Reversed by Supreme Court, May 17, 2010
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Petitioner-Appellant,
v. No. 07-7671
GRAYDON EARL COMSTOCK, JR.,
Respondent-Appellee.
UNITED STATES OF AMERICA,
Petitioner-Appellant,
v. No. 07-7672
SHANE CATRON,
Respondent-Appellee.
UNITED STATES OF AMERICA,
Petitioner-Appellant,
v. No. 07-7673
THOMAS MATHERLY,
Respondent-Appellee.
2 UNITED STATES v. COMSTOCK
UNITED STATES OF AMERICA,
Petitioner-Appellant,
v. No. 07-7674
MARVIN VIGIL,
Respondent-Appellee.
UNITED STATES OF AMERICA,
Petitioner-Appellant,
v. No. 07-7675
MARKIS REVLAND,
Respondent-Appellee.
Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, Senior District Judge.
(5:06-hc-02195-BR; 5:06-hc-02202-BR; 5:06-hc-02205-BR;
5:06-hc-02206-BR; 5:06-hc-02212-BR)
Argued: September 23, 2008
Decided: January 8, 2009
Before MOTZ and AGEE, Circuit Judges,
and James C. CACHERIS, Senior United States District
Judge for the Eastern District of Virginia, sitting by
designation.
Affirmed by published opinion. Judge Motz wrote the opin-
ion, in which Judge Agee and Senior Judge Cacheris joined.
UNITED STATES v. COMSTOCK 3
COUNSEL
ARGUED: Mark Bernard Stern, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appel-
lant. Jane Ely Pearce, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellees. ON
BRIEF: Jeffrey S. Bucholtz, Acting Assistant Attorney Gen-
eral, George E. B. Holding, United States Attorney, Jonathan
F. Cohn, Deputy Assistant Attorney General, R. A. Renfer,
Jr., Assistant United States Attorney, Samantha L. Chaifetz,
UNITED STATES DEPARTMENT OF JUSTICE, Washing-
ton, D.C., for Appellant. Thomas P. McNamara, Federal Pub-
lic Defender, Lauren Brennan, Research and Writing
Attorney, Eric Brignac, Research and Writing Attorney,
OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellees.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
This case presents the question of whether a newly-enacted
federal statute—18 U.S.C. § 4248 (2006)—lies within Con-
gress’s power. Section 4248 purports to allow the federal gov-
ernment to place in indefinite civil commitment "sexually
dangerous" persons, granting the federal government unprece-
dented authority over civil commitment—an area long con-
trolled by the states. The district court held that § 4248
exceeds the limits of congressional power and intrudes on the
powers reserved to the states. The Government now appeals.
We are the first appellate court to address this question, but
the issue has divided trial courts across the nation. Compare
United States v. Tom, 558 F. Supp. 2d 931, 938, 941 (D.
Minn. 2008) (holding that Congress lacked authority to enact
§ 4248), and United States v. Comstock, 507 F. Supp. 2d 522,
4 UNITED STATES v. COMSTOCK
540 (E.D.N.C. 2007) (same), with United States v. Abregana,
574 F. Supp. 2d 1123, 1133-34 (D. Haw. 2008) (holding that
Congress had authority to enact § 4248), United States v.
Dowell, No. CIV-06-1216-D, 2007 WL 5361304, at *7 (W.D.
Okla. Dec. 5, 2007) (same), United States v. Shields, 522 F.
Supp. 2d 317, 328 (D. Mass. 2007) (same), and United States
v. Carta, 503 F. Supp. 2d 405, 407-08 (D. Mass. 2007)
(same).
Two fundamental principles guide our inquiry. On one
hand, respect for the legislative branch demands that we
afford congressional enactments a "presumption of constitu-
tionality." United States v. Morrison, 529 U.S. 598, 607
(2000). But on the other, we must invalidate an act of Con-
gress on a "plain showing" that Congress has exceeded its
constitutional authority. Id.
After carefully considering the Government’s arguments,
we conclude, for the reasons set forth below, that § 4248 does
indeed lie beyond the scope of Congress’s authority. The
Constitution does not empower the federal government to
confine a person solely because of asserted "sexual danger-
ousness" when the Government need not allege (let alone
prove) that this "dangerousness" violates any federal law. We
therefore affirm the judgment of the district court.1
I.
