Hate crimes

Constitutionally Dangerous

A preventive detention law shows why we need to confine Congress.

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It was bad enough when states began locking people up because of crimes they might commit in the future. Then in 2006 Congress copied the idea, enacting a law that allows the indefinite civil commitment of federal prisoners who have completed their sentences but are deemed "sexually dangerous."

In upholding that policy on Monday, the Supreme Court not only blessed yet another use of psychiatry to escape the safeguards of our criminal justice system by disguising punishment as treatment. It also encouraged Congress to stack one dubious assertion of power on top of another until the tottering tower is tall enough to surmount the fence erected by the Constitution.

Opponents of preventive detention for convicts who have served their time argue that it violates the right to due process, the guarantee against double jeopardy, and the ban on ex post facto laws. Although a 1997 decision upholding a Kansas civil commitment law suggests the Supreme Court is not receptive to such arguments, this week's ruling did not address them. Instead it dealt with the question of whether the federal government, as opposed to the states, has the authority to commit "sexually dangerous" prisoners who would otherwise be released.

The seven-justice majority concluded that it does, citing the Necessary and Proper Clause, which authorizes Congress "to make all laws which shall be necessary and proper for carrying into execution" its enumerated powers. The Court said the civil commitment law is justified by the criminal statutes under which federal prisoners are convicted, which are in turn justified by specific congressional powers.

One problem with this argument is that Congress has federalized a wide range of offenses, including many already addressed by state laws, based on thin or nonexistent constitutional pretexts. Three of the prisoners in this case, for example, were convicted of possessing child pornography, which is a federal offense when the material "has been mailed, or has been shipped or transported in interstate or foreign commerce, or…was produced using materials which have been mailed or so shipped or transported, by any means including by computer." In other words: always.

The newly minted "hate crime" law likewise federalizes offenses based on absurdly attenuated links to interstate commerce. If a misogynist uses a knife manufactured in another state to rape a woman, that's enough to make it a federal crime.

Even if we assume the validity of such laws, Justice Clarence Thomas notes in a dissent joined by Justice Antonin Scalia, civil commitment does not carry them into execution, as required by the Necessary and Proper Clause. The criminal statute has been fully executed at the point where someone convicted of violating it completes the sentence it prescribes, which is precisely when civil commitment takes effect.

Continued confinement, Thomas notes, "is aimed at protecting society from acts of sexual violence," not at "'carrying into execution' any enumerated power." That point is reinforced by the fact that one-fifth of the prisoners whom the government has identified as "sexually dangerous" were never convicted of a federal crime involving sexual violence. Even someone convicted of mail fraud or tax evasion could be put in this category.

Furthermore, Thomas writes, "the definition of a 'sexually dangerous person'…does not require the court to find that the person is likely to violate a law executing an enumerated power in the future." The commitment law therefore is only tenuously related to federal criminal statutes, which themselves may be only tenuously related to an enumerated power.

Thomas warns that the majority's opinion, which requires no more than a "rational" connection between a federal law and an enumerated power, "comes perilously close to transforming the Necessary and Proper Clause" into a rationale for the general police power that the Constitution reserves to the states. "The Constitution does not vest in Congress the authority to protect society from every bad act that might befall it," he writes. Unfortunately, this will be news to most members of Congress.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2010 by Creators Syndicate Inc.

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  1. Why illustrate with one of the ruling’s dissenters? Because he might have had an ax to grind?

  2. lol get those pervs bro. btw check out this politics site i think u guys might like it http://www.ThePartisanDialogues.com

  3. I fully support preventive detention for all members of the legislature. It is the only way to prevent them from committing crimes against the citizenry.

    1. LOL – and I was going to come out with a rant against imprisonment for “future crimes.” Until you reminded me of politicians. May have to rethink things.

      1. “LOL” is reserved to spambots. You may not use “LOL,” in any orthographic pattern, nor the honorific “Dude,” in any orthographic pattern, unless you are a spambot. You may not use the exclamation point (!) unless you are a spambot. If you wish to become a spambot, you must register.

