A bit more on Comstock

The NYTimes yesterday noted that Elana Kagan, Obama’s nomination for the USSCT, had argued in favor of the government in this case:

At the argument of the case in January, Solicitor General Elena Kagan, now President Obama’s pick for the Supreme Court, said the law was needed “to run a criminal justice system that does not itself endanger the public.” She said 105 people had been confined under the law.
Ms. Kagan pointed to the Constitution’s “necessary and proper” clause as granting Congress the power to pass the law, though the clause is not ordinarily thought of as a source of free-standing authority. The clause gives Congress the right “to make all laws which shall be necessary and proper for carrying into execution” its other powers.

Not a huge deal, I suppose. The fact that the USSCT approved the indefinite detention of persons deemed to be sexually dangerous is not a huge deal at this point either – the USSCT and every state supreme court opinion that I have seen have already upheld these statutes under Due Process challenges where it is the states that are detaining the offenders under state laws.
What makes this case different is that it is the federal government doing the detaining under federal law, and not the states. The decision is not significant for the fact that people are being detained indefinitely – that is old news – what is significant is the further broadening, or stamp of approval on breadth already taken by the Congress, of the federal government’s power to detain and hold citizens in jails. The states already have systems in place to evaluate and detain sexually violent predators, and the federal government does not belong in this arena.
Another thing that bothers me is that throughout the Comstock opinion the majority analyzes the issue as if they are discussing a criminal law, with criminal penalties for criminal conduct that has been committed. The state sexually violent predator laws have been upheld in part because they were not criminal penalties – they were civil statutes and the process was one of civil commitment (even though the offender remains in a detention facility in a prison cell) and therefore there was no double jeopardy issue. We are not punishing people in advance for crimes they have not committed, we are civilly committing people who are diagnosed as mentally ill and who have been found to be a danger to others.
The tone of Comstock seems to be A-OK with classifying indefinite commitment of sex offenders as a criminal penalty for crimes that have not yet been committed.

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