U.S. civil confinement clashes with U.K. and E.U. human-rights laws

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More than eight years after failing to appear at his trial in Superior Court for Orange County, California, on child-molestation charges, Roger Alan Giese has turned up in England.[1] Giese, who was working as a public-relations executive under the name of Jonathan Roberts, has incited a debate between British and American authorities.[2] Although the extradition of fugitives is supposed to be a “routine step in the process of bringing international fugitives to justice,”[3] the U.S. and U.K. governments are arguing about what will happen to Giese once he has served his sentence in the United States.[4]

American state and federal civil-commitment laws are at the center of the debate. In the United States, civil-commitment discussions revolve largely around the idea of balancing an “individual's liberty interest and due process rights with the state's obligation to act as a guardian for its citizens.”[5] Civil-commitment statutes allow twenty U.S. states, the District of Columbia, and the federal government to detain individuals who suffer from severe mental illness or are potentially dangerous to the public without the detainees’ consent and outside of the criminal justice system. [6] However, civil-commitment statutes pose constitutional dangers: They may unnecessarily result in indefinite detention of people who have fully served their criminal sentences. [7] Most recently, U.S. District Court for the District of Minnesota held that state’s sex offender civil-commitment statutes unconstitutional.[8] The court found that “Minnesota’s civil commitment scheme is a punitive system that segregates and indefinitely detains a class of potentially dangerous individuals without the safeguards of the criminal justice system.” [9]

In the Giese case, England’s High Court is refusing to extradite him, fearing that he will be denied human rights by being indeterminately civilly committed to a mental facility once he is released from prison.[10] The High Court wants U.S. federal prosecutors to guarantee that Giese will not be subject to civil commitment if he is convicted. [11] Civil-commitment experts in California have suggested to the British courts that there is a very real possibility that Giese will be subject to civil commitment if convicted, because of the nature of his charges.[12] For example, California law provides for a judge to decide whether an individual “is likely to engage in sexually violent predatory criminal behavior upon his or her release” and if probable cause is found, the judge will order an individual to be held in custody and a trial to be conducted in order to determine whether an individual is “likely to engage in acts of sexual violence upon his or her release . . . .”[13] Orange County prosecutors have said that that Giese will not be a candidate for civil commitment.[14] The English government has not said whether it will allow Giese to stay in England if he is not extradited to the United States.[15]

British Parliament approved the Extradition Act of 2003 (“EA”) in January 2004.[16] Although the United Kingdom has granted the United States some of the treaty’s benefits since 2004, the U.S. Senate did not ratify the treaty until 2006, three years after it was signed.[17] Under the treaty, any crime subject to twelve months or more of prison time is an extraditable offense.[18] Moreover, the treaty provides that extradition may be refused in cases where the defendant is a capital-punishment candidate unless the country requesting extradition guarantees that a death sentence will not be applied to the defendant.[19]

Additionally, the treaty allows the United Kingdom to temporarily render fugitives serving U.K. prison sentences to the United States for trial on U.S. charges.[20] Before the treaty was signed and implemented, Charles Falconer of Thoroton, a member of the House of Lords and former solicitor general for England and Wales, said,

The United States is one of our key extradition partners and there is a significant volume of extradition business between the two countries. It is therefore important that our bilateral extradition treaty should be as effective as possible. I am pleased that it has been possible to reach agreement on the new treaty and that the Government have the opportunity to affirm their commitment to the closest possible co-operation in the fight against terrorism and other serious crime.[21]

Although the U.S. and U.K. governments were optimistic, the EA was widely criticized as one-sided. Critics claimed that the treaty favored the American government, allowing it to simply request extradition without providing evidence of the alleged crime.[22] On the other hand, the treaty did not provide the same benefit to the United Kingdom, which was still obligated to make a prima facie case of the suspected offense.[23]

Under the EA, when a person has not yet been convicted, the judge deciding the extradition request has to determine whether the evidence submitted by the country requesting extradition is sufficient to make a case against the alleged fugitive.[24] However, there are exceptions to this evidence requirement. For example, the treaty provides that the need for evidence may be waived if the Secretary of State of the country asked to extradite a fugitive “makes a further designation.”[25] There is a list of states, which includes the United States, that fall under this designation and who are exempt from providing the evidence required by Section 84(7).[26]

