Supreme Court Rules Government Can Hold Citizens Indefinitely If They Are Deemed Sexually Dangerous

The U.S. Supreme Court has given the federal government sweeping new authority to hold people indefinitely — even after the completion of their sentences — if they find the individuals to be “sexually dangerous.” Notably, it is a reversal of the nation’s most conservative court of appeals — the Fourth Circuit — which ruled that Congress could not impose such an open-ended denial of liberty. Supreme Court nominee Elena Kagan argued for such authority, here. In the decision below written by Justice Stephen Breyer in United States v. Comstock, only two conservative justices dissented: Thomas and Scalia.

Four men contested their confinement after serving their prison terms for possession of child pornography or sexual abuse of a minor.

Thomas viewed the issue not in terms of due process but states rights. He objected to the sweeping view of the “necessary and proper” clause to allow Congress to impose such confinement:

The historical record thus supports the Federal Government’s authority to detain a mentally ill person against
whom it has the authority to enforce a criminal law. But it provides no justification whatsoever for reading the Necessary and Proper Clause to grant Congress the power to authorize the detention of persons without a basis for federal criminal jurisdiction.

Here is the opinion: 08-1224.

50 thoughts on “Supreme Court Rules Government Can Hold Citizens Indefinitely If They Are Deemed Sexually Dangerous

  1. While troubling at first blush, the statute in question has numerous safeguards to insure that the civilly committed person may contest the commitment. The opinion states:

    The federal statute before us allows a district court to
    order the civil commitment of an individual who is currently “in the custody of the [Federal] Bureau of Prisons,” §4248, if that individual (1) has previously “engaged or attempted to engage in sexually violent conduct or child molestation,” (2) currently “suffers from a serious mental illness, abnormality, or disorder,” and (3) “as a result of” that mental illness, abnormality, or disorder is “sexually dangerous to others,” in that “he would have serious diffi-culty in refraining from sexually violent conduct or childmolestation if released.” §§4247(a)(5)–(6).

    In order to detain such a person, the Government (acting through the Department of Justice) must certify to a federal district judge that the prisoner meets the conditions just described, i.e., that he has engaged in sexually violent activity or child molestation in the past and that he suffers from a mental illness that makes him correspondingly dangerous to others. §4248(a). When such a certification is filed, the statute automatically stays the individual’s release from prison, ibid., thereby giving the Government an opportunity to prove its claims at a hearing through psychiatric (or other) evidence, §§4247(b)–(c), 4248(b). The statute provides that the prisoner “shall be represented by counsel” and shall have “an opportunity” at the hearing “to testify, to present evidence, to subpoena witnesses on his behalf, and to confront and cross-examine” the Government’s witnesses. §§4247(d), 4248(c).

    If the Government proves its claims by “clear and con-vincing evidence,” the court will order the prisoner’s continued commitment in “the custody of the Attorney Gen-eral,” who must “make all reasonable efforts to cause” the State where that person was tried, or the State where he is domiciled, to “assume responsibility for his custody, care, and treatment.” §4248(d); cf. Sullivan v. Freeman, 944 F. 2d 334, 337 (CA7 1991). If either State is willing to assume that responsibility, the Attorney General “shall release” the individual “to the appropriate official” of that State. §4248(d). But if, “notwithstanding such efforts, neither such State will assume such responsibility,” then “the Attorney General shall place the person for treatmentin a suitable [federal] facility.” Ibid.; cf. §4247(i)(A).

    Confinement in the federal facility will last until either
    (1) the person’s mental condition improves to the point where he is no longer dangerous (with or without appropriate ongoing treatment), in which case he will be re-leased; or (2) a State assumes responsibility for his custody, care, and treatment, in which case he will be transferred to the custody of that State. §§4248(d)(1)–(2).The statute establishes a system for ongoing psychiatric and judicial review of the individual’s case, including judicial hearings at the request of the confined person at six-month intervals. §§4247(e)(1)(B), (h).

