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Will SCOTUS Let Fear of Sex Offenders Trump Justice?

Two cases give the Court a chance to reconsider its counterintuitive conclusions about commitment and registration.

According to the U.S. Supreme Court, locking up sex offenders after they have completed their sentences is not punishment, and neither is branding them as dangerous outcasts for the rest of their lives. Two cases the Court could soon agree to hear give it an opportunity to reconsider, or at least qualify, those counterintuitive conclusions.

Karsjens v. Piper is a challenge to the Minnesota Sex Offender Program (MSOP), which since 1994 has confined more than 700 people who were deemed too "sexually dangerous" to release after serving their prison terms. Although these detainees are supposedly patients rather than inmates, in more than two decades only one of them has ever been judged well enough to regain his freedom.

The Supreme Court has upheld post-prison commitment of sex offenders, accepting the pseudoscientific claim that a propensity to commit a certain type of crime is an illness that mental health professionals can cure (in this case, an illness defined by state legislators rather than psychiatrists). But the Court has warned that imposing punishment in the guise of treatment may be unconstitutional.

The detainees challenging the MSOP, some of whom have completed treatment yet remain behind bars, argue that the program's track record and lack of regular risk assessments show it is punitive rather than therapeutic. "The MSOP is a regime of indefinite detention that provides no hope of release," say the Cato Institute and the Reason Foundation (my employer) in a brief siding with the petitioners. "It is functionally impossible to distinguish between Minnesota's civil commitment for sex offenders and imprisonment."

In upholding the MSOP, the U.S. Court of Appeals for the 8th Circuit said the right not to be locked in a cage does not count as a "fundamental liberty interest" for "persons who pose a significant danger to themselves or others." Yet the main issue in this case is Minnesota's lack of interest in whether the plaintiffs actually fall into that category. The state admits at least some of them don't.

Another case pending before the Supreme Court, Snyder v. Doe, is an appeal of a 2016 decision in which the U.S. Court of Appeals for the 6th Circuit ruled that Michigan's Sex Offender Registration Act, ostensibly a form of civil regulation aimed at protecting public safety, is so punitive that its requirements cannot be applied retroactively without violating the constitutional ban on ex post facto laws. The 6th Circuit noted that the law "has grown into a byzantine code governing in minute detail the lives of the state's sex offenders," including onerous restrictions on where they may live, work, and "loiter."

Like Minnesota's preventive detention, Michigan's restrictions are imposed without regard to the current threat posed by any given sex offender, and there is little evidence that they make recidivism less likely. If anything, the appeals court noted, the opposite seems to be true.

The 6th Circuit also pointed out that claims of "frightening and high" recidivism rates among sex offenders, although endorsed by the Supreme Court, have little basis in fact. The original source of the estimate cited by the Court calls it "absolutely incorrect" and says he is "appalled" that it has played an important role in upholding laws aimed at sex offenders.

The Michigan case gives the Supreme Court a chance to reconsider its reliance on bogus recidivism numbers as well as its conclusion that the punitive effects of registries are merely incidental. As the 6th Circuit noted, that position becomes increasingly hard to maintain as states heap additional burdens on registered sex offenders, making it impossible for them to live normal lives without making the public measurably safer.

The Supreme Court has let fear of sex offenders, a despised minority that includes many people who pose no real danger to their fellow citizens, trump traditional concerns about due process and just punishment. By hearing these cases, it can begin to repair the damage it has done to those principles.

© Copyright 2017 by Creators Syndicate Inc.

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  • Telcontar the Wanderer||

    "By hearing these cases, it can begin to repair the damage it has done to those principles."

    You misspelled "exacerbate".

  • Telcontar the Wanderer||

    "The 6th Circuit also pointed out that claims of "frightening and high" recidivism rates among sex offenders, although endorsed by the Supreme Court, have little basis in fact. The original source of the estimate cited by the Court calls it 'absolutely incorrect'"

    Now, now, give them some credit. Without the valuable data their miserable failures to govern scientifically yielded us, we'd never have been able to perfect our gun control, socialized medicine and climate change policies.

