Supreme Court rules sex offenders can be held indefinitely

I'm going to have to read this opinion, but on first glance, it's up there with the worst decisions the court has ever handed down. I can't believe that Breyer wrote this.

It's tricky. No-one's going to launch an impassioned defence of sex offenders, but it throws the door wide open for all sorts of monkeying with sentences.

This is very very frightening.

Huh.

That is a weird decision, to say the least, if judged from a perspective of European law. The European Court of Human Rights (Not an EU-body, but of the Council of Europe - but ultimately all EU member states are a member of this organization as well, as are other European countries as Russia or Turkey) did pretty much argue in the complete opposite direction if I understand the original post correctly.

Here the court basically argues (and these are my humble shots at getting the point across in English), that such a measure does constitute a severe infringement of the most basic freedom, if not constituted in the ruling itself and thus being eligible for court challenges. This measures where viewed as excessive infringement and since not constituted by a proper sentence, are not compatible with the most basic human rights. But that should be self-explanatory by things like rule of law and such in my humble opinion.

I don't know that it's that tricky, really. They're given a sentence for a reason. That sentence is the punishment that we, as a society, deem appropriate for the crime. If they have served their punishment and are not set free, then we've failed to observe the rule of law. (And, frankly, I think there's probably a pretty good slavery argument to be made)

I don't see how there's any need to mince words. This is what the Gestapo did. This is what the NKVD did. This is how you operate when you're out to stifle rights. Start with the group least likely to be rallied behind.

After the last two years, does anyone seriously doubt that there is a dangerously significant percentage of the population that can be easily convinced of the urgency of this and other "useless eaters" remedies?

Well one things for sure, at least the clergy doesn't have to worry about this.

Do a forum search for Polanski, etc.

If they feel that sentences aren't adequate as they are, they need to amend those. Not create loopholes.

Whenever I see a ruling so limited in Congressional power be validated by the Necessary and Proper Clause, I immediately throw up red flags.


Thomas's dissent is right on, in my opinion, with the comparison to Morrison.

Although I don't understand how Printz plays into this. Aren't these sex offenders convicted of federal crimes and sentenced to federal prisons? Or are they state offenders?

If they are state offenders, I definitely see the Printz argument.

Since we're on the internet I feel I must say this. Fuck sex offenders. Not an 18 year old high school student getting a trouble for sleeping with a 16 year old girl but the nasty ones. Fuck them long and fuck them hard.

With that said. Fuck this too. There can be people who can overrule the judgement of the courts at will to "protect the community"? This is about as wrong as possible in a western civic democracy.

This was not a dry-run for those convicted of terrorism. These individuals may be held indefinitely, but once their prison sentence is up they're held in a civil (i.e. mental), not criminal institution. The State has to show, in front of a federal judge, that these felons present a continued threat and those committed are allowed to challenge their commitment upon request at 6 month intervals.

This isn't a big deal fellas.

And Estoppel, just because Morrison is the one case you recognized doesn't mean Thomas' analysis was spot on. Try reading the opinion in full.

His comparison to Morrison is spot on in my opinion, but after reading the total opinion I have a problem with his Printz analysis. If these offenders are being housed in federal prisons, I don't see how there's any commandeering of state agencies.

I disagree. Morrison involved the federal government creating a federal crime under the Commerce Power, too attenuated from commerce to be constitutional. Here we have felons convicted under a constitutionally valid federal crime, and as a necessary and proper means of protecting individuals from repeat commitment of that crime this statute was enacted.

The states already have similar provisions on the books for state crimes. I don't think it's unreasonable, particularly with deference to states integrated into the statute, for the federal system to be able to implement something similar.

I imagine this will be re-litigated. It seems like the question answered dealt more with Congress's ability to pass such a law.

What power does Congress have to enact this law when its supplemented with the Necessary and Proper Clause?

Congress cannot just enact laws and the Court cite the N&P Clause as reason for it to stick. What power exists for them to do this at all if its not the Commerce Clause power?

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.

