President Barack Obama's Solicitor General, Elena Kagan, argued successfully before the Supreme Court that the Federal government can detain anyone indefinitely, as long as they have custody of him and declare him to be a sex offender and mentally ill. From the statute:
JUSTICE SCALIA: General Kagan, you are relying on the Necessary and Proper Clause, right? You say: But necessary and proper doesn't mean it is necessary and proper for the good of society. It means it is necessary and proper for the execution of another power that the Federal Government is given by the Constitution.
Now why is this necessary for the execution of any Federal power? The Federal criminal proceeding has terminated. The individual is released. You could say it's necessary for the good of society, but that's not what the Federal Government is charged with. Why is it necessary to any function that the Federal Government is performing? It has completed its performance of the function of incarcerating this individual until he's served his punishment.
GENERAL KAGAN: The Court has always said, Justice Scalia that the Necessary and Proper Clause, the question is is it necessary and proper to the beneficial exercise of Federal powers. And so this is, that it is necessary and proper to the beneficial or, what I said before, the responsible exercise of the Federal power to operate a criminal justice system, which includes the responsibility to ensure that those people who have been in custody in that Federal -- in that criminal justice system, are not released irresponsibly.
JUSTICE KENNEDY: But the brief -- excuse me.
JUSTICE ALITO: Well, I was going to ask, is it the case that the unwillingness of States to step into this area in these instances is a consequence, at least in part and perhaps in large part, of the Federal incarceration, that as a result of the Federal incarceration the person is no longer viewed by the State as -- as having domicile within the State, the State of prior domicile has no way -- way of knowing whether that person would return to a domicile in the prior State? Do you think that is a fair understanding of the reason for the enactment of this?
GENERAL KAGAN: Just to make sure that I understand the question, that the reason for the enactment in part has to do with the fact that the Federal Government has assumed custodial responsibility and has disrupted the relationship between the State and the citizen, I think that that is exactly right, Justice Alito.
But in some sense it's not just that the Federal system finds itself in possession and custody of these people, but the Federal -- but what Congress could reasonably find is that the Federal Government knows that there is nobody else to take appropriate custody and care, and that the reason that there is nobody else to take appropriate custody and care has to do with the Federal action itself.
Kagan is saying that since the state sometimes doesn't care for released prisoners, the federal government has the responsibility and right to detain someone they feel is dangerous for actions they have not yet committed.
The public defender, G. Alan DuBois, says that the federal government can only detain a person for the time that they have been sentenced. The federal government can't just detain anyone indefinitely.
It effectively does require no connection between the underlying criminal charge and the subsequent commitment. You can be in custody for any crime whatsoever. It doesn't have to be sex-related, you can never have been convicted of a sex offense whatsoever.
So it really is, there is almost a complete de-linking of the crime which brought you into federal custody and your subsequent commitment. Can we imagine hypotheticals that -- that create a link, that rolls it into the punishment? Perhaps, but that is not this statute, and this statute must fail for that reason.
The statuate didn't fail. The federal government can declare anyone mentally ill and a danger to the community and lock them up forever, even if their sentence is up. The various headlines read that it is dangerous sexual predators who can be kept indefinitely, but Kagan's argument is not just for people in jail for sexual offenses.
JUSTICE STEVENS: Isn't it true that this statute applies even if a person has not been a sexual offender in the past?
GENERAL KAGAN: It -- it does, Justice Stevens. There have been 103 --
JUSTICE STEVENS: That argument doesn't take care of that --
GENERAL KAGAN: -- just to put some numbers on the table, there have been 103 people who have been certified under these laws. Eight under -- under this law. 83 of them have committed sexual offenses; 20 --
JUSTICE STEVENS: No, but my point is the law applies to a person who is convicted of armed robbery or bank robbery and just before the end of his term in prison the authorities decide he is in fact a potential sexual offender. They can detain him.
GENERAL KAGAN: Yes, yes, that's right. As I was saying, 20 of these people fall within that category, that -- that they are in prison for a nonsexual offense.
JUSTICE STEVENS: Right.
GENERAL KAGAN: All of those people have had prior sexual convictions in their history.
JUSTICE STEVENS: But that's not -- that's not a necessary element of the -- of the statute --under the statute, is it?
GENERAL KAGAN: What is necessary is two things: First, that the person in fact have engaged in sexually violent behavior or child molestation. So there is a factual predicate there. And -- and so far, the Bureau of Prisons has found that about 15,000 people whom it has reviewed meet that factual predicate.
What Congress said here was something pretty simple and very reasonable. It said if we, the Federal Government, have somebody in our custody, and we know that that person has the kind of mental illness that is going to cause grave danger to the community; and we know that there is no one else who is in a good position to prevent it; and we know that we were in part responsible for that vacuum, then we should be able to do something about it. That's what section 4248 says, and section 4248 is constitutional for that reason.
Justice Scalia has several times suggested that maybe there is no experience of this, but I think that the fact of the judicial conference committee report, stating that there were these problems with respect to mentally ill people generally, rebuts that. So, too, this Court's view in Shannon, that section 4243 was necessary because there was a gaping statutory hole where States were not willing to step forward, rebuts that as well.
Neat. The government can now kill its own people or commit them to mental institutions or prisons forever. I wonder what will be next? Notice Kagan left out the bit about being a sex offender in her rebuttal. Perhaps we'll see this ruling extend to anyone who is called mentally ill and dangerous.