US vs Comstock

May 17, 2010 2:52 PM

The Supreme Court in a 7-2 decision on US v Comstock has upheld continued detention of sex offenders who have served their time.
posted by Electrius (103 comments total)

Scalia and Thomas were the dissenting opinions. I can't believe I agree with Scalia.
posted by mccarty.tim at 2:56 PM on May 17, 2010 [11 favorites]

I agree with Thomas and Scalia.

Hell has officially frozen over.
posted by flarbuse at 2:56 PM on May 17, 2010 [15 favorites]

Scalia and Thomas were the dissenting opinions. I can't believe I agree with Scalia.

I agree with Thomas and Scalia.

Hah, I came to this thread to post this exact sentiment....
posted by nathancaswell at 2:58 PM on May 17, 2010

Man, I hate agreeing with Thomas and Scalia on the short end of a 7-2 split. Makes me doubt all manner of things I'd thought were fundamental in this world.

Oh wait should I put a spoiler warning on that?
posted by kipmanley at 2:58 PM on May 17, 2010 [1 favorite]

Those two are just the kind of assholes who'd blow their first sensible due process votes in years on a 7-2 decision, too.
posted by enn at 2:58 PM on May 17, 2010 [5 favorites]

Previously, from the NYT.
posted by availablelight at 2:59 PM on May 17, 2010

Can someone explain the broader legal issues (as separate from the specific case of sex offenders) at stake in this case? The linked article was sort of muddled on this.



Also, keeping people locked up after they've served their sentences? That seems like a real subversion of our legal system.
posted by lunasol at 2:59 PM on May 17, 2010

If you haven't done so, and I'm not saying you haven't, perhaps you should read the opinion before you agree with Thomas and Scalia. This is a decision about the civil commitment process, and whether that process is constitutional in a particular, limited context. It's a highly nuanced issue. Jerky knees should be kept in check.
posted by The Bellman at 3:00 PM on May 17, 2010 [10 favorites]

Whoa. Yeah. Nthing the surprise about Thomas and Scalia.
posted by brundlefly at 3:00 PM on May 17, 2010

Ugh. Siding with Thomas and Scalia makes me feel like I need a shower.
posted by KathrynT at 3:02 PM on May 17, 2010

Wow. My "liberal fascist" (per my neighbor) mind is blown. How is this even remotely a good idea to apply as a legal standard? The potential for abuse is absurd.
posted by StrikeTheViol at 3:02 PM on May 17, 2010

Wait, the court's arch-conservatives think it's okay to indefinitely detain without trial suspected terrorists on the basis of putative public safety, but think it's a violation of due process to detain indefinitely convicted sex offenders on the same basis?

/me is very confused.
posted by darkstar at 3:03 PM on May 17, 2010 [4 favorites]

I was just commenting to a coworker, regarding this case, that I could confidently predict the votes of individual justices based on their prior 'activism'. It hurts to admit that sometimes I am wrong.
posted by StrangerInAStrainedLand at 3:05 PM on May 17, 2010

That seems like a real subversion of our legal system.

Welcome to the modern Supreme Court, who gave us such gems as Bush v. Gore, Gonzales v. Raich, and Kelo v. City of New London.

The liberals on the court are just as bad as the conservatives in a lot of ways, and I'm far from a BOTH SIDES ARE BAD guy.
posted by furiousxgeorge at 3:05 PM on May 17, 2010 [4 favorites]

So, it looks like the court is deciding only the Congressional authority issue and not the due process issues:

From here: The Court does not reach or decide any claim that the statute or its application denies equal protection, procedural or substantive due process, or any other constitutional rights. Respondents are free to pursue those claims on remand, and any others they have preserved.

Can someone explain why this is?
posted by enn at 3:06 PM on May 17, 2010

As one who's mind was blown by the idea of agreeing with Thomas and Scalia also, I had to investigate. It appears that at least partially, the case hinges on people who are considered mentally ill, and therefore can be confined beyond what is called for in a criminal situation.
posted by CheeseDigestsAll at 3:08 PM on May 17, 2010

Jesus. I guess the message is that if you think you're going to get convicted on a sex crime, particularly child porn, you might as well go eat a bullet or throw yourself in front of a train or something, because you are never going to be let out.

How much does anyone want to bet that this is used to take care of that awkward issue surrounding the Guantanamo detainees? It seems tailor-made: if you can bag them on some sort of felony charge you can keep them in prison indefinitely afterwards with nothing but a friendly judge's say-so. It sure avoids the awkwardness of ever having to, you know, possibly let someone out of prison.
posted by Kadin2048 at 3:09 PM on May 17, 2010

the case hinges on people who are considered mentally ill, and therefore can be confined beyond what is called for in a criminal situation

It's a little more accurate to say that the case hinges on who gets to decide who is mentally ill, and using what criteria, which is absolutely a due process issue.
posted by enn at 3:09 PM on May 17, 2010 [5 favorites]

Wait, the court's arch-conservatives think it's okay to indefinitely detain without trial suspected terrorists on the basis of putative public safety, but think it's a violation of due process to detain indefinitely convicted sex offenders on the same basis?


Scalia doesn't think that. He and Stevens dissented, and Mefi probably reacted similarly then.
posted by Inspector.Gadget at 3:11 PM on May 17, 2010 [4 favorites]

I mean, saying it's OK to deny due process to mentally ill people is like saying it's OK to deny due process to guilty people; you're begging the question.
posted by enn at 3:11 PM on May 17, 2010 [3 favorites]

"Clear and convincing" sounds like the land of rhetoric. To convince is to argue — what do lawyers do better? "... safeguarding the public from dangers posed by those in federal custody ..." could be conjured by any tyro, summoned forth by a chant involving almost any hypothetical scenario you wish to imagine.

And it looks like the canary has dropped to the bottom of the cage. Hackers, child molesters, terrorists, and pushers — how they are treated hints at what is coming for the rest of us about twenty to thirty years. Rumors of hoofbeats from the dreadful gang of four, presumably soon galloping through your neighborhood, are enough to panic the citizens into electing the first strongman who guarantees that if we give up this thing, just this one time, we will all be safe.

Alito was concerned about breadth and ambiguity, then went to at least uphold; gracious, we will all rest more soundly for that concern. Seven-to-two! They could have at least pretended to care and gave us a five-to-four, a bare margin at which we might shake our head and hope that the tide would soon turn. The illusion of an Obama appointment could be held out. "Things could change," we would say and then file the whole mess away. Six-to-three would be bold. At only two dissents out of nine, the mask has slipped. They won't bother to pretend for much longer.
posted by adipocere at 3:13 PM on May 17, 2010 [3 favorites]

Hey listen, I'm as surprised to find myself on the same side as Alito and Scalia too, but there's no reason guilt-by-association the minority position in this case. It shouldn't surprise us much that presidents of both parties have an interest in appointing judges with expansive views of executive power. This is the reason why we make the Senate's advise and consent power about litmus test issues at our peril.
posted by l33tpolicywonk at 3:14 PM on May 17, 2010 [1 favorite]

I guess the message is that if you think you're going to get convicted on a sex crime, particularly child porn, you might as well go eat a bullet or throw yourself in front of a train or something, because you are never going to be let out.

