6-1-2010 Iowa:
In a little-noted decision May 17, the U.S. Supreme Court drove another nail into the coffin of states' rights. Unfortunately, it failed to address questions about convicted offenders' rights.
The court in United States v. Graydon Earl Comstock Jr. upheld the federal government's authority to hold prison inmates indefinitely, even after their criminal sentences have expired, if they are considered at risk of committing sex crimes in the future. Amid the lengthy discussion of state-versus-federal authority in this ruling, the court did not say whether these civil commitments violate the rights of criminal offenders. That is the bigger issue, and one the court must eventually confront.
The 7-2 ruling does, however, brush aside the argument that the civil commitments exceed the constitutional authority of the federal government.
The lack of reaction to the ruling is somewhat surprising, given the resurgent states'-rights sentiment on the tea party circuit. Indeed, there is a belief among many states - most recently fueled by the health care law - that it's time to rebel against federal encroachment on the rights of the states to govern themselves.
The Constitution contains a specific list of powers for the federal government, and the rest are reserved exclusively to the states. The Constitution, of course, says nothing about indefinite civil commitments, but the court explained that the Constitution also says Congress has the power to make laws that are "necessary and proper" to execute the enumerated powers. Thus, the authority to punish crimes (an enumerated power) includes the authority to order civil commitments to prevent crimes.
Supreme Court Justice Clarence Thomas, in a well-argued dissent, makes a case for the opposite result. But he found only one other member of the court (Justice Antonin Scalia) who agreed. Thus, a solid majority of the court - both conservative and liberal justices - is not prepared to jump on the states'-rights bandwagon.
Meanwhile, the Comstock ruling avoided questions about whether the practice of holding potential criminals violates the constitutional rights of those detained. It seems to contradict American principles of justice to imprison people for crimes they might commit in the future, but the court has thus far declined invitations to strike down the practice as unconstitutional.
Iowa, among other states, uses civil commitments to keep some convicted child-sex offenders confined after completion of their criminal sentences. This is based on a premise that "sexually violent predators" may be cured through intensive psychological treatment, but it is not clear that treatment works. And the inmates selected for commitment were initially held in prison confinement, which suggested they were being punished. That changed after U.S. District Judge Robert Pratt, in 2004, ruled that such "punitive" detention conditions are illegal. The state has since moved the men to less restrictive facilities.
There will be other appeals as the numbers of civil commitments increase in state and the federal prisons.
The court should carefully consider whether these commitments are in fact intended to change the lives of sex offenders or just excuses to lock up people indefinitely. ..Opinion of.. DeMoines Register.com
June 1, 2010
EDITORIAL: Court can't dodge offenders' rights forever
May 28, 2010
Adam Walsh Act is iffy means to a noble end
It is wonderful to see the media question a U.S. Supreme court decision. This opinion sums up "THEY CAME FIRST for the Communists, and I didn't speak up because I wasn't a Communist. ... Pastor Martin Niemöller (1892–1984).," by saying "But not all means can be used to serve a noble end."5-28-2010 Texas:
Adam Walsh was 6 when he was abducted from a Florida department store and killed in 1981. Years later, police concluded that a convicted pedophile was the culprit. The boy’s father, John Walsh, became a high-profile advocate for children and crime victims and host of TV’s America’s Most Wanted.
So it’s understandable that the Adam Walsh Child Protection and Safety Act would be seen as an important crime prevention tool.
The 2006 law created a national sex offender registry, increased penalties for federal crimes against children and got tougher on child pornography. But it also gave the federal government unprecedented power to keep convicted criminals imprisoned after they served their sentences.
And that’s why the Supreme Court is considering whether the law unconstitutionally expands congressional power.
A basic principle of criminal law is that someone who commits an offense against society must pay a penalty. Elected legislators set parameters for punishment, based on the severity of the crime. Juries and judges then decide actual punishment warranted in individual cases. Once a fine is paid or a sentence is served, those who committed the crimes are allowed to go on with their lives, having paid their debt to society.
