WASHINGTON – The U.S. Supreme Court Tuesday appeared divided on the constitutionality of a 2006 law allowing the federal government to detain some sex offenders after they have served out their prison sentences.
The law is being challenged by four men convicted of various sex crimes who were ordered held after they completed prison terms, and a fifth man who was held after being judged mentally incompetent to stand trial for a sex offense.
The US Constitution grants American states the right to use police power to hold citizens indefinitely if their release would pose a significant threat to the rest of the population, though not all states use that power.
But in 2006, Congress passed legislation giving the federal government a similar power in the case of individuals deemed "sexually dangerous."
Critics of the legislation, which was signed by former president George W. Bush, said it gave the federal government unconstitutional power.
During an hour of oral argument Tuesday, US government lawyers said the legislation was only intended to be used in cases where states did not assume responsibility for "civil commitment" of convicts deemed likely to reoffend.
"This is not unusual, that the state takes custody," said Solicitor General Elena Kagan.
"If the state does not, the federal government would ensure that the person will stay in federal custody," she added.
But the court's nine justices appeared sharply divided on the question and cognizant of the implications of sanctioning indefinite detention on the basis of potential criminal acts.
Justice Antonin Scalia questioned the government's premise in arguing for the detention power, saying they had suggested: "It's constitutional because it's necessary."
"But I'm not sure it's even necessary," the conservative justice added.
But attorney G. Alan Dubois, arguing for the five men, said the constitution only allowed the use of detention as "a punishment for a crime."
So far, lower courts have agreed, ruling that the legislation is unconstitutional. The Supreme Court will rule on the case this spring.
© AFP 2013