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At the Supreme Court today, a case will test the federal governments power to keep convicted sex offenders behind bars after theyve served out their prison terms. Eighty-four such prisoners are now being held at a federal prison in North Carolina. NPRs legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: Graydon Comstock is one of five men who brought this case. Six days short of completing a three-year prison term for possession of child pornography, he was designated as sexually dangerous, and the federal government moved to have him civilly committed for treatment. Hes been at the North Carolina facility now for two years more, with little prospect of release.

Congress authorized such indefinite civil commitments for the first time in 2006 for sex offenders who have completed their prison terms. Two lower federal courts invalidated the law, concluding that it overstepped the bounds of federal power under the Constitution, usurped powers reserved for the states and denied the due process of law to the individuals committed. The federal government appealed to the U.S. Supreme Court, which hears arguments in the case today.

Civil commitment is traditionally dealt with by the states, and more than 20 states do have laws that allow for indefinite civil commitment of sex offenders after they serve their time. Indeed, in 1997, the U.S. Supreme Court upheld one such law from Kansas.

But the Kansas statute offers more protections for the individual. Under the federal law, the hearing to justify commitment is before a judge, but Kansas allows for a jury trial. Most importantly, the Kansas law requires that the state prove beyond a reasonable doubt that the offender is still dangerous, while the federal law requires the less demanding standard of clear and convincing proof.

Beyond the protections for the individual, there's the question of the limits of federal power. For a federal action to be constitutional, it has to be authorized by a specific enumerated provision of the Constitution, and the Constitution has no general civil commitment provision. So the Obama administration is defending the statute by linking civil commitment to the federal government's custody of the men in prison.

Kansas Solicitor General Stephen McAllister, who filed a brief in the case siding with the federal government, summarizes the argument this way.

Mr. STEPHEN MCALLISTER (Solicitor General, Kansas): These individuals are legitimately, lawfully in federal custody. And the question is, is the federal government powerless when it has a dangerous, mentally abnormal individual in its custody? Is it powerless to do something with that individual in the realm of civil commitment?

The federal law does have a provision allowing for the transfer of dangerous prisoners to the states, but as McAllister concedes, the states aren't interested.

Mr. MCALLISTER: We don't want 'em.

TOTENBERG: Once in a treatment program, whether state or federal, the offender has little likelihood of winning release because treatment programs are widely considered ineffective. Besides, McAllister notes, some sex offenders who've been released have committed horrific crimes.

But lawyer Jeff Green, who filed a brief on the opposite side of the case, points to statistics showing a relatively low recidivism rate for sex offenders overall. The fact that some released offenders have committed terrible crimes proves a different point - that there's no way to predict future dangerousness.

Mr. JEFF GREEN (Attorney): Those are hideous tragic crimes, but they demonstrate that the experts, in terms of identifying which individuals are dangerous, are no better than astrologers.

TOTENBERG: If someone is truly dangerous, Green argues, then the government should seek prison terms that are long enough to protect the public - not rely on an open-ended civil commitment system.

Green maintains that the government's so-called treatment program is nothing more than a Catch-22, in which the offender is required to talk about his sexual fantasies and accept responsibility, but then those conversations can be used against him if he seeks release.

Mr. GREEN: How is he going to demonstrate that he's capable of modifying his behavior or that his mental illness is cured so that he can get out? That is a practical impossibility.

TOTENBERG: Or, as one lawyer who's visited the federal facility in North Carolina put it, it's a pervert's cruise ship to nowhere.

Kansas solicitor general, McAllister, concedes that few offenders get out once they're civilly committed in the states. That opens up more questions for a federal statute that provides fewer protections for the accused. If you can civilly commit someone as sexually dangerous, why not civilly commit people believed to be just dangerous in general? McAllister says civil commitment has to be linked to a mental abnormality or condition. But a lot of people in prison are deeply disturbed - drug addicts, kleptomaniacs, vicious sociopaths -why not commit them too once they have completed their prison terms?

Mr. MCALLISTER: Constitutionally, it might be possible. I don't have a constitutionally limiting line for what kinds of mental disorders might be permissible and those not. If they lead to danger to others, potentially, they could be covered under such a law.

TOTENBERG: In other words, this is a case that could have a constitutional ripple effect.

Nina Totenberg, NPR News, Washington.

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