A Constitutional Ripple Effect

This week the U.S. Supreme Court heard arguments in U.S. v. Comstock. The case represents a challenge to a federal law enacted in 2006 when the Congress authorized the indefinite civil commitment of offenders designated "sexually dangerous."

The law essentially permits the federal government to continue to detain a sex offender after he has served his sentence. Such commitments on a state level have passed constitutional muster. The high court has found neither a violation of double jeopardy or ex post facto, Kansas v. Hendricks, 521 U.S. 346 (1997).

There are 20 states that have statutory provisions for the civil commitment of sex offenders. The list of states with sex offender civil commitment laws include Arizona, California, Florida, Illinois, Iowa, Kansas, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Pennsylvania, South Carolina, Texas, Virginia, Washington, and Wisconsin, (Deming, Sex Offender Civil Commitment Programs).

According to Robert Barnes of the Washington Post, During the Comstock argument a majority of U.S. Supreme Court justices seemed inclined to accept that the federal government has the power to indefinitely hold prisoners who are deemed sexually dangerous, even if they have completed their sentence.

Some court observers are concerned. "The main danger of civil commitment of sex offenders is that it provides a precedent for doing an end run around those governmental protections, and we all may be comfortable right now because we say, 'Well, this is those people. It's not us. It's not our rights that are at stake,'" Eric Janus, author of Failure to Protect, told CNN.com. "I think we all ought to be cognizant of the fact that these laws set a precedent that greatly expands the power of government to take away our liberty, not for something we've done in the past, not after we've been convicted and punished, but out of fear that we might commit a crime in the future, and this is a very very powerful and dangerous idea," Janus said.

Nina Totenberg raised similar concerns during her NPR report on the Comstock argument. If you can civilly commit someone as sexually dangerous, why not civilly commit people believed to be just dangerous in general?

Kansas Solicitor General Stephen McAllister says civil commitment has to be linked to a mental abnormality or condition. But a lot of people in prison are deeply disturbed. There are drug addicts, kleptomaniacs, vicious sociopaths. So why not commit them too once they have completed their prison terms?

"Constitutionally, it might be possible," to extend the rationale for civil commitment to other kinds of crimes, McAllister says. "I don't have a constitutionally limiting line for what kinds of mental disorders might be permissible and what [might] not. If they lead to danger to others, potentially, they could be covered under such a law."

In other words, this is a case that could have a constitutional ripple effect.