Yeah, see, we totally shouldn't be worried about the fact that we know next to nothing about Kagan's views outside the fact she loves executive power. It's not like his last center-right appointee just agreed with the view that there are instances where the state's power to incarcerate is completely and totally unchecked. Oh, wait...

On a quick skim of the decision, the ruling has no bearing on whether it violates ones civil rights to be subject to indefinite civil commitment. It only addresses the gateway question of whether Congress even has the power under the necessary and proper clause to mandate civil commitment (actually it's probably way more specific and nuanced than that).

The problem is CNN reports "Supreme Court: Sex offenders can be held indefinitely" which at this point is technically accurate but is grossly misleading.

The case will be re-litigated on Equal protection, due process, cruel and unusual punishment and every other civil right amendment out there.

Ok, imagine for a moment the statute was something like: It shall be a felony to be found in possession or distribution of child pornography that has moved in interstate commerce. The statute isn't that, but imagine it is. Under Lopez and Raich, this is constitutional. The Necessary and Proper Clause grants Congress the authority to enact such laws, but apart from that also grants Congress the authority to enact laws pursuant to the federal government's interest in regulating its own prisoners and prison system.

There are federal crimes, federal prisoners and a federal prison system. The Necessary and Proper Clause grants Congress the authority to decide what to do with these persons and institutions (constrained, of course, by other constitutional provisions).

dude, you have no fucking idea what you're talking about.

The Court in Raich ruled that the marijuana growth and use was economic in nature. Morrison stated that any activity not economic in nature cannot be aggregated to satisfy the substantial effect on interstate commerce.

The Violence Against Women Act and this act seem to me the most proper comparison than the Controlled Substance Act in Raich.

Your example would satisfy Lopez and Raich, but only because child pornography is a material that could be sold through interstate commerce. It has some sort of element that can be bartered for. I don't see how that example would be similar to keeping individuals in civil confinement past their sentence.

Jcassady is right, in my opinion, although I am really hesitant to fully support N&P Clause arguments because of their potential misuse by Congress.

It's just an odd, odd day when the two most batshit crazy members of the current court are the only people who realize what a bad move this is and the third most batshit crazy guy is the only member of the majority who gives grudging and critical support.

If the federal government can have final say on whether or not someone is released, why even bother with sentencing? At this rate, the sentence is just a suggestion pending review.

The civil aspect of the detention actually even makes this worse. A large number of advocates of the mentally ill and disabled argue that it is, in fact, more humane to give mentally ill patients regular prison sentences over commitment. Why? Commitment is a potentially unending engagement.

While many worry that people will "game the system" and get committed to a civil institution by acting crazy and then dropping the act, the reality of commitment is much more horrifying. Whether or not you are ever allowed to leave the institution is entirely up to an overworked staff that spends--maybe--15 minutes exclusively with the patient a week. That may lead to a patient being released prematurely, but more often than not it leads to patients languishing in commitment for many more years than they would if they were just convicted of the crime and served their sentences in the criminal system.

You're not paying attention to what I'm saying.

Assume that the felony statute is already constitutional, which in this instance there doesn't seem to be any debate about (though I admittedly don't know the exact language of the statute that makes these acts a federal crime).

So now, you have individuals constitutionally convicted of a federal crime. Ok? Congress has, under the Necessary and Proper Clause, apart from Commerce Clause considerations which are now beside the point, the authority to determine how to process, release and commit those who have been convicted. Part of the point of the Necessary and Proper Clause is to grant the federal government the authority to complement its already constitutionally valid laws with policies that ensure that those laws are effectively carried out.

I repeat, you have no idea what you are talking about and you continue to betray your own ignorance with this digression.

The conservative, strict constructionist judges don't like anything approaching a broad interpretation of the Necessary and Proper Clause, it has nothing to do with indefinite detention. Also, the whole "why bother to have sentencing"... again, at least read the opinion to understand what the law actually says.

It seems to say that, if the state doesn't take responsibility for the person in question, that the federal government can lock that person up until they either do or the prisoner is no longer a threat. If the state does take responsibility for the inmate, the inmate is put into a potentially indefinite civil commitment.

How is the former case not a case of indefinite detention?

