Sex Crimes

Op-Ed: "When the Feds Decide Who's Sexually Dangerous"

Continuing our coverage of Comstock, I just finished reading this effective editorial at The Atlantic raising some concerns over the potential reach of the decision. The opinion piece also compares the voting blocs of Comstock (which dealt with federal civil commitment) and an earlier Supreme Court decision, Kansas v. Hendricks (which dealt with state civil commitment). In Comstock, Justice Breyer wrote the majority opinion and Justice Thomas wrote the dissent, whereas in Hendricks, Justice Thomas wrote the majority opinion (upholding the Kansas law) and Justice Breyer wrote the dissent. From the editorial:

The wide applicability of this statute and lack of procedural safeguards distinguish it from state civil commitment laws previously upheld by the Supreme Court (this argument is presented in convincing detail in the NACDL amicus brief).  In 1997, in Kansas v. Hendricks, the court upheld a controversial Kansas statute providing for the civil commitment of people deemed likely to commit "predatory acts of sexual violence" due to "mental abnormalities" or "personality disorders."  But at least the Kansas law applied only to people previously convicted or charged with specified sex offenses and provided for jury trials in which alleged future dangerousness would have to be proved beyond a reasonable doubt.
   
Hendricks upheld the Kansas civil commitment scheme by a five-to-four vote, in a conventional liberal-conservative split.  Justice Thomas wrote the majority opinion upholding the law, joined by Justices Rehnquist, Scalia, O'Connor, and Kennedy; Justice Breyer wrote the dissent, joined by Justices Ginsberg, Souter, and Stevens.  In Comstock, however, the majority and dissent switched sides.  Justice Breyer wrote for the majority, upholding a federal civil commitment statute that's less protective of individual rights than the state statute he would have struck down (he was joined by Ginsberg, Stevens, and Sotomayor; Kennedy, Roberts, and Alito concurred).  Justice Thomas wrote the dissent, joined by Scalia.
   
What accounts for this switch?  In Comstock, the court didn't address due process challenges to the federal civil commitment scheme; it was reviewing a decision by the Fourth Circuit Court of Appeals that struck down the federal statute as an unconstitutional exercise of congressional power, without reaching questions about due process (or other individual rights).  So, putting individual rights issues aside, Justice Breyer adopted the expansive view of federal authority advocated by Solicitor General Kagan.  (At the Volokh Conspiracy, Orin Kerr described Kagan's position as "shockingly broad: She argued that the Constitution gives the federal government the general power 'to run a responsible criminal justice system,' and that anything Congress plausibly thought a part of running a 'responsible criminal justice system' was within the scope of federal power.")  Justices Thomas and Scalia, in keeping with a more literal, or originalist, reading of Article I congressional authority, and a view of the federal government as one of explicitly enumerated powers, would have denied the federal government civil commitment powers similar to those they afforded the states.
   
So there is some logic to these oddly contrasting positions represented by Justices Breyer and Thomas in their reviews of state and federal civil commitment statutes, respectively.  Technical, constitutional arguments aside, however, I do wonder how Justices Thomas and Scalia would explain, in lay terms, why they oppose federal power to detain people deemed "sexually dangerous" in civil commitment proceedings but support federal power to criminalize mere possession or even false advertising of child porn, imposing long sentences on people who have never committed or even been suspected of committing any actual sexual offenses.
   
In any case, the court may get another chance to review the federal civil commitment provisions of the Adam Walsh Act.  The Comstock case will return to the Fourth Circuit, where, as Justice Breyer observed, Graydon Earl Comstock (et al) may raise due process, equal protection claims or any other individual rights claims on which the court has not yet ruled.  But even if the case eventually wends its way back to the Supreme Court, and even if Justice Breyer switches sides again and somehow takes four of his colleagues with him, much damage has been done.  Federal criminal jurisdiction has expanded dramatically in the last few decades, with the blessings of conservatives and liberals alike.  Now, thanks to the ruling in U.S. v Comstock, that power seems practically infinite: federal authorities can imprison people indefinitely on suspicions of future dangerousness. It's not just suspected sex offenders or terrorists who are at risk. 