I'm okay with this.

In all seriousness, this is about detaining people who are mentally ill. I'd prefer more of this and less of forcing people who get arrested for peeing in public to register as sex offenders for the rest of their lives.

Not all sex offenders are the same, and the ones who rape children are probably never going to get better. I would prefer we just separate them out from the general population entirely, which should cut down on some of the need for sex offender registries that wreck people's lives just because they pissed off their girlfriend's parents or whatever.
posted by empath at 3:15 PM on May 17, 2010 [2 favorites]

Thomas and Scalia, rather.
posted by l33tpolicywonk at 3:16 PM on May 17, 2010

Scalia & Thomas's vote was really just to limit Congressional authority. Even if they reached an outcome that I prefer, it's not that surprising.

Their votes are classically conservative. If this was a case about (as noted above) the due process rights of felons, I think they would have voted differently.
posted by jabberjaw at 3:17 PM on May 17, 2010 [2 favorites]

The illusion of an Obama appointment could be held out.

Given the fact that the probable Obama appointee was the one who argued the case for the government as Solicitor General, I'd say that would have been a pretty unconvincing illusion.
posted by Kadin2048 at 3:17 PM on May 17, 2010 [1 favorite]

The law allows the federal government to continue to detain prisoners who had engaged in sexually violent conduct, suffered from mental illness and would have difficulty controlling themselves.

Are they going to be kept in the same federal prison that they served their time? Or is this something similar to committing them to a mental institution, ostensibly to make sure they are being treated for their identified mental illness.

If it's the former, this seems grossly unfair (no matter how scary the sexual predator is), if it's the latter, it's at least marginally more understandable. (Though it still seems on thin ice.)
posted by quin at 3:19 PM on May 17, 2010

Wow.

I suppose if the question had been, "Can we burn them at the stake while shouting 'A Witch! A Witch!'" there might have been three dissenters?
posted by drjimmy11 at 3:22 PM on May 17, 2010 [4 favorites]

Yeah, "continued detention" is a loaded phrase that is being misunderstood here by some I suspect aren't familiar with civil commitments. The court is saying that it is possible for someone to have served their sentence as punishment for a sex crime, then still remain dangerous to others at the end of that sentence and in need of civil involuntary commitment to continue holding them for observation. This is not an issue of indefinitely confining sex offenders, there are built in safe guards to the civil commitment laws that require regular hearings for the committed party. The opinion states that this occurs in 6 month intervals until a state assumes custody for care and treatment, and then the states have their own guidelines for civil commitments that also require regular hearings in a civil mental health court where the standards for continuing the commitment are pretty high, the treating team of doctors needs to be there at each hearing to advocate for an extension of the commitment or the person would released to the community. At each hearing the committed person can either have an attorney present or a mental health advocate. In Philly we really don't have a problem of people being detained in psychiatric facilities beyond reasonable limits, we have people cycling through the civil commitment courts sometimes two or three times a month because they can't be held any longer than 72 hours without advocacy from a treatment team and they're often back on the street before they've been stabilized and without a community treatment plan in place.

Also, I've talked to the head of state hospital referrals at Philly's behavioral health department, and Norristown State takes basically nobody any more, like an extremely small number of referrals each year and only directly from state or fed prison. This is something that impacts a tiny number of very serious offenders.
posted by The Straightener at 3:22 PM on May 17, 2010 [29 favorites]

If, um, if you want to keep them out of society because they are mentally ill, why not release them from prison and have them committed to a mental hospital? Where there are, you know, a lot of doctors whose profession it is to make these people ready to return to society.

Dunno if mental hospitals are actually much good for this, but it would at least make sense...
posted by LogicalDash at 3:22 PM on May 17, 2010 [4 favorites]

Reading the decision makes this seem even scarier: the majority has upheld a legal regime in which a person accused of a federal sex crime can, at a federal judge's order, be held indefinitely in the custody of the attorney general who is under only a vague general obligation to return said person to state custody. To indefinitely detain a political dissident, the federal government now only requires planted evidence of child pornography and a friendly judge.

Legitimate due process claims aside, there seem to be some crazy 10th Amendment issues here. This is not how federalism was intended to work.
posted by l33tpolicywonk at 3:24 PM on May 17, 2010 [1 favorite]

the ones who rape children are probably never going to get better

And yet people who rape adults will "get better?" People who murder adults? All of them are walking the streets right now, and yet the world continues to turn. Tabloid TV hysteria aside, I have never seen any real evidence for this argument at all. I suppose they might retain the sexual attraction to children, in the same way a reformed murderer probably still has violent urges, which he restrains himself from acting on.

To try to police people's thoughts and desires is just dangerous nonsense.
posted by drjimmy11 at 3:26 PM on May 17, 2010 [5 favorites]

Not all sex offenders are the same, and the ones who rape children are probably never going to get better.

Sexual offenders against children have a recidivism rate of 13%. Compare to 19% for rapists whose victims are adults, and 63% for felons whose crimes are not sexual. (Source.)

If we want to create a special kind of sentence where those who are convicted of crimes of compulsion, or for folks who have a stated intention of re-offending or are found to be incompetent to regulate their own behavior due to disease or defect, are additionally sentenced to have a hearing upon the termination of their sentence to see if they'll be released into the general population or into a secure facility, then that's a separate issue and might be a good idea. But attaching this specifically to the nature of the crime, rather than the nature of the criminal, seems like a bad, bad idea.
posted by KathrynT at 3:26 PM on May 17, 2010 [24 favorites]

You know what might help in cases where people need additional treatment and rehabilitation after jail? Giving them good treatment and rehabilitation in jail before the sentence is over.
posted by furiousxgeorge at 3:29 PM on May 17, 2010 [13 favorites]

If, um, if you want to keep them out of society because they are mentally ill, why not release them from prison and have them committed to a mental hospital?

Why not put them in a mental institution in THE FIRST PLACE, if you believe them to have acted as a result of mental illness? Oh right, because that's seen as not barbarically punitive enough. You kinda gotta pick one, or else throw the whole judicial system and Constitution in the trash.
posted by drjimmy11 at 3:29 PM on May 17, 2010 [6 favorites]

Indefinite detention already exists for exactly these sorts of offenders, assuming you get them involuntarily committed to an asylum. Asylums have no notion of serving your time, you'll just stay locked away until the doctors decide you're no longer dangerous.

