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.
I believe Justice Rehnquist laid out a beautiful three-prong test in United States v. Lopez as to what Congress can regulate under the commerce clause, which includes: (1) channels of interstate commerce, (2) instrumentalities of interstate commerce, and (3) activities having a substantial relation to commerce.
I am a big fan of the decision in Lopez. The not piling an "inference upon an inference" language from Lopez (which was cited in this case), means a lot to me. I always like to ask myself, "How far down the chain and how much of a 'but-for' analysis do you have to do before whatever it is the government is trying to regulate affects commerce?'" I could throw a baseball in my backyard and if I think about it long enough, I could probably conjure up a way in which it affects commerce. Does this mean that Congress should be able to pass laws that prohibit me from throwing baseballs?
Posted by: Anthony Boyle | May 18, 2010 at 04:08 AM
I read the opinion(s), and it does not appear to me that the Court's analysis is based in any way on the Commerce Clause. Am I missing something?
Posted by: AFPD | May 18, 2010 at 03:06 PM
I don't understand why are trying to keep sex offenders in prison after they have completed their prison sentences. Let me re-phrase: I understand that it is political, and passing laws like that make politicians look good. But if the courts are worried that sex offenders will repeat crimes once released, then shouldn't they commit them to a mental health facility in the first place instead of sending them to prison?
Posted by: Joseph Marchelewski | May 18, 2010 at 03:20 PM
I am not even too familiar with federal laws that relate to sexual crimes, but if I had to take a guess, I would assume that they deal with kidnapping in some form, or bringing a person across state lines for sexual practices or human trafficking. Obviously, Congress is allowed to regulate drugs, guns, and everything else based on its substantial relation to commerce. Because Congress can regulate commerce, it is necessary and proper for Congress to build federal prisons in order to enforce the criminal laws which they pass (usually under the commerce clause).
Ultimately, the problem I have with this decision is the fact that the Court is taking a step toward allowing Congress to regulate all people, and not only sex offenders, but all persons who have done time in a federal prison, long after they were supposed to have been released from federal prison. Assume that Congress wants to pass a law that makes an indefinite detention for other types of federal prisoners, such as for those who robbed banks or participated in drug trafficking, until they could be found to no longer be a threat to society. According to this opinion, they could probably do it. It seems to undermine the purpose of even having a sentencing process because when the sentence gets handed down, it might as well be indefinite right from the get-go because there is no guarantee that the person will get released from their commitment even after that time period expires.
There is an easier way to ameliorate this issue without having to push through unconstitutional laws; impose a stiffer penalty. If Congress believes that more "time" is going to solve the problem, then up the ante in the criminal sentence, assuming that it is not violative of the ban on Cruel and Unusual Punishment, which I am guessing that it would not be because apparently, in several previous cases, it has been held that locking up petty drug offenders for ridiculously extended periods of time is okay, so why would this be any different?
Posted by: Anthony Boyle | May 18, 2010 at 04:19 PM
the problem anthony in your ideal!
"There is an easier way to ameliorate this issue without having to push through unconstitutional laws; impose a stiffer penalty."
They can't legally go back and do it to the 100's of THOUSANDS of ex offenders we have now. Unlike these illegal decisions we have now.
Sorry there is no way in hell under our constitution i dont' care what legal baloney you wrap it up in.
To decide someone is sane enough to bring to trial. HAVE the trial. Get a conviction! Get a sentence! Have the individual SERVE the sentence. THEN DECIDE THEY ARE NUTS!
Sorry as far as i'm concerned this puts the us right up there in the same group as adolph hitler, stalin, and mao. It also gives these individuals and their familys EVERY LEGAL and MORAL RIGHT to use whatever means necessary (there's that word again)LOL up to and INCLUDING lethal force to excape a blatently ILLEGAL and UNJUSTIFED inprisonment.
Posted by: rodsmith | May 19, 2010 at 01:00 AM
I think you may have misinterpreted my comment, Rod. I am not talking about retroactively imposing a stiffer penalty on those currently incarcerated. Ideally, this law would have gotten struck down and anybody currently serving their sentence would be released. From this point forward, what I was proposing was, instead of having these periodic review sessions of offenders after they are supposed to have been released, impose a stiffer penalty for federal sex crimes right from the get-go. I do not know what the penalties are, but for instance, if the time a person would spend in a federal prison is 10 years perhaps for a federal sex crime, they should make the mandatory minimum as much time longer than 10 years they feel appropriate for the sex offender to get the treatment they feel is necessary.
If Congress truly has some sort of animus toward sex offenders, then they could impose a stiffer minimum sentence for violation of federal sex crime laws, and any sentence would likely be constitutional, and in doing so, they would not have to push through laws that are questionable at best.
Posted by: Anthony Boyle | May 19, 2010 at 01:38 AM
ahh sorry it didnt' say anything about new law. just up the sentence so wasnt' sure.
ahh but anthony in most states now thanks to most of them adopting a version of florida's Jessica Lunsford law...even patting a child sexualy on the butt now carries a 25 to life sentence. CANT' get much toughter then that.
Also a number of states have made lifetime probation a follow up on any sex crime conviction. Again hard to go more restrictive then that.
What we have now is a continual passing of 1,000's of new laws around the country and in federal juristictions that mainly apply to OLD CRIMES.
Posted by: rodsmith | May 19, 2010 at 02:06 PM
People don't leave because things are hard. People do leave because it's no longer worth it.
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