Supreme Court to review sex offender law

The top court agrees to assess a law that lets the US government indefinitely detain sex offenders even after they have served their sentences.

By Warren Richey | Staff writer of The Christian Science Monitor

from the June 22, 2009 edition

Washington - The US Supreme Court has agreed to decide the constitutionality of a law that allows the federal government to indefinitely detain a person deemed "sexually dangerous," even after that person has finished serving a full prison sentence.

The issue arises in the case of a man who has been confined to a North Carolina federal prison for more than two years after completing his three-year sentence for receiving child pornography. The man, Graydon Earl Comstock, has no firm release date.

In January, a federal appeals court panel declared the law unconstitutional. "The Constitution does not empower the federal government to confine a person solely because of asserted 'sexual dangerousness' when the government need not allege (let alone prove) that this 'dangerousness' violates any federal law," wrote Judge Diana Gribbon Motz of the Fourth Circuit Court of Appeals based in Richmond.

The provision in question was passed as part of the Adam Walsh Child Protection and Safety Act of 2006. It authorizes the attorney general to seek the court-ordered, open-ended civil commitment of any "sexually dangerous person" already in US custody.

The measure is controversial in part because it relies on anticipation of future dangerousness to society, rather than actual or planned violations of law.

The case, which the high court will hear in the fall, is significant legally because it tests the breadth of federal power under the Constitution's necessary and proper clause. The Obama administration is currently considering enacting a legal regime to indefinitely detain Al Qaeda terror suspects currently at Guantánamo who can't be put on trial but who are deemed too dangerous to be released.

In May, a panel of the St. Louis-based Eighth Circuit Court of Appeals upheld the same provision of the Child Protection and Safety Act. That court ruled that Congress had the authority under the necessary and proper clause to provide for civil commitment as a means of preventing future sex crimes.

In contrast, the Fourth Circuit concluded that the law is not a "necessary and proper" function of the federal government because the job of policing violent sexual attacks belongs to state and local law enforcement agencies.

The North Carolina case involves inmates being held at the Federal Correctional Complex at Butner, N.C. Since the law passed, the federal government has sought to indefinitely detain 95 individuals it deemed "sexually dangerous," 77 of whom are housed at Butner.

"Congress could reasonably determine that it is 'appropriate' – and therefore 'necessary and proper' under [the 1819 landmark decision McCulloch v. Maryland] – to protect private persons from sexually dangerous, mentally ill persons whom the federal government has taken into its custody," writes Solicitor General Elena Kagen.

Mr. Comstock's lawyer, Jane Pearce, an assistant federal public defender in Raleigh, argues that the law exceeds Congress's legislative authority under the necessary and proper clause. In addition, she says the statute violates due process protections because it allows the government to imprison someone potentially for life using a relaxed burden of proof rather than the beyond-a-reasonable-doubt standard required for a criminal conviction and jail term.

"[This law] expands federal civil commitment into an area never before contemplated by the federal government, an area that has historically been the province of the states," Ms. Pearce writes in her brief.