Search and Replace: Sexually Dangerous Person, Terrorist

Just as a little thought experiment, let’s look how some passages from SCOTUS nominee Elena Kagan’s successful argument in U.S. v. Comstock–in which SCOTUS just voted 7-2 to affirm the federal government’s authority to indefinitely detain sex offenders who are mentally ill–appear when we replace the term “sexually dangerous person” with “terrorist.” (See Adam B’s post on the decision for a good overview of the decision.)

KAGAN: The Federal Government has mentally ill, sexually dangerous persons [terrorists] in its custody. It knows that those persons, if released, will commit serious sexual [terrorist] offenses;

[snip]

JUSTICE GINSBURG: But the likelihood is that the person will stay in Federal custody?

GENERAL KAGAN: I think that that’s fair, that the likelihood is that the person will stay in Federal custody until such time as a court finds that the reasons for that custody have lapsed.

[snip]

CHIEF JUSTICE ROBERTS: Right. I understand your argument to be that this power is necessary and proper, given the fact that the person is in Federal custody for some other reason, criminal conviction [enemy combatant designation].

GENERAL KAGAN: That has been the government’s case throughout this litigation, that it is always depended on the fact of Federal custody, on the fact that this person has entered the criminal justice system [been designated an enemy combatant],

[snip]

CHIEF JUSTICE ROBERTS: Well, why doesn’t the Federal Government’s authority to have custody because of the criminal justice system [enemy combatant designation] end when the criminal justice system is exhausted if he can’t be charged? In other words, when the sentence is done?

GENERAL KAGAN: Because the Federal Government has a responsibility to ensure that release of the people it has in its custody is done responsibly, and is done in such a way —

[snip]

GENERAL KAGAN: I think that the power to run a responsible criminal justice [detainee] system extends to the way in which the Federal Government releases these prisoners.

[snip]

JUSTICE SOTOMAYOR: Under your theory –under the theory that you are proposing, then, any dangerous person, whether it’s because of mental illness or any other reason, could be held indefinitely under a civil commitment statute. Because what you’re saying is that the Federal Government, merely because of their — their time in control of the individual, has an unlimited constitutional power to then civilly commit this dangerous person.

GENERAL KAGAN: I think what would prevent that, Justice Sotomayor, is the Due Process Clause. It is obviously the case that there are other constraints on governmental action than Article I.

JUSTICE SOTOMAYOR: Well, what constrains the government under the Due Process Clause from invoking a dangerousness merely because someone has a long history.

[snip]

SCALIA: General Kagan, you are relying on the Necessary and Proper Clause, right? You say: But necessary and proper doesn’t mean it is necessary and proper for the good of society. It means it is necessary and proper for the execution of another power that the Federal Government is given by the Constitution.

Now why is this necessary for the execution of any Federal power? The Federal criminal [enemy combatant] proceeding has terminated. The individual is released. You could say it’s necessary for the good of society, but that’s not what the Federal Government is charged with. Why is it necessary to any function that the Federal Government is performing? It has completed its performance of the function of incarcerating this individual until he’s served his punishment.

GENERAL KAGAN: The Court has always said, Justice Scalia that the Necessary and Proper Clause, the question is is it necessary and proper to the beneficial exercise of Federal powers. And so this is, that it is necessary and proper to the beneficial or, what I said before, the responsible exercise of the Federal power to operate a criminal justice [terrorist detainee] system, which includes the responsibility to ensure that those people who have been in custody in that Federal — in that criminal justice [detainee] system, are not released irresponsibly.

I’ve long said that the most likely candidates for indefinite detention as alleged terrorists are those–like Abu Zubaydah and Mohammed al-Qahtani–whose torture has made them mentally unfit for trial. And in fact, one of the five respondents here was never convicted; like I presume Abu Zubaydah and al-Qahtani might well be, he was deemed mentally unfit to stand trial. So it would not take much to see the argument affirmed today used to justify indefinite detention of Gitmo detainees. Heck, Obama’s probably already sent the draft legislation to Lindsey Graham for his approval…

Of course, by the time such indefinite detention were reviewed by SCOTUS, Elena Kagan would be one of the Justices asking the questions.

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88 replies
  1. DeadLast says:

    Yet another SCOTUS decision that would make the “Founding Fathers” roll in their respective graves!

  2. earlofhuntingdon says:

    This would be a novel way to hide a government’s criminal abuse, or would be if the Russians hadn’t reputedly used it for decades. That is, keep a prisoner in jail or a mental ward indefinitely, because having abused and tortured that prisoner, he now really is mentally ill and a physical danger to himself and others.

  3. earlofhuntingdon says:

    Traditionally, the federal government’s power to detain a prisoner convicted in an open, public and properly constituted court of law, expired on completion of the sentence.

    The idea that prison rehabilitates a prisoner or makes them a safer, more responsible member of society has been an aspiration of some – many consider prison simply Old Testament punishment – but an aspiration belied by recidivism rates and the casualness with which rape, drug abuse and physical violence inside prisons is tolerated.

    • bobschacht says:

      …an aspiration belied by recidivism rates…

      You can’t really blame recidivism rates if the purpose of prisons is mostly to punish and not to rehabilitate. Rehabilitation is much more the goal of juvenile detention than it is of adult detention.

      Politicians have been afraid to campaign for rehab in prisons. What has unfortunately worked in elections is to campaign for locking’em up and throwing away the key. The public needs to be educated about this.

