Can someone please explain this to me:
The Supreme Court ruled Monday that federal officials can indefinitely hold inmates considered “sexually dangerous” after their prison terms are complete.
The high court in a 7-2 judgment reversed a lower court decision that said Congress overstepped its authority in allowing indefinite detentions of considered “sexually dangerous.”
“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,” said Justice Stephen Breyer, writing the majority opinion.
Indefinite detention sure is popular in the land of the free and the brave. But don’t worry. It’s just for sex offenders and accused terrorists.
They do hate America.
I was surprised to learn that the two dissenters were Thomas and Scalia, but then I read to the end and realized that they objected not on due process or liberty interest grounds, but because they don’t think the Constitution allows for Congress to pass a civil commitment statute at all. Damn but it’s too early in the week for this shit.
The really disgusting thing is that only Scalia and Thomas dissented on this one.
Someone please wake me up from this nightmare of a government.
I mean I don’t like to go that far with the whole crazy teabagger talk, but indefinite imprisonment? State ordered assassinations and detentions of individuals without trial?
I thought we elected a new government. Someone needs to stop this.
What qualifies as ‘sexually dangerous’? Have they raped other inmates? Do we have the same rules for our own ‘sexually dangerous’ criminals?
You know what, my other country, the Jewish State, is currently seeing the very real danger of saying that the rule of law and demands of democracy only apply to some people. Once, Israel worked very, very hard to suppress dissent in the occupied territories, but inside Israel, the democracy really did flourish.
Lately? Funny story: Not so much.
Israeli citizens — of both the Arab and Jewish sort — are being arrested and held and muzzled for expressing opinions that the current Israeli government doesn’t much cotton to.
Since America didn’t learn from the horrific mistakes Israel has made over decades of occupation and went ahead and occupied Iraq anyway, maybe we could at least pay attention to what happens to the rule of law and democratic principles when we make them conditional?
@Citizen Alan: Yeah I jumped to the dissent to read why and I was shocked, SHOCKED I tell you, to see that Thomas/Scalia went with the “no constitutional authority” line. Thomas even says explicitly within the opinion that there is no question that citizens with mental problems that pose a danger to the public may be held for society’s good; it’s just that Congress doesn’t have the authority to make that law.
Belafon (formerly anonevent)
This is the logical conclusion of a society that thinks the answer to any psychological problem – sex, drugs, rock & roll – is to put someone in prison. A valid solution to real sex offenders would require people talking about it and spending money, because some of these people will just keep the same thing over and over if given the opportunity. And we’re not going to spend money.
No recent open threads, but this made me throw up in my mouth a little more with each paragraph:
“Longshot Democratic challenger Mickey Kaus shows that California’s junior senator is having a difficult time connecting with moderates. “
I know it’s committing the fallacy of appeal to authority, but given that Justice Stevens signed this decision, I am going to operate under the understanding that there’s something fundamental I am missing here.
@Allison W.: No, no, you’re confused: Raping other prisoners isn’t “dangerous” — it’s knee-slappingly funny.
(Sorry – I’m on kind of a tear since the Betty White SNL which ran a skit that was one long prison rape joke http://emilylhauserinmyhead.wordpress.com/2010/05/17/follow-up-betty-white-snl-etc/ ).
What if we lose one of the three psychics in charge of predicting who is dangerous, thus rendering their accuracy 33% less than before?
some other guy
This is a little different from the “enemy combatant” indefinite detentions. “Enemy combatants” are (or were, until recently) denied any kind of due process. In the case of sexual predators, though, there was a criminal trial and conviction.
Now, there’s nothing inherently unconstitutional about long prison or institutional sentences. That’s not to say I necessarily agree with the policy of lifelong incarceration for sex criminals, but Congress does have the power to allow it. If we don’t like it, we should lobby Congress to change the law.
I don’t have sufficient knowledge of the Constitution and the relevant legal precedence in this particular area to formulate an intelligent opinion of whether or not they ruled correctly, but evidently the majority of the justices determined that the Constitution does allow Congress to enact this kind of law. As for whether or not the Constitution should allow it, that’s another issue entirely. But that’s the apparent explanation of why the justices ruled the way they did.
Personally, I agree it’s creepy, and the disparity between sentencing and perceived danger to the public seems to be crying out to be rectified. There’s just something fundamentally wrong there.
@Uplift: Ok. That actually makes sense. Ok, I’ll cool my jets and my heels and wait a bit.
A nuance, but an important one: this opinion is strictly about whether the federal government, as opposed to the states, has the authority to do something like this. It doesn’t even address the issue of whether the statute violates due process, because that issue hadn’t been argued yet.
By the way, the concept here is exactly the same as the idea of confining someone to a mental institution once they’re found not guilty by reason of insanity. Less clear is whether Justices Scalia and Thomas think John Hinckley is being unconstitutionally confined.
Each infringement on civil liberties is only popular so long as it exclusively affects a small, despised minority- terrorists and child molesters definitely qualify.
Don’t worry, though. With the wildfire spread of abuse substantiation registries, soon every parent/babysitter in America will be roughly one phone call away from enjoying some of the due process violations these convicted pedophiles currently enjoy.
When we cross a threshold where an unacceptable number of parents, etc. are viewed as child abusers, then we’ll see a quest for a new villain to justify the expansion of a police state.
Jesus fucking christ. Is it really completely impossible for some people to get anywhere near the meat of the issue if the write-up includes certain buzzwords? the decision, as I understand it, is that the state can use civil committment laws to incarcerate people who are deemed to be inherent sexual predators, i.e., someone with a sexual deviance that leads them to prefer rape over consensual sex. There’s nothing that says you can’t disagree with that on the merits, but casting it as crazy out of hand because someone attaches the words “indefinite detention” to the description is just undescribably stupid. Would you say the same thing about the forced institutionalization of people with mental problems that make them a threat to others?
Actually, having read a bit more about this, I’m conditionally prepared to withdraw my objections to this. The Great Orange Satan has more thorough coverage of this than the NYT article, but basically, it’s limited to mentally ill people convicted of violent sexual assaults and/or child molestation, the burden of proof is “clear and convincing evidence” (the highest burden of proof in our judicial system), and the inmate is entitled to judicial review every six months. Basically, it’s an extension of existing procedures for civilly committing federal inmates who suffer from mental illness, and since I think a significant portion of the problems with our prison system is the result of people who should be in mental hospitals instead of jail, I’m not opposed to persons in this class getting psychiatric treatment instead of just getting thrown out in the street.
Granted, I’m sensitive to the slippery slope argument, but just because Dick Cheney probably wants to stick every Democrat in the country in a padded cell for life doesn’t necessarily make this a bad bill, so long as the focus is on treatment of mental illness rather than continued punishment.
Kinda makes me wish for days of the USSR when taking the high road was often times in the US’s best interest. Now that there isn’t an enemy to differentiate ourselves from – no more “see how much better we are than those godless communists?” – our base, knuckle-dragging instincts rule the day.