    Since we are limiting this commitment to only those persons certified as mentally ill with violent dispositions and with proclivities to sexual assault or child molestation and in the presence of numerous due process guarantees, I think the decision is sound.

  2. The dissent demonstrates that strict constructionist does not equal conservative. Thomas’s dissent is correct. The federal government does not have this power.

  3. First time I have ever found myself in agreement with Thomas.

    “While troubling at first blush, the statute in question has numerous safeguards to insure that the civilly committed person may contest the commitment.”

    I might point out that those incarcerated at Gitmo also enjoy the right of contesting their commitment.

  4. The Moar You Know:

    “I might point out that those incarcerated at Gitmo also enjoy the right of contesting their commitment.”

    And both Adolph Hitler and Albert Schweitzer sported mustaches. What should I draw from that?

    I see considerable differences with both probable cause, offense, due process and, most importantly, the reason for commitment. We are dealing with convicted offenders certified as suffering from mentally illness and guilty of being an un-rehabilitated sexual predator with violent tendencies towards women and children. Not one, I bet, was picked up on an Afghan battlefield after being fingered by a paid informant with an axe to grind. One wonders if there even exists a more compelling reason to commit someone to a mental facility.

  5. Yes, but the Federal Gov’t is not given that authority in the Constitution. It may be a positive result (in your opinion and mine), but it’s the definition of unconstitutional.

  6. This is a tough one. While they have sentenced the victim to a life of torture and hell the perp if freed will more than likely commit the same crime again. So I can see the value of this incarceration. However, to decide this on a states right issue sucks rock. It is the Federal Statutes that the states adopted and the many Sct decisions that brought some uniformity into the states.

    Unfortunately the Sct has said that they are not deserving of the death penalty. Maybe they should revisit this issue with this decision in mind.

  7. mespo,

    “Not one, I bet, was picked up on an Afghan battlefield after being fingered by a paid informant with an axe to grind.”

    I’m going to take that bet. That’s easy money if you think that at least one Afghan didn’t get the military or contractors to do their dirty work. Methinks you underestimate their craftiness. That kind of crap has been going on since occupations were invented. Ask the French Resistance.

  8. As to the statute, as long as the technicalities are met and due process served, this isn’t an awful law. The hurdle to clear is quite high from a prosecutor’s standpoint. Second to mespo.

  9. Couple of rambling thoughts on this ruling:
    Last Christmas The Rude Pundit did a riff on Glenn Beck’s retelling of his ‘Christmas Sweater’ story and said ” … Al Pacino at his most scene-chewing, barking mad would look at Beck and say, “Too far, motherfucker, too far. …”

    I could/can HEAR Pacino say that in my mind in that wonderful voice of his. Daily, as I scan the blawgs and read the stories my first, unbidden, reflexive response to some of them is the voice of Al Pacino saying “Too far, motherfucker, too far.” clear as a bell. As with this story.

    You can put as much lipstick on this pig as you want but this is nothing more or less than the legalization of an ‘Indefinite Detention’ statute for select criminal activities that circumvents the (heretofore) legal process. Will it be the first and only? Somehow I don’t think so.

    How many of these felons had access to the use of ‘not guilty by reason of mental illness or defect’ when originally tried? I would bet, knowing nothing about their individual cases, that either they did not qualify to use that defense or that the jury did not buy it if they did use that defense. Is the State now doing an end-run around the jury system of criminal justice and using mental illness to indefinitely detain? I’m thinking ‘Yes’.

    I understand that impulse. Jeffery Dahmer was not entitled to an insanity defense by a convoluted and I would say, manipulated process of certification. He was a killer and a CANNIBAL. I presume the State believed that he, like perhaps many, are simply too dangerous to allow any chance of them ever being returned to society. How do we deal with that kind of a determination? Isn’t that what ‘three strikes’ is all about? Instead of picking the best case to try someone on or consolidating cases perhaps the State should go the extra mile and try every case. I say that because I suspect that people so dangerous that this law should apply to them are not first offenders or had more than one crime on them when they were apprehended and tried. IMO the justice system has the tools to accomplish the same thing without a new method being added.

