratic ways. Only in such a landscape, where the court is

offered wide leeway to rule based on its personal feelings about what constitutes clear

and convincing evidence of this “serious difficulty” could it be considered reasonable

that Mr. Blackledge be found sexually dangerous such that he must be committed

under the Adam Walsh Act.

Mr. Blackledge case evidences the progress that can be made through sex

offender treatment and the deterrent aspect of incarceration and civil commitment.

Throughout Mr. Blackledge’s series of confinements, he has participated in various

forms of therapies and learned coping mechanisms. Mr. Blackledge has de-escalated

his conduct from murder at age 15 to his most recent offense of viewing child

pornography. As a coping mechanism to prevent recidivism, Mr. Blackledge

fantasizes privately about children.

With a complete and total lack of validated scientific literature as to what can

predict sexual dangerousness, the district court nonetheless found by clear and

convincing evidence that Mr. Blackledge should be committed despite their being only

one relevant scientifically-agreed-upon statistic – that Mr. Blackledge represents a

group that only recidivates at the rate of 3%. While Crane cautions against brightline rules, a 3% chance of recidivating cannot be reasonably equated with clear and

convincing evidence of sexual dangerousness under the Adam Walsh Act.

Because of the lack of clear standards regarding dangerousness following the

ruling of Kansas v. Crane, Mr. Blackledge has been ordered civilly committed

indefinitely. Therefore, this court should clarify what must be demonstrated in order

for an individual to constitutionally have their liberty interest potentially

permanently deprived.

Adam Walsh Act Generally

The Adam Walsh Act permits civil commitment of certain Federal inmates at

the completion of their sentence who meet three specific criteria: “(1) has previously

‘engaged or attempted to engage in sexually violent conduct or child molestation,’ (2)

currently ‘suffers from a serious mental illness, abnormality, or disorder,’ and (3) ‘as

a result of’ that mental illness, abnormality, or disorder is “sexually dangerous to

others,” in that “he would have serious difficulty in refraining from sexually violent

conduct or child molestation if released.” United States v. Comstock, 560 U.S. 126,

130 (2010). The government bears the burden of proof, the standard of which is clear

and convincing. Id.

The Supreme Court has addressed the Adam Walsh Act only insofar as

upholding its constitutionality under the Necessary and Proper Clause. Id. at 149.

However, the Court pointedly stated that “[w]e do not reach or decide any claim that

the statute or its application denies equal protection of the laws, procedural or

substantive due process, or any other rights guaranteed by the Constitution.” Id. at

149-50. At oral argument, Justice Sotomayor inquired of then Solicitor General

Kagan if the government had an “unlimited constitutional power to then civilly

commit this dangerous person” indefinitely purely by nature of “their time in control

of the individual.” Transcript of Oral Argument at 10-11, United States v. Comstock,

560 U.S. 126 (2010) (No. 08-1224). In defending the Adam Walsh Act, Solicitor

General Kagan responded with “I think what would prevent that, Justice Sotomayor,

is the Due Process Clause. It is obviously the case that there are other constraints on

governmental action than Article I.” Id. To date, no such Due Process case has been

decided by the Supreme Court.

II.

Conflicts among the federal courts of appeals and/or state supreme

courts.

Courts have developed a wide variety of interpretations as to the question of

determining what it means to prove “serious difficulty in controlling behavior.”

Kansas v. Crane, 534 U.S. 407, 413 (2002).

Jurisdictions interpret the finding of Crane in different ways,

specifically as to whether a volitional control finding is a

requirement; therefore, this Court has a vested interest in

establishing a uniform standard.

Justice Scalia has remarked that Crane “[established] the requirement of a

separate finding of inability to control behavior.” Kansas v. Crane, 534 U.S. 407, 419

(2002) (Scalia, A., dissenting).

Today’s opinion says that the Constitution requires the addition of a

third finding: (3) that the subject suffers from an inability to control

behavior—not utter inability and not even inability in a particular

constant degree, but rather inability in a degree that will vary in light

of such features of the case as the nature of the psychiatric diagnosis,

and the severity of the mental abnormality itself. … Unfortunately, it

gives trial courts, in future cases under the many commitment statutes

similar to Kansas’s SVPA, not a clue as to how they are supposed to

charge the jury!