What’s the deal with the hyper-focus on sex offenders? I mean yeah, their crimes are certainly evil*, but so are other violent offenders. But in terms of stuff like residency restrictions (no living within x distance of schools, parks, etc), informing neighbors, and all the other weird laws, I personally would be as uncomfortable if not more so having a neighbor who beat up several guys after drinking too much than a guy who slept with a 17 year old.
*: of course, there’s a huge amount of sex offender crimes that are in the stupid category rather than the evil category. Public urination, some of the statutory rape laws, possession and sale of sex toys, etc often get lumped into sex offender laws in ways that just don’t make sense.
Yeah, I really don’t get this. If you need to change incarceration length to match the new crime, change the length.
Make the sex crimes life sentences or don’t. A short prison term followed by what amounts to a life sentence and a whole new legal category of incarceration is just nuts.
@some other guy:
But isn’t this a case not about giving life terms to sex criminals, but about arbitrarily adding time to a previously determined sentence once the prisoner has completed it? Is that constitutional?
Come on guys, knock off the kneejerk crap and look at the nature of this problem.
Sexual predators (not rapists as a class, but serious pedophiles, etc.) are almost impossible to reform in prison. We know this. Prison does nothing to change their behavior. Long term therapy can help, but most states don’t provide for that. In its place we’ve gotten a patchwork of laws that restrict *for life* where convicted sex offenders can live, which puts FAR too broad a category of people in a permanent state where they have an inability to get work, or to live in reasonable places. The problem is that we’ve never been willing to deal with the prime issue and instead do this shiny gloss shit that won’t cost taxpayers any money, but are at times worse than a civil incarceration and wind up ensnaring 20x as many people as are deserving.
Are we really better off with guys that at 18 were so unfortunate to get a hummer from a 16 year old, that had to do a nickel and then live under a freeway underpass for the rest of their life because sex offender laws make it impossible to live in any proper housing, all because we can’t distinguish between that case and the guy who can’t stop himself from luring little girls into the bathroom at the mall.
Granted this is all one giant cock-up of the legal system, Megan’s Laws, mandatory and minimum sentencing, a complete failure to distinguish between criminal and psychological acts, and so on, but since all of this shit lives in the states, the only way to unravel it is in the courts. Either we incorporate ‘incarcerated with treatment until no longer poses a threat to society’ as a proper sentence, which most states are in no position to do, but this ruling gives them some room to do it. I don’t see that it’s any worse than what we have now.
Slight quibble: The highest burden of proof in our system is “beyond a reasonable doubt.” That’d be about 99% sure. I’d characterize “clear and convincing evidence” as roughly 75% certainty.
Others might disagree, but those are the percentages I’ve dealt with in court and whatnot.
@malraux: The focus is that certain sexual behavior is much harder for individuals to control. When you have people asking to be castrated because they cannot stop themselves, that’s an entirely different situation than standard criminals, and it’s a fairly scary one even for people that believe that individuals have an inherent desire to be good.
And it’s not just sexual behaviors but also mental illnesses. Our laws (and even more, our willingness) take people that need medical help, toss them into the prison system just to get rid of them for a while, then dump them back out on the street, often in far worse shape than they were when they got arrested, and then we’re shocked that these people commit crimes again. This has to change in this country, and you can’t pre-specify how long it would take for someone to complete treatment – you have to give them an open-ended sentence with physicians giving a recommendation back on when the person is ready to re-enter society.
I’ll point out that we have a glorious history of institutionalizing people for life, so we’re hardly treading new ground here. But a system that was being abused got torn down, including the parts that were necessary and functional. We need to find a way to build this back up properly and responsibly, as prisons have simply replaced that old system.
At the risk of starting a flame war, it’s a better idea than Megan’s Laws.
If we have a group of criminals so dangerous we think we need to keep track of them forever, prison is the right place for it. However, that means we need to seriously look at what is a “sex crime,” because flashing somebody or having an underage girlfriend is different from violently raping somebody.
@Citizen Alan: Thanks, that makes it a bit better; and we do give people life sentences for no loss of life, such as in kidnapping cases.
I can also be persuaded to create lifecamps for sociopaths, but that’s even more out there, of course.
Man, I keep coming back to the issue of private, for-profit prisons. I know that the Prison-Industrial Complex has lobbied hard against relaxing drug laws, and helped push through mandatory minimums, and worked for the 3-strikes law – after all, you don’t earn state/fed $$$ for empty beds.
So it would be interesting to see where the lobbyists for Wackenhut et.al. were on this.
This was a federalism case, not a due process, case, though you’d never get that from the article.
The Supreme Court only agreed to hear the case to decide the federalism question of whether Congress has the Constitutional authority to legislate in this area. The due process questions were not even granted cert. That’s why you’ve got the the two most hard-core federalists in dissent (on federalism grounds) and the liberal block all upholding the law.
The issue of the constitutionality of preventative detainment of convicted sex offenders on due process grounds came before the court in Kansas v. Hendricks 521 U.S. 346 (1997), and was ruled constitutional on a 5-4 decision. (Scalia, Thomas, Rhenquist, O’Conner, Kennedy).
About twenty states (and the federal gov.) have preventative detention statutes. They are indeed worrisome.
Say what you will about the tenets of Opus Dei, dude, at least it’s an ethos.
Thank you. Things are getting awfully knee-jerk around here lately.
Tom in TN
This isn’t about merely “sexually dangerous” criminals, it’s about “mentally ill, sexually dangerous” criminals. We’ve been locking people up like that with involuntary commitments since forever – but only at the state level.
The only part that’s new here is whether or not the federal government has the authority to wield that power, rather than the states. The decision was purely a “states rights” issue – hence you saw the opposition that you did.
some other guy
That’s a good question. IANAL, unfortunately, so I couldn’t say. It certainly doesn’t seem very fair. But if sexual predation is, in fact, a mental illness that poses a danger to the community then a case can be made for civil commitment after being convicted of such a crime. The slippery slope argument against expanding civil commitments is also persuasive.
But either way I don’t think the comparison to how we treat terrorist suspects is an apt one. The accused sex offender is given legal counsel, a criminal trial by jury, the right of appeal, some minimum standards of treatment while incarcerated, etc. The accused terrorist is in legal limbo, barely afforded even a barebones habeas hearing, let alone a full jury trial or protection against torture.
D’OH!! Okay, I shouldn’t do legal reasoning on a Monday morning after a weekend spent drinking. Obviously, “clear and convincing” is not the highest burden of proof but rather “beyond a reasonable doubt,” (although this is considered a civil matter rather than a criminal matter, so as a practical matter, “clear and convincing” is usually as high as it goes). The lower burden of proof was one of the issues raised by the inmates but not considered in Breyer’s opinion which only addressed whether the Necessary and Proper Clause allowed Congress to pass the bill at all. The appropriate burden of proof, along with all other due process related questions were sent back for the lower court to consider on remand. Also, the statute is unclear to me on this point, but I assume that any additional time the inmate is confined after his sentence is run as a result of this statute must be spend in a mental hospital and not in a prison cell. I fully agree that you shouldn’t be able to lock someone up in the federal pen based on “clear and convincing evidence.”
