Court Backs Sex-Offender Detention

[Alcibiades]

Source: Wall Street Journal

WASHINGTON—The Supreme Court said Monday that the federal government can keep "sexually dangerous" prisoners in custody past the completion of their sentences, overruling arguments that only states hold such power.

The vote was 7-2, with Justices Antonin Scalia and Clarence Thomas in dissent.

More than 20 states have laws permitting "civil commitment" of prisoners deemed sexually violent or otherwise mentally ill after they have served sentences for specific crimes. In 2006, Congress passed the Adam Walsh Child Protection and Safety Act, which authorizes the Justice Department to similarly hold federal prisoners who are nearing release or were found mentally incompetent for trial.

Writing for the court, Justice Stephen Breyer said Congress could authorize the civil commitment of these offenders under its constitutional authority to enact laws "necessary and proper" to the exercise of its specific powers. Chief Justice John Roberts and Justices John Paul Stevens, Ruth Bader Ginsburg and Sonia Sotomayor joined the majority opinion

Read more: http://online.wsj.com/article/SB10001424052748703315404575250220873756964.html?mod=WSJ_WSJ_US_News_6

---

I have not seen this posted here yet. This case is very important, not only for securing the most dangerous sexual predators indefinitely, but also because it addresses important constitutional issues. At issue in the case was the government's position that this part of the Adam Walsh Act was constitutional because of the "necessary and proper" clause. This argument was originally made by the Bush DoJ and rejected by lower courts, who cited Morrison and Lopez.

What's shocking is that Roberts signed on to the majority opinion. He could have gone with the more conservative concurrence, but did not. This ruling could strike at the heart of the SCOTUS efforts to reign in the federal government.

[northzax]

1. yet another abysmal decision by the Roberts Court

I fail to see how indefinite detention, after completion of a sentence, is a good thing. if a jury or judge didn't impose a life sentence, than how can you hold someone longer?

[Alcibiades]

2. Judges are bound by federal guidelines

I have mixed feelings about this: the Adam Walsh Act does provide that civil detainees must undergo treatment. Though it certainly has not happened yet, presumably some of these will be found to be no longer sexually dangerous and released.

As far as the double jeopardy aspect of this goes, it's a little worse than the media have really gotten hip to: inmates who are eligible for certification as sexually dangerous include folks whose instant offense was in no way sex related. In other words, someone can have committed a sex offense 20 years ago, do their time, be released, get a drug offense ten years later, and then be subject to civil commitment. Certainly seems like punishing someone twice, and also a little ex post facto, that Adam Walsh wasn't in effect at the time of either offense.

For folks troubled by the fairness issue, it should be noted that the BoP has only certified about 105 persons, about 1% of those eligible for certification. They certainly seem to be going after "the worst of the worst," but exactly who that is, no one can say, because the statutory language is vague, the process is not fully public, and the whole thing is new. It is worthwhile asking if the number of folks they civilly commit will go up now that the SCOTUS has ruled on Comstock.

[northzax]

3. i'm not a lawyer

so I am in no way qualified to argue the finer points of constitutional law. what I do know is that the US Constitution specifically forbids ex post facto laws. you cannot make a law retroactive and apply it to people who committed crimes before the law was in effect. if the US wants longer prison sentences for sexual offenders, then the sentencing guidelines need to be altered. legislatively. moving forward. not looking backwards. if you are sentenced to 20 years in prison, and you serve your 20 years without committing an additional offense that you are tried and convicted for, then you are released. those are the terms of your conviction the first time around. if the government now wants that crime to be a 50 year sentence, the law can be changed, but it can't be applied to you. that just seems, well, fair.

do we really want a government that can 'administratively' keep you in jail for as long as they feel like? do we want open ended prison sentences?

[Alcibiades]

4. I agree, but that view is not current law

The concerns you raise were addressed by the SCOTUS in its 1997 decision in Kansas v. Hendricks. From that decision:


***********
2. The Act does not violate the Constitution's double jeopardy prohibition or its ban on ex post-facto lawmaking. Pp. 13-24.

