The Federal Bureau of Prisons has announced a new policy concerning the certification and civil commitment process for federal inmates. While civil commitment is nothing new for federal prisoners, the new policy better outlines the process, stages and elements for review. This new policy is detailed in Program Statement 5394.01, Certification and Civil Commitment of Sexually Dangerous Persons.

Before delving into the program statement, it should be noted that the Bureau of Prisons civilly commits very few inmates. While this is a nagging fear for many sex offenders in federal custody, very few have anything to worry about.

Initial Review by the DSCC

The process starts with the Designation and Sentence Computation Center (DSCC) identifying newly sentenced inmates who “may qualify for review for potential certification as sexually dangerous.” Id. at § 3. This identification is accomplished through a review of Presentence Investigation Reports (PSRs), Judgment and Commitment Orders (J&Cs), Statement of Reasons (SORs), and other court records that indicate that an inmate has “a history of unlawful sexual conduct.” Id. at § 3(a). Selected inmates are then referred to the Sex Offender Certification Review Branch (SOCRB), a division within the Correctional Programs Division of Central Office, when they are between 18 and 24 months from their projected release date.

When reviewing these documents, the DSCC is directed to group inmates into one of several categories:

-No Walsh Act Offense History (“WA NO HIST”)

-Walsh Act History With Conviction (“WA W CONV”)

-Walsh Act History-No Conviction (“WA NO CONV”)

The designation is inputted into SENTRY, the Bureau’s computer system, for future use. Inmates identified as having a Walsh Act history will have a release hold placed on them pending further review. Id. at § 3(a). Those without such a history are cleared for release for when their good conduct time release date is met.

Institutional Review

Once at their designated facility, the institution’s Sex Offender Release Coordinator (SORC) and the inmate’s unit team are directed to verify the SENTRY designation by reviewing “available documentation.” Id. at § 3(b). At every program review, and on an ongoing basis, the SORC and unit team staff are directed to review detainer, incident reports, SIS reports, DHO reports, and other information for possible revision of the SENTRY classification. Id. at § 3(b).

When the inmate is within 18 to 24 months of release, the SORC updates the SENTRY code to “WA REFER” and refers the inmate’s file to the SOCRB for review. This starts the true civil commitment review. In terms of timelines, the program statement states, “To the extent possible, the SOCRB’s review process should not interfere with the institution’s routine release preparation. However, an inmate may not be placed in an RRC until the SOCRB has concluded its review.” Id. at § 3(b). This is a significant improvement from past practice, when federal inmates would be transferred for commitment review just before their release date, held for months after their release date while this review was being conducted, and then eventually released.

In the case of an inmate subject to immediate release, the SOCRB is notified as soon as possible and documents are transmitted via email for review. The program statement provides for both normal duty hours and after-hours notification of such. Id. at § 3(e).

Civil Commitment Review Elements

There are three elements that Bureau of Prisons’ staff review when determining civil commitment applicability: behavioral, diagnostic and risk. Id. at § 5(c)(1)-(3).

The behavioral element consists of reviewing each inmate’s history to determine if there is evidence that the individual “engaged or attempted to engage in sexually violent conduct or child molestation.” Id. at § 5(c)(1). The discussion concerning this element is interesting for several reasons. First, “a charge or conviction for a sexual offense is not necessary.” Id. at § 4(a). Second, merely having a sexual offense does not fulfill this element. The underlying conduct must consist of attempting to or actually committing “sexually violent conduct or child molestation.” Id. at § 4(a). Mere possession or receipt of child pornography would not be enough. According to the program statement, “civil commitment is intended for the most serious offenders having more direct victim contact.” Id. at § 4(a). Note, however, that “sexual misconduct occurring in a correctional or other confinement facility may be considered in evaluating the existence of qualifying Element 1 conduct.” Id. at § 4(a).

The diagnostic element determines whether the inmate has “a serious mental illness, abnormality or disorder.” Id. at § 5(c)(2). Cut to its core, this requires the inmate to have a “diagnosable condition relevant to his/her offending behavior.” Id. at 5(c)(2).

The risk element analyzes whether the inmate would have “serious difficulty in refraining from sexually violent conduct or child molestation.” Id. at § 5(c)(3). According to 28 C.F.R. § 549.95(a)-(e), Bureau civil commitment review officials may consider the following when making this determination:

a) Evidence of the person’s repeated contact, or attempted contact, with one or more victims of sexually violent conduct or child molestation;

b) Evidence of the person’s denial of or inability to appreciate the wrongfulness, harmfulness, or likely consequences of engaging or attempting to engage in sexually violent conduct or child molestation;

c) Evidence established through interviewing and testing of the person or through other risk assessment tools that are relied upon by mental health professionals;

d) Evidence established by forensic indicators of inability to control conduct, such as: 1) Offending while under supervision; 2) Engaging in offense(s) when likely to get caught; 3) Statement(s) of intent to reoffend; or 4) Admission of inability to control behavior;

e) Evidence indicating successful completion of, or failure to successfully complete, a sex offender treatment program.