      Bob in AZ

      • earlofhuntingdon says:

        I agree. My point was that recidivism rates reflected that rehabilitation was not a serious purpose of the modern American prison system, any more than it probably was when Cool Hand Luke was described as exhibiting a failure to communicate.

  4. rosalind says:

    NBC has picked up a new fantasy drama starring Jimmy Smits as a Supreme Court Justice who resigns to go to bat for the little people. The trailer: Outlaw

  5. bmaz says:

    Two comments on Adam’s writeup, which is, with the exception of the first comment, very thorough and very good. That would be this part:

    [What is a “sexually dangerous person”? Under the statute, it’s one “who has engaged or attempted to engage in sexually violent conduct or child molestation,” and “who is sexually dangerous to others,” the latter further defined as someone who “suffers from a serious mental illness” such that he would “have serious difficulty in refraining from sexually violent conduct or child molestation if released.”]

    This is correct, but fails to address the key problem here: Sex offense “experts”, especially ones employed by prosecutors are dogmatic that true sexual offenders cannot be rehabilitated or cured. As a result, the view propagated by those in favor of today’s ruling will be argued in favor of permanent detention of far, far more individuals than pretty much anybody (with the exception of those who have been involved in these cases) understands.

    Secondly, when Adam says:

    Why is this case a big deal? Because in accepting a broadened scope for the Necessary and Proper Clause in empowering the federal government to address concerns multiple steps removed from the Article I enumerated powers, it allows an energetic Congress to address these issues of key public concern without forcing the weighty constitutional amendment process every time some new issue arises.

    He hits the nail on the head perfectly. This is exactly right and precisely what I have been saying when I describe how Comstock, especially when read together with Gonzales v. Raich, leaves an incredibly open door for a crazed Congress.

  6. earlofhuntingdon says:

    A couple of quick distinctions. The decision cites as historical precedents Congressional rules for treatment of prisoners and the mentally ill in Washington, DC. DC is a federal district or territory under Congress’ exclusive jurisdiction. No federalism issues arise because Congress is the district’s ultimate governing body.

    The decision makes the argument that it is a simple extension of existing civil commitment regimes. In reality, it is using civil commitment proceedings to extend jurisdiction to criminally punish someone. As Mary (@11) in the previous thread noted, the better analogy would be that it is an extension of involuntary commitment proceedings, which involve different procedures.

    Citizens concerned about unnecessary limits being placed on the constitutional civil rights have cause to be worried when the two dissenters in this case are Justices Thomas and Scalia. The issue to be concerned about is not the highly emotional one of detaining sexually violent federal prisoners beyond the term of their stated sentences for criminal misconduct. There is cause for concern there, but few are affected.

    Of greater concern, because it could affect thousands more, is the expansion of the Necessary and Proper Clause to permit the federal government to keep American citizens it identifies as undesirable locked up in prison indefinitely on evidence that does not meet the criminal standard of “beyond a reasonable doubt”.

    • DWBartoo says:

      As bmaz says, your last paragraph is the “bingo”!

      (And, ultimately, affecting everyone)

      Also, as you say, EOH, few discern the “shift” in direction, even, perhaps, within (perhaps, especially, within)the legal profession.

      Who will gainsay, who will protest against this “drift”?

      Tediously, at such times as these,it is not what some (for “whatever reasons”) do, it is what others do not do.

      DW

    • R.H. Green says:

      Bingo is right. And troubling is the question of how to define “dangerous”, except say as “capable of causing harm”; this could apply to virtually anyone. Add the notion that at least the standard of beyond reasonable doubt applies to actions already done, not merely to actions of which one is capable of doing, maybe, if inclined.

      • earlofhuntingdon says:

        As EW’s hypothetical “Search and Replace” makes clear, suspected and alleged terrorists may be first in line to benefit from the expansion of this view of the law. Imagine what Vice President Liz Cheney would do to expand the realm of the possible.

  7. Mary says:

    @7 –
    People who speed are likely to speed again.
    People who abuse drugs are likely to abuse drugs again.
    People who drink and drive are likely to drink and drive again

    People who commit torture are … um, patriots?

    It’s really disturbing and there’s a strange counterpoint with the Graham opinion they have also just released on juvniles not being able to be sentenced to life without parole, except on murder charges.
    http://www.usatoday.com/news/washington/judicial/2010-05-17-supreme-court-juvenile-sentences_N.htm

    And there seems to be a really weird analysis of what powers the facts of original legal detention confer v. an overweaning determination of power based on perceived danger without other criminal grounds for original detention.

  8. Leen says:

    “GENERAL KAGAN: I think that that’s fair, that the likelihood is that the person will stay in Federal custody until such time as a court finds that the reasons for that custody have lapsed.”

    “such time”

    • Mary says:

      OT – Jeff Kaye gets a shout out from Horton at Harper’s in this piece:
      http://harpers.org/archive/2010/05/hbc-90007061
      (about the American Psychological Association’s “Unpredictable Past”)
      linking to and pulling from Jeff’s Seminal piece here:
      http://seminal.firedoglake.com/diary/48108

      Like a modern-day Ministry of Truth, the American Psychological Association (APA) has scrubbed the webpage describing “deception scenarios” workshops that were part of a conference it conducted with the CIA and Rand Corporation on July 17-18, 2003. In addition, the APA erased the link to the page, and even all mention of its existence, from another story at its July 2003 Science Policy Insider News website that briefly described the conference.

      It’s a really good piece. I guess institutional leaders get to scrub their pasts and walk away – it’s just individual who weren’t committing criminal acts under Executive patronage that can be locked up forever.