Yup. On another case involving life-without-parole for juvenile non-homicide sentences, the court narrowly struck them down (thank you, Anthony Kennedy).
What do these cases have in common? Roberts and Alito were the only ones to come down on the side of the police state both times. George W. Bush might be gone, but his legacy lives on in these two assholes.
If authorities believed a murderer who had served his 25 years, they had the authority to keep him locked up, but I always thought you needed to have that ok’d by a judge.
But also that’s why we have 25 to life…I don’t know if that applies to 15-20 and then you serve 20.
Since when did it become “kneejerk crap” to question whether or not the government has the right to indefinitely extend sentences decided on by jury?
There’s somewhat less here than meets the eye. The Court did not address whether the statute is unconstitutional by virtue of the individual-rights protections of the Constitution. See maj. op. at 22 (“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.”). The only issued the Court addressed was federalism: whether the statute crossed the boundary defining which laws can be enacted by the federal government, and which laws by the states. Thomas and Scalia dissented because they believe in a narrow conception of federal power under which only the states can enact such laws.
I haven’t read these opinions yet, but isn’t this a civil commitment issue? You can already commit people civilly, involuntarily, if you can show they are a threat to others or to themselves (harm or self-harm). I don’t think it’s the same thing as the problem of indefinite criminal detention of accused terrorists without charge, trial, access to counsel, etc. And the issue of what to do with people who are sexually drawn to children and cannot stop themselves from assaulting them, to my knowledge has no good answers, unless you count giving them a choice between indefinite confinement and castration.
That’s really good news. There have been a few decisions in a row now finding that some sentences are unconstitutional, and yet I’m always a little surprised when the court takes another step.
It’s nice to have some counterweight to the insane system of sentencing in this country.
California has been doing this for a few years now, forcing pedophiles who have served their prison sentences to be confined indefinitely in a psychiatric hospital.
Louis Theroux did a pretty good BBC doc on the place. On the one hand, many of these guys are clearly not reformed. On the other, it’s hard not to sympathize with the grievance that they’ve already served their sentences, and that “receiving treatment” requires full admissions of guilt and regular phallometric testing. That and the fact that hardly anyone is ever discharged.
Uh, did anyone actually read the decision?
This decision was entirely about a 10th amendment claim, which was pretty dumb.
I am too scared to google that.
@ericvsthem: When nobody fucking thought through the problem.
Or put another way, SCOTUS is not prone to being outwardly stupid or evil. If your first reaction is that they are being outwardly stupid or evil, then your second reaction should be that you don’t understand what they ruled on or the nature of the case. I won’t pretend that Bush v Gore wasn’t wrongly decided, nor will I pretend that this may not also be wrongly decided, but there’s no way in hell it’s as black and white as most of the people commenting here have made it out to be. Fuck, half didn’t even notice that it was ‘civil incarceration’ not criminal. It’s not extending a prison sentence, it’s adding a hospital sentence onto the end of a prison sentence that probably was a waste of everyone’s time to begin with.
@QVC: They put an elastic loop around your ding-dong, show you images, and a computer measures your, um, response.
Something I’d actually like to see done to Dick Cheney while he watches torture footage. I think the results would explain a lot.
@Fergus Wooster: Or Glenn Beck every time he calls someone a ‘Nazi’.
Actually the court addressed that with respect to state law when it upheld the Kansas statute a few years back. Granted, the state law in question seemed to offer more protection than the federal law – jury trial, higher level of proof (beyond reasonable doubt).
As to others’ comments about “indefinite” commitment, I don’t know about the federal law, but I believe most state laws require periodic redeterminations of the individual’s status. In California it is once every two years.
This is great news for Ben Roethlisberger
When in doing so you’re not reading anything past one buzzword.
Good points. But as to prison sentences being a waste of time in these cases, I’d raise this distinction:
One can be released from a mental hospital when one is found to be “cured” (for lack of a better word). A prison sentence addresses the commission of a crime, and one must serve it out no matter one’s state of mind.
I see per Citizen Alan @20 that the person is entitled to judicial review every six months under the federal law.
In California, the person can petition the court for conditional release (and then discharge) after one year of each two year commitment has passed.
I haven’t read about this case but we’ve had civil psychiatric commitment for a long time if the person is a threat to themselves or others. I worry about abuse and due process, but the idea is sound.
@Zuzu’s Petals: But what happens when a persons psychological condition goes untreated for 5, 10, 15 years – and, given that prisons are far from normative environments, likely gets much worse. Then you decide ‘Oh, hey, maybe we should get on treating this guy’ and then spend another 5, 10, 15 years doing that.
I’ll disclose that I’ve got relatives that ran through this system – suffered from PTSD from WWII, did something, got locked up, PTSD gets worse, serves their time and is released, rinse and repeat until they die, often times committing worse crimes with each iteration. Are we *really* so determined to see the punishment play out that we prefer that over treatment and the prevention of future crimes? And that cycle is not at all uncommon.
I just have to say as a survivor who has paid a lifelong price for the crimes committed against me in childhood, at some point the rights of the innocent potential victims have to outweigh the rights of convicted repeat offenders. I believe in second chances but once a person has shown that normal punishment and treatment will not prevent them from committing more violent sex offenses then their rights have to start coming second to the rights of the public in general not to be victimized. In the end all sex crimes are violent crimes because of the extreme damage they can do to the victims mental health.
It’s like nobody in America can fucking read anymore.
Ya oughta look into this one more carefully John. Oregon started indefinite detention of sex offenders because of several egregious cases–one where a man planned his rape and mutilation of a child for months , and promptly carried it out as soon as he was released. He cut the little boy’s penis off and left him in a ditch to die. Sorry, but such people are a threat to society and always will be. No, don’t let him out. Ever.
Now, I know we have lumpers and splitters, and usually I’m a lumper, but let’s split off deranged psychopathic pedophiles from the usual Americans-have-rights-and-every-day-they-lose-more variety. These people are not political dissidents–they are irretrievably broken. No time will ever erase or mend them.
I am actually relieved they carried this one through. Of course, we have to be ever vigilant that punishments suit the crimes and that people are not wrongly convicted of crimes they didn’t commit. But, if you have a known predator–lock him up permanently or put him down like a viscous dog. Don’t turn him lose on society.
At the risk of being too knee jerky, ISTM that the result of this ruling leads to an individual serving more time (at some facility not of his choosing), than he was sentenced to by the judge/jury at the time of conviction.
I’m also a little fuzzy on how this compares to committing a mentally ill person.
