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Constitutionally Dangerous

A preventive detention law shows why we need to confine Congress.

Jacob Sullum
May 19, 2010

It was bad enough when states began locking people up because of crimes they might commit in the future. Then in 2006 Congress copied the idea, enacting a law that allows the indefinite civil commitment of federal prisoners who have completed their sentences but are deemed "sexually dangerous."

In upholding that policy on Monday, the Supreme Court not only blessed yet another use of psychiatry to escape the safeguards of our criminal justice system by disguising punishment as treatment. It also encouraged Congress to stack one dubious assertion of power on top of another until the tottering tower is tall enough to surmount the fence erected by the Constitution.

Opponents of preventive detention for convicts who have served their time argue that it violates the right to due process, the guarantee against double jeopardy, and the ban on ex post facto laws. Although a 1997 decision upholding a Kansas civil commitment law suggests the Supreme Court is not receptive to such arguments, this week's ruling did not address them. Instead it dealt with the question of whether the federal government, as opposed to the states, has the authority to commit "sexually dangerous" prisoners who would otherwise be released.

The seven-justice majority concluded that it does, citing the Necessary and Proper Clause, which authorizes Congress "to make all laws which shall be necessary and proper for carrying into execution" its enumerated powers. The Court said the civil commitment law is justified by the criminal statutes under which federal prisoners are convicted, which are in turn justified by specific congressional powers.

One problem with this argument is that Congress has federalized a wide range of offenses, including many already addressed by state laws, based on thin or nonexistent constitutional pretexts. Three of the prisoners in this case, for example, were convicted of possessing child pornography, which is a federal offense when the material "has been mailed, or has been shipped or transported in interstate or foreign commerce, or...was produced using materials which have been mailed or so shipped or transported, by any means including by computer." In other words: always.

The newly minted "hate crime" law likewise federalizes offenses based on absurdly attenuated links to interstate commerce. If a misogynist uses a knife manufactured in another state to rape a woman, that's enough to make it a federal crime.

Even if we assume the validity of such laws, Justice Clarence Thomas notes in a dissent joined by Justice Antonin Scalia, civil commitment does not carry them into execution, as required by the Necessary and Proper Clause. The criminal statute has been fully executed at the point where someone convicted of violating it completes the sentence it prescribes, which is precisely when civil commitment takes effect.

Continued confinement, Thomas notes, "is aimed at protecting society from acts of sexual violence," not at "'carrying into execution' any enumerated power." That point is reinforced by the fact that one-fifth of the prisoners whom the government has identified as "sexually dangerous" were never convicted of a federal crime involving sexual violence. Even someone convicted of mail fraud or tax evasion could be put in this category.

Furthermore, Thomas writes, "the definition of a 'sexually dangerous person'...does not require the court to find that the person is likely to violate a law executing an enumerated power in the future." The commitment law therefore is only tenuously related to federal criminal statutes, which themselves may be only tenuously related to an enumerated power.

Thomas warns that the majority's opinion, which requires no more than a "rational" connection between a federal law and an enumerated power, "comes perilously close to transforming the Necessary and Proper Clause" into a rationale for the general police power that the Constitution reserves to the states. "The Constitution does not vest in Congress the authority to protect society from every bad act that might befall it," he writes. Unfortunately, this will be news to most members of Congress.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist. This column first appeared at Reason.com.

© Copyright 2010 by Creators Syndicate Inc.


Jacob Sullum is Senior Editor


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