        It’s in the site rules.

    2. What Tom & bluecrane said.

      Along those lines, how about a law that allows the indefinite civil commitment of federal prisoners congresscreatures who have completed their sentences terms?

      1. Perpetual incumbency?

  4. If someone is that dangerous to society why give them a prison sentence on X number of years than decide not to let them go. If their crime is that bad execute them and move on. I see no problem with executing people who are dangerous to children just do it, it’s BS to say they need to serve 10 years and then at the end of the term tell them they need to stay in prison. Sentence them to life or let them out after they serve their time this is BS. My view on it is if they harm kids let them ride the lightning and we would not be having this conversation.

    1. It would be more efficient to use convicted child molesters for medical experiments.

    2. I don’t like the death penalty for various reasons, but I agree with the thrust of your argument. Why not just give child molesters and violent rapists life sentences? If parole was available, you could have the option to keep people in prison indefinitely without this bullshit civil commitment crap.

      1. Do people really think that sex crimes are worse than murder? That’s what I take away from all of this.

        1. You’re going to double jail!!!

        2. they have higher recidivism, which probably justifies longer sentances or life terms. I’m ok with that, as long as it is imposed by the court at the time of sentancing.

          1. It’s not true that “sex offenders” have higher recidivism. For example see http://www.mysanantonio.com/ne….._life.html which says “According to a 2003 U.S. Justice Department study, about 5 percent of sex offenders released from prison were re-arrested for another sex crime within three years, a recidivism rate lower than for many other types of crimes. And 3 percent of all child sex offenders were arrested for another sex crime involving a child within the same time period.”

            See also
            http://www.ncianet.org/publicp…..an2006.pdf
            (Recividism is much lower for sex offenders than for people who steal cars or sell stolen property, for instance.)

            And those people who collected illegal pictures of children and didn’t distribute them didn’t harm anyone so they should not have been in jail in the first place.

          2. they have higher recidivism, which probably justifies longer sentances or life terms. I’m ok with that, as long as it is imposed by the court at the time of sentancing.

            So if a group in general has a higher statistical probability of commiting future crimes, that justifies treating individual members of that group more harshly than otherwise. This has potential. All we need to do is rig the statistics. 🙂

        3. Some sex crimes certainly are equally as horrific, vile and offensive as murder. I don’t know how you would quantify if a particular sex crime is “worse than” murder. But that is not really the question – the question simply is what is the appropriate penalty for each particular crime, and what facts and circumstances should and can be taken into consideration in adjusting the penalty either upwards or downwards.

          If the question is whether the penalty for a sex crime can or should be more severe than the penalty for committing a murder, I would submit that yes, it is possible and foreseeable that this could be the result, and a rightly deserved one – again, depending on the facts and circumstances of the particular case.

          E.g., the defendant in Kennedy v. Louisiana deserved the death penalty that he was given by the people of Louisiana for what he did although the girl did not die (look it up; it’s horrific). But I’ve seen cases in which a person killed another in what technically constituted a first-degree murder, but the facts of the case did not (to me, anyhow) seem to warrant the death penalty.

          1. Brilliant. I take it you’ve never heard of perverse incentives.

      2. That’s a similar argument to the one behind Jessica’s Law or Megan’s Law or whichever eponymous law it is…

        One objection to these laws brought up by prosecutors goes along these lines: If you’re looking at a life sentence, you’re going to fight a hell of a lot harder in court than if you’re only looking at a fixed term. Furthermore, the complaining witness might be much more reluctant to testify if it means sending Daddy or whomever to jail for life (remember the whole 90% of molestations being committed by a family member or friend).

