The Wall Street Journal is running an excellent editorial discussing United States v. Comstock and its implications for future Commerce Clause decisions. The Los Angeles Times and UPI are also running editorials about Comstock. From the WSJ op-ed:
Sex offenders are the least sympathetic of legal plaintiffs. Still, we were dismayed last week to see so many Supreme Court Justices during oral arguments apparently willing to let the federal government take over an area of law governing criminals that the Constitution grants to the states.
The question in U.S. v. Comstock is whether sex offenders who have already completed their federal criminal sentences may then see their incarceration extended through a process of "civil commitment" by the federal government. The law in question, the 2006 Adam Walsh Child Protection Act, allows the Attorney General to certify a person as a danger to the population and keep him in federal custody. The law tramples on the traditional power of states to protect public health and safety.
At oral argument, Solicitor General Elena Kagan argued that federal authority comes from its responsibility to maintain the criminal justice system, and that Congress may make all laws that are "necessary and proper" to execute its other Constitutionally vested powers. But civil commitment and criminal incarceration are different realms of enforcement: Those who have already served their legally prescribed sentences ought no longer be within reach of federal authorities.
The implications go well beyond sex offenders. To do as the Obama Administration asks would be to grant the federal government broad power in the criminal context. In the case of Graydon Comstock, who had been sentenced to three years in jail for purchasing child pornography, the Fourth Circuit Court of Appeals ruled that Congress lacked Constitutional authority to recommit him after he had done his federal time.
If the Supreme Court reverses the lower court's decision, it will sanction the notion that nearly any appealing idea may be justified as necessary and proper. In other countries, loose detention laws give wide latitude to authorities to lock up any number of people who "threaten the public safety," including political prisoners. Maybe next the feds could force everyone in America to buy health insurance.
The question in U.S. v. Comstock is whether sex offenders who have already completed their federal criminal sentences may then see their incarceration extended through a process of "civil commitment" by the federal government. The law in question, the 2006 Adam Walsh Child Protection Act, allows the Attorney General to certify a person as a danger to the population and keep him in federal custody. The law tramples on the traditional power of states to protect public health and safety.
At oral argument, Solicitor General Elena Kagan argued that federal authority comes from its responsibility to maintain the criminal justice system, and that Congress may make all laws that are "necessary and proper" to execute its other Constitutionally vested powers. But civil commitment and criminal incarceration are different realms of enforcement: Those who have already served their legally prescribed sentences ought no longer be within reach of federal authorities.
The implications go well beyond sex offenders. To do as the Obama Administration asks would be to grant the federal government broad power in the criminal context. In the case of Graydon Comstock, who had been sentenced to three years in jail for purchasing child pornography, the Fourth Circuit Court of Appeals ruled that Congress lacked Constitutional authority to recommit him after he had done his federal time.
If the Supreme Court reverses the lower court's decision, it will sanction the notion that nearly any appealing idea may be justified as necessary and proper. In other countries, loose detention laws give wide latitude to authorities to lock up any number of people who "threaten the public safety," including political prisoners. Maybe next the feds could force everyone in America to buy health insurance.
Wow. This is such a bad road to travel down. If a sex offender is really deemed such a danger to the public that his jail sentence is extended, why was it not made longer in the first place? This is so unjust.
Posted by: Joe | January 28, 2010 at 08:46 PM
because LEGALLY they are constitutinally forbidden to go back and add time or increase a court ordered sentence. It's only with this half-assed ILLEGAL so-called "civil" law that's according to them 'NOT A PUNISHMENT" have they even been able to do it.
not sure where the judges and politicians the last 50 years or so went to school and were taught to read but i've neven seen anything in the U.S CONSTITUTION that says anything about "civil" or "criminal" law. ALL it says is "no expost law will be passed" PERIOD!
Posted by: rodsmith3510 | January 30, 2010 at 01:18 AM
RE: Purchasers of Child Pornography
There would not be pornography of one child circulating on the web for 10 years or more if there weren't people looking at it, so the possessor/viewer of porno are contributing to the production of it, making them pretty guilty too.
I learned this in economics: supply and demand. Maybe you missed that in your law education.
Posted by: Lillian | February 02, 2010 at 11:43 PM
true. Of course if the U.S Govt would stop providing 90% of it. You might see a decrease in abuse.
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