The Feds decide who to lock up for life (not just at Guantanamo), another nail in the Constitution’s coffin

Summary:  Another in the ever-growing series of posts about our dying Constitution.  Death by neglect.  Neglect by both conservatives and liberals.  Links to the previous chapters appear at the end.


When the Feds Decide Who’s Sexually Dangerous“, Wendy Kaminer, The Atlantic, May 2010 — Excerpt:

In what will likely be one of her last victories as solicitor general, Elena Kagan persuaded the Supreme Court to embrace an expansive vision of federal power that should agitate right-wing advocates of freedom and small central government, but probably won’t, because U.S v Comstock, involved the power to detain people deemed “sexually dangerous” under the popular Adam Walsh Child Protection and Safety Act.  (It passed the House and Senate by voice vote in 2006 and was quickly signed into law by President Bush.)

Best known for establishing a national sex offender registry (of highly questionable fairness and effectiveness) and promulgating standards for state registries, the Adam Walsh Act also provided for the indefinite “civil commitment” of federal prisoners who have completed their sentences but are considered likely to commit sex offenses if released.  People who trust the federal bureaucracy and believe officials will use this power accurately, fairly, and in good faith may feel protected by it; others should worry about a government authorized to detain its citizens indefinitely, without jury trials, based on speculations about their future dangerousness.

Who qualifies as “sexually dangerous” under this statute? By what process are people indefinitely committed?  Virtually any federal prisoner, including ones who have not been imprisoned for sex offenses, may be targeted for civil commitment.  (Since convictions “for violent and non-violent sex offenses constitute less than 2 percent of all federal convictions,” the National Association of Criminal Defense Attorneys stresses the statute provides for “potential commitment of a significant number of persons with no criminal history of sexual misconduct” and even persons with no prior convictions for any crimes, like material witnesses being detained by the attorney general.)  Once targeted, people are entitled to a hearing before a federal judge (or magistrate), but their alleged future dangerousness need not be proved beyond a reasonable doubt.

And, while the judge must find that the prisoner “has engaged or attempted to engage in sexually violent conduct or child molestation,” that finding (as Justice Thomas noted in dissent) “can be established by … clear and convincing evidence that the person committed a sex crime for which he was never charged.”  In other words, the government is empowered to imprison (or “civilly” commit) people indefinitely without bothering to try them in criminal court or in any other proceeding in which they are afforded the rights of a defendant in a criminal case, even if they have never been convicted of any sex crimes.

What about all those conservatives on the Supreme Court?  And those civil-liberties-defending liberals?

From “A Few Thoughts on the Comstock Case“, Eugene Volokh, The Volokh Conspiracy, 17 May 2010 — Red emphasis added.  Excerpt:

Unlike the Kennedy and Alito concurrences, which at least stress the importance of constitutional limits on federal power — though they disagree with Thomas and Scalia about whether those limits were transgressed here — the majority has pretty broad language in support of nearly unlimited federal authority. And this language was joined by Chief Justice Roberts, and not just the four liberals. This suggests that the brief resurrection of the enumerated powers doctrine, under which courts would strike down some Congressional actions as going beyond the constitutionally granted powers (even without regard to, say, the First Amendment or similar express rights guarantees), may be largely over.

Justice Thomas has some thing to say, which deserve attention

From his dissenting opinion to the Supreme Court’s ruling on United States vs. Comstock et al, 17 May 2010 — Legal citations have been removed.

The Court holds today that Congress has power under the Necessary and Proper Clause to enact a law authorizing the Federal Government to civilly commit “sexually dangerous person[s]” beyond the date it lawfully could hold them on a charge or conviction for a federal crime. 18 U. S. C. §4248(a). I disagree.

… Chief Justice Marshall famously summarized Congress’ authority under the Necessary and Proper Clause in McCulloch, which has stood for nearly 200 years as this Court’s definitive interpretation of that text:

“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” 4 Wheat., at 421.

… No enumerated power in Article I, §8, expressly dele-gates to Congress the power to enact a civil-commitment regime for sexually dangerous persons, nor does any other provision in the Constitution vest Congress or the other branches of the Federal Government with such a power.Accordingly, §4248 can be a valid exercise of congressional authority only if it is “necessary and proper for carrying into Execution” one or more of those federal powers actually enumerated in the Constitution.