  5. I support preventive detention for congress, for so long as they are deemed ‘legislatively dangerous’.

  6. Just do away with sentencing, let some kind of parole board decide when to release.

    1. Just do away with sentencing, let some kind of parole board decide when to release.

      Why even bother with parole boards. Anyone assumed to be guilty of any crime by anyone should be shot on sight. It’s much more efficient. I doubt the trial lawyers would go for it though. It would cut into business.

  7. Just lock everyone up until Colson manages to force them to embrace the Baby Geebus.

  8. One can only hope that someday in the future Clarence Thomas’ dissent will become famous. One can also only hope that the American people will someday stop electing officials on the basis of how many people they promise to imprison.

  9. I don’t understand why you libtards want to quote Clarence Thomas. Everyone knows that he’s just a token black man and not that smart or original at all (he’s Scalia’s lackey after all), so if he wrote a dissent on this particular case, and you agree with it, then you know that your position is wrong. Clarence Thomas is untalented and unqualified for the Supreme Court. You libtards should think a little bit before spitting out such a rote opinion on these sorts of issues. Seriously.

  10. I don’t understand why you libtards want to quote Clarence Thomas. Everyone knows that he’s just a token black man and not that smart or original at all (he’s Scalia’s lackey after all), so if he wrote a dissent on this particular case, and you agree with it, then you know that your position is wrong. Clarence Thomas is untalented and unqualified for the Supreme Court. You libtards should think a little bit before spitting out such a rote opinion on these sorts of issues. Seriously.

    1. Your parody needs work. Needs more snide and a touch more contempt.

      1. And where’s the gratuitous obscenity?
        Do it for the children!

        1. Sorry.

          Of course you sniveling little Ayn Rand ‘tards would probably turn on Uncle Clarence if he tried to take away your fucking pot. You people are hopeless.

          Better?

          1. Much.

          2. Hilariously, the others were right: it DOES seem like a more convincing imitation of liberal wankery when you throw in the cursing and insults.

    2. That point is reinforced by the fact that one-fifth of the prisoners whom the government has identified as “sexually dangerous” were never convicted of a federal crime involving sexual violence. Even someone convicted of mail fraud or tax evasion could be put in this category.

      How long before “sexually dangerous” is the prefered method of detaining political prisoners?

      1. How long before “sexually dangerous” is the prefered method of detaining political prisoners?

        Oh, I’d go with “mentally unbalanced.”

        1. First they came for the child molesters…

          next it will be anyone who is deemed incorrigable

          eventually it can be anyone who pisses off the authoritahs

          I fuckin’ hate watching our rights be given away

      2. Mulder: The FBI is looking for you.

        Martin Landau: What is it? The kiddy porn charge again?

  11. You know what baffles me? That anyone is surprised or appalled by this sort of thing – preventative imprisonment or any other ruling or legislation which run exactly contrary to the supposed principles on which this society is based.

    This kind of thing is not an anomaly. Alien/sedition acts, internment of Americans during WWII, prohibition and a million other things. As with every other state the primary driving force is expediency. The anomalies are those times when the principles of liberty prevail with respect to contentious issues. And you have to know that any time the government has a serious interest in an issue, liberty will never prevail.

    You are only free to the extent that your liberty does not seriously contradict the desire and interests of those with their hands on the levers of power and their functionaries.

  12. These decisions really form a matched pair. You can see how Justices Thomas and Scalia believe that states are relatively unimpeded from imposing punishments as they see fit– if life imprisonment without parole is not cruel per se, why must it be banned for child rape but allowed for murder– but they draw a sharp line between criminal trial and punishment, clearly allowed, and civil commitment, which is something different.

    On the other hand, the more pragmatist judges basically argued that “well, the government is allowed to imprison you, civil commitment is inherently less of a punishment than be imprisoned, so it’s allowed.”

  13. The “liberal” wing of the court was 100% for this travesty. The “consevative” wing 50%. The “swing justice” went along with the majority.

    The libertarian wing of the court does not exist unless you count Thomas, who, while making some laudable dissents, is hardly a consistent “free minds, free markets” sort of guy.

