I refer specifically to the recent Supreme Court 7-2 decision on the ability of the Federal Government to detain “sexually dangerous” offenders past their sentence.
”At arguments in January, Solicitor General Elena Kagan told the court that federal prison officials found about 15,000 inmates with histories of sexual violence or child molestation, but only 105 who were determined to have a mental illness making it "reasonably likely" they would commit such offenses again.
One of those prisoners was Graydon Comstock, who in November 2006, six days before completing a 37-month federal sentence for possession of child pornography, was certified as sexually dangerous and denied release. He and four other such prisoners sued, claiming that Congress assumed powers only states can exercise.”
The Supreme Court cited the “Necessary and Proper Clause”:
” The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
They argued that the safeguarding of citizens was an implied power of Congress, and that detaining criminals deemed to be dangerous was merely a natural extension of this power.
When our government deems a certain action as unacceptable, it passes a law prohibiting the behavior. As part of this law it will assign a certain punishment, be it jail time, a fine, or something else, that is determined to be proportional to the seriousness of the crime.
Mr. Comstock had been convicted of a serious offense. He was convicted by a jury of his peers as guaranteed him by the Sixth Amendment. Being found in violation of the law he was then sentenced to a punishment as proscribed by said law.
What the Supreme Court has decided is that the Federal Government can assign punishments as it sees fit completely outside the process guaranteed in the Constitution. The only requirement is that the criminal be deemed as dangerous enough not to be released back into the general population. Whenever you grant government power you must assume they will abuse it. History has taught us that to do otherwise is folly. Therefore the natural question to ask is: What is dangerous, and who gets to define it?
If our goal is to keep a serial rapist off the street for the rest of his life then we can have that discussion. I won’t even disagree with you. Indeed, lock him up! If that is what the true intent is then let us use the method we already have to ensure this. Let us change the law to make a life sentence possible for a serial rapist. Then we can trust the justice system we have, including the jury made up by the accused's peers, to decide whether the man is dangerous enough to be deprived of liberty for the rest of his life.
What we should not do is trust the federal government to make this determination outside of the influence of We the People.
3 comments:
I've argued with several people over the years about similar themes. I believe that in order for the law to have any meaning it must be applied even in those cases where you'd rather not. For instance, free speech is only free if people have the freedom to say things I, personally, may find abhorrent. Therefore, I defend the right of the KKK to hold demonstrations, or for Neo-Nazi's to spew their hatred. If people are only free to say those things we like....how, exactly, is that freedom?
By the same token, if defense and rule of law in the courtroom are to have any meaning, they must be applied equally, regardless of the particulars of the person or crime being tried. I completely agree that if people believe certain types of criminals should serve more time....then make that the law. By going outside of the system we have it may make people feel better in the short run because this awful person is not free - but it will do far more damage in the long run by setting up a precedent for ignoring the law and allowing the government to impose any saction it likes on someone it doesn't like without any regard to established laws. I can foresee several not so far-fetched situations where that very precedent could be horribly abused.
Then again, the government is known for its restraint and ability to regulate itself without the intervention and action of a well-informed and armed populace. For example, the government would never do something so silly as nationalize industries and fire the CEO of a company...Yup, no potential for abuse here.
The issue in this case isn't the idea of civil commitment; analogizing sex criminals to the dangerously mentally ill is a reasonable inference. It's something that is done with regularity at the state level, and rightfully so. Sex criminals are different in that you can't determine the likelihood of recidivism at first glance; its a judgment that is properly made over the course of long-term psychotherapy. The issue here is whether it's appropriate when this commitment done at the federal level. Now this is more reasonably a state's rights issue, and it is only because the federal government has expanded the reach of its criminal jurisdiction that this is at issue. Had the defendant been tried in a state court for a similar crime there would have been no real Constitutional issue.
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