I would guess that the justices would respond that they have found that a statute sentencing individuals outside the findings of a court of law to, in effect, life in prison, is “due process of law”.
There was a great Louis Theroux doc about this, I think it was called “A Place for Pedophiles”.
I do mean, it was great in depicting the reality of the situation, not “great” in giving you hope or a greater understanding of what the fuck we need to do.
One of the main items that I took away from this is that the Prison Industrial Complex LOVES the idea of permanent incarceration. LOVES IT SO MUCH. We will be seeing many more multibillion dollar complexes to house these prisoners, and local laws will soon change to allow them to be built in-state, far away from “our children”.
Right or wrong where are you going to find a politician that would oppose this?
In the 80’s drug hysteria Florida passed mandatory life sentences for as little as 3 joints. A few state politicians suggested, rather mildly, that just maybe this was not a good idea. They were mostly run out of office. A few years later Fl was releasing murders and rapists early because they did not have enough prisons to hold all the kids with no parole.
It does APPEAR as if there are safeguards in place with this but we have seen way too many cases (particularly capital cases) where justice went into the weeds & some dumb schmuck gets it in the neck.
Hey, there might be a fiscally conservABWAHAHAHAHAHA. *wipes away tear*.
The civil commitment relates to the detaining for people who have psychological disorders – like schizophrenia, any kind of disorder that may cause physical harm to themselves or others – and for what I know that means there are hearings before a judge to determine that the defendant ought to be placed in such commitment.
I heard a speaker back in the 1990s at college who mentioned that treating rapists for psychological disorders was a necessity: imprisonment was one thing, but unless the rapists got treatment for their violent behaviors – and at the time, they weren’t – they were going to repeat their crimes once they finished their jail time.
For what I’ve reading on the ruling, Breyer mentions that a 14th Amendment due process applies to this: I think that means that the sex offender still gets a hearing on whether or not he/she gets committed to psych care at a designated facility. Sex offenders genuinely need psychological treatment outside of any criminal jail time – that sex offenders WILL repeat-offend given the chance – so as long as there’s a due process element to the commitment proceedings I don’t see a problem with this ruling.
They’re getting process. It’s a civil commitment process, so “clear and convincing” and the only question up for review was whether the federal government can write a statute like this. I don’t think there’s ever been a question whether a state can. States can and do commit people they deem mentally ill and a danger to themselves or others.
I have a lot of problems with the Adam Walsh Act, but I don’t really have an issue with whether the federal government has the power to draft the statute, which (I think) is the Thomas objection.
That’s how I read it, anyway.
I’m (becoming) very familiar with state law on sexual predators, reporting requirements, etc. and there are currently huge questions and mass confusion there, but I don’t think this decision has any bearing on any of that.
” Would you say the same thing about the forced institutionalization of people with mental problems that make them a threat to others?”
Actually, I would. I don’t see a meaningful difference between “forced institutionalization” and “incarceration” (particularly given that mental health care in this country is a bad joke), and last time I checked we didn’t lock people up for crimes that they might commit. I know I am indulging in pre-9/11 thinking, but there it is.
The fact that the litigation strategy was whack doesn’t make the outcome less outrageous. It just means that there is now an ineffective-assistance claim on the table. :-/
I really like practicing tax law, but there are days when I am tempted to chuck it and go work at a PD’s office. This is nonsense.
I think you’re missing the serious mental illness angle, which probably puts it under the civil commitment general area:
‘Gives a federal Judge the ability to civilly commit individuals who are in the custody of the federal prison system if it is proven that the individual (1) has engaged or attempted to engage in sexually violent conduct or child molestation; (2) suffers from a serious mental illness, abnormality, or disorder; and, (3) as a result, would have serious difficulty refraining from sexually violent conduct or child molestation if released. A hearing is available to the involuntarily committed individual every six months to reconsider their commitment status if requested by council or the person in the federal treatment program.’
To me, the big difference is there’s no “danger to themselves” test, and that’s part of the state process. This is simply danger to others.
To be sure, they aren’t always getting process. Washington state established a sexual predator detention (and, allegedly, treatment) system about twenty years ago that scooped up convicted sexual predators on the completion of their sentence, without individual assessment of the risk they posed, and transferred them to a facility on McNeil Island (about thirty miles west-southwest of Tacoma, near to nothing) for indefinite detention until their treatment had been completed and they could safely be released – except that no treatment was happening, and no-one could be released.
I’m all in favor of actual, responsible civil commitment, but the tendency to treat convicts and certain classes of ex-cons as non-people is a real and a growing one, as the phenomenon of prison rape humor demonstrates. Similarly, I don’t understand why in many states ex-cons don’t get to vote, and it scares me that people are rendered ineligible for subsidized student loans and tuition assistance by minor drug convictions, and can be put under a whole range of restrictions if the state decides to prosecute them for fairly normal teenage sexual exploration, for example under statutory rape or underrage pronography laws.
Periodically we have legislators or voters through referendums pass stupid knee jerk laws in response to whatever buzzword crime is at issue at the moment. We manage to do incredibly stupid things with lasting harm because of fear. There are people who will not reform and are a danger and then there are those who get swept up in the hysteria as collateral damage – doesn’t count I guess.
The SCOTUS seems to have addressed one side of an issue that does need addressed a bit more fully.
Maybe I’m wrong, but don’t civil committment satutes normally require some sort of act demonstrating the person is a threat to themselves or others?
I agree. Sexual predator is the fad crime of this decade. It reminds me of the hysteria with the “demonic” day care centers. My state law is insanely broad. They threw everyone in there, from the violent child rapist to the 19 year old who dates a 15 year old. No one knows how the draconian reporting requirements apply to juveniles, either.
I’m immediately wary of any law named after a child. It almost insures insane over-reach.
Given what I’ve seen of the criminal justice system and the State’s ability to accurately determine which offenders are likely to re-offend, I have zero faith that these procedures won’t be abused.
Hell, I had a client who was convicted as a sex offender because, 6 years ago, while drunkenly screaming at a woman who’d sold weed to his son, he grabbed his crotch (through his pants) and told her to “find herself a real man.” My state won’t let people off probation for sex crimes, ever, under any circumstances, unless they ask for it; so, 6 years after this heinous sex crime, and with no prior or subsequent record of any kind, he was forced to hire my firm as attorneys to get his probation terminated.
I think my client is very, very lucky that after the completion of his criminal sentence he wasn’t civilly committed for life, and sent through a repeated sequence of rote denials of release after craven state officials cursorily reviewed his records at 6-month intervals. In a climate in which any repeat sex offense automatically results in a metaphorical crucifixion of any judge or probation officer or prosecutor who demonstrated even an iota of leniency to that sex offender in the past, it’s the much more sensible and politically viable (and yes, cowardly) decision to treat every “sex offender” as if they were a serial child molester waiting to happen- including the guy who makes a lewd gesture at a woman, and the guy caught drunkenly peeing in the bushes.
How, pray tell, is due process not being extended?
