Judicial Notebook

On Jan. 12, the U.S. Supreme Court is scheduled to hear oral arguments in United States v. Comstock, a case that raises questions about the federal government's authority to civilly commit sex offenders.

In 2006, Congress enacted 18 U.S.C. 4248 as part of the Adam Walsh Child Protection and Safety Act. Section 4248 authorizes the federal government to civilly commit “sexually dangerous persons” who are already in the custody of the Federal Bureau of Prisons. Using this authority, the federal government can extend the confinement of these persons even after they have completed their prison sentences.

The Walsh Act defines “sexually dangerous persons” as those who “engaged or attempted to engage in sexually violent conduct or child molestation” and suffer “from a serious mental illness, abnormality or disorder” that would cause them “serious difficulty in refraining from sexually violent conduct or child molestation if released.” Several states, including Kansas, have enacted laws to facilitate the civil commitment of similarly defined individuals. Like section 4248, the states' “sexually violent predator” commitment statutes have been used to confine sex offenders who have completed their prison terms continuously and indefinitely — a result that has been both praised as an innovative way to protect the public “from a small, but dangerous class of criminal” (e.g., Maleng, N., 1992) and criticized as a misuse of the institution of civil commitment for nontherapeutic purposes (for example, by a 1999 report from APA's Task Force on Sexually Dangerous Offenders).

The Supreme Court has held that the Kansas statute does not offend the Constitution's Ex Post Facto and Double Jeopardy Clauses, nor does it violate sex offenders' substantive due process rights by authorizing commitments in the absence of mental illness. Applying these holdings, lower courts have determined that section 4248 likewise does not violate these constitutional principles (see United States v. Comstock, 2007).

But section 4248 raises a new set of questions that have divided courts of appeals.

In United States v. Comstock (2009), the U.S. Court of Appeals for the Fourth Circuit concluded that Congress lacked the authority to enact section 4248. Noting that “the states have long controlled the civil commitment of the mentally ill” through “the exercise of ... general police and parens patriae powers” that the federal government lacks, the Fourth Circuit found that section 4248 cannot be sustained as a legitimate exercise of the specific powers granted to Congress under the Constitution. In United States v. Tom (2009), however, the Eighth Circuit reached the opposite conclusion, holding that “the statute is a responsible exercise of federal power over individuals subject to continuing federal jurisdiction.” The Eighth Circuit found that, because Congress had authority under the Commerce Clause to criminalize the criminal conduct of the defendant (who had crossed state lines to engage in sexual acts with a minor), it “has the ancillary authority under the Necessary and Proper Clause to provide for his civil commitment so that he may be prevented from its commission in the first place.”

The Supreme Court will resolve the disagreement between the courts of appeals in an opinion that will be issued sometime this year. If the court determines that section 4248 is unconstitutional, “sexually dangerous persons” held under that statute will likely have to be released from federal custody. In late 2008, more than 60 such individuals were confined in the federal prison complex in Butner, N.C., alone. These people may be susceptible to civil commitment under state law, and more states might enact their own versions of the commitment procedure if section 4248 is struck down.

If, on the other hand, section 4248 is upheld, the federal government will have expanded authority to legislate in the field of civil commitment — a field that generally has been left to the individual states. Thus, the Supreme Court's forthcoming decision in Comstock should be of interest to psychologists — particularly those whose practice involves the assessment or treatment of sex offenders.


“Judicial Notebook” is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).