When the Feds Decide Who's Sexually Dangerous

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The wide applicability of this statute and lack of procedural safeguards distinguish it from state civil commitment laws previously upheld by the Supreme Court (this argument is presented in convincing detail in the NACDL amicus brief). In 1997, in Kansas v. Hendricks, the court upheld a controversial Kansas statute providing for the civil commitment of people deemed likely to commit "predatory acts of sexual violence" due to "mental abnormalities" or "personality disorders." But at least the Kansas law applied only to people previously convicted or charged with specified sex offenses and provided for jury trials in which alleged future dangerousness would have to be proved beyond a reasonable doubt.

Hendricks upheld the Kansas civil commitment scheme by a five-to-four vote, in a conventional liberal-conservative split. Justice Thomas wrote the majority opinion upholding the law, joined by Justices Rehnquist, Scalia, O'Connor, and Kennedy; Justice Breyer wrote the dissent, joined by Justices Ginsberg, Souter, and Stevens. In Comstock, however, the majority and dissent switched sides. Justice Breyer wrote for the majority, upholding a federal civil commitment statute that's less protective of individual rights than the state statute he would have struck down (he was joined by Ginsberg, Stevens, and Sotomayor; Kennedy, Roberts, and Alito concurred). Justice Thomas wrote the dissent, joined by Scalia.

What accounts for this switch? In Comstock, the court didn't address due process challenges to the federal civil commitment scheme; it was reviewing a decision by the Fourth Circuit Court of Appeals that struck down the federal statute as an unconstitutional exercise of congressional power, without reaching questions about due process (or other individual rights).

http://www.theatlantic.com/national/archive/2010/05/when-the-feds-decide-whos-sexually-dangerous/57005/