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New Federal Power Case, Likely Heading to the Supreme Court:

In United States v. Comstock, a unanimous panel of the Fourth Circuit (consisting of a Clinton appointee, a George W. Bush appointee, and a senior district court judge appointed by Reagan) held unconstitutional 18 U.S.C. § 4248, which "authorizes the federal government to civilly commit, in a federal facility, any 'sexually dangerous' person 'in the custody' of the Bureau of Prisons -- even after that person has completed his entire prison sentence." The panel held that Congress's enumerated powers do not reach this far, because Congress lacks a general police power aimed at protecting the public at large from crime.

Here's an excerpt, though it focuses on only part of the government's argument:

Federal commitment of "sexually dangerous persons" may well be -- like the suppression of guns in schools or the redress of gender-motivated violence -- a sound proposal as a matter of social policy. But policy justifications do not create congressional authority....

The Government ... contends that § 4248 constitutes a necessary and proper exercise of its power to prevent "sex-related crimes." But the federal government simply has no power to broadly regulate all sex-related crimes, as § 4248 purports to do.

Consistent with Congress’s limited powers, federal statutes regulating sex crimes are limited in number and breadth, specifically requiring a connection to interstate commerce or limiting their scope to the territorial jurisdiction of the United States. In contrast, § 4248 targets "sexual dangerousness" generally, without any requirement that this undefined danger relate to conduct that the federal government may constitutionally regulate. Because most crimes of sexual violence violate state and not federal law, many commitments under § 4248 would prevent conduct prohibited only by state law. Section 4248 thus sweeps far too broadly to be a valid effort to prevent federal criminal activity....

At its core, the Government’s argument attempts to "pile inference upon inference" so as to "convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States." Were we to accept the Government’s logic, Congress could authorize the civil commitment of a person on a showing that he posed a general risk of any sexually violent conduct, even though not all, or even most, of this potential conduct violated federal law. This argument would convert the federal government’s limited power to criminalize narrow forms of sexual violence into the general power to regulate all sexual violence, including acts which violate no criminal statute. Congressional power does not reach so far.

Here are some tentative thoughts, which might well change as I think about the matter more.

1. On the merits: I sympathize with the panel's concerns. The Constitution clearly provides that Congress shall have only the limited powers that it grants -- not including a general power to prevent crime -- and it seems to me that courts should enforce those constitutional constraints as much as they enforce others. To be sure, there are enough precedents authorizing very broad assertions of Congressional power that I doubt that courts ever will return to the original understanding. But some policing of the outer boundaries of Congressional power is proper, as Lopez, Morrison, and City of Boerne v. Flores make clear.

At the same time, presumably civil commitment of sexual offenders is aimed at preventing repeat sexual offenses. (Let's set aside whether such civil commitment after the end of a sentence may sometimes deny people liberty in violation of the Due Process Clause; that's an issue unrelated to the federal power question, since it would apply equally to states.) And presumably someone who committed a federal sex crime (e.g., possession or trafficking of child pornography) is pretty likely to commit another crime of much the same variety -- which will likely be a federal crime -- and not just some other random state sex crime. If the Commerce Clause power to regulate commerce authorizes Congress to ban commerce in child pornography, and the Necessary and Proper Clause therefore authorizes Congress to ban even private possession of child pornography, then it's hard to see why the Necessary and Proper Clause wouldn't authorize continued detention of people who have shown a willingness to commit such federal crimes.

One way of thinking about it might be to think about the historically established practice of civil commitment of people found not guilty by reason of insanity. If someone is tried for a federal crime and found insane, he won't be imprisoned for the crime -- since he's not criminally guilty -- but he will be locked up in a mental hospital so long as he is thought to be dangerous. I think that's right, but how does it fit the panel's decision?

After all, the person is not guilty, so Congress can't appeal to its power to punish federal criminals (just as the people in this case can't be further criminally punished, since there terms are up). True, we worry that this insane person will commit another crime, but under the panel's reasoning, that might well be a state crime. So must Congress release such people unless it gets a state to agree to take custody of them? Perhaps that's the right answer, since Congress lacks the enumerated power to detain them -- but I'm skeptical that this is so.

