More hysteria

In United States v. Comstock, No. 08-1224, the U. S. Supremes  recently held that the federal government properly has power under the “Necessary and Proper Clause” to enact a civil commitment statute for “mentally ill, sexually dangerous” federal prisoners, maintaining them in custody beyond the expiration of their criminal sentence. This is not good.

The civil commitment statute, 18 U.S.C. § 4248, requires a federal prisoner who has been convicted of a sex crime to remain in federal custody even after the prison sentence expires if the prisoner is deemed to be sexually dangerous to others. This means that a sex offender can potentially remain in federal custody for the rest of his or her life, even if they finished the prison term that was sentenced.

In Comstock, five respondents challenged the U.S. Department of Justice’s efforts to civilly commit them to federal custody. The respondents prison term was about to end and they were about to be released. The government wanted to keep them in custody pursuant to the civil commitment statute.

Civil commitment is even harsher because the prisoners can be deemed sexually dangerous to others for any reason. The reasons do not have to relate to the federal crime that the prisoner committed. The government need only prove these claims by “clear and convincing evidence.”

If this stuff upsets you, join the club.  It’s not often that defense lawyers side with the likes of Scalia and Thomas.  Hysteria creates bad law.  This is one more legal tool for the lynch mob forming against people convicted of any sex crime.

Forget reasonable doubt.  Forget “do the crime, do your time.”  They’re not targeting gang bangers, robbers, drug dealers, murderers, and corporate polluters.  They cite the recidivism rate for sex offenders which is only slightly higher than for other crimes.  This is legislative and judicial vigilantism.

Defense lawyers in mitigation have traditionally put their clients in sex rehab programs/ therapy/Group therapy/ SLAA/etcetera with their eye on getting help for their clients that need it.  The natural byproduct of this strategy is the creation of reports outlining sexual issues.  These reports can now be turned against the client to document and support the government’s attempt at civil commitment.

The natural reaction now of most defense lawyers is to draw back from this strategy: so as not to enable the government to have more ammunition if they choose to file a civil commitment.