A while back, I wrote on the Supreme Court's holding in U.S. v. Comstock. In that case, the Court held that Congress has the power under Article 1, §8 of the Constitution, to enact a statute which permits states to keep sexual predators in "civil commitment" after the expiration of their federal sentence. The Court did not decide, however, whether other provisions of the Constitution might be violated by such a statute, such as the right to due process, the prohibition on double jeopardy, the prohibition on cruel and unusual punishment, etc. Instead, the Court remanded the case to lower courts for a determination on those questions.
I believe the portion of the statute in question to be oppressive and unconstitutional. The Constitution cannot, and must not, be interpreted to apply only to desirable groups of individuals. For this same reason, I have found myself arguing on behalf of the rights of terrorists as well, another abhorrent group. What follows is likely not going to be a popular position.
The statute in question is the Adam Walsh Child Protection and Safety Act, enacted in 2006. One aspect of that law provided that prisoners in federal custody could continue to be held in "civil commitment" after their criminal sentence ended if that prisoner: (1) has engaged in sexually violent conduct or child molestation, (2) currently suffers from a serious mental illness, abnormality, or disorder, and (3) as a result of that mental problem is sexually dangerous to others and would have difficulty refraining from sexually violent conduct or child molestation if released. Note that all three requirements must be satisfied in order to detain an individual in civil commitment indefinitely. "Civil commitment," in essence, is the non-criminal detainment of an individual (usually the insane), often in a mental hospital, with the intention of protecting both the detained and those who might come in contact with the detained.
There are several problems with this portion of the law. First, while the statute is intended to be non-punitive in nature, there is nothing to ensure it will be applied in a non-punitive fashion. The three criteria which must be satisfied by the state before civilly committing an individual all seem to blend into one actual factor when applied to sexual predators, and pedophiles in particular. By no means is it a stretch to argue that anyone who engages in pedophilia, for example, suffers from "a serious mental illness, abnormality or disorder," and if a person in fact suffers from such a mental illness, is it reasonable to conclude the person is not "sexually dangerous" to others or that the person would have "difficulty refraining from sexually violent conduct or child molestation if released?" By virtue of one's having committed a sexual crime, in many cases, if not most, a state could easily demonstrate satisfaction of the remaining two criteria. This is particularly true given that the government has had constant supervision over the person in question in prison and can use any experience from prison to justify the government's conclusion. The only parties who would know the veracity or context of the government's description of the inmate's conduct would be the inmate, who is unlikely to be credible in front of a judge or jury, and the government itself.
Second, setting aside issues of credibility, the statute reduces the standard of proof for the three factors listed above to "clear and convincing evidence," rather than the more difficult evidentiary standard of "beyond a reasonable doubt" used in criminal proceedings. While this lower evidentiary standard is consistent with the statute's claim to be non-punitive/non-criminal in nature, it also increases the ease of abuse of the process.
Third, as Governor Mike Huckabee can attest, no government official wants to be the individual responsible for releasing a sexual predator back into the public, only then to learn the predator has committed another heinous act. The political establishment incentivizes extended detention of such individuals where possible. While a court must make the final determination on whether to commit civilly a sexual criminal after completion of his sentence, a political figure will likely make the determination on whether to pursue civil commitment. As noted above, I believe the government will have its decision to indefinitely detain sexual predators in civil commitment upheld by the courts in a very high percentage of cases.
Because of the problems listed above, it's difficult to view the statute as applied as anything but an indefinite extension of a criminal sentence. When characterized as such, the statute would violate the Due Process Clause of the Constitution, the prohibition on double jeopardy, and a host of other constitutional protections.
In no way do I suggest that sexual predators should be freed or escape punishment for their awful crimes. I simply argue that they, like all other Americans, must be tried and sentenced within the confines of our constitutional framework.
If the bill expresses Congress' belief that sentencing is too short for sexual predators now, the simple remedy would be extending the maximum sentence for all newly convicted sexual predators. That sentence could even be set at life in prison if so decided by Congress. If that were the case, at a minimum the accused sexual predator would know the maximum sentence prior to trial and could prepare a defense, or seek a plea bargain, with that sentence in mind. Of course, the accused could even be subject to parole in the discretion of the court. Parole represents an appropriate shifting of authority from the courts to the executive. The court has established the maximum penalty possible, but permits the executive, who has constant contact with the individual, to release the accused at an earlier time (within the confines of what the court has defined as acceptable) if the accused merits such mercy. The statute in question reverses that process into an impermissible shifting of authority, however. Congress has effectively shifted power away from the courts to the executive to determine the maximum amount of time a person may be held, irrespective of the judiciary's determination at the time of sentencing.
Interestingly, Congress may not have been expressing its belief that sexual predator sentences are too short, but rather that sexual predators (at least many, if not all) do, in fact, suffer from a mental illness that drives their behavior. This interpretation is bolstered by the fact that, under the statute, sexual predators who are civilly committed in mental institutions are given regular review periods to determine whether the predator is ready to be released. The establishment of such regular review periods suggests that Congress believes the predators may actually be rehabilitated. If this is the case, perhaps Congress should have considered incarceration in a mental hospital from the outset rather than prison followed by indefinite incarceration in a mental hospital. Alternatively, if Congress preferred incarceration initially to serve a punitive purpose and civil commitment later to serve a rehabilitative purpose, Congress could have provided that the first portion of a sentence for sexual predators should be served in prison and the second portion in a mental institution.
This article is somewhat challenging to write. I loathe sexual predators- so much so that the emotional part of me suggests that whatever happens to the predator is deserved. Perversely, I almost enjoy thinking of the predator suffering and languishing in some forgotten cell. I'm certain I am not alone in those sentiments, and I think I see much of those sentiments expressed in this law by Congress. But that's not justice, and that's not righteousness. The Constitution requires a higher ideal than emotional satisfaction, and we should require more of ourselves.
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