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Court Weighs Indefinite Detention Of Sex Offenders

The Supreme Court heard arguments Tuesday in a case that tests the federal government's power to keep convicted sex offenders behind bars long after they have completed their prison terms.

Involuntary civil commitment of an individual is a matter usually dealt with by the states. But in 2006, Congress authorized the indefinite civil commitment of sex offenders in federal prison after they serve out their terms. Currently, there are 84 such prisoners confined to a treatment facility at a federal prison in North Carolina. The men range from those who have completed terms for violent sex offenses to those convicted of possession of pornography, or even some who were not in prison for any sexual offense.

Five of the men challenged their indefinite confinement, and a federal appeals court in Richmond, Va., struck down the federal law, ruling unanimously that the statute usurps powers reserved for the states under the Constitution.


At the Supreme Court on Tuesday, conservatives seemed to be split on the question, with Justice Antonin Scalia strongly opposed to the federal law, and Justice Samuel Alito appearing to endorse it, along with some of the court's liberals.

An Unlimited Constitutional Power?

Defending the statute on behalf of the government, Solicitor General Elena Kagan contended that the civil commitment of dangerous, mentally ill federal prisoners protects the public. She said the law is meant as a transitional measure that allows for the transfer of dangerous sexual offenders to the states, where possible. But she conceded that for the most part, the states don't want these prisoners.

Scalia was her main inquisitor: "What power conferred upon the federal government by the Constitution permits" this?

Kagan responded: "The power to run a responsible criminal justice system."


Justice Sonia Sotomayor told Kagan that under her theory, it would appear that the federal government "has an unlimited constitutional power" to civilly commit a prisoner once he has served his term.

Kagan repeatedly told the justices that the federal power of civil commitment is limited and transitional, so that dangerous prisoners who have served their time do not "fall through the cracks" if the states don't take them.

Scalia balked at that, declaring, "I find it difficult to believe that if the Federal Bureau of Prisons wrote the governor of the state into which this person is being released [and said], 'We think the state ought to consider commitment proceedings' — I find it difficult to believe that an elected governor or an elected attorney general would ignore that letter."

Treatment is expensive, replied Kagan — $65,000 per prisoner — so the states don't want them.

This is a recipe for the federal government taking over everything. The states won't do it ... therefore the federal government steps in and does it.

To that, Scalia replied: "I must say, I'm not impressed with that argument. This is a recipe for the federal government taking over everything. The states won't do it ... therefore the federal government steps in and does it."

Kagan replied with an example: Suppose there were some contagious, drug-resistant form of tuberculosis in the prison system; the states were not able to deal with quarantining people upon their release date; and Congress gave the federal government quarantining authority. "Would anyone say the federal government did not have the constitutional power to effect that kind of public safety measure?" Kagan asked. "The exact same thing is true here."

Justice John Paul Stevens interjected: "Isn't it true that this statute applies even if a person has not been a sexual offender in the past?" If the person is in prison for bank robbery, for instance.

Kagan conceded the point, noting that there have been 103 people who have been certified for commitment under this law. Of these, 20 were in federal prison for nonsexual offenses.

'Because It's A Good Idea, It Must Be Constitutional'

Arguing the other side of the case Tuesday was Alan DuBois, a public defender representing five men who completed their prison terms but remain in federal prison after being civilly committed. DuBois faced immediate questions from Stevens about the tuberculosis hypothetical. DuBois' answer was that the states, not the federal government, have a responsibility for the public health function. Even Scalia didn't buy that argument.

Justice Stephen Breyer asked whether the federal government could set up mental health centers to treat people not taken care of by the states. DuBois seemed to say no, prompting Scalia to hold his head in his hands, moaning, "No, no, no."

"The government can spend money any way it wants," said the frustrated Scalia. "The issue is whether they can force people into those hospitals."

DuBois soon summarized the government's position as, "Because it's a good idea, it must be constitutional."

Justice Ruth Bader Ginsburg responded: "It's more than a good idea. You are talking about endangering the health and safety of people, so the government has some responsibility, doesn't it?"

In that case, suggested Scalia, couldn't the federal government give the states the money needed to take on civil commitments?

To that, Stevens replied: "I guess we could all think of a lot of different statutes that might be enacted," but "we have to decide whether this one is constitutional."

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