May 2010
Update
N AT I O N A L C E N T E R
SAFETYNET: MULTIDISCIPLINARY
INVESTIGATION AND PROSECUTION OF
TECHNOLOGY-FACILITATED CHILD
SEXUAL EXPLOITATION
SEPTEMBER 27-OCTOBER 1, 2010
STONEHILL COLLEGE
EASTON, MASSACHUSETTS
This intensive five-day course is intended
for prosecutors, investigators and computer
forensic examiners investigating technology
facilitated crimes against children. This
course includes hands on computer lab exercises.
For more information about these conferences, see our Web site at www.ndaa.org
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AUGUST 23-27, 2010
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FOR
United States v Comstock
560 U.S. ____ (2010)
I
by Corinne Militz1
n U.S. v. Comstock, the
Supreme Court of the
United States determined
that Congress did not exceed its constitutional authority
in enacting 18 U.S.C. § 4248. §
4248 authorizes the court-ordered civil commitment by the
federal government of “sexually
dangerous” persons within federal custody who are nearing
completion of their prison sentences or who have been determined incompetent to stand
trial.
On January 8, 2009, the
United States Court of Appeals for
the Fourth Circuit handed down a
decision in the consolidated appeals
of five separate defendants in a case
challenging the constitutionality of
§ 4248, a portion of the Adam
Walsh Child Protection and Safety
Act of 2006.2 The court held that in
enacting § 4248, Congress exceeded
the bounds of its constitutional authority.2 In four of the five cases, the
U.S. Attorney General had certified
the defendant as a “sexually dangerous person” near the end of his federal prison term, requiring a civil
commitment period that extended
after the end of his original sentence.4
In the decision, the Fourth
Circuit rejected the government’s
argument that the Commerce
Clause empowered Congress to
enact § 4248. The court cited U.S. v.
Morrison, which distinguished be-
tween the powers of the states and
of the federal government to regulate interstate commerce, and specifically economic versus
non-economic activity.5 The Comstock court held that regulation of
sexually dangerous people is just the
type of activity within the province
of the states and not the federal
government6 and that the target of §
4248—sexual dangerousness—is not
an economic activity.7
The government, as the Petitioner, contended that the power to
authorize the civil commitment of
sexual predators is directly related to
the authority granted to Congress
under Article I of the United States
Constitution “to establish and
maintain a ‘federal criminal justice
and penal system.’”8 While the
court acknowledged Congress’
power to operate a federal penal
system, it held that civil confinement of former prisoners extends
beyond this power.9 Furthermore,
the court found that the federal
government does not possess the
broad power to regulate all sex-related crimes, and in this respect §
4248 is overly broad. Finally, the
court held that the power to prosecute is exhausted when a prisoner
has served his sentence, and therefore Congress cannot base § 4248
on this power because it authorizes
civil commitment after a prisoner
has completed his or her sentence.10
The Supreme Court of the
United States granted certiorari on
June 22, 2009 to address the question of whether
Congress has the constitutional authority to enact a
statute that authorizes court-ordered civil commitment of “sexually dangerous” individuals in two
different positions—those in custody of the federal
Bureau of Prisons who are nearing the ends of
their prison sentences, and those in custody of the
United States Attorney General who have been
found incompetent to stand trial.11
On January 12, 2010, the Court heard oral
arguments in U.S. v. Comstock. The parties’ positions
highlighted the central federalism question:
whether the authority and the responsibility to
civilly commit sexually dangerous former federal
prisoners should lie with the states or with the federal government.12 During oral arguments, Solicitor General Elena Kagan, on behalf of the United
States as Petitioner, characterized the federal government’s role as a stop-gap for situations when
states are unwilling or unable to deal responsibly
with sexually dangerous former federal prisoners.13
She emphasized the reality that sexual predators,
along with other mentally ill prisoners, often “fall
through the cracks between Federal custody and
the reestablishment of State control.”14
The Justices questioned not only the potential for unfettered federal power created by a statute
such as § 4248, but also the premise that states do
in fact fail to commit sexually dangerous former
prisoners.15 The Petitioner, clarifying § 4248, emphasized two limitations on the federal government’s power to civilly commit former prisoners.
First, there must be a factual showing that the person has “engaged in sexually violent behavior or
child molestation.”16 Second, so far the government has only certified as sexual predators those
offenders reasonably likely to commit further sexual offenses.17 Finally, the Petitioner emphasized
that when exercising its civil commitment power
the federal government, much like a state government, is subject to constitutional limitations, such
as the Due Process Clause.18
When pressed for a specific constitutional
foothold for § 4248, the Petitioner relied primarily
on the Necessary and Proper Clause.19 The Petitioner argued that the Necessary and Proper
Clause authorizes the federal government to take
action to not only make possible the exercise of its
enumerated powers, but to also ensure that they are
carried out both beneficially and responsibly.20
Specifically, the power to civilly commit a “sexually
dangerous” person after his prison term expires is
necessary and proper to the responsible exercise of
the federal power to operate a criminal justice system.21 Further, the Petitioner argued, the federal
government has a greater responsibility to deal
with these prisoners because the act of federal incarceration itself helped create the problem by tak-
ing prisoners out of states’ control.22
Assistant Federal Public Defender Alan
DuBois, on behalf of the Respondents, echoed
many of the Justices’ concerns about the potential
for untrammeled federal power within § 4248, by
arguing that “[F]ederal power can[not] expand or
contract based on states’ willingness or unwillingness to take on responsibility.”23
The Respondents focused on a narrower
interpretation of “necessary and proper,” arguing
that the fact that something is a “good idea” does
not render it necessary.24 They emphasized that the
main problem with the statute is that it authorizes
civil commitment which commences after the
conclusion of the original sentence. The Respondents conceded that if the period of civil commitment was incorporated into the sentence from the
beginning, it would likely be Constitutional.25
The United States Supreme Court handed
down its decision on May 17, 2010.26 It held that
Congress did not exceed the scope of its Constitutional authority in enacting § 4248.27 The Court
emphasized five different lines of reasoning in support of its conclusion.
