I've decided to focus my paper on civil commitment, in light of the decisions that came down yesterday from the Supreme Court. I was wavered for a long time over which part of my paper to cut out because I completely agree with Caroline in that it's too much to cover in 1000 words. I'm not currently sure whether Veblen will have any place in this rewrite at all because I'm not certain that civil commitment is conspicuous enough in terms of local politicking, but that may change how that there's a Supreme Court ruling on it. (Or not?)

This decision was handed down along with another (I can't remember the case name) that held life sentences for children under 18 who have not killed anyone unconstitutional. I won't be discussing this decision, though it is interesting. Thus far, I've noticed that my paper has taken a different, more legal turn than I originally intended. A major reason for this has to do with the fact that I'm responding to the Comstock opinions. My goal is mostly to stay as grounded as possible so I'll try to be vigilant of that. Lastly, this is a very rough, messy draft, but though I've taken this paper in a slightly different direction, I did taken into consideration the comments. I'll be adding sources as I edit this down. As always, comments are super welcome!

On May 17, 2010, the Supreme Court handed down a decision in U.S. v. Comstock, which held that Congress had the power under the “necessary and proper” clause to enact 18 U.S.C. S. 4248 which allow the federal government to civilly commit sex offenders certified to be dangerous to the public, after their prison term has been served. This decision overturns district court decisions while held it unconstitutional because it overextended the reaches of Congressional power. Notably, neither the lower courts nor the Supreme Court dealt with due process, an issue that the Court already ruled on in Kansas v. Hendricks. The bulk of the debate was over state vs. federal rights, and a 7-2 majority held that the statute did not overextend Congressional power.

As with many landmark decisions, the most important, lasting effects on the decision will likely be in what the Court only discusses fleetingly (see Marbury). In his dissent, Justice Scalia points out an aspect of the statute that the majority understandably ignores: 4248 allows the federal government to certify any criminal as “sexually dangerous” even though the crime he is in federal custody for is not a sexual offense. The government only needs to show that there was a prior state conviction of sexual violence or by clear and convincing evidence that the criminal had committed a sexual for which he was never charged (note how this disregards statute of limitations issues).

Justice Breyer's majority opinion bases his approval of Sec. 4248 on the fact that there are procedural safeguards (though he says that the Court did not consider the Due Process issue, it is clear from his opinion that he does not believe it's a violation), there has been similar legislation historically that allow for civil commitment mentally ill, and that it gives states a choice to accept custody and care of the offender upon release from a federal prison.

The procedure the government must follow when attempting to civilly commit a prisoner about to be released from prison is to apply for a certification that the individual is mentally ill and his illness makes him sexually dangerous to society at large. Clear and convincing evidence, less rigorous than the standard “beyond reasonable doubt” requirement for criminal law, must be presented to a district judge to establish that this prisoner is indeed a threat. Many of these terms don't yet have well established legal definitions, such as what constitutes “clear and convincing proof,” what types of “mental illness” must be shown and how, and how the government can show that the prisoner is likely to re-offend.

Judges in state court usually find that two or three-time offenders are good candidates for civil commitment. Their record is evidence in and of itself of mental illness, propensity to re-offend, and danger to society. It is currently unclear whether this is the same easy standard district judges will use to determine whether to certify a prisoner. My guess is that the procedural safeguards Justice Breyer relies on to assuage fears about arbitrary commitment won't have any practical use. Only a very small minority of sex offenders will openly admit that they have the urge to re-offend during psychiatric evaluations, and after Comstock, I don't think any will be forthcoming about their mental conditions. As for mental illnesses that may be good predictors of recidivism, besides impulse control difficulties, there isn't a “sexual deviant” clinical illness. I believe that in practice, the existence of a prior record will be sufficient.

