Supreme Court Hears Challenge to Sex Offender Civil Commitment Law

How can a law allow the feds to continue to imprison an inmate after his sentence is up? That's what sex offender civil commitment laws allow. The Supreme Court held oral arguments today on a challenge to Section 4248 of the Adam Walsh Child Protection and Safety Act of 2006.

The law applies to any federal detainee, including inmates who are about to complete their entire prison terms and regardless of whether the suspected future act is a federal crime....Lawyers are challenging the law as a violation of due process. In addition, they argue that Congress exceeded the limits of its federal authority by attempting to prevent sex crimes.

...The key question before the high court is whether congressional authority to enact legislation is broad enough to encompass prevention of future sex crimes.


In the courts below:

A federal judge in North Carolina and the Fourth US Circuit Court of Appeals in Richmond have ruled that Section 4248 violates principles of federalism and the structure of government as laid down in the Constitution.

“The power claimed by Section 4248 – forcible, indefinite civil commitment – is among the most severe wielded by any government,” the Fourth Circuit declared in a January 2009 decision. “The Framers, distrustful of such authority, reposed such broad powers in the states, limiting the national government to specific and enumerated powers.”

The Government is arguing:

Solicitor General Elena Kagan says Congress may pass laws related to the federal criminal justice and penal system. She says Section 4248 is a “necessary and proper” use of federal power to protect the public.

60 inmates are being held in North Carolina under the law. An example:

Mr. Comstock was sentenced to three years in federal prison after pleading guilty to possessing child pornography. Six days before his scheduled release from prison, federal authorities moved to have him certified as a “sexually dangerous person.” To date, Comstock has spent six years in federal custody.

Sex Crimes Blog has some thoughts on today's arguments. The transcript is here.

Update: A Scalia snippet:

JUSTICE SCALIA: General Kagan, you are relying on the Necessary and Proper Clause, right? You say: But necessary and proper doesn't mean it is necessary and proper for the good of society. It means it is necessary and proper for the execution of another power that the Federal Government is given by the Constitution. Now why is this necessary for the execution of any Federal power? The Federal criminal proceeding has terminated. The individual is released. You could say it's necessary for the good of society, but that's not what the Federal Government is charged with. Why is it necessary to any function that the Federal Government is performing? It has completed its performance of the function of incarcerating this individual until he's served his punishment.
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  • Display: Sort:
    Too many people are in prison (5.00 / 1) (#1)
    by MKS on Tue Jan 12, 2010 at 03:09:47 PM EST
    So, I believe the only reason to put someone in prison is if they are a danger to society.  People like Bernie Madoff should not go to prison but be punished in other ways--lifetime of sweeping floors in homeless shelters, etc.  There is no reason to put non-violent offenders in prison....

    But going down that path leads to issues of civil commitment....punishing someone for something they haven't done yet....  

    Non violent offenders certainly can be punished .. (none / 0) (#6)
    by nyrias on Tue Jan 12, 2010 at 06:17:44 PM EST
    other ways. However, I am NOT for letting VIOLENT sex offenders (and yes, i understand they are only a subset of all sex offenders) out.

    May be the solution is to have LONGER sentences, and more life sentences, then trying to justify locking them up AFTER they finish their sentences.

    If we just let the small time drug offenders out, there will be enough room to lock up all violent offenders.


    A little more info (none / 0) (#9)
    by jbindc on Wed Jan 13, 2010 at 06:57:48 AM EST
    From Jeralyn's link

    Under the new law, more than 60 individuals have been certified as "sexually dangerous" and are being held in indefinite detention in a federal prison in North Carolina.

    Among them is Ms. Pearce's client, Graydon Comstock.

    Mr. Comstock was sentenced to three years in federal prison after pleading guilty to possessing child pornography. Six days before his scheduled release from prison, federal authorities moved to have him certified as a "sexually dangerous person." To date, Comstock has spent six years in federal custody.

    He is one of five individuals who sued to overturn Section 4248.

    There is no indication in public court files what precisely led federal authorities to conclude that Comstock was sexually dangerous. All five men "have an extensive history of sexually deviant behavior beyond the crimes for which they have been charged or convicted," a government filing says. It adds that "mental health professionals who have special expertise in sexual deviancy have certified that the respondents are `sexually dangerous persons.' "

    "Sexually Dangerous" persons in the Adam Walsh Act (AWA) (which also tightened penalties for possessing child pron):

    Under the law, a person is considered sexually dangerous if he or she has engaged or attempted to engage in sexually violent conduct or child molestation, and if he or she is also considered sexually dangerous to others. The Act defines a person as sexually dangerous to others if he or she "suffers from a serious mental illness, abnormality, or disorder as a result of which he [or she] would have serious difficulty in refraining from sexually violent conduct or child molestation if released."

    In order for the federal government to detain a sexually dangerous person, the person must still be in prison -- the government cannot seek civil commitment of a person who already has been released. The Attorney General is required to certify that the person is in fact sexually dangerous and submit the certification to a federal district court in the jurisdiction where the person is being held. The court then is required to hold a hearing to determine whether the person is sexually dangerous by clear and convincing evidence, a lower standard of proof than that required to find someone guilty of committing most crimes.

