A troubling expansion of federal powers
This commentary is the opinion of the author and does not necessarily reflect that of other authors at Box Turtle Bulletin.
May 18th, 2010
It is not often that I complain about a Supreme Court decision in which Justices Scalia and Thomas are the sole objectors. These men are not ones whom I consider to be the greatest defenders of civil liberties.
But one such decision was announced this week (NY Times)
In a broad endorsement of federal power, the Supreme Court on Monday ruled that Congress has the authority under the Constitution to allow the continued civil commitment of sex offenders after they have completed their criminal sentences.
The federal law at issue in the case allows the government to continue to detain prisoners who had engaged in sexually violent conduct, suffered from mental illness and would have difficulty controlling themselves. If the government is able to prove all of this to a judge by “clear and convincing” evidence — a heightened standard, but short of “beyond a reasonable doubt” — it may hold such prisoners until they are no longer dangerous or a state assumes responsibility for them.
These individuals are not being “punished” but rather incarcerated for the greater good. And I tend to view “greater good” decisions from the perspective of a member of a minority community who has been seen to be so threatening that persecution, incarceration, aversion therapy, and even lobotomies were justified by the greater good.
The hardened criminal in this case, U.S. v. Comstock, is Graydon Comstock, a threat to society who is so frightening that the Federal Government is certain that he will commit his crime again if he is not held against his will. He will repeat his heinous actions, if not stopped!
Graydon Comstock was convicted of ‘receiving child pornography’ for which he was sentenced to 37 months. And to make certain that Comstock never ever ‘receives child pornography’ again, that sentencing has been extended to indefinite at the whim of the federal government.
Civil incarceration is not without precedent. States have long held that they have the right, even the obligation, to protect their citizens from those who cannot control their own behaviors. The federal role has traditionally been to ensure that states did not exceed their constitutional bounds, a role that now seems to be unfilled.
But frankly, I am troubled by the idea of incarcerating individuals for the crime of “being”, whether it is by state or federal government. I am somewhat solaced by the limitation of the law to those who are mentally incapacitated but I still remain discontented by this decision. It seems to me to have less to do with protecting society and more to do with the justification for the expansion of powers.
And I can’t help but wonder, if Comstock had not been convicted of receiving illegal images, would his danger to society be any different? Would he be any more or any less of a public threat?
Because if he was equally a threat, why then cannot the federal government just incarcerate for any length of time any person who it deems threatening for any reason? Oh, provided of course that a judge signs off.
And if this illegal action is what makes his such a threat, why then was can the judgment of the judge and jury be so easily dismissed? They decided on 3 years, while the feds want him incarcerated for life. But why is the determination of a warden of more importance than that of a jury of one’s peers?
I want my community protected. I don’t want predators roaming the streets. And I’m not some bleeding heart who feels pity for the ‘sad circumstances’ of the beasts who prey on the weak.
I’m not even much inclined to fret about slippery slopes.
But I’m made uneasy by the idea that incarceration for a sentence of time to receive punishment for a crime committed cannot be doled out without a right to a trial, evidence, and the decision of peers, while indefinite incarceration for the vague accusation of being a “danger” can be done with nothing more than a bureaucrat’s decision and a compliant judge.