I'm also fully behind the position that all these mundane crimes are state matters, which presumably the Thomas and Scalia decent touches upon.
posted by jeffburdges at 3:31 PM on May 17, 2010

So, it looks like the court is deciding only the Congressional authority issue and not the due process issues:

From here: The Court does not reach or decide any claim that the statute or its application denies equal protection, procedural or substantive due process, or any other constitutional rights. Respondents are free to pursue those claims on remand, and any others they have preserved.

Can someone explain why this is?

Maybe. This is entirely a federalism case (i.e., whether the Federal government, which is constrained by only being able to operate within enumerated powers, as set forth in Article 1, Section 8) and not a case about individual rights of prisoners. What likely happened-- and I'm speculating here-- is that the prisoners in question put a petition of certiorari to the Court arguing a number of possible bases for overturning the lower court decision, but the Court only granted cert on the federalism basis, and that is what the case hinged on.

Scalia and Thomas's positions are both consistent with their grounds for voting with the 2000 majority in US v. Morrison, which overturned portions of the Violence Against Women Act, on the grounds that the Federal government has no power to regulate the actions of individuals involved in violence against women. VAWA relied on the commerce clause, which is the usual way for the federal government to assert its authority on a national basis. Morrison, together with the Lopez decision in 1995, formed the basis of what some called "New Federalism"-- a renewed wave of judicial skepticism against unlimited federal power asserted since the New Deal (peaking with Wickard v. Filburn).

Here's what I find interesting about this case. First, Thomas's dissent argues that the Court is reinterpreting the bedrock case of McCulloch v. Maryland to make it easier to assert power under the "necessary and proper" clause in Article I, Section 8. True or not, any time the Court is attaching nuance to a nearly 200 year old case, it can be a little eye opening.

Second, this case is one of the first big Federalism cases to be heard since O'Connor left the bench, and her replacement (Alito) voted in the majority, and I suspect she would have been substantially more skeptical of the arguments. Court observers have my full permission to write articles about the end of New Federalism.

Finally, the denial of cert on due process claims is a typical way to narrow constitutional issues for a high court fight, but it could also be a good signal that the Court has no intention of hashing out this fight before a couple of circuits have rulings. My half-assed prediction* is that the Court will duck the issues that are making some of us say "what? they served their time and they still get stuck in there?" and simply keep denying cert unless and until a circuit split develops.

*based on the fact that there already could be a circuit split, for all I know, and I don't.
posted by norm at 3:31 PM on May 17, 2010 [6 favorites]

There is no such thing as quality mental health treatment in prison. I don't think there's such a thing as quality treatment in state mental hospitals, either, which is why we don't refer people there for treatment any longer. Confinement isn't therapeutic. Offenders aren't confined so we can properly treat them, they are confined because they are a risk to public safety.
posted by The Straightener at 3:32 PM on May 17, 2010 [1 favorite]

I have a lot of respect for Scalia, in that he clearly has a judicial philosophy that he believes in and sticks to, even if it leads him to results I suspect he personally finds distasteful.

I think he's wrong, I think what he finds distasteful is usually what I consider good for the country, and I believe his entire philosophy is misguided. But the man goes where he believes the law takes him, regardless of personal preference. So Scalia does not surprise me.

Thomas on the other hand is no surprise, because he just does whatever Mr. Scalia does, and gives me no indication he has any moral fortitude on anything.
posted by John Kenneth Fisher at 3:37 PM on May 17, 2010 [1 favorite]

Why not put them in a mental institution in THE FIRST PLACE, if you believe them to have acted as a result of mental illness?

Because you can be mentally ill and still be competent to stand trial for a criminal offense, and punished for it. And be in need of treatment. All at the same time.
posted by rtha at 3:38 PM on May 17, 2010 [3 favorites]

I don't disagree with you regarding child rapists, empath, but this is absolutely the wrong way to do it. If we want certain crimes to carry a life sentence (or death), then it should be done at sentencing.

It seems corrosive to our entire justice system to hand out a sentence and then wait until it's about to expire and then basically go "whoops, just kidding!" because we can't stomach the thought of letting that person out. If that's the case, the mistake was made when they were given such a light sentence originally, but that mistake has been made.

We intentionally limit the number of 'do overs' that the State gets in criminal trials -- we let people who may be risks to the public walk out of courtrooms all the time on procedural grounds, or due to the double-jeopardy rule, or any number of other seeming "technicalities." Of course, they're not technicalities, they're how the system works. Realizing after the fact that some guy who got 36 months really should have gotten 36 years doesn't strike me as any different.

The correct response is to let him out, watch him like a hawk, wait for him to screw up again, and then throw the book at him the next time around.

Allowing the state to keep people in prison indefinitely with anything less than a full trial is an inherently bad idea, even if it protects the public. That's not a good enough justification.
posted by Kadin2048 at 3:38 PM on May 17, 2010 [14 favorites]

The dilemma here is wholly legitimate, and the best solution is castration; one day the developed world will agree with me, and will feel ashamed of itself for not agreeing with me earlier:

Pedophiles almost always re-offend, and so the tough decision is to either lock them up for life (which is disproportionate to the crime), to release them and accept there will be more victims, or to strike at the biological foundation of the behavior. It isn't the ideal solution, but it is the optimal solution. You aren't going to train a pedophile to have normal sexual desire, anymore than you are going to train a homosexual to be heterosexual or a heterosexual to be homosexual; and those pedophilic desires are a ticking time bomb. Few people have the self-restraint to live as celibates. Pedophiles are otherwise non-violent, non-criminal people, and don't deserve to be treated as criminals, but as mentally ill. Castration at least more resembles a medical solution, than sending them to prison where they are often considered fair game for abuse by the more aggressive criminals... recidivism is 5-20x lower in castrated offenders

posted by dgaicun at 3:43 PM on May 17, 2010

Because you can be mentally ill and still be competent to stand trial for a criminal offense, and punished for it. And be in need of treatment. All at the same time.

