Opinion · Court of Appeals for the First Circuit
United States v. Volungus
United States v. Volungus, 595 F.3d 1 (1st Cir. 2010)
- Type
- Opinion
- Court
- Court of Appeals for the First Circuit
- Jurisdiction
- Federal
- Date
- 2010-01-08
- Topic
- general
concluding that a recantation was “especially unreliable” because it was made more than a decade after the witness identified the defendant as the perpetrator | concluding that a recantation was “especially unreliable” because it was made more than a decade after the witness identified the defendant as the perpetrator | “[A]fter Chambers, the modified categorical approach most naturally applies to statutes which proscribe different types of behavior” | “When the federal government exercises any of the powers granted to it by the Constitution, it is not a valid objection that the exercise may bring with it some incidents of the [state’s] police power.” | "When the federal government exercises any of the powers granted to it by the Constitution, it is not a valid objection that the exercise may bring with it some incidents of the [state's] police power." | “[A]s long as the ‘ultimate question for disposition’ has 4 remained the same in state and federal court, as it has here, ‘variations in the legal theory 5 or factual allegations urged in its support’ are entirely legitimate.” (citations omitted) | discussing similarities between § 4248 and § 4246
Citator
- Cited by
- 25 opinions
United States Court of Appeals
For the First Circuit
No. 09-1596
UNITED STATES OF AMERICA,
Petitioner, Appellant,
v.
JOHN CHARLES VOLUNGUS,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Boudin and Selya, Circuit Judges,
and Laplante,* District Judge.
Samantha L. Chaifetz, Attorney, Appellate Staff, Civil
Division, United States Department of Justice, with whom Tony West,
Assistant Attorney General, Michael K. Loucks, Acting United States
Attorney, Beth S. Brinkmann, Deputy Assistant Attorney General, and
Mark B. Stern, Attorney, Appellate Staff, were on brief, for
appellant.
Judith H. Mizner, Assistant Federal Public Defender, for
appellee.
January 8, 2010
*
Of the District of New Hampshire, sitting by designation.
SELYA, Circuit Judge. We are called upon to determine
the constitutionality of a provision of the Adam Walsh Child
Protection and Safety Act (Walsh Act), Pub. L. No. 109-248, 120
Stat. 587 (2006), a recently enacted federal law that provides in pertinent part for the civil commitment of a sexually dangerous person already in federal criminal custody in lieu of that person's release upon service of his full sentence.Id.
§ 320, 120 Stat. at 619-22, codified at18 U.S.C. §§ 4241
, 4247-4248 (which we shall call, as a shorthand, section 4248). The district court concluded that Congress lacked constitutional authority to enact this civil commitment provision and, therefore, dismissed the government's petition to enforce it against the respondent, John Charles Volungus. United States v. Volungus,599 F. Supp. 2d 68, 77-78, 80
(D. Mass. 2009). The government appeals from that ruling.
After careful consideration, we hold that the civil
commitment provision comes within the legitimate scope of
congressional power conferred by the Necessary and Proper Clause of
the federal Constitution. Consequently, we reverse the decision
below and remand for further proceedings.
I. BACKGROUND
The challenged provision of the Walsh Act authorizes the
government to seek court-ordered civil commitment of "sexually
dangerous" persons who are in the custody of the federal Bureau of
Prisons (BOP). 18 U.S.C. § 4248
(a). A "sexually dangerous person"
within the meaning of the Walsh Act is one "who has engaged or
-2-
attempted to engage in sexually violent conduct or child
molestation and who is sexually dangerous to others." Id.
§ 4247(a)(5). A person is "sexually dangerous to others" if he
"suffers from a serious mental illness, abnormality, or disorder as
a result of which he would have serious difficulty in refraining
from sexually violent conduct or child molestation if released."
Id. § 4247(a)(6).
Mechanically, the Walsh Act's civil commitment provision
operates in the following manner. A responsible federal official
(the Attorney General, the director of the BOP, or the designee of
either) may initiate commitment proceedings by petitioning the
federal district court in the judicial district in which a targeted
person is confined. Id. § 4248(a). The petition must certify to
the court that the target, whom we shall call the respondent, "is
a sexually dangerous person." Id. The filing of the petition
stays the respondent's release from federal custody,
notwithstanding the expiration of his sentence, "pending completion
of procedures" described in the Walsh Act. Id.
