THE SUPREME COURT OF THE UNITED STATES SPRING TERM, 2010 DOCKET NO. 01­01234 UNITED STATES OF AMERICA Petitioner, v. BRYCE ELLIS, Respondent. ON WRIT OF CERTIORARI TO THE COURT OF APPEALS FOR THE TWELFTH CIRCUIT Brief for Respondent Team #R6 Issue #1 Colin Rolfs – (801) 746­9421
TABLE OF CONTENTS TABLE OF AUTHORITIES......................................... iii QUESTIONS PRESENTED............................................ 1 OPINIONS BELOW................................................. 1 CONSTITUTIONAL PROVISIONS AND RULES............................ 1 INTRODUCTION................................................... 2 STATEMENT OF THE CASE.......................................... 4 ARGUMENT....................................................... 5 I. § 4248 IS UNCONSTITUTIONAL BECAUSE IT IS NOT AUTHORIZED UNDER THE COMMERCE CLAUSE ................................. 5 A. § 4248 does not substantially affect interstate commerce because it regulates noneconomic, violent criminal conduct
......................................................... 6 B. Even if § 4248 reaches some activities Congress has authority to regulate, it impermissibly extends beyond these activities ......................................... 7 i. § 4248 extends beyond the creation, distribution, and receipt of child pornography and contains no jurisdictional element .................................. 8 ii. There is no rational basis for regulating all sexual violence and child molestation in order to regulate child pornography ............................................ 10 II. § 4248 IS UNCONSTITUTIONAL BECAUSE THE GOVERNMENT CANNOT CLAIM § 4248 IS NECESSARY AND PROPER FOR THE MAINTENANCE OF A CRIMINAL JUSTICE AND PENAL SYSTEM ...................... 12 A. The maintenance of a criminal justice and penal system is not an enumerated power ................................. 12 B. Civil commitment is not necessary and proper for the maintenance of a criminal justice and penal system ...... 14 C. The power to prosecute for a federal crime is exhausted, unlike in Greenwood v. United States .................... 15 D. The requirement that the Attorney General turn over committed individuals to a state does not render § 4248 constitutional .......................................... 16 i CONCLUSION.................................................... 17 ii TABLE OF AUTHORITIES Cases Gonzales v. Raich 545 U.S. 1 (2005)............................... 3, 6, 8, 11 Greenwood v. United States 350 U.S. 366 (1956)...................................... 16 United States v. Lopez 514 U.S. 549 (2000)......................... 3, 5, 8, 14, 17 United States v. Morrison 529 U.S. 598 (2000).......................... 3, 5, 6, 7, 12 Statutes 18 U.S.C. § 2251 (2006)........................................ 8 18 U.S.C. § 2252 (2006)..................................... 8, 9 18 U.S.C. § 4247 (2006)............................... 2, 5, 7, 9 18 U.S.C. § 4248 (2006).......................... 2, 4, 5, 14, 17 Constitutional Provisions U.S. Const. art I, § 8, cl. 3.................................. 4 U.S. Const. art I, § 8, cl. 18................................. 4 Legistlative Materials H.R. Rep. No. 109­218, pt. 1, at 20­30 (2005)........... 8, 9, 14 iii QUESTIONS PRESENTED Issue 1: Whether Congress had the constitutional authority to enact 18 U.S.C. § 4248, which authorizes court­ordered civil commitment by the federal government of “sexually dangerous” persons who are already committed to the custody of the Bureau of Prisons, but who are coming to the end of their federal prison sentences? OPINIONS BELOW 999 F.9th 999 (12th Cir. 2009) CONSTITUTIONAL PROVISIONS AND RULES U.S. Const. art I, § 8, cl. 3 U.S. Const. art I, § 8, cl. 18 1 INTRODUCTION ISSUE 1: Thirteen days before his release from prison, the Attorney General attempted to civilly commit Respondent Bryce Ellis beyond his sentence pursuant to 18 U.S.C. § 4248. (R. at 3). § 4248 allows civil commitment when an individual in federal custody for a past sex crime “suffers from a serious mental illness, abnormality, or disorder as a result of which he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.” 