Article provided by Patrick J. Artur & Associates
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Generally, once a person has served their time for committing a crime, they are free to move forward with their lives. Not so for sex offenders.

Current federal law allows the government to extend the incarceration period of certain sex offenders after they have completed their original sentence. Under the Adam Walsh Child Protection and Safety Act of 2006 (18 U.S.C. § 4248), through a process known as civil commitment, the federal government can indefinitely detain prisoners who are already in federal custody if they are determined to be dangerous sexual offenders.

The civil commitment process only can be used against prisoners who are nearing the end of their incarceration period or who have been found to be incompetent to stand trial. To civilly commit a prisoner, the federal government has the burden of proving that the person is a "dangerous sexual offender." The prisoner does not need to be serving a current sentence for committing a sexual offense to be civilly committed; the process also can be used against those who have previously committed or attempted to commit one of these offenses and are currently in federal custody for another crime.

In U.S. v Comstock, five prisoners challenged their detention under the civil commitment provisions of the Adam Walsh Act. The District Court in North Carolina held that the federal government did not have the constitutional authority to civilly commit the prisoners and found 18 U.S.C. § 4248 unconstitutional. The Fourth Circuit Court of Appeals upheld the lower court's findings, agreeing that it was outside the scope of the federal government's constitutional powers to indefinitely detain federal prisoners.

On January 12, 2010, counsel for the government and the detained prisoners presented their arguments before the U.S. Supreme Court, which now must determine whether the civil commitment provisions of the Adam Walsh Act violate the U.S. Constitution.

Arguments Center on State Rights, Necessary and Proper Clause

The central issue before the U.S. Supreme Court is whether the authority to civilly commit prisoners belongs to state governments or the federal government. Presently, 20 states have civil commitment procedures in place, including Pennsylvania.

In its brief, the government argues that running a responsible criminal justice system is part of its constitutional powers and that the civil commitment process is a necessary and proper means of carrying out this power. According to the federal government, when state governments are unwilling or unable to take over the custody of sexually dangerous offenders, the federal government must do something to protect the public's health and safety. The civil commitment process is simply a means to this end. The government also argues that civil commitment is not an invasion of state rights because the prisoners are already in federal custody at the time the process is initiated.

The prisoners' brief, in turn, argues that the federal government's constitutional mandate to run a responsible criminal justice system ends on the day the prisoners complete their prison terms. At that point, the decision of whether they are so dangerous as to warrant civil commitment belongs to state governments. They also argue that no enumerated power in the Constitution permits the government to civilly commit sexually dangerous people. Accordingly, the Necessary and Proper Clause cannot be used to justify civil commitment, as it is not an extension of an existing federal power.

During oral arguments, the majority of the Supreme Court Justices appeared to support the government's arguments and the need to confine dangerous sexual predators to protect public safety. Justice Scalia, however, seemed to side more with the prisoners, saying that there is "no constitutional power on the part of the federal government to protect society from sexual predators." Justice Scalia also stated that the Necessary and Proper Clause does not give Congress the power to enact laws for the public safety, but for the necessary and proper execution of powers already given to the federal government in the Constitution.

Conclusion

While a Supreme Court decision holding federal civil commitment unconstitutional will be welcome news to those prisoners currently being held in civil confinement or facing probable civil confinement, such a decision will not stop the practice altogether. The authority of state governments to civilly commit sexual predators will remain intact. Twenty states have current laws allowing civil commitment: Pennsylvania is among them.

Moreover, regardless of what the Supreme Court decides, the possibility of federal (or state) civil commitment has already changed the way that criminal defense attorneys handle cases. Defense lawyers are wary about the degree of forthrightness concerning medical/mental health treatment that their clients have received. Traditionally at sentencing, much mental health information is shared in order to mitigate any sentence. Now the lawyer must consider any future blowback of the civil commitment situation. To serve as effective advocates, criminal defense lawyers must consider all potential consequences; for people who are facing allegations of sex offenses or who have a prior conviction for a sex offense, this includes the possibility of civil commitment.

This is a challenging area of the law with life-long consequences. For more information, or to discuss particular concerns, contact an experienced criminal defense attorney.