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Ninth Circuit: Adam Walsh Detention Doesn’t Toll Term of Supervised Release

In a case of first impression, the Ninth Circuit Court of Appeals held that the period of time spent in civil confinement under the Adam Walsh Act does not constitute “imprisonment,” and that a defendant’s period of supervised release is thus not tolled and continues to run during that time.

Marc Christopher Turner, who initially served a federal prison sentence for sexually explicit conduct and returned to custody after violating his supervised release, was civilly confined for “Adam Walsh Act review” at the end of his prison term. While held in custody pending the civil commitment proceedings, “Turner filed a motion to terminate his term of supervised release on the ground that the term had run during his civil detention.” The district court denied his motion.

However, following five years of civil detention and a bench trial, the district court entered judgment in Turner’s favor, finding that the “government had failed to prove by clear and convincing evidence that, as a result of a serious mental illness, abnormality or disorder, Turner would have serious difficulty refraining from sexually violent conduct or child molestation if released.” He was ordered to be freed.

On appeal, the Ninth Circuit examined the nature of confinement under the Adam Walsh Child Protection and Safety Act of 2006, 18 U.S.C. §§ 4247-48, and the meaning of “imprisonment” under 18 U.S.C. § 3624(e). Pursuant to § 3583(a), a federal prison sentence “may include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment....” Further, under § 3624(e), “A term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days.”

The appellate court wrote, “We conclude that, during the almost five years Turner was kept in limbo awaiting his civil commitment hearing, he was not ‘imprisoned in connection with a conviction for a ... crime,’ which is required to toll the commencement of supervised release under Section 3624(e).” In reaching its decision, the Court of Appeals pointed out that in its brief, the government had apparently agreed with at least one portion of the Court’s position: “Civil commitment is not imprisonment, therefore Section 4248 civil commitment does not toll supervised release....”

The government then argued that this would not be true “if the defendant’s release is stayed pending resolution of his civil commitment hearing.” The appellate court did not follow this tortured reasoning, noting that the government had taken five years “to determine that Turner should not be civilly committed.”

The Court of Appeals distinguished the case of United States v. Johnson, 529 U.S. 53 (2000), which dealt with a defendant who, “at all times during his incarceration, was ‘imprisoned in connection with a conviction for a crime.’” Johnson’s convictions were vacated after he had already served 51 months of his sentence, but the Supreme Court held that even the vacating of his convictions did not reduce his period of supervised release because § 3642(e) “directs that a supervised release term does not commence until an individual is ‘released from custody.’” The Ninth Circuit noted that “Unlike Turner, Johnson had not yet completed his prison sentence.”

The appellate court also rejected the government’s argument that Turner’s period of supervised release should not be tolled because he remained in the custody of the Bureau of Prisons; rather, the Court of Appeals focused its attention “on the nature of the custody.” Likewise, the Court found that the rule of lenity “cuts in Turner’s favor” and was applicable in this case, and concluded that Turner’s term of supervised release had expired while he was held pending civil commitment proceedings.

One circuit judge issued a dissenting opinion, noting that in Johnson the Supreme Court had stated, “Supervised release does not run while an individual remains in the custody of the Bureau of Prisons.” See: United States v. Turner, 689 F.3d 1117 (9th Cir. 2012).

This case is another example of the federal government’s less-than-impressive track record of attempting to civilly commit sex offenders after they have served their prison sentence. It appears that the government simply tries to keep certain sex offenders in custody for as long as possible – five years in Turner’s case – regardless of the merits of the civil commitment proceedings. [See: PLN, Aug. 2012, p.1].

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Related legal case

United States v. Turner