“The power claimed by Section 4248 – forcible, indefinite civil commitment – is among the most severe wielded by any government,” the Fourth Circuit declared in a January 2009 decision. “The Framers, distrustful of such authority, reposed such broad powers in the states, limiting the national government to specific and enumerated powers.”
The Obama administration is asking the Supreme Court to overturn the appeals court decision and uphold the constitutionality of the law. In her brief to the court, Solicitor General Elena Kagan says Congress may pass laws related to the federal criminal justice and penal system. She says Section 4248 is a “necessary and proper” use of federal power to protect the public.
“Necessary and proper to the enforcement of federal criminal law and to the operation of a federal penal system are certain incidental powers, including resort to civil commitment of ill and dangerous persons who could pose a threat to the public if released,” Ms. Kagan writes in her brief.
Lawyers challenging the law say the government is engaging in an unconstitutional power grab. “The government characterizes Section 4248 as an exercise of Congress’s powers to enact criminal laws and operate a prison system. Those powers are not enumerated anywhere in the Constitution,” writes Jane Pearce, an assistant federal public defender in Raleigh, N.C.
Under the new law, mMore than 60 individuals have been certified as “sexually dangerous” and are being held in indefinite detention in a federal prison in North Carolina.
Among them is Ms. Pearce’s client, Graydon Comstock.
Mr. Comstock was sentenced to three years in federal prison after pleading guilty to possessing child pornography. Six days before his scheduled release from prison, federal authorities moved to have him certified as a “sexually dangerous person.” To date, Comstock has spent six years in federal custody.
He is one of five individuals who sued to overturn Section 4248.