      • Leen says:

        rename the enemy, rewrite international agreements about conduct during war, torture with the help of APA, and then scrub the trail so that you can not be held accountable by National or International laws. These thugs really did learn from the mistakes of the SS

        “shout out” for Jeff Kaye. So great when people give credit where credit is due. Always telling

  9. Peterr says:

    I don’t care whether we are discussing Elena Kagan, Ted Olsen or Ken Starr — the solicitor general of the United States is a lawyer, not a general.

    Call her SOLICITOR GENERAL KAGAN or simply MS KAGAN. Addressing a lawyer as “general” strikes me as unnecessarily feeding more than a few lawyerly egos, and simultaneously demeaning those at the DOD who have stars on their shoulders (except, of course, if you are addressing a DOD General who is also a lawyer).

    • emptywheel says:

      Hey, don’t yell at me, yell at the people who do transcripts for SCOTUS. Except, of course, they’re just using her proper address.

      I’ve been meaning to go back, btw, and see if I or the transcript managed to refer to Scalia by last name only, w/o HIS title.

      • Peterr says:

        I meant that for the transcriber. Sorry for the confusion.

        But I disagree that it is her proper address. It may be the one that those in DC who want to elevate the prestige of AGs, IGs, and SGs prefer to use, but I do not consider it proper at all.

          • earlofhuntingdon says:

            They use the same short form when referring to others, eg, the Surgeon General: General Epidemiologia. Post-9/11, it smacks too much of an expansion of executive into military authority.

            As we keep having to point out to the likes of teabuggers, whose grade school notion of the Constitution admits few rights beyond those in the 2nd Amendment, the president’s commander-in-chief powers, for example, apply only to his role as head of the federal armed services, and to state militias when seconded to and working as part of those federal forces. It does not describe his role as the civilian head of government, which is much more proscribed (except in the curious views of those like John Yoo).

  10. earlofhuntingdon says:

    If the long term, devastating effects of sexual predation is Congress and the Court’s concern, I guess that means they’ll enact a federal statute removing statutes of limitation on child rape and abuse, whether in or outside the confessional, and immediately move to reduce the incidence of rape in federal prisons. I guess that also means that Congress will reopen its investigations into Rep. Foley’s alleged misconduct and make congressional pages “hands off” for tired and overworked members.

  11. R.H. Green says:

    “The government…knows that those persons…will commit serious offenses”. “A person…will stay in custody…until …the reasons for that custody have lapsed(somewhat paraphrased)”. The reasons for this custody is the government’s knowledge about what this person is “known” to be going to do. This Casandra-like concept is so foreign that it seems impossible to even write it in a coherent sentence.

    • Nell says:

      It’s worth emphasizing and re-emphasizing here that Comstock the prisoner, the lead case in a set of cases consciously undertaken as a test, was convicted and has finished serving a sentence for possession of child pornography. Yet the federal government “knows” that he is a “sexually dangerous person”, someone who poses an actual physical threat of sexual violence to minors. And a big majority of the Supreme Court are perfectly willing to hand this judicial-system-shredding power to Congress and the central government.

  12. Mary says:

    OT – From Kagan to Condi (not that there’s a big leap there – one setting up torture programs, one adding a Kumbayah aspect to drone assassinations)

    I suppose it is better that she play music (soullessly) than torture people. If she were not a war criminal, it would be charming.

    Comment by Condi’s fomer political history professor, Professor Alan Gilbert, on her upcoming concert with Aretha Franklin.

    A good piece on Rice that is, unfortunately, making me want to ditch my Aretha collection.

    http://downwithtyranny.blogspot.com/2010/05/queen-of-no-soul-guest-post-by.html

    The consequences of these crimes will cause damage for generations of Americans. The illegal imprisonments, kidnappings, and torture that Rice authorized have become a recruitment tool for anti-U.S. militants around the world. As General David Petraeus, Republican hero and the current leader of U.S. Central Command, put it: “We end up paying a price for it, ultimately. Situations like that are non biodegradable. They don’t go away. The enemy continues to beat you with them like a stick.”

    Brigadier General Patrick Finnegan, Dean of the Academic Board at the U.S. Military Academy at West Point, agreed in last week’s New Yorker: “Torture is wrong under any circumstances,” he asserted. “The publicity surrounding Guantanamo, water-boarding and other ‘enhanced interrogation techniques’ have created far more terrorists than most people understand. For a country that professes to stand for the rule of law and individual rights, we look like the worst kind of hypocrites.”

  13. lysias says:

    What the government wants eventually to be able to do to everybody, it starts off doing to pariah groups like child molesters, terrorists, and drug traffickers, or those that it can allege belong to one or more of those pariah groups.

    • Nell says:

      Lysias is completely correct about this. One striking example is the collection of DNA from persons arrested for any crime — something that started out as “Amber’s” or “Kimberly’s” or one of those cutesy named laws, mandating DNA collection from those convicted of sex crimes. Which quickly became those charged with sex crimes, then those arrested for sex crimes, then those arrested for anything at all — because hey, we have a nice big database to feed and therefore a federal “interest” to be served.

      • earlofhuntingdon says:

        Yup. Police in Britain do that routinely, too, regardless of the validity of the arrest or the outcome of a prosecution – even if the arrest is owing to a mistaken identity or to mistaking a cell phone for a gun (an actual case).

  14. Nell says:

    EW: to affirm the federal government’s authority to indefinitely detain sex offenders who are mentally ill

    I have to take issue with this. The decision is broader than that, and the cases involved do not all fit that fact pattern.