Moreover, the Court's ruling actually extends the applicability of civil commitment to criminals that have never been convicted or charged of a sexual crime, if there is clear and convincing evidence that they could have been charged. The lowered standard is not problematic, the majority explains, because civil commitment is not a penal measures, but a civil one. The same safeguards that are available in criminal law are not necessary here since commitment is supposed to benefit the prisoner and protect society. But the opinion of those who face commitment is that being institutionalized by the state is worse than going to prison because while the conditions are similar between the two, the latter comes with an indefinite sentence. One of the only individuals to be committed and then released was driven to self castration in prison. He said that he found therapy somewhat helpful, but also thought that it could have been administered during his prison term with the same results (it also bears mentioning that hormonal changes caused by the castration could be responsible for his “improvement”). [Insert NYT link]

Justice Breyer's majority opinion calls sec. 4248 a modest addition to legislation already on the books that allow the government to commit mentally ill prisoners. Other statutes do allow the government to civilly commit a prisoner if they become mentally ill during the course of incarceration, but only recently has the government been able to extend institutionalization past the prison term. The real danger I believe, is that there is a real qualitative difference between “mentally ill” as applied to prisoners that became so during their stay in prison, and “mentally ill” as applied to sex offenders. For the former, there is a baseline level of sanity that the prisoner presumably had when he was sentenced, or he would have been found unfit to stand trial. For sex offenders, however, the baseline, judging by the crimes they've committed, is already abnormal. While it will be the exception and not the norm to civilly commit a prisoner who suffered severe mental trauma in prison, I am afraid that it will become the norm (budget willing) to commit sex offenders.

Solicitor General Kagan, in her oral argument, compared institutionalizing sex offenders to quarantining prisoners who have served their sentences but have deadly, contagious diseases. There are so many issues with this rather sloppy use of analogy, but I'm not certain whether it will make it into the final version of my paper yet. I think my issues with it are quite colored by my opinion on the topic and may not be that logically sound, so I think I'll wait a few days and then decide whether to keep this part in or leave it out. But among the differences between sex offenders and lethally contagious prisoners the fact that a contagious disease will infect surround people regardless of conduct whereas sex offenders (this is assuming that even if their urges to re-offend are very strong, there is still an element of personal choice) must purposefully act to harm others, that a deadly disease will definitely kill or harm others, while recidivism is not certain in sex offenders, and there is the feeling that being quarantined does not reflect as badly as civil commitment, which looks and feels like more punishment.

It will be interesting to see how budgetary pressures impact the way sec. 4248 is implemented. Those states that have civil commitment laws of their own are pleased that the Supreme Court upheld the law, and many sent in amici briefs urging the Court to do so, so that the federal government can shoulder part of the cost of institutionalizing sex-offenders. The majority opinion stressed that states will be given the first opportunity to take custody of the sex-offender when his prison term is finished, to institutionalize them in their own state or to place them in some other program as they see fit. However, because institutionalization is so expensive (the Supreme Court estimates $63,000 per year, but other figures show closer to $80,000 on average), states will likely be willing to take advantage of this offer. States that do not have civil commitment laws currently will face an interesting choice: do they take custody of the offender and then simply set him free within state borders (besides registration and residency restrictions)? Or do they let the federal government do what their own legislature, for whatever reason, has not yet done? I think that they will let the government commit those they have certified to be dangerous and likely to re-offend. Though civil commitment might smell enough like double jeopardy to provoke objections from some citizens, the alternative of having a federally certified dangerous sex-offender in the neighborhood will probably quiet most protests.

The difficult part will be deciding which issue to cut...

Jennifer, here are my thoughts/impressions so far. This is a fascinating topic, and you make a very interesting argument. I think that your argument would benefit from a few changes:

This is a huge topic, and you might want to narrow it in light of the 1000 word limit. I think that sex offender registries and the civil commitment process present two different questions. The problem with the registries, as far as I can tell, is that they are over-inclusive: teenagers convicted of statutory rape with someone two years their junior get lumped in with serial rapists and pedophiles. This seems to call for a fine tuning of the laws and more differentiation between the types of offenders that get included in the registries. The civil commitment system presents a different issue: it affects far fewer people, and those it does affect are guilty of the most heinous crimes. I agree with you that the concept of dual, consecutive sentences, one criminal and one "civil," seems to fly in the face of justice. Solutions here are on a different order, and I think you have to mention that these laws have been deemed constitutional by the Supreme Court.