To elaborate on that, the Center for Behavioral Health Services & Criminal Justice Research at Rutgers just published a policy brief called "Criminal Thinking: Do People with Mental Illnesses Think Differently? (PDF)" which discusses the tri-axial issues many offenders have with addiction, mental health, and criminal behavior.
posted by The Straightener at 3:45 PM on May 17, 2010 [2 favorites]

Physical castration does not take into account object rape. Are you talking chemical castration?
posted by mecran01 at 3:47 PM on May 17, 2010

And what I should have added is that you can be mentally ill and still know that what you're about to do is a crime and you shouldn't do it. And be competent to stand trial etc.
posted by rtha at 3:48 PM on May 17, 2010

Yes, read the thread.
posted by dgaicun at 3:48 PM on May 17, 2010

There is also the question of the propensity of the prison environment to drive people insane even if they weren't that way to start with.
posted by aeschenkarnos at 3:49 PM on May 17, 2010 [2 favorites]

This seems like a good opportunity to roll out the five main theories of criminal justice:

Deterrent Theory (punish criminals to create a disincentive to commit crime)
Retributive Theory (punish criminals to reestablish a just equilibrium in society)
Reformative Theory (punish criminals as a means towards their rehabilitation)
Expiatory Theory (punish criminals in order to bring about their atonement
Preventive Theory (punish criminals to prevent said criminals from continuing to offend)

The American judicial system has, largely, held to the importance of retribution (embodied in cliches like "you do the crime, you do the time.") On the other hand, the punishment of sex offenses is usually seen through the lenses of, depending on your perspective, either reformative or preventative theories - probably because we have a hard time imagining that a rational person could rape a child under any circumstances, where we see rational justifications for stealing or even for murder.

This case rubs me the wrong way because it seems like the government's position picks and chooses theories of justice according to circumstance: it begins by imprisoning someone under the retributive theory, but then asks the court to extend sentences arbitrarily under the preventative or the reformative theory. If the government was acting under the preventative or reformative theory, sentences for sex offenders would be open-ended from the start: yes, some would be held beyond current sentencing guidelines but some could also be released in less time if it was clear they wouldn't re-offend. Of course, no one can know that. But no one can know if a sex offender will re-offend either. In this case, at least, it seems incumbent upon the government to pick a theory (though I've had many a conservative Catholic professor try to convince me the theories aren't mutually exclusive...)
posted by l33tpolicywonk at 3:53 PM on May 17, 2010 [11 favorites]

I'm not sure that this is as bad as people are claiming. Or at least, the concept isn't necessarily bad - I have no idea about the implementation.

But a very similar regime is the case here in Canada with regards to the mentally ill. If in a trial, a person pleads insanity, they are claiming that they are NCRMD (not criminally responsible by way of mental disorder). Alternatively, the Government can raise that in very specific situations.

If a person is found NCRMD, then their fate is in the hands of a review board. Which board is required to give them an absolute discharge (as in, free to go) unless there's a substantial risk of harm. If there is, then the board has to decide between a condition discharge (which of course is similar to parole, but not the same) or detention. They have to err on the side of discharging, and if it's detention, at set times there's a renewal.

It's not a perfect system, but it seems to work. It's definitely better than (longer) jail sentences.

Now here we're only dealing with those mentally ill who are a sexual threat, but I don't think that changes much. It's not all sex offenders. It's those people whose mental illness make them a threat.
posted by Lemurrhea at 3:54 PM on May 17, 2010

Not all sex offenders seem to be punished.


I quote from a comment on the June 25, 2008 Huffington Post

Oh, that reminds me of Edward Rodgers, FBI agent. He "became a child abuse expert" after retiring from the FBI and joining the Colorado District Attorney's office. He wrote the manual on child sexual abuse. His daughters successfully sued him for 2.3 million dollars for his sexually abusing them from 1944-1965.

Also, reminds me of John Conditt, former chief internal watchdog at the FBI, who admitted sexually abusing several very young girls.

My guess is, that the people they busted in this sting were minorities. The huge child sex trafficking ring is going on at the very highest levels of government, and is apparently being protected. Remember Larry King and the Franklin Savings and Loan Scandal? Google it



Journalist Seymour Hersh's (who broke the Abu Ghraib scandal) bombshell before the ACLU some years ago ...said:


" Some of the worst things that happened you don't know about, okay? Videos, um, there are women there. Some of you may have read that they were passing letters out, communications out to their men. This is at Abu Ghraib ... The women were passing messages out saying 'Please come and kill me, because of what's happened' and basically what happened is that those women who were arrested with young boys, children in cases that have been recorded. The boys were sodomized with the cameras rolling. And the worst above all of that is the soundtrack of the boys shrieking that your government has. They are in total terror. It's going to come out."
posted by millardsarpy at 4:02 PM on May 17, 2010 [1 favorite]

Lemurrhea: "But a very similar regime is the case here in Canada with regards to the mentally ill. If in a trial, a person pleads insanity, they are claiming that they are NCRMD (not criminally responsible by way of mental disorder). Alternatively, the Government can raise that in very specific situations."

The fundamental difference, I'd argue, is the thick line between mentally ill offenders and non-mentally ill offenders. The US government is claiming the right to jail someone as though they are not insane and then, at the end of their sentence, jail them for longer because they're insane.
posted by l33tpolicywonk at 4:03 PM on May 17, 2010 [3 favorites]

Maybe the Court was influenced by the story of John Albert Gardner

Gardner pleaded guilty in May 2000 to molesting the 13-year-old female neighbor and served five years of a six-year prison term. Prosecutors said he lured the victim to his home with an offer to watch "Patch Adams," a 1998 movie starring Robin Williams.

The girl was beaten before escaping and running to a neighbor.

Gardner "never expressed one scintilla of remorse for his attack upon the victim," despite overwhelming evidence, prosecutors wrote in a sentencing memo.

He had faced a maximum of nearly 11 years in prison under terms of a plea agreement, but prosecutors urged six years.

Dr. Matthew Carroll, a court-appointed psychiatrist who interviewed Gardner, had urged the maximum sentence allowed by law. He said in court documents that Gardner was a "continued danger to underage girls in the community" and an "extremely poor candidate" for treatment.

After release, Gardner went on to rape and murder two teenage girls.

Or maybe they read about Anthony Sowell

Sowell's case has inspired women's rights groups to send a petition to the President asking for the very thing the court has granted.

A commonly quoted study has the recidivism rates for sex offenders at 52%. Another Canadian study (sorry, no link) has the recidivism rate at 88%.

I can intellectualy understand the due process argument. But in reality, it's as specious as the "no-knock" argument used by Swat Teams that shoot seven year old girls and justify that as part of the war on drugs.
posted by cjets at 4:11 PM on May 17, 2010 [2 favorites]

It sounds like this is just for really crazy people. Also, it's not for people who haven't been convicted, I don't think.
posted by delmoi at 4:11 PM on May 17, 2010

Thomas on the other hand is no surprise, because he just does whatever Mr. Scalia does, and gives me no indication he has any moral fortitude on anything.

People say this all the time but it really isn't true. While it is never surprising to see Scalia and Thomas vote the same way, there are definite splits in their judicial philosophies. The biggest is probably that Thomas has very little respect for stare decisis, while Scalia does sometimes follow established precedent even when it breaks with his notions of originalism.
posted by Falconetti at 4:12 PM on May 17, 2010 [2 favorites]

Yea, the due process/precedent stuff makes me wary. But, honestly, it's not that surprising of a solution. The United States needs to figure out what to do with sex offenders. The laws barring them from employment, housing, accessing services, existing, etc. upon their release grow more and more stringent in every state every year. Something was bound to give eventually. I'm not thrilled with the outcome of this case, but at least it'll make people think about the situation.