A.
Congress enacted § 4248 as part of the Adam Walsh Child
Protection and Safety Act of 2006 ("the Act"). See Pub. L.
No. 109-248, § 302, 120 Stat. 587, 620-22. With the aim of
"protect[ing] children from sexual exploitation and violent
1
Because we find § 4248 unconstitutional on this basis, we need not
reach the other challenges to the statute and express no opinion on the dis-
trict court’s disposition of those issues.
UNITED STATES v. COMSTOCK 5
crime," id. at 587, a Senate sponsor described the Act as "the
most comprehensive child crimes and protection bill in our
Nation’s history." 152 Cong. Rec. S8012 (daily ed. July 20,
2006) (statement of Sen. Hatch). Among other measures, the
Act creates a National Sex Offender Registry, see § 119, 120
Stat. at 596 (codified at 42 U.S.C. § 16919 (2006)), increases
punishments for a variety of federal crimes against children,
see, e.g., § 206, 120 Stat. at 613 (codified as amended at 18
U.S.C. § 2241 (2006)), and strengthens existing child pornog-
raphy prohibitions, see, e.g., § 506, 120 Stat. at 630-31 (codi-
fied as amended at 18 U.S.C. § 1465 (2006)). None of these
provisions of the Act is challenged here.
The only portion of the Act at issue here, § 4248, autho-
rizes the federal government to civilly commit, in a federal
facility, any "sexually dangerous" person "in the custody" of
the Bureau of Prisons—even after that person has completed
his entire prison sentence. 18 U.S.C. § 4248(a), (d) (2006). To
initiate commitment under § 4248, the Attorney General need
only certify that a person within federal custody is "sexually
dangerous." Such a certification, when filed with the district
court in the jurisdiction in which the federal government
holds a person, automatically stays that person’s release from
prison. Id. § 4248(a). In the cases at issue here, this stay has
extended federal confinement well past the end of any prison
term. Thus, pursuant to § 4248, the federal government has
civilly confined former federal prisoners without proof that
they have committed any new offense. Moreover, § 4248
empowers the Attorney General to prolong federal detention
in this manner without presenting evidence or making any
preliminary showing; the statute only requires that the certifi-
cation contain an allegation of dangerousness.
The statute defines a "sexually dangerous person" to be one
who "has engaged or attempted to engage in sexually violent
conduct or child molestation and who is sexually dangerous
to others," and who suffers from a severe mental illness such
that he would "have serious difficulty in refraining from sexu-
6 UNITED STATES v. COMSTOCK
ally violent conduct or child molestation if released." 18
U.S.C. § 4247(a)(5)-(6) (2006). However, neither "sexually
violent conduct" nor "child molestation" are terms defined by
the statute.2
After the Attorney General files the certification, § 4248
directs the district court to adjudicate a person’s alleged sex-
ual dangerousness. Id. § 4248(a). If the district court finds the
person to be sexually dangerous by clear and convincing evi-
dence, the court must commit the person to federal custody.
Id. § 4248(d). Only then does § 4248 direct the Attorney Gen-
eral to make "all reasonable efforts" to transfer responsibility
for the person to an appropriate state authority. Id. Unless and
until a state assumes this responsibility, § 4248 authorizes
federal confinement for as long as the person remains "sexu-
ally dangerous." Id.
B.
Graydon Comstock, who filed the first of these consoli-
dated challenges to § 4248, pled guilty to receipt of child por-
nography in violation of 18 U.S.C. § 2252(a)(2) (2006). Six
days prior to the end of his 37-month prison sentence, the
Attorney General certified Comstock as a sexually dangerous
person, staying his release from prison. More than two years
later, Comstock remains confined in the medium security
Federal Correctional Institution at Butner, North Carolina
("FCI-Butner").
