To set the background, the law at issue (18 USC 4248) says that the Department of Justice has the power to detain a mentally ill, sexually dangerous federal prisoner beyond the prisoner's release date. States have enacted similar laws, and the US Supreme Court has previously analyzed whether those laws violated the Due Process Clause (See Kansas v. Hendricks, 521 US 346 (1997) and Kansas v. Crane, 534 US 407 (2002)). The requirements of the federal law permit a district court to order the civil commitment of a person who is currently in the Federal Bureau of Prisons if the individual:
(1) has previously engaged or attempted to engage in sexually violent conduct or child molestation;
(2) current suffers from a serious mental illness, abnormality, or disorder; AND
(3) as a result of that mental illness, abnormality, or disorder, is sexually dangerous to others in that he would have serious difficulty in refraining from sexually violent conduct or child molestation if released. See 18 USC 4247.
If the DOJ has identified such a person, then it (the DOJ) must certify to a federal district judge that the prisoner meets those requirements. When the certification is filed, the statute stays the prisoner's release until a hearing is held and the Government is able to provide proof to support the civil commitment of the prisoner. In a sort of hybrid of criminal-civil-adjudicative hearings, the prisoner is entitled to an attorney and the right to be heard. The DOJ must prove its case by clear and convincing evidence. If the DOJ meets its burden of proof, and the court issues the civil commitment, then the federal government is to try to get the State where the trial was held or the prisoner is domiciled to take custody of the prisoner. If the State does not take custody, then the prisoner remains in federal custody. A prisoner who is being held under civil commitment is entitled to ongoing psychiatric and judicial review of his case, and he may request hearings every six months to evaluate his release. In order to be released from federal custody, the prisoner must either be taken into State custody or have improved his mental condition to the point where he is no longer dangerous.
The Supreme Court began its analysis by pointing out that due process was not an issue raised by the petitioners in this case. Thus, the justices analyzed it from the assumption that the law did not violate due process, and they kept a very narrow analysis on whether the statute in question violates the Necessary and Proper Clause of the Constitution. See Art. I, Section 8, cl. 18; See also McCulloch v. Maryland, 4 Wheat. 316, 405 (1819). Of course, when analyzing whether a statute is "necessary and proper," the Court looks at whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power. See Sabri v. US, 541 US 600, 605 (2004). Here, the Court recognized Congress's broad authority to deal with those imprisoned in the federal system for federal crimes. In addition, Congress has long been involved in the mental healthcare of federal prisoners. In a stroke of astuteness, the Court pointed out that while Congress's long-time involvement does not automatically validate an action, it does help provide a framework of a need and a statutory solution. The Court then described how narrowly tailored the statute is -- it contemplates only those prisoners who have been deemed sexually dangerous and who have proven themselves to be sexually dangerous to the public. The Federal government has the power to protect its citizens and communities from these people known to be dangerous. The Court found the means to be rationally related to the danger sought to be prevented.
In addition, the Court noted that the statute does not infringe upon State's rights. The prisoner at the center of these arguments is a federal prisoner, and not a State prisoner. Moreover, the State will have the ability to take custody of the prisoner, should the prisoner be deemed sexually dangerous and civilly committed. The Federal government is not seeking to take rights from the State, rather it seeks to protect its citizens, as a whole.
Finally, the Court denies the arguments that in order for a law to be necessary and proper, it must only be one step away from the enumerated power and that the statute creates a general police power. As stated before, the standard for necessary and proper is whether the means is rationally related to the implementation of a constitutionally enumerated power. See Sabri, 541 US at 605. There is no "one-step" requirement. Additionally, the federal statute for civil commitment does not create a general police power. Rather, the statute is narrowly tailored to only affect federal prisoners who have been deemed sexually dangerous and who meet the three requirements for certification, as listed above.
Reviewing the opinion, I think that the Court very clearly answered the issue brought in this case on a very narrow ground. I would be interested to see if the Petitioners will now bring claims on due process and how the Court would interpret that issue. As a necessary and proper clause case, I think the Court properly decided the case. The statute is so narrowly tailored to just federal prisoners who meet certain requirements, and it permits States to take custody of these prisoners.
