Dan Williamson
New Member
- Jurisdiction
- Kansas
Hi,
My son has written an article (listed below) concluding that: Prison sentences are illegal under the "Commerce Clause".
He is in prison and does not have email access.
The purpose of this email is to gain professional feedback on the merits of his claim.
Prison sentences are not a legitimate means of regulation under the "Commerce Clause".
Written by Brett Williamson
The question was posed on AVVO.com whether prison sentences are a proper means of regulation under the Commerce Clause. See: https://www.avvo.com/legal-answers/are-prison-sentences-a-proper-means-of--regulation-5260248.html. Two attorneys responded that the sentence has nothing to do with the authority to regulate under the Commerce Clause. But there is case law supporting that the sentence--being a sanction, disability and a means to an end--is relevant to the question of what regulation is, which, in turn, is relevant to the question of power.
Attorneys should already be aware that, in determining whether the Necessary and Proper Clause grants Congress the authority to enact a particular law, courts look to whether the statute constitutes a means that is rationally related to the implementation of an enumerated power; a means-ends rationality test. See U.S. v. Comstock, 560 U.S. 126, 134 (2010). In exercising the authority conferred under the Commerce Clause, "[Congress] is powerless to do anything about commerce which is not regulation." Carter v. Carter Coal Co., 298 U.S. 238, 297 (1936). Accordingly, the question is "whether the means chosen are 'reasonably adapted' to the attainment of a legitimate end under the commerce power." Comstock, 560 U.S. at 135.
Attorneys should also be aware of the distinction between penal laws and regulatory laws. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963). Penal laws inflict punishment for the purpose of punishment while regulatory laws impose punishment, not to punish, but to accomplish other legitimate governmental objective such as protecting the public. See Trop v Dulles, 356 U.S. 86, 96 (1957) (plurality opinion). Notice that courts use the penalty imposed to determine whether the purpose of the statute is to regulate or to punish. See Mendoza-Martinez, 372 U.S. at 168-69. Note also that the case cites Child Labor Tax Case for the proposition that "whether an alternative purpose to which [the sanction] may rationally be assigned for it, and whether it appears excessive in relation to the alternative purpose assigned, are all relevant to the inquiry." Ibid. In that case, SCOTUS invalidated a statute that attempted to regulate conduct under the guise of raising the revenue under the Taxation Clause. See: Child Labor Tax Case, 259 U.S. 20, 36-44 (1922). Likewise, the sentence is relevant to the question of jurisdiction.
I cannot stress enough that the touchstone of the inquiry is whether the primary purpose of the statute is the attainment of a legitimate end. That is the whole point being made in all of the cases from McCulloch v. Maryland, 17 U.S. 316 (1819), Anderson v. Dunn, 19 U.S. 233 (1821), Marshall v. Gordon, 243 U.S. 521 (1917), Child Labor Tax Case and U.S. v. Butler, 296 U.S. 1 (1936) through Comstock and U.S. v. Kebodeaux, 570 U.S. 387 (2013).
An astute attorney should have also noticed that the means-to-an-end rationality test referred to in Comstock is identical to the test used to determine whether a restriction violates substantive due process. See Sacramento Cty. v. Lewis, 523 U.S. 833, 846 (1998); Washington v. Glucksberg, 521 U.S. 702, 708 (1997). This is why the Mendoza-Martinez factors are relevant to the question of whether particular restrictions and conditions accompanying regulatory detention were imposed for the purpose of punishment or as "an incident of some other legitimate governmental purpose." Bell v. Wolfish, 441 U.S. 520, 538 (1979).
Punishment is not a legitimate end under the Commerce Clause. It is only a legitimate end where it has been expressly given. See Anderson, 19 U.S. at 233; McCulloch, 17 U.S. at 417. And prison sentences are primarily adapted to punishment. See Heller v. Doe, 509 U.S. 312, 325 (1993)("confinement in prison is punitive"); Mackin v. U.S., 117 U.S. 348, 352 (1886)(imprisonment in a prison or penitentiary is punitive). Not all imprisonment is punitive, though. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001); Kansas v. Hendricks, 521 U.S. 346 (1997); U.S. v. Salerno, 481 U.S. 739 (1987); Marshall, 243 U.S. at 542. Not all crimes are punitive either. See Chicago, B. & Q. R. Co. v. U.S., 220 U.S. 559, 577-78 (1911).
