Sexually Dangerous Crimes and 2010 Comstock Decision

On May 17, 2010, In  U.S. v. Comstock, 08-1224, the high court reversed the 4th U.S. Circuit Court of Appeals in Richmond, Virginia’s ruling that Congress overstepped its authority when it enacted a law allowing the government to hold indefinitely people who are considered “sexually dangerous.”

In 2006, George W Bush signed the Adam Walsh Child Protection and Safety Act, which authorized the civil commitment of sexually dangerous federal inmates. The Act was challenged by four men who served prison terms ranging from three to eight years for possession of child pornography or sexual abuse of a minor. Their confinement was supposed to end more than two years ago, but prison officials said there would be a risk of sexually violent conduct or child molestation if they were released.

The federal statute allows a district court to order the civil commitment of an individual who is currently “in the custody of the [Federal] Bureau of Prisons,” §4248, if that individual:
  1. has previously “engaged or attempted to engage in sexually violent conduct or child molestation,”
  2. currently “suffers from a serious mental illness, abnormality, or disorder,” and
  3. “as a result of” that mental illness, abnormality, or disorder is “sexually dangerous to others,” in that “he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.” §§4247(a)(5)–(6).

In order to detain such a person, the Government (acting through the Department of Justice) must:

  1. certify to a federal district judge that the prisoner has engaged in sexually violent activity or child molestation in the past and
  2. that he suffers from a mental illness that makes him correspondingly dangerous to others.

When such a certification is filed, the statute:

  • automatically stays the individual’s release from prison, giving the Government an opportunity to prove its claims at a hearing through psychiatric (or other) evidence,
  • provides that the prisoner “shall be represented by counsel” and shall have “an opportunity” at the hearing “to testify, to present evidence, to subpoena witnesses on his behalf, and to confront and cross-examine” the Government’s witnesses.

If the Government proves its claims by “clear and convincing evidence,” :

  • The court will order the prisoner’s continued commitment in “the custody of the Attorney General,”
  • The Attorney General must “make all reasonable efforts to cause” the State where that person was tried, or the State where he is domiciled, to “assume responsibility for his custody, care, and treatment.

The Necessary and Proper Clause grants Congress authority sufficient to enact the statute, based on 5 arguments, according to Justice Stephen Breyer, who wrote the majority opinion:

  1. The Clause grants Congress broad authority to pass laws in furtherance of its constitutionally enumerated powers. It makes clear that grants of specific federal legislative authority are accompanied by broad power to enact laws that are “convenient, or useful” or “conducive” to the enumerated power’s “beneficial exercise.”
  2. Congress has long been involved in the delivery of mentalhealth care to federal prisoners, and has long provided for their civil commitment under  §4246. The similarities between §4246 and §4248 demonstrate that the latter is a modestaddition to a longstanding federal statutory framework.
  3. There are sound reasons for §4248’s enactment. The Federal Government, as custodian of its prisoners, has the constitutional power to act in order to protect nearby (and other) communities from the danger such prisoners may pose.
  4. Respondents’ contention that §4248 violates the Tenth Amend-ment because it invades the province of state sovereignty in an area typically left to state control is rejected. That Amendment does not “reserve to the States” those powers that are “delegated to the United States by the Constitution,” including the powers delegated by the Necessary and Proper Clause…And §4248 does not “invade” state sovereignty, but rather requires accommodation of state interests: Among otherthings, it directs the Attorney General to inform the States where the federal prisoner “is domiciled or was tried” of his detention, §4248(d),and gives either State the right, at any time, to assert its authorityover the individual, which will prompt the individual’s immediatetransfer to State custody
  5. Section 4248 is narrow in scope. The Court rejects respondents’ argument that, when legislating pursuant to the Necessary and Proper Clause, Congress’ authority can be no more than one step re-moved from a specifically enumerated power. …Nor will the Court’s holding today confer on Congress a general “police power, which the Founders denied the Nationa lGovernment and reposed in the States.” Section §4248 has been applied to only a smallfraction of federal prisoners, and its reach is limited to individuals already “in the custody of the” Federal Government, §4248(a). Thus, far from a “general police power,” §4248 is a reasonably adapted and narrowly tailored means of pursuing the Government’s legitimate interest as a federal custodian in the responsible administration of its prison system.

Justice Clarence Thomas dissented, saying  nothing in the Constitution “expressly delegates to Congress the power to enact a civil commitment regime for sexually dangerous persons, nor does any other provision in the Constitution vest Congress or the other branches of the federal government with such a power.” Thomas was joined in part on his dissent by Justice Antonin Scalia.

State laws allowing civil commitments of sex offenders also are unaffected

The Adam Walsh Child Protection and Safety Act includes other provisions that are not being challenged. It:
  • establishes a national sex offender registry
  • increases punishments for some federal crimes against children
  • strengthens child pornography protections.
  1. The Clause grants Congress broad authority to pass laws in furtherance of its constitutionally enumerated powers. It makes clear that grants of specific federal legislative authority are accompanied by broad power to enact laws that are “convenient, or useful” or “conducive” to the enumerated power’s “beneficial exercise.”
  2. Congress has long been involved in the delivery of mentalhealth care to federal prisoners, and has long provided for their civil commitment under  §4246. The similarities between §4246 and §4248 demonstrate that the latter is a modestaddition to a longstanding federal statutory framework.
  3. There are sound reasons for §4248’s enactment. The Federal Government, as custodian of its prisoners, has the constitutional power to act in order to protect nearby (and other) communities from the danger such prisoners may pose.
  4. Respondents’ contention that §4248 violates the Tenth Amend-ment because it invades the province of state sovereignty in an area typically left to state control is rejected. That Amendment does not “reserve to the States” those powers that are “delegated to the United States by the Constitution,” including the powers delegated by the Necessary and Proper Clause…And §4248 does not “invade” state sovereignty, but rather requires accommodation of state interests: Among otherthings, it directs the Attorney General to inform the States where the federal prisoner “is domiciled or was tried” of his detention, §4248(d),and gives either State the right, at any time, to assert its authorityover the individual, which will prompt the individual’s immediatetransfer to State custody
  5. Section 4248 is narrow in scope. The Court rejects respondents’ argument that, when legislating pursuant to the Necessary and Proper Clause, Congress’ authority can be no more than one step re-moved from a specifically enumerated power. …Nor will the Court’s holding today confer on Congress a general “police power, which the Founders denied the Nationa lGovernment and reposed in the States.” Section §4248 has been applied to only a smallfraction of federal prisoners, and its reach is limited to individuals already “in the custody of the” Federal Government, §4248(a). Thus, far from a “general police power,” §4248 is a reasonably adapted and narrowly tailored means of pursuing the Government’s legitimate interest as a federal custodian in the responsible administration of its prison system.