Alternatively, perhaps Congress can detain these not-guilty-for-reason-of-insanity people, as part of whatever federal power justified their criminal trial in the first place. If someone insanely commits a federal crime, Congress should be able to lock him up to prevent him from committing more such federal crimes in the future. But why wouldn't this equally be so for the people adjudged sexually violent predators? (I should stress again that this is a separate question from the broader Due Process Clause question of whether any government, state or federal, may civilly lock people up because of their future dangerousness, after their criminal term has expired.) In any case, that's why I'm tentatively skeptical about the panel's reasoning.

2. On the future of this case: The panel reports that this is the first federal court of appeals decision passing on the constitutionality of the statute. There's thus no circuit split of the sort that would normally signal a likely decision by the Supreme Court to hear the case. But there is a federal statute being struck down, and that sort of interbranch split -- the legislature thought the statute was constitutional, the executive is defending the statute as constitutional, but the judiciary is saying it's unconstitutional -- will often lead to a Supreme Court hearing even without an inter-circuit split.

So if the Fourth Circuit doesn't rehear the case en banc -- and en banc seems unlikely, given the general presumption against en banc and the mixed political makeup of the unanimous panel -- and if the Obama Administration asks the Supreme Court to hear the case, I predict the Supreme Court will indeed agree to hear the case.

Thanks to How Appealing for the pointer.

CheckEnclosed (mail):
Presumably, civil commitment should occur when the person in question has some mental disorder that makes her a danger to herself or others, in the opinion of expert headshrinkers. Otherwise, it is just imprisonment in sheep's clothing. If someone has committed an unjsutified homicide because of legal insanity, and that insanity persists through the time of trial, the element of posing a danger to self or others seems particularly likely to be met. Of course, if someone was insane at the time of the homicide, and is tried years later, they may no longer be insane.

To take your example of someone who traffics in child pornography, there is no reason to believe that any metal disorder is present. The profit motive would be sufficient. Likewise such a person would be of no danger to herself or others in the sense used for civil commitment. Recidivism might lead to some harm to others, but only in the sense that someone who sells impure drugs, bogus securities, or illegal firearms might cause harm to others if they are recidivist.

It is only really the high degree of unpopularity of sexual offenders, and the belief that they "cannot help themselves" from committing sexual crimes that supports any kind of support for keeping them confined after they have served their terms of imprisonment.
1.8.2009 6:47pm
Sean M.:
The most important fact here is that these are sex offenders and sex offenders are icky. I predict reversal.
1.8.2009 6:51pm
Dave N (mail):
No comment on the merits, but I do appreciate irony in case names--Loving v. Virginia being the best example.

United States v. Comstock is not quite in the same league, though though the name's association with Comstock Laws did bring a wry smile to my face.
1.8.2009 6:54pm
David Schwartz (mail):
As I understand it, to commit someone, you must be able to argue that it is for their benefit. That is, there must be some chance of treating them. You cannot confine someone simply because they will harm someone else, no matter how likely such harm is. You have to convict them of a crime. That's why we have crimes.

Do we really have laws that courts uphold that permit you to confine someone purely on the grounds that they pose a threat to others? (Other than, of course pre-trial or post-conviction-within-sentence.)
1.8.2009 6:55pm
Patrick22 (mail):

And presumably someone who committed a federal sex crime (e.g., possession or trafficking of child pornography) is pretty likely to commit another crime of much the same variety -- which will likely be a federal crime -- and not just some other random state sex crime.


I thought it was "innocent until proven guilty." Not, "innocent except if you are part of a group whose members on average might be expected to commit a crime."

Sure, some Japanese-Americans might have been spies. But were you allowed to lock all Japanese-Americans up during WW2? They weren't "jailed," it was called internment. I think that is a better analogy than your criminally insane one.
1.8.2009 6:58pm
KeithK (mail):
EV writes "After all, the person is not guilty [by reason of insanity], so Congress can't appeal to its power to punish federal criminals]". But here "not-guilty" strikes me as more of a legal term of art. The defendant has in fact committed the crime of which he has been accused. Society is willing to call him "not guilty" and not apply the usual criminal penalties but instead takes custody of the defendant. It's still essentially the penalty for committing the original crime and thus follows from the police powers.

