Justice Ginsburg again focuses on the analogy to the commitment of those found to be insane (which I think is not persuasive). This was DuBois' reply:
MR. DUBOIS: No, Justice Ginsburg. I think not guilty by reason of insanity is a -- is a different case for a couple of reasons. First off, the commitment that flows from a not guilty by insanity verdict is directly linked to the Federal law which brought you into custody in the first place. The person is found to be -- to have been committed the crime, but he is only -- he is only excused from punishment for that crime by basis of his mental illness. So there is a direct link between the -- the crime which brought you into Federal custody and your subsequent commitment.
The other distinction, of course, is that not guilty by reason of insanity must be pled by the defendant, and in some sense the commitment is in lieu of punishment, it's not an additional punishment tacked on at the end of the sentence. So I don't think that the infirmity of the 4248 are at play at all in --
JUSTICE GINSBURG: So what's the power that the Federal Government is exercising when it commits someone who has been found not guilty by reason of insanity?
MR. DUBOIS: They are vindicating their interest in the specific criminal law which brought the individual into custody, which presumably in most cases -- in all cases, I guess -- is supported by an enumerated power. It is -- as I say, the commitment is -- is a substitute for punishment, it's in lieu of punishment, but it's directly linked to the crime which brought the individual into Federal custody.
I think that is exactly right and I hope Justice Ginsburg doesn't ultimately find that 4248 is analogous to the pretrial commitment of a person found to be insane.
In an exchange with Justices Stevens and Breyer, it appears that Justice Breyer thinks that 4248 commitments are analogous to the government regulating communicable diseases. DuBois tries to make the distinction on why communicable diseases are different because of a tie to interstate commerce, but because he was being interrupted so much, I wasn't sure his explanation was understood.
Justice Alito introduced a basis for at least some 4248 commitments that I had never heard articulated the way that he did:
JUSTICE ALITO: What about the general proposition that if -- if the incarceration causes a problem, then the Federal Government has the power, ancillary to the power to operate the -- the criminal justice system, to remedy the problems that it has caused by the incarceration?
I'm not sure how much this helps, though, because I don't think the government would be able to show that a person being a sexual predator was the result of incarceration. The analogy to the sick or injured inmate takes up a large portion of the oral argument.
Based upon everything that was argued, I think Justice Ginsburg is a lost vote for Comstock. This was her interjection about the Necessary and Proper Clause:
MR. DUBOIS: It seems to me that the government's argument essentially collapses into the notion, well, if it's a good idea, it must be necessary and proper to do it. I think that is just simply not correct. It's very -- we're going --
JUSTICE GINSBURG: It's more than the question of good idea. You are talking about endangering the health and safety of people, so it's --the government has some responsibility, doesn't it?
DuBois makes what I think is a very important concession that is exactly right. If the civil commitment was made as part of the original sentence (with the proper procedural protections for an indeterminate sentence in place), there would be federal jurisdiction.
There is a discussion of Greenwood (which I thought might figure more prominently in the government's oral argument) that is handled well by DuBois.
The government's rebuttal was brief but there was this one notable point by Kagan:
In fact, it is not and has never been the case that the test here is whether a government action is absolutely necessary to aid or effect a governmental or congressional power. The wisdom of the statute here is not what is at issue. Maybe this is the right statute, maybe there might be a better one.