  15. earlofhuntingdon says:

    For those reluctant to consider how this case could lead to dire constitutional consequences in the hands of an ambitious, neo-conservative prosecutor, federal judge or president, consider this:

    Sen. Jefferson Beauregard Sessions III, currently the ranking Republican on the Senate Judiciary Committee (before whom Ms. Kagan will shortly come), was once a US Attorney in Alabama. He was refused a federal judgeship by a Republican Senate under St. Ronny, when it was disclosed that he “had called a black assistant U.S. attorney ‘boy’ and had advised him ‘be careful what you say to white folks.’”

    True, that was a few years ago, and Mr. Sessions probably doesn’t say such things in public any more. But who thinks that one of his successors in Alabama, Alice Martin, or the current Attorney General in Virginia, or George Allen (were he to recover politically from his “macaca moment”) would hesitate to stretch this interpretation to fit undesirables other than sex offenders? How about a federal or state prosecutor in an Arizona under the thumb of Governor Joe Arpaio?

  16. cmb123 says:

    You don’t have to substitute terrorist in there to be truly concerned. Just strike the words “sexually” or “sexual.” If a lower court is faced with the detention by the federal government of a person solely on the claim that the person is “dangerous,” or a “danger” to commit some future crime, what case will that judge look to? This one, of course. And will the judge really be able to distinguish the case merely on the basis that “sexual” danger is somehow a special type of danger warranting special federal powers? Not at all.

  17. DWBartoo says:

    The “list” of the “unprivileged” (or, the dis-privileged) continues to grow.

    Soon t’will be like Topsy.

    “Due process” is fast becoming an outmoded (dare I say “quaint”?) concept as it gives way, too much, to useless ritual – despite the anxious moment of security in our time./S

    Should the question not soon be asked: “Who then, now is “privileged”, and may expect the fundamental protections of the law. other than those who may manipulate that law to their own chosen ends?”

    DW

  18. mui1 says:

    “Heck, Obama’s probably already sent the draft legislation to Lindsey Graham for his approval…”
    And there’s a cc for Lieberman as well. Add “enemy belligerents act” “bipartisan” effort (involving 25% Joe and Lindsey Graham), Holder & “modernizing Miranda, and spiffy new military tribunals/conviction machines, plus oh so complicit silence/inaction on AZ neonazi law and this is like a nightmare.

  19. whattheincorporated says:

    I don’t know your rules on linking to youtube…

    http://www.youtube.com/watch?v=MA-xER60VFA

    But if they can declare an autistic kid a terrorist and put him under a tribunal, then they can make any arbitrary declaration of who has to be indefinately imprisoned with no recourse to the accused.

    We’ve built a bridge to the dark ages, get enough people to scream witch at an old lady, get her burnt at the stake, a year later half the village is on the gallows.

  20. GrahamFirchlis says:

    I don’t think this ruling means what you say it does. The court was very careful to circumscribe the scope, and invited a challenge based on due process.

    The problem of what to do about sexual predators is certainly serious. While this approach as written is a cobbled-together mishmash of options and uncertainties and does not in my mind meet minimal due process standards, the ability of Congress to approach the problem by these means in general isn’t such a huge stretch of federal power. This isn’t a rewriting of the Constitution or an abrogation. Rather, it is a reinterpretation of meaning in the light of modern knowledge and experience. While mental health incarcerations have been abused, they can also serve a useful and beneficial function for both the ill specifically and society as a whole when judiciously implemented. Narrowly applied as they are in this circumstance, Neccessary and Proper are indeed a good fit.

    Transferring the arguments from sexual predators to terrorists by word substitution is a bit of silliness. One could play that game with any text and twist the meaning. The statements by Kagan and the justices as well as the ruling have to be taken in their entirety, fully in context, to have any meaningful discussion. If anything, this ruling in its final paragraph emphasises the interest of the court in ensuring that due process be respected for indefinite incarceration of anyone for anything; that would include terrorists as well as sexual predators.

    I think the majority here are to be commended for trying to find a reasonable basis for dealing with a difficult issue. Certainly, if I ever find myself agreeing with Scalia and Thomas in opposition to the rest of the Court on any subject it may be time to consider committment to a mental health facility for indefinite detention.

    • whattheincorporated says:

      He’s getting a life sentence for looking at pictures.

      If they get carte blanche to keep him until the sun goes nova they will.

      They’ll be too afraid of letting people out on 5 or 10 year sentances because then their political opponents will run ads about how xxx and x allowed prisoner y to go free even though psychologists said he would offend again, you don’t feel safe now do you? Protect the children! Protect the children!

      The thought of roving bands of torch wielding soccer moms scares them to death.

      The thing that’s most perverse about the way we treat crimes is that if a man murders a man in cold blood he can get 20 or so years.

      If he rapes he’ll get less, but if it’s a kid he might get more.

      But they’re mixing the act with a depiction of the act and giving both equal punishment.

      It might have the effect of making the pedo become nihilistic and have a firefight with police rather than surrender peacefully if he’s going to jail for a hundred years.

      I know that act is a serious crime, but the sentence for it might become longer than taking a persons life. That’s going way out of scale. Is there a tracking list for every person convicted of murder and manslaughter?

      I’d be more concerned about protecting myself from THEM.

      • GrahamFirchlis says:

        Indeed, many things are wrong. Using that as justification for blocking anything new just grinds it all to a halt, not an acceptable position for all the reasons you describe. Claiming that sentences should never be long because criminals will resist capture is plain silly; would we be better just giving everyone a slap on the wrist because then they’d turn themselves in and plead guilty, and we’d save time and money? Make the punishment light enough, we probably wouldn’t need cops or jails.