This is distinguishable from a sex ofender who has completed his sentence. He has "repaid his debt to society" as it were.

IANAL and I don't claim that my explanation follows from legal precedent. But it seems logical and correct to me.
1.8.2009 7:21pm
methodact:
Thanks for important the post, EV. One important dynamic has changed, and that is that Sam Brownback is no longer in the Senate. He struck a psuedo-marriage contract between himself and Alberto Gonzales and their wives to take on the war on sex and porngraphy. Brownback was consumed with the specter of sin.

Senator Orrin Hatch is a fanatic as well and his war-on-sex passionate play-partner is Diane Feinstein, both still in office but perhaps sans their former pre-occupation with this freedom-gone-criminalized. Without Brownback ballistic, they may curb their zeal somewhat. VP-to-be Joe Biden rarely met a punishment he didn't like - for others. President-elect Obama still shills for the death penalty in sex crimes, despite KENNEDY v. LOUISIANA.

It is no secret that Oprah Winfrey initially supported Obama with hopes to an appointment to a sex and pornography "czar". Interestingly, she also donated money to John McCain.

The US 4th Circuit has long troubled me, especially the 4th Circuit Appeals Court. When US Court of Appeals judge Michael Luttig was skipped over for a US Supreme Court nomination, I breathed a sigh of relief. Some are saying the 4th Circuit bucks conservative its trend. It is long overdue.

I think about the proportionality of things, like how child pornography can be treated as a violent crime and equivalent to terrorism. Yet those who would limit campaign contributions are told that money is pure speech and part of a superior form of speech, political speech. Then, he with the most money simply out-shouts all other speech. Yet those lesser onerous forms of speech, like CP get criminalized to the grossest extent, and how money, which has more than just a tangential connection to commerce, gets a free ride. Go figure. In fact, I already have. It is the Illuminatti ultimately behind this.

Judge Stephen Reinhardt said that censorship must be resisted in all its forms. Here is a nice essay on resistance.
1.8.2009 7:42pm
David Schwartz (mail):
If someone insanely commits a federal crime, Congress should be able to lock him up to prevent him from committing more such federal crimes in the future. But why wouldn't this equally be so for the people adjudged sexually violent predators? (I should stress again that this is a separate question from the broader Due Process Clause question of whether any government, state or federal, may civilly lock people up because of their future dangerousness, after their criminal term has expired.) In any case, that's why I'm tentatively skeptical about the panel's reasoning.
You can't separate the two questions. If the question is whether the government actually has power X as part of power Y, a demonstration that no government can ever have power X answers the question in the negative.

If the Commerce Clause power to regulate commerce authorizes Congress to ban commerce in child pornography, and the Necessary and Proper Clause therefore authorizes Congress to ban even private possession of child pornography, then it's hard to see why the Necessary and Proper Clause wouldn't authorize continued detention of people who have shown a willingness to commit such federal crimes.
If this power violates due process, then it cannot be proper. They are only two different question if you answer the due process question in the negative.
1.8.2009 8:08pm
methodact:
Dave N:

Thanks. Wikipedia has a substantial article on Comstock, indeed. Debbie Nathan's treatment on Comstock is another superb read.
1.8.2009 8:22pm
tvk:
Eugene, I am somewhat surprised by your conclusion, which I gather is that the panel is probably wrong even if its decision is plausible. I am not a huge fan of Lopez and Morrison, but isn't this rather like Morrison?
1.8.2009 8:22pm
Steve H:
"A Clinton appointee, a George W. Bush appointee, and a senior district court judge appointed by Reagan walk into a bar ... "

This will be an interesting one.

I don't think the 1940s internment laws provide a useful analogy, because those detentions were authorized strictly on the basis of ancestry without any individualized determination.