18 U.S.C. § 4247­4248 (2006). Ellis moved to dismiss, claiming that Congress lacked authority to enact § 4248. (R. at 3). The district court agreed and dismissed, and the Twelfth Circuit Court of Appeals affirmed. (R. at 3, 8). First, the appeals court reasoned that it was improper for the government to argue that § 4248 was necessary and proper to the maintenance of a criminal justice and penal system. The court then held § 4248 was not necessary and proper for that purpose regardless. (R. at 5). Second, the court reasoned that § 4248 was not necessary and proper to the exercise of Congress’ commerce power. (R. at 5­6). The judgment of the Twelfth Circuit Court of Appeals was sound and should be affirmed. The appeals court correctly held § 4248 was not valid under the Commerce Clause. First, § 4248 2 regulates noneconomic, violent criminal conduct, which in United States v. Morrison was determined not to be authorized under the Commerce Clause. 529 U.S. 598, 618 (2000). Second, although the government has the power to regulate child pornography, § 4248 extends beyond preventing production and receipt of interstate pornography to all acts of sexual violence and child molestation. The overextension is impermissible because there is no jurisdictional element of the offense limiting its application to cases substantially affecting interstate commerce. See United States v. Lopez, 514 U.S. 549, 561­62 (2000). Further, unlike Gonzales v. Raich, there is no rational basis for concluding § 4248 is required for regulating interstate pornography because many sex crimes are entirely unrelated to the production of pornography. 545 U.S. 1, 19­22 (2005). The appeals court also correctly held that it is improper for the government to argue § 4248 is necessary and proper to the maintenance of a criminal justice and penal system. Maintenance of this system is not an enumerated power. Further, § 4248 is not necessary and proper to the maintenance of a criminal justice and penal system. The sentence for the underlying crime has already been served, and so § 4248 is not related to prosecuting and punishing the underlying crime. 3 Finally, § 4248’s requirement that the Attorney General turn over a committed individual to a state when possible is irrelevant. 18 U.S.C. § 4248(c). The power of the federal government depends on the enumeration of powers in the Constitution and so a state’s choice not to act does not grant Congress power. No constitutional power authorizes § 4248. Therefore, § 4248 is unconstitutional. STATEMENT OF THE CASE Issue 1: Thirteen days before his release from prison, the Attorney General attempted to civilly commit Respondent Bryce Ellis beyond his sentence pursuant to 18 U.S.C. § 4248. (R. at 3). Ellis was originally sentenced after he pled guilty to receipt of child pornography. (R. at 3). Ellis moved to dismiss claiming that Congress lacked authority to enact § 4248. (R. at 3). The district court granted the motion to dismiss, and the Twelfth Circuit Court of Appeals affirmed. (R. at 3). This Court granted cert. (R. at 1). § 4248 allows civil commitment of a person determined to be “sexually dangerous.” 18 U.S.C. § 4248. “Sexually dangerous” is defined as having “engaged or attempted to engage in sexually violent conduct or child molestation” and “suffer[ing] from a 4 serious mental illness, abnormality, or disorder as a result of which he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.” 18 U.S.C. § 4247(a)(5)­(6). After commitment, the Attorney General must release the person to the State in which he is domiciled or was tried if either will assume responsibility. 18 U.S.C. § 4248(c). If a state will not accept responsibility, the person can be confined until they will no longer be sexually dangerous if released, including release with continuing treatment. 18 U.S.C. § 4248(d). ARGUMENT I.
