Sexual Predators and Indefinite Detention

U.S. v. Comstock, 08-1224

Today, the Supreme Court of the United States ruled that certain prisoners can be incarcerated indefinitely.

Specifically, the court reversed a lower court ruling that said Congress overstepped its authority in allowing indefinite detentions of those deemed "sexually dangerous" and permitted their continued detention after the completion of mandated sentences.

Say what?

I had to read that several times before I was sure I was reading it correctly.

I don’t get this at all. 

Rather, I understand the concept and especially the sentiment, but I don’t understand how indefinite detention is constitutional.

Now I’m sure the High Court, not being completely insane and having a far greater understanding of the law and the Constitution than I do, must have some way to justify this decision – but I’ll be damned if I can understand how indefinite detainment past the end of a sentence is legal under the laws of the United States.

Justice Thomas and Justice Scalia agreed, though they were obviously in the minority.  Thomas opined that Congress may only pass laws that deal with the federal powers listed in the Constitution, and he went on to say that nothing in the Constitution "expressly delegates to Congress the power to enact a civil commitment regime for sexually dangerous persons, nor does any other provision in the Constitution vest Congress or the other branches of the federal government with such a power.”

However, the majority opinion, penned by Justice Breyer stated: “The statute is a 'necessary and proper' means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned and to maintain the security of those who are not imprisoned by who may be affected by the federal imprisonment of others.”

Right up front here, I am admittedly neither a constitutional scholar nor a lawyer.  However, I’ve read through the majority opinion and while I understand it (I think), I still don’t understand how a US citizen can be kept incarcerated after completion of their sentence solely at the whim of the government.  This seems to me a capricious and arbitrary application of power by fiat and a violation of the fundamental principles and rights embodied in the Constitution – and yes, I think even sexual predators and convicted criminals have rights.

It seems to me that indefinite commitment without sentencing, or in this case after completion of the sentence, at the whim of government was precisely what the Constitution was designed to prevent. 

Relax, you’re not about to see Jim Wright defending dangerous sexual predators. 

And to be clear, I think history has aptly demonstrated that a certain percentage of violent sexual predators most likely cannot be “cured” or rehabilitated (at least not with the assets available to the US penal system*) or trusted to run free without a keeper.  Certainly some may be able to suppress their inclinations and function successfully in society following release, but evidence would suggest that a significant number of violent sexual offenders are hard-wired for predation – and unless strictly supervised and controlled they will eventually give into the impulse and become a threat to society.  A number of high profile cases of recidivism would seem to prove this observation (though the actual number of violent sexual recidivism is not as high as sensational media reports would make it appear) and is in fact what ultimately underlies US vs Comstock – which was prompted by the 2006 Adam Walsh Child Protection and Safety Act.  Section 4248 (page 120, section 301 of the previous link) of the Act, the Commitment Provision, authorizes the federal government to initiate civil commitment proceedings (similar to committing someone with a mental disorder to mental institution against their will) with respect to any federal prisoner in the custody of the Bureau of Prisons judged to be a dangerous sexual offender (the difference being that the federal government doesn’t commit mental patients). Under this provision, prisoners who have completed their sentence AND even prisoners who have had criminal charges against them dropped or have never been previously charged with or convicted of a sex crime may be civilly committed as a “sexually dangerous person” indefinitely.

Wow.

Now, don’t get me wrong.  I’m all for keeping sexual predators behind bars for the rest of their wretched lives and I think the Adam Walsh law is a good one overall.  But I simply can’t understand how the commitment provision** is constitutional.  Why instead didn’t the law impose mandatory sentencing guidelines – say like the imposition of mandatory life sentences for Tier 1 offenders instead of indefinite detention?

Here’s my problem: 

First, what’s the point of this detention?  Will the detention be to a treatment facility for sexual predators?  Because up to now, those prisoners have been retained in the federal prison system.  So, other than keeping them off the street, what does the commitment accomplish? The provision makes some vague hand motions about “treatment,” but it’s pretty obvious what the intention is here and it doesn’t take a rocket scientist to figure out that those treatment programs won’t be any better funded than they are now, or any more effective.  No, it’s pretty obvious what the point of this is, and if the only reason to commit someone deemed a “sexually dangerous person” is to keep them off the street, then why aren’t they just sentenced to life in the first place (with the possibility of parole, if you like)?  Why not just change the sentencing limits instead of this constitutionally gray “civil commitment” nonsense?

