The Jury Talks Back


Indefinite civil commitment for insane sex criminals

Filed under: Uncategorized — aphrael @ 7:59 am

The Supreme Court today held that the Congress has the power under the Constitution to authorize the indefinite civil commitment of mentally ill prisoners who have committed certain sex crimes (either violent ones or molestation) and are considered likely to do so again in the future.

The argument was that:

  1. The Necessary and Proper Clause grants Congress a broad authority to enact any law which is “convenient or useful”, or “conducive”, to the exercise of some other granted authority.

  2. All that the NPC requires is that the law in question be rationally related to the implementation of an enumerated power.

  3. Congress has a broad authority to enact criminal laws in furtherance of its enumerated powers

  4. Congress has a broad authority to build prisons to hold federal criminals

  5. Congress has a broad authority to regulate the life of federal prisoners, including providing for their health and well-being

  6. As the custodian of its prisoners, the government has the Constitutional power to protect nearby communities from the dangers posed by federal prisoners – and, in fact, has a duty to exercise reasonable care to protect the community from prisoners.

  7. Confining dangerous people beyond the end of their sentence is reasonably related to the power to act as a responsible custodian of prisoners.

One of the arguments against this syllogism is that the link between some enumerated power (and note that the court hasn’t identified the enumerated power at issue here) and civil commitment is too attenuated; the justification is basically a set of inferences which follow each other in such a fashion as to render the result which is almost entirely conjured out of thin air. But apparently there’s precedent for this: in 1955, the Court said that civil commitment of a mentally incompetent defendant who had been accused of robbing a post office was rationally related to the power to “Establish Post Offices and Post Roads”. That case seems to be structurally identical to this one.

This decision seems to place the state’s duty to third parties above its duty to the confined individual, but the decision explicitly wasn’t answering the question of that second duty; it assumed that civil commitment provided “due process of the law” to the confinee and simply addressed the question of the federal government’s authority to authorize such commitment. (It’s apparently already been decided that civil commitment doesn’t interfere with the rights of the confinee, as long as procedural safeguards are met – and the law at issue here (a) places the burden of proof on the state, and (b) provides the confinee with a full hearing, including legal representation and cross examination of the state’s witnesses. I’m not persuaded that civil commitment isn’t in essence criminal punishment for mental illness, but that issue isn’t under discussion, either).

Justices Thomas and Scalia object: the Necessary and Proper Clause only authorizes legislation to carry into execution an enumerated power – and neither the government nor the court have identified a specific enumerated power which justifies civil commitment.

Justice Alito tried to get around this by saying that the commitment is necessary and proper to carry out whichever enumerated power justified the underlying criminal statute – a dodge which assumed that the underlying criminal statute was necessary and proper to carrying out some unnamed enumerated power. As a procedural matter, it seems to me that someone should have provided an underlying enumerated power which justified these specific convictions and commitments, but that didn’t happen. Fundamentally, I think the problem is that the underlying conviction may have been for something entirely unrelated to sex crimes – which is to say, someone arrested for robbing a post office, but who is mentally ill, had previously raped someone, and is judged likely to rape again, can be confined. The court seems to be saying that this confinement is justified because having incarcerated the person for robbing a post office, the federal government has assumed a responsibility to protect people from the person; the dissent is saying that since the grounds used to justify further confinment – propensity to carry out sex crimes – are not legitimate grounds for federal action, the federal government has no power to authorize continued detention.

The dissent also objects to the Court’s characterization of the duty to protect third parties from prisoners: they believe that the duty expires at the end of the legal basis for custody.


I tend to agree with the dissent on this. The argument that the duty to third parties compels the government to not release these individuals could logically be extended to impute a duty to never release any criminal who is considered likely to commit another serious crime, regardless of the sentence imposed after trial. Such a system would make a mockery of the sentencing process. Moreover, I’m convinced by the argument that the duty expires when the legal basis for incarceration expires; at that point, the state is no longer responsible for the individual and cannot possibly have a duty to protect other people from him. (It might be different if the time the prisoner spent incarcerated had independently created a risk to third parties by making the prisoner substantially more likely to commit serious crimes).

That said, I’m generally amused by the decision, because I’m reasonably certain that if the question were does the state have the authority to civilly detain terrorists indefinitely, both the dissent and many of the justices in the majority would be singing a different tune … and yet the issue of the federal power to do so ought to be the same in both cases.


  1. The answer is obviously to find terrorists guilty of child molestation through plastique.

    Comment by luagha — 5/17/2010 @ 2:37 pm

  2. Very interesting. IMO, your last paragraph is one more reason why we should treat terrorism as a military rather than a criminal matter. But for those who think terrorists should be treated as criminals, and I suspect the liberals on the Supreme Court would be in that group, then I agree the result ought to be the same in both cases.

    PS — Comments are back!

    Comment by DRJ — 5/20/2010 @ 10:34 am

  3. Military courts are for preserving military discipline. Civilian courts are for punishment. We almost never had the in-between “courts”, like the Germans and Russians did, and when we did we didn’t like them, and it’s just not going to work out this time either.

    Comment by nk — 5/20/2010 @ 1:36 pm

  4. I could be wrong …

    The most speedy convictions and harshest sentences we’ve had for terrorists were in Article III courts. Gitmo is just spinning its wheels until the JAGs’ transfer or retirement.

    Comment by nk — 5/21/2010 @ 11:01 am

  5. People tend to think that Due Process is an individual right. Maybe it works out that way, sometimes, but what it really is … it’s a mechanism for society to make sure it put the right bad guy away. That’s what makes America America — what’s good for Americans is good for America.

    Comment by nk — 5/21/2010 @ 11:07 am

  6. Comment by nk — 5/21/2010 @ 11:01 am

    Not if you look back to WW-2, and the Military Tribunals that dealt with the German saboteurs off-loaded by the sub along the Long Island shore.

    But that FDR, he was a blood-thirsty ba$tard.

    Comment by AD - RtR/OS! — 5/24/2010 @ 4:24 pm

  7. That was J. Edgar Hoover. He did not want his FBI’s incompetence made public.

    Comment by nk — 5/25/2010 @ 3:35 pm

  8. […] half a month old now, but aphrael wrote about the Supreme Court decision which held that “the Congress has the power under the Constitution to authorize the […]

    Pingback by Common Sense Political Thought » Blog Archive » Politically correct journalism in the First State and more stories from the blogroll — 6/1/2010 @ 4:53 pm

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