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January 9, 2009

Fourth Circuit finds federal sex offender civil commitment law unconstitutional

As reported here at How Appealing, "a unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit [Thursday] declared unconstitutional ... a federal statute intended to allow the federal government to place in indefinite civil commitment 'sexually dangerous' persons who have completed serving their federal prison sentences."   Here is a snippet from the start of US v. Comstock, No. 07-7671 (4th Cir. Jan. 8, 2009) (available here):

After carefully considering the Government’s arguments, we conclude, for the reasons set forth below, that § 4248 does indeed lie beyond the scope of Congress’s authority.  The Constitution does not empower the federal government to confine a person solely because of asserted "sexual dangerousness" when the Government need not allege (let alone prove) that this "dangerousness" violates any federal law. 

Eugene Volokh and Ilya Somin and Corey Yung all have extended and very thoughtful comments on the Comstock ruling.  I share their collective instinct that this could end up before the Supreme Court.

January 9, 2009 at 12:35 AM | Permalink


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This ruling is correct and should be upheld if it makes it to the Sup. Ct., a prospect made more likely by the fact that the issue could soon be before the 1st Cir. and result in a circuit split (as opposed to an interbranch split).

An important clarification to the post over at Volokh. Section 4248 does not require that the potential committee has ever been convicted of a federal sex offense, or indeed ANY sex offense. All it requires (on this issue) is that the govt prove, by clear and convincing evidence, that the person has at some time in his or her life engaged in child molestation or sexually violent conduct (both as defined by BOP regs).

Thus, the exercise of federal power here is predicated entirely on the person's presence in BOP custody or the custody of the AG, and not on the sex offense related nature of that custody -- he or she could be held on any federal charge.

This points up the utter lack of any tether between the exercise of federal power under the statute and any legitimate federal concern.

Posted by: fedpubdefender | Jan 9, 2009 12:15:59 PM

I am a retired educator, a married man for 33 years, was a Bahai in good standing for 31 years and have been in the Peace Corps which shows an altruistic approach to my life.

Lumping together all sex offenders as being a danger to children and society is the problem. I downloaded child pornography among many adult pictures and for this I have had to follow all of the worst conditions of probation as if I were a violent, hands-on sex offender: GPS monitoring, 6:00 curfew, restricted from being near any child-run facility and the horrendous consequences of being on the Registry.

I have been on probation for 3 1/2 years and since then psychological testing, my therapist and two lie detector tests have stated I am not a threat to children. With much other evidence in my favor, I plan to request an evaluation of my dangerousness by the courts in New Mexico. If successful, I would ask to be taken off the sex registry.

Could give me advice about how to proceed or what my chances would be for success? I would appreciate a response.

Posted by: Matt Wagner | Dec 23, 2009 12:01:47 PM

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