Who decides which offenders are dangerous to society and therefore to be committed indefinitely? What criteria are used? What oversight is there?  Are they the same criteria from state to state, case to case, crime to crime?  What’s the review process? Is there one? Can a prisoner appeal his detention?  Ultimately, who really takes responsibility for the decision, both to retain certain prisoners and to release others? Remember, with this decision on the books, if the state releases a prisoner rather than detain him and later it turns out he’s a recidivist or he commits a sex crime (even if he wasn’t originally convicted or arrested for a sex crime) doesn’t that make the state potentially libel for his actions? Legally and criminally and financially libel? Probably best to commit everybody, right?  Think about it, State Attorney General is often a springboard into national politics (see Virginia), now if you’re that guy, career wise it’s probably in your best interest to detain everybody – for the good of society, of course.

In fact, what prevents all sexual crime convictions from being ipso facto life sentences? Period.

Just to be on the safe side, I mean.

Now, here’s the real question: since prisoners can be detained indefinitely as dangerous sexual predators, even if they were never convicted of a sexual crime, what are the safeguards to prevent arbitrary use of this provision? What keeps certain ethnicities and beliefs from being considered more dangerous than others?  Oh sure, it’s not supposed to happen, but it does every single day.  If the LA Cops pick up a gang banger on felony firearms violations – and he “gets off on a technicality" or some other common cliché, what’s to keep the state from putting him away indefinitely anyway because as a gang member he might engage in predatory sexual behavior (based on the fact that there have been numerous substantiated reports of gang rape and sexual crimes committed by the gang he belongs to – guilt by association)?   Why do real law enforcement and work for real convictions when you always have this ace in the hole?  If you’re a defense attorney, why bother, you’re going to lose anyway.  If you’re a prosecutor, why bother?  Just call him a dangerous sexual person and have done with it. Don’t the trials become a sham – if the state really wants to put you away? They can always declare you a sexually dangerous person and drop you into a deep dark hole for as long as they like.  Chateau d’If anyone?

What’s to prevent someone with the wrong politics from being detained indefinitely? Let me get this straight, you flew all the way to Argentina to spend a week with your mistress? Hmmm. Dangerous libido there don’t you think? We better keep that thing on a leash – at least until after the next election.

Or somebody with the wrong religious beliefs? What’s that? You don’t accept Jesus as your personal Lord and Savior? You know that atheists have no moral compass and believe that you can just rape and kill at will, right?  Better for everybody if we keep the non-Christians locked up until you see the light.

Or somebody with the wrong sexual orientation?  It’s a well known fact that all gay men must be pedophiles, isn’t it? Hey, we don’t allow them to marry for a reason, right?  Best to keep the perverts in jail, instead of out on the street demanding equality.

And so on.  Tell me why this won’t happen. Sooner or later.

Be honest.  Look at our history, look at how laws were twisted to prevent certain folks from marrying and voting and owning land or getting a fair shake in court.  Look at human nature, and tell me what prevents this from happening – if constitutional protections are bypassed or rationalized away. 

Sure this law was passed to protect children, tell me what the road to hell is paved with.

And while you’re at it, tell me what keeps the government from using this decision as a precedent for other similar-minded detentions in crimes such as, oh, I dunno, say terrorism?

Oh…wait…

 

Thoughts?

 

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I note that I get regular visits from SCOTUS’s IP address here at Stonekettle Station. Please, Supreme Court visitor, feel free to weigh in.  Thanks.

 

 

* Not all sexual predators are created equal, some will reoffend, some won’t.  Studies indicate that many can control their impulses given proper treatment and continued support, sort of like drug or alcohol abusers.  Unfortunately, as I stated in the text, high quality treatment and support is not commonly available to inmates and ex-cons, nor is the supervision required to ensure compliance with the post-incarceration treatment regimes.  The Phillip Garrido case is a perfect example.

 

** I also cannot understand how this law is not an ex post facto law and in violation of Article I, Section 9 of the US Constitution since it allows for retroactive application of its penalties against those who were sentenced, and completed their sentences, prior to its implementation.  For example, the law requires sex offenders (including those who have completed their sentences) to register in a national database that can be accessed by the public and imposes severe penalties for failure to comply. It also imposes strict restrictions on where they can live and who they can associate with.  (However, I have to be honest and say that while the Constitutionality of this provision bothers me intellectually, as a parent I damned well check that database monthly and I’m a big fan of keeping the sons of bitches away from schools and children. I am aware of my apparent hypocrisy, thanks).