There Ain't No End for the 'Wicked': Implications of and Recommendations for § 4248 of the Adam Walsh Act After United States v. Comstock

• Author: Ryan K. Melcher
• Position: J.D. Candidate, The University of Iowa College of Law, 2012; B.A., Wayne State University, 2008
• Pages: 629-664

629

There Ain’t No End for the “Wicked”:

Implications of and Recommendations for

§ 4248 of the Adam Walsh Act After

United States v. Comstock

Ryan K. Melcher

ABSTRACT: The civil commitment of “sexually dangerous persons” is not

a new concept. States began committing such persons in the mid-twentieth

century, based then on “sexual psychopathy.” Since that time, concepts of

“sexually dangerous predators” have evolved, and the laws have evolved

with them. It was not until 2006, however, that Congress created federal

laws to mirror those of the states. The Adam Walsh Act, named after the son

of television host John Walsh, was created to “protect children” and “make

communities safer.” The Supreme Court in United States v. Comstock

held the Act constitutional under the Necessary and Proper Clause. While

Congress may have had good intentions in passing the Act, the Supreme

Court’s ruling in Comstock created a veritable “blank check” for

Congressional power and paved the way for imposing exorbitant costs on the

states, in a time when fiscal pressures make simply implementing the law

nearly impossible. This Note explores the rationales behind the Comstock

decision and the Adam Walsh Act, highlights the damaging implications of

the decision and the good intentions of Congress, and makes

recommendations for the future of both the case and the Act itself.

I

NTRODUCTION ...................................................................................... 631

I. BACKGROUND ........................................................................................ 632

A. THE ADAM WALSH ACT .................................................................... 632

B. THE CASE: UNITED STATES V. COMSTOCK ...................................... 634

II. THE SUPREME COURT RULING AND THE FIVE CONSIDERATIONS ........... 635

A. THE MAJORITY OPINION ................................................................... 636

 J.D. Candidate, The University of Iowa College of Law, 2012; B.A., Wayne State

University, 2008.

630 IOWA LAW REVIEW [Vol. 97:629

1. The First Consideration: The Breadth of the Necessary

and Proper Clause .................................................................. 636

2. The Second Consideration: The Long History of

Federal Involvement in Civil Commitment .......................... 637

3. The Third Consideration: The Government’s Custodial

Interest in Safeguarding the Public from Dangers Posed

by Those in Federal Custody ................................................. 638

4. The Fourth Consideration: The Statute’s

Accommodation of State Interests ........................................ 639

5. The Fifth Consideration: The Statute’s Narrow Scope ....... 640

B. CONCURRING OPINIONS .................................................................... 641

C. DISSENTING OPINION: JUSTICE THOMAS ............................................ 641

III. POTENTIAL IMPLICATIONS OF THE FIVE CONSIDERATIONS .................... 644

A. A “BLANK CHECK” FOR CONGRESS .................................................... 645

B. FISCAL COSTS ................................................................................... 649

C. BAIT-AND-SWITCH PLEA DEALS ......................................................... 650

IV. RECOMMENDATIONS FOR THE FUTURE .................................................. 652

A. THE SUPREME COURT SHOULD FIND THAT THE AWA VIOLATES

THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. .......... 652

1. The Reasoning Behind the Court’s Opinion in

Addington Suggests the Beyond-a-Reasonable-Doubt

Standard of Proof Should Be Applied in Civil-

Commitment Proceedings ..................................................... 654

2. The Concerns of the Addington Court Are Antiquated ....... 655

3. The Appellant and Statute in Hendricks Are

Distinguishable from Comstock and the AWA .................... 656

B. RESERVE POWER TO THE STATES ....................................................... 659

C. ABOLISH CIVIL COMMITMENT FOR SEX OFFENDERS ENTIRELY ............ 661

CONCLUSION ......................................................................................... 663

2012] THERE AIN’T NO END FOR THE “WICKED” 631

INTRODUCTION

Society does not like criminals. We use phrases like scum of the earth, dirt-

bags, and evil-hearted to describe them, sometimes deservedly, other times

unfairly, as broad generalizations. Even historical figures such as Napoleon1

and Calvin2 had their own colorful descriptions of the thieves, assaulters,

drug users, and murderers that plague our culture.

But the public at large has particularly bitter feelings about sex

offenders. Historically, society’s view of mental illness—a prerequisite for

civil commitment and a facet of the definition of sexually dangerous person3—

and of sex offenders has been “one of intolerance rather than compassion.”4

This distaste is not exclusive to the general public—the lawmakers in

Congress have their own things to say about this group of people. For

example, one Congressman has commented on the “wicked hearts of child

predators . . . who have no decency and know no shame,”5 and another has

described them as “monsters.”6 Some states have even created especially

harsh laws against sex offenders.7 In 2006, Congress enacted the first set of

federal laws specifically targeting sex offenders: the Adam Walsh Child

Protection and Safety Act of 2006 (the “Act” or “AWA”).8

The stated goal of the Act is “to protect children, [and] to secure the

safety of judges, prosecutors, law enforcement officers, and their family

members.” One portion of the Act, the Jimmy Ryce Civil Commitment

Program (“civil-commitment provision”), codified at 18 U.S.C. § 4248,

allows for the civil commitment of sex offenders whom the government

1. “The infectiousness of crime is like that of the plague.” Napoleon Bonaparte Quotes,

BRAINYQUOTE.COM, http://www.brainyquote.com/quotes/quotes/n/napoleonbo150169.html

(last visited Oct. 22, 2011) (emphasis added).

2. “In my opinion, we don’t devote nearly enough scientific research to finding a cure for

jerks.” BILL WATTERSON, ATTACK OF THE DERANGED MUTANT KILLER MONSTER SNOW GOONS 58

(1992) (statement of Calvin, of Calvin and Hobbes fame, that is).

3. See, e.g., 42 U.S.C. § 16971(e)(2) (2006).

4. Melissa Wangenheim, Note, ‘To Catch a Predator,’ Are We Casting Our Nets Too Far?:

Constitutional Concerns Regarding the Civil Commitment of Sex Offenders, 62 RUTGERS L. REV. 559,

568 (2010); see also Michael Ko & Maureen O’Hagan, Child-Sex Case Jolts Family, Small

Community, SEATTLE TIMES (Mar. 27, 2004), http://seattletimes.nwsource.com/html/

localnews/2001889375_sexcrimes27m.html (“‘I don’t want none of [him], he’s a sick bastard,’

[the sister of a charged sex offender] said.”).

5. 152 CONG. REC. H5705, 5724 (daily ed. July 25, 2006) (statement of Rep. Mike

Pence).

6. Id. at H5727 (statement of Rep. Phil Gingrey).

7. As part of sentencing, eight states allow chemical castration; hurricane shelters in

Florida ban sex offenders from entering during natural disasters; and some states even hold

family members of sex offenders criminally liable for the offenders’ actions. Corey Rayburn

Yung, The Emerging Criminal War on Sex Offenders, 45 HARV. C.R.-C.L. L. REV. 435, 449 (2010).

8. Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat.

587 (codified in part at 18 U.S.C. § 4248 and 42 U.S.C. §§ 16901–16929, 16971).