Those procedures include an opportunity for the district
court to order a mental health examination and to hold a "hearing
to determine whether the [respondent named in the petition] is a
sexually dangerous person." Id. § 4248(a)-(c); see id. § 4247(b)-
(c). At the hearing, the respondent is entitled to counsel and to
the opportunity "to testify, to present evidence, to subpoena
-3-
witnesses on his behalf, and to confront and cross-examine" the
government's witnesses. Id. § 4247(d).
In prosecuting such a petition, the government has the
burden of proving "by clear and convincing evidence that the
[respondent] is a sexually dangerous person." Id. § 4248(d). If
the court finds that the government has carried this heavy burden,
it must commit the respondent to the custody of the Attorney
General. Id. The Attorney General is directed to defer to
available state custody; that is, to "release the [respondent] to
the appropriate official of the State in which [he] is domiciled or
was tried if such State will assume responsibility for his custody,
care, and treatment." Id. In addition, the Attorney General is
required "to make all reasonable efforts to cause such a State to
assume responsibility." Id. If such efforts prove unsuccessful,
the Attorney General must retain federal custody and place the
respondent in a suitable facility for treatment until either an
eligible state "will assume . . . responsibility" or the
respondent's condition is ameliorated to the extent that "he can
safely be released, either conditionally or unconditionally." Id.
The Walsh Act provides an array of post-commitment
safeguards to ensure periodic reevaluation of a committed person's
overall mental condition, potential dangerousness, and suitability
for release. These include a requirement for an annual report
setting forth a recommendation for or against continued commitment.
Id. § 4247(e)(1)(B). If the director of the facility in which the
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person is confined determines that he is no longer sexually
dangerous, the director must notify the court, which must either
order the person's release or schedule a hearing to determine
whether release is appropriate. Id. § 4248(e). The person
himself, through counsel, may petition the court for such a
hearing, but not within 180 days after a judicial determination
that commitment is appropriate. Id. § 4247(h).
We turn now from the general to the specific. The
respondent here, Volungus, was convicted of receipt of child
pornography by means of a computer, possession of child
pornography, and use of a facility of interstate commerce to
attempt to persuade a minor to engage in a sexual act. See 18 U.S.C. §§ 2252
(a)(2), 2252A(a)(5)(A), 2422(b). In June of 1999,
the United States District Court for the Western District of
Kentucky sentenced him to serve a 53-month incarcerative term, to
be followed by a period of supervised release. The respondent
served his initial prison sentence and embarked on his term of
supervised release. He violated the conditions of his supervised
release and, as a result, was haled into the United States District
Court for the Northern District of New York. That court revoked
the supervised release term and remanded him to federal prison for
an additional 23-month period of incarceration.
Over time, the BOP housed the respondent in a number of
different correctional facilities. The last of these was the
Federal Medical Center Devens, in Ayer, Massachusetts (a prison
-5-
hospital). The respondent was in custody there when the
government, before the expiration of his extended term of
immurement, commenced a civil commitment proceeding under section
4248 in the United States District Court for the District of
Massachusetts. The respondent's release from prison, scheduled to
take place when the sentence imposed following the revocation of
supervised release expired on February 15, 2007, was stayed pending
the outcome of the commitment proceeding. See 18 U.S.C. § 4248
(a).
The respondent moved to dismiss the proceeding, making a
facial challenge to the constitutionality of section 4248. The
district court obliged, declaring the Walsh Act's civil commitment
regime unconstitutional because Congress lacked the authority to
enact it. See Volungus, 599 F. Supp. 2d at 77-78
. The court,
however, stayed the respondent's release pending the consummation
of this appeal. The respondent remains at Devens.
In this venue, the government argues that Congress had
constitutional authority to enact section 4248 under both the
Commerce Clause and the Necessary and Proper Clause. The two
courts of appeals that thus far have examined the constitutionality
of section 4248 have reached divergent conclusions. Compare United
States v. Tom, 565 F.3d 497, 504-05
(8th Cir. 2009) (upholding the provision), with United States v. Comstock,551 F.3d 274, 284
(4th Cir. 2009) (contra). The Supreme Court has granted certiorari in Comstock to resolve this conflict.129 S. Ct. 2828
(2009). We
decide this appeal now, however, because the timing of the Supreme
-6-
Court's decision is uncertain, the respondent remains confined
despite the expiration of his criminal sentence, and other
petitions are currently being litigated in the courts of this
circuit.