SCOTUSblog Recap of Comstock

As usual, SCOTUSblog has an excellent recap of the Comstock opinions written by Stanford Law Student Eric Hansford. From the post:

The respondents in this case are federal prisoners who were about to be released when the government instituted civil commitment proceedings against them under Section 4248.  When the respondents challenged (among other things) the constitutionality of the government’s actions, the district court held (again, among other things) that the statute exceeded Congress’s powers under Article I of the Constitution, and the Fourth Circuit affirmed on this ground.

The Supreme Court granted certiorari, and yesterday it reversed.  In the majority’s view, “five considerations, taken together,” compel the conclusion that Article I’s Necessary and Proper Clause grants Congress authority sufficient to enact Section 4248.

Justice Kennedy concurred in the judgment.  In a separate opinion, he emphasized that the Necessary and Proper Clause has limits, and he sought to distance himself from what he regarded as some of the Court’s broadest language.  In particular, he underscored that the “rational relationship” test at issue here is much more demanding than the “rational basis” test used in due process cases.

Justice Alito also concurred in the judgment.  In his view, there is a “substantial link” between Section 4248 and Congress’s enumerated powers, thereby rendering the statute a necessary and proper means of implementing federal criminal law statutes authorized by Congress’s other enumerated powers.

Questions Left Unanswered By Comstock

Although the U.S. Supreme Court definitively ruled that the federal government has the power under the Necessary and Proper Clause to keep "sexually dangerous persons" in custody after the expiration of their sentence, both the majority and dissenting opinions noted some issues left unresolved by the decision. From Justice Breyer's opinion:

In resolving [the question presented], we assume, but we do not decide, that other provisions of the Constitution -- such as the Due Process Clause -- do not prohibit civil commitment in these circumstances. Cf. Hendricks, 521 U.S. 346; Addington v. Texas, 441 U.S. 418 (1979). In other words, we assume for argument's sake that the Federal Constitution would permit a State to enact this statute, and we ask solely whether the Federal Government, exercising its enumerated powers, may enact such a statute as well. On that assumption, we conclude that the Constitution grants Congress legislative power sufficient to enact § 4248.

This seems to me an odd way to frame the argument, since it is established that states can act in ways in which the federal government cannot. Justice Thomas' dissenting opinion also mentions the many questions left unanswered by the Comstock decision, although he choose to articulate the questions in laundry list fashion. From Justice Thomas' opinion:

The Court’s newly minted test cannot be reconciled with the [Necessary and Proper] Clause’s plain text or with two centuries of our precedents interpreting it. It also raises more questions than it answers. Must each of the five considerations exist before the Court sustains future federal legislation as proper exercises of Congress’ Necessary and Proper Clause authority? What if the facts of a given case support a finding of only four considerations? Or three? And if three or four will suffice,  which  three or four are imperative? At a minimum, this shift from the two-step McCulloch framework to this five-consideration approach warrants an explanation as to why McCulloch is no longer good enough and which of the five considerations will bear the most weight in future cases, assuming some number less than five suffices. (Or, if not, why all five are required.) The Court provides no answers to these questions.

Perhaps this is an inevitable consequence of a major decision. In the oral arguments for District of Columbia v. Heller for example, (which also left many questions unanswered) Chief Justice Roberts appeared in favor of having these questions answered gradually over time. From the oral argument transcript:

CHIEF JUSTICE ROBERTS: Well, these various phrases under the different standards that are proposed, "compelling interest," "significant interest," "narrowly tailored," none of them appear in the Constitution; and I wonder why in this case we have to articulate an all-encompassing standard. . . I'm not sure why we have to articulate some very intricate standard. I mean, these standards that apply in the First Amendment just kind of developed over the years as sort of baggage that the First Amendment picked up. But I don't know why when we are starting afresh, we would try to articulate a whole standard that would apply in every case?