The cases of Markis Revland, Thomas Matherly, and Mar-
vin Vigil followed a similar course, with the Government cer-
2
In contrast to the undefined commitment criteria of § 4248, many state
civil commitment statutes related to "sexually dangerous persons" are
more narrowly drawn. For example, a proceeding for civil commitment of
a "sexually violent predator" under Virginia law cannot be commenced
unless the person "has been convicted of a sexually violent offense." Va.
Code Ann. § 37.2-900 (2008). The statute specifically defines those
offenses.
UNITED STATES v. COMSTOCK 7
tifying each man for federal commitment less than one month
before he completed his full prison term.3 In fact, the Govern-
ment certified Vigil for civil commitment on the very same
day that he had completed his 96-month term of imprison-
ment. Like Comstock, each of these men remains in federal
custody at FCI-Butner more than two years after the expira-
tion of his prison term.
As part of each certification, the Government petitioned for
a hearing to determine whether the named person qualified as
"sexually dangerous" under § 4248. In each case, the named
person then moved to dismiss, contending that § 4248 violates
the Constitution. The district court agreed and held that
§ 4248’s civil commitment scheme could not withstand con-
stitutional scrutiny. Comstock, 507 F. Supp. 2d at 530-40.
With this background in mind, we turn to the question pres-
ented in this case: whether the Constitution grants Congress
the authority to enact § 4248.
II.
In the exercise of their general police and parens patriae
powers, the states have long controlled the civil commitment
of the mentally ill. See, e.g., United States v. Sahhar, 56 F.3d
1026, 1029-30 (9th Cir. 1995); United States v. Cohen, 733
F.2d 128, 150 (D.C. Cir. 1984) (en banc) (MacKinnon, J.,
3
The Attorney General has certified, under § 4248, more than 60 per-
sons in the Eastern District of North Carolina alone, all of whom (as of
this writing) remain in the federal prison complex in Butner, North Caro-
lina. With one exception (Shane Catron, whose case we address in foot-
note 10), each of these persons had already served all, or almost all, of his
prison term when the Attorney General certified him for this additional
confinement. See Brief of Appellee at Appendix A; see also United States
v. Wilkinson, No. 07-12061-MLW, 2008 WL 427295, at *1-3 (D. Mass.
Feb. 14, 2008) (finding that all of the § 4248 cases filed in the District of
Massachusetts involved certifications "just before the expiration of the
[prisoner’s] sentence" and urging the government to end this practice).
8 UNITED STATES v. COMSTOCK
concurring) ("[The] care and commitment of the insane is,
and has been, a uniquely State function."); Note, Federal
Hospitalization of Insane Defendants Under Section 4246 of
the Criminal Code, 64 Yale L.J. 1070, 1070 (1955) ("Power
over the general field of insanity resides exclusively in the
states as parens patriae . . . ."). Unlike the states, the federal
government has no general police or parens patriae power.
United States v. Lopez, 514 U.S. 549, 566 (1995).
Nonetheless, in the statute at issue here, Congress purports
to grant the federal government broad civil commitment author-
ity.4 This raises a substantial constitutional question because
the Constitution requires that a specific enumerated power
support every statute enacted by Congress. Morrison, 529
U.S. at 607. The Government does not argue to the contrary.
Yet the Government attempts to defend the validity of
§ 4248 largely by direct reliance on the Necessary and Proper
Clause. U.S. Const. art. I, § 8, cl. 18. But that provision, by
itself, creates no constitutional power; rather, it merely per-
mits Congress "[t]o make all Laws which shall be necessary
and proper for carrying into Execution . . . all . . . Powers
4
Section 4248 is not Congress’s first attempt to assert federal power
over civil commitment—but prior Attorneys General have concluded that
the Constitution does not authorize such broad measures. In 1857, for
example, Congress enacted a statute authorizing the hospitalization of
incompetents charged with federal crimes. Act of Feb. 15, 1857, ch. 36,
§ 5, 11 Stat. 157, 158. But the Attorney General—adhering to precisely
the same constitutional limits at issue in this case—concluded that the fed-
eral government could apply this statute only to persons within exclusive
federal jurisdiction (e.g., residents of the District of Columbia and mem-
bers of the military). 17 Op. Att’y Gen. 211 (1881). And, in 1874, Con-
gress sought to provide, as § 4248 does, for the hospitalization of federal
convicts found to be insane at the termination of their sentences. Act of
June 23, 1874, ch. 465, § 2, 18 Stat. 251, 251-52. The Attorney General
concluded that the federal government could not constitutionally detain a
federal prisoner after the termination of his sentence, 30 Op. Att’y Gen.
