Guantanamos Across America

Indefinite detention of sex offenders flouts the rule of law.


Although Macon Baker completed his prison sentence in 2006, the state of Missouri kept him behind bars, repeatedly trying to commit him as "sexually violent predator." After three juries deadlocked on the question of whether Baker suffers from a "mental abnormality" that makes him "more likely than not" to commit new sex crimes after he is released, a fourth jury on Friday unanimously agreed he does not. In effect, the state retroactively extended Baker's sentence from 10 years to 17.

The military prison at Guantanamo Bay is notorious as a place where people can be held indefinitely without charge because the usual rules of criminal justice do not apply. Twenty states have their own versions of Guantanamo Bay for sex offenders, a fact that attracts little attention and generates little outrage because the detainees are even less sympathetic than suspected terrorists.

At the age of 18, the St. Louis Post-Dispatch reports, Baker "got caught sticking his hand in the pants of a 5-year-old girl playing in a yard." He pleaded guilty to sexual abuse, got probation, and underwent treatment. Fourteen years later, after he was arrested for molesting the 7-year-old daughter of close friends, he was sentenced to 10 years in prison.

You may well think a 10-year sentence is too short for a child molester. The prosecution thought 25 years would have been appropriate. But that is not the sentence Baker got, and lengthening a prison term after it has been completed is a practice usually associated with arbitrary dictatorships, not liberal democracies that supposedly respect the rule of law.

When it upheld a law similar to Missouri's in the 1997 case Kansas v. Hendricks, the Supreme Court said preventive detention of sex offenders is constitutional as long as the aim is not "punitive" and the procedures for committing people meet the requirements of due process. In a concurring opinion, however, Justice Anthony Kennedy warned that if the official rationale for commitment is treatment, "but the treatment provisions were adopted as a sham or mere pretext," that fact would indicate "the forbidden purpose to punish."

Missouri's Sex Offender Rehabilitation and Treatment Services (SORTS), the target of a federal lawsuit that argues it locks people in a prison disguised as a hospital, seems to illustrate Kennedy's point. "Since the program started in 1999," the Post-Dispatch reports, "nobody has completed treatment." In a 2009 memo, the director of Missouri's Department of Mental Health worried that such a record would prove SORTS is nothing but a "sham."

Minnesota, with more civilly committed sex offenders per capita than any other state, has a similarly dismal record, even though it spends $120,000 a year to detain each of those "patients," three times the cost of keeping someone in prison. Last week, in a ruling that allowed a lawsuit challenging the Minnesota Sex Offender Program (MSOP) to proceed, U.S. District Judge Donovan Frank noted that "no civilly committed sex offender has ever been discharged." Assuming the facts alleged by the plaintiffs are true, he said, "it appears that MSOP may very well be serving the constitutionally impermissible purposes of retribution and deterrence."

Siome states have better records. But over all, as you might expect given the incentives involved, civilly committed sex offenders are almost never deemed to be "cured," so they are almost never released.

In Kansas v. Hendricks, the Supreme Court emphasized that a sex offender could be committed only if he suffered from a "mental abnormality" or "personality disorder" that undermined self-control, justifying "a prediction of future dangerousness." But according to Justice Department data, most prisoners have "mental health problems," and many of them surely have behaved in ways that would make a "prediction of future dangerousness" plausible.

Is that all it takes to lose your freedom forever? If so, the idea that people should be imprisoned only for crimes they have already committed, as opposed to crimes they might commit in the future, may one day seem positively quaint.

NEXT: Brickbat: Unmentionables

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. If I am first, this is a first

    1. The Fist has yet to awaken.

    2. That is probably the only thing of note you will accomplish this week.

      How indescribably sad.

      1. Ouch! Put some ice on that burn, Columbia

  2. I wonder where they keep the precogs?

    1. In the giant tank of goo at the bottom of the fishbowl. where else?

    2. What do they do to the guy who molests the one female precog? You know there’s one guy, usually mid shift, kinda squirly

  3. “Is that all it takes to lose your freedom forever? If so, the idea that people should be imprisoned only for crimes they have already committed, as opposed to crimes they might commit in the future, may one day seem positively quaint.”