IMHO, some sort of "dangerousness" statute (with strong court review and limited detention periods) should be enacted to handle those Guantanamo prisoners who are the actual bad guys, but who can't realistically be convicted of crimes. That's far better than the current administration's claim to an unfettered and unlimited right to detain, but doesn't require letting the truly bad guys go because we can't get enough direct evidence to convict beyond a reasonable doubt.
1.8.2009 8:24pm
David Schwartz (mail):
Steve H: Do you honestly think it's appropriate to hold someone indefinitely because they are "dangerous", even though they have never been charged or convicted of violating any law? If so, why have laws?
1.8.2009 8:36pm
Patrick22 (mail):

I don't think the 1940s internment laws provide a useful analogy, because those detentions were authorized strictly on the basis of ancestry without any individualized determination.


I used that example because the people were guilty by association. Their group was based on ancestry. But it is still guilt by being a member in a group, not anything any individual was proven to have done. EV is saying that if you are a member of a group (sex criminals), you should be interned on that basis alone.
1.8.2009 8:55pm
Steve H:

Do you honestly think it's appropriate to hold someone indefinitely because they are "dangerous", even though they have never been charged or convicted of violating any law? If so, why have laws?


I don't know for sure, but maybe.

For what it's worth, I would not apply such a law to American citizens, and maybe not even to legal aliens. I'm basically thinking of people who are POWs or whatever the modern-terrorist-group analogy to POWs may be. In other words, I'm thinking about foreigners picked up on the modern-day equivalent of the "battlefield."

Right now, the government is claiming a right to hold people as POWs (or some loose analogy) with no court review of their detention and no limit on the amount of time they can be detained. That is absolutely, unequivocally unacceptable to me, primarily because without court review, we are forced to rely on the Executive's unchallengeable allegation that everyone detained really is a "terrorist."

So I would require that the government have the burden of proof, maybe of clear and convincing evidence. I would require that courts review detention every two or three years, with the government having the burden of proof each time.

With protections like that, I think I could live with a dangerous terrorist detention law.
1.8.2009 9:02pm
TGGP (mail) (www):
If the Commerce Clause power to regulate commerce authorizes Congress to ban commerce in child pornography, and the Necessary and Proper Clause therefore authorizes Congress to ban even private possession of child pornography, then it's hard to see why the Necessary and Proper Clause wouldn't authorize continued detention of people who have shown a willingness to commit such federal crimes.

One way of thinking about it might be to think about the historically established practice of civil commitment of people found not guilty by reason of insanity.

Wow, I reject all of that. I'm like a living "you might be a libertarian" joke.
1.8.2009 9:06pm
methodact:
Most "CP" is soft nudes. Sans that art, here is an essay of what, as a result of your laws, it has been replaced with.

Those that prefer the soft nudes are also herded into the bloody.
1.8.2009 9:07pm
Steve H:

No comment on the merits, but I do appreciate irony in case names--Loving v. Virginia being the best example.

United States v. Comstock is not quite in the same league, though though the name's association with Comstock Laws did bring a wry smile to my face.



Do an "Allcases" search for "TI(Limberhand)"
1.8.2009 9:42pm
David Schwartz (mail):
SteveH: I can only see one reason to adopt something like what you suggest: You may find someone shooting at you on a battlefield, apprehend that person, and they have broken no laws because the battlefield is not under competent jurisdiction. If you let them go, they will resume shooting at you.

But I do not buy the "dangerous terrorist" argument. If they're a terrorist, convict them of terrorism. If the argument is purely based on future danger, then it is Orwellian to hold them indefinitely.

If the proof is insufficient to support a criminal conviction, it's insufficient to support a detention. The whole point of a criminal conviction is that it's what is needed to justify a detention.

People forget that the rationale for military justice is not that there's anything wrong with civilian justice or that foreigners don't deserve it or that courts can't be trusted with war issues -- it's simply that war has exigencies that make such things impractical. When there are no such exigencies, that rationale evaporates. There are no "exigencies of war" surrounding someone held at Guantanamo for several years.
1.8.2009 11:10pm
Steve H:
I'm sympathetic to that argument, but I'm just not convinced. I've been railing for years now against the Bush Administration's claim of unfettered and unreviewable power to do anything it wants as long as it says "National Security." So I don't take these things lightly.

