Monday, May 17, 2010

Sexual Predators and Indefinite Detention

U.S. v. Comstock, 08-1224

Today, the Supreme Court of the United States ruled that certain prisoners can be incarcerated indefinitely.

Specifically, the court reversed a lower court ruling that said Congress overstepped its authority in allowing indefinite detentions of those deemed "sexually dangerous" and permitted their continued detention after the completion of mandated sentences.

Say what?

I had to read that several times before I was sure I was reading it correctly.

I don’t get this at all. 

Rather, I understand the concept and especially the sentiment, but I don’t understand how indefinite detention is constitutional.

Now I’m sure the High Court, not being completely insane and having a far greater understanding of the law and the Constitution than I do, must have some way to justify this decision – but I’ll be damned if I can understand how indefinite detainment past the end of a sentence is legal under the laws of the United States.

Justice Thomas and Justice Scalia agreed, though they were obviously in the minority.  Thomas opined that Congress may only pass laws that deal with the federal powers listed in the Constitution, and he went on to say that nothing in the Constitution "expressly delegates to Congress the power to enact a civil commitment regime for sexually dangerous persons, nor does any other provision in the Constitution vest Congress or the other branches of the federal government with such a power.”

However, the majority opinion, penned by Justice Breyer stated: “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 by who may be affected by the federal imprisonment of others.

Right up front here, I am admittedly neither a constitutional scholar nor a lawyer.  However, I’ve read through the majority opinion and while I understand it (I think), I still don’t understand how a US citizen can be kept incarcerated after completion of their sentence solely at the whim of the government.  This seems to me a capricious and arbitrary application of power by fiat and a violation of the fundamental principles and rights embodied in the Constitution – and yes, I think even sexual predators and convicted criminals have rights.

It seems to me that indefinite commitment without sentencing, or in this case after completion of the sentence, at the whim of government was precisely what the Constitution was designed to prevent

Relax, you’re not about to see Jim Wright defending dangerous sexual predators. 

And to be clear, I think history has aptly demonstrated that a certain percentage of violent sexual predators most likely cannot be “cured” or rehabilitated (at least not with the assets available to the US penal system*) or trusted to run free without a keeper.  Certainly some may be able to suppress their inclinations and function successfully in society following release, but evidence would suggest that a significant number of violent sexual offenders are hard-wired for predation – and unless strictly supervised and controlled they will eventually give into the impulse and become a threat to society.  A number of high profile cases of recidivism would seem to prove this observation (though the actual number of violent sexual recidivism is not as high as sensational media reports would make it appear) and is in fact what ultimately underlies US vs Comstock – which was prompted by the 2006 Adam Walsh Child Protection and Safety Act.  Section 4248 (page 120, section 301 of the previous link) of the Act, the Commitment Provision, authorizes the federal government to initiate civil commitment proceedings (similar to committing someone with a mental disorder to mental institution against their will) with respect to any federal prisoner in the custody of the Bureau of Prisons judged to be a dangerous sexual offender (the difference being that the federal government doesn’t commit mental patients). Under this provision, prisoners who have completed their sentence AND even prisoners who have had criminal charges against them dropped or have never been previously charged with or convicted of a sex crime may be civilly committed as a “sexually dangerous person” indefinitely.


Now, don’t get me wrong.  I’m all for keeping sexual predators behind bars for the rest of their wretched lives and I think the Adam Walsh law is a good one overall.  But I simply can’t understand how the commitment provision** is constitutional.  Why instead didn’t the law impose mandatory sentencing guidelines – say like the imposition of mandatory life sentences for Tier 1 offenders instead of indefinite detention?

Here’s my problem: 

First, what’s the point of this detention?  Will the detention be to a treatment facility for sexual predators?  Because up to now, those prisoners have been retained in the federal prison system.  So, other than keeping them off the street, what does the commitment accomplish? The provision makes some vague hand motions about “treatment,” but it’s pretty obvious what the intention is here and it doesn’t take a rocket scientist to figure out that those treatment programs won’t be any better funded than they are now, or any more effective.  No, it’s pretty obvious what the point of this is, and if the only reason to commit someone deemed a “sexually dangerous person” is to keep them off the street, then why aren’t they just sentenced to life in the first place (with the possibility of parole, if you like)?  Why not just change the sentencing limits instead of this constitutionally gray “civil commitment” nonsense?

Who decides which offenders are dangerous to society and therefore to be committed indefinitely? What criteria are used? What oversight is there?  Are they the same criteria from state to state, case to case, crime to crime?  What’s the review process? Is there one? Can a prisoner appeal his detention?  Ultimately, who really takes responsibility for the decision, both to retain certain prisoners and to release others? Remember, with this decision on the books, if the state releases a prisoner rather than detain him and later it turns out he’s a recidivist or he commits a sex crime (even if he wasn’t originally convicted or arrested for a sex crime) doesn’t that make the state potentially libel for his actions? Legally and criminally and financially libel? Probably best to commit everybody, right?  Think about it, State Attorney General is often a springboard into national politics (see Virginia), now if you’re that guy, career wise it’s probably in your best interest to detain everybody – for the good of society, of course.

