United States v. Comstock - Reply (Petition)

No. 08-1224

In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

v.

GRAYDON EARL COMSTOCK, JR., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

ELENA KAGAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

In the Supreme Court of the United States

No. 08-1224

UNITED STATES OF AMERICA, PETITIONER

v.

GRAYDON EARL COMSTOCK, JR., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

The United States Court of Appeals for the Fourth Circuit held that 18 U.S.C. 4248 is unconstitutional be cause it exceeds Congress's powers under Article I of the Constitution. Pet. App. 3a. That invalidation of an Act of Congress is itself a compelling reason for grant ing review. See Pet. 14-15. That is especially so because the vast majority of all of the Section 4248 proceedings in the Nation are pending in the Fourth Circuit (Pet. 16 & n.10), and in the absence of review by this Court, those proceedings would have to be dismissed. More over, as discussed below, since the petition for a writ of certiorari was filed, a circuit split has developed. Re spondents present no good reason why this case is not the best vehicle for considering whether Congress has the power to protect the public against the release of federal inmates who suffer from a serious mental illness, abnormality, or disorder and are sexually dangerous to others. The petition for a writ of certiorari should be granted.

A.There Is Now A Circuit Split On The Constitutionality Of An Important Federal Statute

1. As explained in the petition (Pet. 14-15), this Court often grants certiorari, even in the absence of a circuit conflict, when a court of appeals has held an Act of Congress unconstitutional. The petition also ex plained (Pet. 16) that, because the principal Bureau of Prisons (BOP) facility for treating sex offenders is lo cated in North Carolina, the invalidation of Section 4248 by the Fourth Circuit is uniquely harmful to the stat ute's implementation. As a result, this case was already a prime candidate for certiorari when the petition was filed.

Since that time, however, the need for this Court's review has become even more compelling: there is now a conflict between the only two appellate decisions that have addressed whether Congress had the authority under Article I of the Constitution to enact Section 4248. In this case, the Fourth Circuit held that Section 4248 "lie[s] beyond the scope of Congress's authority." Pet. App. 3a. On May 13, 2009, however, the Eighth Circuit held that Section 4248 "is a rational and appropriate means to effectuate legislation authorized by the Consti tution," that civil commitment of a federal inmate who has been convicted of sex offenses lies within Congress's "ancillary authority under the Necessary and Proper Clause," and that Section 4248 "does not upset the deli cate federal[-]state balance mandated by the Constitu tion." United States v. Tom, No. 08-2345, 2009 WL 1311612, at *7, *8, *10.

Respondents imply that the Eighth Circuit's holding in Tom might be limited to civil-commitment authority "over individuals subject to continuing federal jurisdic tion through a period of supervised release following service of a federal sentence," Br. in Opp. 1-2 (quoting Tom, 2009 WL 1311612, at *11), but they do not claim that Tom can be distinguished from this case on that ground or that it minimizes the circuit split. To the con trary, they admit that, "[l]ike the respondent in Tom, four of the five respondents in this case have terms of supervised release that remain to be served." Id. at 5 n.3.

2. Rather than deny the existence of the circuit split, respondents suggest that this Court should wait for a case that might better "explor[e] the extent of [Section] 4248's reach" by addressing factual scenarios that re spondents believe lie further beyond Congress's legiti mate reach than their own cases. Br. in Opp. 4. That argument for denying certiorari might make sense if the Fourth Circuit had sustained Section 4248's application to respondents, because the Court might then await an other case to consider whether the statute nonetheless is unconstitutional in other applications. The Fourth Circuit, however, affirmed a district court decision (Pet. App. 28a-29a) that invalidated Section 4248 in all of its applications, concluding broadly that the establishment of a civil-commitment regime for sexually dangerous persons in federal custody is beyond Congress's author ity. That categorical ruling warrants this Court's review now.

