Indefinite Detention: “Good”, “Bad” or “It Depends”?

[Welcome FDL/Emptywheel readers! Please feel free to comment here or back at Marcy’s place. Either way, I’ll be around. GF]

[Update: Apparently I’m not the only one unimpressed with the supposedly dire consequences. Publius has observations.

The Supreme Court of the United States has just decided a case in which it overruled the determinations of both Federal District and Appeals courts regarding the right of Congress to authorize indefinite civil commitment of those convicted of sex-related crimes after their criminal sentences have been completed.

Quite a number of people of good intent have decried this decision, suggesting that the Court is at once unreasonably extending Federal jurisdiction while opening the door to indefinite detention of just about anyone, with special emphasis of concern about doing so to accused terrorists. While the concerns are surely well-intentioned, the interpretation of the court’s ruling is inaccurate.

What is important here, though, is what the court clearly states it has not decided and that is not being discussed at all.

A little background. In 2006 a law was enacted called the “Adam Walsh Child Protection and Safety Act.”

Among the provisions was one authorizing federal detention of prisoners convicted of sexual crimes beyond the duration of their criminal sentence, or in lieu of a criminal sentence for of some accused of sexual crimes who are determined to mentally unfit for trial. The term of such civil commitment is indefinite.

‘‘§ 4248. Civil commitment of a sexually dangerous person
‘‘(a) INSTITUTION OF PROCEEDINGS.—In relation to a person who is in the custody of the Bureau of Prisons, or who has been committed to the custody of the Attorney General pursuant to section 4241(d), or against whom all criminal charges have been dismissed solely for reasons relating to the mental condition of the person, the Attorney General or any individual authorized by the Attorney General or the Director of the Bureau of Prisons may certify that the person is a sexually dangerous person, and transmit the certificate to the clerk of the court for the district in which the person is confined. The clerk shall send a copy of the certificate to the person, and to the attorney for the Government, and, if the person was committed pursuant to section 4241(d), to the clerk of the court that ordered the commitment. The court shall order a hearing to determine whether the person is a sexually dangerous person. A certificate filed under this subsection shall stay the release of the person pending completion of procedures contained in this section.
‘‘(b) PSYCHIATRIC OR PSYCHOLOGICAL EXAMINATION AND REPORT. — Prior to the date of the hearing, the court may order that a psychiatric or psychological examination of the defendant be conducted, and that a psychiatric or psychological report be filed with the court, pursuant to the provisions of section 4247(b) and (c).
‘‘(c) HEARING. — The hearing shall be conducted pursuant to the provisions of section 4247(d).
‘‘(d) DETERMINATION AND DISPOSITION. — If, after the hearing, the court finds by clear and convincing evidence that the person is a sexually dangerous person, the court shall commit the person to the custody of the Attorney General. The Attorney General shall release the person to the appropriate official of the State in which the person is domiciled or was tried if such State will assume responsibility for his custody, care, and treatment. The Attorney General shall make all reasonable efforts to cause such a State to assume such responsibility. If, notwithstanding such efforts, neither such State will assume such responsibility, the Attorney General shall place the person for treatment in a suitable facility, until —
‘‘(1) such a State will assume such responsibility; or (2) the person’s condition is such that he is no longer sexually dangerous to others, or will not be sexually dangerous to others if released under a prescribed regimen of medical, psychiatric, or psychological care or treatment; whichever is earlier.

[Section 302 beginning on Page 33 of the referenced document]

Prior to this Act, such civil commitments were allowed by states but not by the federal government.

The case before the court was brought by several persons who have been subject to such commitment hearings and are being held against their will in mental health facilities beyond completion of their sentence or, in one case, after being found incompetent to stand trial. They asked that their commitments under this law be invalidated, based on an assertion that Congress did not have the constitutional authority to enact such a law.

Digby expresses concern that this ruling and the law it addresses are indeed some sort of camel’s nose under the tent of constitutionality:

I’ve been thinking for a long time that in light of Americans’ eagerness to set aside due process for terrorist suspects and sex offenders that the list of crimes with which the constitution is not considered adequate to deal will likely expand. It’s too illogical, even for us, to say that the failed Times Square bombing is more dangerous than a crime spree serial killer or a murderous drug gang.

It makes no sense that the constitution would give those individuals rights under the constitution but not give them to sex offenders and failed terrorists. Something will have to give. It seems almost inevitable in our current climate and with this current court that more crimes are going to be designated outside the normal constitutional order in order to justify the ones that already are.

She cites a post by Marcy Wheeler, who presents an exercise wherein she substitutes “terrorist” for “sexually dangerous person” and “enemy combatant designation” for “criminal conviction” in the text of an excerpt from Solicitor Genera Ellen Kagan’s argument last January before SCOTUS in support of the law:

[L]et’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.”

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;
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.
CHIEF JUSTICE ROBERTS: So you would say that the Federal Government has no such power independent of the criminal conviction [enemy combatant designation]? In other words, that Congress could not pass a law saying, just as this one says, we are going to commit people who are sexually dangerous [terrorists] until a determination that they are not or until the [another] State can take them? That power would not be in Article I?
GENERAL KAGAN: Without the person having entered the criminal justice system [been designated an enemy combatant] in any way.