I would be for this in a perfect world since child molesters essentially can't be cured, but it seems dangerously broad.

Let me elaborate on my first point. Scalia's and Thomas' opinions have to do with the federal government, not this indefinite commitment.

Now, what the statute says is that once the felon's prison term is up, the AG can make a recommendation that he be committed. If the AG does so, they go to court for this civil commitment. If, in court, it is shown by a preponderance of the evidence that the felon is a continued threat, the AG must then take all reasonable means to transfer the felon into state custody to be committed. If the state doesn't want to put the felon in a state facility, the felon goes to a federal institution (in neither case is the felon remaining in prison).

The fact is, states apparently already have similar laws for certain state crimes, that's why the law was challenged on the constitutional grounds it was challenged on rather than others. Because this is a federal civil trial, I could see there being a 7th Amendment challenge, but I don't know enough to espouse more than conjecture.

Can I get a dumbed down definition of Neccesary and Proper, please? Keep in mind that I am Canadian and a sound engineer. Words less than three syllables would be helpful.

Yes, rather, the felon is entering a system more illiberal than prison after already serving his sentence in prison for the crime for which he was convicted. I don't see how that's not grossly unjust and unfair.

Maybe it is, but that's not what this case was about. The Court only rules on the arguments presented to it.

Which is why, weirdly, so very weirdly, I think Scalia's argument against the majority opinion is reasonable: ETA: I just noticed the dissent is actually written by Thomas with Scalia agreeing, rather than vice versa, which makes this weirder for me.

So our federal government is, supposedly, one of enumerated powers. That is, it only has the power to do the things designated to it by the language of the Constitution. These powers are laid out in Article I. Sec. 8 which lists them. At the very end of the list is one final item which states that the federal government has the 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." (this is known as the Necessary and Proper Clause)

So, one of the "foregoing" powers is the power to establish a post office. The Necessary and Proper Clause implicitly grants Congress the authority to, say, purchase a fleet of trucks to carry the mail, or hire people to build post offices around the country. These acts aren't explicitly in the enumerated powers, but are necessary and proper in order to carry out that power to establish a post office. The Necessary and Proper Clause kind of spells out the obvious, you can't very well give the government the power to do certain things without also giving it the authority to ensure that they are effectively carried out.

Actually it was Thomas who wrote that (Scalia just concurs in the dissent). ETA: you noticed, sorry. You cherry picked a sentence that can be misunderstood out of context. Again, his beef is with the interpretation of the Necessary and Proper Clause, not with the nature of the commitment. There may be very good constitutional arguments against such commitment on other grounds, but those are not being argued here.

Yes, they're taking issue with the grounds on which such commitments are based. I don't see why that's not, weirdly, more liberal--as in liberty-loving--and progressive than the majority opinion. Agreeing with this interpretation of Congressional power seems to pave the way for all sorts of sins against civil liberty.

And I'm saying it's not even constitutional via the Commerce Clause power. There's no Necessary and Proper Clause analysis needed because it CAN'T (fixed) get to there without being established under one of the powers.

Morrison stands as law here. There can be no aggregation of non-economic activity.

I'd like an argument on how this is economic activity, because at that point I'd sign off on the Commerce Clause, and thus N&P.

In a sense it is more liberal, but only in the libertarian, small government sense. If a state statute with a similar provision were brought before the Court on other constitutional grounds (like cruel and unusual punishment or something), you had better believe that those two justices would be the most likely to defend it.

What is it that you're saying is not constitutional via the Commerce Clause power? Is it the statute making whatever it was a federal crime? In which case that was not argued before the court, and probably for good reason (since Congress has gotten pretty good at drafting federal crimes to comport with Morrison and Lopez).

Or is it the provision allowing for commitment? In which case, like I already explained, Commerce Clause analysis and Morrison are irrelevant.

Ah...well doesn't that just make a load of sense. I assume because of the vague wording that it gets argued a lot?

The Constitution is a perfect document and completely clear! Take your "vague" back to Canada, ya hoser.

I just recite Pesci's speech from With Honors whenever a situation like this over the Constitutionality of a particular issue arises.

Dog's ass finds nut.