When prisoners are released, the government can attach reasonable conditions of probation or parole. But the government can’t add punishment once a sentence is served. The Constitution — and justice — don’t [sic] [doesn't] allow that.
But that’s essentially what the Adam Walsh Act allows. When prisoners convicted of sex-related crimes were finishing their federal sentences, the attorney general designated them as "sexually dangerous" and kept them in prison, some now years beyond the length of their original sentences.
The Justice Department argues that the Constitution allows this under Congress’ power to take "necessary and proper" action to enforce the law, including running a criminal justice system.
But inmates challenging the law counter that this is federal intrusion into traditional power of the states to police sex-related violence, most of which doesn’t involve interstate commerce. Besides that, if the federal government can hold people to prevent them from committing future sex crimes, it could continue holding any inmates it wants to prevent them from doing other unlawful things.
But the Constitution doesn’t give the federal government power to imprison people for crimes they haven’t been convicted of, or just to protect society, no matter how worthy that goal.
That doesn’t mean clearly dangerous people must be let out into society. To protect their residents, states can take civil custody of individuals who pose a serious public safety risk — based on evidence presented in a procedure that provides due process protections.
But if existing punishments aren’t enough to keep dangerous people from causing more harm, elected officials should reconsider whether sentences for certain crimes should be revised. If a civil commitment component should be added to prison time for some offenses, that should be put into the law upfront, not done after the fact.
Society has a vested interest in keeping people safe from sexual violence and sex crimes against children. But not all means can be used to serve a noble end. ..Opinion of.. Star-Telegram
May 27, 2010
To catch predators – and keep them forever
5-27-2010 Ohio:
Anyone who has followed this column for the last several years knows how passionately I feel about victim’s rights and recovery for those who have suffered sexual violence or assault. When one in five women in America and one in six African-American men or women are reportedly victims of sexual violence in this country we cannot sit by and let others suffer in silence because of our old-fashioned puritanical views of sexual propriety.
I am in favor of tough sentences for sexual predators, and I cheer every time “To Catch a Predator” host Chris Hanson shocks some pervert sitting in his underwear in a suburban kitchen. Despite all that, the Supreme Court’s recent ruling that sexual predators can be held indefinitely is something that any American – even an advocate for sexual violence – has to stand against.
Last week, the Supreme Court ruled 7-2 on the case of U.S. vs. Comstock. The case revolved around actions taken by former President Bush’s attorney general Alberto Gonzalez in 2006 after the passage of the Adam Walsh Child Protection and Safety Act. The act, named after the son of “America’s Most Wanted” host John Walsh, specified that the federal government could indefinitely hold convicted or ‘potential’ sex offenders if they were deemed as likely to commit crimes in the future. Gonzalez used this act to continue the sentences of several men who had already served jail time for obtaining child pornography. The men sued, and the case made it’s way to the highest court in the land. The dissenting ruling from Justice Antonin Scalia and Clarence Thomas stated unequivocally that continuing to hold someone in jail even after they have served their sentence is a grotesque violation of the Constitution.
I believe the sky is falling, pigs are flying and dogs and cats are living together in peace, because I have found myself agreeing with something that Scalia and his law clerk, Clarence Thomas, have written. I am as in favor of locking away pedophiles and throwing away the key as the next person, but this law is not going to accomplish anything but taking the nation down a slippery slope towards martial law. If someone has committed a crime and then gone to trial and been sentenced they should serve that sentence fully and completely. However, when the sentence is over they are free to go and should be able to go back and try to make their way into society. Retroactively passing a law that allows the federal government to extend your sentence indefinitely makes a mockery of the criminal justice system.
Further, the ruling essentially falls on the side of saying that jail is for rehabilitation rather than punishment. Prison can serve two purposes. Some guys just need to go to jail as punishment because they knocked over a liquor store. But for other criminals, rehabilitation is not a bad idea. Prison can give some wayward men and women job training, get them off drugs and help them make something of themselves after years of crime. But we cannot change our sentencing structure because of this logic. If a stint in jail doesn’t rehabilitate someone it doesn’t mean we can just make them stay longer. If some psycho doesn’t think jail is a punishment but is in fact a way to gain street cred, we can’t then decide to change sentences around to fit his crazy psychology.
