Throwing Away the Key

| Mon May 17, 2010 1:59 PM EDT

Among other things, the Adam Walsh Child Protection and Safety Act authorizes the federal government to keep "sexually dangerous" persons in prison even after their sentences have been completed. The Supreme Court ruled today that this is perfectly constitutional:

Solicitor General Elena Kagan successfully argued the government's case in front of the Supreme Court. Kagan has now been nominated to replace the retiring Justice John Paul Stevens.

Kagan in January compared the government's power to commit sexual predators to its power to quarantine federal inmates whose sentences have expired but have a highly contagious and deadly disease.

"Would anybody say that the federal government would not have Article I power to effect that kind of public safety measure? And the exact same thing is true here. This is exactly what Congress is doing here," she said.

Civil commitment is already common at the state level, but I can't say I'm thrilled about it there either. Kagan's logic, after all, applies to other kinds of criminal behavior too. If federal or state authorities can keep "sexually dangerous" prisoners behind bars forever on the grounds that they're mentally impaired and need to be quarantined, why not "economically dangerous" or "physically dangerous" prisoners too? As near as I can tell, special consideration for sex offenders is largely an effort to use an emotionally charged topic to justify the real heart of these statutes: lowering the standard for civil confinement from "mentally ill" to "mentally impaired." But once that's in place and well accepted, what's left to stop that same standard from being used elsewhere?

POSTSCRIPT: I had a particular point I wanted to make here, so I didn't get into the technical question at issue in this case. It wasn't a question of due process, since previous Supreme Court decisions have already held that civil commitment doesn't violate due process protections. That's why lots of states already have laws like this one. Rather, it was a question of whether the federal government also has the authority to mandate civil commitment, and this turns on an interpretation of the "necessary and proper" clause of the constitution. On narrow grounds, I think I probably support the majority's decision on this. But I'm not sure I support the court's previous decisions on the more fundamental issue of due process.