Comstock Roundup

News media and the blogosphere are abuzz with discussion of the Comstock case and its future implications. Here is a round up of the media and blog coverage (in no particular order): Associated Press (1, 2, video), USA Today, New York Times, Wall Street Journal, Washington Post, Volokh Conspiracy (Volokh, Volokh, Barnett, Adler, Somin), Sentencing Law & Policy (1, 2, 3, 4), SCOTUSblog, Constitutional Law Prof Blog, ABA Journal, TIME, Cato @ Liberty, Los Angeles Times (1, 2), CBS News, ABC News, CNN, AFP, MSNBC, Business Week, National Public Radio, Christian Science Monitor.

What is Necessary and Proper?

There are many different angles from which someone could attack the majority opinion issued today in United States v. Comstock. I am on record previously and continue to believe that Section 4248 is an unconstitutional exercise of federal power. In this case, though, I want to focus on the factual claim by the majority and the concurring opinions that 4248 was necessary and proper to execute an enumerated power. From the majority:

Taken together, these considerations lead us to conclude that the statute is a “necessary and proper” means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others. The Constitution consequently authorizes Congress to enact the statute.

While Justice Alito's concurrence believes that the majority holding might be too broad, it affords little retreat on the issue of whether 4248 was necessary and proper:

The Necessary and Proper Clause provides the constitutional authority for most federal criminal statutes. In other words, most federal criminal statutes rest upon a congressional judgment that, in order to execute one or more of the powers conferred on Congress, it is necessary and proper to criminalize certain conduct, and in order to do that it is obviously necessary and proper to provide for the operation of a federal criminal justice system and a federal prison system.

What seems clear from the above quotes is the Court was persuaded that 4248 was necessary (but not absolutely necessary) and proper for effectuation of an enumerated power (the Commerce Clause) because it was intertwined with the administration of a federal prison system. That's nonsense. It seems like the Court was unwilling to acknowledge what everyone who supported this statute knows - 4248 was a means to incarcerate sex offenders after their release. Thus the period of jurisdictional control of the offender would be indefinitely extended. And while the test case was for a prisoner being released, there will surely be persons who have merely been arrested or detained for immigration purposes soon diverted to civil commitment facilities. The Court ultimately relies on analogies to past cases, but I just can't wrap my head around the idea that, even under an expansive view of the Necessary and Proper Clause, there is reason for 4248 in regards to the administration of the federal criminal justice system. This was a clear extension of federal power that was neither necessary nor proper as the federal prison system was wholly unaffected by the lack of 4248 before it was passed. While the outcome was expected, it is still disappointing to see in writing.

United States v. Comstock: Some Early Observations

I want to thank Professor Yung for inviting me to share my thoughts here. Today the U.S. Supreme Court handed down an opinion in United States v. Comstock (opinion here) upholding the federal sex offender civil commitment statute (18 U.S.C. § 4248) under the Necessary and Proper Clause. I will have more to say about this decision in the coming days, but I thought I should post some initial observations of the decision.

First, it is not surprising that Justice Breyer authored the majority opinion, since he is known to be the Justice least likely to invalidate federal law. Justices Kennedy and Alito concurred only in the decision. As predicted, Justices Thomas and Scalia dissented.

Second, the majority opinion suggests that there may be future constitutional challenges to Section 4248. Specifically, the majority states:

"We do not reach or decide any claim that the statute or its application denies equal protection of the laws, procedural or substantive due process, or any other rights guaranteed by the Constitution. Respondents are free to pursue those claims on remand, and any others they have preserved."

Finally, I found it interesting that, unlike in Gonzalez v. Raich — where several states argued for state regulation of medical marijuana separate from federal regulation — in Comstock a majority of states argued in favor of federal civil commitment for sexually dangerous persons. Justice Thomas' dissent suggests that the states' motivation might be financial:

Nevertheless, 29 States appear as amici and argue that § 4248 is constitutional. They tell us that they do not object to Congress retaining custody of “sexually dangerous persons” after their criminal sentences expire because the cost of detaining such persons is “expensive” — approximately $64,000 per year — and these States would rather the Federal Government bear this expense. Brief for Kansas et al. 2; ibid. (“[S]ex offender civil commitment programs are expensive to operate”); id., at 4 (“these programs are expensive”); id., at 8 (“[T]here are very practical reasons to prefer a system that includes a federal sex offender civil commitment program . . . . One such reason is the significant cost”).