The U.S. Embassy to the United Kingdom has discounted the assertions that no evidence must be provided by the United States to extradite an international fugitive from the United Kingdom, assuring that all extradition requests between the United States and the United Kingdom have to meet the same “probable cause” standard.[27] Moreover, the U.S. State Department has also addressed the evidentiary burden required for extradition under the treaty:

Article 8(3) provides that a request for the extradition of a person sought for prosecution must be supported by: (a) a copy of the warrant or order of arrest issued by a judge or other competent authority; (b) a copy of the charging document, if any; and (c) for requests to the United States, such information as would provide a reasonable basis to believe that the person sought committed the offense for which extradition is sought.[28]

Although it seems that the treaty does not change the evidentiary burden required for the extradition of a fugitive from the United States, the evidentiary requirements for extradition of a fugitive from the United Kingdom have been reduced from a prima facie standard to the U.S. Constitutional “probable cause” standard.[29]

As a member of the European Union, the United Kingdom must comply with the European Convention on Human Rights and Fundamental Freedoms (“ECHR”).[30] Under Article 87(1) of the EA, the judge “must decide whether the person’s extradition would be compatible with the [ECHR] rights within the meaning of the Human Rights Act of 1998.”[31] If the person’s extradition is not compatible, the judge “must order the person’s discharge.”[32] The problem in the present case is British officials’ opposition to American civil-commitment laws. Here, the British authorities must ultimately decide whether there is a real risk that Giese will be subject to civil commitment and if so, whether civil commitment would be a violation of Giese’s rights under Article 5(1) of the ECHR enough so that it would bar his extradition under section 87(2) of the EA.[33]

Courts in the United States “have established that mental illness and dangerousness are constitutional predicates for civil commitment.”[34] However, civil-commitment statutes often blur the distinction between civil law and criminal law in the U.S. judicial system.[35] For example, in Kansas v. Hendricks, the defendant appealed from an order civilly committing him to the Secretary of Social and Rehabilitation Services under the Kansas Sexually Violent Predators Act.[36] The defendant had been convicted of indecent liberties with a child.[37] Ultimately, the U.S. Supreme Court held that the Kansas Act “does not establish criminal proceedings, and involuntary confinement under it is not punishment.”[38] Upholding the constitutionality of civil-commitment laws in Kansas v. Crane, the Supreme Court stated that it has:

[C]onsistently upheld such involuntary commitment statutes when (1) the confinement takes place pursuant to proper procedures and evidentiary standards, (2) there is a finding of dangerousness either to one's self or to others, and (3) proof of dangerousness is coupled . . . with the proof of some additional factor, such as a mental illness or mental abnormality.[39]

The Giese case illustrates the controversy of U.S. civil-commitment laws. Civil commitment allows convicted sex offenders who have completed their sentences to be involuntarily committed to mental facilities indefinitely.[40] Proponents for civil-commitment statutes argue that these laws serve to keep the community, especially children, safe.[41] However, U.K. courts have held that civil-commitment laws violate human rights by forcing the subject to remain in custody after he has served the punishment for his crimes.[42] This is an issue under the EA, since part of a British judge’s decision of whether to extradite a fugitive is making a determination that none of the fugitive’s human rights will be violated under the 

This is the third time in the recent past that British authorities have refused to extradite an American sex offender because of U.S. civil-commitment laws.[43] According to a 2014 survey by the San Diego Sex Offender Civil Commitment Programs Network, there are about 5,000 civilly committed sex offenders in the United States, twice as many as a decade ago.[44] This dispute is not limited to U.S.-U.K. relations, as evidenced in the Minnesota federal court earlier this year. In California, where Giese was to be prosecuted, more than 900 sex offenders are in civil confinement, and only 140 have been released since 2005.[45] Although committed offenders technically can petition for their release, a judge or jury has to render the decision for an offender to be actually released, paralleling the criminal system.[46] 

It appears that U.K. authorities will not extradite Giese until U.S. authorities assure the U.K. government that Giese will not face civil commitment in the future. In ruling on the extradition request, Judges Aikens and Holroyde wrote, “In our view indeterminate detention on that basis would . . . amount to a complete denial of his . . . rights . . . because such a ‘mental disorder’ cannot be said to warrant the draconian step of compulsory confinement for an indefinite period.”[47]

[1] Kelly Puente, Brits won't return a local fugitive accused of child molestation. Here's why, Orange County Register (Oct. 29, 2015), http://www.ocregister.com/articles/giese-689851-civil-commitment.html [http://perma.cc/L6K6-8A9V].