The horrible extension of this ruling is apparent to anyone who’s read “1984” or seen any other dystopian future. If the court can now legally and retroactively extend sentences for sexual offenders, what’s to stop them from doing the same thing against people accused of other crimes? If a court appointed counselor determines that I’m not penitent enough about stealing a car, can they keep me around longer until I seem sorry? What about embezzlers, con artists or even accused terrorists? Most of these folks are going to commit crimes again. Should they just go to jail forever? In an attempt to solve one problem the court has caused potentially dozens of others.
I favor just about any punishment you can think of for men and women who commit acts of sexual violence against others. Jail, chemical castration, and in some cases I don’t know that those who commit these crimes can be rehabilitated. However, I do know this: throwing out our Constitution to capture potential repeat offenders is not going to make anyone safer. If anything, it leads us ever closer to giving up our rights for safety that can’t be achieved. ..Opinion of.. Dr. Jason Johnson is an associate professor of political science and communications at Hiram College in Ohio. He can be reached at johnsonja@hiram.edu
May 25, 2010
The Supreme Court on punishing sex offenders
5-25-2010 Washington DC:
In a recent ruling, the high court failed to clarify the law on civil commitment of sex offenders.
Whether sex offenders can be detained even after they have completed their sentences is an important question that pits individual rights against public safety. But when the Supreme Court ruled last week on a federal law allowing such confinement, it didn't address that basic issue. It should do so in a future case.
The court's decision involved appeals by four convicted sex offenders and one defendant who was declared mentally unfit to stand trial. They originally argued that they had been denied due process because the government only proved that they were dangerous by "clear and convincing evidence," as compared to the higher standard in criminal cases of proof beyond a reasonable doubt. The court, in its decision, focused only on the issue of whether Congress could exercise powers not specifically enumerated in the Constitution.
In his majority opinion, Justice Stephen G. Breyer noted that the court failed to address the issue of whether the statute violated prisoners' constitutional rights by requiring that they be held indefinitely even after they had served their criminal sentences. That suggests that the court might revisit a 1997 decision in which it upheld a Kansas law similar to the federal statute. Breyer dissented from that ruling, complaining that the commitment in that case "was not simply an effort to commit [the prisoner] civilly but rather an effort to inflict further punishment on him."
Such laws are not uncommon. With encouragement from the federal government, many states have established civil procedures to commit sex offenders to mental institutions after they finish their criminal sentences. In California, about 800 convicted sex offenders have been civilly committed. No doubt some offenders satisfy the requirements for commitment — a dangerous mental illness that ideally is susceptible to treatment — but we suspect that others do not.
For good reason, sex offenders, especially those who abuse children, are among the most reviled of criminals. In recent years, there has been a welcome recognition that at least some such offenders are incorrigible, a realization that has inspired an array of laws, some better conceived than others, to monitor their movements after they are released.
There is also a place for civil commitment of sex offenders who are proven to be both dangerous and resistant to rehabilitation. But there is a strong temptation to use the civil commitment process as a backdoor way of prolonging a criminal sentence. The Supreme Court should accept an appropriate case to address the question left hanging by last week's decision — whether extending the confinement of a convicted sex offender should require the same level of proof as convicting him in the first place. The answer to that question should be yes. ..Opinion.. of LA Times
May 20, 2010
Minnesota Court of Appeals Holds State Court Has No Civil Confinement Authority over Minnesota Chippewa Tribal Members
Folks, if this is true and it appears to be so, then the Adam Walsh Act is AGAIN unsettling more state laws. And, this will be true in the other 19 states where they have civil commitment laws and tribes.5-20-2010 Minnesota:
The court’s syllabus:
The state does not have jurisdiction pursuant to Public Law 280 to civilly commit an enrolled member of a federally recognized Indian tribe as a sexually dangerous person under the Minnesota Commitment and Treatment Act. But in the absence of express congressional consent, the state does have jurisdiction to civilly commit an enrolled member of a federally recognized Indian tribe as a sexually dangerous person under the commitment and treatment act where, as here, federal law does not preempt state jurisdiction and exceptional circumstances exist.