Yeah. And “sexually violent conduct” is a term of art. It has a specific meaning. Sex offenders are tiered, under Adam Walsh and state law.
The prison wardens can’t just do this on a whim. The State has to put on evidence at a judicial hearing and prove by clear and convincing evidence that the inmate is mentally ill and should be confined according to the requirements of the statute. All due process requires is reasonable notice and a fair opportunity to be heard.
Every other day I have clients come in complaining about garnishments on their pay because they didn’t bother to go to court and had a default judgment entered against them.
The prison wardens can’t just do this on a whim. The State has to put on evidence at a judicial hearing and prove by clear and convincing evidence that the inmate is mentally ill and should be confined according to the requirements of the statute. All due process requires is reasonable notice and a fair opportunity to be heard.
Every other day I have clients come in complaining about garnishments on their pay because they didn’t bother to go to court and had a default judgment entered against them. They had the process due to them, they just didn’t avail themselves of it. Based on what I’ve read so far, I don’t see a constitutional violation here.
This combined with what others have said about the private for-profit Prison-Industrial Complex, IMO, is like greasing the wheels for abuse of this outcome.
I think there’s a big question on whether the science is solid on sexual offenders. I don’t know if it is, but that’s what they relied on. That sexually violent offenders have an identifiable mental illness. It’s not just re-offending. It’s a compulsion to re-offend. That’s the test. I haven’t read anything on it more than a year, but they have a certain group where there is no effective treatment.
I think it’s safe to say we don’t know enough, and they’re going with that they have.
Yep. And no one’ll give a shit until it happens to them or to a loved one of theirs. Same as with the abuse substantiation registries excesses- no one cares until it happens to them or to someone they know. It’s only DCF’s “substantiate everything that moves” policy that’s finally starting to impact enough people that there’s growing political pressure to maybe tone it down a little. (Or maybe that’s just my wishful thinking.)
The SC only ruled on the federalism aspect of this case. The due process grounds were not granted cert, yet.
In essence, this is just the SC cleaning up a really bad decision on the federal appeals level, because a lower court ruled that the federal government basically doesn’t have the power to imprison anyone.
Don’t know – but even if you’re right, this whole deal would still make me queasy. The potential for bad outcomes is just too great.
America hates and fears the human body, loathes sex, abhors pleasure, and detests joy.
In America, the classic motto remains: “No pain, no gain.”
America dotes on torture and despises fun. Americans love watching people get brutalized and sadistically tormented, but American shriek in horror if they watch two consenting adults getting physically intimate.
America is a sick twisted debased society that wants to live in a live version of Dante’s inferno. That’s why.
I don’t see why there’s necessarily any more potential for bad outcomes or abuse than in any other hearing.
I’m not sure violent rape and child molestation fall under most people’s idea of “fun.”
The judge isn’t going to do this analysis, as a practical matter. He/she is going to make a finding, but he’s going to rely almost entirely on a recommendation by mental health professional(s) because the judge doesn’t know or pretend to know anything about what constitutes “serious mental illness” as it relates to sex offenders and a compulsion to re-offend. The judge will simply meet the requirements of the statute. The (actual) determination will be made by an expert, but the judge will determine if the expert is credible. That’s how involuntary commitment works here, anyway.
Oh, I think there’s the potential for real abuse. My big fear is there will be a sort of cottage industry in sex offender “experts”, and they’ll be churning out recommendations, based on lousy science.
I keep going back to the witchhunts with the child abuse at day care centers. That was an industry. It had a media arm, and loads of hysteria and coerced testimony. It had bumperstickers, and passionate adherents, and a lot of it was complete bullshit.
I’m not saying there isn’t the potential for abuse, just that I don’t necessarily see where there’s more potential for it than anywhere else. Judges mis-apply the law and shoddy experts enter testimony all of the time. Clearly those are major problems, but just as clearly, the best solution to those problems aren’t to completely ban expert testimony or just abolish criminal law altogether. Potential for abuse just doesn’t strike me as a compelling argument against much of anything.
@kay: I don’t think they’re at all comparable. Hiring charismatic preachers as recognized police experts to give legal testimony on “satanic cults”, and arresting teachers and individuals based on coercing children and creating the whole “repressed memory” industry.
I’m not saying we have a lot more solutions here than we did then, but the complex nature of what to do with convicted child molestors within budget and civil rights is a bit of a different animal than arresting people on witch hunts, prompted by the religious interconnection of unethical religious psychologists and local law enforcement.
I work in this mushy area of law so I feel as if I can make a distinction. I don’t agree that it’s like criminal law, which is really fairly rigorous. They have bogus experts in criminal, but IMO, once you bring children into it, and start getting into vague areas of mental health, people have a tendency to completely lose their minds. We’re not cold hard fact-finders regarding children. Part of that is deliberate. They get extraordinary protection because they’re extraordinarily vulnerable. The fact is, it’s really hard to discredit a mental health professional unless you hire another one, to go the other way. Judges and lawyers don’t know how to analyze the research on sex offenders. I just read it. I don’t pretend to know if it’s valid. Couple that with what has been a real revolution in the “voice of the victim” in court (we’ve almost given victims party status, and I’m not at all sure that was smart). That sounds cold, but I’m not on board for victims determining sentencing. I would have found some reasonable middle ground, myself. It’s okay to give the victim a voice, but really, we have a system that goes “state v defendant” not “victim v defendant”. That’s gotten a little blurry.
I wish that weren’t true, but it is. There’s going to be a lot of discretion in play.
It’s the nurtured cultural product of
I would be more comfortable if I had not sat through hearings where people lose their parental rights based on a determination of dueling mental health evaluations, where two experts reached two vastly different conclusions. I’m not sure that’s an exact science. Maybe we’re hiring the wrong experts, here locally.
It worries me a little too, because these laws never get rewritten or modified. Because politicians are cowards and no one wants to attack the Adam Walsh Act. It’s political suicide. The ads write themselves!
We won’t know for decades if the reporting requirements serve any useful purpose, and the science on re-offenders is sure to evolve. Will they respond? Not so long as they’re politicians.
I guess I’m not crazy about having a grieving parent drafting this massive law. My heart goes out to Mr. Walsh. That doesn’t mean I want him setting policy.
Isn’t the heart of the law (not the SC ruling itself) that the reason they want to keep these people locked up is because there’s a potential there for them to re-offend?
I don’t see how we can say potential for abuse in the system isn’t an issue on the one end when we’re making the claim people have the potential to possibly committ another offense, and that’s why this law is needed.
I’ve had the same experiences. I’ve also seen batshit-crazy people deemed sane and competent by rubber-stamping State-employed quacks, for purposes of determinations of competency and sanity in criminal proceedings. It makes me sick that clients I can’t even have a coherent conversation with are deemed sane and competent, but once the quack who works for the State signs off on that, there’s not much I can do but hire a competing expert to argue with him about it (assuming the money for that’s there, which it usually isn’t).
