Question

Remember, to be persuasive, you must use facts and logic. Identify the sources of information that you use, and don’t draw general conclusions from specific incidents.

The 2010 Supreme Court ruling in United States v. Comstock made it permissible to use civil commitment to further detain sexually dangerous offenders beyond their date of scheduled release. This means that a person can be convicted, sentenced, serve their entire sentence and be scheduled for release but still detained.

In your post, discuss what is supposed to be accomplished by this further detainment and how this detainment may be terminated. What are some of the requirements of this detainment, and are these requirements justifiable?

Answer 1

Supposed to be Accomplished by this further Detainment:

Section 4248 establishes a federal civil-commitment regime for certain persons in the custody of the Federal Bureau of Prisons (BOP). 3 If the Attorney General demonstrates to a federal court by clear and convincing evidence that a person subject to the statute is “sexually dangerous,” 4 a court may order the person committed until he is no longer a risk “to others,” even if that does not occur until after his federal criminal sentence has expired or the statute of limitations on the federal charge against him has run. §§4248(a), (d)–(e).

     No enumerated power in Article I, §8, expressly delegates to Congress the power to enact a civil-commitment regime for sexually dangerous persons, nor does any other provision in the Constitution vest Congress or the other branches of the Federal Government with such a power. Accordingly, §4248 can be a valid exercise of congressional authority only if it is “necessary and proper for carrying into Execution” one or more of those federal powers actually enumerated in the Constitution.

     Section 4248 does not fall within any of those powers. The Government identifies no specific enumerated power or powers as a constitutional predicate for §4248, and none are readily discernable. Indeed, not even the Commerce Clause—the enumerated power this Court has interpreted most expansively, see, e.g. , NLRB v. Jones & Laughlin Steel Corp. , 301 U. S. 1, 37 (1937) —can justify federal civil detention of sex offenders. Under the Court’s precedents, Congress may not regulate noneconomic activity (such as sexual violence) based solely on the effect such activity may have, in individual cases or in the aggregate, on interstate commerce . Morrison , 529 U. S., at 617–618; United States v. Lopez , 514 U. S. 549, 563–567 (1995) . That limitation forecloses any claim that §4248 carries into execution Congress’ Commerce Clause power, and the Government has never argued otherwise, see Tr. of Oral Arg. 21–22. 5

This Court, moreover, consistently has recognized that the power to care for the mentally ill and, where necessary, the power “to protect the community from the dangerous tendencies of some” mentally ill persons, are among the numerous powers that remain with the States. Addington v. Texas , 441 U. S. 418,426 (1979) . As a consequence, we have held that States may “take measures to restrict the freedom of the dangerously mentally ill”—including those who are sexually dangerous—provided that such commitments satisfy due process and other constitutional requirements. Kansas v. Hendricks

Section 4248 closely resembles the involuntary civil-commitment laws that States have enacted under their parens patriae and general police powers. Indeed, it is clear, on the face of the Act and in the Government’s arguments urging its constitutionality, that §4248 is aimed at protecting society from acts of sexual violence, not toward “carrying into Execution” any enumerated power or powers of the Federal Government. See Adam Walsh Child Protection and Safety Act of 2006, 120 Stat. 587 (entitled “[a]n Act [t]o protect children from sexual exploitation and violent crime”), §102, id. , at 590 (statement of purpose declaring that the Act was promulgated “to protect the public from sex offenders”); Brief for United States 38–39 (asserting the Federal Government’s power to “ protect the public from harm that might result upon these prisoners’ release, even when that harm might arise from conduct that is otherwise beyond the general regulatory powers of the federal government ” (emphasis added

To be sure, protecting society from violent sexual offenders is certainly an important end. Sexual abuse is a despicable act with untold consequences for the victim personally and society generally. See, e.g. ,Kennedy v. Louisiana , 554 U. S

In my view, this should decide the question. Section 4248 runs afoul of our settled understanding of Congress’ power under the Necessary and Proper Clause. Congress may act under that Clause only when its legislation “carr[ies] into Execution” one of the Federal Government’s enumerated powers. Art. I, §8, cl. 18. Section 4248 does not execute any enumerated power. Section 4248 is therefore unconstitutional.