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January 12, 2010

Different perspective on the Justices' take on federal sex offender civil commitment

The early reporting on today's SCOTUS oral argument in Comstock (basics here) provide quite distinct takes on what the Justices are thinking.  Consider the lead of this Bloomberg report, which is headlined "Sex-Offender Commitment Law Gets Support at U.S. Supreme Court":

U.S. Supreme Court justices signaled they are likely to uphold a national law that permits the civil commitment of “sexually dangerous” people after they complete their federal prison terms. Hearing arguments today in Washington, most of the nine justices suggested they viewed Congress as having the constitutional power to enact the law.  A federal appeals court said the 2006 measure, under which more than 100 people have been held, exceeded Congress’s authority.

But now consider the lead of this Reuters report, which is headlined "U.S. justices question sex offender confinement law":

Supreme Court justices on Tuesday expressed skepticism about the Obama administration's argument that the U.S. Congress can keep sex offenders in custody for an indefinite time beyond their prison sentences.

I suppose we will all just have to read the transcripts of the Comstock oral argument, which is now available here.

UPDATE:  Corey Yung at Sex Crimes provides lots of effective coverage of the Comstock oral argument in these posts:

Also, Orin Kerr provides another bloggers take with this Volokh post, Oral Argument in United States v. Comstock.

January 12, 2010 at 03:30 PM | Permalink


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I must say, Doug, my reading of the transcript led me to conclude that most justices were ready to say this went to far for the Federal government. Ginsburg seemed to be virtually alone in offering ideas to SG Kagan, and CJ Roberts seemed pretty quiet.

Posted by: dch | Jan 12, 2010 4:11:27 PM

I would just say that the two leads stress different things. The Bloomberg article focuses on the government's ability to have a commitment law at all as opposed to the Reuters report which suggests the government might not be prepared to order the indefinite confinement.

Without having read the transcripts this makes me think that the SC is prepared to say civil commitment is OK but that there must be an end game somewhere as the government can't hold them indefinitely.

Posted by: Daniel | Jan 12, 2010 4:56:30 PM

Having read the transcript, here's my count:

For Comstock: Scalia. Probably/possibly for Comstock: Kennedy, Sotomayor, Roberts, the Silent One. For the government: Breyer, Ginsburg, Alito. Possibly for the government: Kennedy, Sotomayor, Roberts, the Silent One.

Posted by: lawyer | Jan 12, 2010 4:56:44 PM

Did anyone else notice this Judge Dredd line?

"And we do think that that provides an additional basis, not a sufficient basis, but an additional basis to -- to approve this law in the sense that these are the people who are most likely, really, to violate such Federal laws which are based on the Commerce Clause in the future."

Posted by: Texas Lawyer | Jan 12, 2010 5:27:07 PM

As with so many "big" cases, this one seems to present a question different than the one that troubles most people. Daniel, I haven't read the AP articles, but I just finished the transcript, and it really seems like the question presented is whether the federal government may have a commitment law at all, at least where the commitment is tied neither to the offense of conviction nor to the statutory term of imprisonment.

I suspect that most people who are troubled by the commitment act would be JUST as troubled by a state law with identical provisions. (A handful of federalism-minded types excepted). But this case appears to be all about the eccentricities of federal power and about the necessary and proper clause.

Then again, I haven't read the briefs.

Posted by: Texas Lawyer | Jan 12, 2010 5:55:20 PM

Having read the transcript, I don't think it bodes well for the defendant. I hope I'm wrong.

I also previously read the briefs. Was it just me or did there seem to be a disconnect between what was briefed and what was discussed at oral argument?

Posted by: DEJ | Jan 12, 2010 6:51:58 PM

i agree. i think it's totally illegal both at the federal AND state lvl. Sorry saying someone is sane and able to try them then put them in prison to serve a sentence THEN once it's done say they are CRAZY is well CRAZY....it is also just what we sent millions of dollars and years laughing over when the RUSSIANS DID IT during the cold war!

sorry it was criminal when they did it and it's STILL CRIMINAL.

Posted by: rodsmith3510 | Jan 12, 2010 10:16:09 PM

i also think if the supreme court chickens out and let's the govt get away with this we will see blood in the streets since the ex offenders will have NO reason at all to play nice and might as well go out swinging.

Posted by: rodsmith3510 | Jan 12, 2010 10:17:05 PM

I finally read through the transcript and was--no surprise--once again dismayed at the shocking lack of psychological sophistication in any of the questions or responses.

The whole court seemed to be conflating the legal definition of insanity with the psychological term of mental illness. They are not the same thing. Psychology doesn't even recognize the term insanity anymore and it's not d efined in the DSM. Put another way, insanity is not a mental illness. The issue of insane prisoners from 1945 has no relevance whatsoever to the argument that the government makes and provides no foundation for the government position. When Ginsburg asks what power the government has to hold insane prisoners DuBios ties it to the specific law passed. The better approach would have been note that whatever the power to hold a legally insane person it does not address the government's power to hold a person who is mentally ill.

When Dubios says that "in the same way that mental health is a uniquely State function, so too is public health". I honestly don't know what he means. I don't understand how mental health is a uniquely State function. That comment left me flabbergasted even more so because it came from Comstock's side.

Posted by: Daniel | Jan 12, 2010 10:56:55 PM

This case represents ridiculous lawyer churning.

123D. If you can count to three, you can resolve this question.

We understand and sympathize if you need to cut little girls' throats to feel any quality of sexual feeling. But it is time to go. You must leave this earth, at this time. No group therapy. No medication. No endless litigation. No special prison at triple the cost.

And take those internal traitors to the Constitution with you, those know it all, nincompoops sitting on the Supreme Court bench, making the law for the nation. They actually believe they know something about something. Their decisions have the validity of and the same effect on our nation of an oblivious two year old throwing things about a room in a tantrum. A mess.

Posted by: Supremacy Claus | Jan 13, 2010 4:16:18 AM

Paraphrasing Dr Thomas Szasz:

"An action can never be a mental disease/disorder."

If the shysters want to lock people away for no good reason, they could, at least, have the integrity not to hide behind pseudo-science.


Posted by: Dr Nigel Leigh Oldfield | Jan 13, 2010 11:49:56 AM

That courts decided that for civil commitment it's required to have at least two psychological reports stating that someone would most likely commit further crimes or pose a threat to others in society But, the Law does not offer the same guidelines to that could very well determine that someone is not a further threat to society and could or should be removed from the registration policies, Especially, in states that require lifetime registration from citizen who may not pose any risk? Isn't their a discrimination or equal protection issue here?

Posted by: Question | May 10, 2010 12:00:15 AM

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