Our criminal justice system is largely run by cults of mercenary scientists practicing sciences that almost no one involved in the litigation or adjudicative ends of the process can comprehend. (I’m not willing to go so far as to say that a lot of it’s junk science, but it wouldn’t surprise me if people a century from now viewed it that way.)
You are aware that a huge number of the people who are now getting sentenced to prison as so-called “sex offenders” are 18-year-old high school boys who sent or got sent a nude picture of their 17-year-old girlfriend on a cellphone, aren’t you?
The practice of civilly committing purportedly still-dangerous sex offenders after their prison sentences were formally over, under a plausible claim of mental illness + danger to self or others, has been regularly done for decades at the state level. I used to work for a couple of years as a special counsel attorney at one of the state’s main mental hospitals, where my job centered on being a public defender for people facing involuntary civil commitment, including people being transferred at the end of prison sentences to the state mental hospital. The legal issues at state level have always been some close variant of the following two criteria, both of which must be satisfied:
a) suffering from a mental illness;
b) as a result of which the person is dangerous to himself or to others.
As a practical matter, any reasonably sharp psychiatrist has little trouble molding some rationale for fitting the patient into some recognized category of the DSM (the officially recognized Diagnostic and Statistical Manual of Mental Disorders) . It’s only slightly more difficult that it is for any decent prosecutor to indict a ham sandwich before a grand jury. The real grounds for contention at the hearings nearly always turned on whether proof of current “dangerousness to self or others” could be proven. Let’s just say that predatory behavior of the “dangerous to others” type tended to have a much longer credible shelf-life than many other types of allegedly “dangerous” behavior stemming from a mental disorder.
So, it’s hardly surprising that the Supremes concentrated on whether the federal government possessed jurisdiction to get into the individual civil commitment business when a state defaults from stepping in, rather than on any “liberty” interests of the inmate-about-to-become-involuntarily-committed. One of the key provisions of the law was that the person being post-prison subjected to involuntary civil commitment in a locked ward of a mental facility (not continued incarceration in the state pen) is entitled to a hearing (with burden of “clear and convincing evidence) on the state to prove commitment is warranted under the ordinary civil commitment criteria, with right to periodic review/rehearing (every 6 months I believe). This represents no change at all from well-established state practices.
The tricky issue of course is whether (and over what shelf life) a past act of criminal sexual predation satisfied the mental illness and “dangerousness” criteria, which is essentially poses an identical parallel with people who are found NGI-insanity (infrequent though they are) and civilly committed – how long does the fact that they killed someone of itself prove continuing dangerousness?
What in practice the state is nearly always able to do is call to the stand some psychiatrist, nurse, or ward patient technician, etc who will testify to some sort of allegedly troubling observations of the patient’s more recent behavior or utterings that purport to indicate the patient is a continuing dangerous risk to others. Judges are usually heavily inclined to credibly accept this sort of purported “evidence” – who wants to run for re-election as the judge who let an insane killer loose (or sexual predator loose) who then goes out and kills or rapes some 6-year old girl?
IMHO this discussion about why the court didn’t focus on the “liberty interest” is born of lack of practical familiarity by most people of how the system already runs and has been for decades. The “liberty” interests were established some decades ago by SCOTUS in holding that something like the mental illness + dangerousness legal criteria had to be proven, and by a higher standard than just a preponderance of evidence, and that people facing involuntary commitment had a right to timely initial and periodically recurring hearings on whether they met/continued to meet the criteria.
It’s perfectly understandable to me why this case focused on federalism, not liberty – the potential liberty dimension was explored and laid out decades ago.
On the other hand. The state regularly pulls permanent parental rights from parents based on 1. an adjudication of abuse, and 2. the potential to re-abuse.
Permanent. A hearing, and one appeal as of right, and that’s all she wrote. As you may know, expert mental health testimony testimony is critical there.
And parental rights are a fundamental constitutional right.
So maybe that’s the better analogy.
@Kay: On the contrary — cmorenc’s comment is crap. He wallows in a pool of verbiage that entirely avoids the basic issue.
Namely, America’s so-called “justice system” has decided it’s just fine ‘n dandy to keep people locked up in prison after they’ve served their sentences.
Anyone with a brain can see where this is headed.
First, chronic child molesters…next, violent repeat offenders…eventually, chronic shoplifters.
And the end of the line?
PROSECUTOR: “Your honor, as a chronic habitual repeat political protester, the defendant has shown herself unable to control her antisocial behavior. Pursuant to the USA Patriotic Anti-Subversion Act of 2020, I formally request that Kay be remanded to the women’s prison for life without parole.”
JUDGE: “It is so ordered. Bailiff, remove the prisoner.”
Ideally they should be treated while serving their criminal sentence as well.
Thank you for speaking out.
We disagree, mclaren. Respectfully. I work in an allied area, and while I see the potential for abuse, absolutely, this isn’t a new concept in law. The initial objection was that there isn’t due process here. But states have long had the power to commit, and there is due process here.
He’s right that the liberty interest, as to states, was decided long ago. The Court only reached the federalism issue here because there’s no question that the state can determine mental capacity. It isn’t in question.
I gave you an example, a permanent loss of a fundamental right, in parental unfitness proceedings. One hearing, one appeal, permanent loss of a fundamental right, based on the potential to re-offend.
I think the comparison to detainees is not a good one. That doesn’t make the detainee issue less compelling. It just means you can’t conflate everything with everything else to satisfy a narrative.
Too, mclaren, it is not persuasive to me that you won’t afford me the basic respect that I am capable of reading and agreeing with a comment. I listed my concerns with this law, but I do not agree with you.
I can analyze this, just as you can. I know this area of law, at the state level. You may absolutely disagree, but calling my agreement with a comment “crap” is disrespectful and dismissive and patronizing.
sucks to argue with people who know what the fuck they’re talking about, eh?
How is commitment to a psychiatric facility part of the “private for-profit-Prison-Industrial Complex” ? Just curious.
Well it’s good to know that if the Republicans get there way and sedition against Republican presidencies is criminalized and put into DSM-VI as a mental disorder, that we will be put into criminal asylums for life rather than stay in the prison system. yay for us.
You have a point, but the federal law seems to reflect what has been codified in state law for some time now.
And that has nothing to do with anything, since there probably aren’t mental health issues involved in those cases.
And again, you undercut yourself with rank absurdity.
@Zuzu’s Petals: My concern is that the potential for abuse increases when a profit motive is involved. As we saw here in a slightly different scenario:
SCRANTON, Pa. (AP) ― Two former county judges discussed receiving kickbacks and plotted perjury with the owner of a private juvenile detention facility, who recorded the conversations, prosecutors said.
And with the entire system, from jails to prisons to psychiatric facilities, going private and for-profit contracts IMO we will see more cases like the above.
