Be Afraid ... Be Very Afraid

On Monday, May 16, the U.S. Supreme Court ruled that sex offenders can be held in prison for an indeterminate time after they have completed their criminal sentences.

Known as "civil confinement," this allows the government to continue to detain people after their sentence is up. In order to do so, the government must convince a judge - no 'jury of his peers' involved - by "clear and convincing" evidence (a legal standard that is less stringent than "reasonable doubt") that the subject is likely to offend again.

Don't get me wrong. I don't want sexual predators turned loose any more than the next guy; I have a teen-age daughter and a young granddaughter. If I had my way, pedophiles and sexual predators would face castration and/or capital punishment. But I also fear the precedent this sets. We are now giving government agencies (prosecutors, parole boards, and penal system administrators) the power to petition a single individual (the judge) to imprison people indefinitely for crimes they might commit.

What's next? Locking up Tea Party members and veterans because the head of Homeland Security thinks they might become domestic terrorists?

Again, I'm all in favor of harsh punishment for sexual offenders. But I'm not at all in favor of granting such extraordinary powers to a government that has time and again shown itself to be inept, incompetent, and lacking in integrity. I fear the government will do greater harm to a greater number of people than will released felons. Cold comfort, of course, if one of your loved ones becomes a victim, but still...

If we want to get serious about keeping sexual predators in prison, address the issue at the sentence-the-pervs level, not at the restrict-civil-liberties-for-everyone level.

An even more worrisome aspect of this decision is its second-order effect. By ruling that the civil commitment law is valid, the Supremes gave at least limited support to expanding the "necessary and proper" clause of the Constitution. (The clause gives Congress the right “to make all laws which shall be necessary and proper for carrying into execution” its other powers.)

The defendant in this case argued that "none of the powers granted to Congress in the Constitution empowered it to authorize such civil commitments." But the Supreme Court ruled that in this case the "necessary and proper" clause gave congress the authority to pass the law in question.

This is extremely troubling because it pulls the rug out from under the 10th Amendment ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people"). Many of the states resisting obamacare plan to base some or all of their case on this amendment.

In recent years the Tenth Amendment has been used to overturn a case regarding radioactive waste disposal (New York v. United States, 505 U.S. 144 (1992)), and a portion of the Brady Bill mandating the states conduct background checks on firearms buyers (Printz v. United States, 521 U.S. 898 (1997)). So any ruling that undermines the 10th could have serious implications for future 'states rights' cases, including obamacare.

And in a final disturbing note, Elena Kagan, obama's handpicked nominee for the Supreme Court, argued in support of using the "necessary and proper" clause to justify the civil confinement law.

Be afraid, be very, very afraid...