Congress passed a bill authorizing the Federal government to petition the courts to institutionalize an offender beyond the time of his/her maximum sentence if that person either committed or attempted to commit an act of sexual violence or child molestation and the offender is a danger to society.

Four Florida inmates challenged their commitments under 18 U. S. C. §4248 in United States v, Comstock on the basis that the Constitution does not grant the Federal government authority to institutionalize them beyond their maximum prison commitment. Article I of the Constitution grants Congress specific limited powers. The Tenth Amendment states that all powers not granted to the Federal government are reserved for the states.

Despite the defendants arguing that Congress was without authority to commit individuals after their sentence was completed, the Court ruled that the legislation was authorized by the Necessary and Proper Clause, under which Congress can pass any law necessary and proper to the carrying out the duties enumerated in Article I. For example, one of the enumerated duties authorizes a postal service. The building of post offices is a necessary and proper tool to establishing a postal service.

The court evaluated five factors in determining that the post-prison commitment of sexually violent inmates is necessary and proper means to carry out its duty to provide mental health care for Federal prisoners. The factors are “(1) the breadth of the Necessary and Proper Clause, (2) the long history of federal involvement in this arena, (3) the sound reasons for the statute’s enactment in light of the Government’s custodial interest in safeguarding the public from dangers posed by those in federal custody, (4) the statute’s accommodation of state interests, and (5) the statute’s narrow scope.” The Court ruled that the Necessary and Proper Clause allows Congress to pass legislation that is convenient, useful or conducive to carrying out one of its assigned duties. The Court found that while it is not independently proof of constitutionality the government has a long history of legislating prison mental health issues. Congress reasonably enacted the legislation to protect people who lived near Federal prisons from sexual violence by released inmates. The statute allows the Federal government to institutionalize those who would otherwise be released only after the states in which they were arrested and in which they live refuse to take custody of a dangerous inmate. Finally the court found that the post-prison institutionalization of sexually dangerous inmates was not too attenuated from Article I duties of Congress.

Justice Clarence Thomas dissented. He points to the pivotal 1819 case, McCulloch v. Maryland, Chief Justice Marshall wrote:

“Let the end be legitimate, 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.”

Thus to be constitutional it must

satisfies a two-part test: First, the law must be directed toward a “legitimate” end, which McCulloch defines as one “within the scope of the [C]onstitution”–that is, the powers expressly delegated to the Federal Government by some provision in the Constitution. Second, there must be a necessary and proper fit between the “means” (the federal law) and the “end” (the enumerated power or powers) it is designed to serve.

The only crimes the constitution specifically authorizes the Federal government to prosecute are counterfeiting, treason, piracy, crimes committed on the high seas and those against the Law of Nations. No one today would limit the Federal government to prosecuting those crimes. Certainly any number of crimes can be prosecuted under the Necessary and Proper Clause. But it is time to reconsider some of the crimes prosecuted by the Federal government. For example, is it really necessary to have the federal government prosecute drug, sex, and internet crimes. The basic police duties of government should be left to the state governments.

The California Supreme court ruled in People vs McKee that the Sexually Violent Predator Act (SVP) is subject to an equal protection challenge.

Proposition 83, also known as Jessica’s Law,passed by California voters, changed the SVP from a civil commitment that had to be renewed every two years, only if the government proved by a beyond a reasonable doubt standard that a person met the SVP requirements, to an indefinite commitment where the committed person must prove that he/she does not meet the standards by a preponderance of the evidence standard.

The Supreme Court remanded the case to the trial court with an order to hold a hearing, using a strict scrutiny standard, to determine if the SVP violates equal protection. The Equal Protection Clause of the Fourteenth Amendment requires equal treatment for people equally situated. This does not mean all people must be treated equally. But it does mean that people who are similar circumstances, as to relevant criteria must be treated equally. In this case the California Supreme Court determined that those alleged to be sexually violent predators are similarly situated with those alleged to be mentally disordered offenders (MDO) and those found to be not guilty by reason of insanity (NGI). All three groups involve people who committed violent felonies as a result of mental illness. While the predicate felonies for each of the categories is somewhat different, they all involve violent offenses and they are all determined to be a danger to society.

But unlike the MDO and NGI, the SVP ia given an indeterminate sentence and is not given a jury trial, after the initial determination, where the jury must find that the people have proven their case by a beyond a reasonable doubt standard. The MDO is give a one year commitment. After the initial commitment the SVG has the burden of proof by a preponderance of the evidence standard. The NGI’s term is limited to the maximum for the alleged crime.

On remand the people must attempt to show that there is a reasonable distinction between those who come under the SVP and those who are either MDO or NGI and that as a result of that distinction indefinite commitments and putting the burden of proof on the person committed is reasonable. If they cannot do that, pending any changes the legislature wants to make in the law those alleged to be sexually violent predators will be dealt with in the same manner as mentally disordered offenders.