'Sexually dangerous' inmates can be held indefinitely, Supreme Court rules

By Robert Barnes
Washington Post Staff Writer
Tuesday, May 18, 2010

Government officials can detain "sexually dangerous" offenders even after their federal prison terms have been completed, the Supreme Court ruled Monday.

The court had previously decided that states can seek civil commitment of sex offenders they considered still dangerous when their prison terms had been fulfilled. Monday's 7 to 2 decision upholding a 2006 federal law said the Constitution grants the same power to the federal government.

"The federal government is the custodian of its prisoners," Justice Stephen G. Breyer wrote for the majority. "As federal custodian, it has the constitutional power to act in order to protect nearby (and other) communities from the danger federal prisoners may pose."

This is true even though the Constitution does not explicitly say so, the court decided.

"Neither Congress' power to criminalize conduct, nor its power to imprison individuals who engage in that conduct, nor its power to enact laws governing prisons and prisoners, is explicitly mentioned in the Constitution," Breyer wrote. "But Congress nonetheless possesses broad authority to do each of those things."

A lower court had held that the federal law, part of the Adam Walsh Child Protection and Safety Act passed in 2006, was unconstitutional, saying the government had exceeded its authority granted in Article I of the Constitution.

Solicitor General Elena Kagan argued the case for the government, saying its constitutionality was guaranteed by a provision that says Congress may "make all laws which shall be necessary and proper for carrying into execution" its other powers. Breyer relied several times on her assertions that the law was narrowly tailored to ensure that the federal government was simply being responsible for its prisoners, rather than encroaching on what is normally the duties and powers of states.

For instance, she said, the federal government steps in only when the attorney general has exhausted efforts to persuade states to take responsibility for the sexually dangerous prisoners about to be released.

Kagan was not in the courtroom as the justices released the opinion. She has turned over the day-to-day operations of the solicitor general's office to her deputy, Neal Katyal, while her nomination to replace retiring Justice John Paul Stevens is pending.

Despite the lopsided margin, there were signs of trepidation about the recognition of federal powers. Only Chief Justice John G. Roberts Jr., Stevens, and Justices Ruth Bader Ginsburg and Sonia Sotomayor joined Breyer's opinion in full. Justices Anthony M. Kennedy and Samuel A. Alito Jr. each wrote separately to agree with the outcome but to express reservations about reading the "necessary and proper clause" to give the federal government more power.

"I am concerned about the breadth of the court's language," Alito wrote.

Justices Clarence Thomas and Antonin Scalia dissented.

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