II. ANALYSIS
We review de novo challenges to the constitutionality of
federal statutes. United States v. Hussein, 351 F.3d 9, 14
(1st Cir. 2003); United States v. Bongiorno,106 F.3d 1027, 1030
(1st
Cir. 1997). Before undertaking this review, we acknowledge some
first principles.
As long as Congress acts within the sphere of its
constitutional authority, it has the power to make criminal laws
and to fashion penalties for noncompliance therewith. See Gonzales
v. Raich, 545 U.S. 1, 15-17
(2005); Champion v. Ames,188 U.S. 321
, 358-60 (1903); United States v. Fox,95 U.S. 670, 672
(1877). In the criminal law arena, the Commerce Clause, U.S. Const. art. I, § 8, cl. 3, typically furnishes the source of this congressional power. See, e.g., United States v. Lewis,554 F.3d 208
, 214 n.7 (1st Cir. 2009) (discussing source of Congress's power to outlaw transmission of child pornography); United States v. Meade,175 F.3d 215, 224-25
(1st Cir. 1999) (discussing source of Congress's
power to criminalize possession of a firearm by one subject to an
anti-harassment order).
A certain degree of ancillary authority accompanies the
power to enact and enforce criminal laws. One example of this
-7-
ancillary authority is Congress's power to construct and operate a
prison system. See, e.g., Ex parte Karstendick, 93 U.S. 396, 400
(1876); Estabrook v. King,119 F.2d 607, 610
(8th Cir. 1941). A related (and subsidiary) example is Congress's authority to commit mentally ill prison inmates while they are in federal custody. See, e.g., Greenwood v. United States,350 U.S. 366, 375
(1956); see also Jackson v. Indiana,406 U.S. 715, 726
(1972) (acknowledging that Greenwood settled any question of the federal government's "substantive power to commit"). These ancillary strands of power descend from the Necessary and Proper Clause, U.S. Const. art. I, § 8, cl. 18. See Greenwood,350 U.S. at 375
.
The Necessary and Proper Clause imbues Congress with a
measure of legislative discretion to enact laws that are incidental
to the furtherance of legislation authorized under more specific
powers conferred by the Constitution. See McCulloch v. Maryland,
17 U.S. (4 Wheat.) 316, 414-15, 417, 420
(1819). The Clause is a bit of an anomaly. Although the Constitution enshrines the principle of a limited federal government, see Gregory v. Ashcroft,501 U.S. 452, 457
(1991), the Necessary and Proper Clause injects some legislative flexibility into the equation. It is a broad grant of incidental power that enables Congress to further constitutionally legitimate ends. See Sabri v. United States,541 U.S. 600, 605
(2004); Jinks v. Richland County,538 U.S. 456
, 462-
63 (2003); see also The Federalist No. 33 (Alexander Hamilton). As
Chief Justice Marshall aptly observed: "Let the end be legitimate,
-8-
let it be within the scope of the constitution, and all means which
are appropriate, which are plainly adapted to that end, which are
not prohibited, but consist with the letter and spirit of the
constitution, are constitutional." McCulloch, 17 U.S. (4 Wheat.) at 421
.
In this instance, the respondent served time in federal
prison following his conviction for violating a panoply of federal
criminal laws. Congress's power to enact those laws flowed from
the Commerce Clause, and the respondent does not challenge their
provenance. The inquiry here involves the constitutionality of a
statutory scheme of federal civil commitment that operates after a
defendant has been convicted, sentenced, and reached the brink of
release.
That the operation of the Walsh Act is federal in nature
is an important datum. The Supreme Court has made it transparently
clear that a state may civilly commit a prisoner beyond the
expiration of his sentence if the prisoner is determined under
appropriate procedures to be sexually dangerous. See Kansas v.
Hendricks, 521 U.S. 346, 350, 360, 371
(1997). But the source of the federal government's authority to commit is less clearly defined, and the statutory provision here in issue is limited in its application to federal action vis-à-vis persons in federal custody. See18 U.S.C. § 4248
(a). The question before us, then,
is whether section 4248's civil commitment scheme is an appropriate
exercise of congressional power.