You could choose to address just one of these penalties, which would still be a challenge to do in 1000 words. I also think that you could cite to more sources, and to online ones if at all possible. I tried to find the Economist article that you used, but it's only available online if you subscribe to the Economist, which I don't. There are, however, articles that are more widely available that point to roughly the same problems. I also think a source would be useful for the story about the Georgia statute. It seemed that the problem with that law was that if enforced, it would have forced virtually every sex offender in Georgia, nonviolent ones included, out of their homes and out of the state. The politician who endorsed it were unapologetic, and admitted that they intended to encourage sex offenders to leave the state, but it did engender a ton of controversy.

Finally, I wanted to understand better what you feel are the justifications behind punishment in general. I think a strong articulation of your overall theory of punishment would help this essay cohere even more. Should mentally ill sex offenders be locked away for life? Is rehabilitation a possibility? What about the social function of pointing to a certain behavior and saying "that is bad." Also, what would help courts distinguish between the truly dangerous offenders and those who don't pose a future risk? Is a bright line rule possible? Would it work?

Jennifer, here are my thoughts/impressions so far. This is a fascinating topic, and you make a very interesting argument. I plan on attempting a rewrite and including it at the bottom.

Penalties for sex offenders in the United States are a big jumble of prison terms, probation periods, registries, civil commitments, and systemic discrimination.

Are you saying that the system of dealing with and punishing sex offenses is different from other types of crimes? It seems like you could say this about the penalties available for lots of offenses.

You set up a black/white, this or that argument here, but I'm not sure that's the case. I agree with you that there IS a stigma surrounding sex offenses, especially those against children, and we probably don't talk about it enough. But I think you could develop this argument in a more nuanced way; it seems to me like there IS a fair amount of debate surrounding sex offender sentencing. Check out this post. The debate surrounding the Roman Polanski case is pretty interesting: his victim wants the case dismissed, the prosecutor is bound and determined to get him, and the President of France is hand delivering letters to Obama begging for clemency.

I think you can launch this argument without pitting it against the idea that the only other option is harsher sentencing.

As with the above section, some links to support your argument would be helpful, especially for a reader (like me) who doesn't know very much about sex offender laws. This article was helpful to me in getting a bit of a background in this area of law.

This judicial discretion rests on no legal ground but is supported by an argument of protecting community welfare. However, those who are repeat offenders or who have committed particularly heinous crimes ought to have been screened during trial and committed then, instead of doubling up commitment with a prison sentence. There should be greater procedural safeguards from commitment than simple judicial And prosecutorial whim because once committed, offenders often stay for periods that extend far beyond prison terms due to the difficulty and lack of standards of determining when a person is "well." Laws authorizing civil commitment give judges enormous, unwarranted discretion. They have no penal value I'm not sure what this means - it seems like they have tremendous punitive effect on the people being committed. Do you mean that the civil commitment system isn't justified by due process/ex post facto concerns? and are simply an expensive way for a state to display how upstanding and "tough on sex crimes" their citizens are.

I don't know if it's as simple as you make it out to be. From what I have been able to gather, civil commitment laws were passed because of the high rate of recidivism in sex offenders who have been released from jail. So it seems that there was at least some purpose--protecting future victims--behind these laws other than the performative "peacocking" one you point to.

But we don't seem to worry overmuch about the expense of committing murderers for life. If the crime is morally repugnant enough, it seems like according to the current system, the benefits outweigh the costs.

I think that here, too, some evidence is necessary. I found some data that civil commitment for sex offenders costs $150,000 a year per person, and that 4,000 people nationwide are subject to such commitment. To me, that seems like an extraordinary expense, but it also affects a relatively small number of people.