Even assuming that other cases might present ques tions about the furthest reach of Congress's authority -an assumption not borne out by the cases respondents cite1-postponing review for one of those cases would not necessarily "conserve judicial resources." Br. in Opp. 4. A decision by this Court, for example, that Sec tion 4248 cannot be applied to persons whose BOP cus tody was unlawful still would not answer the question that is squarely presented in this case: whether Section 4248 can be applied to persons, like respondents, who were indisputably in lawful BOP custody when they were certified as "sexually dangerous" and who indis putably fall within the scope of the statute. The Fourth Circuit held that Section 4248 is unconstitutional even in those circumstances, and that holding warrants this Court's review.

B.The Petition Properly Addresses The Constitutionality Of Section 4248 As Applied To Persons In Respondents' Circumstances

Respondents suggest that the government has inap propriately sought to "narrow[] the plain language of the statute" (Br. in Opp. 6) by focusing in its question pre sented (Pet. i) on (1) "persons who are already in the custody of the Bureau of Prisons, but who are coming to the end of their federal prison sentences," and (2) "per sons who are in the custody of the Attorney General be cause they have been found mentally incompetent to stand trial." Those two categories of persons, however, are the categories within the scope of the statutory text that are represented by respondents in this case. The government consistently has argued that the statute is constitutional as applied to persons in those categories, and the court of appeals held otherwise. It thus makes sense for this Court to analyze whether the statute can be constitutionally applied to those two categories of individuals.2

With regard to the first category-those in BOP cus tody-the statutory text does not limit itself to persons who are nearing the end of a federal criminal sentence. But the government's framing of the question presented does not provide respondents with any cause for com plaint. That framing was designed to describe the pre cise position of four of the respondents, as well as to pose the constitutional question at issue in what respon dents would agree is its starkest form. Respondents defend the court of appeals' distinction between the fed eral government's "broad powers over persons during their prison sentences" and its supposed inability to pro vide for commitment "after the expiration of their prison terms." Pet. App. 14a; see Br. in Opp. 8. The govern ment's reference to persons "coming to the end" of their prison sentences (as opposed, for example, to persons just beginning to serve their sentences) was similarly meant to identify the most difficult cases, in which a cer tification will result in commitment after a person's term of imprisonment ends.

With regard to the second category of persons men tioned in the question presented-those who have been charged with federal offenses, but who have been found incompetent to stand trial and committed to the Attor ney General's custody-respondents repeat the court of appeals' inexplicable conclusion that the government somehow forfeited any argument that the statute could be constitutionally applied to respondent Catron. See Br. in Opp. 6-7; Pet. App. 19a n.10. But the government had neither reason nor need, in respondents' words, to "seek separate relief" (Br. in Opp. 6) for Catron in the Fourth Circuit. The government asked for exactly the relief that was appropriate in the circumstances, which was for the district court's invalidation of the statute to be reversed. Perhaps more important, in its briefing to the court of appeals, the government in fact dealt specif ically with Catron's case. As explained in the petition (Pet. 30), the government argued in a four-page section of its principal brief and again in its reply that Catron's certification was based on grounds distinct from those of the other four respondents, and that Greenwood v. United States, 350 U.S. 366 (1956), therefore applies differently to his case (as respondents agree) than to those of the other respondents.

C.The Court Of Appeals' Analysis Remains Difficult To Square With This Court's Decision In Greenwood

Respondents address the merits of the Fourth Cir cuit's constitutional analysis by asserting that, however "important" the question presented, it does not "con flict[]" with this Court's decisions but instead "embraces them." Br. in Opp. 7 (citing Greenwood, supra, and United States v. Morrison, 529 U.S. 598 (2000)). Their discussion of Greenwood, however, continues to be based on a distinction between those who have not yet been prosecuted and those who already have been convicted. Id. at 13-15. They thus conspicuously fail to explain why the proceedings against respondent Catron, who was not prosecuted, exceed Congress's authority. See Pet. 29- 30. And even as to the other four respondents, their attempt to limit Greenwood to cases involving persons declared incompetent to stand trial (Br. in Opp. 15) im plicitly concedes the government's argument (Pet. 24) that Greenwood did not purport to "place beyond Con gress's power any ability to address * * * threats posed by other persons (like most of respondents here) who have not only been indicted but also convicted of federal crimes and imprisoned by the federal govern ment."