The Minnesota Court of Appeals decision is here.
May 18, 2010
What does the supreme court ruling mean for sex offenders?
I wonder if Obama knew this decision was forthcoming? Could it have played a part in his choice for a Supreme ourt Justice? Also remember that, Solicitor General Elena Kagan has no prior judicial experience.5-18-2010 Washington DC:
The Supreme Court ruled May 17 that those inmates deemed “sexually dangerous” can be held indefinitely — even after their prison terms are complete.
The court’s ruling in the United States v. Comstock upholds a 2006 law signed by President George W. Bush that authorized the civil commitment of sexually dangerous federal inmates. That law, formally known as the Adam Walsh Child Protection and Safety Act (named for the son of “America’s Most Wanted” host, John Walsh), was challenged by four men who have been kept behind bars for the potential risk they pose to society, though they were due to be released from prison more than two years ago. Prison officials say the men, who were each sentenced to terms ranging from three to eight years for possessing child pornography, are at risk of committing sexually violent acts or child molestation if released.
I suppose the Bureau of Prisons were also able to prove, what color socks these men would wear in the future. These men had -no contact- crimes and to my knowledge there is no research proving that -possession of child porn will result in a future contact sex offense-, should anyone know of such research please forward links to eAdvocate.
But the question before the court had little to do with sex offenders and more to do with states’ rights. The Court was charged with determining whether Congress overstepped its bounds with the 2006 law. It’s a gray area: While protecting the public’s health and safety is a concern typically left to the states, the federal government is ultimately responsible for the criminal justice system. In the 7-2 majority opinion, Justice Stephen Breyer asserted the federal government’s right to govern prisons. He wrote: “The Federal Government, as custodian of its prisoners, has the constitutional power to act in order to protect nearby (and other) communities from the danger such prisoners may pose.”
Really, why do states have courts and criminal statutes? Also, Justice Breyer had this to say: "We do not reach or decide any claim that the statute or its application denies equal protection of the laws, procedural or substantive due process, or any other rights guaranteed by the Constitution. Respondents are free to pursue those claims on remand, and any others they have preserved.”
That was the legal quandary. But the real question for the rest of us who care more about predators lurking in our backyards and less about legal jargon, was what does this case mean for sex offenders? Does this ruling essentially allow the government to lock up sex offenders and throw away the key? Yes and no. The ruling only applies to those inmates who are both sexually dangerous and mentally ill. Which means in order to detain an inmate for longer than their original sentence, the government must prove the prisoner has both previously “engaged or attempted to engage in sexually violent conduct or child molestation” and that they suffer from a “serious mental illness, abnormality or disorder” and would have “serious difficulty in refraining from sexually violent conduct or child molestation if released.” Those prisoners who meet the criteria and are committed can request a regular reevaluation every six months, but there is essentially nothing that prohibits inmates from being continually denied release at each reevaluation.
I wonder how they proved the four men were "sexually dangerous" when all they did was "Possess" child porn, it is a quantum leap by someone very prejudiced against sex offenders. As to had a "Mental Illness/Abnormality" that is a legislative definition, not a definition from any psychological evidence or research. Lawmakers are not qualified to make such determinations and need to be challenged.
Currently, fewer than 100 federal inmates nationwide have been identified for further detention after having served their sentences.
Interesting side note: The ruling is also a victory for President Obama’s Supreme Court nominee, Solicitor General Elena Kagan, who argued the case. ..Source.. Time
Supreme Court upholds federal sex offender law
5-18-2010 Washington DC:
The US Supreme Court on Monday ruled that Congress did not overstep its authority by passing a law that allows 'sexually dangerous' offenders to be detained past their prison terms.