I don't think it's right that this is the case, but it's also true that many of the services people are suggesting are literally only available to this population while they are still incarcerated. You can talk about alternatives on the outside all you want, but they really have yet to materialize.
posted by lunit at 4:18 PM on May 17, 2010

yeah, i was just going to pop in here and say something to the effect that we already do this for people with some mental illnesses. If people are going to object to this ruling then they should examine how they fell about civil commitments in-general. (but it has been touched upon already)

I am not taking a stance on the ruling with this comment, just an urging that we be consistent in our condemnation.
posted by edgeways at 4:41 PM on May 17, 2010

Yes, cjets, I was just going to post about John Gardener.

California's treatment of repeat sex offenders is under serious scrutiny now as a result of that case. And while it may have nothing to do with the SCOTUS decision, it's still a great illustration of how prisons can, will and must be used in lieu of a proper medical system.

Forgive my apples/oranges, but I've been attacked, recently even, by "crazy" homeless people. People who would, with proper medical attention, probably be productive citizens. So, sorry, but I really see this as an abstract means to deal with issues that aren't entirely legal.

Yea, this drives me nuts too, but some folks either need care, or be locked up or sometimes both. I'll hope that this decision doesn't become another hindrance to human rights in this country.
posted by snsranch at 4:49 PM on May 17, 2010

Yet another thread demonstrating Metafilter's weaksauce approach to Supreme Court analysis.

The question presented isn't a substantive one. The court did not decide whether detention of sex offenders after they've served criminal sentences is a good idea. They also didn't address due process arguments in any novel way - the burden of proof for civil commitments remains as the burden of proof for civil commitments always has been. The question they addressed is whether the federal government has the power to do this (rather than just state governments).

This is in dispute because there is no directly on-point enumerated power of the federal government to engage in civil commitments. So the broader issue here is - to what extent does the federal government have the power to act outside its enumerated powers?

For a long time it was thought that the Supreme Court would not interfere with certain exercises of federal power unless it impinged on individual rights, but then the Court reversed that trend in Lopez and Morrison. Today's decision is a return to the previous thinking in some sense. Again, to what extent does the federal government have the power to act outside its enumerated powers? Or more realistically, to what extent will the judicial branch hold Congress in check when Congress does something the Constitution doesn't give them power to do?

The biggest news in this decision, and I think it's unfortunate but telling about Metafilter's Supreme Court kneejerkiness that nobody here has brought it up, is the positions of Roberts and Alito and the possible implication for health care reform.

Make no mistake about it: the individual mandate is, as formulated, not allowed by the U.S. constitution. There are ways they could have achieved ALMOST the same thing through the tax power, but they didn't write the bill to do it that way. The current formulation of the individual mandate has no direct relationship to any enumerated power granted to Congress in Article I or any subsequent amendment, and there has been concern about whether it would be stricken down.

The fact that at least two conservative justices today have indicated their flexibility on strict enforcement of enumerated powers limitations on Congress may give some inkling of an answer as to what will happen when the challenges are inevitably brought.
posted by thesmophoron at 4:51 PM on May 17, 2010 [14 favorites]

1997 Kansas v Hendricks - 5-4 majority holding constitutionality of civil commitment procedures for sex offenders

Majority: Thomas, Rehnquist, Scalia, O'Connor, Kennedy

Dissent: Breyer, Stevens, Souter, Ginsburg
posted by gage at 4:54 PM on May 17, 2010

If you want to get even angrier, watch the Louis Theroux Wild Weekends episode where he goes into a Californian sex-criminals holding facility.
posted by Meatbomb at 4:56 PM on May 17, 2010

gage: again, the difference being that Hendricks is about due process argument, and Comstock is about the power of the federal government. While the underlying subject matter is similar, the issue of constitutional law is completely different.
posted by thesmophoron at 4:56 PM on May 17, 2010

thesophomoron: I am not a lawyer. (Hell, I'm not even a 2L.) But the way I read the decision, it's not authorizing civil commitments; it's authorizing continued incarceration. That strikes me as horrifically dangerous.
posted by KathrynT at 5:23 PM on May 17, 2010

If this is a good idea, why is it aimed specifically at just sex offenders? I'm sure plenty of convicts still pose a danger to the community in one way or another even though they've completed their sentences.

But, here's the thing: the trial and sentencing are supposed to take that into account before the fact.

This "we reserve the right of a do-over" kind of concept makes me uneasy. I understand the reasoning behind it, but it seems too open to abuse, IMO.
posted by Benny Andajetz at 5:25 PM on May 17, 2010 [3 favorites]

Make no mistake about it: the individual mandate is, as formulated, not allowed by the U.S. constitution. There are ways they could have achieved ALMOST the same thing through the tax power, but they didn't

Could you expand on that? It was my understanding that they implemented the mandate as an extra tax for those who don't buy coverage.
posted by furiousxgeorge at 5:27 PM on May 17, 2010

Please do elaborate. "Make no mistake about it" is one of those phrases that seems to attach itself to bullshit assertions.
posted by fleacircus at 5:38 PM on May 17, 2010 [2 favorites]

If this is a good idea, why is it aimed specifically at just sex offenders? I'm sure plenty of convicts still pose a danger to the community in one way or another even though they've completed their sentences.

Because that's all the law in question applied to.

The Supreme Court did the right thing here, because there is a process. A due process, if you will, for (what amounts to) civil commitment for these people. They get to petition for release every six months. It's not like they are just telling people they can't leave.

Scalia is, as usual, wrong.
posted by gjc at 5:41 PM on May 17, 2010 [1 favorite]

In all seriousness, this is about detaining people who are mentally ill.

This quote makes me incredibly nervous, as the definition of "mentally ill" hinges on a very fine point, and can be open to a lot of interpretation.

Castration of any type is a brutal and severe punishment. I imagine many would choose death over it, which ironically enough would be an illegal sentence to issue to a mentally ill person. The justice system is also not perfect, and innocent people have been locked up and put to death before -- this underscores my unease over the death penalty, and any sort of corporal punishment.

Also don't forget what happened to Alan Turing. The British legal system grossly interpreted the definition of mental illness, sentenced him to chemical castration, and forced one of the brightest minds of the 20th century and greatest heroes of World War II to take his own life.
posted by schmod at 5:58 PM on May 17, 2010 [2 favorites]

It was my understanding that they implemented the mandate as an extra tax for those who don't buy coverage.

