Issues
May Congress authorize the civil commitment of a “sexually dangerous” person even after that person has completed his or her prison sentence?
Petitioner, the United States, argues that 18 U.S.C § 4248, which authorizes the civil commitment of “sexually dangerous” persons, is a constitutional exercise of Congressional power. Respondents, Graydon Earl Comstock Jr., et al. (“Comstock”), counter that civil commitment of an individual after the completion of a federal prison sentence exceeds Congressional power, because it (1) encroaches on states’ authority and (2) is neither necessary nor proper to operating a valid federal regulation. The Fourth Circuit rejected the United States’ argument that § 4248 is necessary and proper to its ability to maintain the federal penal system. The Supreme Court must now decide (1) whether § 4248 is incidental to Congress’ Article I powers and (2) whether civil commitment of individuals labeled “sexually dangerous” and already in federal custody or incompetent to stand trial is an encroachment on state power.
Questions as Framed for the Court by the Parties
Whether Congress had the constitutional authority to enact 18 U.S.C. § 4248, which authorizes court-ordered civil commitment by the federal government of (1) "sexually dangerous" persons who are already in the custody of the Bureau of Prisons, but who are coming to the end of their federal prison sentences, and (2) "sexually dangerous" persons who are in the custody of the Attorney General because they have been found mentally incompetent to stand trial.
Facts
This consolidated action addresses whether the U.S. Constitution grants Congress the authority to enact 18 U.S.C. § 4248. See U.S. v. Comstock, 551 F.3d 274, 275–76 (4th Cir. 2009). Congress enacted § 4248 as part of the Adam Walsh Child Protection and Safety Act of 2006 (“the Act”). See id. at 276. Section 4248 is the only portion of the Act at issue in this case. See id. at 276. This section authorizes the federal government to civilly commit in a federal facility any “sexually dangerous” person even after that person has completed his or her prison sentence. 18 U.S.C. § 4248(a), (d) (2006). To accomplish this, the Attorney General must certify that a person within federal custody is “sexually dangerous”. See 18 U.S.C. § 4248(a). He or she must then file certification with the district court in the jurisdiction in which the federal government holds that person. See id. Thereafter, the district court must decide whether the person is “sexually dangerous” by clear and convincing evidence. See id. Should the district court find the person to be sexually dangerous, the federal government will automatically stay that person’s release, and the court must commit him or her to federal custody. See 18 U.S.C. § 4248(d) (2006). The Attorney General must then make “all reasonable efforts” to transfer responsibility for the person to an appropriate state authority. See id. A state must assume this responsibility; otherwise § 4248 authorizes federal confinement for as long as the person remains “sexually dangerous.” See id.
Graydon Earl Comstock, Jr. was the first of five individuals to file a challenge to 18 U.S.C. § 4248. See Comstock, 551 F.3d at 277. The remaining four were Shane Catron, Thomas Matherly, Marvin Vigil, and Markis Revland. See id. at 277. Pursuant to § 4248, the federal government extended their prison stays past the end of their prison terms. See id. at 277. Each of these men remains confined in the medium security Federal Correctional Institution at Butner, North Carolina (“FCI-Butner”) more than two years after his prison term ended. See id. at 277–78. In the case of Comstock, the Attorney General certified that he was “sexually dangerous” six days before the end of the 37-month prison sentence he served after he pled guilty to receiving child pornography in violation of 18 U.S.C. § 2252(a)(2) (2006). See id. at 277. In the case of Vigil, the Attorney General certified that he was “sexually dangerous” the day his 96-month prison term ended. See id. at 277–78.
When the Government set out to determine whether Respondents in this case qualified as “sexually dangerous” under § 4248, all five of the men moved to dismiss the certification and challenged the constitutionality of § 4248. See Comstock, 551 F.3d at 278. The United States District Court for the Eastern District of North Carolina agreed with the men and held that § 4248’s civil commitment scheme was invalid under the Constitution. See id. at 278. The Court of Appeals for the Fourth Circuit affirmed the District Court’s decision and held that no portion of the Constitution grants Congress the authority to enact § 4248. See id. at 284–85.
