Taking stock of Comstock

[I can't believe no one's made the pun yet]

What Comstock is, what it isn’t and what it might very well be.

First, what Comstock isn’t. Despite the ominous newspaper headlines, it is my opinion – however uninformed – that Comstock does not directly stand for the proposition that it is Constitutionally permissible to indefinitely commit sex offenders beyond the expiration of their criminal sentences.

Justice Breyer’s decision explicitly reserves that question for another day:

“We do not reach or decide any claim that the statute or its application denies equal protection of the laws, procedural or substantive due process, or any other rights guaranteed by the Constitution. Respondents are free to pursue those claims on remand, and any others they have preserved.”

As one commentator notes, there may very well be viable challenges to the Federal statute in the yet-to-come Comstock II or other cases.

What Comstock is: a decision that holds (however unpersuasively and problematically) that civil commitment by the Federal government is a “necessary and proper” means of exercising the federal authority that permits Congress to create federal criminal laws. What that “enumerated power” is, is never mentioned by the majority opinion (the best analogy I’ve seen of this legal trickery is in this post).

Justice Thomas explains this succinctly (yes, I know. Shut up.):

The Government identifies no specific enumerated power or powers as a constitutional predicate for § 4248, and none are readily discernable. Indeed, not even the Commerce Clause—the enumerated power this Court has interpreted most expansively, [citation omitted] can justify federal civil detention of sex offenders.  Under the Court’s precedents, Congress may not regulate noneconomic activity (such as sexual violence) based solely on the effect such activity may have, in individual cases or in the aggregate, on interstate commerce. Morrison, 529 U. S., at 617–618; United States v. Lopez, 514 U. S. 549, 563–567 (1995).

What Comstock may very well be: the start of a line of cases that holds, one at a time, that it is perfectly okay for states and the federal government to indefinitely confine sex offenders, well beyond the expiration of their terms of incarceration.

Mixing sex offenders and public safety is a sure recipe for the evisceration of the rights guaranteed and protected by the Constitution. A court following in the footsteps of Comstock could easily hold that, as per the decisions in Alaska and Dept’ of Public Safety, civil commitment is a regulatory function undertaken for the safety of the general public, is not a punitive measure and justify it using the following language from Comstock:

2. This type of legislation is a long-standing Congressional practice: “the civil-commitment statute before us constitutes a modest addition to a set of federal prison-related mental-health statutes that have existed for many decades.”
3. The statute is merely an extension to persons already in federal custody  (“If a federal prisoner is infected with a communicable disease that threatens others, surely it would be “necessary and proper” for the Federal Government to take action, pursuant to its role as federal custodian, to refuse (at least until the threat diminishes) to release that individual among the general public, where he might infect others).

Of course, both of the above arguments are a smoke-screen for the real purpose: sex offenders are bad and must be put away forever, even in the face of evidence suggesting that they are the lowest to reoffend. The above argument also ignores the basic distinction between civil commitment of sex offenders and those who are “quarantined” for health reasons: that the “disease” of being a sex offender is the very reason the individual is incarcerated in the first place, thus, in a sense, making civil commitment a second punishment.

But we are talking about sex offenders, so it’s open season. For a preview, see this brief analysis of the potential interplay between Comstock and Kansas v. Hendricks.

Finally, it must be noted that there is certainly something odd about the timing of the two criminal justice decisions issued today: Comstock and Graham v. Florida.

Reading them both on the same day certainly leaves one with the sense that there is no direction on the court on criminal justice issues.

[For links to far more detailed coverage of Comstock, see this post at SexCrimes.]