Because we said so…

Let me be clear from the outset: I believe the most dangerous sex offenders should be given life sentences. I don’t have to tell you who the most dangerous are. You know. Those folks need life terms in the clink where they can be molested as often as the guards turn their heads.

So, we’re clear, right? I don’t want to protect sex offenders. I want them in prison and I want them punished as harshly as our Constitution allows. With all of that said and understood, today’s decision by the U.S. Supreme Court freaks me right the hell out.

The decision overturns a lower court ruling and upholds the Adam Walsh Child Protection and Safety Act. Said act allows the federal government to determine that imprisoned sex offenders may be held–or, in the words of the act, civilly committed–beyond the length of their sentences if they are determined to be sexually dangerous.


That’s right. If an inmate is deemed to be sexually dangerous after serving his full sentence (even if he has never been convicted of a sex crime), he may be held indefinitely. Why? Because the federal government said so.

Now, this should seem like a good idea. The last thing I want is a sexual predator on the street. Nothing scares me more that a predator attacking my wife or children. Still, I have a hard time grasping how our Constitution allows for the indefinite commitment of someone after they have legally served their sentence. What’s more, the act can be applied retroactively, or, if you recall your high school civics class, ex post facto.

Perhaps I’m reading too much into it. Perhaps there is a really good Constitutional argument in favor of a government committing people who have served a sentence for their crimes but are still considered to be dangerous. However, as the slippery slope is a fun one on which to play, I’d be curious to see the same standard applied to say, drug dealers. That is, say your son sells a dime bag of weed a few times too many and ends up doing some time. At the end of said sentence, he is evaluated and still considered to be a danger to the community. And so your son stays in jail as long as the Bureau of Prisons says he should.

While we’re on the slippery slope, let’s try this one. You are convicted of tax evasion and end up in prison. You run afoul of someone who has the power to suggest you might be a sexual deviant. You are deemed sexually dangerous by the Bureau and held indefinitely.

Here’s a clip from a paper on the subject:

To initiate civil commitment proceedings, the Bureau must certify the individual as a sexually dangerous person The statute defines a sexually dangerous person as one who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others and who suffers from a severe mental illness such that he would have serious difficulty in refraining from sexually violent conduct or child molestation if released. However, neither sexually violent conduct nor child molestation is defined by the statute. The Attorney General is not required to present any evidence or make any preliminary showing in the certification; he need only include an allegation of dangerousness to create an effective certification. With this certification alone, the Bureau can automatically stay a person‘s release from prison for the duration of the civil commitment proceedings.

It’s one thing for Congress–made up of people who barely understand the daily news, let alone the Constitution–to pass a BS law. It’s another thing for the Supreme Court to say, “Sure, that sounds great. Have at it.”

I’m not going to cry for the sex offenders who end up staying behind bars. I’d love to see some super long mandatory sentences for sex crimes. However, this is one case in which I think our Constitution just took a beating.

Remember, the easiest way for a government to take your civil liberties is to get you to agree to take away the civil liberties of someone you don’t like.

Brad Willis

Brad Willis is a writer based in Greenville, South Carolina. Willis spent a decade as an award-winning broadcast journalist. He has worked as a freelance writer, columnist, and professional blogger since 2005. He has also served as a commentator and guest on a wide variety of television, radio, and internet shows.

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19 Responses

  1. BJ Nemeth says:

    You’re not the only one who’s freaked out by today’s Supreme Court decision. It’s very disturbing, and it strikes me as *exactly* the kind of thing our Founding Fathers were striving to avoid.

  2. Julius_Goat says:

    Hear, hear, Otis. “Because the world is scary” is not a reason to erode civil liberties. Or shouldn’t be. Neither should “but these are nasty rotten people.”

    It’s another link in the Arizona “show me your papers” law, the PATRIOT Act, torture, the executive carve out for habeas corpus, the illegal warrantless wiretaps . . . the list goes on over the last ten years. All in the name of making us feel safe. Emphasis on the “feel.”

    Worse, these bastards are making us appear to defend child molesters. Boo.

  3. This is creepy. It’s kinda like living in a weird mix of the world of 1984 and The Turner Diaries. Like the bumper sticker says, I love my country, but my government scares the shit outta me.

  4. Jim Hennigan says:

    What’s REALLY problematic here (or, to add kerosene to the fire) is the fact that you will never find anyone in Congress with the courage to scale this back — for the same reason that you had to open this up with a profession of your feelings towards actual sex offenders. There are way too many people who, for some unknown reason, will jump at the chance to paint that member of Congress as a supporter of pedophiles. Maybe one or two lame duck lawmakers will find the courage, but there’s no way to unravel this. Not because it’s bad for the sex offenders, but because it’s bad for the people who aren’t sex offenders who get life in prison just because the government has a tool at its disposal to avoid the hassle of due process.

