In U.S. v. Comstock decision that came down yesterday, the Supreme upheld the federal civil detention powers enshrined by the “Adam Walsh Child Protection and Safety Act” that passed in 2006. These powers give the US Attorney General the authority to indefinitely detain “sex offenders” beyond their prison sentences. “Comstock” refers to Graydon Comstock, who was sentenced to 3 years for downloading child porn, but was detained by Alberto Gonzales prior to his release date. His detention has continued under Eric Holder. Comstock sued the Federal government on the Grounds that civil detention was not an enumerated power in the US Constitution. A lower federal court agreed with Comstock and overturned that portion of the AWCPSA. However, the Feds appealed to the Supreme Court, with Solicitor General Elena Kagan making the State’s case. Kagan’s argument eschewed the typical “commerce clause” appeal, instead opting for “Necessary and Proper Clause ” argument, which boiled down to the argument for the power of civil detention by simple virtue of operating a prison system. All in the name of “public safety,” of course. In other words, operating a prison system gives the government the powers of indefinite civil detention of prisoners in order to ensure the “public safety.” It should be noted that the designation “sexually dangerous” does not merely apply to those convicted of “sex crimes,” it’s a designation that can be applied to any prisoner in the federal system.
One thing to point out is that civil detention of “sex offenders” has been going on at the State level for a while now. The initial State laws that passed in the early 90s(with the advent of Cable TV sensationalism) were struck down by the Supreme Court. However, in the late 90s, specifically, Kansas v. Hendricks, these laws were upheld if detention was justified by “mental illness.” In others words, detention had to be accompanied by some form of ongoing medical treatment. Nonethless, as arbitrary a standard “mental illness” is, U.S. v. Comstock doesn’t even have to meet that burden. You just have to be declared “sexually dangerous.”
It should be clear that the United States is gradually formalizing a civil detention regime. “First they came for the terrorists, then they came for the sex offenders…”” is not a trite expression. Under Bush and Obama, executive power to assassinate or indefinitely detain US citizens vis a vis terrorism designations is a claimed power. With U.S. v. Comstock, legislative power of indefinite detention is now a formal, legal power. You can expect more legislation to come down the pike to expand this formalism in the name of National Security and Public Safety. I’m not really sure how many US citizens are being detained or targeted for assassination as a result of terrorist designations, but there are around 100 or so being indefinitely detained in federal prisons as a result of being designated as ” sexually dangerous.” What are these numbers going to be 10 years from now? The term “slippery slope” is a common refrain, but I think we’ve slipped. No liberal can defend much less tolerate a formal civil detention regime.