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.

Timothy Kincaid

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.


May 18th, 2010

Agreed. This was a terrible decision and it just proves that neither side of the political spectrum is above rewriting the Constitution to suit their biases, in this case the bias of deferring to state in criminal justice situations.

Whenever someone on the left or right squawks about “judicial activism” I just point them to decisions like this and Kelo. None of the current judges has any sort of principles. Thomas is the closest, but he got Lawrence v. Texas wrong.


May 18th, 2010

It seems to me, just offhand, that this is a whole new class of offense for this sort of thing. Am I wrong?

I mean, I can understand (but not readily support) unease on the part of therapists who believe that some convicted sexual offenders are not, at the end of their sentences, safe to release into society and thus ought to be kept in confinement, or something closely approaching it. (I think there was a question like that in Washington State.)

And I don’t downplay the damage done to children by the creation of child porn.

But to confine a person beyond his sentence for THIS crime because he might again try to get porn seems 1) to add unwarranted and unadjudicated gravity to the original offense, and 2) to discard the findings of a judge and jury in the original matter.

The opinions of mental health professionals are bought and sold as it is (see Rekers), and this just opens another a whole new–and very elastic–category for that, it seems to me.

John in the Bay Area

May 18th, 2010

We as a society are becoming much more clear that sexual predators are never going to be safe and that the only appropriate thing to do is lock them up so that they won’t have access to further victims.

This thinking is reflected in the far harsher criminal penalties that sex offenders recieve today than in the last few decades.

While I think it is more than appropriate to sentence many sex offenders to life without the possibility of parole, I think that this sort of ruling is an example of going back, after the fact, to give someone a longer (or indefinite) sentence that wasn’t available to prosecutors and the courts at the time of the sentencing. I fail to see how this isn’t just another variation of double jeopardy that doesn’t even involve a trial.


May 19th, 2010

I propose having a small settlement in the woods somewhere. Child molesters and whatnot have to volunteer to live there. Ankle bracelets, real jobs, and no children permitted in under any circumstances.

Ben in Oakland

May 19th, 2010

Amazing to me that the two worst justices were right in this decision and in kelo.


May 19th, 2010

I was dumbfounded by this decision. Couldn’t agree with this post more.


May 19th, 2010

If the government can lock someone up indefinitely without due process, then then government can do anything without limitations and our Bill of Rights is meaningless.


May 19th, 2010

One should also realize that there is a whole class of people who financially benefit by this perpetual incarceration—and some of them are the very people who make the decision to keep people past their sentences. There are “psychologists” who are paid very high sums of money to regularly talk to these people on behalf of the state, and they keep seeing the same person over and over at these high prices, but only if the person remains incarcerated. If they release them the money for that “client” stops. An expose in California showed these people make vast sums of money, spend a couple of minutes with someone and then routinely deny them their rights.

In this case no one’s rights were violated and as for him being a menace by acting out on his feelings, we don’t know what his feelings are, it is easy to received unwittingly this sort of material. But, as Judge Posner in his book Sex and Reason pointed out, pornography acts as a substitute for acting out. So possession may well make individuals less likely to act out.

And consider this slippery slope, if if not inclined to do so. When the punishment for porn is the same as that of acting out (life in prison) then the offender may as well act out. His satisfaction would be higher and his costs exactly the same. But worse yet, the typical sentence for murder is life, so not only is he encouraged to act out (greater satisfaction at no additional cost) he can reduce his likelihood of being caught by murdering the evidence and in most states there is no additional penalty.

We have basically made possession equal to acting out, equal to murder. With acting out more satisfaction than with porn and if acting out then disposing of the troublesome evidence (the child) is encouraged because the sentence for doing so is no worse than for not doing so and the child won’t be there to tattle.

Timothy Kincaid

May 19th, 2010


good point.

John Gardner, who raped and murdered two teenage girls in Southern California, faces the same incarceration expectations as the guy who “received child pornography”.

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