-9-
The government argues that it is, pointing to both the
Commerce Clause and the Necessary and Proper Clause. The
respondent argues that it is not. In our view, federal authority
to commit civilly, if constitutional at all, would seem to fit most
comfortably among the auxiliary, implied powers conferred by the
Necessary and Proper Clause. Consequently, we focus our inquiry
there.
The civil commitment scheme spelled out in section 4248
is new, but it is not sui generis. Since the nineteenth century,
Congress has provided for the commitment of convicts who, while in
federal custody, are determined through appropriate procedures to
be mentally ill. See, e.g., Act of Aug. 7, 1882, ch. 433, 22 Stat. 302
, 330; Act of June 23, 1874, ch. 465, § 1,18 Stat. 251
, 251. More than six decades ago, Congress passed legislation dealing with this issue — and that legislation, in modified form, remains in force. See Act. of Sept. 7, 1949, ch. 535, § 1,63 Stat. 686
, 686- 88 (codified as amended at18 U.S.C. §§ 4244-4247
); see also Act of June 25, 1948, ch. 645,62 Stat. 683
, 855-56 (codified as amended at18 U.S.C. §§ 4241-4243
). This legislation provides that persons in federal criminal custody, including those whose incarcerative terms are about to expire, may be civilly committed upon a determination that they suffer from a mental disease or defect and are dangerous. See18 U.S.C. §§ 4245-4246
.
Enacted many years prior to the passage of the Walsh Act,
this earlier regime — a regime that we shall call, as a shorthand,
-10-
section 4246 — covered a wide array of mentally ill persons in
federal custody, including pretrial detainees, persons who had been
convicted and sentenced, and persons tried but found not guilty by
reason of insanity. See id.
§§ 4241-4247.
When a federal pretrial detainee challenged section 4246,
the Supreme Court upheld it (and, thus, effectively upheld the
potentially indefinite pretrial commitment of a mentally
incompetent defendant). Greenwood, 350 U.S. at 375
. In so doing, the Court endorsed the proposition that Congress may provide for the civil commitment of a person in federal custody who would be dangerous to society if released. Seeid. at 374
; see also Jackson,406 U.S. at 732
; cf. Jones v. United States,463 U.S. 354, 368-70
(1983) (stating that indefinite commitment of a dangerous person acquitted by reason of insanity does not violate due process); United States v. DeBellis,649 F.2d 1, 3
(1st Cir. 1981) (similar). The Court reasoned that the law providing for civil commitment was constitutional, under the Necessary and Proper Clause, as "an assertion of authority, duly guarded, auxiliary to incontestible national power" to prosecute for federal crimes. Greenwood,350 U.S. at 375
.
We read Greenwood to hold, as a general matter, that
civil commitment under a federal scheme targeted to those in
federal criminal custody is within the scope of Congress's
constitutional authority under the Necessary and Proper Clause.
The respondent strives to limit this generalization by pointing out
-11-
that Greenwood involved a pretrial detainee, whereas he has at this
juncture served his entire sentence. As we explain below, this
distinction does not make a dispositive difference.
Both section 4246 and section 4248 are geared toward
preventing the release of persons in federal custody who would, if
set free, be dangerous to society because of mental illness.
Compare 18 U.S.C. § 4246
(a) (defining dangerousness as resulting "from a mental disease or defect"), withid.
§ 4247(a)(6) (defining
sexual dangerousness to others as rooted in "a serious mental
illness, abnormality, or disorder"). The primary difference
between these two provisions is the condition that triggers
possible commitment. On the one hand, section 4246 is triggered by
the prospect of generalized danger arising from mental illness,
traditionally conceived. On the other hand, section 4248 is
triggered by discrete dangers arising from a particular
manifestation of mental illness: sexually dangerous proclivities.
In a sense, then, section 4248 is simply a specific application of
section 4246, designed to forestall dangers presented by those who
do not necessarily meet the criteria for commitment under the more
general section 4246 scheme. Cf. Hendricks, 421 U.S. at 350-51
(explaining that state legislation specific to sexual dangerousness
was enacted to bridge an analogous gap). Seen in that light,
Greenwood is a formidable precedent.
