Original Article (PDF)
affiliation not provided to SSRN
October 30, 2009
Hastings Constitutional Law Quarterly, Vol. 37, No. 1, 2009
Congress enacted the Adam Walsh Child Protection and Safety Act of 2006 ("the Adam Walsh Act") with the aim of "protect[ing] children from sexual exploitation and violent crime." Among other measures, the Act creates a National Sex Offender Registry, establishes a post-conviction civil commitment scheme, increases punishments for a variety of federal crimes against children, and strengthens existing child pornography prohibitions. The scope of this note is limited to an analysis of the commitment portion of the Act ("Commitment Provision"). This provision authorizes the federal government to civilly commit, in a federal facility, any "sexually dangerous" person "in the custody" of the Bureau of Prisons - even after that person has completed his entire prison sentence.
Recently, the Supreme Court granted certiorari on question of whether or not enactment of the Commitment Provision was within Congress‘s authority. This note will show that Congress lacked the authority to enact the Commitment Provision under either its enumerated or incontestable federal powers. For this reason, the Commitment Provision cannot enacted as a Necessary and Proper exercise of a legitimate federal power. The Necessary and Proper Clause by itself creates no constitutional powers; it merely allows Congress to enact legislation auxiliary to an enumerated or incontestable federal power. Thus, because Congress lacked the authority to enact the Commitment Provision under either its enumerated or incontestable federal powers, it cannot be a Necessary and Proper exercise of those powers and is therefore unconstitutional.
The discussion will begin with an overview of the relevant Supreme Court precedents bearing on a constitutional determination of this kind. This note will show that a proper reading of these precedents demonstrates that the clause upon which the federal government most often defends its power to regulate this subject, the Commerce Clause, is wholly inapplicable to an act like the Adam Walsh Act - legislation aimed at criminal law enforcement where States historically have been sovereign.
Next will be an evaluation of the current split between the Court of Appeals for the Fourth Circuit (“Fourth Circuit”) and the Court of Appeals for the Eighth Circuit (“Eighth Circuit”). This note will show that only the Fourth Circuit, which held the Commitment Provision beyond congressional authority, performed an extensive analysis of the relevant Supreme Court precedents in reaching its holding. The Eighth Circuit, on the other hand, relied only on its own, distinguishable precedents. Thus the only Circuit court to analyze the constitutionality of the Commitment Provision under current Supreme Court jurisprudence has found it to be unconstitutional.
This note will show further that the Commitment Provision does not fit readily into the specific schemes where federal civil commitment has be found constitutional - namely in situations where it is used to prevent and prosecute federal crimes.
Finally, this note will show that the Commitment Provision does not satisfy the due process rationales for which the Supreme Court has found state-authorized civil commitment constitutional. The structure of the Commitment Provision neither comports with the classic rationale for lower proof burdens in state civil commitment schemes, nor does it provide for a probable cause hearing within a reasonable amount of time and the general practice is to keep prisoners locked for months beyond their release dates.