The Supreme Court granted certiorari in July of 2009 and will determine whether the Constitution grants Congress the authority to enact 18 U.S.C. § 4248 and to civilly commit both a "sexually dangerous" person in the custody of the Bureau of Prisons even after that person has completed his prison sentence, as well as a “sexually dangerous” person in custody of the Attorney General because that person is “mentally incompetent” to stand trial. See Question Presented.
Analysis
Section 302 of the Adam Walsh Child Protection and Safety Act authorizes the civil commitment of “sexually dangerous” persons. 18 U.S.C § 4248; see Brief for Respondents, Graydon Earl Comstock, Jr., et al. at 1. Congress, in enacting § 4248, authorized the federal government to civilly commit individuals (1) already in federal custody, (2) individuals found incompetent to stand trial, and (3) persons against whom criminal charges have been dismissed due to their mental conditions. See 18 U.S.C § 4248(a); see also Brief for Respondents at 1. The Fourth Circuit held that § 4248 is not supported by any of Congress’s Constitutional powers.See United States v. Comstock, 551 F.3d 274 at 4, 19 (4th Cir. 2009). The Supreme Court must now decide whether Congress had the constitutional authority to enact § 4248, which authorizes the civil commitment of (1) “sexually dangerous” persons already in Bureau of Prisons custody, but soon to be released, and (2) “sexually dangerous” persons in custody of the Attorney General because these persons are “mentally incompetent” to stand trial. See Questions Presented.
The Supreme Court will likely consider the following: (1) whether § 4248’s authorization of civil commitment of federal prisoners is related to Congress’s Article I powers; (2) whether § 4248 is a proper means for the federal government to effectively manage the federal penal system; and (3) whether § 4248 encroaches on states’ police powers.
Are the civil commitment powers authorized by § 4248 incidental to Congress’s Article I powers?
Petitioner, the United States, argues that the civil commitment proceedings established by § 4248 are incidental to Congress’s Article I powers. See Brief for Petitioner, the United States at 17. According to the United States, the purpose of § 4248 is to protect the public from threats posed by “sexually dangerous” federal inmates. See id. at 21. Thus, the United States argues that the civil commitment of sexually dangerous inmates already in federal custody because they are serving prison sentences or incompetent to stand trial is a “necessary and proper” exercise of federal power. See id.
In contrast, respondents, Graydon Earl Comstock, et al. (“Comstock”), argue that § 4248 is neither necessary nor proper, and, therefore, authorization of civil commitment therein exceeds Congress’ enumerated powers. See Brief for Respondents at 14. Comstock challenges the United States to prove a connection between § 4248 and a valid federal regulatory power. See Id.He asserts that § 4248—a means by which the federal government enforces a regulatory power—is unconstitutional, because the federal government is, in fact, attempting to exercise a police power which is reserved for the states. See id. at 14–15. Comstock notes that the Framers did not intend the Necessary and Proper Clause to grant power, but they did intent it to establish that Congress may carry out the enumerated powers in § 8 of Article I. See id. at 15.
Is § 4248 a proper means for the federal government to effectively manage the federal penal system?
The United States notes that the Necessary and Proper Clause gives Congress discretion to choose the means to by which to administer legitimate ends within the scope of the Constitution. See Brief for Petitioner at 22. The United States contends that authorizing the civil commitment of “sexually dangerous” individuals who have served prison sentences or who are incompetent to stand trial is related to Congress’ Article I powers to “enact criminal laws, provide for the operation of a penal system, and assume for the United States custodial responsibilities for its prisoners.” See U.S. Const. art. I; see Brief for Petitioner at 23. Additionally it argues that the federal government has a responsibility to protect potential perpetrators and the public from harms committed by a sexually dangerous person. See id. at 24.
Further, the United States argues that states are not always willing to take custody of and responsibility for individuals who have successfully served their federal sentences, but who still pose a serious threat to the public. See Brief for Petitioner at 28–29. The United States contends that to simply release a “sexually dangerous” person into a community after completion of a prison term places an “unfair burden” on that community. See id. at 30. Further, the United States believes that when the federal government exercises absolute control over an inmate, it must take measures to mitigate potential harms caused by that inmate. See Id. at 31. The United States views civil commitment after completion of a prison sentence or for those in custody because they are incompetent to stand trial as a means to meet responsibilities to the inmate as well as to prevent harm to the public. Seeid.
