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A Supreme Court decision on Monday stated that federal official could hold people who are considered "sexually dangerous" indefinitely even if their prison terms have been served completely.
The idea of keeping sexually dangerous people off the streets is not a bad one until you think of the enforcement mechanisms. Who gets to decide who is sexually dangerous and who is it? Aren't these the same people who go to work with politicians who themselves have committed sex crimes?
Justice Stephen Breyer wrote the majority opinion:
"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 by who may be affected by the federal imprisonment of others."
Justice Clarence Thomas dissented (not because he found indefinite detention to be a violation of one's civil liberties but because he found it to be a violation of state's rights):
"The historical record thus supports the Federal Government's authority to detain a mentally ill person against whom it has the authority to enforce a criminal law. But it provides no justification whatsoever for reading the Necessary and Proper Clause to grant Congress the power to authorize the detention of persons without a basis for federal criminal jurisdiction."
What exactly does it mean to be "sexually dangerous"? Is this strictly a designation based on a perceived mental illness by psychiatrists?
Text of the Court opinion, (posted here by Georgetown University professor and lawyer Jonathan Turley) states, "Congress could have reasonably concluded that federal inmates who suffer from a mental illness that causes them to "have serious difficulty in refraining from sexually violent conduct...would have especially high danger to the public if released." Furthermore, it states, "Congress could also have reasobnably concluded that a reasonable number of such individuals would likely not be detained by the States if released from federal custody."
The argument appears to be that the federal government must intervene and do what state governments are not properly doing. Yet, it's hard to believe that there is any place in the United States where government is not tracking sexually violent predators -- people who would most likely be designated as "sexually dangerous."
Under Megan's Law, all 50 states are supposed to have laws that require sex offenders to register with police and report where they are living after leaving prison or when being convicted of any crime. The public also must be able to access this information.
However, a distinction should be made: This decision probably has more bearing on sexually violent predators and little bearing on sex offenders. While research polls and reporters may rarely differentiate the two and while the public may not either, there is a definitive legal differentiation that is made by the Sexual Violent Predator Act of 1995.
"Sexually violent predators" are strictly people deemed to have a mental disorder that would lead them to "re-offend." It "requires anyone convicted of two sexually violent offenses to undergo a psychological evaluation to determine if a mental disorder makes it likely they will re-offend. If they are classified a [sexually violent predator], the district attorney can file a petition to commit. If a court or jury finds evidence is strong, the person may be committed to a secure state hospital for an indeterminate amount of time.
The Supreme Court decision reinforces public attitudes toward sex offenders (which are probably similar if not more lenient than attitudes toward sexual predators). A Gallup poll in 2005 found that at least two-thirds of Americans support the use of the registry to track sex offenders and have little sympathy for arguments against the registry that would suggest the lists would lead to harassment of people.
Presumably, the same group that expressed little concern about the registry is the same group that is significantly afraid of child molesters in their community. The poll found two-thirds think a convicted child molester probably lives in their neighborhood. And, even more important is the fact that this Gallup poll found that 65% think sex offenders (or child molesters) cannot be rehabilitated.