They did. However, there are only two tax powers given to Congress: the ability to tax proportionate to the states, and the ability to tax income. Failure-to-buy-health-insurance isn't income; there's nothing in the Sixteenth Amendment that permits taxing a transaction (or the lack of a transaction). If there were, the federal government could also institute a sales tax. But there isn't. So it can't.

The way to do this within the existing constitutional framework would be to abolish the personal exemption and give a tax credit in the amount of the average marginal taxrate multiplied by the current exemption to everyone who had health insurance, instead of fining everyone who didn't.

Obama et al. chose to pick a potentially winnable constitutional fight instead of an absolutely unwinnable political one. I don't fault him or Congress for that at all, but it does require the Supreme Court to go along with it.
posted by thesmophoron at 5:58 PM on May 17, 2010

For all the talk of dangerous rapists, am I the first to point out that from what I can determine, the person at the heart of the case, Graydon Comstock, didn't apparently actually rape anyone? He apparently was sentenced to 37 months for receipt of child pornography (and given a case like this, I'm awaiting more details before declaring that this man is an unreformable menace?).

The guy served his 37 months, and has now spent more time in legal limbo waiting for the SC ruling which declares that the state has a right to indefinite detention? Forgive me for sympathizing, but I can't imagine the hell of being 6 days, 6 marks on a wall, from release only to stay there for 3 more years and counting? Also... given that the state was arguing apparently have the right to hold these people in treatment/detention where every six months they'd get reviewed, how exactly has this guy spent 3 more years in federal prison? It sounds like a Kafka-esque review process, where you'll never actually get let out if you are of sufficiently "disgusting" character, regardless of the merit or justice of it. It certainly appears the practice of this law is to keep someone in prison indefinitely, for the sheer hell of it.

I'm with l33tpolicywonk that the ability to sentence them as sane and then at the end declare them unfit after all is a grotesque end-run around any concept of justice. I prefer this:

The correct response is to let him out, watch him like a hawk, wait for him to screw up again, and then throw the book at him the next time around.

Allowing the state to keep people in prison indefinitely with anything less than a full trial is an inherently bad idea, even if it protects the public. That's not a good enough justification.

posted by hincandenza at 6:15 PM on May 17, 2010 [3 favorites]

Human Rights Watch has been studying the problem of incarcerating the mentally ill in prisons for some time. Here's a report from last year:

Mental Illness, Human Rights, and US Prisons
posted by homunculus at 6:40 PM on May 17, 2010

empath wrote: "Not all sex offenders are the same, and the ones who rape children are probably never going to get better. I would prefer we just separate them out from the general population entirely, which should cut down on some of the need for sex offender registries that wreck people's lives just because they pissed off their girlfriend's parents or whatever."

As far as those hypothetical parents the hypothetical boy pissed off, they probably think the hypothetical boy is one of the child rapists. This is why absolutism is bad, even when it comes to people we despise.

delmoi wrote: "It sounds like this is just for really crazy people. Also, it's not for people who haven't been convicted, I don't think."

I hope your browser is secure, none of the websites you visit are vulnerable to XSS, and you don't piss off the wrong person. Turns out that a mere thumbnail in your browser cache with no evidence whatsoever that you actually viewed child porn (intentionally or otherwise) is enough to sustain a conviction. A client of mine defended a guy last year who was arrested and charged with 16 counts of possession of child pornography. The only evidence was the thumbnail images found in his browser cache.
posted by wierdo at 7:18 PM on May 17, 2010

This is why absolutism is bad, even when it comes to people we despise.

Who is talking about absolutism? These were all decided on a case by case basis. Some sex offenders really are dangerous and really should never be allowed back on the streets, that's a simple fact.

I'd prefer we commit them individually rather the letting everyone out and tracking them for the rest of their lives just because they are technically a 'sex-offender'
posted by empath at 7:23 PM on May 17, 2010

I'd like some more info on the Comstock case, though. Why was he declared mentally ill? There has to be more to it than child porn charges.
posted by empath at 7:24 PM on May 17, 2010

From the decision.

In order to detain such a person, the Government (acting through the Department of Justice) must certify to a federal district judge that the prisoner meets the conditions just described, i.e. , that he has engaged in sexually violent activity or child molestation in the past and that he suffers from a mental illness that makes him correspondingly dangerous to others. §4248(a). When such a certification is filed, the statute automatically stays the individual’s release from prison, ibid. , thereby giving the Government an opportunity to prove its claims at a hearing through psychiatric (or other) evidence, §§4247(b)–(c), 4248(b). The statute provides that the prisoner “shall be represented by counsel” and shall have “an opportunity” at the hearing “to testify, to present evidence, to subpoena witnesses on his behalf, and to confront and cross-examine” the Government’s witnesses. §§4247(d), 4248(c).

"Receipt of child pornography" on its face doesn't qualify. There has to be more to it.

posted by empath at 7:27 PM on May 17, 2010

empath wrote: "Some sex offenders really are dangerous and really should never be allowed back on the streets, that's a simple fact."

I disagree. They should be allowed back on the street when their sentence is up.

My point was that to somebody, whether it be the cops, some insane parent, or whoever else, every sex offender is the scum of the earth and deserves to die. Except perhaps the folks here in Oklahoma who get to be registered sex offenders for peeing on a bush.

Kinda shitty, really. If you're minding your own business peeing on a bush and a cop spots you, you still haven't committed the crime yet. Once he tells you to turn around, you find yourself in a bit of a quandary. Do you choose to break the law by disobeying the officer's orders and possibly getting yourself shot while you try to zip up, or do you do what he says and expose yourself to him/her and take the indecent exposure charge?

Yes, I'm wandering tonight, sorry.
posted by wierdo at 7:29 PM on May 17, 2010

My point was that to somebody, whether it be the cops, some insane parent, or whoever else, every sex offender is the scum of the earth and deserves to die.

Yes, this is why we have a judicial system. Of which civil commitment is a long-standing part.
posted by empath at 7:34 PM on May 17, 2010

Sexual offenders against children have a recidivism rate of 13%. Compare to 19% for rapists whose victims are adults, and 63% for felons whose crimes are not sexual. (KathrynT)

A commonly quoted study has the recidivism rates for sex offenders at 52%. Another Canadian study (sorry, no link) has the recidivism rate at 88%. (cjets)

This disagreement interested me. None of this, of course, has anything to do with the supreme court decision, although it apparently affects whether some of us agree with that decision.

Cjets link for the 52% didn't work for me. Is this the abstract, Cjets? If so, it looks like the numbers must have quite a lot to do with the definition of recidivism; the authors feel that traditional definitions of recidivism aren't in keeping with Congressional definitions of recidivism.