    One of the objectives of punishment is the prevention of future crimes. If a sex offender has assaulted multiple people, especially after being convicted once, then it seems appropriate to keep him under lock and as a proven danger to others. The difficulty here is that the treatment of mental illness is an inexact science.

    1. CHIRRUN!!!

  4. This is crazy. You can’t cure a pedophile any more than you can cure teh gay. That second offense should have gotten him manditory life no parole. He’ll no doubt offend again. Hopefully he doesn’t kill his next little victim after he rapes her.

    1. Sex offenders are no more likely to kill child victims than heterosexual men are to kill women.

      1. That is not a comfort.

      2. @davidkennerly

        this is easily the dumbest thing ive read all year.

        sex offenders have a selfinterest in hiding their crime. this is an additional motive to kill that heterosexual men ONLY have if they have also raped.

        the average heterosexual man kills women less often than once per year. What do you think the average deathtoll of an active child molester is, per year?

        “no more likely” you say… that is scary stupid.

    2. Not sure why you’re associating sex with violence.

      In fact, many of these offenders have never even touched a victim – prosecutors have even managed to convict acknowledged virgins who never forced anyone to do anything on rape charges. Such persons make up some of the “dangerous offenders” who are locked up forever in places like Minnesota. In a fair number of other cases, the “child” “victims” (who in fact may be neither) have opposed the charges being brought. In any case, when a sentence was given by a judge there is something rather fishy about extending it on an obvious pretext and without due process at a later date.

  5. thoughts about the state aside, mounds of evidence show that people like Baker will commit offenses again. It’s like someone who was arrested for robbery or even murder. It’s a pathology and, frankly, our current system serves no one particularly well.

    1. So, life without parole for all first offenses for every crime, because all offenders always offend again?

      1. I wouldn’t have given him life for the offense he committed as an 18 year old. Second offense is a different story.

  6. Paedophiles almost always re-offend. They are a huge menace. I’d put them down.

    1. Uh, might want to do a fact-check here. Try recidivism rate of 5% or less.

    2. The only offenses with a lower recidivism rate are murder, espionage, and treason.

      1. Actually, there is a subset of sex offenders that has a higher recidivism rate, and those are same-sex pedophiles that commit some form of sexual battery, i.e., actually touching another person. If you factor those out, the recidivism is really, really small.

  7. The Warty Gulag

    1. Might be more of a mercy to turn ’em over to Warty…. well, maybe not that.

  8. Touch my daughter and I’ll make your death look like an accident.

  9. I find these responses depressing. Are we to understand that not even libertarians believe in the rule of law so long as the defendant is accused of something reprehensible or is part of an unpopular class of people? Knowing what we know about the criminal justice system do any of you think that 100% of convicted sex criminals are in fact guilty, or that many offenses that will turn you into a sex offender are innocuous (public urination, stat rape with < 5 year age difference, kids taking naked pictures of themselves).
    Under NO circumstances should the state have the ability to imprison ANYONE without actual due process. And finally, seeing as how psychology as used by the courts is a laughable non-science whose prediction rates for individual future behavior is occasionally *worse* than random, psychology CANNOT be used as the basis for denying someone their human rights.
    They told us the PATRIOT act and efforts like it were to combat foreign terrorists and now they use those powers to imprison drug dealers and assassinate Americans who talk to foreign terrorists. Do you think that indefinite criminal detention will stay reserved for child rapists? If so I have a bridge in Alaska you might want to buy. This is how precedent gets established people.

    1. Thank you. I was about to release a Rage filled rant about the comments on this story. As much as we all don’t want to see the little ones around us molested. We don’t have the right to remove basic human rights from someone else after he has served his time.

    2. Thank you for posting something sensible.

    3. “offenses that will turn you into a sex offender are innocuous (public urination, stat rape with < 5 year age difference, kids taking naked pictures of themselves).”