Comstock, however, argues that the federal government lacks such broad authority to civilly commit "sexually dangerous" individuals absent a power enumerated in the Constitution. See Brief for Respondents at 26. Comstock contends that the United States misguidedly relies on United States v. Salerno in its defense of § 4248 and wrongly argues that Salerno supports the idea that the federal government’s interest in crime prevention justifies civil commitment. See id. at 28. Comstock asserts that the United States’ dependence on cases like Salerno is "misguided," because such cases assume, rather than prove, that the federal government has constitutional authority to civilly commit individuals after completion of their prison terms. See id.
Does §4248 infringe on states' police powers?
The source of states’ police powers is the 10th Amendment which reserves all powers not expressly delegated to the federal government for the states. The United States argues that § 4248 does not infringe on states’ police powers, because the individuals affected are already in federal custody. See Brief for Petitioner at 42. The United States rejects the Fourth Circuit’s opinion that the statute grants limitless power to the federal government and encroaches on states' police and parens patriae powers. See id. The government explains that because the individuals in question are already in federal custody, they are not seeking to commit just any sexually dangerous person. See Id. at 43–44. The United States adds, “there is nothing attenuated about the connection between the federal government and the persons whom Section 4248 may be applied.” See Id. at 44. Because the statute targets sexually dangerous individuals who are also in federal custody, the United States asserts that Congress has respected the distinction between state and federal authority. See id.
The United States clarifies that just because the federal government’s may exercise control over this group of individuals, that does not mean that states do not have a concurrent interest. See Brief for Petitioner at 44. Further, they explain that § 4248 “accommodates those concurrent interests” without violating the rules of federalism and does not “direct” any State to take responsibility for a sexually dangerous person. See id. The United States asserts that the boundaries of federalism are still in tact with § 4248 as states are free to choose whether to assume responsibility, and the federal government will release custody as soon as a state chooses to take control. See id.at 45.
Alternatively, Comstock argues that § 4248 encroaches on state authority. See Brief for Respondents at 35. Comstock asserts that § 4248 is neither “necessary” nor “proper” to any of Congress’s enumerated powers. See id.Therefore, for these reasons, § 4248 is not a proper executory law. See id.
Comstock asserts that case law and historical precedent support his argument that § 4248 interferes with a traditional area of state concern, namely the commitment of the dangerous and mentally ill. See Brief for Respondents at 38. According to Comstock, the state holds parens patriae power, under which it is the general guardian of those who are unable “because of emotional disorders to care for themselves;" and “the state also has authority under its police power to protect the community from the dangerous tendencies of some who are mentally ill.” See Id. (citing Addington v. Texas, 441 U.S. 418, 426 (1979)). Comstock notes that the federal government has no such authority. See id.38–39.
Finally, Comstock asserts that § 4248 does not respect the “etiquette of federalism.” See Brief for Respondents at 41. He asserts that § 4248 leaves the states with an impossible choice of either indefinitely detaining those who are sexually dangerous and either serving federal prison terms or in custody because they are incompetent to stand trial or the federal government will do it itself. See id. at 40–41. He explains that § 4248 removes policy-making discretion from the states and forces the states to act based on what the federal government deems “sexually dangerous.” See id. at 41.
Discussion
This case will determine whether Congress acted within the scope of itsconstitutional authority when it enacted 18 U.S.C. § 4248. The outcome will affect the federal government’s ability to civilly commit both a "sexually dangerous" person in the custody of the Bureau of Prisons even after that person has completed his prison sentence, as well as a “sexually dangerous” person in the custody of the Attorney General because that person is “mentally incompetent” to stand trial. As the Cato Institute points out, the decision will provide a resolution for persons remaining in prison past their sentences, having been deemed “sexually dangerous” and had their release stayed, including over sixty men in the Eastern District of North Carolina alone. See Legal Briefs: United States v. Comstock.