In fact, what prevents all sexual crime convictions from being ipso facto life sentences? Period.

Just to be on the safe side, I mean.

Now, here’s the real question: since prisoners can be detained indefinitely as dangerous sexual predators, even if they were never convicted of a sexual crime, what are the safeguards to prevent arbitrary use of this provision? What keeps certain ethnicities and beliefs from being considered more dangerous than others?  Oh sure, it’s not supposed to happen, but it does every single day.  If the LA Cops pick up a gang banger on felony firearms violations – and he “gets off on a technicality" or some other common cliché, what’s to keep the state from putting him away indefinitely anyway because as a gang member he might engage in predatory sexual behavior (based on the fact that there have been numerous substantiated reports of gang rape and sexual crimes committed by the gang he belongs to – guilt by association)?   Why do real law enforcement and work for real convictions when you always have this ace in the hole?  If you’re a defense attorney, why bother, you’re going to lose anyway.  If you’re a prosecutor, why bother?  Just call him a dangerous sexual person and have done with it. Don’t the trials become a sham – if the state really wants to put you away? They can always declare you a sexually dangerous person and drop you into a deep dark hole for as long as they like.  Chateau d’If anyone?

What’s to prevent someone with the wrong politics from being detained indefinitely? Let me get this straight, you flew all the way to Argentina to spend a week with your mistress? Hmmm. Dangerous libido there don’t you think? We better keep that thing on a leash – at least until after the next election.

Or somebody with the wrong religious beliefs? What’s that? You don’t accept Jesus as your personal Lord and Savior? You know that atheists have no moral compass and believe that you can just rape and kill at will, right?  Better for everybody if we keep the non-Christians locked up until you see the light.

Or somebody with the wrong sexual orientation?  It’s a well known fact that all gay men must be pedophiles, isn’t it? Hey, we don’t allow them to marry for a reason, right?  Best to keep the perverts in jail, instead of out on the street demanding equality.

And so on.  Tell me why this won’t happen. Sooner or later.

Be honest.  Look at our history, look at how laws were twisted to prevent certain folks from marrying and voting and owning land or getting a fair shake in court.  Look at human nature, and tell me what prevents this from happening – if constitutional protections are bypassed or rationalized away. 

Sure this law was passed to protect children, tell me what the road to hell is paved with.

And while you’re at it, tell me what keeps the government from using this decision as a precedent for other similar-minded detentions in crimes such as, oh, I dunno, say terrorism?





I note that I get regular visits from SCOTUS’s IP address here at Stonekettle Station. Please, Supreme Court visitor, feel free to weigh in.  Thanks.



* Not all sexual predators are created equal, some will reoffend, some won’t.  Studies indicate that many can control their impulses given proper treatment and continued support, sort of like drug or alcohol abusers.  Unfortunately, as I stated in the text, high quality treatment and support is not commonly available to inmates and ex-cons, nor is the supervision required to ensure compliance with the post-incarceration treatment regimes.  The Phillip Garrido case is a perfect example.


** I also cannot understand how this law is not an ex post facto law and in violation of Article I, Section 9 of the US Constitution since it allows for retroactive application of its penalties against those who were sentenced, and completed their sentences, prior to its implementation.  For example, the law requires sex offenders (including those who have completed their sentences) to register in a national database that can be accessed by the public and imposes severe penalties for failure to comply. It also imposes strict restrictions on where they can live and who they can associate with.  (However, I have to be honest and say that while the Constitutionality of this provision bothers me intellectually, as a parent I damned well check that database monthly and I’m a big fan of keeping the sons of bitches away from schools and children. I am aware of my apparent hypocrisy, thanks). 


  1. 'Fraid I can't help you, Jim. This writing's been on the wall since 1997, with this ruling being an inevitable, logical outcome. But I couldn't explain how it was right thirteen years ago and I can't tell you how it's right now.

    Clearly it's legal, and Constitutional: the United States Supreme Court said so.

    And now I'm off to try to pen tomorrow's blog entry about science fiction and horror.

  2. Agreed.

    I'm not saying that it's not Constitutional, but I don't see how. And I don't see how to keep this provision from being abused.

    I'm hoping the SCOTUS lurker will weigh in.

    Tried to have a thoughtful response, but need more time, so...

  4. Pardon me while I go huddle in a corner and cry.

  5. I understand the impulse, Mensly and Janiece.

    I guess this why we should be very careful when picking Supreme Court Justices. I was thinking about this case today as I watched the Kagan interviews and the talking heads talking about the Kagan confirmation. Dumbasses are all worried about abortion (which has already been decided) instead of the REALLY thorny issues that actually affect our freedoms, such as this one.

    Also, I wouldn't want their job on a bet.

  6. Wow. Again, wow. Also not a constitutional scholar but I find it hard to see any justice in that decision. I can kind of register the thinking behind it but I think you hit the proverbial nail on the head with your comment/suggestion about changing the sentencing rules to accomodate that sort of thing rather then slipping in this kind of back-door approach to incarcerating the enemy of your choice. That sort of thinking belongs way back in the Bush years and if this is the wave of the future then I pity the poor dissident.

