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United States: Federal Civil Commitment to Extend Custody of “Sexually Dangerous” Prisoners Is Unconstitutional

(Jan. 26, 2009) The U.S. Court of Appeals for the Fourth Circuit ruled on January 8, 2009, that a law allowing federal authorities to keep “sexually dangerous” prisoners in custody after their sentences are completed exceeds Congress's constitutional authority.

A provision in the Adam Walsh Child Protection and Safety Act of 2006 authorizes the Federal Government to civilly commit in a federal facility any “sexually dangerous” person in the custody of the Bureau of Prisons after that person has served his sentence. Prisoners who had completed their sentences but who remained imprisoned under this provision challenged it as unconstitutional. Government prosecutors defended the law as authorized by the Necessary and Proper and Interstate Commerce Clauses of the U.S. Constitution.

The Fourth Circuit panel ruled that the provision exceeds the Federal Government's powers under the Constitution. The court observed that civil commitment of the mentally ill has traditionally been within the purview of the states and noted that the Federal Government, unlike the states, has no general police or parens patriae power. With respect to the Necessary and Proper Clause, the court said that that clause only confers the authority to carry out powers elsewhere enumerated in the Constitution. As to the Commerce Clause, the court ruled that sexual dangerousness is not a form of economic activity that affects interstate commerce and thus, under Supreme Court precedent, the provision is not a valid exercise of Congress's Commerce Clause power.

The court stated that the Federal Government can notify states regarding the release of persons it deems sexually dangerous to suggest that the states institute civil commitment proceedings and can allocate funds to the states for this purpose, but the civil commitment provision at issue violates the Constitution. (United States v. Comstock, No. 07-7671 (4th Cir. Jan. 8, 2009), available at