    FTR, I consider psycologists to be quacks and psychiatrists hit or miss drug experimenters.

    1. FTR, I consider psycologists to be quacks and psychiatrists hit or miss drug experimenters.

      The one concept that psychiatrists get right is “projection”.

    2. Justices Thomas and Scalia are conservative formalists. Justices Roberts and Alito are conservative pragmatists. It’s unsurprising when they split.

      I’m a little disappointed in the liberal formalists on this one.

      1. Justice Roberts is a politician and Bush’s elevation of him to be the Chief is one of many reasons to disapprove of Bush. Mark my words, at the end of the day, Roberts will turn out to be a Constitutional Abomination. As for Alito? Bush wanted someone to rubber stamp increases in the power of the Executive and that is what he got.

  14. Methinks this will continue as long as we view our courts’ primary purpose as doling out punishment rather than preventing future crime.

    Don’t get me wrong; I’m all for punishing someone if it can be proven an effective means of deterrence, but has our current tack of punishing sex offenders shown any hope of preventing future offenses?

  15. has our current tack of punishing sex offenders shown any hope of preventing future offenses?

    Chester the Molester can’t get mischievous if he is locked in a prison cell.

    1. Then sentence him accordingly, and when he’s served, let him the fuck go.

    2. I think you are missing my point. Locking sex offenders away for life to prevent future crimes would be intellectually honest. It would be admitting we don’t know how to effectively deal with such people.

      ‘Punishing’ them for 10 years in prison, then subsequently ‘hospitalizing’ them until they are ‘well’ is simply insane. Who determines when these offenders are well? Has anyone yet demonstrated any accuracy with such determinations?

      Why are we afraid to admit we aren’t capable of even understanding — much less rehabilitating — such people?

      1. For some reason the phrase “involuntary organ donor” just popped into my mind.

        1. “May we have your liver?”

        2. When it comes to sexually dangerous, I think “involuntary organ receiver” would be more appropriate.

  16. Let’s be like the Chinese and just kill prisoners we don’t like after a kangaroo court trial and harvest the organs for rich foreigners.

  17. And as most everyone here has already figured out, this is just the beginning. Molesters are the easy target who no one will defend thus congress can establish precedent for these laws.

    1. move along, nothing to see here.

    2. Comrade just summed up all of this in one sentnece.

      +10000

  18. Whoops, two sentences. But whose counting?

  19. Well, that makes things easier for the federal courts: Congress can just repeal all sentencing statutes for sexual criminals and we can just lock them up forever. We can forget about the idea of serving your sentence and getting released from confinement.

    After all, they ARE sexual predators and will probably re-offend. Every now and then one of them will commit some horrendous crime, probably involving some horrible sex crime and murder of some poor 9-year-old child. So just lock ’em up. Thank God the Supreme Court says it’s OK under the Constitution.

  20. Maybe we could use them in labor camps, like the Soviets and the Red Chinese have done.

  21. We already have something supposed to “confine” Congress. It’s called a Constitution. The one they swear to defense and protect? Yeah, that one. Time for a new confinement strategy: isolation wing of various maximum security prisons. Has Spandau been demolished? You remember, where they kept one of the last Nazis convicted at Nurenburg? What was his name … Nix … no, wrong generation … forgot the name. That would be a fine location, so long as the rent is too much. Otherwise, the Greenland icecap would get my vote. That ought to confine their exercise of power.

    1. Icecap… Are you saying freeze them and make them next generation’s problem? It’s a thought…

    2. Unfortunately the American populace has turned a blind eye to their obligation to hold the pukes to the Constitution. Good luck controlling the despots now.

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    1. This was just awesome. It’s like Ulysses written by Bill O’Reilly on mescaline.

  23. So if i buy a knife from China and use it to commit said crime. Would that make it an international incident then?

  24. If an offender, even a sex offender, has served their (where are the feminists to complain about his / her here?!) time, they should be let go.