In all events, the similarities between the two
provisions are more salient than the differences. Most
-12-
importantly, under both provisions the authority to commit civilly
is auxiliary to the longstanding federal power to prosecute and
punish federal crimes. Greenwood places that authority within the
compass of the Necessary and Proper Clause.
In point of fact, the case for constitutionality here may
be even stronger than in Greenwood. There, the defendant was
merely charged with having committed a federal crime. 350 U.S. at 369
. Here, however, the respondent has already been found guilty of a crime. That data point is telling: "[t]he fact that a person has been found, beyond a reasonable doubt, to have committed a criminal act certainly indicates dangerousness." Jones,463 U.S. at 364
; see Hendricks,521 U.S. at 358
. Thus, civil commitment of
one in the respondent's position entails proof of both future
dangerousness and past dangerousness.
The respondent counters that, in working the
constitutional calculus, the Greenwood Court noted that federal
authority over the defendant "persist[ed]" because he was being
detained pretrial when committed. 350 U.S. at 375
. In contrast, the respondent has now served his sentence. Seizing on this sequencing, the district court distinguished Greenwood on the ground that federal power over the defendant there was unexhausted. Volungus,599 F. Supp. 2d at 75-76
.
This attempted distinction is more illusory than real.
The government filed its petition for civil commitment in this case
before the respondent's sentence had run its course. From that
-13-
time forward, the respondent remained, lawfully, in the
uninterrupted legal custody of the BOP. See Rumsfeld v. Padilla,
542 U.S. 426, 435, 439
(2004); Wales v. Whitney,114 U.S. 564
, 572-
74 (1885). No exhaustion has occurred because the government's
authority over the respondent is tied to its lawful custody of him,
up to the present time and continuing.
To be sure, it can be argued that continued confinement,
beyond the expiration of the respondent's sentence, is
unconstitutional. But the respondent's initial confinement was
indisputably lawful, and when the government detains an individual
involuntarily, it enters into a special relationship with that
individual. As an integral part of that relationship, the
government assumes a duty to care for and protect the individual
while he remains in its custody. See DeShaney v. Winnebago County
Dep't of Soc. Servs., 489 U.S. 189, 198-200
(1989); Vélez-Diaz v. Vega-Irizarry,421 F.3d 71, 80-81
(1st Cir. 2005); White v. United States,780 F.2d 97, 103
(D.C. Cir. 1986); cf. United States v. Muniz,374 U.S. 150, 164-65
(1963) (allowing federal prisoner to
sue for negligence under the Federal Tort Claims Act).
This custodial duty typically faces inward. The
government, for example, must provide the detained person with
shelter, sustenance, and medical care. See, e.g., Farmer v.
Brennan, 511 U.S. 825, 832
(1994); DeShaney,489 U.S. at 199
; Youngberg v. Romeo,457 U.S. 307, 315
(1982). Nevertheless, some
aspects of this duty face outward. For example, the government may
-14-
in certain circumstances have a responsibility "to avert the public
danger likely to ensue from the release of . . . dangerous
detainees." United States v. S.A., 129 F.3d 995, 999
(8th Cir. 1997); see White,780 F.2d at 106
(finding a federal mental institution negligent in permitting a dangerous inmate to leave its grounds); see also Jones,463 U.S. at 370
(stating that the
Constitution permits commitment of a defendant acquitted by reason
of insanity "until such time as he . . . is no longer a danger to
himself or society"); cf. Restatement (Second) of Torts § 319
(1965) ("One who takes charge of a third person whom he knows or
should know to be likely to cause bodily harm to others if not
controlled is under a duty to exercise reasonable care to control
the third person to prevent him from doing such harm.").
The commitment scheme surrounding section 4248 is
designed to facilitate the performance of this duty. That scheme
is a variation of the protocol set out in section 4246 — a protocol
that has long been thought constitutional. See United States v.
Pinson, 542 F.3d 822, 838
(10th Cir. 2008); S.A.,129 F.3d at 999
; United States v. Moses,106 F.3d 1273, 1280
(6th Cir. 1997); United States v. Sahhar,56 F.3d 1026, 1029
(9th Cir. 1995).
