Sunday, February 7, 2010

Long arm of the law too long?

Youngstown Vindicator
Sunday, February 7, 2010

Pennsylvania currently has eight men locked-up who have served their complete sentence for a crime committed years ago. These men are sex offenders. They are sexually violent predators, as determined by a civil court, and are being detained indefinitely.

Pennsylvania is one of 20 states that provide for the civil commitment of sexually dangerous offenders. There are more than 3,600 men, and some women, committed or detained across the country. Ohio does not have a civil commitment statute for sex offenders.

Civil commitment is not new. The procedure has been used for decades with regard to the mentally ill and those with highly contagious diseases. More recently it has been applied to sex offenders with a diagnosable mental abnormality and a likelihood to re-offend.

In 1997, the U.S. Supreme Court found that civil commitments were an appropriate state action. In Kansas v. Hendricks, the high court upheld the Kansas Sexually Violent Predator Act. The court found that the statute violated neither the double jeopardy clause, punishing an offender for the same crime twice, or ex post facto, punishment through a law applied retroactively.

In 2006, the federal government got into the civil commitment business. Congress passed the Adam Walsh Child Protection and Safety Act, which gave the federal government authority to seek civil commitment of “sexually dangerous persons” already held in its custody. That authority, in turn, allowed the government to seek to have individuals who are either completing federal prison sentences, or incompetent to stand trial, remain in federal custody indefinitely as a result of their “sexually dangerous” status.

Clear evidence

To secure the continued detention of an individual completing his sentence, the government must demonstrate by clear and convincing evidence that the individual “is a sexually dangerous person.” If the federal government can prove that, the individual is committed without a specific period of detention, possibly for life.

Last month, the U.S. Supreme Court heard arguments on a challenge to the federal government’s authority to impose civil commitments. In U.S. v. Comstock, the high court must decide if the federal government usurped the power of the states through the Adam Walsh Act. Graydon Comstock was sentenced to three years in prison for possession of child pornography. Just days before the end of his sentence he was designated “sexually dangerous,” was civilly committed, and has been kept in a North Carolina institution for the last two years along with 105 other similarly situated men.

There are some striking differences in the Kansas statute and the federal statute. First, in Kansas an offender is entitled to a jury trial, a federal detainee is not. In Kansas, the state must prove the mental abnormality beyond a reasonable doubt. In federal court the burden of proof is a less stringent — clear and convincing evidence.

According to the Washington Post, a majority of the court seemed inclined to side with the government during the Comstock argument. Justice Ruth Bader Ginsburg said, “You are talking about endangering the health and safety of people. The government has some responsibility.”

A greater concern may be how far does the concept of protecting the health and safety of the public reach?

The state of Virginia uses risk assessment to determine the duration of sentences. The City of Philadelphia uses risk assessment to determine appropriate supervision of probationers. Couple a high risk for violent re-offending with a mental abnormality and could the civil commitment of extremely violent predators be far off?

Stephen McCallister, the Kansas solicitor general does not think it implausible. He told NPR, “Constitutionally, it might be possible,” to extend the rationale for civil commitment to other kinds of crimes. “I don’t have a constitutionally limiting line for what kinds of mental disorders might be permissible and what [might] not. If they lead to danger to others, potentially, they could be covered under such a law.”

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