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Federalism and the Predatory Offender

By Eric L. Lipman

In a remarkably interesting opinion issued on Wednesday of this week, the U.S. Court of Appeals for the Eighth Circuit reversed a lower court?s decision that had declared the civil commitment portions of the Adam Walsh Act unconstitutional. Last May, then-Chief Judge of the U.S. District Court for the District of Minnesota, Paul Magnuson, concluded that the civil commitment provisions of the Act exceeded Congress? powers under the Commerce Clause.

Disagreeing, the appellate panel concluded that it was appropriate for federal authorities in Minnesota to indefinitely detain Roger Dean Tom for treatment, at a time that Tom was otherwise eligible for supervised release from prison. The panel concluded that:

[I]t is not unreasonable to assume that upon completion of any prison term convicted sex offenders will travel outside of the state of incarceration, and may well have the intent to commit a federally prescribed sexual offense. As we have already explained, Congress is empowered to regulate the channels of interstate commerce and people or things in interstate commerce to prevent their use for immoral and illegal purposes. [The civil commitment provision of the Adam Walsh Act] appears to be "aimed at preventing the specific harm to the community proscribed by the [federal sex crime] statutes.?

To my mind, the panel decision raises three interesting and noteworthy questions.

First, will either an en banc panel of the Eighth Circuit or the U.S. Supreme Court take an interest in this topic? In upholding the civil commitment provisions, the deciding panel sets up a potential circuit conflict with the U.S. Court of Appeals for the Fourth Circuit. In February of last year, in a case denominated as United States v. Comstock, a panel of the Fourth Circuit ruled that the civil commitment portions of the Adam Walsh Act do ?indeed lie beyond the scope of Congress?s authority. The Constitution does not empower the federal government to confine a person solely because of asserted ?sexual dangerousness? when the Government need not allege (let alone prove) that this ?dangerousness? violates any federal law.?

Second, if the Eighth Circuit panel is correct, and involuntary sequestering an offender for treatment is permissible so as to guard against the danger that he or she may use interstate mail, highways, or telephone service as part of the commission of a future crime; what would be the outer reaches of Congressional power in this area? Would it be the Third Amendment ? namely, that Congress could not oblige federal agents to be housed with convicted sex offenders who are under supervised release ? but everything else would be permissible?

Lastly, a large ? even a helpful ? federal role in the treatment and detention of violent offenders begs the question of whether the approaches developed by agencies in Washington, D.C. are the best and the most effective. In my view, perhaps in a Lake Wobegon sort-of way, Minnesota?s sex offender treatment approaches and supervision seem ?above average;? and Congress' prescriptions in this area seem more like lowest-common-denominators amongst the states than ?best practices.? I doubt whether Congress is likely to improve upon Minnesota's methods and results.

The appellate panel?s complete analysis in United States v. Tom is accessible here.

Note: In a parallel decision, also issued on Wednesday, the Eighth Circuit turned away the commerce clause, APA and non-delegation doctrine challenges of a Nebraska offender to the registration requirements Adam Walsh Act. While the challenges to the registration provisions were less in doubt than the challenges to civil commitment provisions, the panel's decision in United States v. Hacker, is accessible here.

Full post as published by Within the Scope on May 16, 2009 (boomark / email).