SCOTUS: Congress Can Lock Up Sexually Dangerous Persons by Adam B

SCOTUS: Congress Can Lock Up Sexually Dangerous Persons by Adam B
Share this on Twitter - SCOTUS: Congress Can Lock Up Sexually Dangerous Persons Mon May 17, 2010 at 09:22:03 AM PDT
What happens when a sex offender completes his criminal sentence but is still deemed too dangerous to be released into society?

In 2006, Congress passed the Adam Walsh Child Protection and Safety Act, which among other things gave the federal government the authority to seek civil commitment of "sexually dangerous person[s]" already held in its custody. It allows the government to seek to have individuals who are either completing federal prison sentences or incompetent to stand trial remain in federal custody indefinitely if they can prove through "clear and convincing evidence that this is a "sexually dangerous" person. If the federal government can make that showing, the person is committed to the custody of the Attorney General, who must then "make all reasonable efforts to cause" the state in which the individual resides or was tried "to assume . . . responsibility" for his custody and care. If not, the feds can keep him until either (a) he's no longer deemed dangerous (with or without ongoing treatment) or (b) the state agrees to take custody, with the confined person able to request a psychiatric and judicial review of his case every six months.

[What is a "sexually dangerous person"? Under the statute, it's one "who has engaged or attempted to engage in sexually violent conduct or child molestation," and "who is sexually dangerous to others," the latter further defined as someone who "suffers from a serious mental illness" such that he would "have serious difficulty in refraining from sexually violent conduct or child molestation if released."]

In a 7-2 decision today authored by Justice Breyer, the Supreme Court of the United States held that this statute was a proper exercise of Congressional power under the Necessary and Proper Clause. [The Court assumed for sake of argument that Due Process was satisfied.]

Why? The Court articulated five reasons: first, that the Necessary and Proper Clause grants Congress broad authority to enact federal legislation, or as Chief Justice Marshall wrote in McCullough v. Maryland (1819):

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate,which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."

Second, that "the civil-commitment statute before us constitutes a modest addition to a set of federal prison-related mental-health statutes that have existed for many decades," going back to the 1855 establishment of St. Elizabeth’s Hospital in the District of Columbia "to provide treatment to 'the insane of the army and navy . . . and of the District of Columbia,'" as well as a subsequent 1857 bill providing for the confinement there of any person within D.C. "who had been charged with a crime and who was 'insane' or later became 'insane during the continuance of his or her sentence in the United States penitentiary.'"

Third, the Court determined that this was a reasonable extension of the existing civil-commitment system already in existence for mentally ill and sexually dangerous persons in federal custody. Fourth, it reasonably accommodated state interests, and fifth, this wasn't too attenuated from an enumerated power of Congress -- that even though the Constitution only explicitly allowed for the creation of federal crimes for counterfeiting, treason and ""Piracies and Felonies committed on the high Seas" or "against the Law of Nations," that nonetheless it still had the power to create federal crimes for any violation of federal law.

Justice Kennedy, concurring, wanted to put some brakes on this notion of Necessary and Proper powers, believing that federalism was a bit undervalued by the majority, making clear that this power should only be used when the states don't want to take responsibility for such persons. Justice Alito, too, though the majority went too far but concurred because of his belief that this statute "is a necessary and proper means of carrying into execution the enumerated powers that support the federal criminal statutes under which the affected prisoners were convicted" because "in a disturbing number of cases, no State was willing to assume the financial burden of providing for the civil commitment of federal prisoners who, if left at large after the completion of their sentences, would present a danger to any communities in which they chose to live or visit."

Justices Thomas and Scalia dissented on the grounds that no enumerated power gave Congress this responsibility, nor was this necessary and proper for carrying out an explicitly enumerated power:

To be sure, protecting society from violent sexual of-fenders is certainly an important end. Sexual abuse is a despicable act with untold consequences for the victim personally and society generally. But the Constitution does not vest in Congress the authority to protect society from every bad act that might befall it. New York v. United States, 505 U. S. 144, 157 (1992) ("‘The question is not what power the Federal Government ought to have but what powers in fact have been given by the people’" (quoting United States v. Butler, 297 U. S. 1, 63 (1936)).

Why is this case a big deal? Because in accepting a broadened scope for the Necessary and Proper Clause in empowering the federal government to address concerns multiple steps removed from the Article I enumerated powers, it allows an energetic Congress to address these issues of key public concern without forcing the weighty constitutional amendment process every time some new issue arises.

Incidentally, Solicitor General Kagan argued this case for the United States in oral argument, the transcript of which is here.

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Tags: scotus, supreme court, article i, constitution, United States v. Comstock (all tags) :: Previous Tag Versions