Id. at 423 (internal quotation marks omitted).

In interpreting Crane, courts have disagreed on whether Crane adds an

additional due process requirement by necessitating a finding of volitional

impairment when establishing a serious inability to control behavior.

A majority of jurisdictions appear not to require a finding of volitional control.

Richard v. Carpinello summarized the complexity and distinguished courts’

approaches:

[T]he majority of state high courts and circuit courts of appeal that have

examined the Crane decision have concluded that the Supreme Court

did not add a factor to the due process test for involuntary commitment.

See Varner, 460 F.3d at 864 (“Once a jury has found mental illness and

a likelihood of future offenses, it has drawn the line [between civil

commitment and the criminal law] the Court thought essential.”);

Laxton v. Bartow, 421 F.3d 565, 572 (7th Cir.2005) (holding that Crane

did not “clearly establish [ ] that the jury must be instructed and

specifically find that petitioner has serious difficulty in controlling his

behavior”); In re Leon G., 204 Ariz. 15, 59 P.3d 779, 786 (2002) (holding

that Crane did not alter the Hendricks analysis “that focused on the link

between proof of dangerousness and proof of mental abnormality”);

People v. Williams, 31 Cal.4th 757, 3 Cal.Rptr.3d 684, 74 P.3d 779, 790

(2003) (“[Crane] does not compel us to hold that further lack-of-control

instructions or findings are necessary to support a commitment under

[California's Sexually Violent Predators Act].”); State v. White, 891 So.2d

502, 509-510 (Fla. 2004) (“While Crane requires proof of serious

difficulty in controlling behavior, the proof Crane requires is not proof

in addition to that already required under [Florida's sexually violent

predator] statute.”) (internal quotation marks omitted); In re Detention

of Varner, 207 Ill.2d 425, 279 Ill.Dec. 506, 800 N.E.2d 794, 798 (2003)

(holding that Crane does not require a specific determination by the fact

finder that a person lacks volitional control); In re Dutil, 437 Mass. 9,

768 N.E.2d 1055, 1064 (2002) (“As long as the [Massachusetts] statute

requires a showing that the prohibited behavior is the result of a mental

condition that causes a serious difficulty in controlling behavior, the

statute meets due process requirements.”); In re Vantreece, 771 N.W.2d

585, 587-88 (N.D.2009) (holding that the due process requirement of

serious difficulty in controlling behavior is part of the definition of

sexually dangerous individual, which requires a nexus between the

mental disorder and the dangerousness); In re Treatment & Care of

Luckabaugh, 351 S.C. 122, 568 S.E.2d 338, 348 (2002) (“Crane does not

mandate a court must separately and specially make a lack of control

determination, only that a court must determine the individual lacks

control while looking at the totality of the evidence.”); In re Detention of

Thorell, 149 Wash.2d 724, 72 P.3d 708, 715-16 (2003) (en banc) (“Crane

requires a determination that a potential SVP has serious difficulty

controlling dangerous, sexually predatory behavior, but does not require

a separate finding to that effect.”); In re Commitment of Laxton, 254

Wis.2d 185, 647 N.W.2d 784, 787 (2002) (“[A] civil commitment does not

require a separate finding that the individual's mental disorder involves

serious difficulty for such person to control his or her behavior.”). But

see In re Detention of Barnes, 658 N.W.2d 98, 101 (Iowa 2003) (holding

that to justify civil commitment, the jury must be instructed that the

person's mental condition must cause serious difficulty in controlling

behavior); In re Thomas, 74 S.W.3d 789, 792 (Mo.2002) (en banc)

(requiring a jury instruction defining mental abnormality to include

serious difficulty in controlling behavior); In re Commitment of W.Z., 173

N.J. 109, 801 A.2d 205, 219 (2002) (holding that for involuntary

commitment under the state's sexually violent predators act, the state

must prove an additional requirement “that the individual has serious

difficulty controlling his or her harmful sexual behavior such that it is

highly likely that the person will not control his or her sexually violent

behavior and will reoffend”).

Richard S. v. Carpinello, 589 F.3d 75, 84-85 (2d Cir. 2009).

