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.
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?”
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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.
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?
“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.
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.
http://www.washingtonpost.com/wp-dyn/content/article/2010/05/17/AR2010051701283.html
James M:
“These are additional (unconstitutional) criminal penalties for offenders.”
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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?
The whole fiction that sexual predator laws are civil in nature is wrong-headed. These are additional (unconstitutional) criminal penalties for offenders.
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?
just wondering,
has the catholic church weighed in on this?
somebody had to ask.
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.
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. …”
http://rudepundit.blogspot.com/2009/12/glenn-becks-christmas-sweater-live.html
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.
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.
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.
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.
Lady Gaga is in trouble now …
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.
The Moar You Know:
“I might point out that those incarcerated at Gitmo also enjoy the right of contesting their commitment.”
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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.
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.
The dissent demonstrates that strict constructionist does not equal conservative. Thomas’s dissent is correct. The federal government does not have this power.
Then we’ll need jails for every female from 18-48..
I’m jut sayin…
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.