Congress may act in divers ways to ensure the proper
discharge of the government's custodial duty. See, e.g., Muniz,
374 U.S. at 164-65
; Ponzi v. Fessenden,258 U.S. 254, 262-64
(1922); United States v. Quintana-Aguayo,235 F.3d 682
, 687 n.10
(1st Cir. 2000). Section 4248 reflects Congress's recognition of
-15-
the outward-facing aspects of this custodial duty. The statute
allows the government to retain custody of a prisoner who would be
dangerous to others if released. That step seems to be plainly
adapted to the proper discharge of the government's custodial duty.
See Sahhar, 56 F.3d at 1029
; DeBellis,649 F.2d at 3
; see also United States v. Salerno,481 U.S. 739, 747-49
(1987). We agree with Justice Stevens who, though dissenting in Salerno, was compelled to concede how difficult it would be "to accept the proposition that the Government is without power to detain a person when it is a virtual certainty that he or she would otherwise kill a group of innocent people in the immediate future."481 U.S. at 768
(Stevens, J., dissenting).
The most closely analogous cases — those under section
4246 — are consistent with this view. Civil commitment proceedings
under that (earlier) statute, involving mentally ill prison inmates
in federal custody, have withstood challenges even though they
result in federal commitment that persists beyond the expiration of
the committed person's sentence. See, e.g., United States v.
Williams, 299 F.3d 673, 674-75, 678
(8th Cir. 2002); United States v. Anderson,104 F.3d 359
(4th Cir. 1996) (table); United States v. Woods,970 F. Supp. 711, 715-17, 722
(D. Minn. 1997). These cases
reinforce the notion that the government's custodial
responsibilities with respect to a federal prison inmate do not
come to an abrupt end upon the expiration of the inmate's sentence.
In cases in which the federal government has uninterrupted custody
-16-
of a person who is demonstrably dangerous to others, it is
appropriate for the government to take steps to mitigate that
danger when the expiration of a sentence looms.
To say more on this subject would be supererogatory.
Because Congress's formulation of section 4248 constitutes a
reasonable effort to discharge an important aspect of the
government's custodial duty, it falls within Congress's
constitutional power to pass laws that are in service to its well-
settled authority to make and enforce criminal laws and to maintain
prisons.1
We have one final task. Even legislation that is
otherwise necessary and proper must not stray past the boundaries
of our system of federalism. See Jinks, 538 U.S. at 464
. Even though civil commitment is traditionally a prerogative of the states, Tom,565 F.3d at 506
; United States v. Lapi,458 F.3d 555, 563
(7th Cir. 2006), this does not mean that a federal civil commitment scheme is always and inevitably an impermissible infringement on traditional state power. See Greenwood,350 U.S. at 375
(characterizing the regime created by section 4246 as a valid assertion of federal power); Sahhar,56 F.3d at 1029
1
This means, of course, that the district court erred in
treating section 4248 as a mechanism for confinement untethered to
the respondent's original imprisonment. Volungus, 599 F. Supp. 2d at 78
. Civil commitment is auxiliary to the respondent's sentence
and, thus, falls within the broad grant of implied authority that
flows from the Necessary and Proper Clause.
-17-
(explaining that section 4246 is not "an invasion of the general
field of lunacy").
The decisive consideration is whether the federal scheme
is "duly guarded" and sufficiently respectful of state sovereignty.
Greenwood, 350 U.S. at 375
. We believe that section 4248 passes
through this screen. Taken as a whole, it constitutes a carefully
circumscribed foray into the field of civil commitment. It is
jurisdictionally limited and deferential to the primacy of state
custody whenever possible.
It cannot be gainsaid that civil commitment under section
4248 has some trappings of the police power. Nevertheless, that
fact does not argue persuasively in favor of striking it down.
When the federal government exercises any of the powers granted to
it by the Constitution, it is not a valid objection that the
exercise may bring with it some incidents of the police power. See
Raich, 545 U.S. at 29
& n.38; Lambert v. Yellowley,272 U.S. 581, 596
(1926). It seems especially appropriate to apply this tenet
where, as here, a federal statute seeks merely to assist in
carrying out the federal government's custodial responsibilities.
We emphasize that section 4248 intrudes no further into
the field of civil commitment than is reasonably necessary to
discharge these custodial responsibilities. Under this provision,
as under section 4246, federal custody is a precondition to the
inauguration of commitment proceedings. Thus, section 4248 is
-18-
limited in application to persons with whom the federal government
has a preexisting relationship.