        I don’t have the specifics of the trial and associated investigation in front of me for that particular individual. Do you? If so, please provide a link. Looking at pictures also means possession, so let’s don’t minimize the charge; he wasn’t looking at them at a friend’s house. What else he might have been up to but there wasn’t sufficient evidence to charge him, how exactly horrible those pictures were, what he’s said while in prison and in treatment, how he performed on his pre-release evaluation, all of that could bear heavily on whether or not he constitutes a continued threat.

        The process needs to be tightened up, for sure, but the aim is reasonable so long as basic due process is followed. There are some very sick people running around; once we’ve got them, we need to be very careful about turning them loose. Of course if they don’t worry you, maybe on release they can bunk at your place, play with your kids.

        Regards fear of murderers, the vast majority of killings are committed by friends and family. If you are going to be murdered, odds are high you already know your killer. No need for a federal tracking program, just watch your back.

        • bmaz says:

          Your understanding and descriptions of the nature of sex offenders and the process at play here is thin. One of the real issues is, in fact, due process. As what is sought is de facto criminal imprisonment how is it due process not to be afforded criminal protections in the process? Secondly, if you are going to argue that the person is mentally ill and therefore must be incarcerated because that is so, how dod you explain that said individual was previously determined to be mentally healthy enough to be tried and convicted? He was not then, but after the government’s care and custody for many years he suddenly is? Really, is that the argument? What in the world makes you think this cannot and will not be expanded into other criminal areas? This case absolutely sets the stage for exactly that. Oh, and by the way, there is already talk of expansion not just to terrorists, but to gang crimes and gang defendants. Quite frankly, I would not be quite as sanguine as you appear.

        • bmaz says:

          Oh, and a description of the case history is contained within the opinion, which is already linked in the main post.

        • whattheincorporated says:

          My issue was giving longer sentences for crimes that are serious crimes but not as serious as taking a life.

          I never said don’t punish them, but when they serve their sentence monitor them or w/e, but detaining them indefinately is a step over the line.

          Also what about men that rape men in prison? Would they get indefinate detention too?

          If you can argue indefinate detention for raping someone then the same could be said of murder. The indefinate detention would be at the mercy of a psychologist not a court of law.

          According to online sources he got 3 years for looking at CP. Yes that’s disgusting, but not something he should be thrown into the dungeon forever for.

          If he’s in prison for 2/3/5 w/e his sentance then that should be cruel and unusual punishment.

          What would be the point of judges handing out sentances if a victims relatives can just get enough people to pressure the gov or w/e to keep people who committed any crime indefinately?

          Who honestly thinks that this won’t be abused in the worst ways possible and move beyond the scope of “protect the children” to “keep us safe from terrorists” to “keep us safe from anything.”

          And what politician can argue against protecting kids from pedos or americans from qaeda, even if there’s abuse that fear will keep them from removing it.

        • earlofhuntingdon says:

          The obvious concern raised by this decision is that criminal punishment follows a conviction based on proof beyond a reasonable doubt, the civil commitments at issue here do not. They use a clear and convincing standard. While vaguely more than “more likely than not” or “50% plus one”, that level of proof remains much less than the criminal standard. Yet the penalty, continued deprivation of liberty, conceivably for life, is the equivalent of a criminal punishment.

          This Court has opened a door. It seems to lead to an unfinished stairway on an upper floor, the kind kept by Ebenezer Balfour.

          • whattheincorporated says:

            It leaves a hole in the constitution large enough to drive a blacksite torture camp through XD….wait…-_-“

    • bmaz says:

      I am not sure what you mean by “I don’t think this ruling means what you say it does”; but the only thing the post stated the decision in Comstock means is:

      SCOTUS just voted 7-2 to affirm the federal government’s authority to indefinitely detain sex offenders who are mentally ill

      Which is, of course, entirely accurate. The rest is clearly stated to be a hypothetical extrapolation. So, the question then becomes is it a reasonable extrapolation to be discussing? It most certainly is in light of the stated position of the Obama Administration and some members of Congress to create an established and sanctioned indefinite detention system without criminal conviction for many terrorist suspects. Then you add on top of that the fact, as I explained in comments to the previous post and @ 6 above in this post, the most important point which is that Comstock, especially when read together with Gonzales v. Raich, signals a disturbing vast opening of the Necessary and Proper Clause, whether in conjunction with the Due Process clause or the Commerce Clause.

      If you view Comstock as a Necessary and Proper case, which is really what it is much more than a limited sex offender case (especially since the court did not even reach the relative due process afforded the accused), then you see the overarching importance.

    • earlofhuntingdon says:

      If one hadn’t seen Congress kowtow so basely to the executive during the Shrub years, one might think the concerns expressed here were silly. Given the way in which Congress authorized one executive overreach after another, and immunized it and its private sector enablers, who profited handsomely from that overreach and related outsourcing, I do not think these concerns are either silly or baseless.

      The Court might be “inviting” litigants to bring collateral attacks against its interpretation. If so, those attacks would not reach the Court for several years, by which time, not only would Kagan likely have replaced Stevens, at least one if not two of the other liberals on this court might well have been replaced by then, too. That Court would likely be even more conservative than this one, although that does not mean the two dissenters here would be joined by at least three colleagues.