    Once this gate has been opened what other permutations of it will be constructed? Are we rushing to 1960’s Soviet style justice where their mental institutions were filled by every stripe of enemy of the State? Can’t happen here? Look what’s been done under the shield of The Patriot Act; anything can happen here.

    And to think that just yesterday I was making a mental list of good reasons to hate Clarence Thomas on a deep and personal level:-) The fact that that was yesterday and today I’m agreeing with him just proves the point that tomorrow is always a blank slate and what will be written on it is probably going to be a surprise, and not necessarily a good one.

    “Justice Clarence Thomas dissented, saying Congress can only pass laws that deal with the federal powers listed in the Constitution.”

    When Thomas dissents on a conservative/oppressive decision you know you’ve gone too far.

  10. mespo727272, BIL, We’ve all read the stories (some of them showing up here on the Professors blawg) of agents of the State, forensic experts, lying about the evidence to help secure a verdict. Are salaried agents or consultants in mental health going to be more honorable?

    Are the prisoners going to have access to any counsel the want (that will take the case) and have it paid for by the State? Not an unreasonable demand IMO, since this is a process initiated by the State and visited upon someone that essentially has secured their freedom by serving their sentence and is not at trial for another crime. Or are they going to have to secure their own counsel or take a Court appointed, pro bono lawyer?

    Are these going to be public hearings subject to the same appeal rights as any other legal procedure to deprive a person of their freedom? Doesn’t look like it from the above posted language of the Statute.

    This is not a simple commitment hearing, it is bound intimately with teh commission (previous and ANTICIPATED) crime. To argue depriving a person of their freedom under such circumstances demands a level of protection for the accused that IMO mirrors the criminal justice system.

    This looks like the Department Of Pre-Crime and it seems like the deck is stacked to me.

    Just say’n.

  11. lottakatz:

    Civil commitments do require the government to provide counsel for the subject of the petition. No law or case allows you get the lawyer of your dreams, just competent counsel as protected by teh writ of habeas corpus. As for the possibility of fraud or corruption, that is an “every case” risk but it seems mitigated when one may come to court every six months (or sooner if circumstances warrant) to seek release. I understand a certain distaste for “two bites at the apple” for the government but doesn’t the state government have this very tool available if the released fed ex-con is still mentally ill and a danger to himself or others? Why take the risk if the feds have already made such a determination?

  12. The whole fiction that sexual predator laws are civil in nature is wrong-headed. These are additional (unconstitutional) criminal penalties for offenders.

  13. James M:

    “These are additional (unconstitutional) criminal penalties for offenders.”


    Don’t know how you come to that conclusion when, under the statute, you can be released immediately if your mental condition improves or you no longer pose a threat to women and children. Are those insane persons committed to mental health facilities under state law being “punished?” Does being a sexual predator caused by a mental disease or defect grant the sufferer any more rights than those who otherwise pose a threat to themselves or others?

  14. Mezpo727272: In your post, you said, “We are limiting this commitment to only those persons certified as mentally ill with violent dispositions.”

    No, the language is disjunctive: “sexually violent activity OR child molestation.” Apparently “child molestation” includes possession of child porn, which was the crime of at least one of the appellants. See the story at the link below.

  15. “Kagan in January compared the government’s power to commit sexual predators to its power to quarantine federal inmates whose sentences have expired but have a highly contagious and deadly disease.”

    With the safeguards in place this law seems like a reasonable alternative to returning an unrepentant recidivist back to prey on the helpless.

  16. ModernKnight: Then why not do this to burglars, too? They have a strong propensity to reoffend. We are talking about preventive detention here. Why pick out just the sex criminals? Because their crime was about sex? Is this just some hangup we have inherited from our Puritan forefathers?