  7. I am with you. If these people should be incarcerated for life, whether in a prison or some sort of mental institution, then sentence them there in the first place.

  8. I haven't read it. I probably should. But I can answer one of your questions --

    "if the state releases a prisoner rather than detain him and later it turns out he’s a recidivist or he commits a sex crime (even if he wasn’t originally convicted or arrested for a sex crime) doesn’t that make the state potentially libel for his actions? Legally and criminally and financially libel?"

    No. The government determines in what circumstances it can and cannot be held liable -- and it would (if it hasn't already) enact a law immunizing itself for this sort of thing. (It's the same reason you can't go after judges for making the wrong decision.)

  9. Amplifying on nzforme's comment: I think you'd also have a causality issue. I think you'd have a difficult time establishing the government was responsible for the act of a third party, even if you were to concede that government had a recognizable duty to protect the victim and the third party could have been prevented from acting by government incarceration. (See also.)

    And note that you'd have to be making a negligence claim here, since it would be clear the government didn't commit an intentional tort.

    All that aside, nzforme's dead on: government (and its agents) generally has sovereign immunity and can only be sued in those cases in which it consents to be.

  10. I concede the point.

    HOWEVER, while there may be no legal recourse, the public can and will still hold the government responsible for releasing those who later become a threat to society.

    You're seeing it right now.

    Anybody who has political amibitions, governor, AG, prosecutors, ec would do best to err on the "keep 'em locked up" side - because otherwise when they run for office, it'll be seen as coddling the predators at the expense of children.

    You see that in every political battle, the difference is that now anyone with long term polictical ambitions has strong motivation towards commitment. They'd almost have to.

  11. The SCOTUS lurker(s) (particularly since you've called them out) are most likely prohibited from responding, at least in any way that might potentially identify them, Jim. I mean, Scalia opines here, Fox or CNN sees it, and all of a sudden, it's a news cycle, an hour of Nancy Grace invective, and a dozen talking heads nodding gravely.

    So, let's worst-case scenario this. A boy dating a girl in high school, maybe a year older than her. Senior year, he gets prosecuted for statutory rape, either because the girl's dad is connected, or some other crap. Maybe it gets tossed out of court, maybe there's an actual trial. Regardless, boy gets sidetracked, but goes on with his life.

    Until he gets into some other minor foul-up, this one leading to arrest. Technically, this young man could be detained indefinitely, if I'm reading this right.

    You're right: there needs to be established criteria here. Having known many people who were victims of sexual predators at some point in their lives, I take a very dim view of such offenders, but we don't even do this to drug dealers, terrorists, or mass murderers. Make the punishment fit the crime, I say. Wouldn't this sort of bait-and-switch with detainment qualify as cruel and unusual punishment?

  12. Nick from the O.C.May 20, 2010 at 11:13 AM

    In the tension between individual freedom and protection of sovereign intrest, I'm generally in favor of erring on the side of individual freedom and limiting grants of broad powers to the Federal government unless specifically called for by the Constitution.

    That said, the SCOTUS decision asserted that--

    "Many of these individuals, however, were likely already subject to civil commitment under §4246, which, since 1949, has authorized the postsentence detention of federal prisoners who suffer from a mental illness and who are thereby dangerous (whether sexually or otherwise). The similarities between §4246 and §4248 demonstrate that the latter is a modest addition to a longstanding federal statutory framework."

    I.e., SCOTUS asserts that the Feds have had this ability since 1949.

    I blame Truman.

    persess = persistent odor reminiscent of sewage

  13. I realize that this post is over a year old, but I was scrolling through your blog and felt strongly enough about this to add my two cents -

    I think it may be worthwhile noting that people (rightfully) have such a huge problem with sexual predators that sentences are often (not so rightfully) imposed that don't take the entire situation into account.

    I knew a kid in high school. He was weird, he was one of the strange outcasts, he wore a leather trenchcoat to school all the time, he played absurd amounts of Halo and Everquest, he was nice enough, and he was always exceptionally courteous to me. He was, however, the kind of guy who spends WAY too much time in front of his computer, mostly playing video games and probably staring at too much porn. In his freshman year of college, he made the absolutely idiotic mistake of forwarding a piece of child pornography to someone else via the school's Internet network. The kid was nineteen and stupid. I was, what, three years younger when I knew him in high school? - and he never, ever treated me with anything less than respect. He never actually laid hands on anyone unconsenting or underage and I cannot imagine him doing so.

    Well, the end result was that he was convicted of possession and distribution of child pornography, was sent to jail for five years, and is now a registered sex offender.

    I'm not saying he wasn't a total idiot, and that forwarding clips of child pornography isn't seriously disturbing and doesn't warrant some extra supervision, but I am saying that the sentence seemed like a massive, life-wrecking overreaction. I think we as a people and therefore our legal system may be prone to overreacting when it comes to punishing sex offenders, and all I'm saying is that sometimes it really, really isn't deserved.

    Ergo, I have even more reasons for objecting to that Supreme Court decision. Essentially.


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