Court Denies Indefinite Civil Commitment of Sex Offenders

Last week the Fourth Circuit Court of Appeals, in a case of first impression, limited the federal Government’s ability to place in indefinite civil commitment “sexually dangerous” persons under a federal law enacted as part of the Adam Walsh Child Protection Act of 2006 [18 U.S.C. § 4248].

Section 4248 authorizes the federal government to civilly commit, in a federal facility, any “sexually dangerous” person “in the custody” of the Bureau of Prisons–even after that person has completed his entire prison sentence. To initiate commitment under Section 4248, the Attorney General need only certify that a person in federal custody is “sexually

According to the Court in this case,U.S. v. Comstock, such a certification automatically stays a person’s release from prison without proof that they have committed any new offense; Section 4248 empowers the Attorney General to prolong federal detention without presenting evidence or making any preliminary showing other than an allegation of dangerousness.

Perhaps not surprisingly, the Court found several problems with this statutory scheme.
First, although the statute defines a “sexually dangerous person” to be one who “has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others,” and who suffers from a severe mental illness such
that he would “have serious difficulty in refraining from sexually violent conduct or child molestation if released,” neither “sexually violent conduct” nor “child molestation” are terms defined by the statute.

Second, after the Attorney General files the certification, the district court holds a hearing and if it determines by clear and convincing evidence that the person is sexually dangerous the court must commit the person to federal custody. At that point the Attorney General must make “all reasonable efforts” to transfer responsibility for the person to an appropriate state authority. Unless and until a state assumes this responsibility, however, the person is held in federal confinement for as long as the person remains “sexually dangerous.”

The main question in the appeal was whether the Constitution grants Congress
the authority to enact Section 4248. The Constitution requires that a specific enumerated power support every statute enacted by Congress

The Government argued that both the Commerce Clause and the Necessary and Proper Clause of the Constitution permitted it to enact legislation authorizing broad federal civil commitment powers.

Concerning the Commerce Clause, the Court held that “federal commitment of ‘sexually dangerous persons’ may well be—like the suppression of guns in schools or the redress of gender-motivated violence—a sound proposal as a matter of social policy. But policy justifications do not create congressional authority. Hence Section 4248 lies beyond Congress’s Commerce Clause authority.”

In terms of the Necessary and Proper Clause, the Court held that although the Clause
reaches broadly, it does so only to effectuate powers specifically enumerated in the Constitution. “The Necessary and Proper Clause simply does not—in and of itself—
create any Congressional power.”

The Court found that although the federal Government is empowered to run a prison system, “[t]he fact of previously lawful federal custody simply does not, in itself, provide Congress with any authority to regulate future conduct that occurs outside of the prison walls.”

Regarding the federal government’s ability to regulate all sex-related crimes, the Court held that “[c]onsistent with Congress’s limited powers, federal statutes regulating sex crimes are limited in number and breadth, specifically requiring a connection to interstate commerce,” Since Section 4248 targets “sexual dangerousness” generally, without any requirement that this undefined danger relate to conduct that the federal government may constitutionally regulate, it sweeps far too broadly to be a valid effort to prevent federal criminal activity. Most crimes of sexual violence violate state and not federal law.

Finally, the Government argued that the Necessary and Proper Clause justifies Section 4248 because it retains the “power to prosecute” all persons in its custody charged with criminal offenses. The Court concluded that since the Government had already charged, tried, and convicted the defendants, it retains no power to prosecute or civilly commit them.

The Court suggested that “if the federal government has serious concerns about the
dangerousness of a person due to be released from federal prison, it can notify state authorities, who may use their well-settled police and parens patriae powers to pursue civil commitment under state law.”

For now, at least, the conservative Fourth Circuit has declared that there is no Constitutional basis for a wide-ranging federal civil commitment power.

As of March 2007, twenty states had civil commitment laws. The New York Times had an excellent series on this issue in 2007.

UPDATE: In U.S. v. Howell, an 8th Circuit Court of Appeals decision issued a few days after U.S. v. Comstock, the Court found that another part of the Adam Walsh Child Protection and Safety Act of 2006 dealing with the registration of sex offenders, does not violate the Commerce Clause. The Court held that “[b]ased upon the language, statutory scheme, declaration of purpose, and legislative history of the Sex Offender Registration and Notification Act (SORNA) [42 U.S.C. §§ 16901-16991], we conclude SORNA was intended to regulate the interstate movement of sex offenders. . . . Covering the registration of wholly intrastate sex offenders is merely incidental to Congress’s tracking of sex offenders in interstate commerce. Therefore, § 16913 is constitutional.”

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