  17. mespo727272: “I understand a certain distaste for “two bites at the apple” for the government but doesn’t the state government have this very tool available if the released fed ex-con is still mentally ill and a danger to himself or others?”

    I don’t know if the State has this very tool to incarcerate people based on anticipated If it does, should it? Where is due process in that? If safeguards are all ready in place why do we need another law that greatly expands, carves out another system in fact, to deal with people we anticipate are dangerous? Would you bet money that this procedure will not be expanded to other crimes now that it is legitimized by SCOTUS?

    I’d bet it will. Two bites ofthe apple has been inconsistant with the justice system previously, now it’s not. I object to that because it leaves the notion of fairness and equity before the law diminished.

  18. I believe that states already have this “right” and that this ruling involved a federal case and established the federal “right” to practice this kind of incarceration.

    Am I correct?

  19. Look at this from the mental health perspective. Involuntary commitment is the least desirable scenario for treatment. This indefinite detention for “sexually dangerous” persons creates a really lousy criminal-psychiatric hybrid, with the worst of both worlds. It is a de facto criminal incarceration that uses some veneer of psychiatric treatment as a cover. Isn’t it often perceived by the inmate as fundamentally violating our sense of fairness in that a conviction should carry with it a definite, finite sentence? A “normal” sentence may be execution or life imprisonment, but that is explicit at the time of sentencing.

    From the perspective of psychiatric treatment, it is involuntary and has the complication that the innate (note: not “patient”) will probably do or say whatever it takes to be released. Rather than a population of people who have been committed involuntarily because they are deeply irrational and/or out of control, these folks are, often, exactly the opposite. (The bar for involuntary commitment is very, very high – you have to be really bonkers to be committed against your will.) They can be quite “rational” and quite manipulative.

    Also, don’t forget that these systems include men who are sexually violent towards other adult men, and women who have abused children.

    Why do we create these glaring exceptions for sexual crime? For what other criminal activities would we find indefinite detention acceptable? Should we have indefinite detention for repeat arsonists? What about repeat shoplifters? Yes? OK, what about people who repeatedly make threats, but have no record of acting on those threats?

    The US already has the highest per-capita incarceration rate in the world. In the end, how much more are we all willing to pay in taxes to keep an even larger percentage of our total population in prison indefinitely?

  20. Blouise:

    You are correct. Involuntary commitment for those deemed a threat to themselves or others is an option in all states. This statute accorded the feds the same option with respect to violent or molesting offenders with ongoing mental health problems who they had in custody. Otherwise they go right back on the street with the feds asking the state to get involved.

  21. lottakatz:

    “I don’t know if the State has this very tool to incarcerate people based on anticipated If it does, should it?”


    These are civil commitments not incarcerations. Long standing law has permitted commitment of those persons whose mental condition rendered them a threat their safety or the safety of others. They were committed to mental health facilities not prisons, and could be released when their condition improved and when they no longer posed a threat. I fail to see this as anything other than prudent public policy.

  22. We did get a bit of good news with the Court’s 8th Amendment decision in Graham v. Florida, 08-7412, banning life without possibility of parole sentences for youthful offenders in all but murder convictions.

  23. mespo,

    You have to admit that there is a difference between dangerousness because of, e.g., an inability to distinguish between fantasy and reality (which, with medication could hopefully be cured) and an incurable propensity to commit a certain type of crime (as evidenced by the previous conviction for said crime).

    Another difference would be that someone being involuntarily committed to a mental health facility usually occurs in lieu of criminal prosecution, not as an ex post facto extension of their already served prison sentence.

  24. mespo727272


    You are correct. Involuntary commitment for those deemed a threat to themselves or others is an option in all states. This statute accorded the feds the same option with respect to violent or molesting offenders with ongoing mental health problems who they had in custody. Otherwise they go right back on the street with the feds asking the state to get involved.


    Thank you for responding and yes, (to your later post), it was a bit of good news concerning the 8th Amendment decision … tonight I’m feeling a little better about the Supreme Court.