(a) The Act does not establish criminal proceedings, and involuntary confinement under it is not punishment. The categorization of a particular proceeding as civil or criminal is a question of statutory construction. Allen v. Illinois, 478 U.S. 364, 368. Nothing on the face of the Act suggests that the Kansas Legislature sought to create anything other than a civil commitment scheme. That manifest intent will be rejected only if Hendricks provides the clearest proof that the scheme is so punitive in purpose or effect as to negate Kansas' intention to deem it civil. United States v. Ward, 448 U.S. 242, 248-249. He has failed to satisfy this heavy burden. Commitment under the Act does not implicate either of the two primary objectives of criminal punishment: retribution or deterrence. Its purpose is not retributive: It does not affix culpability for prior criminal conduct, but uses such conduct solely for evidentiary purposes; it does not make criminal conviction a prerequisite for commitment; and it lacks a scienter requirement, an important element in distinguishing criminal and civil statutes. Nor can the Act be said to act as a deterrent, since persons with a mental abnormality or personality disorder are unlikely to be deterred by the threat of confinement. The conditions surrounding confinement--essentially the same as conditions for any civilly committed patient--do not suggest a punitive purpose. Although the commitment scheme here involves an affirmative restraint, such restraint of the dangerously mentally ill has been historically regarded as a legitimate nonpunitive objective. Cf. United States v. Salerno, 481 U.S. 739, 747. The confinement's potentially indefinite duration is linked, not to any punitive objective, but to the purpose of holding a person until his mental abnormality no longer causes him to be a threat to others. He is thus permitted immediate release upon a showing that he is no longer dangerous, and the longest he can be detained pursuant to a single judicial proceeding is one year. The State's use of procedural safeguards applicable in criminal trials does not itself turn the proceedings into criminal prosecutions. Allen, supra, at 372. Finally, the Act is not necessarily punitive if it fails to offer treatment where treatment for a condition is not possible, or if treatment, though possible, is merely an ancillary, rather than an overriding, state concern. The conclusion that the Act is nonpunitive removes an essential prerequisite for both Hendricks' double jeopardy and ex post-facto claims. Pp. 13-21.

(b) Hendricks' confinement does not amount to a second prosecution and punishment for the offense for which he was convicted. Because the Act is civil in nature, its commitment proceedings do not constitute a second prosecution. Cf. Jones, supra. As this commitment is not tantamount to punishment, the detention does not violate the Double Jeopardy Clause, even though it follows a prison term. Baxstrom v. Herold, 383 U.S. 107. Hendricks' argument that, even if the Act survives the "multiple punishments" test, it fails the "same elements" test of Blockburger v. United States, 284 U.S. 299, is rejected, since that test does not apply outside of the successive prosecution context. Pp. 22-23.

(c) Hendricks' ex post-facto claim is similarly flawed. The Ex Post-Facto Clause pertains exclusively to penal statutes. California Dept. of Corrections v. Morales, 514 U.S. 499, 505. Since the Act is not punishment, its application does not raise ex post-facto concerns. Moreover, the Act clearly does not have retroactive effect. It does not criminalize conduct legal before its enactment or deprive Hendricks of any defense that was available to him at the time of his crimes. Pp. 23-24.

*************

Essentially, the claim is that civil commitment is not punishment, is nonpunitive, subject to annual reviews, and simply a move to protect the public safety. These claims were not addressed in Comstock precisely because of the Court's decision in Hendricks. This ruling on the constitutionality of the Kansas civil commitment program cleared the Way for the Title III of the Adam Walsh Act, which authorized the creation of a civil commitment program for federal inmates: since most child porn charges are prosecuted federally, this means that a great number of sex offenders (folks who have prior hands-on offenses) have been in federal custody and now subject to civil commitment. This has flown below the public radar simply because, in my opinion, it has only applied to a fairly small number of extremely unpopular people. The grant of authority in Hendricks is troubling, and I share your ex post facto concerns, despite the ruling in Hendricks.

Another issue not being addressed or considered are the conditions of confinement. Theoretically, civilly committed sex offenders have a legal status distinct from that of inmates serving their sentences. Currently, however, they are all being held in Butner, NC, 20 miles from my house, in conditions similar to the other inmates at that complex. This raises a number of "conditions of confinement" issues that are still being litigated.

[Nuclear Unicorn]

5. I'm confused

Is the federal law being used to allow states that lack indefinite detention laws to employ indefinite detention?

If so it seem the issue is: why don't states pass their own indefinite detention laws if they want to hold dangerous people?

If states do already have indef detent laws then this seems redundantly repetitive all over again.

If this is for strictly federal evel crimes...well, I'm kind of confused on how federal criminal laws work. I always figured state laws tend to cover most things like rape, murder, theft etc. I'm not sure when federal law comes in on such cases.

I thinking: holding people past their sentences is slippery but if the law already says Crime X can lead to indef detent then either we change the law if it is abused or some people would do well not to commit those kinds of crimes.

Sexual crimes are particularly heinous because the crime goes deeper than the body. It destroys soulds and minds and much of it is really nothing more than violence against women and children.