Respondents otherwise address the constitutional issue by refuting arguments the government has not made. The government does not assert a general fed eral police power (Br. in Opp. 10-12), and does not claim that the Necessary and Proper Clause gives Congress powers that are not "tether[ed]" (id. at 8) to other pow ers vested in the federal government. But for matters that fall within Congress's enumerated powers, respon dents do not deny that Congress has the authority under the Necessary and Proper Clause "to enact criminal laws, provide for the operation of a penal system, and assume for the United States custodial responsibilities for its prisoners." Pet. 18. And respondents fail to dem onstrate why Congress cannot reasonably determine that in the case of a person who has become mentally ill and a danger to society, those custodial responsibilities include "provid[ing] for his supervision, treatment, and care-where the most relevant States decline to do so- rather than simply [releasing him] into society at large." Pet. 2-5, 20-22.

D.The Court Should Not Add A Due Process Question That Has Not Been Addressed By Any Court Of Appeals

1. Respondents "request" (Br. in Opp. 17) that, if the Court grants certiorari in this case, it also "order the parties to address whether the Due Process Clause man dates the application of the reasonable doubt standard to the factual determination required by [Section] 4248" concerning an individual's previous "sexually violent conduct or child molestation." The court of appeals did not reach that question. See Pet. App. 4a n.1. And re spondents do not claim that their due process argument independently warrants certiorari at this time. They suggest only (Br. in Opp. 17) that this Court would fos ter "judicial economy" by deciding their due process challenge now. The due process issue, however, is en tirely separate from the question presented in the peti tion, and it has not yet been decided by any court of ap peals. That alone should suffice to reject respondents' request.

As this Court recently explained, under its "usual procedures," it does not decide questions that have not already been answered by a court of appeals, because "[t]his Court * * * is one of final review, 'not of first view.'" FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1819 (2009) (quoting Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005)). That is especially true with regard to constitutional questions. Thus, in Fox Television, the Court upheld certain FCC orders against a challenge under the Administrative Procedure Act, 5 U.S.C. 551 et seq., but, because the court of appeals had "not defini tively rule[d] on the constitutionality of the Commis sion's orders," this Court refused the respondents' re quest that it "decide their validity under the First Amendment." 129 S. Ct. at 1819.3 Although respon dents mention that their due process challenge was "fully litigated in the district court" (Br. in Opp. 17), that consideration is insufficient to warrant exceptional treatment. See, e.g., Aschroft v. ACLU, 535 U.S. 564, 585-586 (2002).

2. In any event, respondents' due process argument lacks merit. This Court previously has held that a civil- commitment framework predicated on clear and con vincing evidence of mental illness and future dangerous ness does not violate due process. See Addington v. Texas, 441 U.S. 418, 431-433 (1979). Section 4248 satis fies that standard by requiring the government to prove by clear and convincing evidence that an individual "suf fers from a serious mental illness, abnormality, or disor der as a result of which he would have serious difficulty in refraining from sexually violent conduct or child molestation if released." 18 U.S.C. 4247(a)(6). Respon dents contend that Section 4248 violates due process because the additional showing it requires-that the individual "engaged or attempted to engage in sexu ally violent conduct or child molestation," 18 U.S.C. 4247(a)(5)-need not be proved beyond a reasonable doubt. But Congress's requirement in Section 4248 of a further showing, beyond what due process requires, to justify civil commitment, provides no reasonable basis for finding the provision unconstitutional. Here, Con gress has increased the evidentiary burden on the gov ernment above the constitutionally mandated floor. In doing so, Congress need not demand that the govern ment make its additional showing by the highest possi ble burden of proof.4

* * * * *

For the foregoing reasons and those stated in the petition for a writ of certiorari, the petition should be granted.