569 (1916), and Congress codified this limitation in 1930. Act of May 13,
1930, ch. 254, § 6, 46 Stat. 270, 271.
UNITED STATES v. COMSTOCK 9
vested by this Constitution in the Government of the United
States . . . ." Id. (emphasis added). Thus, to sustain § 4248
under the Necessary and Proper Clause, the Government must
show that the statute is necessary to achieve ends within Con-
gress’s enumerated powers. See Sabri v. United States, 541
U.S. 600, 605 (2004).
Perhaps implicitly recognizing this deficiency in its Neces-
sary and Proper Clause arguments, the Government also relies
(albeit briefly) on the Commerce Clause.5 Unlike the Neces-
sary and Proper Clause, the Commerce Clause does vest Con-
gress with enumerated constitutional power. Clearly, if we
can uphold § 4248 as a valid exercise of Congress’ Commerce
Clause powers, the statute lies within congressional authority.
Accordingly, consistent with the "presumption of constitu-
tionality," Morrison, 529 U.S. at 607, that we afford every
federal statute, we begin our analysis by addressing this ques-
tion.
A.
The Commerce Clause empowers Congress "[t]o regulate
Commerce . . . among the several States." U.S. Const. art. I,
§ 8, cl. 3.
Recent Supreme Court precedent provides substantial assis-
tance in resolving the question of whether the Commerce
Clause authorizes § 4248. First, in United States v. Lopez, the
Court held that the Gun-Free School Zones Act (GFSZA) of
1990, which made possession of a firearm in a school zone a
federal crime, exceeded Congress’s Commerce Clause power
because it regulated neither commercial nor interstate activity.
5
The Government barely mentions the Commerce Clause in its lengthy
briefs. But when questioned at oral argument—after initially asserting that
a "variety of [enumerated] powers" supported the challenged statute—the
Government could indentify only the Commerce Clause as the specific
enumerated constitutional power that authorized enactment of § 4248.
10 UNITED STATES v. COMSTOCK
514 U.S. at 551. Then, in Morrison, the Court imposed further
limits on Congress’s Commerce Clause power, holding
unconstitutional a provision of the Violence Against Women
Act (VAWA) that created a federal civil remedy for noneco-
nomic sexual violence, because such crimes do not substan-
tially affect interstate commerce. 529 U.S. at 601-02, 614-18.
In these cases, the Court identified three specific areas that
Congress could regulate pursuant to its Commerce Clause
power: (1) the channels of interstate commerce, (2) instru-
mentalities of or persons and things in interstate commerce,
and (3) activities that "substantially affect" interstate com-
merce. See, e.g., Lopez, 514 U.S. at 558-59. Like the statutes
at issue in Lopez and Morrison, the statute challenged here,
§ 4248, contains no jurisdictional requirement limiting its
application to commercial or interstate activities. Nor does the
Government suggest that § 4248 targets the channels of inter-
state commerce or persons and things in interstate commerce.
Therefore, we can uphold § 4248 under the Commerce Clause
only if it regulates activities that "substantially affect" inter-
state commerce. See Morrison, 529 U.S. at 609.
Morrison forecloses any such argument. Indeed, § 4248
bears striking similarities to the VAWA provision struck
down in Morrison. First, like VAWA, § 4248 provides a civil
remedy aimed at the prevention of noneconomic sexual vio-
lence. The Morrison Court’s rationale for rejecting Commerce
Clause authority for such a statute applies with equal force
here:
The regulation and punishment of intrastate violence
. . . has always been the province of the States.
Indeed, we can think of no better example of the
police power, which the Founders denied the
National Government and reposed in the States, than
the suppression of violent crime and vindication of
its victims.
UNITED STATES v. COMSTOCK 11
Id. at 618-19 (citations omitted).