  5. Dr. Chako says:

    Let me add a counterpoint. I realize the last thing you need is a doctor offering legal opinions, but the damn lawyers offer medical opinions all the time, so why not?

    I have not read the court decision, but it sounds a lot like the court doing what we ask, which is NOT legislating from the bench. The court simply interprets rules passed by Congress. If Congress said this is legal, and there isn’t a specific thing in the constitution that prevents it, then the court is helpless to do anything about it. This often comes out in the opinions they write about their judgments. “I don’t like it, but there’s nothing we can do about it unless Congress wants to enact legislation…”

    Jim H. said it perfectly. No one in Congress will want to change this for fear of appearing soft on the absolute worst criminals in our prison system. And so we’re stuck. Well, the court is stuck.

    I’d be very curious to hear what your legal-minded readers have to say.


  6. otis says:

    While I’m not a lawyer, I have read the Constitution a few times, and am pretty sure I recall something about Congress being prohibited from passing any ex post facto law. So, while I’m no great legal mind, I think there is a serious and impressive argument that Congress has, in fact, acted outside Constitutional limits. (But, ask a Constitutional lawyer…I think we may know one or two).

    I’d also look to the fifth amendment and the ever-cloudy area of due process.

  7. jjok says:

    Not to make light of it, but aren’t alot of those who serve their time for non-sexual offenses also sexually dangerous after years of cornholing dudes in jail?

    Seems that revisiting the punishment related to sexual crimes and making them stricter/toughter should be more the focus……that or leave Gitmo open (rimshot)

  8. StB says:

    If Chako hasn’t read the ruling, he automatically becomes qualified to be part of the current administration.They don’t read anything either.

    Back to the topic though. I wonder if this is in reaction to the hassle of finding a place for these cretins to live. Whenever a sex offender is released in the Milwaukee area the big story is trying to find a place for them to live. Community after community protest his arrival when they discover he/she is being moved to a house down the block. Ultimately the court has to release the sex offender because their time has been served.

    Just wondering if that has anything to do with the ruling.

  9. Ruth says:

    So glad you posted this. My gut did a 180 when I read the Supreme Court’s decision today. Like you, I’m all for punishing sex offenders and even seeing them stay behind bars. But with a law like this, who’s to prevent someone from framing a person and seeing them go to jail forever. Sorry if I’m not that trusting of Big Brother as the Supreme Court appears to be.

  10. ToddCommish says:

    You realize, of course, that by disagreeing with this interpretation, you are agreeing with Clarence Thomas and Antonin Scalia, and disagreeing with Elena Kagan, right?

    And Chako is right, this isn’t a decision based on the content of the law, it’s a decision based on whether Congress has the right to pass a law under the auspices of “public safety”. So blame Congress if you don’t like the law, and blame the Supremes if you don’t like Congress having the power to pass the law.

  11. otis says:

    Todd–I do, indeed, realize with whom I’m agreeing and disagreeing. Contrary to popular belief, I tend to base my opinions on the reality of a situation and not whether the people involved are conservatives or liberals. That the President’s hopeful for the Court is on the other side of the issue doesn’t diminish how horrible I think the decision was. Just because I don’t always agree with conservatives doesn’t mean I can’t give them credit for being right.

    And regarding where I cast the blame, I think I did exactly what you suggested.

  12. Julius_Goat says:

    “Todd–I do, indeed, realize with whom I’m agreeing and disagreeing. Contrary to popular belief, I tend to base my opinions on the reality of a situation and not whether the people involved are conservatives or liberals.”

    Otis for president. Exactly right, and I’m right there with you. If Thomas and Scalia have decided to be in favor of civil rights for a change, then I say hooray. For some it isn’t about the constant sports rivalry of the Donkeys vs. the Pacyderms.

    StB — If the ruling is based on the inconvenience of placing sex offenders, then shame on them. Civil rights are no more meant to be set aside as a matter of convenience then they are to be set aside as a matter of fear.

  13. ToddCommish says:

    I disagree.

    “It’s one thing for Congress–made up of people who barely understand the daily news, let alone the Constitution–to pass a BS law. It’s another thing for the Supreme Court to say, ‘Sure, that sounds great. Have at it.'”