The current penal system for sex offenders looks great, much like a peacock's tail, but is not good for anything except attracting the peahen (votes) and probably slows him down when he's foraging for food or running from a predator. (3)

Here, couldn't you frame your argument a bit differently? Saying "no thought is given" to the downsides of what you argue is an expensive and the unfair system seems hard to prove - surely someone out there has given it a thought. Do you mean that the legislative process is undervaluing the rights of sex offenders? That communities are? Who is not thinking enough about these issues, and what would be a way of better serving the rights and interests of a convicted sex offender? The story you point to indicates how irrational and misguided a law can be, but it also shows the democratic system at work - the sheriff noticed the injustice and the courts struck down the law. We can't stop every politician from running on a platform that includes an overbroad and poorly drafted law, but doesn't the checks-and-balances system help to curtail some of those excesses?

I don't agree entirely with this. I think that the "purpose" of the punitive system is up for grabs. Durkheim, via my criminal law casebook, argues that punishment of criminals acts as social glue that binds society. I think here you have to argue for what YOU think the purpose of the system is/should be, and why the current system of penalties for sex offenders does not cohere with that purpose.

Sex offenses do irreparable damage to their victims so harsh measures are sometimes needed. However, [their application] penalties can be tailored so that they are not overly broad. For example, a seventeen year-old convicted of statutory rape need not be listed publicly in the registry when there is no indication that he is predisposed to commit another sex offense. On the other hand, parents may very well have a right to know if their child's piano teacher is a repeat child molester, and rules prohibiting them from living or working near children may not be overshooting the goal. While the registry as a whole may be maintained to facilitate law enforcement, it should not be public save for the high risk serial offenders. Civil commitment laws, which I believe are legally baseless, should be abolished in favor of longer sentences for those offenders that judges believe are especially deserving of punishment or they should be found unfit to stand trial and immediately committed. But does this solution avoid the problem of judicial/prosecutorial discretion? Voluntary chemical castration programs, which involve taking an androgen-inhibitor orally or [being administered the Depo Provera shot every three months] by injection , are currently in place in nine states and should be more widely adopted. It should be offered as an alternative to full institutionalization, to shorten prison sentences for repeat offenders, and in exchange for a shorter duration of listing on the registry.

Sex Offenders: Let's Talk About It

-- By JenniferLi - 17 Apr 2010

Penalties for sex offenders in the United States are a big jumble of prison terms, probation periods, registries, civil commitments, and systemic discrimination. Yet when in Lawyerland, Wylie comments that people like talking about crime, he certainly doesn’t mean sexual offense because rape and molestation don’t make for fun cocktail stories. Talking about sex offenses and their penalties make us uncomfortable partially because they are such intimate issues, but also because there is only one right answer—harsher punishment—and no room for debate. However, I argue that the current penal scheme in many states for sex offenses is not morally or legally justifiable and that its undue harshness is a form of socio-political conspicuous consumption.

Registration Laws

In 1996, the Federal government passed a law requiring every state to establish a sex offender registry that was publicly accessible or lose federal funding. As a result, all fifty states have sex offender registries that are online and searchable, which can contain detailed information on a sex offender’s name, address, offenses, sentences, jobs, and license plate and vehicle information. This measure was widely supported, particularly by parents who claimed a right to know whether they were living on the same block as a child molester. It also allowed different jurisdictions to track offenders easily in case an offense takes place in their vicinity.

The flip side is that these registries severely limit the ability of all offenders to live a normal, productive and fulfilling life. An extreme illustration of this is "Bill," who was convicted of statutory rape twenty years ago and due to laws prohibiting him from living near places frequented by children, is unable to take his kids to school or to the park. (1) His family has had to move several times due to severe harassment when other parents find out that he is listed in the sex offenders registry. Other offenders encounter sharp resistence when attempting to move into a community because the residents fear for their children, because they bring property prices down, and because people simply don’t like sex offenders. They are often unable to find gainful employment because laws prohibit them from working near children, and because employers are highly reluctant to hire sex offenders. In 2005 and 2006, four sex offenders were shot and killed in Maine and Washington by private vigilantes going by the addresses listed in the registries. (2) Having served their sentence, they are entitled to try to rebuild their life, but registration laws make it nearly impossible for them to settle down and find a job.

