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WASHINGTON – The Supreme Court is set to settle a circuit split over the constitutionality of a federal law that allows federal officials to civilly commit suspected sexual predators.

The case, U.S. v. Comstock, involves the Adam Walsh Child Protection and Safety Act which, among other things, allows the civil commitment of “sexually dangerous” persons even after they have completed prison terms for their underlying crimes.

The law, enacted in 2006, directs federal officials to make reasonable efforts to transfer such individuals to state authorities. But if state authorities are unable or unwilling to accommodate the individuals, the law gives the federal government the authority to detain them as long as they are certified as “sexually dangerous.”

The respondents in the case all remained in federal custody more than two years after completing prison terms. The federal government certified each of them as “sexually dangerous” persons before their prison terms were set to expire to ensure that they would not be released.

They challenged the constitutionality of the portion of the law allowing civil commitment, arguing that Congress exceeded its authority under Article I of the Constitution by giving the federal government the power to civilly commit individuals not currently serving prison terms.

The district courts agreed and the 4th Circuit ultimately affirmed, ruling that civil commitment was reserved for the states.

The rulings created a split in the circuits and the Supreme Court granted certiorari. Meanwhile courts continue to wrestle with the issue, and the 1st Circuit ruled that civil commitment under the Act is constitutional, despite the case pending before the Supreme Court.

‘Necessary and Proper’?

At oral arguments Tuesday, Solicitor General Elena Kagan argued that the law was not meant to displace state authority, but rather to work as a “backstop, so if the state does not take custody” of individuals who are “mentally ill and sexually dangerous, they can go into federal custody.”

“But what power does Congress have to permit the federal government to ensure that sexual predators are not at large?” asked Justice Antonin Scalia.

Kagan said the authority extends from the Constitution’s Necessary and Proper Clause, which gives Congress the ability to ensure a safe and effective federal penal system.

That authority includes ensuring that sexually dangerous persons who are set to be released from federal prisons are monitored during the transition from prison to state oversight.

Scalia still didn’t see the source of Congress’ authority.

“As soon as the [prison sentence] ends, so does the federal power,” Scalia said. “‘Necessary and Proper’ doesn’t mean ‘Necessary and Proper for the good of society.’ It has to be necessary to the function the government is performing.”

Kagan said that the clause does give Congress the right to pass laws regarding the “federal power to operate the federal criminal justice system, which includes the responsibility to ensure that people released from the criminal justice system are not released irresponsibly.”

Kagan said that the federal statute authorizing general civil commitment is based on the same authority, but Scalia was still not convinced.

“I must say, I’m not terribly impressed with the argument,” Scalia said.

“I can tell, Justice Scalia,” Kagan said, injecting some humor into the moment.

Scalia continued.

“This is a recipe for the federal government just stepping in and taking over everything,” he said.

No federal power?

G. Alan DuBois, as assistant public defender in Raleigh, N.C., argued that once someone is released from criminal custody, the federal government does not have the power to detain him or her again, absent new criminal charges being brought.

“The power to enforce the law which brought the defendants into federal custody in the first place has been exhausted,” DuBois said. “The defendant has been tried and convicted and he’s sentenced and he’s served his sentence.”

“Well, suppose … he caught [a] communicable disease in the prison as a result of poor prison conditions [and] they want to commit him to a federal health facility?” asked Justice Antony Kennedy.

DuBois said that Congress could only set up such a system of mandated health care under an enumerated right of the Constitution, such as the Commerce Clause. But Scalia jumped in to help him out.

“No, no, no,” Scalia said. “The government can spend money on whatever it wants. That’s the spending power. They can set up hospitals. The issue is whether they can force somebody into a hospital, not whether they can set up hospitals.”

Then Scalia steered the discussion in another direction.

“I was going to ask you to tell us why the sky will not fall if we go the way you would like us to,” Scalia said. “If the problem is that the states are unwilling to incur the expenses for these people, Congress could pass a statute saying the federal government will pay the expenses. [And] an elected governor, who probably wants to be re-elected, will make it pretty certain that the state will take over the responsibility for the individual.”

“Absolutely, Your Honor,” DuBois said.

But Justice John Paul Stevens wasn’t so sure.

“We have to assume that there are cases out there in which there will be no solution such as the one Justice Scalia proposes,” Stevens said. “I think that’s why Congress acted, because they think there are such cases.”

But Stevens admitted that may not solve the constitutional problem of the statute, and wondered if Congress should have made commitment a part of criminal statute instead of a separate civil measure.

“One of the elements of the punishment [could be] that you are subjected to this examination that otherwise you would not have to take,” Stevens said. “It seems to me, maybe your case boils down to the fact that Congress hasn’t written the right statute.”

A decision is expected later this term.

Questions or comments can be directed to the writer at: kimberly.atkins@lawyersusaonline.com

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