The cost of civil commitment might be high for states, but does that give the federal government the power to pursue civil commitment in this case? As the dissent points out, "Congress’ power . . . is fixed by the Constitution; it does not expand merely to suit the States’ policy preferences, or to allow State officials to avoid difficult choices regarding the allocation of state funds." Indeed, a "good" policy may nevertheless be unconstitutional.

Changes at Sex Crimes Blog

I'm excited to announce that there will be a new face joining Sex Crimes. Truthfully, though, he is not a new face at all. He has been my research assistant for two years and has been an indispensable part of the blog. He graduated in January and is in private practice handling sex offender and other criminal law cases with a small firm. He is Miguel Larios and I am sure you all will enjoy his contributions.

United States v. Comstock

The opinion is out. Not surprisingly, the government won 7-2 (Kagan gets a victory at oral argument). I thought Justice Sotomayor would join the dissent based upon the oral argument, but it looks like Orin Kerr called the lineup exactly right with only Justices Scalia and Thomas dissenting (if my memory is right). Despite my recent low-blogging-level, I will have plenty of Comstock coverage throughout the day. For now, though, check out these links:

Opinion upholding federal sex offender statute

SCOTUS upholds broad federal power to commit sex offenders in Comstock

Federal Government Has the Power to Civilly Commit Sexually Violent Predators After Federal Incarceration

Federal Government Wins Comstock

Federalism and Sex Offenders

Other than the holdings, what are the biggest "stories" of the Graham  and Comstock rulings?

Today’s orders and opinions

Supreme Court Action

Necessary and Proper to Extend Civil Committment for Sex Offenders: Comstock Opinion Analysis

MA High Court Considers GPS Monitoring for Sex Offenders

Recently, the Massachusetts Supreme Judicial Court heard a case where a sex offender who objected to wearing a GPS-monitoring device during his probation term. From the Boston Herald:

Allowing sex offenders to roam free without GPS monitoring has district attorneys joining forces to appeal to have judges granted the authority to slap the fiends with ankle bracelets.

The state Supreme Judicial Court yesterday heard both sides of the controversy in a case about a convicted Middlesex County child rapist who objected to wearing a GPS-monitoring device during his 10-year probation term.After he finished jail and civil sentences last summer, the Probation Department requested GPS monitoring for Goodwin.

Superior Court Judge Kathe M. Tuttman, however, ruled she did not have the authority to impose the monitoring. In her ruling, Tuttman cited a 2009 SJC decision that decided a 2006 law mandating GPS devices on all sex offenders placed on probation cannot apply retroactively.

Goodwin’s attorney, Beth L. Eisenberg, also said Tuttman’s ruling found imposing GPS tracking amounted to impermissable punishment because he was in compliance with all the terms of his probation.

Since the summer, about 234 sex offenders have been allowed to remove their ankle bracelets as a result of the SJC ruling.

H/T: Sentencing Law & Policy.

Chicago Tribune: "Are sex offender laws working?"

The Chicago Tribune has an interesting article discussing how Illinois' sex offender residency restrictions may be doing more harm than good. From the article:

Thousands of sex offenders have remained in prison for parole and then been returned to the streets without oversight or treatment. These offenders are less likely to register their addresses than those serving tightly monitored paroles in the community. They also are more likely to reoffend, sometimes repeating the same sex crimes, the review found.

Of the 1,292 sex offenders discharged in fiscal 2008 after serving parole behind bars, 28 percent were listed as missing, not having registered their address or not being up-to-date with their registrations, compared with 23 percent of the 1,868 sex offenders paroled into the community.

Another 21 percent of the discharged offenders returned to prison, a slightly higher rate than those who were paroled. But in most cases, offenders monitored in the community were sent back to prison for technical parole violations, in many cases housing-related problems, while the discharged offenders were convicted of new crimes.

Sex offender housing restrictions have long been criticized by civil liberties advocates, who argue that it's unjust to banish any segment of society, and by criminal justice experts, who say it's more productive and cost-effective for most offenders to undergo parole supervision and treatment in the community.

Now some victims' advocates and members of law enforcement are echoing the calls for reform.