Power to Detain Beyond Prison Term at Issue

WASHINGTON (CN) - Lawyers argued before the Supreme Court Tuesday over whether the government can detain those judged sexually dangerous for indefinite periods beyond their prison terms, often applying the dangerous label in last-minute moves to delay release. "Under the theory that you are proposing, any dangerous person could be held indefinitely," Justice Sonia Sotomayor asked the government lawyer.

"What you're saying is that the federal government, merely because of their time in control of the individual, has an unlimited constitutional power to then civilly commit this dangerous person," she added.

Five sexually dangerous prisoners sued the government, four of who were kept more than two years after their sentences expired and were labeled as sexually dangerous less than one month before their scheduled releases. One was declared sexually dangerous the day he completed his 96- month sentence.

Solicitor General Elena Kagan represented the government and argued that the government must release criminals responsibly by avoiding the release of those who continue to be dangerous. She said the federal government is still responsible for prisoners after their sentence expires and that its continued involvement is necessary because states wary of the high costs hesitate to "take responsibility for these people."

Chief Justice John Roberts noted that the government only retains prisoners, but that it does not pick up and detain citizens on the street for being sexually dangerous. He asked why then did the criminals not get the same treatment once their term expired and they became free citizens.

Justice Anthony Kennedy followed up. "Could the federal government order commitment of anyone who's been in federal custody over the last 10 years?" he asked skeptically.

Kagan replied that recommitting a criminal after ten years would be a harder case.

The justices questioned why the federal government, and not states, should be responsible for criminals after they serve time in federal prison. Sotomayor suggested that the issue did not touch on interstate interactions and Justice Antonin Scalia voiced an objection to Kagan's argument that the power to retain criminals falls under the Necessary and Proper Clause.

"I'm not terribly impressed with the argument that states won't do it," Scalia said. "This is a recipe for the Federal Government taking over everything.

Federal Public Defender Alan Dubois represented the five criminals, who filed with Graydon Earl Comstock. Dubois argued that once a prison term expires, any further detention must rest on a separate crime, and he noted that the continued custody as a result of the sexually dangerous designation is completely detached from the original crime and that such continued custody is not within the government's power.

Justice John Paul Stevens asked if the government could detain a prisoner past his sentence if he developed a highly contagious disease.

Dubois, who continually described the federal government as having narrow powers, maintained his stance and replied that it could not, arguing that public health is largely a state issue. He broadly claimed that prisoners cannot be held after their sentences expire even for the safety of others.

Justice Samuel Alito questioned Dubois on the role of the federal government after prisoners are released. "Do you think that the Congress has the power to remedy problems that are caused by the operation of the federal prison system, caused by incarceration?"

Dubois replied that it does have limited power to address such problems.

The sexually dangerous classification is independent of the original crime. Of the 103 prisoners certified as sexually dangerous under the act, 20 had been serving time for non-sexual crimes.

The prisoners argued that the Adam Walsh Child Protection and Safety Act of 2006 - which authorizes the government to continue to detain sexually dangerous prisoners until they are no longer sexually dangerous - is an overreach of Congressional power.

The district court sided with the prisoners and the 4th Circuit affirmed.

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