Second, the target of the statute challenged here (sexual
dangerousness)—no less than the target of the statute invali-
dated in Morrison (gender-motivated violence)—is "not, in
any sense of the phrase, economic activity." Id. at 613. Like
the gender-motivated violence banned in Morrison, sexual
dangerousness does not substantially affect interstate com-
merce. Indeed, unlike Morrison, the record here does not even
contain any legislative findings to the contrary.
Supreme Court precedent thus compels the conclusion that
§ 4248 does not constitute a valid exercise by Congress of its
Commerce Clause power.6 To construe § 4248 as within such
power would encroach on the police and parens patriae pow-
ers reserved to the sovereign states, conflating "what is truly
national and what is truly local." Id. at 617-18; see also
Cohen, 733 F.2d at 138 (Scalia, J.) ("‘[A] Federal procedure
for the commitment of the [mentally ill] would constitute an
inappropriate interference with the balance of Federal and
State powers. . . . [T]he care of the mentally ill is a task that
uniquely belongs within the parens patriae powers of the
States.’" (quoting H.R. Rep. No. 96-1396, at 561 (1980))).
Federal commitment of "sexually dangerous persons" may
well be—like the suppression of guns in schools or the redress
6
As the Government acknowledges, nothing in the Supreme Court’s
most recent Commerce Clause opinion, Gonzales v. Raich, 545 U.S. 1
(2005), alters the core holding in Morrison that Congress lacks authority
to regulate noneconomic sexual violence. The Raich Court sustained the
drug prohibitions of the Controlled Substances Act (CSA) as applied to
the intrastate cultivation and use of medical marijuana. Id. at 13, 32-33.
Relying on the rationale of Wickard v. Filburn, 317 U.S. 111 (1942), the
Court reasoned that Congress could regulate this purely local activity as
part of regulating "an economic class of activities that have a substantial
effect on interstate commerce." Raich, 545 U.S. at 17 (internal quotations
omitted). In contrast to the CSA, § 4248 constitutes no part of a "compre-
hensive" legislative scheme that targets interstate markets. Id. at 22.
12 UNITED STATES v. COMSTOCK
of gender-motivated violence—a sound proposal as a matter
of social policy. But policy justifications do not create con-
gressional authority. Morrison, 529 U.S. at 627. Hence § 4248
lies beyond Congress’s Commerce Clause authority. The
Government’s apparent reluctance to rely on the Commerce
Clause is thus understandable.
B.
What is less understandable is the Government’s heavy
reliance on the Necessary and Proper Clause, standing alone,
as a source of congressional power. Of course, as the Govern-
ment contends at length, the Necessary and Proper Clause
reaches broadly, but it does so only to effectuate powers spe-
cifically enumerated in the Constitution. See McCulloch v.
Maryland, 17 U.S. (4 Wheat.) 316, 414-21 (1819). The Nec-
essary and Proper Clause simply does not—in and of itself—
create any Congressional power. See Kinsella v. United States
ex rel. Singleton, 361 U.S. 234, 247 (1960) ("The [Necessary
and Proper Clause] is not itself a grant of power, but a caveat
that the Congress possesses all the means necessary to carry
out the specifically granted ‘foregoing’ powers of § 8 [of Arti-
cle I of the Constitution.]"). Ordinarily, this would end our
discussion of the Necessary and Proper Clause. But because
the Government’s defense of § 4248 relies almost exclusively
on that Clause, we briefly address each of its specific argu-
ments on this point.
1.
The Government’s principal argument is that its ability to
establish and maintain a "federal criminal justice and penal
system" somehow renders § 4248 necessary and proper and
thus constitutional. See Brief of Appellant at 14, 20, 21, 30,
32, 34, 42; Reply Brief of Appellant at 2, 6, 7, 10, 16. The
Government cites no precedent in support of this novel the-
ory. Instead, the Government relies on a restatement provision
setting forth common law principles on the responsibilities of
UNITED STATES v. COMSTOCK 13
custodians. See Brief of Appellant at 30 (quoting Restatement
(Second) of Torts § 319 (1965)); Reply Brief of Appellant at
11-12 (same). In essence, the Government argues that because
it may constitutionally imprison persons who violate federal
criminal law, it can continue to confine such persons—even
after they have served their sentences—if it believes them to
be "sexually dangerous."