Congress did not exceed its constitutional authority when it passed a 2006 law permitting the civil detention of certain violent sexual offenders after they have served their full prison terms, the Supreme Court ruled Monday.
In a 7 to 2 ruling, the high court upheld Section 4248 of the Adam Walsh Child Protection and Safety Act. The law establishes a civil commitment procedure to keep behind bars any federal inmate deemed by the government to be sexually dangerous.
Government lawyers argued that the law is necessary to prevent federal prisoners who had engaged in sexually violent activity or child molestation from harming new victims by being released from prison.
Under the law, federal prosecutors are authorized to seek the civil commitment of such prisoners by proving to a federal judge that the individual suffers from a mental illness or abnormality and would have “serious difficulty in refraining from sexually violent conduct or child molestation if released.”
In both cases "Mental Illness" and "Mental Abnormality" these are legislative definitions, not definitions from any psychological evidence or research. Lawmakers are not qualified to make such determinations and need to be challenged.
The law requires federal officials to notify home-state authorities of a prisoner’s possible release from federal detention and to turn the prisoner over to state officials if they agree to hold him. But in the absence of any transfer, federal officials are authorized to continuing holding the individual under the federal civil commitment statute.
Of 15,000 sex offenders in federal custody, 105 have so far been certified as “sexually dangerous.” Five of them filed a lawsuit charging that the federal statute exceeded Congress’s limited powers under the Constitution and intruded into general police powers assigned by the Founding Fathers to state governments.
Note: What is missing from this article is, how many of the 15,000 have been actually run through the procedure to determine if they are to be placed in civil commitment. This is critical information.
A federal judge and federal appeals court panel agreed, ruling that Congress had intruded into an area reserved to state governments. They struck the law down.
On Monday, the high court reversed that decision.
Writing for the seven-member majority, Justice Stephen Breyer said Congress’s authority to enact the measure stemmed from the Constitution’s necessary and proper clause.
“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 but who may be affected by the federal imprisonment of others,” Justice Breyer wrote.
Breyer cautioned that his decision should not be read as granting to Congress a general police power, “which the Founders denied the National Government and reposed in the States.”
Instead, Breyer compared the statute to federal efforts to prevent the spread of disease from released prisoners to the general population.
“If a federal prisoner is infected with a communicable disease that threatens others, surely it would be ‘necessary and proper’ for the federal government to take action [and] refuse to release that individual among the general public where he might infect others,” Breyer wrote.
“And if confinement of an individual is a ‘necessary and proper’ thing to do,” he said, “then how could it not be similarly ‘necessary and proper’ to confine an individual whose mental illness threatens others to the same degree?”
In a dissent, Justice Clarence Thomas said Breyer’s opinion “comes perilously close to transforming the necessary and proper clause into a basis for the national police power that we always have rejected.”
The necessary and proper clause authorizes Congress to enact only those laws that facilitate federal powers enumerated in the Constitution, he said. But Section 4248 is unrelated to any enumerated powers, Justice Thomas said in his dissent, which was joined by Justice Antonin Scalia.
“Protecting society from violent sexual offenders is certainly an important end,” Thomas wrote. “But the Constitution does not vest in Congress the authority to protect society from every bad act that might befall it.”
Under the framework of the Constitution, those powers reside with the state governments, Thomas said.
The lopsided 7 to 2 result in the case suggests that federalism is no longer a high priority within the high court’s conservative wing. Under former Chief Justice William Rehnquist the court’s conservatives aggressively enforced the federal-state balance of power, ruling frequently to uphold state sovereign power in the face of what conservative justices viewed as federal encroachment.
Although the federal inmates lost their case on Monday, the litigation may not be over. The court acknowledged that it was not ruling on whether the civil commitment law complied with constitutional requirements of equal protection and due process. Breyer said the inmates were free to now pursue those constitutional challenges in the lower courts.
