Sex Offenders Held Indefinitely

[SparseCandy]

From CNN:

http://www.cnn.com/2010/CRIME/05/17/scotus.sex.offenders/index.html?hpt=T1

"(CNN) -- The U.S. Supreme Court ruled Monday the federal government has the power to keep some sex offenders behind bars indefinitely after they have served their sentences if officials determine those inmates may prove "sexually dangerous" in the future.
"The federal government, as custodian of its prisoners, has the constitutional power to act in order to protect nearby (and other) communities from the danger such prisoners may pose," Justice Stephen Breyer wrote for the 7-2 majority.

At issue was the constitutionality of federal "civil commitment" for sex offenders who are nearing the end of their confinement or who are considered too mentally incompetent to stand trial.

The main plaintiff in the case, Graydon Comstock, was certified as dangerous six days before his 37-month federal prison term for processing child pornography was to end. Comstock and the others filing suit remain confined at Butner Federal Correctional Complex near Raleigh, North Carolina.

Three other inmates who filed suit served prison terms of three to eight years for offenses ranging from child pornography to sexual abuse of a minor. Another was charged with child sex abuse but was declared mentally incompetent to face trial.

All were set to be released nearly three years ago, but government appeals have blocked their freedom. The government says about 83 people are being held under the civil commitment program.
Corrections officials and prosecutors determined the men remained a risk for further sexually deviant behavior if freed. The inmates' attorneys maintain the continued imprisonment violates their constitutional right of due process and argue Congress overstepped its power by allowing inmates to be held for certain crimes that normally would fall under the jurisdiction of state courts.

The law in question is the 2006 Adam Walsh Child Protection and Safety Act, which includes a provision allowing indefinite confinement of sex offenders. A federal appeals court in Richmond, Virginia, ruled lawmakers had overstepped their authority by passing it, prompting the current high court appeal.

"The statute is a 'necessary and proper' means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others," Breyer wrote.

Breyer equated the federal civil commitment law to Congress' long-standing authority to provide mental health care to prisoners in its custody, if they might prove dangerous, "whether sexually or otherwise."

In dissent, Justice Clarence Thomas said the federal government overstepped its bounds.

"Congress' power, however, is fixed by the Constitution," Thomas wrote. "It does not expand merely to suit the states' policy preferences, or to allow state officials to avoid difficult choices regarding the allocation of state funds." He was joined by Justice Antonin Scalia.

The case represented a victory for the federal government and the woman who argued the case on its behalf, Solicitor General Elena Kagan. President Obama nominated Kagan last week to serve on the Supreme Court.

The justices in April 2009 had blocked the imminent release of dozens of sex offenders who had served their federal sentences after the Obama administration claimed many of them remain "sexually dangerous." Chief Justice John Roberts ordered the men be kept in custody while the case worked its way to the high court.

Most violent sex offenses are handled at the state level, and at least 20 states run programs in which sexual predators are held indefinitely or until they are no longer considered dangerous. The federal government's civil commitment program is relatively new.

The Adam Walsh act was named after the son of John Walsh, host of TV's "America's Most Wanted."Adam Walsh was kidnapped and murdered by a suspected child molester in 1981.

The act also increased punishments for certain federal crimes against children and created a national registry for sex offenders. Those aspects of the bill were not being challenged in this case."

I'm not o.k. with the Federal government detaining citizens past the terms of their sentences, let alone indefinite confinement. If they are really that dangerous sentence them to life to begin with or make molesting children a capital offense and put a bullet in them. Don't allow the government to lock people up for crimes they have not yet committed.

[JJ_BPK]

I have mixed feeling on this one. I am glad they are keeping these "people" locked up. On the other hand it sets a precident that can carry over to other areas. What if you are considerd dangerous due to you political beliefs. IMHO just lock them up for life of kill them. My only problem with capitol punishment for child molesters is there is a high rate of people that are wrongfully convicted because theur step daughter wants to get rid of moms boyfriend or an ex wife wants to get revenge on the ex husband.

Agreed, My wife's cuz is going thru a divorce and after 6 months of bickering (the x wants to take the kids out of the country, permanently), she throws unfit father at him. Luckily, his lawyer had warned him to watch out and be prepared..

Aside from that, The part where they start labeling people habitual and determine that they are a liability to sociality (read current administration) with-out court overview, is worrisome..

:confused::rolleyes::mad::(

[J8127]

The Sex-Offender issue is touchy, but I don't agree with how we currently handle it. I don't think their should be a sex offender list, or requirements for them to stay away from schools or let their neighbors know of past charges, I believe the way it should work is that you get convicted, you go to jail, and once you are out you start over. Now having said that, I think that the punishments should be higher, probably involve phsycological elements, and violent offenders should be met with the death penalty. The reason I am against the lists and additional restraints is because my philosophy is that if they can not be trusted in society, they shouldn't be let out in the first place.