Section 4248's grasp is as modest as its reach. For
instance, the provision requires that a person committed thereunder
be released when he is determined to be no longer sexually
dangerous. 18 U.S.C. § 4248
(d)(2). Such limitations, which ensure that a legitimate federal interest remains implicated throughout the duration of a commitment, are important. See United States v. Perry,788 F.2d 100, 110
(3d Cir. 1986) (upholding a federal
commitment statute in part because the statute recognized "the
limits of congressional authority [by providing] for release of the
detainee when the federal reason for detention ceases").
Furthermore, section 4248 defers to state custody
whenever possible. Its commitment scheme operates as a gap-filler
in situations in which states either cannot or do not wish to
assume responsibility for sexually dangerous persons in federal
custody. See United States v. Shields, 522 F. Supp. 2d 317, 328
(D. Mass. 2007); cf. S.A.,129 F.3d at 1000
(upholding section 4246
in part because that statute "applies only in those unique
situations where suitable arrangements for state care and custody
are unavailable").
Let us be perfectly clear. Although section 4248 is
reminiscent in these respects of section 4246, it does not fully
replicate the federal-state balance that is struck in section 4246.
There are, for example, subtle differences in language with respect
-19-
to the efforts required of the Attorney General to find suitable
state placements for persons subject to federal civil commitment.
Compare 18 U.S.C. § 4246
(a), (d), withid.
§ 4248(a), (d). But these differences pale in comparison to the common expression, shared by section 4248 and section 4246, of a clear preference for state placement, if and when available, of those committed federally. Both statutes require the Attorney General to make "all reasonable efforts" to cause a state to assume control over the committed person. Id. §§ 4246(d), 4248(d). Even if a state at first demurs, section 4248 directs the Attorney General to release the committed person to the state if the state later reverses its field. Id. § 4248(d)(1). On balance, then, we agree with the Eighth Circuit that the differences between sections 4246 and 4248 are not significant enough to alter the constitutional calculus. Tom,565 F.3d at 507
. We thus follow the lead of the Greenwood Court,350 U.S. at 375
, and hold that section 4248's civil
commitment scheme passes constitutional muster.
III. CONCLUSION
We need go no further. The exercise of a federal
commitment power embodied in section 4248 operates to prevent the
release into society at large of sexually dangerous persons as to
whom the federal government has custodial responsibilities.
Because that exercise is limited to cases in which the federal
government has a custodial duty, and because the federal scheme
respects state prerogatives in the field of civil commitment, we
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conclude that it is consistent with both the letter and spirit of
the Constitution.
We reverse the order of the district court and remand to
that court for further proceedings consistent with this opinion.
— Dissenting Opinion Follows —
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LAPLANTE, District Judge (dissenting). Unlike my
distinguished colleagues, I have serious concerns about whether the
Walsh Act’s provision authorizing federal civil commitment of
sexually dangerous prisoners beyond the end of their federal
criminal sentences is, in fact, necessary and proper to the
exercise of Congress’s enumerated powers -- or merely an
encroachment on the states’ traditional power to regulate sexually
dangerous conduct. See United States v. Comstock, 551 F.3d 274
(4th Cir. 2009) (declaring that provision unconstitutional), cert. granted,129 S. Ct. 2828
(2009). Neither the Supreme Court’s specific decision in Greenwood v. United States,350 U.S. 366
(1956) (upholding federal detention of incompetent defendants
awaiting trial on federal charges), nor its broader jurisprudence
under the Necessary and Proper Clause, U.S. Const. art. I, § 8, cl.
18, provides a clear answer to this difficult question.
Given that the Supreme Court is hearing oral argument in
Comstock on January 12, 2010, and is likely to answer this question
within the next six months, I would prefer to wait for its ruling
rather than settle for either of the imperfect alternatives
available to us now: remanding and creating potentially unnecessary
work for the district court, or conversely declaring a major
federal statute unconstitutional on debatable grounds. While it is
true that the respondent here, like the respondent in Comstock,
remains in federal custody pending the outcome on appeal, the
majority’s decision upholding the statute means that he will stay
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there either way, at least in the short term. On balance, I see
less harm than good in waiting for the Supreme Court. I
respectfully dissent.
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