  25. I see this ruling as a direct extension of the general hysteria and irrationality over all things sexual in the American culture.

    Sex offenders were less likely than non-sex offenders to be rearrested for any offense –– 43% of sex offenders versus 68% of non-sex offenders.

    This sort of legal end run is a very dangerous maneuver.

    The real question not being addressed here is why extended imprisonment is considered a rational substitute for medical treatment and social counseling.

  26. AN opinion of whats going on here in the Garden States courts system:

    Paul Mulshine
    NJ Voices: Opinions from New JerseyOdor in the court: The stink of judicial hypocrisy
    By Paul Mulshine/The Star Ledger
    May 18, 2010, 2:02AM

    We know the pope’s Catholic. We know what the bear does in the woods. So why is it news when judges assert that judges should have lifetime job security?

    That was what eight former justices of the state Supreme Court did the other day. I read their statement several times and I still can’t find any news.

    The ex-justices purport to be upset about the plight of soon-to-be-ex-justice John Wallace. Gov. Chris Christie has decided not to replace Wallace at the completion of Wallace’s seven-year probationary period. But our state Constitution clearly grants the power of reappointment to the governor. So just what were the judges objecting to?

  27. The simple issue is that the true violent sexual predator is mentally ill and should be treated just like every dangerous mentally ill person who is a threat to society. If they continue to be a danger to society after their prison term is up, they should be locked up. Some of these people are not curable. Unlike, say, schizophrenics they can’t be dosed with psychotropic drugs and “cured.” Apparently castration and/or estrogen doesn’t work either. The problem is that no shrink seems to be able to predict whether a given patient has been “cured” or will become violent again. To the extent this ruling only applies to sexually violent predators (not just the gropers, but the rapists), I agree with the decision.

  28. Don’t know how you come to that conclusion when, under the statute, you can be released immediately if your mental condition improves or you no longer pose a threat to women and children.

    my experience with these post-prison commitments is all third hand or worse, so take what I have heard with a grain of salt:

    From what I have heard, at least under the analogous state statutory schemes, virtually nobody gets out. For example, they will keep the committee in custody for failing a lie detector — that sort of thing.

    Do you know differently mespo? Sure, the process sounds good on paper, just like state appointed counsel does — but, how does it work out in practice?

  29. I read the opinion. The only two dissenters, Thomas and Scalia, dissented on the issue of states’ rights, the scope of federal authority. I thought their argument was absurd. Read the opinion. Thomas and Scalia did not disagree in principle with the majority decision that still violent offenders should continue to be incarcerated after the end of their time in prison. If the feds could be assured that a state would incarcerate a still violent offender, then there would be no need for the statute. The problem is that, once these federal prisoners are released, no state wants to take over the responsibility and cost of incarcerating them, so the only option is to let them go.

    I do not believe that the majority opinion would allow someone who was just imprisoned for possession of child pornography to be “re-incarcerated” in a federal loony bin.

    I also don’t see anyone here talking about the rights of the potential victims of these guys. How many of these people have been let go and gone on to rape and/or kill? Doesn’t society have a countervailing right to be protected from these people? Isn’t there a rights balancing test here?

  30. I have a good friend who actually went through the civil commitment process. He had spent 21 years in prison for rape, and the day he was to be released, he was told that he was not getting out but was being transferred to another facility. It turned out to be this state’s new (at the time) civil commitment facility for sex offenders. He spend 1 1/2 years there before going to trial to see if he should be committed indefinitely. His great good fortune was to be assigned a public defender who had been an elected prosecutor and had given up that position to defend people who were to be civilly committed under this state’s new law. This attorney decided to delve into my friend’s original conviction and find out what had actually happened.