I agree with the statement that this could potentially set a very, very dangerous precedent.

[craigepo]

Last time I checked, the Constitution said something about rights to not have your liberty taken without due process, as well as something about the right to a jury trial.

This sounds like that Tom Cruise movie "Minority Report", where you could be imprisoned if the three psychics determined that you would commit a crime in the future.

[Dozer523]

The Supreme Court says that everyone is entitled to fair and humane punishment
except SOME people ... THOSE ones we can lock up and throw away the key. It's just THOSE ones that a doctor can say with some certainty that THAT one might, probably, maybe will do it again.
But we're talking about the scum of the Earth child molesters. That's different.

Perhaps the real problem is light sentences in the first place. what if sentences took into account 1) how long it should take for the convict to come to the conclusion that what they did was wrong and they are responsible. 2) pay for what they did to the victim and society. 3) Make personal (even physical) changes.

If 'Bad' can show that, then he/she goes to the Parole / Clemency board and a reasonable group of select community members determine if 'Bad' has earned his / her way back into society. Maybe justice and mercy can co-exists in the same legal system. Nah. . .

[Defender968]

I agree that this sets a very dangerous precedent, I personally think sex offenders should be locked up for life (depending on the offense of course), but that should be done by the force of law by changing actual sentences for offenses not simply by judicial edict. The recidivism rate for molesters is ridiculous and should be taken into account, but you must punish people for what they have done not for what they may do. If the current laws are un able to protect the public, and I think they are in this case then you change the laws you do not simply say we can hold you indefinitely.

[Ape Man]

How is this different from what the courts do to those deemed mentally ill?

If you are deemed a threat to yourself or others by a court you will be confined until a medical expert deems you cured. This has been long standing practices in this country.

That being said, I agree that congress is overstepping its authority. The question (like so many others) should have remained at the state level.

But that is a different question then whether your due process is being denied if your release date is at someone's discretion. There is already a process for letting people out early. Why is it so horrible if there is a process to keep them in longer?

To me, the due process question is "did they receive a fair trial?" Given a fair trail, I don't understand where due process comes into it.

[Utah Bob]

How is this different from what the courts do to those deemed mentally ill?

If you are deemed a threat to yourself or others by a court you will be confined until a medical expert deems you cured.
Not exactly. You don't have to be pronounced "cured" just no longer a danger. The streets are full of homeless people who have been released from mental facilities, either long term or for eval purposes, because they are "no longer a threat". This has been long standing practices in this country.

That being said, I agree that congress is overstepping its authority. The question (like so many others) should have remained at the state level.

But that is a different question then whether your due process is being denied if your release date is at someone's discretion. There is already a process for letting people out early. Why is it so horrible if there is a process to keep them in longer?

To me, the due process question is "did they receive a fair trial?" Given a fair trail, I don't understand where due process comes into it.


And the problem with the State level is that molesters are mobile. I have dealt with many who simply upon release move to another state and start again. Some states have laws that require sex offenders to register if they have been convicted in that state or in another state whose statutes mirror that state. I've dealt with more than one who escaped any legal action because the state laws under which they were convicted didn't match our state.

[Ape Man]

Utah Bob,

You are correct to point out that cured is the wrong word to use. I know better, but I was trying to make a general point without writing an overly long post.

I don't know how it is in your state, but in my state, a large portion of the mentally ill bounce around from the mental hospitals to subsidized housing and on to the street before going back to the mental hospitals again. And at least in my state, this does not happen because the powers that be lack the authority or knowledge to keep this particular sub set of the mentally ill institutionalized

Rather, the choices are made with an eye towards resources available. That is to say, when the beds are full the pressure is on the medical people to empty them and when they are empty the pressure is on to fill them (because the institutions don't get paid for empty beds). Since resources are short in the mental health field, the pressure is normally on to empty the beds, but I have seen it both ways.

But I don't mean to hijack this thread into a discussion about how the mentally ill are treated. My only point is that I would worry about how the state treats the mentally ill before I would waste time worrying about how the state treats pedophiles convected in a fair trial. (Now the treatment of people who are only alleged to be pedophiles is another story).

[Utah Bob]

This. I spent four years working in Assaults/Sex Crimes, and our unit was responsible for registering and tracking convicted sex offenders in our community. I had to listen to their drivel on a daily basis. These aren't guys who had consensual sex with their slightly underage but fully physically developed girlfriend. Fuck 'em.