      What society chooses to do with those it deems imminently dangerous to themselves or others is certainly a thorny question. I don’t think this solution gets us very far toward deciding that question. It does open a can of worms by enlarging Congress’ power to legislate at a time when it has demonstrated a weakened ability to do so wisely.

  21. whattheincorporated says:

    And did this ruling just do something to make me think scalia isn’t a total monster?

    Or was he just too stupid to not notice that a few words different would mirror his views on gitmo.

  22. earlofhuntingdon says:

    The standard American solution to threats of all kinds – lock ’em up and throw away the key – is as useful in reducing those threats as waging multiple wars in the Middle East is useful in reducing the number of people who hate us.

  23. lysias says:

    The crime for which three out of the five respondents — including lead respondent Comstock — had pled guilty and served prison time was the possession of child pornography. Apparently, at the hearing for continued detention after their prison terms had been served, the government — according to the opinion of the court — claimed that they had engaged in sexually violent acts or child molestation, but, if the hearing magistrate had to be persuaded of this fact at all, according to the opinion of the court it would only have had to be by the standard of clear and convincing evidence. I wonder if the government had any more proof — both of the commission of such acts and of the later propensity to commit further such acts — than their guilty pleas to the child pornography possession charge.

    • bmaz says:

      Exactly, and herein lies the problem. Sentences for crimes alleged but not proved. Oh, and a non-violent and non-repetitive underlying offense to boot.

      • earlofhuntingdon says:

        Rule by fear and by expanding the number and definition of undesirables. It’s like a 1950’s Twilight Zone episode come to life.

    • mui1 says:

      & that’s sort of parallel to Gitmo. Prisoners haven’t had legitimate trials though (unless you call Spanish Inquisition style military commissions with tortured extractions and questions like “why do you read the Koran” legitimate.) The Obama administration has been sicking lawyers on habeas corpus petitions. Why?
      & now it seems, according to Greenwald post, Obama’s using “public opinion” as a “defense” for eroding civil liberties. That seems like grasping to me.
      I mean if millions of people buy Britney Spears, does that mean she’s “good”? If millions of people belive there are WMD in Iraq, does that mean there are WMD in Iraq? I am pretty sure the public is not asking for what we’re getting. Oh and Lindsey Graham think all terra suspects should be stripped of all constitutional rights, *except* for 2nd amendment. So at least all suspects will have a right to carry a gun, if nothing else.

  24. Nell says:

    Unlike Graham Firchlis, I’m willing to acknowledge the soundness of points made by Justices for whom I have very little respect and no admiration. Clarence Thomas does not deserve to be on the Supreme Court, but he is correct here [in his dissent, from the opinion link in the main post] about one of the reasons that this statute does not fall within Congress’ Necessary and Proper powers:

    … the statute’s definition of a “sexually dangerous person” contains no element relating to the subject’s crime. See §§4247(a)(5)–(6). It thus does not require a federal court to find any connection between the reasons supporting civil commitment and the enumerated power with which that person’s criminal conduct interfered. As a consequence, §4248 allows a court to civilly commit an individual without finding that he was ever charged with or convicted of a federal crime involving sexual violence. §§4248(a), (d). That possibility is not merely hypothetical: The Government concedes that nearly 20% of individuals against whom §4248 proceedings have been brought fit this description.9 Tr. of Oral Arg. 23–25.

    • bmaz says:

      Right. And just wait to see how that “20%” balloons once this door is cracked open. Governmental prosecutorial power abhors a vacuum and seeks to expand into beyond its maximum capacity immediately.

    • earlofhuntingdon says:

      §4248 allows a court to civilly commit an individual without finding that he was ever charged with or convicted of a federal crime involving sexual violence. §§4248(a), (d). That possibility is not merely hypothetical: The Government concedes that nearly 20% of individuals against whom §4248 proceedings have been brought fit this description.9 Tr. of Oral Arg. 23–25.

      As bmaz says, it is that legal door through which something wicked this way comes.

    • Mary says:

      And you also have the issue of people who may have entered pleas without the understanding that their plea would give Gov the toehold of a now existant “criminal” detention on which to bootstrap into a forever detention.

      Despite what it is going to cost me when it gets brought up later, I’ll have to say that I’ve been in agreement with Scalia more than once in my life.

      • bmaz says:

        This was one of the issues when I was involved in this argument in the late 90s here. The prosecutors and politicians cravenly advocating this system not only did not care that prior defendants were not so advised, they argued strenuously that since it was not a criminal process there would be no duty to advise future defendants.

        • earlofhuntingdon says:

          Except that the punishment is equivalent to criminal punishment.

          I should have added to my comment @72 another passion that’s on point with your observation: “three strikes” laws, the perversion of a baseball analogy to describe the practice of using the commission of any three crimes, no matter how non-violent or trivial, to justify locking up an errant neighbor and throwing away the key.

      • lysias says:

        And you also have the issue of people who may have entered pleas without the understanding that their plea would give Gov the toehold of a now existant “criminal” detention on which to bootstrap into a forever detention.

        Not only may they not have had that understanding, it may have been impossible for them to have it, because their plea antedated the passage of the law in question.

        Here in Comstock, if I understand Thomas’s dissent rightly, the law in question, 18 U.S.C. 4248, was passed in 2006. Considering the length of sentences for federal crimes like possession of child pornography, surely these respondents’ prison terms began long before that.

        • earlofhuntingdon says:

          Never underestimate Congress’ ability to overreact in an election year. The Court has just given Congress greater license to do that.

        • bmaz says:

          That is quite right; however, if I understand this correctly, there is anticipated application to state law convictions in jurisdictions that are not being “appropriately aggressive”. I think the potential pool here is far bigger than just the Fed convictions which pale in numbers to state law convictions.