The only concern I have, and this is playing the devil's advocate, is how to determine whether a prisoner suffers from mental illness, abnormality, or disorder. Obviously, the DSM-IV will be consulted to determine if a prisoner has a particular disorder, but given the changes in the classification of what constitutes a mental illness throughout the years (specifically, I'm thinking of homosexuality, which used to be listed as a mental illness), I'm wondering how that might affect the prisoners. I suppose that we have to work within the current guidelines of what we have. A citizen is a product of his or her times, and he or she must conform his or her behavior to those times. Let me be clear that I am in no way saying that sexual crimes will ever be permissible or acceptable. I find them atrocious, and I believe they leave living victims in a state of semi-death. But, considering that other cultures have permitted such acts (even specifically sexual acts with children) as normal and even considered them desirable (I'm thinking of the Ancient Greeks and the various native tribes like the Yanomamu), I'm wondering what, if any, the effect is of classifying what is a criminal propensity in our society as a mental illness. At what point do criminal actions morph into the world of mental illness? The problems with tying a crime or a criminal propensity with a mental illness include the ease with which an action can be brushed off as a manifestation of the illness and the ease with which it is to trap someone in a mental institution or mental illness cycle when there may not be an illness at all. I think the statute at question identifies the way our society is beginning to view certain crimes, especially those of a sexual nature. This idea of sexually-related crimes as manifestations of an illness seem to also reflect the new trend in people seeking therapy and the like for sexual addictions (think of various celebrities and politicians). We are beginning to bring any sort of sexual issues to the forefront of policies and research to where the statutes are matching the views that those who are sexually dangerous must have a mental illness, abnormality, or disorder.
As for whether the statute violates due process, that is another issue. The idea that a prisoner can be sentenced, fulfill that sentence, and then been deemed to be too dangerous to be released and have to continue to be held until he proves he is fit is a little strange. If the prisoner is so sexually dangerous to where he should not be released (specifically having engaged or attempted to engage in sexually violent conduct or child molestation), then wouldn't that have come forward and been considered during his trial? If we are classifying the prisoner as having a mental illness, abnormality, or disorder to the point where it results in his being sexually dangerous to others, then why would that not be a defense to the crime at the time of trial? Tying together the concept of mental illness and criminal propensity would exculpate the crime and instead render the defendant a candidate ripe for commitment starting from trial. I suppose it is possible that the defendant begins exhibiting sexually dangerous behavior in the prison, and thus, the statute would provide for an additional incarceration of sorts until he is either medically stable or the state takes custody of him (presumably to treat or house him until he is stable). Under that scenario, the statute would provide the defendant with a hearing and the right to counsel, as most adjudicative processes require. However, when we're talking about a defendant's right to be set free, it seems like a hearing is a little easy on the government. Is the hearing really more of a small trial, where the defendant's rights to not be held against his will are properly address? I don't know, and I think I would need to read more on that process before weighing in on it.
The fact that the defendant can request a review hearing every six months certainly helps the constitutionality of the statute in the due process issue. I think perhaps the statute should have a requirement that the hearing be within a certain time period, so as to set a limit on what could be an indefinite period of time. When we're dealing with someone's liberty, and this someone has served his court-ordered period of time, then the hearing should be in an expeditious manner. I know there is a strong public sentiment now to lock up sexual offenders, especially those who have child victims, and throw away the key, but every defendant has certain rights. It seems that the statute permits a defendant's rights to be put on hold in the name of public safety while the government gathers evidence to support a civil commitment for actions which were known of and possibly used at the time of trial and sentencing. I fail to see a clear break between the crime and sentence imposed and the actions used to set a civil commitment in place. It seems like the defendant is being punished once for the actions he committed to be found guilty and serve a sentence, and he is being punished again because society really doesn't like those crimes and wants to keep him locked up for as long as possible. If that is the case, then the original sentence is not a true sentence, and it means nothing. This is just the type of case to keep your eye on for the future.