The statute in question in this case does not explicitly require the fact-finder

to establish a separate finding of volitional impairment by requiring the government

to prove by clear and convincing evidence that the person, but rather implies that a

volitional finding is necessary by requiring a finding of “serious difficulty in

refraining” from prohibited conduct. 18 U.S.C. §§ 4247(a)(5)-(6).

Jurisdictions disagree as to what likelihood of recidivism must

be demonstrated to prove serious difficulty in controlling

behavior; therefore this Court has a vested interest in

establishing a uniform standard.

Courts disagree on the weight of evidence required to demonstrate serious

difficulty in controlling behavior. Compare Westerheide v. State, 767 So. 2d 637, 660

(Fla. Dist. Ct. App. 2000) with People v. Superior Court, 44 P.3d 949 (Cal. 2002). In a

First Circuit case, the court noted “there is no crystal ball that an examining expert

or court might consult to predict conclusively whether a past offender will recidivate.

At best, offenders can be located, by means of an actuarial tool, within a population

of individuals that share certain characteristics and that studies have shown to

recidivate at a particular rate. These tools are … moderate predictors of risk.” United

States v. Shields, 649 F.3d 78, 84 (1st Cir. 2011) (internal quotation marks omitted).

Several courts have ruled that the risk of re-offense must be established at

higher than fifty percent. See Westerheide v. State, 767 So. 2d 637, 660 (Fla. Dist. Ct.

App. 2000) (Sharp, concurring) (“Since this statute has very grave consequences … I

would read the language of the statute as placing the highest barrier to being found

to be a sexual predator. The ending part of the statutory definition of ‘likely to engage’

says this likeliness must be ‘of such a degree as to pose a menace.’ Thus, I would

construe ‘likely’ as meaning a high probability, greater than 50%.”); In re

Commitment of W.Z. 773 A.2d 97, 115-116 (N.J. Super. A.D. 2001); Laxton v. Bartow,

421 F.3d 565, 569 (7th Cir. 2005) (holding that substantial probability means much

more likely than not, noting that “[t]he state was obligated to prove that Laxton is

dangerous to others because he has a mental disorder which creates a substantial

probability that he will engage in acts of sexual violence…”) (internal quotation

marks omitted); State v. Nelson, 727. N.W.2d 364, 366-68 (Wis. Ct. App. 2006)

(holding that “likely” is statutorily defined as “more likely than not.”)

Others have ruled that showing a greater than 50% probability is not

necessary. See e.g., People v. Superior Court, 44 P.3d 949 (Cal. 2002); Van Grivensen

v. G.R.H, 711 N.W.2d 587, 593 (N.D. 2006).

In Wooden I, the Fourth Circuit found that a showing of greater than fifty

percent is unnecessary because it “finds no support in the language of the Act. The

Act requires the government to prove that the inmate will have serious difficulty

refraining from re-offense … but it does not ask the finder of fact to determine exactly

how likely [the inmate] is to reoffend.” United States v. Wooden (Wooden I), 693 F.3d

440, 460-61 (4th Cir. 2012).

In State v. White one of the dissenting opinions notes the many ways that

“likely to recidivate” can be interpreted, concluding that the various definitions

represent a “range of possibilities, and one too great to pass constitutional muster.”

State v. White, No. SC02-2277, 2004 Fla. LEXIS 2402 (Fla. Dec. 23, 2004) (Pariente,

C.J., dissenting).

The Adam Walsh Act rulings inconsistently apply similar

evidence to support or find against volitional control in

commitment hearings; therefore this Court has a vested interest

in establishing a uniform standard.

What must be shown to demonstrate lack of volitional control has been applied

unevenly even within the Fourth Circuit. Compare United States v. Caporale, 701

F.3d. 128 (4th Cir. 2012) with United States v. Hall, 664 F.3d 456, 466 (4th Cir. 2012).

Some courts have required a demonstrated lack of volitional control in order to

commit, see United States v. Caporale, 701 F.3d 128, 142 (4th Cir. 2012) (finding that

a release was proper because Caporale had refrained from viewing pornography while

committed), while others note patterns of escalating conduct as grounds for

establishing dangerousness, see United States v. Bell, 884 F.3d 500, 507 (4th Cir.