  • damikesc||

    Karsjens v. Piper is a challenge to the Minnesota Sex Offender Program (MSOP), which since 1994 has confined more than 700 people who were deemed too "sexually dangerous" to release after serving their prison terms. Although these detainees are supposedly patients rather than inmates, in more than two decades only one of them has ever been judged well enough to regain his freedom.

    Whoa. That is terrible. If somebody is "too dangerous" to be released, that is an issue for the legislature and judiciary to adjust the punishment for crimes if they deem it necessary. Just keeping them detained indefinitely is not a viable option and it's horrifying that SCOTUS permits this.

    In upholding the MSOP, the U.S. Court of Appeals for the 8th Circuit said the right not to be locked in a cage does not count as a "fundamental liberty interest" for "persons who pose a significant danger to themselves or others." Yet the main issue in this case is Minnesota's lack of interest in whether the plaintiffs actually fall into that category. The state admits at least some of them don't.

    I can appreciate the concern about their threat to the community --- but that is why you go through with the process to adjust criminal penalties. You don't just leave them locked up after they serve the sentence the state imposes.

  • C. S. P. Schofield||

    Another thing to keep in mind, vis-a-vis the sex offender registry is the drift a small but vociferously vocal minority towards defining "sex offender" as "in posession of a working penis as original equipment".

  • Brother Kyfho||

    PATRIARCHY! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! !

  • loveconstitution1789||

    Civil detentions are unconstitutional [period] After one has been duly convicted of some crime and then kept past that sentence under the "care of doctors", there is no authority in the Constitution for government to do that.

    Along with the sex offender registries, these unconstitutional forms of punishment need to end. No other arbitrary group would accept having to stay 1000 feet from where children play and check in with sheriffs every 30 days to "register"?

    These politicians and judges are insanely out of control.

  • Rogers1234||

    In many cases the judges are simply doing what the politicians ordered them to do, in effect acting as rubber stamps of legislative policy

  • FRegistryTerrorists||

    The public has no right at all to know about "s*x offenders" or have a public S*x Offender Registry (SOR). We know that with certainty because obviously the public has no right to know about any other crimes that do not involve S*X. It is beyond shocking that any person who thinks they are an American would even dream that it is acceptable to Register a person who has looked at bad pictures (for life, no less!!) but not a person who has shot someone with a gun! It's stupefying actually. But that is how the majority of people who live in the U.S. "think", with their emotions. (and they are not Americans or intelligent). It is also fairly amazing that pictures of children involving s*x are illegal but it is fine to look at pictures of children being murdered. (Disclaimer for stupid people: No, you cannot fabricate from my statements that I think child porn is okay or should be legal.)

    The original lie that was primarily used to get the Nanny Big Government (NBG) SORs created was that they were needed so that people could be "informed". That maybe, possibly, conceivably could have been acceptable to Americans if that were actually what the SORs did (and of course only if there were also Registries for ALL other serious crimes). But reality is so far from that. We have learned beyond doubt that people living in the U.S. cannot responsibly have and use SORs. Today, the SORs are used for all sorts of harassment, punishment, ostracizing, and segregation. (continued next post)

  • FRegistryTerrorists||

    (continued from previous post)

    Today, there are no informed, intelligent, unbiased, moral Americans who support the SORs. Experts never did. There are no people who are serious about public safety who support it. Those are not the people who support the SORs. Take a look at the people who do.

    We know that people who live in the U.S. cannot responsibly have and use SORs. That goes a hundred fold for politicians, who truly are nothing more than a bunch of criminals who are a danger to free people. It is time to end NBG. It is time to end lying, pandering politicians who cannot grow NBG too big or too expensive or have too many laws. Governments that have SORs are criminal regimes. Do not support them or their law enforcement criminals. Keep as much resources away from them as possible. Remember "If you see something, say something"? Forget that. NBG is the last bunch of criminals that you should involve in anything.