The case was US v. Comstock. ..Source.. Warren Richey, Staff writer
January 12, 2010
Justices hear case on releasing sex offenders
I have not yet read the full oral arguments, and after I do I will post more. Here is the link to the oral arguments. PS: This article seems to imply that the Justices viewed the person being held as someone sick and dangerous, but, so far -unless embedded in the oral arguments- there is no proof that the person being held is either sick or dangerous.1-12-2010 Washington DC:
The person being held has just completed a prison sentence which -traditionally meant- the sentence was supposed to have rehabilitated the person, and that seems to have been ignored in this article. Again, there is no proof -at the end of the prison sentence- that the person is either sick or dangerous. Under the Adam Walsh Act that determination is an opinion of the Warden of the prison and not backed up by anything but personal belief of the Warden.
WASHINGTON -- Several Supreme Court justices on Tuesday seemed open to the idea of continuing to let the federal government indefinitely hold inmates considered "sexually dangerous" after their federal prison terms are complete.
"You are talking about endangering the health and safety of people, so the government has some responsibility, doesn't it?" said Justice Ruth Bader Ginsburg.
Lower courts have said the federal government cannot do this. But in arguments before the high court Tuesday, Solicitor General Elena Kagan said the government has a responsibility to ensure that sexual predators are not turned back onto the streets.
The federal government's responsibility and power extends to ensuring "those people who have been in custody are released responsibly," Kagan said.
Kagan 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. "Would anybody say that the federal government would not have Article I power to effect that kind of public safety measure? And the exact same thing is true here. This is exactly what Congress is doing here," she said.
Several justices seemed to agree with her. "It seems to me that the constitutional answer is the same in this statute as in the case of somebody who incurs a very communicable disease and the government wants to prevent him from infecting the community," said Justice John Paul Stevens.
Federal public defender G. Alan DuBois (doo-BOYCE') said this practice would overstep official bounds when it comes to sentencing people for federal crimes. The federal government "doesn't have the power to detain individuals as a result of their mental illness based on the fear that they are going to go out and commit a crime," he said.
Justice Antonin Scalia agreed with him, saying that to allow the federal government to indefinitely hold dangerous people because states won't do it "is a recipe for the federal government taking over everything."
The 4th U.S. Circuit Court of Appeals in Richmond, Va., ruled last year that Congress overstepped its authority when it enacted a law allowing the government to hold indefinitely people who are considered "sexually dangerous."
In April, Chief Justice John Roberts granted an administration request to block the release of up to 77 inmates at a federal prison in North Carolina. These were people whose prison terms for sex offenses were ending. The justice's order was designed to allow time for the high court to consider the administration's appeal.
The challenge to the law was brought by four men who served prison terms ranging from three to eight years for possession of child pornography or sexual abuse of a minor. Their confinement was supposed to end more than two years ago, but the government determined that there would be a risk of sexually violent conduct or child molestation if they were released.
A fifth man who also was part of the legal challenge was charged with child sex abuse, but declared incompetent to stand trial.
Civil commitment was authorized by the Adam Walsh Child Protection and Safety Act, which President George W. Bush signed in July 2006. The act, named after the son of "America's Most Wanted" television host John Walsh, also establishes a national sex offender registry, increases punishments for some federal crimes against children and strengthens child pornography protections. Those provisions are not being challenged.
State laws allowing civil commitments of sex offenders also are unaffected.
The case is U.S. v. Comstock, 08-1224. ..Source.. JESSE J. HOLLAND
Federal Prisoners Kept Beyond Their Sentences
1-12-2010 Washington DC:
The U.S. Supreme Court hears arguments Tuesday in a case that tests the federal government's power to keep convicted sex offenders behind bars after they have served out their prison terms.
Currently, 84 such prisoners are indefinitely confined for treatment at a federal prison in North Carolina. Five of them are challenging the law under which they have been detained with no end in sight.