Reviewing officials are also permitted to take into consideration other evidence. PS 5394.01 at § 5(c)(3). One tactic sometimes used by those at high risk of commitment is to participate in either the Bureau’s Non-Residential Sex Offender Treatment Program or the Residential Sex Offender Treatment Program. PS 5324.10, Sex Offender Programs, at §§ 3.1 and 3.4. While successful completion of one or both of these programs can help from a mitigation standpoint, there is the risk of records generated and information obtained during such treatment being used in civil commitment proceedings.

SOCRB Review

Following the institutional review, the SOCRB then conducts their own, more in-depth review. This includes a review of the above discussed elements. If the inmate is found to have engaged in or attempted to engage in sexually violent conduct or child molestation, then the SOCRB “conducts actuarial risk assessments.” PS 5394.01 at § 4(b).

If the inmate is found to be at a moderate or high risk of recidivism, they are referred to the SOCRB clinical psychologist for review, who then completes a case summary and an actuarial risk assessment. Id. at § 4(c). This case summary can contain “details regarding the inmate’s history of sexual and non-sexual offenses, institutional misconduct, mental health contacts and treatment, and the length and nature of community supervision to follow imprisonment.” Id. at § 4(c).

At this stage of the process, if an inmate is deemed to not fulfill the behavioral element, they are not subjected to further review. Their SENTRY code designation is changed to “WA NOT CER” (Walsh Act – Not Certified) and they will be cleared for release when the time comes. On the other hand, if the SOCRB clinical psychologist determines that the elements appear to be satisfied, and that the inmate is at a high risk of reoffense, then a referral is made to the Certification Review Panel. Id. at § 4(c).

Full Review by the Certification Review Panel

At this phase, the full Certification Review Panel (CRP) reviews the entire case in detail. This panel ordinarily consists of a chairperson (SOCRB Administrator or designee), one or more SOCRB Clinical Psychologists, and an attorney from the Office of General Counsel. Id. at § 5.

The initial CRP review consists of reexamining each of the above elements as they pertain to the inmate being evaluated for civil commitment. This includes review of the prepared case summary and may also include “diagnoses rendered in prior mental health evaluations.” Id. at § 5(a). If, at this point, the CRP determines that “at least one of the required elements for certification” is not met, then the inmate is cleared for release. Id. at § 5(a). On the other hand, if the elements are met, then the inmate is referred for a precertification evaluation. Id. at § 5(a). This requires the inmate to be transferred to FCI Butner. Id. at § 6.

The precertification evaluation is a “forensic psychological evaluation” which is conducted by “psychologists with specialized training in the assessment of sex offenders.” Id. at § 5(b). This is “ordinarily” a Bureau psychologist. This evaluation includes “comprehensive diagnostic and risk assessments of the inmate that help the CRP to determine the second and third elements necessary for certification as a sexually dangerous person.” Id. at § 5(b). At the end of the precertification evaluation, the evaluator prepares a report which is presented to the CRP. Id. at § 5(b).

The final stage in this CRP process is the review of the evaluation report and other information concerning the inmate. Id. at § 5(c). If the CRP finds that all of the elements are met, then a legal review is conducted. Id. at § 5(c)(4). This review includes discussions of burden of proof, self-admissions and the legal landscape. Id. at § 5(c)(4). According to the program statement, “cases may arise where the CRP determines an inmate meets the statutory criteria from a clinical standpoint, but the case poses legal obstacles that may ultimately preclude his/her commitment.” Id. at § 5(c)(4).

At this final stage, any inmate found to not qualify for civil commitment, whether based upon the CRP’s opinion of the inmate or the CRP’s belief of success in the courts, is cleared for release. On the other hand, if commitment is sought, the CRP certifies the inmate and the CRP Chairperson then signs a declaration entitled “Certification of a Sexually Dangerous Person” and transmits this to the U.S. Attorney’s Office in the Eastern District of North Carolina, where FCI Butner is located. Id. at § 6. At that point the U.S. Attorney’s Office takes over the legal proceedings, which require a hearing in front of a U.S. District Court judge.

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com and PrisonerResource.com.

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).