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

By Robert Barnes
Washington Post Staff Writer
Tuesday, May 18, 2010; A06

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.

Nothing in the Constitution "expressly delegates to Congress the power to enact a civil-commitment regime for sexually dangerous persons," Thomas wrote, adding that "the Constitution does not vest in Congress the authority to protect society from every bad act that might befall it."

The case is United States v. Comstock.

Child custody decision

In another decision announced Monday, a complex child custody case split the court in unusual ways, with the majority ruling that, under an international treaty meant to discourage child abduction by battling parents, a Texas mother was wrong to bring her child from Chile to the United States.

The Hague Convention demands that the boy be returned to Chile, the court ruled 6 to 3. But Kennedy, writing for the majority, said the boy's mother, Jacquelyn Vaye Abbott, could argue to a lower court for an exception that it is not in the boy's best interest to have to leave the United States.

Jacquelyn Abbott is an American, her estranged husband is British, and their child was born in Hawaii. The couple moved to Chile because of Timothy Abbott's work, and they separated in 2003. Chilean courts awarded the mother daily custody of the child but gave the father visitation rights.

It also conferred on Timothy Abbott a "ne exeat" right, which means the child's mother could not take him out of Chile without his father's consent.

She did anyway, and a private investigator found the mother and child in Texas in 2006.

Jacquelyn Abbott said that, notwithstanding the Hague Convention on the Civil Aspects of International Child Abduction, she had the right to remove the child because she had sole custody. Lower U.S. courts agreed.

But Kennedy, frequently citing a dissenting opinion that Sotomayor issued in a similar case when she was an appeals court judge, disagreed.

"To interpret the Convention to permit an abducting parent to avoid a return remedy, even when the other parent holds a ne exeat right, would run counter to the Convention's purpose of deterring child abductions by parents who attempt to find a friendlier forum for deciding custodial disputes," Kennedy said.

Interestingly, Kagan and the United States sided with the British father, saying the Hague Convention demanded the result. Kennedy was joined by Roberts, Sotomayor, Scalia, Ginsburg and Alito.

Stevens, joined by Thomas and Breyer, dissented.

Stevens said the convention provided only a limited remedy. He said the majority was putting the rights of noncustodial parents ahead of the best interest of the child. Such a move is "particularly unwise in the context of a treaty intended to govern disputes affecting the welfare of children," he wrote.

The case is Abbott v. Abbott.

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