Posted by Eugene Volokh:
Federal Power Question Related to Post-Criminal-Term Civil Commitment of
"Sexually Dangerous" Federal Offenders Now Even More Likely To Go to the
Supreme Court:
http://volokh.com/archives/archive_2009_05_10-2009_05_16.shtml#1242237983
I blogged about this question [1]in January, when the Fourth Circuit
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
[2]Eighth Circuit has now reached the opposite result, and a circuit
split on the constitutionality of a federal statute is almost certain
to lead to Supreme Court review.
Here's an excerpt from the Eighth Circuit's reasoning, which generally
strikes me as correct:
([3]Show excerpt.)
Congress has determined that providing for the civil commitment of
persons in a variety of circumstances is necessary and proper to
the functioning of federal criminal laws. 18 U.S.C. § 4241
authorizes the civil commitment of a defendant "suffering from a
mental disease or defect rendering him ... unable to understand the
nature and consequences of the proceedings against him or to assist
properly in his defense." 18 U.S.C. § 4243 provides for the civil
commitment of persons found not guilty by reason of insanity. In
appropriate cases 18 U.S.C. § 4244 authorizes the civil
commitment, in lieu of imprisonment, of a person found guilty for
the maximum period allowed for the offense committed. 18 U.S.C. §
4245 allows the government to seek the temporary civil commitment
of a federal prisoner suffering from a mental disease or defect
requiring hospitalization. The civil commitment of a hospitalized
person whose term of incarceration is about to expire, who has been
previously committed under § 4241, or against whom all charges
have been dismissed by virtue of insanity, and who "suffer[s] from
a mental disease or defect as a result of which his release would
create a substantial risk of bodily injury to another person or
serious damage to property of another" is authorized by 18 U.S.C.
§ 4246.
The nexus between these statutes and the enforcement of duly
authorized federal criminal laws is evident. In each case the
operation of the underlying federal criminal law would be
frustrated without the related civil commitment provision.
Otherwise, the power to prosecute or punish could be defeated, or
the opportunity to prevent a federal crime could be lost, see
United States v. Perry, 788 F.2d 100, 111 (3d Cir. 1986)
("[B]ecause Congress has the power to proscribe the activities in
question, it has the auxiliary authority, under the necessary and
proper clause, to resort to civil commitment to prevent their
occurrence."). We reach a similar conclusion with regard to §
4248.
Tom, like the petitioner in Greenwood, is alleged to suffer from a
severe mental condition rendering him a menace to members of the
general public, including children. Moreover, like the petitioner
in Greenwood, federal power over Tom has not yet been exhausted for
he was sentenced to a 60 month term of supervised release which had
yet to begin at the time he was certified as a sexually dangerous
person. See 18 U.S.C. § 3583 ("The Court, in imposing a sentence
to a term of imprisonment for a felony or a misdemeanor, may
include as a part of the sentence a requirement that the defendant
be placed on a term of supervised release after imprisonment
...."). As § 3583 makes clear, the federal government retains a
vast amount of power over criminal defendants subject to a term of
supervised release that is not dissimilar from the power to
prosecute. For example, the court may require the defendant to
participate in a rehabilitation program, comply with the
requirements of SORNA, and submit to periodic drug testing. §
3583(d). The defendant may be required to submit his person and
property to warrantless search. § 3583(d)(3). The court may modify
or extend a term of supervised release. § 3583(e)(1)-(4). Of most
significance, the court may revoke the term of supervised release
altogether and require the defendant to complete it in prison. §
3583(e)(3). In such a case the defendant could be subject to a new
term of supervised release following the completion of his prison
term. § 3583(h).
Accordingly, we conclude that Congress, having been empowered by
the Commerce Clause to criminalize and punish the conduct of which
Tom is guilty, has the ancillary authority under the Necessary and
Proper Clause to provide for his civil commitment so that he may be
prevented from its commission in the first place. As we explained
in Greenwood,
The national government has the undoubted right to define federal
crimes; to provide for the administration and enforcement of its
criminal laws; to prescribe the penalties which will be incurred by
those violating them; to furnish institutions where such violators
can be confined; and generally to do whatever reasonably and
lawfully can be done to protect society against such offenders. We
have no doubt that as a necessary incident to the power to provide
for the enforcement of the criminal laws of the United States,
Congress had the power to enact the legislation in suit providing
means for the commitment to the custody of the Attorney General of
insane or mentally incompetent persons ....
It is true that ... individuals committed under [the statute] might
be prevented from committing state crimes in addition to federal
crimes. This does not, however, render the legislation
constitutionally defective. First, the Supreme Court "ha[s] never
required Congress to legislate with scientific exactitude." Second,
even were "exactitude" required, the Adam Walsh Act civil
commitment provision applies to a restricted universe of
individuals -� those who have been charged with or convicted of a
federal crime, see § 4248(a), and "have serious difficulty in
refraining from sexually violent conduct or child molestation," see
§ 4247(a)(6) -- who because of the nature of their proclivities
are likely to commit federal crimes.
A propensity to engage in sexually violent conduct or child
molestation can hardly be disassociated from the likelihood that a
person may commit other types of sex related crimes that fall
within federal jurisdiction, such as those involving internet child
pornography, see 18 U.S.C. § 2252, or the use of the internet to
solicit sexual activity from a minor, see 18 U.S.C. § 2422(b). As
a Senate report indicates, by one estimate more than 50% of child
molesters possessed child pornography at the time of arrest....
While we are mindful of the fact that "Congress, unlike the
legislatures of the states, cannot sanction for the general
welfare," § 4248 appears to be "aimed at preventing the specific
harm to the community proscribed by the [federal sex crime]
statutes."
([4]Hide excerpt.)
References
1. http://volokh.com/archives/archive_2009_01_04-2009_01_10.shtml#1231457098
2. http://www.ca8.uscourts.gov/opndir/09/05/082345P.pdf
3. file://localhost/var/www/powerblogs/volokh/posts/1242237983.html
4. file://localhost/var/www/powerblogs/volokh/posts/1242237983.html
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