Respectfully submitted.

ELENA KAGAN
Solicitor General

JUNE 2009

1 Neither of the two cases respondents discuss (Br. in Opp. 3-4) would be a better vehicle for considering Section 4248's constitutional ity. In United States v. Hernandez-Arenado, No. 08-2520 (7th Cir. argued Sept. 12, 2008), the respondent is a Mariel Cuban, an alien whose immigration parole was revoked, who was detained by the Immi gration and Naturalization Service in 1987, and who has since then been held in BOP facilities. See United States v. Hernandez-Arenado, No. 08-278, 2008 WL 2373747, at *1 (S.D. Ill. June 9, 2008). He has not presented a constitutional challenge to Section 4248, but instead has argued that he was not "in the custody of the Bureau of Prisons" within the meaning of Section 4248(a) when the government certified him as sexually dangerous. Moreover, Hernandez-Arenado would present dif ferent constitutional considerations, because an inadmissible alien is not a citizen of any State and is subject to Congress's "plenary" authority. Kleindienst v. Mandel, 408 U.S. 753, 769 (1972).

In United States v. Shields, No. 09-1330 (1st Cir. notice of appeal docketed Mar. 19, 2009), no briefs have been filed on appeal. Respon dents assert (Br. in Opp. 3) that Shields presents a question about whether Section 4248 applies to a person who is "unlawfully" in BOP custody. That characterization stems from Shields's claim that his release date should have been two days earlier to correct an administra tive error that denied him credit for previous time served-which would mean that he was certified the day after, rather than the day before, his sentence expired. The district court, however, treated Shields as in lawful BOP custody and described him as serving a 57-month prison term for a child-pornography offense at the time of his certification. United States v. Shields, 522 F. Supp. 2d 317, 322-323 (D. Mass. 2007). That ruling substantially limits the likelihood that any constitutional analysis on appeal in Shields will explore the broader questions respon dents raise about "the extent of § 4248's reach" (Br. in Opp. 4).

2 That is not to say, of course, that the statute cannot also be consti tutionally applied to other persons, such as those "against whom all criminal charges have been dismissed solely for reasons relating to [their] mental condition." 18 U.S.C. 4248(a). The proceedings against respondents, however, do not present such a question.

3 The posture of Cutter was even more analogous to this case. The court of appeals held that a federal statute violated the Establishment Clause. Cutter, 544 U.S. at 718 n.7. At the certiorari stage, the peti tioners presented only an Establishment Clause question, Pet. at i, Cutter, supra (No. 03-9877), but the respondents argued that "the Court should review the other constitutional issues regarding [the statute's] validity, such as challenges under the Spending and Com merce Clauses and the Tenth and Eleventh Amendments," Br. in Opp. at 14. Although the parties briefed the additional constitutional ques tions at the merits stage in Cutter, see, e.g., Pet. Br. at 36-49; U.S. Br. at 37-49; Resp. Br. at 25-33; U.S. Reply Br. at 14-20, this Court refused to consider those "defensive pleas" because they "were not addressed by the Court of Appeals." 544 U.S. at 718 n.7.

4 Even if respondents were correct on the merits of their due process argument, it would not provide an alternative ground for affirming the judgment of the court of appeals, because the proper remedy would not be invalidation of Section 4248 as a whole. If due process requires a higher burden of proof for certain facts than the "clear and convincing evidence" standard in Section 4248(d), the Court would need to deter mine whether that standard is severable from the rest of the statute. See, e.g., Ayotte v. Planned Parenthood, 546 U.S. 320, 328-330 (2006). Assuming it is, the court of appeals' judgment-which affirmed the district court's grant of respondents' motions to dismiss, Pet. App. 21a, 94a-would need to be vacated so that the cases against respondents could proceed under a higher burden of proof.