Ken Klukowski: Does the Constitution Allow the Feds to Lock Up "Dangerous" People?


ACRU Staff


January 15, 2010

This column originally appeared on on January 14, 2010.

On January 12, the Supreme Court heard a case involving a federal law that empowers the federal government to keep dangerous people locked up after their prison sentences are over. Enough justices seemed skeptical, however, so the law may be struck down as unconstitutional.

The Supreme Court heard arguments on Tuesday in U.S. v. Comstock. At issue was a federal statute providing that if the government deems a criminal whose prison term is about to end to be a “sexually dangerous” person, then they can continue to keep him confined–potentially for life. This criminal doesn’t need to be in prison for a sex crime; he can be imprisoned for any reason, such as tax evasion.

The issue before the Court was simple: Which provision of the Constitution authorizes the feds to lock up someone for being “dangerous” as part of a civil commitment? A civil commitment proceeding is when a court confines a person for something other than a criminal conviction, such as a local judge having someone committed to a mental institution for being crazy in a manner that endangers themselves and others.

If a person is convicted of committing a federal crime, then the feds can imprison that person. The power to imprison them for committing the crime flows from whatever part of the Constitution authorizes the federal government to make that act illegal in the first place.

But what power do the feds have simply to lock up “dangerous people?”

What makes this case important is it goes to the heart of how the federal government is fundamentally different from state governments. States have what are called governments of general jurisdiction. This includes the police power, which is the power to make laws for public health, safety, welfare and morality.

By contrast, the federal government is a government of limited jurisdiction. That means it only has whatever powers are delegated to it by specific clauses in the Constitution. If no constitutional provision authorizes a particular federal law, then that law is unconstitutional.

The police power authorizes state governments to confine people that pose a danger to public health or safety. That, for example, is why states can put insane people in a mental institution.

But the federal government has no police power, so it can’t have a state-style civil commitment law to lock someone up for things unrelated to federal crimes. It’s just none of the federal government’s business, as far as the Constitution is concerned.

This is an important check on the power of the federal government. At a time when federal power is growing by leaps and bounds in the lives of American citizens, it’s healthy for our republic that the Justice Department is being forced to justify a power to lock up people who have already paid their debt to society. While some aspects of a criminal conviction can continue after a person’s sentence is completed (for example, a convicted felon can permanently lose the right to vote), the power to keep someone confined is different. Aside from the fact that the food is probably better and the people you’re mingling with are more pleasant, being locked up in a mental health facility is essentially the same as being locked up in prison.

This isn’t to say that crazy people must be released onto the streets. Again, states have the power to confine dangerous people through their civil commitment process. But those determinations are made by a state attorney general or other public official making their case to a county judge, all of whom are far more responsive to the people in a local community. Such a powerful tool is dangerous in anyone’s hands, and belongs with people who are directly answerable to the community to ensure that it’s not used in an oppressive manner.

As Justice Sonia Sotomayor pointed out when asking about what constrains the federal government from abusing this power, “We have many criminal defendants with long histories of violent behavior. Many of them continue that behavior in prison,” yet they are still released when their term is complete. If the system releases violently dangerous people after they’ve done their time, how can the government keep sexually dangerous people locked up?

The case went back and forth. Elena Kagan’s argument representing the Obama administration didn’t seem to persuade the Court, with both conservative and liberal justices expressing skepticism of the Justice Department’s claims.

The other side almost lost the case three times, however, and in each of those three it was Justice Antonin Scalia who came to the rescue. For example, on one occasion where the public defender tried to answer a question by saying it involved Congress’ power to regulate interstate commerce (which was the wrong answer), Scalia interrupted by saying, “No! The government can spend money on whatever it wants. That’s the spending power,” not Commerce Clause power.

With those challenges avoided (with Scalia’s help), it looks like the federal civil commitment law may not be law for much longer. A decision will likely come down sometime this spring.



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