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.
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.
What an interesting blog.
Sex crimes and how to punish and whether to rehabilitate an individual is such a fascinating topic both from a legal and social perspective. It will be interesting to see how (and if for that matter) the court does take a second look at the federal civil commitment provisions and how they would approach it differently.
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People who trust the federal bureaucracy and believe officials will use this power accurately, fairly, and in good faith may feel protected by it; others should worry about a government authorized to detain its citizens indefinitely, without jury trials, based on speculations about their future dangerousness.
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