§ 4248 IS UNCONSTITUTIONAL BECAUSE IT IS NOT AUTHORIZED UNDER THE COMMERCE CLAUSE The federal government is one of limited powers. Lopez, 514 U.S. at 552. As a result, “every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution.” Morrison, 529 U.S. at 607. Congress has the power to create all laws “necessary and proper for carrying into execution” enumerated powers. U.S. Const. art I, § 8, cl. 3. The Commerce Clause grants the power to “regulate commerce . . . among the several states.” U.S. Const. art I, § 8, cl. 18. Under the Commerce Clause, Congress is limited to regulating three categories of activities. Morrison, 529 U.S. at 608. First, Congress may regulate channels of interstate commerce. 5 Id. at 609. Second, Congress may regulate the instrumentalities of interstate commerce or persons and things in interstate commerce. Id. at 609. Finally, Congress has the power to regulate intrastate activities that “substantially affect” interstate commerce. Id. If Congress chooses to regulate an activity as part of an otherwise authorized regulatory scheme, Congress must have a “rational basis” for concluding the activity should be part of the regulatory scheme. Raich, 545 U.S. at 22, 28­27. § 4248 allows the commitment of sexually dangerous persons. These individuals are neither channels of interstate commerce nor persons in interstate commerce. Therefore, § 4248 is unconstitutional if it does not substantially affect interstate commerce and is not rationally part of a larger regulatory scheme. A. § 4248 does not substantially affect interstate commerce because it regulates noneconomic, violent criminal conduct Congress is not empowered under the Commerce Clause to regulate noneconomic, violent criminal conduct solely based on the aggregate affect on interstate commerce. Morrison, 529 U.S. at 617. In Morrison, the Court held that Congress did not have the power under the Commerce Clause to create a civil remedy for 6 gender motivated crimes. Id. at 601­02. The Court reasoned, first, that gender motivated violence was not an economic activity, unlike all previous activities the government had been allowed to regulate under the Commerce Clause. Id. at 614. Second, the Court rejected the argument that “Congress may regulate noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce.” Id. 617­18. If such effects alone justified regulation, the Court reasoned, Congressional power would be unlimited. Id. As in Morrison, § 4248 regulates noneconomic, violent criminal conduct. § 4248 allows confinement of an individual who would have “serious difficulty in refraining from sexually violent conduct or child molestation if released.” 18 U.S.C. § 4247(a)(6). In Morrison, Congress created a remedy for gender motivated violence that had already occurred, while here Congress is attempting to prevent sexually violent conduct and child molestation by confining potential perpetrators. While the mechanisms of deterrence are different, both statutes are aimed at noneconomic violent criminal conduct. Therefore, as in Morrison, § 4248 is not authorized because of its aggregate affect on interstate commerce. B. Even if § 4248 reaches some activities Congress has authority to regulate, it impermissibly extends beyond these activities 7 Even if a regulation targets some activities substantially affecting interstate commerce, the regulation is unconstitutional if its reach extends beyond those activities and (1) the regulation does not contain a jurisdictional element requiring proof of a connection to interstate commerce in individual cases, Lopez, 514 U.S. at 561­62, and (2) there is no “rational basis” for concluding the overextension should be part of the regulatory scheme. Raich, 545 U.S. at 22, 28­27. i. § 4248 extends beyond the creation, distribution, and receipt of child pornography and contains no jurisdictional element Congress has made it illegal to transport a minor with the purpose of producing child pornography. 18 U.S.C. § 2251 (2006). However, the statute is strictly limited by two jurisdictional elements. First, the minor must be transported “in or affecting interstate commerce.” 18 U.S.C. § 2251(a). Second, either the pornography must be transported or transmitted in or affecting interstate commerce or the transporter must have reason to know the pornography will be transported in or affecting interstate commerce. Id. Congress has also prohibited transporting, receiving, or distributing child pornography. 18 U.S.C. § 2252 (2006). However, again, the reach of the statute is strictly limited to pornography distributed or transported “using any means or 8 facility of interstate or foreign commerce or in or affecting interstate commerce.” 18 U.S.C. § 2252(a)(1)­(2). Both § 2251 and § 2252 restrict the distribution and creation of child pornography only when the specific jurisdictional requirement of a connection to interstate commerce is met. Consequently, the statutes only reach activities Congress may regulate under the Commerce Clause. Even if § 4248 may prevent some of the acts illegal under § 2251 and § 2252, § 4248 is substantially broader than both and contains no jurisdictional element. § 4248 allows confinement when an individual in federal custody for a past sex crime “suffers from a serious mental illness, abnormality, or disorder as a result of which he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.” 