Jamie mentioned yesterday that the Supreme Court decided two important cases this week. Graham v. Florida, which Jamie covered yesterday, is the blockbuster, but United States v. Comstock is also worth discussing briefly. As I mentioned in a prior post, the issue in Comstock was the constitutionality of 18 U.S.C. § 4248. That statute allows the “Attorney General or . . . the Director of the Bureau of Prisons [to] certify that [a federal prisoner] is a sexually dangerous person.” Such certification “shall stay the release of the person,” even if the person’s sentence has expired, pending a hearing. If, “after the hearing, the court finds by clear and convincing evidence that the person is a sexually dangerous person, the court shall commit the person to the custody of the Attorney General.” The Attorney General must attempt to get the person’s home state to “assume responsibility for his custody, care, and treatment,” but if the state will not do so, the federal authorities “shall place the person for treatment in a suitable facility” until the person is no longer sexually dangerous. In a nutshell, the statute provides for the civil commitment of sexually dangerous criminals after their federal sentences expire. There’s a local angle here, because individuals who are alleged to be sexually dangerous are typically evaluated at the federal prison complex in Butner, and their cases are typically heard by the United States District Court for the Eastern District of North Carolina.
On behalf of several sexually dangerous persons, an Assistant Federal Public Defender in Raleigh challenged the statute, arguing inter alia that the federal government lacked the constitutional authority to run such a civil commitment program. The government responded that the program was part of running a responsible prison system, and so was authorized by Article I, Section 8 of the Constitution, which gives Congress the power to “make all [l]aws which shall be necessary and proper for carrying into [e]xecution” Congress’s other powers — in this case, the power to create and administer a criminal justice system.
Although the AFPD won in the district court and in the Fourth Circuit, the Supreme Court ruled that the statute was within Congress’s power. Justice Breyer’s opinion for the Court based this conclusion on:
(1) the breadth of the Necessary and Proper Clause, (2) the long history of federal involvement in this arena, (3) the sound reasons for the statute’s enactment in light of the Government’s custodial interest in safeguarding the public from dangers posed by those in federal custody, (4) the statute’s accommodation of state interests, and (5) the statute’s narrow scope.
Although some have criticized the Court for its expansive interpretation of Congress’s powers, any federalism concerns may be softened by the fact that 29 states appeared as amici in support of the statute, apparently in part because it effectively allows the states to transfer the responsibility — and the expense — of dealing with some sexually dangerous convicts to the federal government.
Of course, the vast majority of sex offenders are convicted in state court, not federal court, meaning that section 4248 has no application to them. And we already knew that states have the authority to establish civil commitment programs for sexually dangerous criminals. Kansas v. Hendricks, 521 U.S. 346 (1997) (rejecting due process, ex post facto, and double jeopardy arguments against Kansas’s statute). Indeed, according to this Congressional Research Service Report, as of 2007, “19 states [had] sexual predator civil commitment laws.” Notably, North Carolina is not among them, though the regular involuntary commitment statutes in Article 5 of Chapter 122C of the General Statutes allow the commitment of persons who are mentally ill and dangerous to themselves or others, standards that some sex offenders may meet. (Note that section 4248 doesn’t require a showing of mental illness, which to my mind raises some due process concerns. How broad is the state’s power to commit people simply because they are likely to commit crimes in the future? But that’s a topic for another day.) Further, sex offenders who are released from prison are subject to sex offender registration and monitoring. I’m not sure that a specific civil commitment statute for sexually dangerous people would add much to those existing tools. Anyone disagree?