Whether sex offenders can be detained even after they have completed their sentences is an important question that pits individual rights against public safety. But when the Supreme Court ruled last week on a federal law allowing such confinement, it didn't address that basic issue. It should do so in a future case.
The court's decision involved appeals by four convicted sex offenders and one defendant who was declared mentally unfit to stand trial. They originally argued that they had been denied due process because the government only proved that they were dangerous by "clear and convincing evidence," as compared to the higher standard in criminal cases of proof beyond a reasonable doubt. The court, in its decision, focused only on the issue of whether Congress could exercise powers not specifically enumerated in the Constitution.
In his majority opinion, Justice Stephen G. Breyer noted that the court failed to address the issue of whether the statute violated prisoners' constitutional rights by requiring that they be held indefinitely even after they had served their criminal sentences. That suggests that the court might revisit a 1997 decision in which it upheld a Kansas law similar to the federal statute. Breyer dissented from that ruling, complaining that the commitment in that case "was not simply an effort to commit [the prisoner] civilly but rather an effort to inflict further punishment on him."
Such laws are not uncommon. With encouragement from the federal government, many states have established civil procedures to commit sex offenders to mental institutions after they finish their criminal sentences. In California, about 800 convicted sex offenders have been civilly committed. No doubt some offenders satisfy the requirements for commitment — a dangerous mental illness that ideally is susceptible to treatment — but we suspect that others do not.
For good reason, sex offenders, especially those who abuse children, are among the most reviled of criminals. In recent years, there has been a welcome recognition that at least some such offenders are incorrigible, a realization that has inspired an array of laws, some better conceived than others, to monitor their movements after they are released.
There is also a place for civil commitment of sex offenders who are proven to be both dangerous and resistant to rehabilitation. But there is a strong temptation to use the civil commitment process as a backdoor way of prolonging a criminal sentence. The Supreme Court should accept an appropriate case to address the question left hanging by last week's decision — whether extending the confinement of a convicted sex offender should require the same level of proof as convicting him in the first place. The answer to that question should be yes.