    My friend had plea bargained when he was originally sentenced to prison, because he had no money and his public defender had told him that if he went to trial the judge would give him life. His new attorney brought back the alleged victim and all the people (at least, all who were still alive) who would have been called to testify had a trial taken place. The victim testified that my friend had kidnapped and raped her and that she did not know him. She had refused to be examined, so there was no DNA evidence. Other witnesses testified that my friend and the victim had been dating for a couple of weeks before the arrest. Apparently the rape accusation was an attempt by the victim to explain my friend’s presence in her car when she encountered another boyfriend.

    Although the prosecutor in the civil commitment proceeding did his best to portray my friend as a dangerous rapist, the jury did not believe that a rape had taken place. My friend was released and not required to register as a sex offender. However, because this was a civil rather than a criminal trial, his original conviction was not overturned, and the rape and kidnapping charges remain on his record. Should he be arrested now or in the future for anything, under the Adam Walsh Act he will likely be required to register as a sex offender for the rest of his life (even though the alleged crime took place in the 70’s) and might even be a candidate for being considered “sexually dangerous.”

    This is not the only time the sex-offender insanity has affected my life. My daughter dated a man for over a year, and they were becoming quite serious. He was waiting for his divorce to become final before they made any long-term plans. His wife had not wanted the divorce and had angrily contested it. The week after the divorce became final, his now ex-wife accused him of molesting their 14-year-old daughter. Even though the circumstances were questionable, including the daughter saying it didn’t happen and the wife disappearing and being unavailable to testify, he had to plea bargain because he had retained an attorney (so was not eligible for a public defender) and didn’t have the money to go to trial. He is now serving three years and will have to register as a sex offender upon his release. Although the prosecution never did pin down exactly when he was supposed to have done what, he is now a “child molester” and could also be considered for civil commitment.

    Certainly there have been enough cases of child molestation accusations being determined to be unfounded, sometimes after people have spent many years in prison, that we should be somewhat suspicious of these kinds of charges, especially when there is no hard evidence and “victims” have reasons to lie. Psychological “experts” can be paid at trial to say just about anything to support the prosecution. Such experts for the defense and the prosecution gave conflicting testimony in my friend’s civil commitment trial. The so-called safeguards in the process are all but useless. Once someone has been labelled a sex offender, it is almosty impossible to have any fairness or even sanity involved in the process.

    Buddy Hinton, you are correct in thinking that virtually no one is released from these civil commitment facilities. Of course, one requirement for completing the “treatment” at these places is that you admit what you were accused of doing, which many of the people are unwilling to do. And despite the fact that these facilities are supposed to hold, in that time-worn law enforcement phrase, “the worst of the worst,” my friend met a man while he was in the civil commitment facility who had been arrested when he was homeless after being discharged from the army and had been caught urinating behind a convenience store. That man has never been released.

    As a woman, I am well aware that rape or molestation is a horrible experience for true victims. However, accusations of such behavior can be a powerful weapon when wielded by a vindictive person. We need to realize how easy it is to be accused of these types of crimes and how difficult it is to fight such accusations. Legitimizing labeling people as “dangerous” for any reason, be it sexual behavior, terrorism or burglary, and locking them up indefinitely with no real recourse is a terrifying turn of events for our democracy.

  31. There are more people in prison for rapes that did not occur than for set up drug deals. It is unfortunate but some people pled in order to reduce the exposure to life in prison. He said, she said. That is why I never took CSC’s, Murder or Child Molestation cases. The later one being I could not represent them without wanting to “execute” them myself.

  32. The real (overlooked) story from yesterday’s Supreme Court’s activity is the decision in Graham v Florida.

  33. For years, sexual abuse was kept quietand no one was prosecuted. Unfortuantely, that has left us with no usersatnding about what to do once we have people who’ve been convicted. All of the remedies tend to still revolve around the sterotype of the scary stranger awhen, in fact, most abuse involves known and trusted people, including family members.

  34. What you said is very true. I have a friend that was molested by their pediatrician and no one believed him and nothing happened to the doctor.

  35. All joking aside, I am beginning to wonder if pedophilia might be called a sexual preference separate from both heterosexuality and homosexuality.