      Agreed. I think given all of the baggage and extra restrictions that go along with the clasification I’m surprised one of these cases where the classification has been made hasn’t made it to SCOTUS.

    4. There are two issues here. The one that regards the fact they are being held beyond the end of the term of their sentence and the one of how long that sentence should have been.

      For the first, they should be released at the end of their sentence. Anything else is arbitrary and unlawful.

      For the second, anyone found guilty of true pedophilia (not flashing for example) a second time probably should be given life. This is unfortunate, but is probably the only valid way to protect society.

      So the real problem is that these predators were given sentences that let them out again. But retroactively holding them, in effect increasing the sentence after the fact is a slope we should not go down.

      1. LIFE!! For teh CHIRRRUN!!

    5. Muh sex offenders!!!!1!!111!!1!

    6. I’m not convinced that some of the people commenting on this topic are libertarians. But regardless of that, sex crimes, particularly against children, are kind of a berserk button for a lot of people. They’ll agree about rule of law, due process, etc., until the topic is sex crimes against children, and then suddenly it’s CHILD MOLESTORS DON’T DESERVE A DEFENSE, LIFE IMPRISONMENT IS TOO GOOD FOR THEM, THEY SHOULD ALL BE KILLED SLOWLY, etc.

      1. In 1977 my Social Studies teacher gave us a test to determine political affiliation. I was dead center libertarian. I believe in the rule of law. As a father of a 13 yr old daughter, the law, political affiliation, religious beliefs etc go out the window when some one molests my daughter. Like I posted earlier, touch my daughter and I’ll make your death look like an accident. Society and government may be able to live with less. Some fathers have a different perspective I guess.

        1. Yeah, but you’re not the State.

    7. Agree 100%. As far as I’m concerned, psychology is a religion – and I demand separation of church and state.

      (Actually, psychology is worse than most religions, as it has not been around long enough to develop the moderating influences that most old religions have.)

  10. Defending sex offenders is one of the toughest strains on libertarian principles. I’d think you’d get less of a bad reaction advocating for heroin legalization. Nonetheless, indefinite detention of anyone is wrong. If we, as a society, really hate sex offenders so much we should just sentence them to life. At least it’d be honest.

    1. We are not discussing generic “sex offenders”, but the type of sex offense that can cause emotional problems in the victims for long term and which have an extremely high recidivism rate. What responsibility is there to potential victims if the threat of punishment is known to be insufficient to instill control in these offenders over their impulses?

      1. Uh, “no” and “no”. These are not the “worst-of-the-worst” nor do they have a high recidivism rate. Do your research which, admittedly, is extremely difficult since there are precious few honest appraisals of these draconian horrors by “journalists”.

      2. Also, how recidivism is defined makes a huge difference. Violation of a statute that is administrative in nature, i.e., “failure to register” is considered to be a sex offense, and is counted as such in the statistics.

        I’ve posted on here before about a good friend of mine whose niece was coerced by a detective to incriminate my friend. I’ve seen the interview tape, it’s exculpatory. They came at him with 14 ‘A’ felonies. He had a public defender and took a plea for 4 yrs probation and lifetime registry. If he fails to register he will most assuredly do at least 5 years and then when he gets out he would have to register as a ‘sexually violent predator’ every 90 days as opposed to annually as he does now.

      3. You’d be surprised at the innocuous acts which can already get someone sentenced to life plus for a “sex offense”.

        You might also be surprised at how little harm actual sex offenses cause – especially if the victim regarded the crime as consensual. There was a study done by Bruce Rind and some others in 1998, which was duplicated in 2005 by other researchers, demonstrating that harm in such cases is near zero. Of course, that didn’t stop Congress from condemning that study – the only scientific study Congress has ever voted to condemn.

        But even in cases of actual assault, it is questionable whether greater harm is done by the assault or by societal reactions to it. Degree of harm differs greatly by culture: cultures where condemnation of rape is extreme show greater harm for victims than cultures where condemnation of rape is merely strong.