SCOTUS has not yet addressed the question of whether punishment is a legitimate end under the Commerce Clause. The closest it has come to the issue is in Lottery Cases, 188 U.S. 321 (1903), where counsel argued that, "by punishing those who cause [lottery tickets] to be [carried from state to state,] Congress in effect prohibits such carrying," id. at 354, and "the authority given Congress was not to prohibit, but to regulate." Ibid. Violations of the statute were "punishable ... by imprisonment for not more than two years." Id. at 322. But the question before the Court was not whether the punishment was adapted to a legitimate end under the Commerce Clause, and prohibition is a form of regulation. Thus, it is no surprise that SCOTUS held that "legislation to that end, and of that character, is not inconsistent with any limitation or restriction imposed upon the exercise of the powers granted to Congress." Id. at 364. The Court came to this conclusion by viewing prohibition as the means of protecting the public. Id. at 355. "There is no doubt that preventing danger to the community is a legitimate regulatory goal." Salerno, 481 U.S. at 747. Had the question been whether punishment is a legitimate end under the Commerce Clause, the outcome would have been different.
Federal prison sentences are primarily adapted to punishment. They are imposed for the purposes of retribution and deterrence, see 18 U.S.C. § 3553(a)(1) and (2), which "are not legitimate [regulatory] objectives." Wolfish, 441 U.S. at 539 n. 20. They are "not an appropriate means of promoting correction and rehabilitation," 18 U.S.C. § 3582(a), nor are they an appropriate means of protecting the public. See Urban Institute, Transforming Prisons, Restoring Lives: Final Recommendation of the Charles Colson Task Force on Federal Corrections (2016). Logic dictates the conclusion that if prison sentences are not an appropriate means of promoting correction and rehabilitation, then it is excessive in relation to the objective of protecting the public and, consequently, not reasonably related to that objective. See Wolfish, 441 U.S. at 538 (a sanction that is excessive in relation to the legitimate purpose is not reasonably related to that purpose). If the statutes were not punitive, they would civilly commit offenders as a means of protecting the public instead. See 18 U.S.C. § 4246.
Based on the foregoing, everyone in federal prison under the Commerce Clause has been illegally imprisoned. The same is true under any other enumerated power where the power to punish is not expressly given unless the crime was committed in federal territory. Congress could hold a person in contempt at a detention center for failing to pay federal taxes, but not in prison if the crime was committed in the State. Nearly everyone in federal prison is there illegally. They should be in State prisons instead. The power to punish for the purpose of punishment is reserved to the States except in cases where the power is expressly given. And the primary cause of federal mass incarceration is punishment under the guise of regulation.
Do you believe that this article has any merit and/or would you care to share your opinion?
Thanks for your help!
My son has written an article (listed below) concluding that: Prison sentences are illegal under the "Commerce Clause".
He is in prison and does not have email access.
The purpose of this email is to gain professional feedback on the merits of his claim.
Prison sentences are not a legitimate means of regulation under the "Commerce Clause".
Written by Brett Williamson
The question was posed on AVVO.com whether prison sentences are a proper means of regulation under the Commerce Clause. See: https://www.avvo.com/legal-answers/are-prison-sentences-a-proper-means-of--regulation-5260248.html. Two attorneys responded that the sentence has nothing to do with the authority to regulate under the Commerce Clause. But there is case law supporting that the sentence--being a sanction, disability and a means to an end--is relevant to the question of what regulation is, which, in turn, is relevant to the question of power.
Attorneys should already be aware that, in determining whether the Necessary and Proper Clause grants Congress the authority to enact a particular law, courts look to whether the statute constitutes a means that is rationally related to the implementation of an enumerated power; a means-ends rationality test. See U.S. v. Comstock, 560 U.S. 126, 134 (2010). In exercising the authority conferred under the Commerce Clause, "[Congress] is powerless to do anything about commerce which is not regulation." Carter v. Carter Coal Co., 298 U.S. 238, 297 (1936). Accordingly, the question is "whether the means chosen are 'reasonably adapted' to the attainment of a legitimate end under the commerce power." Comstock, 560 U.S. at 135.
Attorneys should also be aware of the distinction between penal laws and regulatory laws. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963). Penal laws inflict punishment for the purpose of punishment while regulatory laws impose punishment, not to punish, but to accomplish other legitimate governmental objective such as protecting the public. See Trop v Dulles, 356 U.S. 86, 96 (1957) (plurality opinion). Notice that courts use the penalty imposed to determine whether the purpose of the statute is to regulate or to punish. See Mendoza-Martinez, 372 U.S. at 168-69. Note also that the case cites Child Labor Tax Case for the proposition that "whether an alternative purpose to which [the sanction] may rationally be assigned for it, and whether it appears excessive in relation to the alternative purpose assigned, are all relevant to the inquiry." Ibid. In that case, SCOTUS invalidated a statute that attempted to regulate conduct under the guise of raising the revenue under the Taxation Clause. See: Child Labor Tax Case, 259 U.S. 20, 36-44 (1922). Likewise, the sentence is relevant to the question of jurisdiction.
