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	Court Backs Sex-offender Detention By Jess Bravin The Wall Street Journal May 17, 2010 http://online.wsj.com/article/SB10001424052748703315404575250220873756964.html?mod=WSJ_hpp_sections_news WASHINGTON—The Supreme Court said Monday that the federal government can keep "sexually dangerous" prisoners in custody past the completion of their sentences, overruling arguments that only states hold such power. The vote was 7-2, with Justices Antonin Scalia and Clarence Thomas in dissent. More than 20 states have laws permitting "civil commitment" of prisoners deemed sexually violent or otherwise mentally ill after they have served sentences for specific crimes. In 2006, Congress passed the Adam Walsh Child Protection and Safety Act, which authorizes the Justice Department to similarly hold federal prisoners who are nearing release or were found mentally incompetent for trial. Writing for the court, Justice Stephen Breyer said Congress could authorize the civil commitment of these offenders under its constitutional authority to enact laws "necessary and proper" to the exercise of its specific powers. Chief Justice John Roberts and Justices John Paul Stevens, Ruth Bader Ginsburg and Sonia Sotomayor joined the majority opinion. Justices Anthony Kennedy and Samuel Alito each wrote separately, endorsing the result but warning against carrying the majority's reasoning too far. "The Constitution does require the invalidation of congressional attempts to extend federal powers in some instances," Justice Kennedy wrote.At arguments in January, Solicitor General Elena Kagan told the court that federal prison officials found about 15,000 inmates with histories of sexual violence or child molestation, but only 105 who were determined to have a mental illness making it "reasonably likely" they would commit such offenses again. One of those prisoners was Graydon Comstock, who in November 2006, six days before completing a 37-month federal sentence for possession of child pornography, was certified as sexually dangerous and denied release. He and four other such prisoners sued, claiming that Congress assumed powers only states can exercise. The Fourth U.S. Circuit Court of Appeals, in Richmond, Va., agreed. Because the sex crimes that federal prisoners were considered likely to commit in the future fall under state rather than federal law, the Fourth Circuit found that Congress lacked authority to detain the inmates. On appeal to the Supreme Court, the case became fodder for debate over one of the foundational decisions of constitutional law, Chief Justice John Marshall's 1819 ruling in McCulloch v. Maryland. In that case, the Supreme Court held that in assigning specific powers to the federal government, the Constitution also provided implicit authority to take related steps. "The Necessary and Proper Clause grants Congress broad authority to enact federal legislation," Justice Breyer wrote, as long as it "is rationally related to the implementation of constitutionally enumerated power" and is not otherwise prohibited. He observed that the Constitution does not specifically authorize Congress "to criminalize conduct" or imprison those who violate its laws, but nonetheless such power is uncontested. Civil commitment of those who are certified mentally ill and sexually dangerous is likewise related to the operation of a prison system, he wrote. The statute does not invade state police powers, the court found, because if state officials request, the federal government must immediately release such prisoners to them. In dissent, Justice Thomas wrote that the majority gave Congress too much leeway. "The Necessary and Proper Clause does not provide Congress with authority to enact any law simply because it furthers other laws Congress has enacted in the exercise of its incidental authority," he wrote. "The enumerated powers that justify a criminal defendant's arrest or conviction cannot justify his subsequent civil detention." The ruling was a victory for Ms. Kagan, who was nominated to the Supreme Court earlier this month. Write to Jess Bravin at jess.bravin@wsj.com
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