First, the Necessary and Proper Clause
grants Congress broad authority to enact laws
which constitute means “rationally related to the
implementation of a Constitutionally enumerated
power.”28 Second, the Court reasoned that since §
4248 is “a modest addition to a set of federal
prison-related mental-health statutes that have existed for many decades,” lends support to the argument that it is reasonably related to
already-recognized federal interests.29 § 4248
merely adds to the already-existing civil commitment system the requirement that those committed
be sexually, as opposed to otherwise, dangerous.30
The Court further held that this statute satisfies “review for means-ends rationality” because
of the federal custodial power inherent over federal
prisoners combined with Congress’ concerns over
proper treatment of sexually dangerous individuals
for whom, the Court held, Congress could have rationally determined the states would not take responsibility.31 As he indicated during oral argument,
Justice Breyer analogized this power to civilly commit prisoners with communicable diseases at the
end of their prison terms to this power to civilly
commit those who have a mental illness that similarly threaten the public.32
Fourthly, the Court held that the statute
does not improperly invade state interests.33 The
Court emphasized that the statute requires the federal Attorney General to encourage states to assume custody over individuals to whom the statute
pertains.34 The federal civil commitment power
would only apply once a state refuses or is unwilling to do so.35 Further, once a state expresses a
desire to assume control over someone, the federal
government must relinquish its commitment
power. 36
Finally, the Court held the links between
the statute and an enumerated power “are not too
attenuated.”37 The Court held that a power under
the Necessary and Proper Clause can properly be
more than one step removed from an enumerated
power and Congress is allowed to make further inferences from already implied powers.38 In this case,
Congress created a federal criminal statute out of
an enumerated power and, from that same enumerated power, infered the further power to civilly
commit under § 4248.39 Based on this reasoning,
the Court reversed the Fourth Circuit’s decision
and remanded.
Justice Kennedy concurred in the judgment,
but objected to the majority’s use of the “rational
basis” test for Constitutionality.40 According to Justice Kennedy, the Commerce and the Necessary
and Proper Clauses tests require more than “a mere
conceivable rational relation” but also “a demonstrated link in fact, based on empirical demonstration.”41 He also objected to the Court’s
characterization of the Tenth Amendment, suggesting that it is too quick to disregard concerns of
federalism.42 Finally, he emphasized the narrowness
of the opinion in that it applies to a small class of
persons.43 Justice Alito also concurred, emphasizing
that there is a substantial link between § 4248 and
Congress’ Constitutional powers, which amounts
to more than a mere rational basis for enacting the
law.44
Justice Thomas dissented, joined in most
parts by Justice Scalia, on the grounds that § 4248
“executes no enumerated power,” and therefore
while the means-ends fit may be correct under the
test set forth in McCulloch,45 this fit is irrelevant because the end is not legitimate.46 He argued that
the government failed to provide a Constitutional
predicate for the statute, and even the expansive
Commerce Clause does not justify its enactment.47
It analogized the civil commitment framework to
that which states have enacted under their general
police powers.48 Finally, the dissenters expressed
concern with what they viewed as the majority’s
new “five-consideration approach” which they feel
is a drastic departure from the McCulloch meansends test.49
1 Corinne Militz is a law clerk with NDAA’s National Center for Prosecution of Child Abuse.
2 U.S. v. Comstock, 551 F.3d 274 (4th Cir. 2009).
3 Id. at 284.
4 Id. at 277.
5 Id. at 279-280
6 Id. at 280.
7 Id.
8 Id. at 281.
9 Id.
10 Id. at 283.
11 129 S. Ct. 2828 (2009).
12 See generally Transcript of Oral Argument, U.S. v. Comstock, No. 08-1224 (U.S. argued Jan. 12, 2010).
13 Id. at 4.
14 Id. at 10.
15 Id. at 17-18.
16 Id. at 25.
17 Id.
18 Id. at 11-12.
19 Id. at 13.
20 Id.
21 Id.
22 Id. at 14.
23 Id. at 37.
24 Id. at 38.
25 Id. at 46-47.
26 U.S. v. Comstock, No. 08-1224, 560 U.S. ___ (May 17, 2010).
27 Id., slip. op. at 1 (majority opinion).
28 Id. at 6.
29 Id. at 9.
30 Id. at 13-14.
31 Id. at 15.
32 Id.
33 Id. at 16.
34. Id. at 17.
35. Id.
36 Id.
37 Id. at 18.
38 Id. at 18-20.
39 Id. at 20.
40 Id., slip op. at 2-4 (Kennedy, J., concurring).
41 Id. at 3.
42 Id. at 5.
43 Id. at 6.
44 Id., slip op. at 4 (Alito, J., concurring).
45 McCulloch v. Maryland, 17 U.S. 316, 4 Wheat. 316 (1819).
46 Comstock, 560 U.S., slip op. at 3 (Thomas, J., concurring).
47 Id. at 6.
48 Id. at 7.
49 Id. at 8-9.
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The National Center for Prosecution of Child abuse is a program of the National District Attorneys Association. This publication was
prepared under Grant #2009-CI-FX-K008 awarded by the Office of Juvenile Justice and Delinquency Prevention, Office of Justice
Programs, U.S. Department of Justice. This information is offered for educational purposes only and is not legal advice. Points of view in
this publication are those of the author(s) and do not necessarily represent the official position of the U.S. Department of Justice and
NDAA.