Now that I've had a chance to read the AWA civil commitment decision, I figured I'd make a few educated predictions and assessments about the opinion.
First, the court did a pretty good job discussing why the AWA civil commitment provisions were substantially different than those that were at issue in Hendricks and Crane. The court rightfully conceded for the purposes of deciding if the AWA's intent was civil or criminal, there was no appreciable differences between the AWA and prior statutes. However, the court made clear that Hendricks set aside questions of evidentiary standards and burdens of proof. Since Hendricks is the critical case for the government to hang its hat on in regards to substantive due process issues, any important distinctions really undercut the government's case.
Second, the court was unimpressed by the troubling government position concerning the commerce and necessary and proper clauses that I similarly found unpersuasive. The court found that the commerce clause argument is wholly inconsistent with Morrison and Lopez. Further, the court found that the necessary and proper clause argument was ultimately dependent upon the commerce clause argument. The last point could be a ripe issue for appeal if the government can prove the necessary and proper clause argument comes from an enumerated power other than the power to regulate interstate commerce. However, the cases the government cited for the prosecutor power are not really on point - they would need a much closer case to win this argument on appeal. The best hope for the government on this issue is probably that federal custody enables the necessary and proper clause. The government doesn't seem to have great precedent on the issue, but I think they could find a sympathetic judge or two on this point who are willing to make "new" law.
Overall, I think the substantive due process argument is unlikely to survive on appeal in the 4th Circuit even though the case law in support of the argument is pretty favorable to the offenders. However, I think there is a very good chance that the federalism concerns in the commerce clause argument will win the day. And if a circuit split emerges on that issue, we could see a successor to Raich which further muddies (or finally clarifies) commerce clause doctrine.
Sentencing Law & Policy is covering the case here.
At Crime & Consequences, Kent Scheidegger had some very interesting policy arguments to make:
Along with the constitutional problems, civil commitment is a problem because it takes another step down a road we have already traveled too far -- the medicalization of crime. A criminal act generally involves both a motive to violate the law and a decision to actually do it. Many sex offenders may very well have a mental disorder that causes them to have a desire that the rest of us simply do not have, such as having sexual relations with children. It does not follow, though, that their decision to act on that desire is the product of a mental illness. As added by this Act, 18 U.S.C. § 4247(a)(6) defines a person "sexually dangerous to others" to mean "that the person suffers from a serious mental illness, abnormality, or disorder as a result of which he would have serious difficulty in refraining from sexually violent conduct or child molestation if released." The term "serious difficulty" appears to be an attempt to straddle the moral fence between saying that actually committing the offense is an act of free will for which the person is fully morally responsible and saying that the illness made him do and he had no choice, so he is not responsible. I am not sure that an illness of the type described in the statute exists, but if it does it certainly does not include all sexually dangerous persons.
While I probably disagree with Kent on this point concerning competency and the insanity defense (where I think definitions are sometimes too narrow), I think he is exactly right when it comes to sentencing (and post-sentencing) issues.