Petitioner, the United States, contends that Congress did not infringe on traditional state police powers when it enacted § 4248, and the State of Kansas and sixteen other states as amici curiae (“Kansas”), further point out that § 4248 specifically provides for cooperation between the federal and state governments. See Brief of Amici Curiae State of Kansas, et al. (“Kansas Amicus Curiae”) in Support of Petitioner at 7. Kansas views states as “policy laboratories” best suited for trying out solutions to issues that plague society and the nation as a whole. See Id. at 7–8. With such a view of states, Kansas considers the federal program to work together with states to create the best and most practical means of treating sexually dangerous and mentally abnormal individuals. See Id. at 8. To hold § 4248 as infringing upon federalism would destroy a beneficial state/federal cooperative program without significantly furthering any state interests. See Id. at 9.
Respondents, Graydon Earl Comstock, Jr., et al. (“Comstock”), and their amici, contend that our nation is one of enumerated powers, and upholding the constitutionality of § 4248 would permit Congress to step outside the scope of its constitutional authority. See Brief of Amici Curiae Cato Institute and Prof. R. Barnett in Support of Respondent at 6–7. When the Framers drafted the Constitution, they intentionally made the government one of enumerated powers and built in checks and balances for the states and the federal government. See Id. at 7. Their intention was to preserve a balance between the branches to ensure that neither gained too much power and infringed upon the liberties of the nation’s citizens or on the authority of another branch. See Id.The amici maintain the power contained in § 4248 is not one of Congress’ enumerated powers. See Id. at 8. They argue that the Necessary and Proper Clause does not permit this action because the clause creates no constitutional power by itself, and it only grants limited authority for acts necessary and incidental to an enumerated power. See Id. at 16–17. Similarly, they argue that the Commerce Clause does not permit this action, because authority under the clause necessarily involves economic activity, and the subject matter of the statute is not economic. See Id. at 29, 35.
The case affects a specific and unique set of individuals: sex offenders. Kansas highlights the special challenges sex offenders present and urges the court to uphold the constitutionality of the statute to protect the public. See Brief of Kansas Amicus Curiae at 11. It points to the high recidivism rate among sex offenders and contends that the issue is better handled at the federal rather than state level. See Id. at 11–12. In 2006, Congress also introduced a National Sex Offender Registry and notification system that monitors the locations of released sex offenders. See 42 U.S.C. § 16919 (2006). Analogizing to the interstate aspects of the conduct of released sex offenders, Kansas advances the claim that the federal program is “rationally related” to reducing recidivist crimes and is valid under Congress’ Commerce Clause power and its plenary power over federal territories. See Id. at 12. It stresses the purpose of the Adam Walsh Child Protection and Safety Act of 2006 (“the Act”) to increase protections for children from sexual exploitation and increase the effectiveness of current laws; it urges that the Supreme Court must uphold the statute regardless of its source of authority, because it is in line with state programs and is for the good of the nation. See Id. at 18–19.
The National Association of Criminal Defense Lawyers and the National Association of Federal Defenders as amici curiae argue that the data upon which the United States bases its rate of recidivism may not be as accurate as Congress purports, and it might not provide a substantial basis for the detention procedure in § 4248. See Brief of Amici Curiae National Association of Criminal Defense Lawyers and National Association of Federal Defenders in Support of Respondents at 3–4. The data Congress pointed to was the Department of Justice’s survey across fifteen states in 1994 which showed that only 5.3% of 9,691 sex offenders released from prison were arrested for a new sex crime within three years or release, meaning that 94.7% of released sex offenders had not been found to have committed an offense again. See Id. at 7–8. Furthermore, the scientific community tends to reject data predicting which individuals will commit offenses in the future, stating that the predictions are neither accurate nor reliable and should be used as persuasive not definitive proof of recidivism when they affect a person’s freedom. See id. at 9. The use of this data as definitively reliable predictors could constitute a denial of rights and not provide enough protection to satisfy due process requirements under the Fifth Amendment. See Id. at 23.
Conclusion
This case will determine whether Congress acted within its Constitutional authority in enacting 18 U.S.C § 4248. Disagreement between the parties hinges on whether § 4248 provides a necessary and proper means to operate the federal penal system and protect the public from “sexually dangerous” individuals or, as Comstock argues, is an infringement on states’ police powers. Essentially, among other legal issues, the Supreme Court must evaluate whether the states or the federal government is best suited to oversee the civil commitment of dangerous sex offenders who have already completed federal prison sentences or who are in custody because they are incompetent to stand trial.