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.
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.
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.
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?
see also:
http://gazetteonline.com/local-news/public-safety/2010/05/16/high-risk-offenders-remain-off-street
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?
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.
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?
http://blog.nj.com/njv_paul_mulshine/2010/05/odor_in_the_court_the_stink_of.html
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.
mespo727272
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.
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Mespo,
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.
TomD.Arch,
Well said.
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.
Let’s just federalize all police forces in the United States and get it over with already.
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.
lottakatz:
“I don’t know if the State has this very tool to incarcerate people based on anticipated If it does, should it?”
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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.
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.
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?
This is an abominable overreaching by the S. Ct.
liberty
…with liberty and justice for all
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?
“anticipated wrongdoing or criminal activity.” Sorry.