Law & Society

This past January, the US Supreme Court heard oral arguments in US v. Comstock, a case concerning the constitutional authority of the federal government to civilly commit those found to be "sexually dangerous" for indefinite periods of time upon completion of their federal prison sentences.

Comstock was brought on the behalf of five prisoners who were detained in a federal prison hospital at the conclusion of their prison sentences pursuant to the civil commitment procedures under the Adam Walsh Child Protection and Safety Act (18 USC §4248). Each of the prisoners had been convicted of receiving on-line child pornography.

Under the Adam Walsh Act, the US Attorney General has the authority to indefinitely detain those who have been convicted of committing certain sex offenses if the Attorney General can prove that the offenders are "sexually dangerous."
The Act defines sexually dangerous as a person who "has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others." In addition, the person also must suffer from a severe mental illness that would make him or her "have serious difficulty in refraining from sexually violent conduct or child molestation if released."

The Attorney General need only prove sexual dangerousness by clear and convincing evidence - a much lower burden of proof than the beyond all reasonable doubt standard required to convict the offender of the original crime.

At trial, the District Court in North Carolina found in favor of the prisoners, holding that the civil commitment procedures under the Adam Walsh Act were unconstitutional. The Fourth Circuit Court of Appeals upheld the District Court's ruling, also finding that the Constitution does not give the government the authority to civilly commit federal prisoners based on sexual dangerousness.

Fight Over State Rights, Not Prisoner Rights
The issue at the heart of Comstock is not one about the civil rights of former prisoners, but one about state rights and which level of government was granted the power to civilly commit sex offenders under the US Constitution.

In oral arguments before the US Supreme Court, the government argued that the federal government does in fact have constitutional authority to civilly commit prisoners who are in federal custody. The government argued that the basis of this constitutional authority lies in the federal government's mandate to run a responsible criminal justice system. The government further argued that civil commitment is a necessary and proper means to carry out this important mandate. Lastly, the government contended that federal civil commitment does not invade rights left to the states because the prisoners are in federal, not state, custody at the time of civil commitment.

In response, the attorneys for the prisoners argued that federal civil commitment does encroach on powers left to the states for two reasons. First, the federal government ceases to have any authority over the prisoners once they have completed their federal prison sentences. Since responsibility over the former prisoners falls to the states at this time, then the authority also falls to the states to decide whether or not to initiate their own civil commitment procedures, if available.

Second, there is no specific enumerated power in the US Constitution granting the federal government the authority to civilly commit federal prisoners. Without an enumerated power, the federal government cannot claim authority under the Necessary and Proper Clause for civil commitment. Accordingly, any powers not explicitly left to the federal government belong to the states, which include civil commitment.

Ruling Favoring the Prisoners May Have Limited Impact
Even if the US Supreme Court rules in favor of the prisoners, the ultimate impact of this ruling is likely to be limited. In a previous ruling, the Supreme Court held that states have the power to civilly commit prisoners. Currently, 20 states have civil commitment statutes. If the Court were to find the federal civil commitment law unconstitutional, all this would mean is that the federal government would turn sexually dangerous prisoners over to the state governments, which could then initiate civil commitment. Thus, only those prisoners who were turned over to a state without a civil commitment law potentially would be impacted by a favorable ruling in Comstock.

Conclusion
Civil commitment laws are just one of the many tools the government has at its disposal to impose punishments on sex offenders long after their prison sentences have come to an end. In recent years, states have passed a number of laws restricting the activities of sex offenders once they are released from prison that far exceed sex offender registration. For example, some states require registered sex offenders to wear GPS monitoring devices while others restrict where they may live and work.

With the public calling for even greater punishments against those convicted of sex crimes, particularly those that victimize children, a US Supreme Court ruling finding civil commitment unconstitutional could be an unpopular decision with the public. Fortunately, the Supreme Court is charged with making its decisions based on the US Constitution rather than on popular sentiment.