Imagine being in prison for a few years or many more than that, and counting the days to freedom, as Tom Waits’s Zack does at the beginning of this clip from Down by Law. Eventually the days until release are shorter than the days that have been spent in prison, and eventually the years turn into months, then weeks, and then days until release.

And then someone plays what seems a cruel joke, with a government lawyer slapping a petition to keep you incarcerated as a dangerous person under the civil commitment laws — under an evidentiary standard below the reasonable doubt standard, and without the right to a jury trial — after having completed your criminal sentence. It happens. U.S. v. Comstock, et al., __ F.3d __ (4th Cir., Jan. 8, 2008).

Fortunately, the Fourth Circuit today said this scenario is impermissible in federal court:

 "The power claimed by § 4248–forcible, indefinite civil commitment–is among the most severe wielded by any government. The Framers, distrustful of such authority, reposed such broad powers in the states, limiting the national government to specific and enumerated powers. 

‘[T]hat those limits may not be mistaken, or forgotten, the constitution is written."’Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803). Section 4248 thus cannot be sustained as an exercise of Congress’s authority under the Commerce Clause or any other provision of the Constitution. For these reasons, we affirm the judgment of the district court [denying such a civil commitment]." U.S. v. Comstock

As Comstock acknowledges, some other federal court — all trial courts — have reached the opposite conclusion, and Comstock does not interfere with civil commitment by state courts. This case looks headed for Supreme Court review.

Consequently, it seems prudent to seek a no-civil-commitment provision in a guilty plea agreement for criminal activity that might risk exposure to civil commitment efforts as the prison stay approaches its end. Jon Katz.