The 9th Circuit has ruled that the period of time spent in civil confinement under the Adam Walsh Act did not constitute "imprisonment" and that a defendant's period of supervised release continues to run during that time. Marc Christopher Turner, who initially had served a prison sentence for sexually explicit conduct and returned to prison on a violation, had been confined civilly for "Adam Walsh Act Review."

According to the decision, "while in detention, Turner filed a motion to terminate his term of supervised release on the ground that the term had run during his civil detention under Section 4248. The district court denied the motion."

However, after five years of civil detention, the district court after

a bench trail entered judgment in Turner's failure, ruling 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," and ordering him to be freed from custody. U.S. v. Turner, No. 5:07-HC-2167-D-JG, 2012 WL 965985 at *2 (E.D.N.C. March 9, 2012).

The case turned on an analysis of the nature of confinement under the Adam Walsh Child Protection and Safety Act of 2006, 18 U.S.C. Section 4247 and 4248, and the meaning of "imprisonment" under 18 U.S.C. Section 3624(e). Under Section 3583(a), a term of imprisonment for a felony or misdemeanor "may include as a part of the sentence a requirement that the defendant be place on a term of supervised release after imprisonment..."

The 9th Circuit said that, "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). See: Morales­ Alejo, 193 F.3d at 1104-05." In reaching its decision, the court pointed out that the government in its brief 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 court did not not go along with this tortured reasoning, and noted that the government had taken five years "to determine that Turner should not be civilly Committed."

The court distinguished the case of U.S. 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 court ruled that even the vacating of his judgment did not reduce his period of supervised release, because Section 3642(e) "directs that a supervised release term does not commence until an individual is 'released from custody.'" The court correctly noted, that, "Unlike Turner, Johnson had not yet completed his prison sentence."

The court also rejected the government argument that Turner's being in the custody of the Bureau of Prisons was not dispositive, and that attention should be focused on the "nature of the custody." Likewise, the court said that the rule of lenity "cuts in Turner's favor," and applied in this instance.

See: U.S. v. Marc Christopher Turner, 11-10038, U.S. Court of Appeals for the Ninth Circuit, (2012).

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