2018) (affirming order committing respondent despite respondent never having

committed a contact offense due to “a pattern of escalating conduct, and what the

Court finds to be several attempts at hands-on conduct…”). Still others point to

changes while committed. See United States v. Wooden (Wooden II), 887 F.3d 591, 608

n.7 (4th Cir. 2018) (“[W]hen Wooden was transferred to Butner in 2005, he sent a

Christmas card to the seven-year-old boy at the center of the 2005 laundry-room

incident…There is no indication that Wooden has ever again attempted to correspond

with children.”).

In United States v. Caporale, the Fourth Circuit upheld the district court’s

judgment that Caporale could not be civilly committed, despite an approximate risk

of recidivism at 25%. United States v. Caporale, 701 F.3d 128, 134-35 (4th Cir. 2012).

Importantly, the court recognized that Caporale’s behavior while confined would

speak to control. Id. at 141 (noting “that no such [illicit] materials had been found in

Caporale’s possession during the ten months prior to hearing plausibly supports …

an inference of control”).

By contrast, in the United States v. Hall, the Fourth Circuit upheld the district

court’s finding that while Hall met prongs one and two (prior sexually violent offenses

and a serious mental illness, abnormality, or disorder), he did not meet prong three,

dangerousness, despite his “troubling history of failing to comply with institutional

rules and supervised release conditions, as well as his continued sexual interest in

pictures and drawings of prepubescent children.” United States v. Hall, 664 F.3d 456,

466 (4th Cir. 2012).

In United States v. Bolander, the Fourth Circuit affirmed commitment despite

the fact that the defendant had not committed a contact offense in over 20 years since

strict supervision could explain Bolander’s restraint rather than a “true change of

heart.” United States v. Bolander, 722 F.3d 199, 216 (4th Cir. 2013).

In United States v. Volungus, the First Circuit affirmed the commitment of

Volungus despite the fact that he had only one contact offense many years before.

United States v. Volungus, 730 F.3d 40, 49 (1st Cir. 2013). (“A court could reasonably

conclude that an individual who has committed multiple offenses but successfully

completed a rehabilitation program may be less dangerous than someone who has

committed one offense but exhibits a perpetual desire or propensity to commit more

offenses, even while in treatment.”).

In United States v. Antone, the Fourth Circuit explained the importance of an

individual’s factual record. See generally United States v. Antone, 742 F.3d 151 (2014).

In reversing a commitment order, the Fourth Circuit noted that in order to meet the

serious difficulty prong, “the Government must demonstrate that the serious illness,

as it has manifested in the particular respondent, has so significantly diminished his

volitional capacity such that he is distinguishable from the ordinary dangerous but

typical recidivist.” Id. at 159 (internal quotations omitted). The court ruled that

“Antone’s behavior … reveals no acts that conceivably come close to the sort of

malfeasance present in our aforementioned precedent. … The district court should

have been aware of the uniqueness of Antone’s factual record.” Id. at 167.

III.

Kansas v. Crane and United States v. Comstock explicitly left open Due

Process challenges to the act and whether commitment for an

emotional disorder is permissible; therefore this issue is ripe for

adjudication.

To hold that a respondent is sexually dangerous, the court must

find by clear and convincing evidence that there is a volitional

control issue, and cases in various jurisdictions have handled

this issue differently.

Two important state-law cases have addressed some similar issues of

determining dangerousness for sex offender civil commitment, each decided prior to

the enactment of the Adam Walsh Act. Kansas v. Crane, 534 U.S. 407 (2002) spoke

only to volitional behavior, and explicitly stated that the Court was not issuing a

ruling on purely emotional abnormalities. Crane discussed that pedophilia might be

described “by a lay person … as a lack of control.” Id. at 414 (2002). However, at this

point, Crane was primarily referring to the context of Kansas v. Hendricks, 521 U.S.

346 (1997), where Mr. Hendricks himself stated that he could not control the urge to

molest children. Crane, 534 U.S. at 414. As such, the Court in Crane agreed that its

discussion of “controlling behavior” was limited to volitional challenges and held that

“[t]he Court in Hendricks had no occasion to consider whether confinement based

solely on “emotional” abnormality would be constitutional, and we likewise have no

occasion to do so in the present case.” Crane, 534 U.S. at 415.