          • earlofhuntingdon says:

            Yep. The beauty of a constitutional interpretation, rather than just a decision resting on federal statutes governing federal actions, is that it in the right circumstances, it can be used as the basis for state action. Beauty, of course, being in the eyes of the beholder.

            • bmaz says:

              Heh, well I tend to represent those on the opposite side of those beauty beholders, and this stuff is bad news. And it is just about exactly the evolution down the slippery slope we were predicting over ten years ago. Except that there is a lot further degradation to come per those predictions. Nobody listened to us when we were screaming about the slippery slope on the fourth amendment in the early and mid 80s either (and I came in late in that fight; it had been ongoing for a while). Well, that has panned out to have been very true too. This is how Constitutional due process dies. You can see the cancer at work before your eyes in real time.

  25. Bobster33 says:

    Where is congress?? I thought we paid their salaries to solve problems like this. It is like Alex de Toucqueville always says, sooner or later it all gets solved in a court room.

  26. earlofhuntingdon says:

    The “war” on drugs; 9/11 as a pretext for massive privatization of government; invasive domestic intelligence and foreign wars; teaching creationism as if it were science as a model to impose religious domination over government.

    The American capacity to seek safety through punishment rather than through more directly and creatively addressing underlying problems seems boundless. So, too, is its capacity to overstate problems in order to justify reactionary economic and social policies, and the ceaseless passion of some to seek refuge in extreme notions of christianity as a salve against those problems and modernity itself.

  27. lysias says:

    Yes, Thomas’s dissent refers to the use of state convictions in a footnote:

    First, the statute’s definition of a “sexually dangerous person” contains no element relating to the subject’s crime. See §§4247(a)(5)–(6). It thus does not require a federal court to find any connection between the reasons supporting civil commitment and the enumerated power with which that person’s criminal conduct interfered. As a consequence, §4248 allows a court to civilly commit an individual without finding that he was ever charged with or convicted of a federal crime involving sexual violence. §§4248(a), (d). That possibility is not merely hypothetical: The Government concedes that nearly 20% of individuals against whom §4248 proceedings have been brought fit this description.9 Tr. of Oral Arg. 23–25.

    9The statute does require the court to find that the subject “has en-gaged or attempted to engage in sexually violent conduct or child molestation,” §4247(a)(5), but that factual predicate can be established by a state conviction, or by clear and convincing evidence that the person committed a sex crime for which he was never charged.

  28. GrahamFirchlis says:

    One could write a book. Rather than take up the whole thread I refer you to my argument in full, posted before I commented here. By all means have a read, and reply as you will. I’ll check back here from time to time.

    bmaz: I say the ruling is misunderstood/misinterpreted/misrepresented because the post and comments all claim it is some great huge step down a slippery slope towards rampant authoritarianism. I do not see any of that. Rather, it is a careful, cautious, limited re-interpretation of constitutionality nowhere near as dangerous to freedom as other such rulings extending fedral constitutional power including Brown v. Board and Roe v. Wade, both of which far exceeded this one in scope and consequence. The Right made the same claims about them that you are making now, with the same tone and the same dark predictions. They were wrong, and so are you all.

    An argument based on free substitution inside a series of text excerpts ripped out of context wouldn’t pass muster in an 8th grade debate class, and proves nothing. I do not agree that it is worthy of serious discussion.

    As to what I do or do not understand about sexual predators, please don’t just drop a derogatory – enlighten me. Specifically, what do you know that you think I don’t?

    Everyone else: You are of course entitled to your dark fantasies. I do not share them. The things you see coming from this ruling are in no way supported by it. Breyer and the majority very carefully did not rule on any aspect of due process, as that was not at issue, and demonstrably invited further challenges on those grounds. IMHO such challenges would be successful, so if Congress truly wants to install a federal mechanism for holding dangerous sexual predators in custody they had better get busy and make new arrangements.

    The actions you predict, unrestricted selective indefinite detention absent any due process, is of course repugnant and I reject it categorically. In spite of repeated allegations, that is not at all what was argued or decided here nor is it what Obama has asked for regarding terrorist suspects or convicts.

    Further, speculating that Kagan would favor such actions as a Justice because she argued in support of existing law is absolutely fallacious. Should one suppose that criminal defense attorneys are supportive of criminal behavior because they advocate for criminals? She was doing her job in arguing for the law, as is the Administration for whom faithfully executing the law is an obligation by oath.

    • bmaz says:

      The court did not rule that narrow, it was the framing of the case. And for your information, this is how all expansions occur; so your rap about it never happening here is pure unadulterated bunk, this case is neither the start of the movement nor the end. Indefinite detention without proper criminal due process is exactly what is being set out here; and it is unconscionable to argue otherwise. The speculation on Kagan, at least for my part, is due to her positions outside of the SG position (such as her position on Presidential power and statements she has made to Congress previously, so your rap on that is false too. I have been involved in these arguments over sex criminals off and on for a very long time, and this is exactly what was predicted by any number of people when extended civil commitment was first brought up; you waltzing in and saying it is some ginned up fantasy is absurd and false – the actual slide down the “slippery slope” is demonstrable. What I think you do not know about the criminal prosecution, incarceration and rehabilitation of sex offenders is pretty much everything there is to know; your statements quite clearly support that conclusion. Equating this decision with Roe and Brown is a false right wing frame that is dishonest in its equation of direct constitutional framings as opposed to Necessary and Proper framings. To be honest, your entire pile of bunk is uninformed.