Civil Commitment Laws

In Persons and Punishment, Herbert Morris argued that there are two categories of penal categories, punishment and therapy. The sane go to prison for their crime while those adjudged insane are institutionalized. Whereas most criminals elect one or the other, sex offenders fall into both because committing a sexual offense automatically presumes the offender can’t be ‘sane’ though few judges will pass up an opportunity to punish them with prison terms first. Civil commitment laws, which are effective in nineteen states, allow judges to institutionalize released sex offenders until they are declared “well,” so some offenders end up serving a prison sentence and being institutionalized for the same offense.

This judicial discretion rests on no legal ground but is supported by an argument of protecting community welfare. However, those who are repeat offenders or who have committed particularly heinous crimes ought to have been screened during trial and committed then, instead of doubling up commitment with a prison sentence. There should be greater procedural safeguards from commitment than simple judicial whim because once committed, offenders often stay for periods that extend far beyond prison terms due to the difficulty of determining when a person is “well.” Laws authorizing civil commitment give judges enormous, unwarranted discretion. They have no penal value and are simply an expensive way for a state to display how upstanding and ‘tough on sex crimes’ their citizens are.

What Would Veblen Say?

Political campaigns against crime are always popular, but anti-sex offender measures are almost invariably foolproof. Sex crimes, unlike theft or murder which can be motivated by necessity or sympathetic motive, are universally abhorrent with no acceptable justifications. And for the most part, they are just that--horrible, needless crimes that do unimaginable harm to their victims. However, instead of real public debate over what punitive strategies are proportionate, effective, and fair, laws against sex crimes continue to become harsher and harsher. Politicians want to appear tough on the most indefensible of crimes and communities want to appear more moral and intolerant of it than the next town, as if to exclaim "we are so morally rich and decent that we can afford extravagant, over-the-top laws against sex crimes without a thought to the consequences." No consideration is given to how extraordinarily expensive it is to commit an offender to an institution for possibly the rest of his life or how wasteful it is for a penitent individual, otherwise willing and able to live and work peacefully, to be driven from community to community with no hope of finding a decent job. The current penal system for sex offenders looks great, much like a peacock's tail, but is not good for anything except attracting the peahen (votes) and probably slows him down when he's foraging for food or running from a predator. (3)

Plucking the System

The purpose of a punitive system is not to put on a show but to punish and protect as effectively as possible while leaving the smallest footprint in lives. Sex offenses do irreparable damage to their victims so harsh measures are sometimes needed. However, their application can be tailored so that they are not overly broad. For example, a seventeen year-old convicted of statutory rape need not be listed publicly in the registry when there is no indication that he is predisposed to commit another sex offense. On the other hand, parents may very well have a right to know if their child's piano teacher is a repeat child molester, and rules prohibiting them from living or working near children may not be overshooting the goal. While the registry as a whole may be maintained to facilitate law enforcement, it should not be public save for the high risk serial offenders. Civil commitment laws, which I believe are legally baseless, should be abolished in favor of longer sentences for those offenders that judges believe are especially deserving of punishment or they should be found unfit to stand trial and immediately committed. Voluntary chemical castration programs, which involve taking an androgen-inhibitor orally or being administered the Depo Provera shot every three months, are currently in place in nine states and should be more widely adopted. It should be offered as an alternative to full institutionalization, to shorten prison sentences for repeat offenders, and in exchange for a shorter duration of listing on the registry.

Punitive measures against sex offenders are currently very costly and wasteful, though they are socially and politically attractive. Veblen argues, and rightly so, that a system of conspicuous waste dominates the course of most human action, but to the extent that we can resist decorating the penal system with peacock feathers, we should.

(1) "Unjust and ineffective: Sex Laws" The Economist, August 8, 2009.
(2) Same as above.
(3) A better zoological mascot might be a sleek, well-tuned jungle cat, or perhaps a German shepherd.

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