I've decided to focus my paper on civil commitment, in light of the decisions that came down yesterday from the Supreme Court. I was wavered for a long time over which part of my paper to cut out because I completely agree with Caroline in that it's too much to cover in 1000 words. I'm not currently sure whether Veblen will have any place in this rewrite at all because I'm not certain that civil commitment is conspicuous enough in terms of local politicking, but that may change how that there's a Supreme Court ruling on it. (Or not?)

This decision was handed down along with another (I can't remember the case name) that held life sentences for children under 18 who have not killed anyone unconstitutional. I won't be discussing this decision, though it is interesting. Thus far, I've noticed that my paper has taken a different, more legal turn than I originally intended. A major reason for this has to do with the fact that I'm responding to the Comstock opinions. My goal is mostly to stay as grounded as possible so I'll try to be vigilant of that. Lastly, this is a very rough, messy draft, but though I've taken this paper in a slightly different direction, I did taken into consideration the comments. I'll be adding sources as I edit this down. As always, comments are super welcome!

On May 17, 2010, the Supreme Court handed down a decision in U.S. v. Comstock, which held that Congress had the power under the “necessary and proper” clause to enact 18 U.S.C. S. 4248 which allow the federal government to civilly commit sex offenders certified to be dangerous to the public, after their prison term has been served. This decision overturns district court decisions while held it unconstitutional because it overextended the reaches of Congressional power. Notably, neither the lower courts nor the Supreme Court dealt with due process, an issue that the Court already ruled on in Kansas v. Hendricks. The bulk of the debate was over state vs. federal rights, and a 7-2 majority held that the statute did not overextend Congressional power.

As with many landmark decisions, the most important, lasting effects on the decision will likely be in what the Court only discusses fleetingly (see Marbury). In his dissent, Justice Scalia points out an aspect of the statute that the majority understandably ignores: 4248 allows the federal government to certify any criminal as “sexually dangerous” even though the crime he is in federal custody for is not a sexual offense. The government only needs to show that there was a prior state conviction of sexual violence or by clear and convincing evidence that the criminal had committed a sexual for which he was never charged (note how this disregards statute of limitations issues).

Justice Breyer's majority opinion bases his approval of Sec. 4248 on the fact that there are procedural safeguards (though he says that the Court did not consider the Due Process issue, it is clear from his opinion that he does not believe it's a violation), there has been similar legislation historically that allow for civil commitment mentally ill, and that it gives states a choice to accept custody and care of the offender upon release from a federal prison.

The procedure the government must follow when attempting to civilly commit a prisoner about to be released from prison is to apply for a certification that the individual is mentally ill and his illness makes him sexually dangerous to society at large. Clear and convincing evidence, less rigorous than the standard “beyond reasonable doubt” requirement for criminal law, must be presented to a district judge to establish that this prisoner is indeed a threat. Many of these terms don't yet have well established legal definitions, such as what constitutes “clear and convincing proof,” what types of “mental illness” must be shown and how, and how the government can show that the prisoner is likely to re-offend.

Judges in state court usually find that two or three-time offenders are good candidates for civil commitment. Their record is evidence in and of itself of mental illness, propensity to re-offend, and danger to society. It is currently unclear whether this is the same easy standard district judges will use to determine whether to certify a prisoner. My guess is that the procedural safeguards Justice Breyer relies on to assuage fears about arbitrary commitment won't have any practical use. Only a very small minority of sex offenders will openly admit that they have the urge to re-offend during psychiatric evaluations, and after Comstock, I don't think any will be forthcoming about their mental conditions. As for mental illnesses that may be good predictors of recidivism, besides impulse control difficulties, there isn't a “sexual deviant” clinical illness. I believe that in practice, the existence of a prior record will be sufficient.

Moreover, the Court's ruling actually extends the applicability of civil commitment to criminals that have never been convicted or charged of a sexual crime, if there is clear and convincing evidence that they could have been charged. The lowered standard is not problematic, the majority explains, because civil commitment is not a penal measures, but a civil one. The same safeguards that are available in criminal law are not necessary here since commitment is supposed to benefit the prisoner and protect society. But the opinion of those who face commitment is that being institutionalized by the state is worse than going to prison because while the conditions are similar between the two, the latter comes with an indefinite sentence. One of the only individuals to be committed and then released was driven to self castration in prison. He said that he found therapy somewhat helpful, but also thought that it could have been administered during his prison term with the same results (it also bears mentioning that hormonal changes caused by the castration could be responsible for his “improvement”). [Insert NYT link]

Justice Breyer's majority opinion calls sec. 4248 a modest addition to legislation already on the books that allow the government to commit mentally ill prisoners. Other statutes do allow the government to civilly commit a prisoner if they become mentally ill during the course of incarceration, but only recently has the government been able to extend institutionalization past the prison term. The real danger I believe, is that there is a real qualitative difference between “mentally ill” as applied to prisoners that became so during their stay in prison, and “mentally ill” as applied to sex offenders. For the former, there is a baseline level of sanity that the prisoner presumably had when he was sentenced, or he would have been found unfit to stand trial. For sex offenders, however, the baseline, judging by the crimes they've committed, is already abnormal. While it will be the exception and not the norm to civilly commit a prisoner who suffered severe mental trauma in prison, I am afraid that it will become the norm (budget willing) to commit sex offenders.

Solicitor General Kagan, in her oral argument, compared institutionalizing sex offenders to quarantining prisoners who have served their sentences but have deadly, contagious diseases. There are so many issues with this rather sloppy use of analogy, but I'm not certain whether it will make it into the final version of my paper yet. I think my issues with it are quite colored by my opinion on the topic and may not be that logically sound, so I think I'll wait a few days and then decide whether to keep this part in or leave it out. But among the differences between sex offenders and lethally contagious prisoners the fact that a contagious disease will infect surround people regardless of conduct whereas sex offenders (this is assuming that even if their urges to re-offend are very strong, there is still an element of personal choice) must purposefully act to harm others, that a deadly disease will definitely kill or harm others, while recidivism is not certain in sex offenders, and there is the feeling that being quarantined does not reflect as badly as civil commitment, which looks and feels like more punishment.

It will be interesting to see how budgetary pressures impact the way sec. 4248 is implemented. Those states that have civil commitment laws of their own are pleased that the Supreme Court upheld the law, and many sent in amici briefs urging the Court to do so, so that the federal government can shoulder part of the cost of institutionalizing sex-offenders. The majority opinion stressed that states will be given the first opportunity to take custody of the sex-offender when his prison term is finished, to institutionalize them in their own state or to place them in some other program as they see fit. However, because institutionalization is so expensive (the Supreme Court estimates $63,000 per year, but other figures show closer to $80,000 on average), states will likely be willing to take advantage of this offer. States that do not have civil commitment laws currently will face an interesting choice: do they take custody of the offender and then simply set him free within state borders (besides registration and residency restrictions)? Or do they let the federal government do what their own legislature, for whatever reason, has not yet done? I think that they will let the government commit those they have certified to be dangerous and likely to re-offend. Though civil commitment might smell enough like double jeopardy to provoke objections from some citizens, the alternative of having a federally certified dangerous sex-offender in the neighborhood will probably quiet most protests.