18 U.S.C. § 4247(a)(6). This provision extends too far in two ways. First, the statute aims to prevent crimes far beyond child pornography. It attempts to prevent all sexually violent conduct or child molestation. Second, § 4248, unlike § 2251 and § 2252, does not require that the crime to be prevented be in or affecting interstate commerce. Therefore, not only is § 4248 not limited by the jurisdictional elements of § 2251 and § 2252, it is not even limited to the subject matter of child pornography. 9 Furthermore, the house report accompanying the “Children’s Safety Act of 2005,” which enacted § 4248 and a number of other provisions, indicates that § 4248 is unrelated to preventing specifically federal sex offenses and child pornography. H.R. Rep. No. 109­218, pt. 1, at 20 (2005). In the House Report, a specific section is titled “Federal Prosecution of Sex Offenses and Child Pornography.” Id. at 27­29. The improvements in the law include an increase in sentence length, but do not refer to civil commitment. Id. The House Report separately describes civil commitment and in that section nowhere refers to the prevention of federal sex crimes and child pornography. Id. at 29. This organization reveals that civil commitment is not an improvement aimed at the prevention of federal sex offenses and child pornography, but has a separate broader purpose. § 4248 is not limited to preventing federal sex offenses or child pornography but reaches far beyond. Therefore, it is unconstitutional if there is no rational basis for determining the additionally regulated activity should be included in the larger regulatory scheme. ii. There is no rational basis for regulating all sexual violence and child molestation in order to regulate child pornography Raich is the only recent major case to uphold regulation of intrastate activity under the Commerce Clause on the basis the 10 activity was essential to a larger regulatory scheme. However, the activity regulated by § 4248 is, unlike in Raich, not rationally related to the regulation of child pornography. In Raich, the Court held that Congress could regulate the intrastate cultivation and use of marijuana for personal medical purposes. Raich, 545 U.S. at 8. The Court concluded that regulating intrastate production of marijuana, even for personal use, was necessary for the interstate regulation of marijuana. The Court stressed that the activity regulated was “quintessentially economic” because it was the regulation of a commodity for which there was a valuable interstate market. Id. at 25. Further, regulating the intrastate market was essential because the regulated good was a fungible commodity. Id. at 19. Intrastate marijuana was identical to interstate marijuana. Consequently, the problem of diversion from the intrastate market to the interstate market made it “rational” to regulate the intrastate market as well. Id. at 19­22. § 4248, unlike the drug law in Raich, does not regulate an intrastate fungible commodity identical to the commodity regulated in interstate commerce. § 4248 does not limit its regulation to intrastate production of child pornography, but attempts to prevent all sexually violent activity and child molestation intrastate. Unlike in Raich, it is possible to 11 distinguish between sexual misconduct for the purpose of producing child pornography and other sexual misconduct. Sexual misconduct only becomes child pornography when criminals intentionally take extra steps to create a permanent depiction. Consequently, it is not rational, as it was in Raich, to regulate all intrastate sexual violence and child molestation. § 4248 is not rationally related to the production of child pornography. It is an unconstitutional attempt to regulate predominantly noneconomic intrastate violence by committing those who may perpetrate such violence. II.
§ 4248 IS UNCONSTITUTIONAL BECAUSE THE GOVERNMENT CANNOT CLAIM § 4248 IS NECESSARY AND PROPER FOR THE MAINTENANCE OF A CRIMINAL JUSTICE AND PENAL SYSTEM A. The maintenance of a criminal justice and penal system is not an enumerated power The power to maintain a criminal justice and penal system is incidental because it derives from the power to make and enforce laws authorized by an enumerated power. The Court should not allow arguments for Congressional power to be based on an incidental power for two reasons. First, allowing powers to be based on other incidental powers risks sacrificing the requirement that “every law enacted by Congress must be based on one of more of its powers enumerated in the Constitution.” Morrison, 529 U.S. at 607. 