Well, my state was the first to comply with Adam Walsh, because the state didn’t want to lose 10% of federal funding, so it’s a little more than “states were doing this anyway”. The Walsh standards are or will be codified in state law.
The reporting requirements have been up to the state supreme court and were deemed constitutional, because they aren’t “punishment”.
Ohio reserved judicial discretion on juvenile offenders, and the AG just lost in his effort to pull discretion from state judges there, so I was relieved. They’re using it, too, state juvenile judges, that discretion. They’re reading it narrowly re: juveniles and using some common sense, thank god.
Great explanation, thanks. Also too, the USSC specifically upheld a state law authorizing post-prison civil commitment for sexually violent offenders.
In that case, that has always been true at the state level, where authority for these sorts of commitments has been on the books for years.
I thought the Walsh law only had to do with federal custody. Does it also require states to apply its provisions or have the same standards? What about states that have stricter standards?
ETA: I see it requires compliance with the registration criteria. How does that affect the civil commitment provisions that we’ve been discussing?
Just SORNA, sex offender registration and notification, so far.
@Zuzu’s Petals: The authority has, agreed. My concern is the progression of for-profit intervention in this “arena”. (or call it what you like)
I’m suggesting that the issue of liberty in this respect has always made me queasy, but in more modern times the authority of the State has a separate motive to continue incarceration in its many forms. A profit motive.
So I don’t think I’m arguing with you on the law itself*, but I am trying to stress my concern over new reasons to abuse it.
*Always been bothered by this determination.
Okay, but in the absence of kickbacks, it’s hard to see where the profit motive would be in taxpayer subsidized civil commitments.
@Zuzu’s Petals: what is your argument?
That this law has been around a while at the State level and is a good thing?
You’re not concerned about any ramifications?
I can’t tell what you’re saying.
@mclaren: Sounds like BS. Facts, numbers or nothing bubba.
Also … grasping … this argument is about a specific criteria, adults who rape children, not 18 year-olds and their 17 year-old girlfriends. I gotcha–the application of the law is the problem. So, make sure that when the law is misapplied it is remedied/fixed. Make it your life’s work.
But don’t turn a monster loose on little kids. There’s gotta be a line.
And, from recent experience, that “threat to themselves or others” isn’t working in California. Or Washington or Arkansas, for that matter, after all, raping a child was not enough to get Maurice Clemmons off the street. He had to gun down 4 policemen to be taken seriously.
Jail sentences work–for good or ill … mostly ill, since the mentally ill aren’t getting treated but warehoused at $30k a year and only a small fraction attack children.
Still, acknowledge the difference. A fascinating aspect of this argument is not that the mentally ill are allowed to rot in jail without treatment, or rot on the streets when treatment could make them functional but the state would have to pay for it, but that we are afraid that political prisoners will be squirreled away with this law as the fig leaf to keep them in jail permanently. We are afraid they will come for us, not what they will do with various and sundry crazy people. After all, we really couldn’t give a shit about them!
I understand the actual practical workings of the civil commitment system, including post-prison civil commitments INFINITELY BETTER than you do – my job day in, day out was to be a public defender representing as individual clients the exact sorts of people who are the focus of this thread and the civil libertarian principles involved. By far the most immense obstacle facing someone trying to resist civil commitment IS NOT LACK OF ADEQUATE CONSTITUTIONAL PROTECTIONS AGAINST CIVIL COMMITMENT, PARTICULARLY INDEFINITE CIVIL COMMITMENT. From a civil liberties standpoint, people already had before this law, this SCOTUS decision, and still have after this law, this SCOTUS decision, which you maintain they should have and mistakenly believe this decision took away.
What you should have realized from my detailed from-on-the-ground experience post is the MOST FORMIDABLE OBSTACLE TO RESISTING UNJUST CIVIL COMMITMENT, including post-prison (indefinitely repeating) civil court commitment is THE ACTUAL WAY COMMITMENT COURT HEARINGS WORK AT A PRACTICAL TRIAL LEVEL, AND NOT WITH ANY LACK OF THEORETICAL SUBSTANTIVE OR PROCEDURAL RIGHTS AT THE CONSTITUTIONAL/CIVIL LIBERTIES LEVEL. Point is, in practice, despite all the constitutional/procedural safeguards that are purportedly in place, in practice, far too many judges view their turn each month to conduct civil commitment hearings as a mixture of nuisance duty and light, easy work with very little incentive on their part to not blithely accept the doctor’s testimony and such cobbled bits and pieces of anecdotal evidence purporting to prove danger as “clear and convincing”, and tons of incentive against giving the benefit of even considerable doubt to the contestent. What judge wants to be the one to rule counter to doctor’s advice on mental condition and dangerousness which results in denial of commitment, and the released person soon thereafter while free commits some heinous act? THAT is the real practical obstacle to defending someone else / defending yourself in a civil commitment hearing, and not lack of many layers and varieties of constitutional / civil rights which you possess in principle, which the SCOTUS decision leaves untouched from what it was before.
BTW: I agree completely that it’s troubling indeed if the grounds for civil commitment do expand beyond grounds which are, to a strong plausibility, within the realm of mental illness + dangerousness, and extend to shoplifting and other crimes. I also agree completely that it’s dangerous indeed to permit this realm of “sex offender” within this concept of committable grounds to extend broadly to anyone convicted of any purportedly sex-related activity, rather than traditionally conventional forms of criminal sexual predation such as child molestation or rape.
But that wasn’t what was at stake in the SCOTUS decision at hand. All the decision involved was whether, as a jurisdictional matter, the federal government had power to institute its own supplemental civil commitment system for post-prison inmates involved with sex crimes, in addition to the long-existing state commitment systems already in place. I do worry considerably where the right-wing justices might be inclined to head if they ARE offered a suitable opportunity to expand what can legitimately be considered a “sex offender” constitutionally, etc.
Another great comment. You’re on a roll here :)
So is this rule by law or rule by fear? Fear of consequence. Status quo.
Yes, it sucks. But among the great many satisfying, worthwhile days I spent defending those cases, the bitterest memory of a difficult on-the-ground practical situation I ran into was the clear morning when I had a client with a defensible case who was immensely irate at the injustice of his situation and had terribly urgent desire to have his hearing and chance to win release THAT DAY. However, I knew that not only was the judge assigned to our court that day inclined to laziness and taking the state’s evidence and doctor’s testimony at uncritical face value, but even more critically I informally knew the judge had an invitation from a wealthy buddy to go on a cruise down at the coast on his buddy’s 35-ft sailboat and had a determined itch to wind up concluding the morning’s commitment case docket by shortly after noontime. I was in the difficult position of having to recommend to the client that we accept a two-day postponement of his case (when a different judge would be presiding) without being able to be completely frank with him about the reasons we shouldn’t insist on going forward this particular morning, because I knew he’d bitch and moan about it in a way that would find its way back to the wanna-go-sailing judge. I knew that for all his superficial good-old-boy camraderie and charm, this particular judge would be inclined to be difficult to deal with for me and my other clients for awhile if he suspected I’d been the source of rumors about his wanting to skip out of court early to go sailing. And he knew how to stick knives in our backs without leaving a trace of legal blood to take to an appellate court about.