    If the court finds the person to be sexually dangerous, then the person is turned over to federal custody. In theory, the Attorney General is then supposed to take reasonable steps to turn custody of the person over to the state. However, until this has occurred, the federal government has the authority to detain the person indefinitely, so long as he or she is still considered sexually dangerous.

    So, I'm not sure I understand your non-sequitur about non-violent offenders.


    I didn't say sex offenders were non-violent (none / 0) (#11)
    by MKS on Wed Jan 13, 2010 at 12:16:34 PM EST
    I think sex offenses are violent.

     My point is that if we put people in prison because they are "violent," we could end up putting people in prison for things they have not done but for violent "tendencies"....

    Or in other words, if the sole basis for putting someone in prison is that they are a danger to society, then we could end up incarcerating people for things they haven't done....That is not our system....


    All i am saying is that ... (none / 0) (#12)
    by nyrias on Wed Jan 13, 2010 at 01:18:34 PM EST
    non-violent and violent sex offenders should be treated differently and i certainly thinks that there are room for arguments of what constitute a  "violent" categorization.

    However, I am not opposed to keep violent offender in prison for a long long time. If an offender uses violence, it is not unreasonable to have open ended sentences.

    This is not unlike life sentences with parole possibilities. Why not extend life sentences to some of these more violent crimes (and once again i am not arguing possession of child porn should be one of those crimes) and make it a condition of parole that experts agree the person is no longer a danger to society.


    if this was a tax case, (none / 0) (#2)
    by cpinva on Tue Jan 12, 2010 at 03:45:02 PM EST
    i would say Sect. 4248 doesn't meet the "all events" test, it relies on a contingent event: that a person might, in the future, commit a similar act.

    with luck, this statute will be struck down as unconstitutional. with more luck, it will cause a domino effect at the state level.

    if the legislature believes certain crimes are deserving of greater punishment (longer jail sentences),then they should have the courage of their convictions and legislate that openly, as well as explaining openly where the tax revenues to pay for it will come from.

    end-arounds on the constitution strike me as a sign of a weakly supported position.

    That's what I'm always told... (none / 0) (#3)
    by kdog on Tue Jan 12, 2010 at 03:55:25 PM EST
    when I b*tch about the law...if I don't like it, change it.

    If that is the case, the same should certainly apply to those who want people locked up for crimes they haven't committed yet, propose some thought-crime legislation.

    On second thought, please don't propose such a law anybody, in this enviroment it would pass.


    Surely SCOTUS has been asked (none / 0) (#4)
    by oculus on Tue Jan 12, 2010 at 04:24:54 PM EST
    in the past to review constitutionality of state MDSO statutues?  Not a new issue, except as to whether Congress has the power to pass such a law.

    Right (none / 0) (#7)
    by Steve M on Tue Jan 12, 2010 at 07:05:45 PM EST
    As I understand it, this is purely a question of federal/state authority.

    and so it is, (none / 0) (#8)
    by cpinva on Tue Jan 12, 2010 at 10:28:40 PM EST
    and so they have (previously ruled at the state level). that said, should the court rule against the federal gov't, bet on someone using that ruling to challenge the USSC's prior rulings at the state level.

    it would be a temptation difficult to resist, since they all rely on the same "contingent future act" theory.


    I HOPE it's found unconstitutional (none / 0) (#5)
    by Lora on Tue Jan 12, 2010 at 06:09:42 PM EST
    Regardless, I'm sure there are much better ways to prevent sex crimes.  Probably cheaper, too.

    Such as? (none / 0) (#13)
    by nyrias on Wed Jan 13, 2010 at 01:20:06 PM EST
    In case anyone missed it.... (none / 0) (#10)
    by sarcastic unnamed one on Wed Jan 13, 2010 at 11:45:29 AM EST
    the federal gvt, ie., Obama's gvt, is the defendant in this case.

    iow, Obama likes having the power of indefinite civil commitment for SO's and he's fighting as hard as he can to keep it.

    From what I heard on NPR (none / 0) (#14)
    by sarcastic unnamed one on Wed Jan 13, 2010 at 01:28:13 PM EST
    Mr. Comstock was given indefinite civil commitment, at least in part, becuase of the deeply disturbing things he had to say during the therapy he participated in in prison as part of his rehabilitation.

    "60 people" (none / 0) (#15)
    by diogenes on Wed Jan 13, 2010 at 05:59:58 PM EST
    Rather than mentioning one anecdote, someone please post a link to the complete criminal history and psychiatric risk assessments of all sixty of these offenders so we can see how sanguine we should be about release.
    Also, offenders with a single conviction often come out with histories of many other offenses in the past; it may be that Comstock was caught for possessing child porn but actually was an offender.  Actual transcripts would be useful.
    If these 60 guys are so nondangerous then I'm sure that they would be delighted to have their lawyers publicly release their information to help drum up support for their release.