June 23, 2009
Can the Government Hold "Sexually Dangerous" Persons Beyond Their Prison Term?
The Supreme Court on Monday agreed to hear the government's appeal of a Fourth Circuit decision earlier this year that held that the government lacks authority to hold a "sexually dangerous" person beyond their prison term.
The Fourth Circuit case, U.S. v. Comstock, involved Title III of the Adam Walsh Child Protection Act, 18 U.S.C. Sec. 4248 (or just "Sec. 4248"), which authorizes the Attorney General to place in indefinite civil commitment any individual in federal Bureau of Prison custody that the AG designates as "sexually dangerous." The Fourth Circuit ruled that Sec. 4248 exceeded congressional authority; I posted on the decision here. Since then the Eighth Circuit upheld the provision in U.S. v. Tom, creating a circuit split.
The difference between the Fourth Circuit approach and the Eighth Circuit approach is this: The Fourth Circuit asked whether Sec. 4248 itself was authorized by the Commerce Clause (along with the Necessary and Proper Clause); but the Eighth Circuit asked whether Sec. 4248 was authorized only by the Necessary and Proper Clause as an appropriate mean to the end of enforcing the underlying conviction (which might be supported by any Article I authority, but most likely the Commerce Clause). In other words, the Fourth Circuit treated Sec. 4248 as a stand-alone act, an end in itself, based on the fact that Sec. 4248 operates only after an individual has served out the original sentence--i.e., after the BOP has an interest in continued confinement for anything having to do with the original offense. The Eighth Circuit, in contrast, treated Sec. 4248 as a means to an end--a way to help enforce the underlying act--in the same way that the Court held that involuntary civil commitment helped enforce the underlying indictment (but, importantly, not conviction) in Greenwood v. U.S.
If the Court sees Sec. 4248 as an end in itself (like the Fourth Circuit), Comstock would give the Court an opportunity to refine its Commerce Clause analysis under Lopez, Morrison, and Raich. But Comstock would be a particularly bad case in which to do this: The government didn't develop a Commerce Clause argument at the Fourth Circuit, and, as a result, the Fourth Circuit didn't have much to say. (The Fourth Circuit simply seemed bewildered by the government's reliance only on the Necessary and Proper Clause--an argument that sees Sec. 4248 as a means to the end of enforcing the underlying conviction and that better fits with the Eighth Circuit approach.) Even if the Court adopts this approach, we're therefore unlikely to see any dramatic new developments in the Commerce Clause coming out of this case.
If instead the Court sees Sec. 4248 as a means to an end (like the Eighth Circuit), Comstock would give the Court an opportunity to reassess the relationship between the Commerce Clause (or any Article I power supporting an underlying federal criminal law) and the Necessary and Proper Clause (which supports the related involuntary civil commitment). The key to this approach may well be Greenwood. The Court in that case ruled that Congress could authorize involuntary civil commitment for an individual found mentally incompetent to stand trial. But the civil commitment in Greenwood came before trial, at a point where the BOP still had an interest in the defendant for the underlying charge. Comstock is different: Comstock's civil commitment came after he served his time, at a point where the BOP no longer had an interest in him for the underlying conviction. (Note that Comstock's underlying conviction--possession of child pornography--is related to sex and therefore may make it easier for the Court to rule that his civil commitment as a "sexually dangerous" person was an appropriate mean to the end of enforcing the child pornography law. Under Sec. 4248, this need not have been the case. Sec. 4248 applies to anyone in BOP custody, whether they're held for a crime related to sex or not.) The government's claim in Comstock, then, is for a Necessary and Proper Clause that is somewhat broader than that which supported the civil commitment in Greenwood.
If the Court goes this latter route, as seems more likely, watch closely for its ruling and language on the scope of the Necessary and Proper Clause. If the Court holds that it extends to support Sec. 4248, this could give the government a revitalized tool that could (re-)open up congressional authority in the Commerce Clause and beyond.
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