August 26, 2019

Archives for May 27, 2010

Tenth Circuit: Opinions, 5/27/10

Update: Many State Offices Closed for Long Holiday Weekend

The Colorado Office of the Governor reports that many state offices will be closed on Friday, May 28, for an extended Memorial Day weekend.

Colorado courts, the judicial branch, and the Office of the Attorney General will be open on Friday.

State offices closed on Friday are taking part in the final, mandatory furlough day for FY09-10. There are no furlough days planned for FY10-11. See here for a full listing of state offices that will be closed on Friday.

United States v. Comstock: Civil Commitment of “Sexually Dangerous” Federal Inmates

Editor’s Note: CBA CLE Legal Connection staff track U.S. Supreme Court cases and reactions, but we only post on select cases. We do, however, welcome and encourage members of the Colorado legal community to submit guest posts on recent cases. Please email your submissions to

In United States v. Comstock, the United States Supreme Court considered the constitutionality of 18 U.S.C. § 4248, authorized under The Adam Walsh Child Protection and Safety Act. The statute allows for the civil commitment of “sexually dangerous” federal inmates who are already completing prison sentences or are incompetent to stand trial. Upon completion of their sentences, the statute allows them to remain in federal custody indefinitely. If the inmate’s home state refuses to assume responsibility for the inmate’s custody, federal authorities have the power retain custody until the inmate is no longer sexually dangerous.

The statute was challenged by four federal inmates serving prison terms for possession of child pornography or sexual abuse of a minor. During their incarceration, the federal government found that they would pose a risk of further sexually violent conduct if they were released and began civil commitment proceedings against them. The four men challenged the proceedings and 18 U.S.C. § 4248, claiming the statute exceeded Congress’ authority under the Commerce Clause, was violative of due process and equal protection, and was cruel and unusual.

The Supreme Court found these arguments lacked merit and upheld the statute. In writing for the majority, Justice Breyer reasons that the statute is a constitutional exercise of Congress’ power under the Necessary and Proper Clause. However, the test for assessing assertions of power under the clause remains vague, according to Ilya Somin. He contends that Breyer’s use of a “rational basis” test is overly broad and could be used “to uphold almost anything.” In contrast, the Court also enumerated five factors that determined the ultimate outcome: 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. This five-part test is much less definitive and would appear to extend Congress less power under the Necessary and Proper Clause than the rational basis test.

Somin presents a question then as to what happens when a case arises in which “one or more of these considerations cuts the other way.” One such casualty of the five-part test could be the recent health care legislation, which may not be “narrow in scope,” does not “accommodate state interests,” and “may lack a comparable ‘long history of federal involvement.'”

Also of note, and discussed by Wendy McElroy, the ruling itself gave no consideration to issues of due process. The Court stated, “We do not reach or decide any claim that the statute or its application denies equal protection of the laws, procedural or substantive due process, or any other rights guaranteed by the Constitution.” According to McElroy, “the Court assumes a default position that indefinite confinement of a prisoner past his sentence is constitutional and legally proper” and the Fourth and Fifth Amendment due process protections, the Eighth Amendment protection against cruel and unusual punishment, and Fourteenth Amendment equal protection do not “automatically apply to ‘dangerous sex offenders.'” A concern then arises as to the applicability of the ruling, and whether such civil commitment proceedings may be applied to other categories of people; alcoholics and drug addicts are subject to such involuntary commitment in several states already.

See SCOTUSblog and SCOTUSwiki for more details and analysis of this case, and all recent U.S. Supreme Court cases.

(image source: United States Supreme Court)

Tenth Circuit: Opinions, 5/26/10

The Tenth Circuit on Wednesday issued no published opinions and two unpublished opinions.


United States v. Jackson

United States v. Macias