I believe that this is the Canadian study referenced. I'd like to quote its abstract:

Approximately three in five offenders reoffended, using sex reoffence charges or convictions or court appearances as criteria, but this proportion increased to more than four in five when all offences and undetected sex crimes were included in the analysis.

Emphasis mine. This article tried to control for underreporting of sex offenses. It's not hard to imagine why this is tricky, and the article has apparently been heavily criticized.

This is the abstract of the article cited by KathrynT. It was a metastudy of 61 other follow-ups. Its focus was on risk factors for recidivism, but part of that meant looking at recidivism for the whole population.

Numbers for recidivism can be confusing without defining recidivism-- do convictions count, do arrests count, do "undetected sex crimes" count?

Review of a little bit of discussion suggests that a) everybody pretty much agrees that sex offenders are at higher risk of re-offense than non-criminals or non-sex offender criminals; b) sex offenders are less likely to recommit sex crimes, when compared to the frequency of non-sex offenders recommitting non-sex offenses (jeez is that awkward); c) rapists of adults form a distinct population with unusually high rates of non-sexual recidivism.
posted by nathan v at 7:34 PM on May 17, 2010

Some sex offenders really are dangerous and really should never be allowed back on the streets, that's a simple fact.

And thats why those offenders should be given life w/o parole, just like we would for murderers in a similar situation. If we're very sure the offender will repeat, and the crime was heinous, then life w/o parole is reasonable. But as others have said, sentencing is the time for this.
posted by wildcrdj at 7:42 PM on May 17, 2010

They did. However, there are only two tax powers given to Congress: the ability to tax proportionate to the states, and the ability to tax income. Failure-to-buy-health-insurance isn't income;

They aren't taxing failure. If they could tax failure in the United States the deficit would be gone in an hour. They are conditionally taxing income to encourage a desired result, something we do all the time.
posted by furiousxgeorge at 8:01 PM on May 17, 2010

"In the exercise of its constitutional power to lay taxes, Congress may select the subjects of taxation, choosing some and omitting others. Its power extends to the imposition of exercise taxes upon the doing of business. . . . Every tax is in some measure regulatory. To some extent it interposes an economic impediment to the activity taxed as compared with others not taxed. But a tax is not any the less a tax because it has a regulatory effect."
posted by furiousxgeorge at 8:04 PM on May 17, 2010

FWIW there was another SCOTUS ruling of note today: GRAHAM v . FLORIDA . Essentially ruling unconstitutional a Florida law under which juvenile offenders could be be sentenced to life in prison without parole for a non-homicide crime. (6-3: Kennedy, Stevens, Ginsburg, Breyer, Sotomayor, Roberts vs. Thomas, Scalia, Alito)
posted by edgeways at 8:04 PM on May 17, 2010

oh, and a nice money quote from the "response the dissent"

Stevens writes (with concurrence of Ginsburg and Sotomayor)

While Justice Thomas would apparently not rule out a death sentence for a $50 theft by a 7-year-old, the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.

posted by edgeways at 8:12 PM on May 17, 2010 [1 favorite]

Nice write-up of that one here: Daily Kos: SCOTUS: Minors Who Didn't Kill Can't Be Locked Up For Life.
posted by psyche7 at 8:44 PM on May 17, 2010

I'm okay with this.

That's not very empathetic of you.
posted by dunkadunc at 9:02 PM on May 17, 2010

Jesus. I guess the message is that if you think you're going to get convicted on a sex crime, particularly child porn, you might as well go eat a bullet or throw yourself in front of a train or something, because you are never going to be let out.

No, the message is that if you are going to rape a child, you better kill him/her and destroy the body as effectively as you can. You might as well, because if you are going to get busted for rape and be given the same punishment as murder, then you might as well go as far as you can in trying to go undetected as possible.

That is, if you believe that jail time (even life sentences) is any sort of deterrent to sex predators. I have my doubts on that. If deterrents really worked, capital punishment would be extremely effective, and it certainly doesn't appear to be.
posted by swimming naked when the tide goes out at 9:57 PM on May 17, 2010

No, the message is that if you are going to rape a child, you better kill him/her and destroy the body as effectively as you can. You might as well, because if you are going to get busted for rape and be given the same punishment as murder, then you might as well go as far as you can in trying to go undetected as possible.

Yes, because a stay in a psychiatric hospital, with periodic review with right to counsel, where the state has to prove, every time, before a judge, that a) they're treating you with actual applicable and valid psychiatric techniques and b) you are still demonstrably an imminent danger to yourself or others if released ... that's the same as a life sentence in a jail.
posted by kafziel at 10:07 PM on May 17, 2010

furiousxgeorge: (1) There are many grounds upon which to distinguish that entire line of cases. For one, the tax was at least arguably an actual tax in that its purpose was to gain revenue. Secondly, the tax was not used in such a way as to compel economic activity. (2) As I have already discussed, the jurisprudential treatment of Congress's ultra vires exercise of power has gone back and forth; that's irrelevant to what the Constitution actually does or does not say. (3) Sonzinsky came down the same year as West Coast Hotel and NLRB.The implied proposition that a decision from the earliest days of the New Deal court has any predictive power with regard to the Roberts court is implausible on its face.
posted by thesmophoron at 10:10 PM on May 17, 2010

The mandate collects revenue to make up for the lost revenue when the system has to pay out for people who don't have insurance who end up needing treatment. It doesn't compel the economic activity of buying insurance, it just offers the option as a way to get out of a tax that actually costs less than the insurance would.


The implied proposition that a decision from the earliest days of the New Deal court has any predictive power with regard to the Roberts court is implausible on its face.


'Unconstitutional, make no mistake,' is a long way from 'the Roberts court might disagree.'
posted by furiousxgeorge at 10:43 PM on May 17, 2010

I didn't say it was unconstitutional. I said it wasn't allowed by the constitution. I didn't say it was disallowed, and I didn't say it was prohibited. The fact that it's not part of an enumerated power doesn't necessarily mean that it's unconstitutional, depending on what your interpretive philosophy is. Sorry if that wasn't clear - I thought the context of the rest of the post, which explicitly talks about the dispute over how much power Congress can exercise outside its enumerated powers, was explanatory.
posted by thesmophoron at 11:04 PM on May 17, 2010

Ok.
posted by furiousxgeorge at 11:21 PM on May 17, 2010

The most useless word in the English language is the "and" between" "Thomas and Scalia".
posted by RavinDave at 11:28 PM on May 17, 2010 [3 favorites]

The liberals on the court are just as bad as the conservatives in a lot of ways, and I'm far from a BOTH SIDES ARE BAD guy.

The problem is that there's no such thing as "sides."