Wheeler speculates that based on her substitutions this ruling paves the way for indefinite detention for accused terrorists, including those who are now considered mentally ill as a result of treatment – including torture – during their confinement:

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.

That is quite a series of leaps, and in my opinion it does not prove anything besides the fact that by freely substituting one set of words for another you can twist anyone’s statement to mean anything you want it to mean. Regardless of the seriousness of an issue people should responsibly deal with the actual words employed, within the context that they were used, and not willy-nilly substitute whatever words they please to try and effect a pre-determined demonstration. That approach isn’t worthy of respectful discussion, and I won’t give it one. The “conclusions” reached in such a manner must be rejected out of hand.

The errors in conclusion made by Wheeler and by Digby are based on an even greater misrepresentation made by Adam B in his analysis of the ruling and cited by Wheeler:

SCOTUS: Congress Can Lock Up Sexually Dangerous Persons
In a 7-2 decision today authored by Justice Breyer, the Supreme Court of the United States held that this statute was a proper exercise of Congressional power under the Necessary and Proper Clause. [The Court assumed for sake of argument that Due Process was satisfied.]

But the ruling does nothing of the sort.

(Never mind the “Congress can lock up” non sequitur. It isn’t Congress that does the locking up, but the criminal justice system acting with authority given by Congress. This is not a trivial distinction, and someone opining on matters of constitutional law ought to know better.)

What this ruling holds is simply that Congress has the constitutional authority to enact a law so empowering the federal criminal justice system. This is not some bold new ground, but rather a straightforward and minimal extension of established law. The argument that this action treads on states’ rights and exceeds the constitutional limits of federal authority has already been dealt with, long ago, as referenced in the majority opinion.

What the ruling does not address is the constitutionality of the processes employed to effect the extended incarceration, and in fact the Court through Breyer’s opinion expressly invites the plaintiffs to re-file their claims under such assertions:

The Court does not reach or decide any claim that the statute or its application denies equal protection, procedural or substantive due process, or any other constitutional rights. Respondents are free to pursue those claims on remand, and any others they have preserved.

It is important to read these things all the way through before trying to interpret their meaning. This sort of statement, functionally an addendum that unnecessarily clarifies the ruling’s scope, almost always is intended to either invite further litigation so the court can address a perceived inequity that has not been brought before it, or to stake out very clearly that this ruling cannot be cited as precedent for any other similar question. In this case, I believe is serves both purposes.

In the matter at hand, the phrasing in the covered law could be challenged of at least two constitutional grounds. First, the law authorizes detention prior to a hearing when no crime has been committed. While it certainly makes sense to keep a dangerous predator in custody, should the evaluation and determination not be made prior to the date of release from the criminal conviction? Is it constitutional to continue incarceration based solely on allegations about something that may or may not occur in the future? Also, the law calls for the adjudicating court to determine that a convict would constitute a continuing danger based on “clear and convincing evidence”, a standard that falls well short of “beyond a reasonable doubt.” Is “clear and convincing” a sufficiently high standard by which to deprive someone of their freedom?

Secondly, and to the points raised by Adam B and Marcy Wheeler, the court is certainly aware that it will at some point be faced again with the question of indefinite detention for terrorists and has put Congress and the Administration on notice that this case will not serve as a basis for arguing a claim in that regard and that the bar will be set very high in terms of justification. This is why the majority included generally liberal members Stevens and Ginsberg, hardly likely to take the matter of indefinite detention lightly.

In summary, this ruling is very specific and limited in scope. It contains no language that could conceivably be used to support indefinite detention of terrorists, convicted or otherwise, and the ruling is specifically constructed to keep it from being interpreted otherwise. The majority are to be commended for making it so, rather than being castigated.

For those who are unsure of the law and SCOTUS customs, there is a shortcut to understanding on which side of righteousness this ruling falls; look to see who was opposed. The day you find yourself in agreement with Scalia and Thomas is the day you should commit yourself to a mental health facility for indefinite detention.


9 responses to “Indefinite Detention: “Good”, “Bad” or “It Depends”?

  1. The Other Sarah

    Let me see if I understand this correctly. What this is is the Court saying that Congress had the right to enact this law, and that’s all they’ve discussed or decided in this case — whether or not the law Congress enacted isn’t part of their decision here?

    My preferences in the case of sexual predators would be that the initial conviction should carry a mandatory sentence of life without parole.
    This serves two purposes: it keeps the predator out of the prey population, and … in the event that someone who’s actually NOT guilty was convicted, the person is not executed wrongfully.

    I’m told that offenders found not fit to stand trial or ones committed to mental treatment often serve longer terms in custody than those not so adjudged, who still oftener get out and rape again, sometimes (but not always) escalating to murder.