This argument must fail. Of course, Congress may establish
and run a federal penal system, as necessary and proper to the
Article I power (usually the Commerce Clause) relied on to
enact federal criminal statutes. And, consistent with its role in
maintaining a penal system, the federal government possesses
broad powers over persons during their prison sentences. But
these powers are far removed from the indefinite civil com-
mitment of persons after the expiration of their prison terms,
based solely on possible future actions that the federal gov-
ernment lacks power to regulate directly.7
The fact of previously lawful federal custody simply does
not, in itself, provide Congress with any authority to regulate
future conduct that occurs outside of the prison walls. For
example, although the Government may regulate assaults
7
We further note that the expansive view of "custody" that the Govern-
ment itself has urged in other § 4248 cases belies its contention that
§ 4248 constitutes a limited, necessary extension of the federal penal sys-
tem. For example, in United States v. Shields, the Government maintained
that § 4248 requires only that a person is "in custody" of the Bureau of
Prisons, not that this custody is lawful. See Government’s Mem. in Opp’n
to Mot. to Dismiss at 1-3, United States v. Shields, No. 07-12056 (D.
Mass. Nov. 13, 2007). Similarly, in a case currently on appeal before the
Seventh Circuit, the Government argues that § 4248 validly applies to per-
sons whom the federal government has never convicted of a crime—a
rationale that would extend § 4248’s reach to material witnesses, civil con-
tempt detainees, and individuals in immigration detention. See United
States v. Hernandez-Arenado, No. 08-278, 2008 WL 2373747, at *3-5
(S.D. Ill. June 9, 2008). These arguments starkly conflict with the Govern-
ment’s attempt here to justify § 4248 as a narrow exercise of federal penal
power.
14 UNITED STATES v. COMSTOCK
occurring in federal prisons, the Government cannot criminal-
ize all assaults committed by former federal prisoners. As the
district court explained:
The fact of legitimate custody . . . does not establish
Congressional authority to provide for the commit-
ment of a person after a person has completed a sen-
tence for a federal crime, i.e., when the power to
prosecute federal offenses is exhausted, when that
person has not committed any misconduct while in
custody, and where there has been no showing that
the person is likely to engage in conduct that Con-
gress, as opposed to the states, actually has the
authority to criminalize.
Comstock, 507 F. Supp. 2d at 551.
2.
The Government next contends that § 4248 constitutes a
necessary and proper exercise of its power to prevent "sex-
related crimes." Brief of Appellant at 36. But the federal gov-
ernment simply has no power to broadly regulate all sex-
related crimes, as § 4248 purports to do.
Consistent with Congress’s limited powers, federal statutes
regulating sex crimes are limited in number and breadth, spe-
cifically requiring a connection to interstate commerce, see,
e.g., 18 U.S.C. § 2252(a)(2) (2006), or limiting their scope to
the territorial jurisdiction of the United States, see, e.g., id.
§ 2243(a). In contrast, § 4248 targets "sexual dangerousness"
generally, without any requirement that this undefined danger
relate to conduct that the federal government may constitu-
tionally regulate. Because most crimes of sexual violence vio-
late state and not federal law,8 many commitments under
8
Even a cursory review of federal and state prison statistics demon-
strates this fact. In 2004, states had in their custody approximately 153,800
UNITED STATES v. COMSTOCK 15
§ 4248 would prevent conduct prohibited only by state law.
Section 4248 thus sweeps far too broadly to be a valid effort
to prevent federal criminal activity.
The principal case on which the Government relies for its
argument to the contrary, United States v. Perry, 788 F.2d 100
(3d Cir. 1986), actually offers it no support. Notably, at the
outset, the Perry court recognized (as the Government fails to
here) that a specific, enumerated federal power must support
a federal civil commitment:
[T]he federal government may resort to civil com-
mitment when such commitment is necessary and
proper to the exercise of some specific federal
authority. Congress may not, however, authorize
commitment simply to protect the general welfare of
the community at large.