  36. Is there no legal recourse against false accusations of either rape or child molestations? If not, why not? Do these perjurers face no penalties?

  37. Buckeye, the legal recourse tends to be fighting to get DNA analyzed (if there was any and it hasn’t been lost or destroyed) after years in prison, usually with prosecutors fighting to prevent it. I have recently read of some people who lied about sexual assaults being prosecuted, but I don’t think it’s very common.

    Anonymously yours, from my friend’s experience, I would agree that there are a lot of people in prison for rapes that didn’t occur. One man he encountered in prison was serving life after a psychologist brought back his adult daughter’s “memories” of him supposedly sexually assaulting her when she was two years old. This is akin to the way children are manipulated in some molestation cases to make accusations that never happened. I can certainly understand why you didn’t want to take those kinds of cases, but unless you believe that all accused child molesters are guilty (though all rapists are not), wouldn’t it be more appropriate to suspend your desire to execute them until after they are convicted? This is precisely the problem we face in finding the truth in these cases: our loathing of the crime is so strong that we assume the accused is guilty and the accuser couldn’t be lying. Unfortunately, sometimes we are wrong.

  38. Bucky,

    When you have seen some of the children that have been abused by the “Parent” of “Boyfriend” like skull fractures, cigarette burn, putting them in oil, hot bath water and they are the only one around the child. I am sorry, but my repulsion mechanism goes into effect.

  39. I have read many well-reasoned opinions on all sides of this issue. However, I can’t fight the conclusion that the decision is both wrong and dangerous. I believe it is wrong because it relies upon an artificial and internally illogical construct. On the one hand, we are incarcerating a person for willingly committing a criminal offense. Upon the conclusion of the imposed sentence, we effectively switch gears, abandoning the premise that the previous conduct was legally criminal, and urging instead that the incarcerated person suffers from a mental illness so severe that his release will put others at risk due to the person’s inability to control the urges that brought him into the criminal justice system in the first place. I understand that mental illness alone does not support an insanity defense, but if a person is truly incapable of refraining from sexual assault when the opportunity arises, why is he imprisoned in the first instance rather than committed to a psychiatric facility? In other words, can it not be argued that a prisoner whose cofinement is continued under the statute should never have been imprisoned? And if one possesses a sufficient grasp on reality to have knowingly committed an act which he had the ability to avoid, why is not the completion of his sentence the end of the matter? Since when do we require a prisoner to express an appreciation of the evil nature of his conduct and perform an act of contrition as a condition of release? Which leads me to my second concern.

    We know from published recidivism rates that most convicts commit additional offenses following their release from prison. Therefore, we know that a majority of those freed every day remain a risk to society. How long will it be before someone has the bright idea of extending the reach of the confinement statute to other classes of crimes or offenders? Is there not a risk in adopting as public policy the acceptability of utilizing mental institutions to serve as post-incarceration facilities for those whose crimes society deems particularly abhorrent from time to time? Does anyone believe that there will not come a point when supporters of this policy propose its application to political offenses? Or am I simply lapsing into unfounded hyperbole? I trust neither the motives of the proponents of this statute nor the “experts” who will quickly form the cottage industry responsible for its implementation.

  40. Mike, I agree. The logic works just as well for other violent crime–we just haven’t (yet?) characterized a propensity to commit other specific violent crimes as their own particular psychiatric disorders. This precedent could certainly expand in that direction, and political expediency will make sure it never gets curtailed by the legislature (no one wants to be painted as being soft on crime or helping rapists).

  41. Mike A,

    I appreciate your concern about a slippery slope but don’t make a fallacy of distribution either. Because one law is hard on manifestly dangerous people should be only a concern if their due process rights are violated. I would be fully in your corner if this law didn’t seem to have adequate safeguards against it’s misuse. That being said, the slippery slope is and always should be a concern and the watchword when it comes to individual civil and human rights.

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