  2. grahamfirchlis

    What was challenged was the right of congress to enact a law providing for indefinite mental health incarceration for sexual predators, convicted or held to be mentally incompetent to stand trial. SCOTUS says that’s OK. It isn’t really a big stretch from existing federal constitutional law.

    What wasn’t challenged, but the court invites one, is whether or not the process described is consistent with due process.

    At the same time, the court puts Congress and the Executive on notice that they will expect the nicities of due process to be observed in any attempt to incarcerate anyone, for any reason.

  3. grahamfirchlis

    The issue of how long to incarcerate sexual predators is a bit more complex; one-size-fits-all won’t work here either. A 19 year old who jumps in the sack with a 15 year old isn’t likely to be in the same category of dangerousness to the general public – or even other 15 year olds – as a serial B&E rapist, but the law in most places treats them the same.

    Likewise for someone caught staring through a window at a naked lady, whether actually a creep-around peeping Tom or just a passer-by, and for someone who inadvertently downloaded child porn as for a big-time merchandiser. They all get labled as a sexual predator and have to go through all the humiliating hoops and are subject to limitations on where they can live, and have to deal with the threat of the neighbors deciding to roust them or run them out of town.

    Ken Kesey’s One Flew Over The Cuckoo’s Nest is prescient in this regard.

    I’m not advocating letting predators of any sort out to continue to prey, but the fear-factor around this issue has gotten out of hand in a way that is very similar to drug laws and it has lead to a whole bunch of unfairness. We oughtn’t punish the merely weak as severely as we punish the truly wicked.

  4. The Other Sarah

    Well, OK. If the guy who abducted Polly Klaas had had a life sentence with no parole to start with, would that have been appropriate sentencing?

    How about this guy, who received two life sentences?

    • grahamfirchlis

      Of course.

      In the second case, from his court-appointed evaluation shrink: “Gardner received a psychological evaluation by Dr. Matthew Carroll, according to court documents. Carroll recommended the highest possible term for Gardner, saying the defendant manifested ‘significant predatory traits’ toward underage females and is a danger to the community. Additionally, Carroll said he didn’t believe sexual offender treatment would be of any value, because Gardner would not take responsibility for his actions.” An exact candidate for post-sentencing mental health confinement, but no such system is in place in California. Thanks to Reagan’s policies that have never been rescinded, we routinely put our crazies back out on the street without support or treatment options. Saves taxpayer money, dontchknow?

      In the Klaas case, her killer Richard Davis was a career criminal with a pattern of escalation including multiple rapes with violence and still he got out again and again on parole. A psych evaluation and a post-conviction mental health hold would have put him behind bars permanently

        if there had been such a system in place at the time

      , but there wasn’t.

      Apropo of my point, Davis was the Poster Boy for California’s Three Strikes law. The law as written was opposed vehemently by Polly Klass’ father, Marc, who presciently predicted it would lead to many severe punishments for relatively trivial crimes. He remains opposed to this day for the same reason, as am I. For all the good intention, it is a bad law.

      Why am I being asked about these monsters?

  5. The Other Sarah

    You’re not being asked about these monsters — I’m trying to reaffirm my impression that, badly as they’ve mucked up enforcing it, the California Courts and/or voters were trying when they put Three Strikes into operation to stop monsters like these.

    You’re being asked about a completely different sort of monster, actually, I think — the one-size-fits-all “criminal justice system” in the US…

    • grahamfirchlis

      Three Strikes is a monster in its own right, a Golem spun out of control as they always do, wreaking havoc with the weak as well as the truly wicked, and has now begun to turn back on its creators as the swelling prison population threatens to break the state financially driving early release of many violent criminals who haven’t yet made Strike Three.

      We behave as simpletons, either too little punishment for the worst offenders or too much to too many for minor crimes. The second of your examples was clearly a continuing danger, but he was released anyway because he had only the one conviction for rape of a minor. Three Strikes did nothing to stop his murdering.

  6. The Other Sarah

    Yes. I wanted to know about how Three Strikes is working, or not, in California now.

  7. grahamfirchlis

    Lots of reading available.

    Here’s a report at ten years after implementation, with plenty of solid numbers:

    Here’s a less extensive report after 15 years, suggesting not much has changed over the last five years:

    While some dangerous criminals have been confined for life when under earlier sentencing practices they might have gotten back out, we have also caught up people with fairly minor crimes such as three small-dollar B&E burgleries who are also doing life.

    The biggest impact is yet to come, although we are seeing the leading edge now. The increase of long-term inmates has put a strain on the prison system in terms of overall budget as well as overcrowding and inadequate medical care, forcing early release for some criminals including those with crimes that would qualify them eventually for Three-Strikes. That trend will continue.

    By not making the law selective enough, we have robbed Peter to pay Paul and set ourselves on a path of having a significantly increased future prison cost due to accelerating the prisoner aging curve.

    I’m all for puting away the real baddies. At the same time, we need to not be turning shoplifters and druggies into lifers and we definitely need to do a much better job of education and rehabilitating prisoners so they can try and do something decent with their lives instead simply boxing them and then dumping them back into the revolving-door system we have now.

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