Id. at 110 (emphasis added). Applying this test, Perry upheld
the constitutionality of the Bail Reform Act of 1984, which
authorizes pretrial detention only if a court finds a likelihood
that the detainee will, if released, commit one of four specific
federal offenses. Id. at 111. The Bail Reform Act therefore
contained a clear connection between the pretrial detentions
and the Government’s interest in preventing federal crime.9
prisoners convicted of rape or other sexual assault. See William J. Sabol
et al., U.S. Dep’t of Justice, Prisoners in 2006, at 24 app. tbl.9 (2007),
available at http://www.ojp.gov/bjs/pub/pdf/p06.pdf. This number is
approximately equal to the total number of persons in federal prison for
any crime. See id. at 2 tbl.1 (indicating approximately 188,000 total fed-
eral inmates in 2005). Those convicted of sexual crimes constitute a very
small percentage of the federal total. See Bureau of Justice Statistics, U.S.
Dep’t of Justice, Compendium of Federal Justice Statistics, 2003, at 62
tbl.4.2 (2005), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/
cfjs03.pdf (indicating that federal convictions for violent sexual offenses,
"obscene material," and "non-violent sex offenses," together, constituted
less than 2% of all federal convictions).
9
United States v. Plotts, 347 F.3d 873 (10th Cir. 2003), offers the Gov-
ernment even less support. Plotts held a statute requiring that individuals
16 UNITED STATES v. COMSTOCK
In contrast, § 4248 contains no such connection: it does not
refer to any federal crime, let alone require the Government
to demonstrate that a person presents a risk of committing a
specific federal crime. Indeed, under § 4248, the federal gov-
ernment may commit a person even though he has never been
convicted by any court—state or federal—of any crime of
sexual violence. Section 4248 only requires that the Govern-
ment demonstrate that an individual in United States custody
is "sexually dangerous," which encompasses any "sexually
violent conduct"—regardless of whether state or federal law
criminalizes this conduct. See 18 U.S.C. § 4247(a)(6) (2006).
At its core, the Government’s argument attempts to "pile
inference upon inference" so as to "convert congressional
authority under the Commerce Clause to a general police
power of the sort retained by the States." Lopez, 514 U.S. at
567. Were we to accept the Government’s logic, Congress
could authorize the civil commitment of a person on a show-
ing that he posed a general risk of any sexually violent con-
duct, even though not all, or even most, of this potential
conduct violated federal law. This argument would convert
the federal government’s limited power to criminalize narrow
forms of sexual violence into the general power to regulate all
sexual violence, including acts which violate no criminal stat-
ute. Congressional power does not reach so far.
3.
Finally, the Government maintains that the Necessary and
Proper Clause justifies § 4248 because it retains the "power to
prosecute" all persons in its custody charged with criminal
convicted of federal crimes provide DNA samples was constitutional
under Congress’s power to "fashion penalties for the violation of valid
federal laws," or because of its power "to aid the Executive in prosecuting
those who . . . violate federal criminal laws." Id. at 879 (emphasis added).
Neither of these rationales supports § 4248, because commitment under
§ 4248 constitutes no part of a person’s "penalt[y]" or "prosecut[ion]" for
the violation of "federal criminal laws."
UNITED STATES v. COMSTOCK 17
offenses. But the Government has already charged, tried, and
convicted Comstock, Matherly, Vigil, and Revland of all
alleged federal crimes; it retains no power to prosecute them.