Despite the guidance of Crane, district and appeals courts have considerable

difficulty in defining and determining sexual dangerousness, even stating that “the

‘serious difficulty refraining’ assessment presented the most vexing issue.” United

States v. Carta, 690 F.3d 1 (1st Cir. 2012).

As a consequence, there is extremely limited case law concerning individuals

who clearly suffer emotional abnormalities with no evidence of demonstrating a

volitional inability or serious difficulty to refrain from sexually reoffending. Courts

addressing the issue have all found some example of a volitional matter to address,

such as possessing or creating child pornography while incarcerated. See, United

States v. Hall, 664 F.3d 456, 466-67 (4th Cir. 2012) (“As the experts noted, Hall’s

pedophilia and antisocial personality disorder have led him to continue to break the

rules and to seek out inappropriate sexual materials.”). However, the logic in such

cases often conflates volitional and emotional abnormalities, making claims such as

“[a] person with an emotional impairment might be subject to fits of anger or

meanness so extreme that he cannot control his actions.” In re Commitment of W.Z.,

773 A.2d 97, 569 (N.J. 2001).

Although past offending is relevant to the inquiry of

dangerousness, the respondent’s present condition must be

acknowledged.

The court in Volungus was tasked with determining the relationship between

past offending and future likelihood of recidivism, ultimately holding that “while

actual or attempted child molestation offenses may be telling evidence of just how

sexually dangerous an individual is, this is not the only type of evidence that speaks

to this trait.” United States v. Volungus, 730 F.3d 40, 49 (1st Cir. 2013). In this case,

the respondent was found to be sexually dangerous even though he only had a single

prior sexual offense.

A recent Fourth Circuit opinion addressed the necessity of looking beyond past

criminal offending to the “personal growth” of a respondent. Wooden II, 887 F.3d 591,

604-05 (4th Cir. 2018) (finding that the evaluator “focused too heavily on historical

criminal behavior rather than [the respondent’s] present condition”).

By definition, a diagnosis of pedophilic disorder requires a past act with a child.

The diagnosis does not, however, require current acts. It does permit a diagnosis

based on current urges, but it also permits a diagnosis based only on fantasies.

Through conflating these two options in the diagnosis, and assuming that past acts

can ensure certainty of future acts, the court allowed a commitment of an individual

who does not presently have any volitional control issues.

Furthermore, the law requires that, as a result of a mental illness, the

individual is sexually dangerous. Although pedophilic disorder certainly can render

someone volitionally impaired, fantasies alone do not speak to volition. However, to

suggest that an individual diagnosed with pedophilic disorder is inherently

dangerous and inherently lacks volitional control exclusively due to past actions

overwhelmingly ignores the ability for individuals to recover or otherwise change. In

the case of Mr. Blackledge, his most recent action that could speak to volitional

impairment was a non-contact offense thirteen years ago.

IV.

By allowing civil commitments based primarily on an individual’s

private fantasies, the court acted as thought police.

Since Proctor, a foundational principle of American jurisprudence is that “an

unexecuted criminal intent is not punishable as a crime.” Proctor v. State, 15 Okla.

Crim. 338, 342 (1918). In 1969, this Court addressed freedom of thought in Stanley v.

Georgia, finding that “[w]e are loath to give the government the power to punish us

for our thoughts and not our actions. Stanley v. Georgia, 394 U.S. 557, 565 (1969). In

1992, the Court reaffirmed this principle, that “a person’s inclinations and fantasies

are his own and beyond the reach of the government.” Jacobson v. United States, 503

U.S. 540, 551-52 (1992).

In a Second Circuit case, the court carefully weighed the line between fantasy

and action, noting that the government has only the power to punish actions, not

thoughts, stating that the government does not have “the power to criminalize an

individual’s expression of sexual fantasies, no matter how perverse or disturbing.

Fantasizing about committing a crime, even a crime of violence against a real person

whom you know, is not a crime.” United States v. Valle, 807 F.3d 508, 511 (2d Cir

2015).

