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At the Supreme Court today, a case about sex offenders and how long they can be kept behind bars. The justices heard arguments about whether the federal government has the power to hold them long after they have completed their prison terms.
NPR's legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: Involuntary civil commitment of an individual is a matter usually dealt with by the states. But in 2006, Congress authorized indefinite civil commitment of sex offenders in federal prison after they serve out their terms. Currently, there are 84 such prisoners confined to a treatment facility at a federal prison in North Carolina.
The men range from those who've completed their terms for violent sex offenses to those convicted of possession of pornography or even some who were not in prison for any sexual offense. Five of them challenged their indefinite confinement, and a federal appeals court in Richmond struck down the federal law, ruling unanimously that the statute usurps powers reserved for the states under the Constitution.
Today in the Supreme Court, Solicitor General Elena Kagan defended the statute, contending that the civil commitment of dangerous, mentally ill federal prisoners protects the public. She said the law is meant as a transitional measure that allows for transfer of dangerous sexual offenders to the states, where possible. But she conceded that for the most part, the states don't want these prisoners.
Justice Antonin Scalia was her main inquisitor. What power conferred upon the federal government by the Constitution permits this, he demanded. Answer: The power to run a responsible criminal justice system.
Justice Sotomayor: Under your theory, the federal government, merely because of their time and control of the individual, has an unlimited constitutional power to then civilly commit this dangerous person.
Kagan repeatedly told the justices that the federal power of civil commitment is limited and transitional so that dangerous prisoners who've served their time do not, quote, "fall between the cracks" if the states don't take them.
Justice Scalia: I find it difficult to believe that if the Federal Bureau of Prisons wrote the governor of the state into which this person is being released and said, we think the state ought to consider commitment proceedings - I find it difficult to believe that an elected governor or an elected attorney general would ignore that letter. Treatment is expensive, replied Kagan, $65,000 per prisoner, so the states don't want them.
Justice Scalia: I must say, I'm not impressed with that argument. This is a recipe for the federal government taking over everything. The states won't do it. Therefore, the federal government steps in and does it. Replied Kagan: Suppose there was some very contagious, drug-resistant form of tuberculosis in the prison system, and the states were not able to deal with quarantining people upon their release date, and Congress gave the federal government quarantining authority, would anyone say the federal government did not have the constitutional power to affect that kind of public safety measure? The exact same thing is true here.
Justice Stevens: Isn't it true that this statute applies even if a person has not been a sexual offender in the past - if the person is in prison for bank robbery, for instance? Answer: Yes, there have been 103 people who've been certified for commitment under this law. Twenty of them have been in prison for non-sexual offenses.
Arguing the other side of the case today was public defender Alan DuBois, representing five men who completed their prison terms but remain in federal prison after being civilly committed. DuBois faced immediate questions from Justice Stevens about the tuberculosis hypothetical. The public defender's answer was that the states, not the federal government, have responsibility for the public health function. Even Justice Scalia didn't buy that argument.
Justice Breyer: Could the federal government set up mental health centers to treat people not taken care of by the states? DuBois seemed to say no, prompting Scalia to hold his head in his hands, moaning, no, no, no, no. The government can spend money any way it wants, said the frustrated Scalia. The issue is whether they can force people into those hospitals.
Lawyer DuBois soon summarized the government's position as, because it's a good idea, it must be constitutional. Justice Ginsburg: It's more than a good idea. You're talking about endangering the health and safety of people. So the government has some responsibility, doesn't it? In that case, suggested Justice Scalia, couldn't the federal government give the states the money needed to take on civil commitments? Justice Stevens: I guess we could all think of a lot of different statutes that might be enacted, but we have to decide whether this one is constitutional.
Nina Totenberg, NPR News, Washington.