  11. If the term sex offender was limited to child molesters and rapists, then that would be one thing. But it’s not. The term has been rendered meaningless with all the nonsensical crimes that have been added to the definition. But the term is still used as if every offender is a child molester or rapist. That emotional reaction allows people convicted of nonsensical crimes to be treated like rapists.

    1. Agreed.

      1. Yes

        We are treating teens that mooned someone out a car window as if they were a budding rapist.

        1. Worse – in some cases we are treating the person a teenager mooned as a rapist.

  12. And oh yeah, the 3 year recidivism rate for rapists is 2.5% according to DOJ. Over 15 years the rate looks to peak at 24% according to Public Safety Canada. The highest reoffense numbers are for what we might consider the “classic” sex offender: a child molester with only male victims. They have a 15 year rate of 35%. What this means is that even in the worst cases of sex crimes, most sex criminals and child molesters *do NOT reoffend*.
    There is an incredible amount of bad science, lies and emotion that drives the current understanding of sex crimes. University of Florida studies showed that the public believes recidivism rates are three times there actual rate – 75%.
    In conclusion, these programs are imprisoning people at great expense under the pretense of preventing further offenses that are not likely to occur. These resources would be better spent investigating and closing unsolved sex offense cases thoroughly and accurately using the latest forensic and interview techniques, conducting an actual trial instead of some backroom plea deal nonsense and hiring competent professionals to monitor sex offenders on probation.

    1. Hopefully the “FOR TEH CHILDRENZ!” crowd will quietly slink away now.

    2. Excellent post, jay_dubya!

  13. “prediction of future dangerousness”

    Meh. All you have to do to get around this charge is prove you’ll not be dangerous in the future. So, simply act nice for the next minute, hour, day — then cite the trend.

    1. Oh really??? This IS NOT the experience of those locked away in civil commitment hellholes.

  14. Likelihood to re-offend should be part of the sentencing phase and factored in accordingly.

    Of course then you’d have Reason storming the Bastille over draconian sentencing for sex offenders. But if you really do think letting these people out at any point in the future is a mistake, give them sentences that reflect that.

    It’s almost like there’s no end to the issues rehashed here.

    1. Likelihood to re-offend should be part of the sentencing phase and factored in accordingly.

      “The court has determined that you have a 65.7% probability of re-offending and so adds

      *** punches calculator furiously ***

      seven years and five months to your sentence.”

      *** pounds gavel ***

      1. Nailed it. Giving judges sentencing discretion always results in completely arbitrary and unacceptable variability in outcomes, and that’s why libertarians have historically supported statutory mandatory sentences. Oh wait…

    2. Horseshit. In the Indiana Constitution it states that the purpose of incarceration is “based on rehabilitation and not on vindictive justice.” Libertarians believe that the first (and many say only, myself included) principle of rehabilitation is restitution. The victim must be made whole, to the extent possible. If this is achieved, how can anything more punitive be called just?

      1. Ultimately you CAN’T restore someone to their origin condition.

        How do you unrape a baby? oh poor baby is butthurt? how sad, right?

        rapists and molesters are not persons. they are to be slaughtered like pigs, NOT REHABILITATED.

        Can you rape a hooker, or is it only possible to rob her?

        i’ve never met anyone who fell distant from a hooker (on sexual spectrum) to have any sympathy for rapists. who’s judgment is sound here? personally i go with real victims first.

  15. The problem is error in sentencing.

    I hardly think the public should bear the brunt of this mistake.

    Sex offenders ought to be slaughtered like pigs. While I agree this is a legal travesty, the real culprit for the paradox are dirty politicians forcing feel-good agendas on the public.

  16. Google is the #1 internet site in the world. Start working at home with Google! Just work for few hours & have more time with friends & family. I earn up to $500/week. It’s a great work at home opportunity. I can’t believe how easy it was once I tried it out. Linked here

Please to post comments

Comments are closed.