      • GrahamFirchlis says:

        Hot air, yet still dense.

        The court did not rule that narrow, it was the framing of the case.
        The framing was narrow, as was the ruling. Both are true.

        And for your information, this is how all expansions occur;
        For your information, to a small boy with a hammer everything looks like a nail.

        so your rap about it never happening here is pure unadulterated bunk,
        I made no such rap. Your assertion is pure unadulterated bunk.

        this case is neither the start of the movement nor the end.
        Agreed. It is incidental, at most, and IMHO not even that.

        Indefinite detention without proper criminal due process is exactly what is being set out here;
        Yet, the court flags due process as an issue yet to be addressed. If they had no concern, why flag it especially? The law itself includes a process, albeit IMHO – and apparently yours – an inadequate one. The establishment of a process is itself a process, and the law and this ruling are part of that.

        and it is unconscionable to argue otherwise.
        Or, it is unconscionable to argue that it is. We disagree. Do you really need assert that I am being “unconscionable” because I disagree with you? What part of liberal or progressive does that fall under? Or is it that epithets are all you have?

        The speculation on Kagan, at least for my part, is due to her positions outside of the SG position (such as her position on Presidential power and statements she has made to Congress previously, so your rap on that is false too.
        I read no such assertions here, by you or others, just the accusations. Perhaps if you actually laid out an argument on that basis….

        I have been involved in these arguments over sex criminals off and on for a very long time, and this is exactly what was predicted by any number of people when extended civil commitment was first brought up;
        And yet, it still is not here as predicted. The process is flawed, deeply, with too many redeemable people caught up in it while some who should be kept in custody go free, but that is the nature of a deliberative process. We need to do better. What we don’t need to do is release back into society those who are so damaged they cannot do anything but be predators. I’m sure you’ve met a few; so have I. And I doubt you’ve been involved in and around the justice system any longer than I have, so you can stuff the claim of authority by longevity.

        you waltzing in and saying it is some ginned up fantasy is absurd and false
        Waltzing? Really? How exactly does one enter into a discussion here from a dissenting viewpoint? Does one curtsy first, then arabesque obsequiously? Perhaps a set of guidelines could be put up: (1)Kiss ass (2)Tug forelock (3)Bow (4)Bow lower, and scrape (5) Kiss more ass…..

        – the actual slide down the “slippery slope” is demonstrable.
        Well, actually not in this case which is the matter under discussion. You wish to tie it to anything and everything about which you are concerned, in fantastical ways. I disagree about the connectedness and offered a coherent argument you fail to address. Nothing you assert about this case is inherently “demonstrable.”

        What I think you do not know about the criminal prosecution, incarceration and rehabilitation of sex offenders is pretty much everything there is to know;
        Hmmm. Failure to provide even one specific. I suspect that means you have none.

        your statements quite clearly support that conclusion.
        Ah, a closed argument: “You are wrong because I perceive you as being wrong.” You do have nothing.

        Equating this decision with Roe and Brown is a false right wing frame
        Nonsense. Both were intuited extensions of federal authority, much broader than this trivial expansion. Both were justified, IMHO, although many bigoted and biased citizens disagreed. Seeing them all clearly is hardly a right-wing attribute. Not a constant on the Left, either, apparently.

        that is dishonest in its equation of direct constitutional framings as opposed to Necessary and Proper framings.
        When the expansion is in a direction that fits with your pre-established political philosophy, then it is justified. When you feel threatened by an expansion, you condemn it. Fine, whatever, but that does not negate the fact that all are expansions.

        To be honest, your entire pile of bunk is uninformed.
        Odd, I feel the same way about yours.

            • bmaz says:

              With the forcefulness with which the Court held the Necessary and Proper Clause gives Congress “broad authority,” needing only a showing that a statute be “a means that is rationally related” to the implementation of an enumerated power, it is hard to see how anyone could say this is a narrow ruling. Extremely wide power is vested in Congress to enact federal crimes in furtherance of the various enumerated powers. As a result of Comstock, Congress can now not only enforce said crimes by imprisoning offenders in federal prisons, it can now also take action to guarantee the safety of those who may be affected by federal imprisonment, including those in relevant communities by indefinite detention beyond the criminal sanction. This is a ruling that is almost legally impossible not only to expand into a plethora of areas impacted by the Necessary and Proper clause in the criminal arena, but with the Commerce Clause based sister opinion in Gonzales v. Raich, is a template for far reaching issues that the Roberts Court will undoubtedly selectively apply to fit their conservative ideology.

  29. jawbone says:

    I’m old enough to remember that this nation, our governments, were highly critical of the Soviets use of mental health facilities as punishment for dissent. Bet that will be shoved down the memory hole.

  30. b2020 says:

    The modern witch trial (Monty Python meets Hannibal Lecter):

    “If it stays sane, it must be a hardened terrorist, and it can be tried. And of course, if we had tortured it, it would not be sane. If it goes insane, we cannot try it, and must detain it to protect it and us from its insanity. And the question whether we tortured is moot – no sane person has standing.”

    And if it does not keep still, it will get the hose again.

  31. timbo says:

    Driving someone crazy and then saying that they have to stay a ward of the state because the state drove them crazy. Check.

    However, gee, why can’t the victim of this system’s family decide how to keep the person out of society? Why is it the government that gets the only say in all this? Why didn’t anyone ask that in this cross examination? And who has the right to actually do a psychological evaluation of the people supposedly effected/affected, by the government’s actions?

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