I think the problem is that there are sides.
posted by Pollomacho at 5:21 AM on May 18, 2010

I have seen, in a Fringe-esque parallel universe sort of way, my possible future: it's me with hair like Bill Kunstler, all pretense of personal hygiene gone, living as an outcast from society because I went back to school to get a law degree for the express purpose of defending convicted sex offenders. Because the legal climate they face now is already unfair and it can only get worse: you can't run for office by saying you're going to repeal laws against sex offenders or even just treat them like every other criminal. So the penalties just get stricter.

I think middle- and upper-class white children are a far greater threat to this country's continued greatness than perverts. Do perverts ruin lives? Of course they do. I'm not making light of that in any way or trying to take away from the horror of what they do. But they do it to a handful of people; yet everyone with a kid (or plans to have one) acts like there's a molester waiting around the corner slavering over your precious genius-in-training.

The perverts can at least point to Roman Polanski's film work. What has a kid done? They haven't cranked out a meaningful piece of work since "Starry Night". And yet we're forever making laws to ensure they can continue their free-loading ways. The problem with these laws is you're giving up my goddamn rights. Every one of you who comes roaring into a thread about capital punishment or terrorist detainment with Ben Franklin's bon mot, "He who would trade liberty for security gains neither," stop and reflect about what you're giving up when you say the state has a right to differentiate between crimes. What knock-on effects will it have when you declare hand-drawn images of naked kids = photographs of children = abuse? None of these laws exist in a bottle. You won't be able to say to a judge, "Hey, those violations of the Constitution only apply to sickos man. Not to me." Enjoy the police state you deserve.
posted by yerfatma at 6:09 AM on May 18, 2010 [3 favorites]

Yet another thread demonstrating Metafilter's weaksauce approach to Supreme Court analysis.

Enlighten us, then.

The biggest news in this decision, and I think it's unfortunate but telling about Metafilter's Supreme Court kneejerkiness that nobody here has brought it up, is the positions of Roberts and Alito and the possible implication for health care reform.

Make no mistake about it: the individual mandate is, as formulated, not allowed by the U.S. constitution.

The first statement is arguably true. This decision did clarify the Court's feeling on enumerated powers, and about the Necessary and Proper clause of the Article I, section 8. And Roberts and Alito did go on record about this. And they made a ruling that the dissent decried because it was more expansive in giving Congress the power to use the Necessary and Proper clause to justify its action.

The second statement is one of those 'hold up now' non sequiturs. Where do you get this? They just made it easier to justify Congressional action. Not harder, easier. As long as Congress can set the jurisdictional hook via an enumerated power, then Necessary and Proper means they can do any legitimate thing that follows. As the oft-quoted chestnut goes:

"Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."

So what does this say about health care? I'd argue-- I'm a semi-legal realist--- that it says NOTHING about health care. Why? Because I think the conservatives on the Court, with the possible bizarre exception of Thomas, are results-driven rather than ideology driven. You never saw Scalia ever vote on an Equal Protection argument until Bush v. Gore, amirite? But let's say that it does preview their views on health care. How can you say that it doesn't augur well for the bill? There is a huge recognized interstate market for health care. It would take overturning Wickard v. Filburn to overturn health care after Comstock. Congress regulates the interstate commerce of health care; Comstock says that Necessary and Proper allows for a pretty attenuated series of steps to get from commerce to a law like §4248.

Oh, and this doesn't need to rely on taxation power. It's just straight interstate commerce regulation. Am I missing something in your argument?
posted by norm at 6:59 AM on May 18, 2010 [1 favorite]

It's not often that I side with Scalia and Thomas. However, if you read why they dissented it is a little scary. They do not object to the removal of liberty so much as they would deny the federal government the power to pass any law not specifically enumerated in the constitution. This could be used to deny the EPA the power to regulate pollution etc.
posted by caddis at 7:41 AM on May 18, 2010

After reading though the ruling and considering some of the comments here I can see why it went the way it did, and can accept it.

As to Scalia and Thomas...

Things That Are Not In the U.S. Constitution
posted by edgeways at 8:25 AM on May 18, 2010

Yes, because a stay in a psychiatric hospital, with periodic review with right to counsel, where the state has to prove, every time, before a judge, that a) they're treating you with actual applicable and valid psychiatric techniques and b) you are still demonstrably an imminent danger to yourself or others if released ... that's the same as a life sentence in a jail.

My point, which I feel like you probably saw but conveniently ignored, was that no one who is willing to rape (or murder) a child is going to reflect on the punishment (or reflect on the imposed mental health treatment) before committing the act. If they were capable of that kind of reflection they'd just go get the treatment and not commit the crime.
posted by swimming naked when the tide goes out at 10:28 AM on May 18, 2010

You're telling us, but why is that so? Why are people who commit a certain crime different from every other criminal? If what you're asserting is true, why do pedophiles cover up their crimes?
posted by yerfatma at 10:30 AM on May 18, 2010

KathrynT, you cite those recidivism rates as fact ("Sexual offenders against children have a recidivism rate of 13%."), yet that same source disclaims their own data:

It is important to note that not all sex crimes are solved or result in arrest and only a fraction of sex offenses are reported to police. The reliance on measures of recidivism as reflected through official criminal justice system data (i.e., rearrest or reconviction rates) obviously omits offenses that are not cleared through an arrest (and thereby cannot be attributed to any individual offender) or those that are never reported to the police.... For these reasons, relying on rearrest and reconviction data underestimates actual reoffense numbers.

(emphasis added) So the source acknowledges that their recidivism rates for sex offenders are misleadingly low, we just don't know by how much. It may well be that offenses against children are especially infrequently reported, given how much child sex assault is familial. If you try to control for the vast gulf between reoffense and reconviction, you get much higher numbers.

Another point noted by that DOJ source is that recidivism rates vary significantly based on the specific category of crime. Apparently, for example, assaults on nonfamilial boys have a far higher recidivism rate (35%) ... or just a far higher reporting/conviction rate, you choose.
posted by palliser at 1:22 PM on May 18, 2010

who gets to decide who is mentally ill, and using what criteria, which is absolutely a due process issue.

Really? The Scientologists would claim different I'd hazard a guess.
posted by rough ashlar at 1:58 PM on May 18, 2010

why not release them from prison and have them committed to a mental hospital?

Ummm, because Reagan decided mental hospitals were unnecessary because we already have prisons and workhouses?
posted by Twang at 2:34 PM on May 18, 2010

Hmm. From the knock-knock-no-knock FPP, an interesting article on the potential ramifications of civil commitment, and how one might be committed, civilly.
posted by kipmanley at 2:47 PM on May 19, 2010

"THEY CAME FIRST for the terrorists,
and I didn't speak up because I wasn't a terrorist.

THEN THEY CAME for the pedos,
and I didn't speak up because everybody hates those fuckers."
posted by ambulocetus at 6:58 PM on May 19, 2010 [1 favorite]