    It sounds like you expected the Supreme Court to overturn the law based on some interpretation of the law’s fairness to convicts, when the case they were judging was based on whether Congress can make up these kinds of “B.S.” laws. Apparently, they can…

    Apparently, several of the commenters are missing the distinction as well. This wasn’t a case about an individual’s rights, per se, it was a case about Congressional lawmaking.

  14. otis says:

    Todd–I expected them to hold the act to be unconstitutional based on the factors I mentioned above, not on an interpretation of fairness. That is, based on the snip you pulled…Congress is at fault for passing a BS law, and the SC is at fault for saying “have at it.”

  15. ToddCommish says:

    Pretty sure they can only rule on what the lower court decided. In this case, the lower court said that Congress overstepped their bounds by passing this law. Supremes said “No, they didn’t overstep their bounds.” And neatly avoided any stickier constitutional rights issues.

  16. Julius_Goat says:

    I for one will sleep well knowing that the Supreme Court avoided any stickiness and was bravely willing to do the convenient thing.

    Why even have sentences, really? It’s sort of outmoded.

  17. Pura Vida says:

    I’m giddy from reading and re-reading this opinion. The Opinion for the Court and Thomas’ dissent rely on the Great Test (so dubbed by Philip Bobbit, a/k/a My Prof, a Constitutional Badass) that John Marshall (a/k/a the raddest Chief Justice of the Supreme Court Ever) set out in McCulloch v. Maryland:

    Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited but consists with the letter and the spirit of the constitution, are constitutional.

    In other words: Ends–>Means–>Prohibition: 1) the purpose is legitimate if furthers the enumerated powers that are expressly vested in the Federal Government by the Article I, sec. 8 of the constitution; 2) the means — i.e., Congressional action/legislation — must execute that enumerated power; and 3) the legislation is not prohibited.

    This test strikes at the core of every constitutional inquiry (and every case is a constitutional case) — the difference in the Justices’ interpretation is fascinating! Hello, federalism!

    I’m with Thomas — this is an unnecessary, pretextual expansion of the Federal Government’s powers, the consequences of which are dangerous (and will be manipulated to detain terrorist suspects and to expand other powers (like healthcare)). Yes, we want pederasts and other sexual offenders to be off the streets. But this end cannot be met by twisting Article I, sec.8 to strip the States’ powers.

    Thomas’ dissent is consistent with his dissent in Gonzales v. Raich (the medical marijuana case that was based on the Commerce Clause). If you’re interested in the issues presented by Comstock, consider reading Raich. It goes to the same issues of the Federal Government’s power over States.

    My brain is racing way too quickly to provide an adequate response to this post and y’all’s comments. I’m going to resuscitate a long-defunct blog to reflect on this decision and the decision in Raich. Nothing makes me hotter than con law. According to my boss, I should get a life. Whatever.

  18. Pura Vida says:

    Question: how can this decision be applied retroactively???

  19. Pura Vida says:

    I know that I’m over-commenting, but in response to Todd’s last post: I disagree that there are stickier constitutional issues. Little is as important as the separation of powers and the rights conferred to the federal government vs. those given to the States. Further, the reading of Marshall’s Great Test is going to have serious implications on its application down the road — see, e.g., executive powers, where broad ends will be legitimate with broad means.

    Otis commented that: “I’d be curious to see the same standard applied to say, drug dealers. That is, say your son sells a dime bag of weed a few times too many and ends up doing some time. At the end of said sentence, he is evaluated and still considered to be a danger to the community. And so your son stays in jail as long as the Bureau of Prisons says he should.”

    I think the argument against that likelihood is that the majority opinion makes clear that the statute applies only to a small segment of the population and as such, it is sufficiently narrow (i.e., “plainly adapted”) to meet its purpose. By extension/according to this reading, the same would hold true if detainment were to apply to terrorists — that population is (I really, really hope), very small. Here’s what the court says about this:

    “618. Section §4248 has been applied to only a small fraction of federal prisoners, and its reach is limited to individuals al-
    ready “in the custody of the” Federal Government, §4248(a). Thus,
    far from a “general police power,” §4248 is a reasonably adapted and
    narrowly tailored means of pursuing the Government’s legitimate in-
    terest as a federal custodian in the responsible administration of its
    prison system.”

    If the statute were to extend to persons incarcerated for drug crimes, the population affected would be massive, and the court’s argument cited above would be chipped away. As a practical matter, I very much doubt that Congress would want to spend as much money as it would take to detain those convicted of drug-related crimes beyond the terms of their sentence.

    Y’all, please correct me if I misread your comments!