A Seventh Circuit case from just two years before the creation of the Adam

Walsh Act discusses the fine line between sexual fantasy and a likelihood of child

molestation. See Doe v. City of Lafayette, 377 F.3d 757 (7th Cir 2004). In this case,

Mr. Doe, who had a lengthy history of sexual crimes against children, was banned

from public parks in his city after going to a park “looking for children.” 377 F.3d at

759. In upholding the ban, the court distinguished between punishment for “pure

thought” as opposed to “thought accompanied by action.”:

The City has not banned him from having sexual fantasies about

children. It did not ban him from the public parks because he admitted

to having sexual fantasies about children in his home or even in a coffee

shop. The inescapable reality is that Mr. Doe did not simply entertain

thoughts; he brought himself to the brink of committing child

molestation. He had sexual urges directed toward children, and he took

dangerous steps toward gratifying his urges by going to a place where

he was likely to find children in a vulnerable situation.

To characterize the ban as directed at “pure thought” would

require us to close our eyes to Mr. Doe’s actions. It also would require

that we give short shrift to Mr. Doe’s condition as an admitted pedophile

who continues to have difficulty controlling his urges.

337 F.3d at 767.

Commitments based either primarily or exclusively on a current condition

presenting as “pure thought” certainly violate fundamental American jurisprudential

principles of legality such as the principle that no one should be punished for a status,

behaving as the thought police, and criminalizing mental illnesses. It is imperative

to recall that civil commitment can deprive an individual of their liberty interest for

life, and the weight of this liberty interest must be balanced with the requirements

for a showing of dangerousness.

Committing someone who has openly expressed his fantasies but does

not have a volitional control issue will undermine and invalidate the

effectiveness of the Adam Walsh Act in protecting the public.

Committing an individual, potentially indefinitely, for fantasies sets a

dangerous stage for the future effectiveness of the Commitment and Treatment

Program (CTP), and the ability for individuals who require mental health treatment

but have not yet sought it.

1. Because the Adam Walsh Act requires that a respondent currently be in

Federal custody but does not require that the respondent is in custody for a

sexual offense, current inmates who may fantasize about sexual deviant

activities will be resistant to seek help. They may fear that, by expressing their

sexual fantasies, they are putting themselves at risk of civil commitment.

Therefore, those who may suffer from disorders such as pedophilic disorder will

not seek the treatment they need.

2. In commitment hearings, respondents will be reluctant to testify honestly

about their fantasies, since such testimony may be the basis for their indefinite

civil commitment. This will lead to individuals who may be sexually dangerous

not being committed because they were simply dishonest.

3. Individuals who are civilly committed, similarly, will be resistant to be honest

in treatment about their fantasies if they know they will be viewed as

dangerous because of these fantasies alone. Already, in the CTP, inmates are

hesitant to be open and honest with the treatment providers because they must

waive confidentiality. Allowing courts to commit based on fantasy alone will

send a clear signal to those in treatment that their pathway to release may lie

in concealing their fantasies, thereby hindering treatment progress.

4. Commitment for fantasy is analogous to commitment for addiction. However,

when an addict will no longer use a drug, they are released from commitment,

not when they no longer fantasize about using a drug. A ruling that allows

commitment for fantasy, not for action will instill a sense of hopelessness in

respondents, and hopelessness is considered “counter-therapeutic” in sexual

offender civil commitment settings. Van Orden v. Schafer, 129 F. Supp. 3d 839,

859 (E.D. Mo. 2015) (“Nearly every witness who testified at trial … agreed that

… there is a perception among committed individuals that the only way out …

is to die. This hopelessness is counter-therapeutic and impedes the treatment

progress of … residents.”).

5. It is self-evident that individuals who are committed indefinitely are highly

motivated to be released. Therefore, what is designed to be a therapeutic

process becomes a contrivance. To the extent that disclosing fantasies helps

define the therapeutic parameters of who can be released, it encourages

respondents to lie to their therapists because those lies are more likely to result

in their release from commitment than disclosure of their most intimate

thoughts. As a result, individuals who very well may be sexually dangerous

will be able to skillfully progress through treatment in dishonest pathways,

ultimately securing their premature release, undermining the intended

protective effect of the Adam Walsh Act.

Conclusion

For the foregoing reasons, the United States Supreme Court should grant the

petition for certiorari.

/s/ Lawrence H. Brenner