ExactlyY

[SparseCandy]

How is this different from what the courts do to those deemed mentally ill?

If you are deemed a threat to yourself or others by a court you will be confined until a medical expert deems you cured. This has been long standing practices in this country.

That being said, I agree that congress is overstepping its authority. The question (like so many others) should have remained at the state level.

But that is a different question then whether your due process is being denied if your release date is at someone's discretion. There is already a process for letting people out early. Why is it so horrible if there is a process to keep them in longer?

To me, the due process question is "did they receive a fair trial?" Given a fair trail, I don't understand where due process comes into it.

Well for one thing, people who are committed are evaluated by a mental health professional. To become a psychologist, I have to obtain my phd in clinical psych, then practice for a minimum of two years under the supervision of a more experienced doctor. This means I will have been studying mental health for a minimum of a decade. Even then, I'll only be able to commit someone for 72 hours and only if he clearly displays both intent and a plan to harm himself or others. Once committed, the patient will then be seen by a team of mental health professionals.

Laws vary by state, but in most states actually committing someone against their will for longer than 72 hours is almost impossible. They have the right to appeal the doctor's decision to hold them and as long as they can articulate a plan that doesn't involve harming people (and agreeing to take meds) they are set free. There are checks and balances in the system due to abuses of the past. Plus, if a psychologist is found to commit people against their will without good cause they can lose their license - that decade goes down the drain. It's a pretty good incentive to not abuse the pink slip.

Compare that with the law that was just upheld. Sex offenders committed indefinitely on the word of prosecuters and corrections officials. Can you not see the problem with that? The opportunity for abuse and the dangerous precedent this law sets?

If the offender is that dangerous, give them a life sentence with possibility of parole and let the parole board decide if they are rehabilitated enough to come out. There is no need to break the system when you can work within it to get the same effect. (Or at least the proclaimed same effect. My tin foil hat thinks there might be a different intended effect.)

Due process means you get the sentence given by the judge at time of sentencing. This throws that out the window.

O.k., back to lurking.

[JJ_BPK]

The EU has the similar problems..


European Court Ruling Forces Release of Rapists and Murderers, By Dietmar Hipp and Marcel Rosenbach

http://www.spiegel.de/international/germany/0,1518,695737,00.html

The European Court of Human Rights has ruled that German laws on preventive detention of dangerous criminals is a violation of their human rights. Now Germany will be forced to release almost 200 felons, including convicted rapists and multiple murderers. The first repeat offender has already been released.

Walter H. spent about 37 years, well over half of his life, behind bars. He was sent to prison for a sexually motivated homicide as a young man. He later served time for attempted rape while fully intoxicated and for aggravated battery. He had been incarcerated in a prison in southwestern Germany since 2007, after a court ordered his preventive detention on the grounds that he presented a danger to the general public.

But on Wednesday of last week, shortly after 4 p.m., the doors of the prison were suddenly opened for the man, who had been classified as a likely repeat offender. He was given €50 ($62) in spending money. Then, two police officers and a parole officer took him to a hotel, paid for four nights in advance -- and left him to his own devices.

The first thing H. did was to call the people who had been fighting for his release for years. Weeping with joy, he told his defense attorney, Michael Rehberger: "I'm out. I'm in a hotel."

But his attorney has mixed feelings. Of course, he says, he was very happy for his client, and yet he believes that the whole thing is "lunacy." According to the attorney, H. was released "with almost no preparation" and has not even been placed under so-called supervision of conduct, whereby H. would be subject to the control and assistance of his probation officer. Cases like this, says the attorney, involve "people who are basically unable to live in the real world."

Heading for Freedom

H. owes his freedom to the European Court of Human Rights in Strasbourg, which ruled last Tuesday that some of Germany's rules on preventive detention are in violation of human rights. Less than 24 hours later, the Federal Court of Justice in the southwestern German city of Karlsruhe announced: "The defendant in this case shall be released immediately."

Many other offenders classified as dangerous could soon follow H. into freedom, including notorious burglars and people convicted of fraud, as well as serial rapists and multiple murderers. Thomas Ullenbruch, a criminal judge and expert on preventive detention in the southwestern German town of Emmendingen, has calculated that around 160 offenders in preventive detention could now immediately invoke the Strasbourg ruling, directly or indirectly -- a much higher figure than the previously reported number of 70 offenders. A further 40 criminals could do so in the next few years.

The Strasbourg court has taken a clear position in the conflict between the need to protect citizens from criminals and the offenders' fundamental legal rights. But its ruling has created a huge problem for politicians and the courts, which now have very little time to come up with a legally binding solution that takes both the interests of citizens and the rights of offenders into account.