I just think that there needs to be a middle ground between criminal law and military detention of the sort we have now in Guantanamo.


But I do not buy the "dangerous terrorist" argument. If they're a terrorist, convict them of terrorism. If the argument is purely based on future danger, then it is Orwellian to hold them indefinitely.

If the proof is insufficient to support a criminal conviction, it's insufficient to support a detention. The whole point of a criminal conviction is that it's what is needed to justify a detention.



I assume you are speaking normatively, because factually, I think this is inaccurate. As I understand it, the state has long held the power to detain someone if they are dangerously insane, and apparently if they are dangerously likely to commit sex crimes against kids. So if that kind of power is legally justifiable, then the statute I am thinking of would be legally justifiable as well.
1.9.2009 12:33am
Happyshooter:
A sexually dangerous person breathes air, and those same atoms of air could be breathed in another state by cattle who then would be slaughtered and used to effect the interstate price of beef.

Clearly the congress has to power to regulate where sexually dangerous persons breathe the air.
1.9.2009 8:53am
David Schwartz (mail):
I assume you are speaking normatively, because factually, I think this is inaccurate. As I understand it, the state has long held the power to detain someone if they are dangerously insane, and apparently if they are dangerously likely to commit sex crimes against kids. So if that kind of power is legally justifiable, then the statute I am thinking of would be legally justifiable as well.
Really? Do you have citations? I was under the impression that if a person was never charged with nor found to have committed a crime, you could only commit them on a showing that the commitment was for their own good (that is, to treat them). I have never seen any case justifying commitment based purely on a future dangerousness argument.

You and I seem to have a very fundamental factual disagreement, and one of us is very wrong.
1.9.2009 10:46am
Steve H:
Here's the Utah law allowing involuntary of the mentally ill (note that the standard is not "future dangerousness" but present dangerousness):

"The court shall order commitment of an individual ... to a local health authority if, upon completion of the hearing and consideration of the information ..., the court finds by clear and convincing evidence that:

(a) the proposed patient has a mental illness;

(b) because of the proposed patient's mental illness he poses a substantial danger ... of physical injury to others or himself, which may include the inability to provide the basic necessities of life such as food, clothing, and shelter, if allowed to remain at liberty;

(c) the patient lacks the ability to engage in a rational decision-making process regarding the acceptance of mental treatment as demonstrated by evidence of inability to weigh the possible risks of accepting or rejecting treatment;

(d) there is no appropriate less-restrictive alternative to a court order of commitment; and

(e) the local mental health authority can provide the individual with the treatment that is adequate and appropriate to his conditions and needs."

Utah Code Ann. sec. 62A-15-632(10).

Regarding laws allowing continued commitment of sex offenders, the law that forms the basis of EV's post is an example, and I am pretty sure that a number of states have similar laws. The federal law above doesn't seem to require a criminal conviction, though I don't know if the state laws do. But they do tend to allow involuntary commitment to continue after the criminal prison sentence is completed.

For what it's worth, I'm not suggesting that these laws are good, or fair. My point is simply that as a legal matter, due process doesn't necessarily require conviction of a crime beyond a reasonable doubt before the government can lock you up.
1.9.2009 1:10pm
David Schwartz (mail):
SteveH: In that law, clause 'e' is an AND. The law requires that the person receive treatment from which he benefits. It also requires the patient to be found to be unable to make a competent decision for himself.

I guess this does technically meet my requirements. But this is really more finding that a person is not legally an adult. Note that requirement that the person committed by incapable of deciding for themselves whether or not to enter treatment.

The presumption behind this law is that if the person committed were rational, they would consent to the commitment. In any event, it doesn't really help with the dangerous terrorist case.
1.9.2009 1:43pm
Steve H:

The presumption behind this law is that if the person committed were rational, they would consent to the commitment. In any event, it doesn't really help with the dangerous terrorist case.


No, it's not very comparable to a terrorist detention law -- it just shows that there are situations where detention can be allowed without a criminal conviction.

Whether it's a good idea or a fair idea to have something for accused terrorists is a matter of policy and moral judgment.
1.9.2009 2:04pm

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