Along with the constitutional problems, civil commitment is a problem because it takes another step down a road we have already traveled too far -- the medicalization of crime. A criminal act generally involves both a motive to violate the law and a decision to actually do it. Many sex offenders may very well have a mental disorder that causes them to have a desire that the rest of us simply do not have, such as having sexual relations with children. It does not follow, though, that their decision to act on that desire is the product of a mental illness. As added by this Act, 18 U.S.C. § 4247(a)(6) defines a person "sexually dangerous to others" to mean "that the person suffers from a serious mental illness, abnormality, or disorder as a result of which he would have serious difficulty in refraining from sexually violent conduct or child molestation if released." The term "serious difficulty" appears to be an attempt to straddle the moral fence between saying that actually committing the offense is an act of free will for which the person is fully morally responsible and saying that the illness made him do and he had no choice, so he is not responsible. I am not sure that an illness of the type described in the statute exists, but if it does it certainly does not include all sexually dangerous persons.

For the long run, at least, the better approach is to return to indeterminate sentencing for major sex offenses. Rapists and adults who have sex with young children should be sentenced to terms of X-to-life, and the parole board will decide when, if ever, to let them out based purely on an assessment of dangerousness. Whether they are likely to reoffend because they can't help themselves or because they are just plain evil and have no intention of refraining makes no difference. Indeterminate sentencing was upheld as constitutional long ago, and it suffers from none of the legal problems that have plagued and will continue to plague civil commitment.

This new federal law adds an additional dimension to the constitutional mix, and that issue occupies most of the opinion. Protecting people from violent crime is a very important function, arguably the most important function, of state and local government. But is it a function of the federal government? United States v. Lopez, 514 U.S. 549 (1995) held that banning guns from the area around local schools was not within the federal power. United States v. Morrison, 529 U.S. 598 (2000) held that providing a civil remedy for "gender-motivated violence" was not. The district judge held that this commitment law similarly went outside the bounds of the enumerated powers that the Constitution sets out for the federal government. We will have to wait and see how this develops on appeal.