Supreme Court Says Feds Can Detain Sex Offenders Indefinitely: Why That's Dangerous

The U.S. Supreme Court's 7-2 ruling this week in U.S. v. Comstock, which declared that the federal government has the right to hold convicted sex offenders in "civil commitment" even after they have completed their prison sentences, has alarmed civil libertarians, many of whom are asking: If the government can keep sex offenders in preventive custody as long as they remain "dangerous," what will stop it from doing the same with terror suspects? The rights of terrorists -- like those of sex offenders -- might matter little to the average American, but the implications for a free society are unmistakeably dangerous.

The possibility that Comstock could help justify the legal black holes at Bagram or Guantanamo is certainly a concern worth raising, particularly given the Obama administration's embrace of indefinite detention. But it seems equally important to consider the immediate implications for the prisoner population that may be affected by this law. It could be bigger than we think.

Blandly known as Section 4248, the legal provision upheld by the court this week was a product of the Adam Walsh Child Protection and Safety Act of 2006, the sweeping legislation that created the massive National Sex Offender Registry and strengthened laws prohibiting child pornography. Section 4248 holds that a convicted sex offender who is determined to be "sexually dangerous" can be detained indefinitely by the federal government, under order of the U.S. Attorney General. This was not an unprecedented idea: The Supreme Court had previously upheld the power of the states to "civilly commit" convicted sex offenders, in 1997, in Kansas v. Hendricks. In 2007, the Charlotte News and Observer estimated that some 2,700 state prisoners were being held in civil commitment.

But the new legal statute presented by the Adam Walsh Act was much more sweeping than anything addressed by Hendricks. An amicus brief submitted by the National Association of Criminal Defense Lawyers (NACDL) on behalf of the respondents in Comstock points out that, for example, whereas states must provide a psychiatric evaluation of those labeled sexually dangerous, the federal government need only suggest that a district court "may order … a psychiatric or psychological examination of the defendant." If the court elects not to, it can "proceed directly to a hearing and make a determination regarding sexual dangerousness without any evaluation of the individual's mental condition having been conducted."

What's more, states that want to civilly commit a sex offender must prove their dangerousness beyond a reasonable doubt, the same standard as a criminal conviction. Section 4248, on the other hand, requires merely that there be "clear and convincing evidence" that a person is sexually dangerous -- even if he or she was never actually convicted of a sex crime in the first place.

Which gets to the most alarming part. The NACDL pointed out in its brief that, whereas the Kansas statute "applied only to persons previously 'convicted of or charged with' at least one of twelve specifically defined sexually violent offenses," Section 4248 makes no such specification, basically authorizing "certification and potential commitment of a significant number of persons with no criminal history of sexual misconduct."

As attorney and civil libertarian Wendy Kaminer wrote for the Atlantic this week, this means that "the government is empowered to imprison (or 'civilly' commit) people indefinitely without bothering to try them in criminal court or in any other proceeding in which they are afforded the rights of a defendant in a criminal case, even if they have never been convicted of any sex crimes."