12 Without reference to an enumerated power, an incidental power may appear broader that it actually is—a risk manifest in this case. The term “criminal justice and penal system” is ambiguous because we have two criminal justice and penal systems in the United States. The federal government has the power to run a criminal justice and penal system for the purpose of punishing constitutional federal criminal laws. However, state criminal justice and penal systems may pursue any purpose within the state police power, including civil commitment of dangerous individuals. As a result, if the government is allowed to claim some power as necessary and proper to the power to run a criminal justice and penal system without reference to the purpose of the system itself, the risk is high that the power may be necessary and proper to a state system created to advance state police powers, but not to the federal powers enumerated in the Constitution. The government cannot be allowed to sidestep constitutional requirements by arguing based on a vague incidental power. Second, allowing powers to be based on other incidental powers would allow the government to “pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the states.” Lopez, 514 13 U.S. at 565. If the government is allowed to argue that a power is necessary to an incidental power, then the government can create an ever expanding chain of incidental powers. This process can continue indefinitely, allowing continuous expansion of federal power. For these reasons, the government should be required to link any statute to a specific enumerated power. The government cannot claim § 4248 is necessary and proper to the maintenance of a criminal justice and penal system. B. Civil commitment is not necessary and proper for the maintenance of a criminal justice and penal system Even if the government is allowed to argue based on incidental powers, § 4248 is not necessary and proper for the maintenance of a criminal justice and penal system because it is not related to prosecuting or punishing an underlying offense. Under § 4248, commitment continues until either a state takes custody or the person’s condition is such that he will not be sexually dangerous if released. 18 U.S.C. § 4248(d). As a result, confinement can continue indefinitely beyond the sentence for the underlying crime. The federal government’s reason for maintaining a criminal justice and penal system is the punishing of federal crimes. Once that punishment has 14 completed, the underlying crime can no longer justify the use of the criminal justice and penal system to confine an individual. That § 4248 is not necessary or proper for the maintenance of a criminal justice and penal system is confirmed by the House Report accompanying § 4248 and a number of statutes enacted with § 4248. The House Report claims in a section entitled “Federal Prosecution of Sex Offenses and Child Pornography” that the federal sentences for sexual abuse and exploitation of children that occur under federal jurisdiction are too lenient. H.R. Rep. No. 109­218, at 27. As a result, the House Report explains that the minimum sentences for a number of activities have been increased. Id. at 28. However, the House Report does not mention civil commitment within these changes. A separate section entitled “Civil Commitment” explains civil commitment without any reference to a purpose. Id. at 29. Therefore, the House Report appears not to have considered civil commitment as related to the purpose of prosecuting or punishing federal sex offenses. Civil commitment is not necessary and proper for the maintenance of a criminal justice and penal system C. The power to prosecute for a federal crime is exhausted, unlike in Greenwood v. United States 15 Civil commitment under § 4248 is distinct from the commitment held constitutional in Greenwood v. United States. 350 U.S. 366, 376 (1956). In Greenwood, Greenwood was committed because he was mentally incompetent to stand trial. Id. at 369. The Court determined that “[t]he power that put [Greenwood] in custody­the power to prosecute for a federal offense­is not exhausted.” Id. at 375. Power to prosecute remained because it was possible that Greenwood could recover and be prosecuted for the federal crime. Id. at 375. The Court was careful to emphasize the limited nature of the holding, devoting the final paragraph to stating that they “decide no more that the situation before us presents.” Id. at 376. Civil commitment under § 4248 in the present case cannot rely upon the power to prosecute. § 4248 allows detention after the sentence for a valid conviction has been served. The power to prosecute has already been thoroughly exhausted by the actual conviction and sentence. Further, that the Court in Greenwood based its holding on the power to prosecute instead of a more general power to civilly commit prisoners is additional evidence that no such power exists. D. The requirement that the Attorney General turn over committed individuals to a state does not render § 4248 constitutional 16 § 4248 provides that “the Attorney General shall make all reasonable efforts to cause [the state in which the person was tried or domiciled] to assume [responsibility for his custody, care and treatment.” 18 U.S.C. § 4248(d). However, this provision cannot render § 4248 constitutional. The power of the federal government depends on the enumeration of powers in the constitution, Lopez, 514 U.S. at 552, and therefore a state’s choice not to act does not grant Congress power. Therefore, § 4248 is not constitutional simply because it only allows federal custody when a state has chosen not to confine an individual. CONCLUSION Since the federal government is one of limited powers and § 4248 is unrelated to a constitutional power, § 4248 is unconstitutional. The judgment of the Twelfth Circuit Court of Appeals should be affirmed. Respectfully submitted, /s/___________________ Colin Rolfs Attorney for Respondent 17