Federal Government Has the Power to Civilly Commit Sexually Violent Predators After Federal Incarceration

So the Court just held in United States v. Comstock, with Justices Thomas and Scalia dissenting, and Justices Kennedy and Alito concurring in the judgment. I hope to have more later today, after I have a chance to read the opinions.

UPDATE: In the meantime, here’s the syllabus, from Justice Breyer’s majority opinion, which is joined by the four liberals plus Chief Justice Roberts:

(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,” e.g., McCulloch v. Maryland, 4 Wheat. 316, 413, 418, and that Congresscan “legislate on that vast mass of incidental powers which must beinvolved in the constitution,” id., at 421. In determining whether the Clause authorizes a particular federal statute, there must be “means-ends rationality” between the enacted statute and the source of federal power. Sabri v. United States, 541 U. S. 600, 605. The Constitution “addresse[s]” the “choice of means” “primarily … to the judgment of Congress. If it can be seen that the means adopted are really calculated to attain the end, the degree of their necessity, the extent to which they conduce to the end, the closeness of the relationship between the means adopted and the end to be attained, are matters for congressional determination alone.” Thus, although the Constitution nowhere grants Congress express power to create federal crimes beyond those specifically enumerated, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, or to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others, Congress possesses broad authority to do each of those things under the Clause.

Congress has long been involved in the delivery of mental health care to federal prisoners, and has long provided for their civil commitment. A longstanding history of related federal action does not demonstrate a statute’s constitutionality, but can be “helpful in reviewing the substance of a congressional statutory scheme,” and, in particular, the reasonableness of the relation between the new statute and preexisting federal interests. Section 4248 differs from earlier statutes in that it focuses directly upon persons who, due to a mental illness, are sexually dangerous. Many of these individuals, however, were likely already subject to civil commitment under§4246, which, since 1949, has authorized the postsentence detention of federal prisoners who suffer from a mental illness and who are thereby dangerous (whether sexually or otherwise). The similarities between §4246 and §4248 demonstrate that the latter is a modest addition to a longstanding federal statutory framework.

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. Moreover, §4248 is “reasonably adapted” to Congress’ power to act as a responsible federal custodian. Congress could have reasonably concluded that federal inmates who suffer from a mental illness that causes them to “have serious difficulty in refraining from sexually violent conduct,” would pose an especially high danger to the public if released. And Congress could also have reasonably concluded that a reasonable number of such individuals would likely not be detained by the States if released from federal custody. Congress’ desire to address these specific challenges, taken together with its responsibilities as a federal custodian, supports the conclusion that §4248 satisfies “review for means-end rationality.” …

The Court rejects respondents’ argument that, when legislating pursuant to the Necessary and Proper Clause, Congress’ authority can be no more than one step removed from a specifically enumerated power. Nor will the Court’s holding today confer on Congress a general “police power, which the Founders denied the National Government and reposed in the States.” United States v. Morrison, 529 U. S. 598, 618. Section §4248 has been applied to only a small fraction 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.

The Court does not reach or decide any claim that the statute or its application denies equal protection, procedural or substantive due process, or any other constitutional rights. Respondents are free to pursue those claims on remand, and any others they have preserved.

As I blogged last year, I think this is the right result:

The Constitution clearly provides that Congress shall have only the limited powers that it grants — not including a general power to prevent crime — and it seems to me that courts should enforce those constitutional constraints as much as they enforce others. To be sure, there are enough precedents authorizing very broad assertions of Congressional power that I doubt that courts ever will return to the original understanding. But some policing of the outer boundaries of Congressional power is proper, as Lopez, Morrison, and City of Boerne v. Flores make clear.

At the same time, presumably civil commitment of sexual offenders is aimed at preventing repeat sexual offenses. (Let’s set aside whether such civil commitment after the end of a sentence may sometimes deny people liberty in violation of the Due Process Clause; that’s an issue unrelated to the federal power question, since it would apply equally to states.) And presumably someone who committed a federal sex crime (e.g., possession or trafficking of child pornography) is pretty likely to commit another crime of much the same variety — which will likely be a federal crime — and not just some other random state sex crime. If the Commerce Clause power to regulate commerce authorizes Congress to ban commerce in child pornography, and the Necessary and Proper Clause therefore authorizes Congress to ban even private possession of child pornography, then it’s hard to see why the Necessary and Proper Clause wouldn’t authorize continued detention of people who have shown a willingness to commit such federal crimes.

One way of thinking about it might be to think about the historically established practice of civil commitment of people found not guilty by reason of insanity. If someone is tried for a federal crime and found insane, he won’t be imprisoned for the crime — since he’s not criminally guilty — but he will be locked up in a mental hospital so long as he is thought to be dangerous. I think that’s right, but how does it fit the panel’s decision?

After all, the person is not guilty, so Congress can’t appeal to its power to punish federal criminals (just as the people in this case can’t be further criminally punished, since there terms are up). True, we worry that this insane person will commit another crime, but under the panel’s reasoning, that might well be a state crime. So must Congress release such people unless it gets a state to agree to take custody of them? Perhaps that’s the right answer, since Congress lacks the enumerated power to detain them — but I’m skeptical that this is so.

Alternatively, perhaps Congress can detain these not-guilty-for-reason-of-insanity people, as part of whatever federal power justified their criminal trial in the first place. If someone insanely commits a federal crime, Congress should be able to lock him up to prevent him from committing more such federal crimes in the future. But why wouldn’t this equally be so for the people adjudged sexually violent predators? (I should stress again that this is a separate question from the broader Due Process Clause question of whether any government, state or federal, may civilly lock people up because of their future dangerousness, after their criminal term has expired.) In any case, that’s why I’m tentatively skeptical about the panel’s reasoning [striking down the statute — the decision that the Supreme Court has just reversed -EV 05/17/2010].

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