Typical is the case of Graydon Comstock, who was sentenced to three years in prison for possession of child pornography. Six days short of completing his term, he was designated as "sexually dangerous," and the federal government moved to have him civilly committed for treatment. He has been kept in the North Carolina facility for two additional years, with little prospect of release.
Congress authorized such indefinite civil commitments for the first time in 2006 for sexual offenders who have completed their prison terms.
Two lower federal courts invalidated the law as unconstitutional, concluding that it overstepped the bounds of federal power under the Constitution, usurped powers reserved for the states and denied the due process of law to the individuals who are indefinitely committed.
The federal government appealed to the U.S. Supreme Court.
Beyond The Bounds Of The Constitution?
Civil commitment is traditionally dealt with by the states, and more than 20 states do have laws that allow for indefinite civil commitment of sex offenders after they serve their time. Indeed, in 1997 the U.S. Supreme Court upheld one such law from Kansas.
The Kansas statute, however, offers more protections for the individual. Under the federal law, the hearing to justify commitment is before a judge, but Kansas allows for a jury trial. Most important, the Kansas law requires the state to prove beyond a reasonable doubt that the offender is still dangerous, while the federal law requires only the less demanding showing of "clear and convincing proof," meaning essentially, that guilt is more likely than not.
Beyond the protections for the individual, there is the larger question of the limits of federal power. For a federal action to be constitutional, it has to be authorized by a specific enumerated provision of the Constitution, and the Constitution has no general civil commitment provision. So the Obama administration is defending the statute by linking civil commitment to the federal government's custody of the men in prison.
Or, as Kansas Solicitor General Stephen McAllister puts it, in siding with the federal government: "These individuals are legitimately, lawfully in federal custody, and so the question is, is the federal government powerless when it has a dangerous, mentally abnormal individual in its custody? Is it powerless to do something with this individual in the realm of civil commitment?"
Federal law does have a provision allowing for the transfer of dangerous prisoners to the states for civil commitment, but as McAllister concedes, "We don't want 'em."
Treating these offenders in state prison systems, he says, is expensive, and the states don't want to bear the costs.
Predicting Future Dangerousness
McAllister concedes that once an offender is in a treatment program, he rarely gets out because there is no good treatment that has worked with large numbers of offenders. Underlining that, he notes, is the fact that some offenders who have been released have committed horrific crimes.
But lawyer Jeff Green, who filed a brief on the opposite side of the case, points to statistics showing a relatively low recidivism rate. The headline cases, he says, prove a different point — that there is no way to predict future dangerousness.
"These are hideous crimes," he says, "but they demonstrate that the experts, in terms of identifying which individuals are dangerous, are no better than astrologers."
If someone is truly dangerous, Green argues, then the government should seek prison terms that are long enough to protect the public — not rely on an open-ended civil commitment system.
Green maintains that the government's so-called treatment program is nothing more than a Catch-22. The offender is required to talk about his sexual fantasies and accept responsibility, but those conversations can be used against him if he seeks release. Because there is no way for the offender to prove he is not dangerous, Green argues, release for most of these men "is a practical impossibility."
Or, as one lawyer who has visited the federal facility in North Carolina put it, "it is a pervert's cruise ship to nowhere."
A Constitutional Ripple Effect
McAllister, the Kansas solicitor general, concedes that few offenders get out once they are civilly committed in the states. That opens up more questions when considering a federal statute that provides fewer protections for the accused. If you can civilly commit someone as sexually dangerous, why not civilly commit people believed to be just dangerous in general? McAllister says civil commitment has to be linked to a mental abnormality or condition. But a lot of people in prison are deeply disturbed. There are drug addicts, kleptomaniacs, vicious sociopaths. So why not commit them too once they have completed their prison terms?
"Constitutionally, it might be possible," to extend the rationale for civil commitment to other kinds of crimes, McAllister says. "I don't have a constitutionally limiting line for what kinds of mental disorders might be permissible and what [might] not. If they lead to danger to others, potentially, they could be covered under such a law."
In other words, this is a case that could have a constitutional ripple effect. ..Source.. Nina Totenberg