This anecdote represents but one of a thousand anecdotal reasons why the practices in the ground are more important than the principles higher up in the appellate air in these cases to people facing civil commitment proceedings, not that the principles aren’t important too. Without constitutional principles, the clients would have nothing whatever but the integrity and inclinations of the judges and doctors whereas having recognized civil liberties and procedures in place did now and then induce a spurt of principled action whereby judges did now and then rule in favor of letting someone go instead of committing them at these hearings.
@cmorenc: Where is Jack McCoy when you need him.
I think I was pretty clear.
I said in the absence of kickbacks, it’s hard to see where the profit motive would be in taxpayer subsidized civil commitments.
Maybe you could address that instead of changing the subject.
Again, an excellent, informative comment. Thanks.
If you’re a psychiatrist who works for the prosecutors and the State, you have a cushy job with guaranteed repeat business. All you have to do to keep your client happy is to keep extending the civil commitments indefinitely on people they dislike, whether because of the personal animus of individual prosecutors or because of the political implications of letting one of these people ever see the light of day again.
It would sound a lot less plausible to me if I hadn’t seen psychiatrists and other specialists operate on these motives, in tangentially-related contexts. I don’t know if personal job security and contracted profits count as a “kickback,” per se… On second thought, I guess they do.
I did address it. What you are saying is the same as, “Well, without the corruption and hypocrisy involved, I don’t see a problem with the GOP being in power.”
The potential for kickbacks is the entire issue with potential abuse. It’s what I’ve been saying this whole thread.
You’re just wanking now.
When I first heard of the ruling, I thought involuntary commitment at the completion of sentence was a better way to achieve the result. But, from what you’re saying, that’s essentially what it amounts to.
Kay, “danger to themselves” isn’t additive, in civil commitments. You can be committed (I think) for merely being a “danger to others.” And this form of civil commitment was, in fact, a step foward from what we had. Its made it incredibly difficult to commit people for merely failing to take their meds. Unfortunately for (some) mentally ill people–among whom I include one of my cousins–it means that a person who is in denial about their illness and their need for medication can and does wander freely and, eventually, get injured. Its very hard to prove, in advance, that refusing to accept medication/treatment/care is necessarily going to result in “harm to self” and/or “harm to others.” But it remains highly likely.
In a well formed state, a strong centralized state, where the right and ability of the individual to protect him/herself or to exact justice for him/herself has been suspended there are going to be extremely hard cases of recidivism that have to be dealt with. Not dealing with them is an abdication of the state’s duty to its citizens. Repeat offenders, whether they do so because they like it, or they are deemed mentally ill ( not morally responsible) are a problem for society. In the case of sex offenders they are a huge problem because the harm that they wreak is much greater than almost all other crimes except murder.
The elements of the offense are pretty strictly limited to sex crimes. I don’t see this law as putting us on any more of a slippery slope to a Soviet Style misuse of psychiatric prisons than any other law.
Having read through the thread more carefully I want to apologize for appearing to argue with Kay. I agree with the other things she’s written, as well as cmorenc’s points. I was responding too hastily to just one thing Kay said, that didn’t at all reflect everything she was arguing.
Typically, the highest burden of proof is “beyond a reasonable doubt,” which is the test for criminal convictions. Most civil actions (breach of contract, defamation) are decided by “preponderance of the evidence,” which just means “more than half.” “Clear and convincing evidence” is between the two, which in NY for example is the test for proving civil fraud.
Having seen some of the crap that’s prosecuted as sex crimes, I don’t have as much faith in the criminal justice system as you seem to possess.
I can’t wait to see when defendants like some of the clients I’ve had languishing on probation for a half-decade or more because they made a lewd gesture or kissed a girl (literally- that’s all one guy did, was kiss a girl and creep her out) are facing de facto life sentences because craven court systems and mercenary shrinks realize it’s much easier to give a back-door life sentence to any crime even vaguely rising to the level of “sexually violent conduct” than it is to maybe concede that someone might not be an incurably insane sexual predator because they got drunk and peed in the bushes in front of some passersby when they were in college.
(I’d say my prediction was overwrought, but I’m having some trouble finding a legitimate definition for “sexually violent conduct” in the United States Code. I don’t know what that term means, so I’m going to read it the same way the US Attorneys will read it- as expansively as possible.)
That may be true for anyone in the psychiatric profession who provides services to the state or the prosecutors for any proceeding. I guess there are plenty who are just as “available” on the other side. But his claim was about a “private for-profit Prison Industrial Complex” which even if you stretch the usual meaning, seems not quite on point unless you’re talking about straight out kickbacks to the court per his example.
I’ll let the reader decide who’s wanking here.
@Asshole: “Clear and convincing” is the highest civil standard, higher than the “preponderance of the evidence” standard for negligence, say. Beyond a reasonable doubt is the criminal standard. I don’t know if there is any other standard in the criminal law.
I don’t know if the issue in the SCOTUS case was a civil statute or a criminal statute. If civil, it would be the highest standard possible.
Sorry for the law-school didacticism.
aimai, you can agree or disagree with me any time at all :)
You’re a kind person and an honest broker, and I’m sorry I missed a chance to go around with you.
It’s always fun, and I always learn something.
True. Some psychiatrists whore for the defense, of course. But a key difference is, the State will ALWAYS have its own whores on stand-by to contradict them- a lot of defendants can’t afford their own whore psychiatrist. Another difference is that the defense psychiatrists in this scenario are working to get a guy out on the streets who’s ALREADY SERVED HIS MAXIMUM SENTENCE.
If the worry is that these people will roam the streets and become predators again, then allow for maximum sentences of life for the crimes they’re convicted of. But let the judge and jury at trial figure it out. Don’t let these ex post facto civil commitment games take meaningful sentencing power out of the courtrooms. (Sorry, I refuse to see civil commitments as anything other than a continuation of penal servitude. Dressing it up in psychiatric bullshit isn’t persuasive.)
There are lower standards in criminal law in certain scenarios- in certain evidentiary admissibility squabbles, for example; and in quasi-criminal proceedings like “civil” suspensions of licenses in DUIs.
The wording I disagreed with was ” the burden of proof is “clear and convincing evidence” (the highest burden of proof in our judicial system).” It’s not the highest burden of proof in our judicial system. The highest burden of proof in our judicial system is the one available in criminal trials- beyond a reasonable doubt. This is a lower evidentiary burden for the State, and it results in de facto indefinite extensions of criminal sentences in a pseudo-non-incarcerative context.
Ask the guy in the mental institute whether he’s glad he’s not in prison. The only meaningful difference I see here is that it’s easier for the State to keep extending your sentence every 6 months than it was for them to convict you in the first place.