Section 4248 does not fall within any of those powers. The Government identifies no specific enumerated power or powers as a constitutional predicate for §4248, and none are readily discernable.  … that the power to care for the mentally ill and, where necessary, the power “to protect the community from the dangerous tendencies of some” mentally ill persons, are among the numerous powers that remain with the States.

… To be sure, protecting society from violent sexual of-fenders is certainly an important end. Sexual abuse is a despicable act with untold consequences for the victim personally and society generally. …  But the Constitution does not vest in Congress the authority to protect society from every bad act that might befall it.

… The Court perfunctorily genuflects to McCulloch’s framework for assessing Congress’ Necessary and Proper Clause authority, and to the principle of dual sovereignty it helps to maintain, then promptly abandons both in favor of a novel five-factor test supporting its conclusion that§4248 is a “‘necessary and proper’” adjunct to a jumble of unenumerated “authorit[ies].” Ante, at 22. The Court’s newly minted test cannot be reconciled with the Clause’splain text or with two centuries of our precedents interpreting it. It also raises more questions than it answers.

After focusing on the relationship between §4248 and several of Congress’ implied powers, the Court finally concludes that the civil detention of a “sexually dangerous person” under §4248 carries into execution the enumerated power that justified that person’s arrest or conviction in the first place. In other words, the Court analogizes§4248 to federal laws that authorize prison officials to care for federal inmates while they serve sentences or await trial. But while those laws help to “carr[y] into Execution ”the enumerated power that justifies the imposition of criminal sanctions on the inmate, §4248 does not bear that essential characteristic for three reasons.

First, the statute’s definition of a “sexually dangerous person” contains no element relating to the subject’s crime.   It thus does not require a federal court to find any connection between the reasons supporting civil commitment and the enumerated power with which that person’s criminal conduct interfered. As a consequence, §4248 allows a court to civilly commit an individual without finding that he was ever charged with or convicted of a federal crime involving sexual violence. That possibility is not merely hypothetical: The Government concedes that nearly 20% of individuals against whom §4248 proceedings have been brought fit this description.

Second, §4248 permits the term of federal civil commitment to continue beyond the date on which a convicted prisoner’s sentence expires or the date on which the statute of limitations on an untried defendant’s crime has run. The statute therefore authorizes federal custody over a person at a time when the Government would lack juris-diction to detain him for violating a criminal law that executes an enumerated power.

… relevant to §4248 does not require the court to find that the person is likely to violate a law executing an enumerated power in the future.

… Not long ago, this Court described the Necessary and Proper Clause as “the last, best hope of those who defend ultra vires congressional action.” Printz, supra, at 923. Regrettably, today’s opinion breathes new life into that Clause, and—the Court’s protestations to the contrary notwithstanding, see ante, at 18—comes perilously close to transforming the Necessary and Proper Clause into a basis for the federal police power that “we always have rejected,” Lopez, 514 U. S., at 584 (THOMAS, J., concurring). In so doing, the Court endorses the precise abuse of power Article I is designed to prevent — the use of a limited grant of authority as a “pretext . . . for the accomplishment of objects not intrusted to the government.” McCulloch, supra, at 423.

I respectfully dissent.

Posts about the Constitution and our government

  1. Forecast: Death of the American Constitution, 4 July 2006
  2. The Constitution: wonderful, if we can keep it, 15 February 2008
  3. Congress shows us how our new government works, 14 April 2008
  4. See the last glimmers of the Constitution’s life…, 27 June 2008
  5. Remembering what we have lost… thoughts while looking at the embers of the Constitution, 29 June 2008
  6. Another step away from our Constitutional system, with applause, 19 September 2008
  7. What comes after the Constitution? Can we see the outlines of the “Mark 3″ version?, 10 November 2008
  8. “The Constitution that I interpret and apply is not living, but dead.” – Supreme Court Justice Scalia, 9 June 2009
  9. Listen to the crowds cheering Sarah Palin, hear the hammerblows of another nail in the Constitution’s coffin, 8 February 2010
  10. Another nail put in the Constitution’s coffin, but we don’t care, 9 February 2010
  11. Recommended reading about the Constitution, 17 March 2010 — Lawrence Tribe and the invisible constitution


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