The federal and state justice ministers are determined to avoid situations like the one that unfolded last year in the village of Heinsberg-Randerath, near the western city of Aachen, where citizens threatened to take the law into their own hands and held vigils in protest against a sex offender who had been released despite having been classified as a danger to society.

'Fiasco'

The only question is how such situations can be avoided. A heated debate has already erupted in Germany between conservatives and liberals over the consequences of the Strasbourg ruling.

Bavarian Justice Minister Beate Merk, a member of the conservative Christian Social Union (CSU), called the decision "a fiasco." Her counterpart in Lower Saxony, Christian Democrat Bernd Busemann, even announced his intention to prevent the release of offenders. "I cannot take the responsibility for this," he said.

They are supported by the head of the police union GdP, Konrad Freiberg, who warned that the Strasbourg ruling could have "dramatic" consequences for security. He announced that the police would not be able to cope with new problems relating to these offenders. Anyone who called the police now to ask that such offenders be monitored, said Freiberg, would be told: "That isn't possible."

The fact that things have even reached this point is an embarrassment for both politicians and the justice system. The federal government has tightened the rules for preventive detention six times since 1998, usually after horrific crimes were committed.

Part 2: A Violation of Human Rights

In a particularly far-reaching step, lawmakers in 1998 did away with the 10-year maximum limit on preventive detention that was in force at the time. That rule stipulated that criminals in preventive detention had to be released after a decade -- even if they were still considered to be dangerous.

In 2004, even the German Constitutional Court gave its blessing to the amendment. The judges were not troubled by the fact that the removal of the limit didn't just apply to the newly convicted, but also applied retroactively to old cases. As a result, locking people up for good became constitutionally valid.

In December, the European Court of Human Rights ruled that Germany's retroactive change to the rules was a violation of human rights. The decision became legally binding last week, when the Strasbourg judges threw out the objection filed against it by the German government.

New Law in the Works

Many observers are asking what the next step is. German Justice Minister Sabine Leutheusser-Schnarrenberger, a member of the liberal Free Democratic Party (FDP), vehemently rejects criticism from the Christian Democrats that her ministry has remained silent on the issue. She says that since coming into office, she has been working on a new version of preventive detention. "The work that others are now anxiously demanding is in fact almost complete," says Leutheusser-Schnarrenberger. She notes that her ministry has developed the key points of new legislation, which she now intends to fine tune within the government coalition. She has announced that a draft bill will be ready by June.

The bill would make it easier for judges to include a subsequent period of preventive detention for hardened criminals in their sentences or, in cases that are unclear, to at least include a relevant proviso which would keep the option open for a decision to be made at the end of the period of incarceration. The minister also wants to "adjust the instrument to make it more targeted" by restricting it to "the worst offences."

Legal experts, for their part, are calling for an even more comprehensive overhaul of the legislation. A "true reform of the entire system of preventive detention" is needed, says Jörg Kinzig, a criminal law professor in the southwestern city of Tübingen. Kinzig considers the minister's current plans to be questionable. The proposed proviso stipulating that preventive detention is an option, is vulnerable under the Strasbourg judges' ruling, says the expert. "I'm not sure whether this will turn out well," he says.

The reform is also likely to be difficult because the Strasbourg ruling criticizes, in particular, the concrete living circumstances of those in preventive detention, and argues that their situation resembles a new sentence more than a restriction order with the prospect of release.

Modest Privileges

In fact, in physical terms, preventive detention is hardly distinguishable from actual incarceration. The criminals live in the prison, where they enjoy modest privileges. At the Berlin-Tegel prison, for example, these privileges include open cell doors during the day, additional visiting hours, more outdoor time and the right to receive six instead of three packages per year, EU observers noted.

Apparently there are also "deficits" in the way staff treat the prisoners. According to the report, there is a "lack of commitment," and "psychological care and support seemed extremely inadequate."

Continued......

Translated from the German by Christopher Sultan

[PSM]

They are making it too easy to be identified as a "sex offender" (for a specific reason, my paranoid self believes).

I moved to Hermosa when Manhattan Beach was going through the "McMartin Case". All of the locals knew that the leading mother in the case was a wacko, but the LA Slimes ran with what 4 and 5 year-olds were saying (while being counseled by a wacko social worker) about killing rabbits and going to Las Vegas. It took a throw-away local newspaper to tell the facts and end the nonsense.

It destroyed many lives and cost tons of taxpayer bucks. Then again, money was made by the entertainment industry. :rolleyes:

Pat