[2]  Id.

[3] Leon Neyfakh, England Refuses to Extradite An Alleged Sex Offender, Slate (Oct. 21, 2015), http://www.slate.com/articles/news_and_politics/crime/2015/10/roger_alan_giese_england_refuses_to_extradite_accused_sex_offender.html [http://perma.cc/8NEV-QNUJ].

[4] Puente, supra note 1.

[5] Aman Ahluwalia, Civil Commitment of Sexually Violent Predators: The Search for a Limiting Principle, 4 Cardozo Pub. L. Pol'y & Ethics J. 489, 496-97 (2006).

[6]  Civil Commitment of Sexually Violent Predators, Ass'nfOR the Treatment of Sexual Abusershttp://www.atsa.com/civil-commitment-sexually-violent-predators (last viewed Dec. 15, 2015); see also Karsjens et al. v. Minnesota Department of Human Services et al., 0:11CV03659, 2 (D. Minn. Jun. 17, 2015).

[7]  Karsjens, at 3.

[8]  Id. at 4.

[9]  Id.

[10]  United States v. Giese, [2015] EWHC (Admin) 2733 (Eng.) (“This is a form of indeterminate confinement in a secure facility which may be imposed in civil proceedings against a person who has been convicted of, and who has served his sentence for, certain types of sexual offence and who is deemed to be mentally ill and dangerous.”).

[11] Puente, supra note 1.

[12] Cal. Welf. & Inst. Code § 6600.1 (2006) (“If the victim of an underlying offense . . . is a child under the age of 14, the offense shall constitute a ‘sexually violent offense’ for purposes of Section 6600.”).

[13]  Id. § 6602.

[14] Puente, supra note 1.

[15]  Id.

[16] Sally Broadbridge, The UK/US Extradition Treaty, House of Commons Library, 3 (Feb. 29, 2009), available at http://researchbriefings.files.parliament.uk/documents/SN02204/SN02204.pdf.

[17] Carlos Torres, Senate Unanimously Ratifies U.S., U.K. Extradition Treaty, Bloomberg (Sept. 30, 2006), http://www.bloomberg.com/apps/news?pid=newsarchive&sid=aEgU_TIgfK1U&refer=home.

[18] Broadbridge, supra note 16, at 5.

[19]  Id.

[20] Torres, supra note 10.

[21]  Id. at 6 (internal quotations omitted).

[22]  Id.

[23]  Id. (internal quotations omitted).

[24] Extradition Act 2003 art. 84(1), Nov. 20, 2003, http://www.statewatch.org/news/2003/jul/UK_USA_extradition.pdf.

[25] Broadbridge, supra note 16, at 10 (internal quotations omitted).

[26]  Id.

[27]  Fact Sheet on the U.S.-UK Extradition Treaty, U.S. Embassy: London, U.K. (Nov. 16, 2011), http://london.usembassy.gov/gb140.html [http://perma.cc/977U-UXTH].

[28] Broadbridge, supra note 16, at 14 (internal quotations omitted).

[29]  Id.

[30] European Convention on Human Rights and Fundamental Freedoms art. 8, Nov. 4, 1950, Europe T.S. No. 2889, 213 U.N.T.S. 221.

[31] Extradition Act 2003, supra note 24, art. 87(1).

[32]  Id. at art. 87(2).

[33]  United States v. Giese, supra note 10, at 4.

[34] Ahluwalia, supra note 5, at 496.

[35]  Id. at 504.

[36]  521 U.S. 346 (1997).

[37]  Id.

[38]  Id. at 347.

[39]  122 S. Ct. 867, 869 (2002).

[40] Puente, supra note 1.

[41]  Id.

[42]  Id.

[43]  Id.

[44]  Id.

[45] Puente, supra note 1.

[46] Cal. Welf. & Inst. Code § 6605(b) (2006) (“If the court or jury rules against the committed person. . . the term of commitment of the person shall run for an indeterminate period from the date of this ruling and the committed person may not file a new petition until one year has elapsed from the date of the ruling. If the court or jury rules for the committed person, he or she shall be unconditionally released and unconditionally discharged.”)

[47]  United States vGiese, supra note 10, at 63.

Posted by Melodie Pellot-Hernandez on Tue. December 15, 2015 8:55 PM
Categories: European Union, Extradition, International Human Rights, Reports (longer, analytical blog posts), United Kingdom, United States

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