Supreme Court looks at constitutionality of sex offender law

Lawyers challenging the law say the government is engaging in an unconstitutional power grab. “The government characterizes Section 4248 as an exercise of Congress’s powers to enact criminal laws and operate a prison system. Those powers are not enumerated anywhere in the Constitution,” writes Jane Pearce, an assistant federal public defender in Raleigh, N.C.

Detainees certified as 'sexually dangerous'

Under the new law, mMore than 60 individuals have been certified as “sexually dangerous” and are being held in indefinite detention in a federal prison in North Carolina.

Among them is Ms. Pearce’s client, Graydon Comstock.

Mr. Comstock was sentenced to three years in federal prison after pleading guilty to possessing child pornography. Six days before his scheduled release from prison, federal authorities moved to have him certified as a “sexually dangerous person.” To date, Comstock has spent six years in federal custody.

He is one of five individuals who sued to overturn Section 4248.

There is no indication in public court files what precisely led federal authorities to conclude that Comstock was sexually dangerous. All five men “have an extensive history of sexually deviant behavior beyond the crimes for which they have been charged or convicted,” a government filing says. It adds that “mental health professionals who have special expertise in sexual deviancy have certified that the respondents are ‘sexually dangerous persons.’ "

The government filing added: “Releasing such individuals would likely cause great danger to the communities into which they would be released.”

The specific evaluations are not publicly available in court files.

A friend-of-the-court brief submitted on behalf of the libertarian Cato Institute argues that Section 4248 has nothing to do with running the federal penal system. “The true aim of the act is not to support the operation of the prison system at all, but to protect the public at large by continuing the confinement of potentially dangerous persons after the conclusion of their sentences,” wrote Washington lawyer C. Allen Foster in the Cato brief. “However well intentioned Congress may have been, it has no power to legislate for the purpose of protecting the public from dangerous persons,” he said.

Some states support federal position

Thirty state attorneys general submitted a friend-of-the-court brief supporting Section 4248. They said the provision does not intrude in any way on state police powers. “Section 4248 is a model of cooperative state and federal efforts; the statute neither imposes a federal mandate on unwilling states nor does it preempt any of the states’ traditional police powers,” wrote Kansas Attorney General Steve Six.

The decision in US v. Comstock is expected by late June.

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