U.S. v. Comstock

Decision Date08 January 2009
Docket NumberNo. 07-7672.,No. 07-7673.,No. 07-7671.,No. 07-7675.,No. 07-7674.,07-7671.,07-7672.,07-7673.,07-7674.,07-7675.
Citation551 F.3d 274
PartiesUNITED STATES of America, Petitioner-Appellant, v. Graydon Earl COMSTOCK, Jr., Respondent-Appellee. United States of America, Petitioner-Appellant, v. Shane Catron, Respondent-Appellee. United States of America, Petitioner-Appellant, v. Thomas Matherly, Respondent-Appellee. United States of America, Petitioner-Appellant, v. Marvin Vigil, Respondent-Appellee. United States of America, Petitioner-Appellant, v. Markis Revland, Respondent-Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Mark Bernard Stern, United States Department of Justice, Washington, D.C., for Appellant. Jane Ely Pearce, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellees. ON BRIEF: Jeffrey S. Bucholtz, Acting Assistant Attorney General, 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, Washington, D.C., for Appellant. Thomas P. McNamara, Federal Public Defender, Lauren Brennan, Research and Writing Attorney, Eric Brignac, Research and Writing Attorney, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellees.

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 opinion, in which Judge AGEE and Senior Judge CACHERIS joined.



This case presents the question of whether a newly-enacted federal statute18 U.S.C. § 4248 (2006)—lies within Congress's power. Section 4248 purports to allow the federal government to place in indefinite civil commitment "sexually dangerous" persons, granting the federal government unprecedented authority over civil commitment—an area long controlled 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, 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 constitutionality." United States v. Morrison, 529 U.S. 598, 607, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). But on the other, we must invalidate an act of Congress 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 dangerousness" 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


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 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 pornography prohibitions, see, e.g., § 506, 120 Stat. at 630-31 (codified 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, authorizes 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 certification 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 sexually 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 sexual dangerousness. Id. § 4248(a). If the district court finds the person to be sexually dangerous by clear and convincing evidence, the court must commit the person to federal custody. Id. § 4248(d). Only then does § 4248 direct the Attorney General 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 "sexually dangerous." Id.


Graydon Comstock, who filed the first of these consolidated challenges to § 4248, pled guilty to receipt of child pornography 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 Marvin Vigil followed a similar course, with the Government certifying each man for federal commitment less than one month before he completed his full prison term.3 In fact, the Government certified Vigil for civil commitment on the very same day that he had completed his 96-month term of imprisonment. Like Comstock, each of these men remains in federal custody at FCI-Butner more than two years after the expiration 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 constitutional scrutiny. Comstock, 507 F.Supp.2d at 530-40.

With this background in mind, we turn to the question presented in this case: whether the Constitution grants Congress the authority to enact § 4248.


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., 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, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995).

Nonetheless, in the statute at issue here, Congress purports to grant the federal government broad civil commitment authority.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, 120 S.Ct. 1740. 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 permits Congress "[t]o make...

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