Greenwood v. United States, 350 U.S. 366 (1956), on
which the Government heavily relies, does not suggest, let
alone hold, to the contrary. Rather, Greenwood simply
upholds a statute that permits the federal civil commitment of
a person charged with federal crimes but found incompetent
to stand trial. Id. at 367-68, 375. To prevent "frustrat[ion]" of
federal prosecutions in such cases, Greenwood authorizes the
commitment of these incompetent individuals, reasoning that
they might someday regain competence and so be able to
stand trial. Id. at 375 ("The power that put [the accused] into
[federal] custody—the power to prosecute for federal offenses
—is not exhausted.").10 Furthermore, the statute upheld in
Greenwood requires the Attorney General to determine that
"suitable arrangements for State custody and care of the per-
10
For example, a federal judge found Shane Catron—the fifth person
who challenges § 4248 here—incompetent to stand trial before the Gov-
ernment could prosecute him for his alleged criminal offenses. This frus-
trated the Government’s power to prosecute Catron. Thus, as Catron
concedes, § 4246 (the statute at issue in Greenwood) empowers the Gov-
ernment to certify and detain him in a federal facility until he regains com-
petence. Had the Government held to its original course of committing
Catron pursuant to § 4246, its actions would lie within its constitutional
authority. But, for unexplained reasons, the Government chose to with-
draw its § 4246 certification of Catron and instead certified him pursuant
to § 4248. The seemingly unique circumstances of Catron’s case differ
greatly from those applicable to the four other appellees in this case, and
to all of the more than 60 other individuals committed under § 4248 in this
circuit. Because no party asks us to bifurcate Catron’s unique challenge to
§ 4248, we decline to do so. As the Supreme Court has noted, when the
parties do not ask for such "finely drawn" relief, we need not embark on
such a course. See Ayotte v. Planned Parenthood of N. New Eng., 546 U.S.
320, 330-31 (2006). We note that § 4246 also purports to allow the federal
government to confine indefinitely persons in federal custody whose sen-
tences have expired. But that provision was neither at issue nor addressed
by the Supreme Court in Greenwood; similarly, it is not at issue here and
we too decline to address it.
18 UNITED STATES v. COMSTOCK
son are not available" before the federal government can
undertake any commitment. 18 U.S.C. § 4246(a) (2006)
(emphasis added).
In sum, Greenwood only approved the federal civil com-
mitment of persons who had been charged with federal crimes
but found incompetent to stand trial, and for whom no state
would take custody. Greenwood certainly did not approve the
federal civil commitment of persons—like Comstock,
Matherly, Vigil, and Revland—who have stood trial, been
convicted, and fully served all federal prison sentences.11
Accordingly, because no federal prosecution has been frus-
trated here, we cannot sustain § 4248 under Greenwood.
III.
For these reasons, we can only conclude that the district
court correctly held § 4248 unconstitutional. The challengers
have made a "plain showing" that, in enacting § 4248, Con-
gress exceeded its constitutional authority. Morrison, 529
U.S. at 607.
Our holding, however, does not require that the Govern-
ment’s legitimate policy concerns go unaddressed. If the fed-
eral government has serious concerns about the
dangerousness of a person due to be released from federal
prison, it can notify state authorities, who may use their well-
settled police and parens patriae powers to pursue civil com-
mitment under state law. See generally Kansas v. Hendricks,
521 U.S. 346 (1997).
11
Although the Government notes in passing that Comstock, Matherly,
Vigil, and Revland remain subject to supervised release, it does not allege
that they have violated the terms of supervised release or any other federal
law. Of course, the Government has no unexhausted power to prosecute
a former federal prisoner simply because he could violate a term of his
supervised release; any person could violate federal law.
UNITED STATES v. COMSTOCK 19
Moreover, if the relevant state authorities prove reluctant to
take charge of such persons, the Government is not without
recourse. The federal government may, for example, wield its
spending power to encourage state action, see U.S. Const. art.
I, § 8, cl. 1 (granting Congress the power to allocate funds to
promote the "general Welfare"), by providing funding to state
institutions for this purpose. Cf. South Dakota v. Dole, 483
U.S. 203, 209-12 (1987). But Congress’s perceived need for
the sort of civil commitment statute at issue here does not
create constitutional power where none exists. See Morrison,
529 U.S. at 627. Congress must instead seek alternative, con-
stitutional means of achieving what may well be commend-
able objectives.
The power claimed by § 4248—forcible, indefinite civil
commitment—is among the most severe wielded by any gov-
ernment. The Framers, distrustful of such authority, reposed
such broad powers in the states, limiting the national govern-
ment to specific and enumerated powers. "[T]hat those limits
may not be mistaken, or forgotten, the constitution is written."
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803). Sec-
tion 4248 thus cannot be sustained as an exercise of Con-
gress’s authority under the Commerce Clause or any other
provision of the Constitution. For these reasons, we affirm the
judgment of the district court.
AFFIRMED