The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Following up my recent postings on the federal court's invalidation of Minnesota's statutory scheme for "civil confinement" of sex offenders, and a front-page New York Times story highlighting some of the many cruelties that sex offender registry statutes visit upon people after they have served their duly imposed prison sentences, there's a powerful essay by Galen Baughman at Cato Unbound on the horrors of state "civil commitment" regimes:
Civil commitment is the legal practice of detaining individuals who are suffering from acute symptoms of severe mental illness so that they can be treated, often in a secured environment. In this model, the state is providing care for individuals who are unable to care for themselves, while protecting the public from individuals who are dangerous due to their psychiatric condition.
Sounds reasonable, right? Over the past 25 years, however, new laws have been created, designed to use the traditional model of civil commitment as a way to create secondary prison sentences for people who have already paid their debt to society, dramatically expanding the power of the state and blurring the lines between civil and criminal law. . . . Twenty states and the federal government have laws that allow some people to be indefinitely detained based on government projections that they might commit a crime in the future, after they have completed their prison sentence. To be clear, there does not need to be any imminent intent or actionable plot to break the law—the assertion made by the government here is that these individuals are merely at risk to commit these offenses due to a psychological condition, which inhibits their ability to control their predatory behavior. . . .
If you're looking for a sustained and systematic constitutional violation to get outraged about, may I suggest this one? I don't think one can put the principle at stake better than Judge Donovan Frank did in the Minnesota case:
It is fundamental to our notions of a free society that we do not imprison citizens because we fear that they might commit a crime in the future. Although the public might be safer if the government, using the latest "scientific" methods of predicting human behavior, locked up potential murderers, rapists, robbers, and, of course, sex offenders, our system of justice, enshrined in rights guaranteed by our Constitution, prohibits the imposition of preventive detention except in very limited circumstances. This strikes at the very heart of what it means to be a free society where liberty is a primary value of our heritage.
I'm starting to sense (or perhaps it's just wishful thinking) that a backlash against these laws is starting to form, in the courts and in public opinion—and it can't come too soon, to my mind.