    The good new is that the SORs are completely unnecessary and negligibly beneficial. In order to actually protect yourself and your family, in actual reality and not Registry Fantasyland, you MUST protect from ALL people. If you actually protect your family in actual reality, you have no need at all for any very, very incomplete list from NBG. The SORs are also extremely counterproductive and gravely harming America. Destroying them will make all of us safer and our country more united and better.

  • WC46||

    Here is where the problem comes in. You are spot-on with what you are saying, but here's where the rub actually is:

    Many judges are elected by the public, as uninformed, factually ignorant, scared, and hate-filled as they are. So are District Attorneys. So are the legislators that pass these bills. Local "judges" (I use the term loosely and with much derision) are scared to death to rule forthrightly and honestly on sex offender laws. They are scared to death they'll be the target of a recall or being voted out next election cycle. They'd rather be intellectually and judicially dishonest and use the weakest, most convoluted reasoning to uphold these draconian punishments carried out under the color of "civil regulation" than risk being seen as "soft on crime" and especially soft on sex offenders. The same goes for the legislators.

    Also, these people are also parents, grandparents, older siblings, aunts, uncles, cousins. They all have small children in their families they love dearly and if they were open and honest, they'd tell the world "if one of those sick s.o.b.'s ever touched a kid in my family or circle of friends, I'd kill him and leave him where the buzzards wouldn't find him. The legal system wouldn't have to worry about them. If I could get away with it, I'd let the parents of these kids have a knife, a sword, or a gun and give them 2 hours alone with the offender who molested their child."

  • SamHell||

    I think the most humane treatment for repeat sex offenders and their future victims is life in prison or the option of castration and freedom. That might eliminate most recidivism and the need for sex offender registries.

  • Brother Kyfho||

    The average recidivism rate for sex offenders is lower than any crime with the exception of murder, treason, and espionage.

  • WC46||

    SamHell, there is scientific research that proves Androgen Deprivation Therapy (popularly called "chemical castration") is effective in many cases with regards to reducing sexual urges and the frequency and intensity of deviant sexual fantasies. Most pedophiles will admit to the fact that they frequently masturbate to fantasies of these consensual, even romantic sexual encounters with children, both little boys and girls. If you diminish the libido, you put the damper on the appeal of these fantasies. The trouble with chemical castration is that if the offender skips the quarterly injections long enough the effects wear off. That's why I agree surgical castration would be better IN CONJUNCTION WITH testosterone blockers like Depo-provera to get suppress the remaining testosterone in the body. I think the surgery and the quarterly injections should be paid for by the state when the offender is ruled legally indigent by a judge in good standing. If we really want to reduce sexual crimes, this is the best way to go.

  • L.G. Balzac||

    So you want the same deciders that illegally kept someone in prison to use knives and syringes instead?
    This is all lynch mob mentality.

  • JunkScienceIsJunk||

    I hope you guys all understand that 1) a dick isn't necessary to molest; 2) sexual urges are only sometimes the dominant driving force among people with that problem.

  • Kroneborge||

    No mention of the fact that many normal activities can easily get you on the sex offender registry. For example a 16 year old buy sexting a 16 year old girl...

  • jimusa||

    At an event in a national forest, volunteers overheard a police officer tell a man that he could be put on the sex offender registry for peeing in the woods. (This, at an event where the road was blocked for several hours, preventing anyone from driving to a restroom.). Seriously? The SOR seems to be out of control.

  • SamHell||

    You guys seem to have missed the parts where I said REPEAT offenders and OPTIONAL. If you were wrongly convicted that sucks, but it would have to happen twice for the life in prison thing to kick in. Of course you could modify it to where this two strike rule only counts for the really deviant, emotionally scarring shit but really you shouldn't have to coddle someone who has been in trouble with the same behavior before. They know better, they know the punishment, and yet can't seem to help themselves so they need to be locked away.
    You wouldn't have to get your berries trimmed unless you wanted to roam around in polite society again. Honestly I don't have much sympathy for peddos, this would be more than fair and would keep them from being a second class citizen on a SOR.

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