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Sex offenders behind bars: How long?

Using the civil commitment process to lengthen a criminal sentence is dishonest and dangerous.

January 18, 2010

When we learned that the Supreme Court was reviewing a law that allows the federal government to confine prisoners indefinitely even after they have completed their prison sentences, we naturally assumed that the legal issue involved due process for the prisoner.

Unfortunately, that wasn't the case last week when the court heard arguments over the constitutionality of the indefinite detention of "sexually dangerous" prisoners. The justices' questions mostly focused on whether Washington, as opposed to the states, has the authority to do so -- not whether indefinite detention is allowable.

That issue of federalism isn't unimportant, but the more pressing question is whether civil commitment for a mental condition is being misused to force felons to remain in prison after they've completed their legal sentences.

The court gave states that power in 1997 when it ruled 5 to 4 that Kansas had properly committed a sex offender who was about to be released. The state had enacted a law allowing for the confinement in a state hospital of "any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence." As Justice Stephen G. Breyer noted in his dissent, the commitment in that case "was not simply an effort to commit [the prisoner] civilly, but rather an effort to inflict further punishment upon him." The same abuse of civil commitment is possible under the federal statute being challenged on federalism grounds.

Given the conventional (though disputed) consensus that all sex offenders are incorrigible, it's not surprising that officials would try to use the civil commitment process to dispense with the protections of criminal law. To convict a defendant of rape or child molestation, prosecutors must prove their case beyond a reasonable doubt. Under the law being reviewed by the Supreme Court, the government merely needed to show "clear and convincing evidence" of an inmate's dangerousness.

The federal government and the states have rightly adopted a harder line against sex offenses, and have in some cases subjected offenders -- even those who have served their sentences -- to registration and monitoring. But using the civil commitment process to lengthen a criminal sentence is dishonest and dangerous. If the court were to strike down this section of the 2006 law, both Washington and the states might take a new look at this problem and better balance constitutional rights and public safety.

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