There have been several interesting criminal law new stories this week. I want to focus mainly on one with a local connection, but I’ll note briefly this New York Times article that describes some research suggesting that probation and parole violations should be more frequent, more immediate, and less harsh; this Wired magazine article that discusses whether and when a court may include a ban on computer use or internet access as part of a defendant’s sentence; and this new decision by (a conservative panel of) the Ninth Circuit, holding that police officers may be subject to civil liability if they refuse “to investigate a crime or make an arrest due to the race of the victim.”
I want to give a little extra attention, though, to United States v. Comstock, argued this Tuesday before the United States Supreme Court. The question presented in Comstock is:
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.
I’m oversimplifying, but basically, the federal government has a program under which sex offenders who are about to finish their federal prison sentences are evaluated to see if they are mentally ill and sexually dangerous. If so, they may be indefinitely civilly committed — at the federal prison complex in Butner. Assistant Federal Public Defender Jane Pearce argued that the federal government lacks the power to run this sort of civil commitment system, which, in her view, has traditionally been the province of the states. The detainees won in federal district court, then again in the Fourth Circuit, United States v. Comstock, 551 F.3d 274 (2009) (holding that the program neither falls within Congress’s power under the Commerce Clause, nor is a “necessary and proper” incident to the federal criminal justice system).
You can read the oral argument here. Solicitor General Kagan was incredibly poised and polished, and Assistant Federal Public Defender Alan DuBois also acquitted himself well. Most of the pundits, talking heads, and prognosticators predict a reversal — one example, plus extensive coverage of the case, is here — and I suppose that’s my guess, too, for what it’s worth.
What’s the impact on North Carolina? Well, the News and Observer notes here that North Carolina doesn’t have a sex-offender-specific civil commitment law, though one’s been proposed from time to time. The suggestion is that if the detainees win Comstock, we’ll be stuck with some of these folks, without the proper tools to deal with them. I wonder about that. My sense is that in recent years, defense lawyers — including me, when I was doing that work — have increasingly argued that mental illness is a contributing factor in their clients’ crimes. Sometimes mental illness forms the basis of a defense, such as insanity, but more frequently it is advanced as a mitigating factor for sentencing. This trend towards the medicalization of criminal behavior may (or may not) be scientifically sound, and it may be helpful to defendants in some criminal cases. But it also seems to increase the possibility that defendants — and not just sex offenders — may be subject to civil commitment under general civil commitment laws, which allow the commitment of those who are mentally ill and dangerous to (themselves or) others. I suspect we’ll see a lot of action in this area in the aftermath of Comstock, and I’m interested in others’ thoughts about this.