I cannot stress enough that the touchstone of the inquiry is whether the primary purpose of the statute is the attainment of a legitimate end. That is the whole point being made in all of the cases from McCulloch v. Maryland, 17 U.S. 316 (1819), Anderson v. Dunn, 19 U.S. 233 (1821), Marshall v. Gordon, 243 U.S. 521 (1917), Child Labor Tax Case and U.S. v. Butler, 296 U.S. 1 (1936) through Comstock and U.S. v. Kebodeaux, 570 U.S. 387 (2013).
An astute attorney should have also noticed that the means-to-an-end rationality test referred to in Comstock is identical to the test used to determine whether a restriction violates substantive due process. See Sacramento Cty. v. Lewis, 523 U.S. 833, 846 (1998); Washington v. Glucksberg, 521 U.S. 702, 708 (1997). This is why the Mendoza-Martinez factors are relevant to the question of whether particular restrictions and conditions accompanying regulatory detention were imposed for the purpose of punishment or as "an incident of some other legitimate governmental purpose." Bell v. Wolfish, 441 U.S. 520, 538 (1979).
Punishment is not a legitimate end under the Commerce Clause. It is only a legitimate end where it has been expressly given. See Anderson, 19 U.S. at 233; McCulloch, 17 U.S. at 417. And prison sentences are primarily adapted to punishment. See Heller v. Doe, 509 U.S. 312, 325 (1993)("confinement in prison is punitive"); Mackin v. U.S., 117 U.S. 348, 352 (1886)(imprisonment in a prison or penitentiary is punitive). Not all imprisonment is punitive, though. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001); Kansas v. Hendricks, 521 U.S. 346 (1997); U.S. v. Salerno, 481 U.S. 739 (1987); Marshall, 243 U.S. at 542. Not all crimes are punitive either. See Chicago, B. & Q. R. Co. v. U.S., 220 U.S. 559, 577-78 (1911).
SCOTUS has not yet addressed the question of whether punishment is a legitimate end under the Commerce Clause. The closest it has come to the issue is in Lottery Cases, 188 U.S. 321 (1903), where counsel argued that, "by punishing those who cause [lottery tickets] to be [carried from state to state,] Congress in effect prohibits such carrying," id. at 354, and "the authority given Congress was not to prohibit, but to regulate." Ibid. Violations of the statute were "punishable ... by imprisonment for not more than two years." Id. at 322. But the question before the Court was not whether the punishment was adapted to a legitimate end under the Commerce Clause, and prohibition is a form of regulation. Thus, it is no surprise that SCOTUS held that "legislation to that end, and of that character, is not inconsistent with any limitation or restriction imposed upon the exercise of the powers granted to Congress." Id. at 364. The Court came to this conclusion by viewing prohibition as the means of protecting the public. Id. at 355. "There is no doubt that preventing danger to the community is a legitimate regulatory goal." Salerno, 481 U.S. at 747. Had the question been whether punishment is a legitimate end under the Commerce Clause, the outcome would have been different.
Federal prison sentences are primarily adapted to punishment. They are imposed for the purposes of retribution and deterrence, see 18 U.S.C. § 3553(a)(1) and (2), which "are not legitimate [regulatory] objectives." Wolfish, 441 U.S. at 539 n. 20. They are "not an appropriate means of promoting correction and rehabilitation," 18 U.S.C. § 3582(a), nor are they an appropriate means of protecting the public. See Urban Institute, Transforming Prisons, Restoring Lives: Final Recommendation of the Charles Colson Task Force on Federal Corrections (2016). Logic dictates the conclusion that if prison sentences are not an appropriate means of promoting correction and rehabilitation, then it is excessive in relation to the objective of protecting the public and, consequently, not reasonably related to that objective. See Wolfish, 441 U.S. at 538 (a sanction that is excessive in relation to the legitimate purpose is not reasonably related to that purpose). If the statutes were not punitive, they would civilly commit offenders as a means of protecting the public instead. See 18 U.S.C. § 4246.
Based on the foregoing, everyone in federal prison under the Commerce Clause has been illegally imprisoned. The same is true under any other enumerated power where the power to punish is not expressly given unless the crime was committed in federal territory. Congress could hold a person in contempt at a detention center for failing to pay federal taxes, but not in prison if the crime was committed in the State. Nearly everyone in federal prison is there illegally. They should be in State prisons instead. The power to punish for the purpose of punishment is reserved to the States except in cases where the power is expressly given. And the primary cause of federal mass incarceration is punishment under the guise of regulation.
Do you believe that this article has any merit and/or would you care to share your opinion?
Thanks for your help!