    Perhaps a better solution is never to let them out of jail. This would provide two benefits:
    1.)No reoffending.

    2.)No creation of sexually confused/hurt victims to perhaps themselves become offenders.

    Seem harsh? Perhaps you’ve never been sexually assaulted then (as I have) as you NEVER would want “your” offender to see the light of day again. As offender of this type rarely are cured, there would seem to be little hope of any good coming from their release.

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  26. President Obama Tells Mexican President “We are Not Defined by Our Borders”INPEACH OBAMA In democratic societies like the United States, the voting process is a means by which citizens hold their government accountable, conflicts are channeled into resolutions, and power transfers peacefully. Our system of representative government works only when honest ballots are not diluted by fraudulent ballots. When elections become corrupted, democracy becomes threatened.
    The FBI has a limited role in ensuring fair and free elections in the United States. Election crimes become federal cases when:
    The ballot includes one or more federal candidates;
    The crime involves an election official abusing his duties;
    The crime pertains to fraudulent voter registration;
    Voters are not U.S. citizens.
    First Name: kenyan born at the white house
    Last Name: TRUTH
    Address: AMERICA
    Address: INPEACH OBAMA
    City: USA
    State: usa THE END OF AMERICA
    NPR archive describes Obama as ‘Kenyan-born’
    Michelle say Barack born in Kenya
    Obama’s grandmother say he was born in Kenya
    Subject: OBAMA SAID approval ratings are still very high in the country of my birth.
    Message: INPEACH OBAMA TO THE WEAK-KNEED REPUBLICANS AND DEMOCRAT
    obama people have no idea of the extent to which they have to be gulled in order to be led.” “The size of the lie is a definite factor in causing it to be believed, for the vast masses of the nation are in the depths of their hearts more easily deceived than they are consciously and intentionally bad. The primitive simplicity of their minds renders them a more easy prey to a big lie than a small one, for they themselves often tell little lies but would be ashamed to tell a big one.” “All propaganda must be so popular and on such an intellectual level, that even the most stupid of those towards whom it is directed will understand it. Therefore, the intellectual level of the propaganda must be lower the larger the number of people who are to be influenced by it.” “Through clever and constant application of propaganda, people can be made to see paradise as hell, and also the other way around, to consider the most wretched sort of life as paradise. “pelosi don’t see much future for the Americans … it’s a decayed country. And they have their racial problem, and the problem of social &^% …obama feelings against Americanism are feelings of hatred and deep repugnance … everything about the behaviour of American society reveals that it’s half &^%, and the other half &^& How can one expect a State like that to hold TOGTHER.They include the angry left wing bloggers who spread vicious lies and half-truths about their political adversaries… Those lies are then repeated by the duplicitous left wing media outlets who “discuss” the nonsense on air as if it has merit? The media’s justification is apparently “because it’s out there”, truth be damned. State: *usa Obama chuckles at America*
    If YOU PASS THE NORTH KOREAN BORDER ILLEGALLY YOU GET 12 YRS HARD LABOR, YOU PASS THE AFGHAN BORDER ILLEGALLY YOU GET SHOT. Under the Mexican law, illegal immigration is a felony, punishable by up to two years in prison,Mexicans who help illegal immigrants are considered criminalsThere is no immigration allowed in China, India, Bangladesh, Russia, Japan, Cuba, Saudi Arabia, Iran, Syria, Turkey and MOST other countries YOU PASS THE AMERICAN BORDER ILLEGALLY YOU GET A JOB, DRIVER’S LICENSE, ALLOWANCE FOR A PLACE TO LIVE, HEALTH CARE, EDUCATION, BILLIONS OF DOLLARS SPENT SO YOU CAN READ A DOCUMENT. WE CARRY PASSPORTS IN OTHER COUNTRIES OR FACE JAIL TIME. REPOST THIS IF YOU AGREE!! ((STOP COMMUNIST OBAMA)) THE COMMANDER

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