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US Supreme Court Upholds Indefinite Confinement 745

An anonymous reader points out the news that the US Supreme Court today upheld a law that allows the federal government to keep prison inmates behind bars beyond the end of their sentences, if officials determine they may be "sexually dangerous" in the future. The case involves one Graydon Comstock, who was certified as "dangerous" six days before his 37-month federal prison term for processing child pornography was to end. The vote was 7 to 2. Three of the justices who concurred with the decision raised an objection to the broadness of the language used in the majority opinion, written by Justice Kennedy.
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US Supreme Court Upholds Indefinite Confinement

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  • Scope (Score:5, Interesting)

    by Skyshadow ( 508 ) * on Monday May 17, 2010 @07:01PM (#32246282) Homepage

    Reading about this today, I found that the scope of this particular decision is less scary than I initially assumed -- it's limited to prisoners who meet a standard as being "sexually dangerous", so they're not just being held without due process. Apparently this applies to about 100 prisoners nationwide.

    The trouble here is that we, as a society, have real trouble in applying common sense in our legal system. You start with an obvious good thing (keeping violent sex offenders behind bars) and it grows into something completely different -- consider the way the term "sex offender" has been distorted. Once you start allowing this sort of action, where's the protection that keeps it from growing into something else?

    Are we going to start seeing 18 year-olds locked up forever because they had sex with a girl a few months younger than them? It sounds silly, but we already routinely label this a "sex offense". Will taking a drunken piss in an alley set you up for decades in prison? Again, common sense says that's ridiculous but again, it can already get you labeled as a sex offender.

    Until we figure out a way to legislate in a way that applies some degree of common sense, this sort of thing just can't be allowed.

  • Indefinite? (Score:5, Interesting)

    by digitalunity ( 19107 ) <{digitalunity} {at} {}> on Monday May 17, 2010 @07:03PM (#32246306) Homepage

    My biggest problem is this: What other crimes can criminals commit deeming them too dangerous for society? What's the point of a fixed length sentence at all for individuals who are likely to be dangerous after release? What about murderers and/or serial rapists who show no remorse or signs of rehabilitation?

    What about repeat domestic abusers?

    Drunk drivers(have you seen recidivism rates?)?

    What about repeat moving violators?

    It's a slippery slope.

  • by exasperation ( 1378979 ) on Monday May 17, 2010 @07:13PM (#32246440)

    Canadian law, and I generally consider Canada to be a free society, has the possibility of indefinite detention if someone is found to be a dangerous offender, and likely to reoffend. It's not very often used, mostly in the most grievous murder and sexual assault cases.

    Wikipedia has more information: Dangerous Offender []

  • Re:Scope (Score:2, Interesting)

    by Shakrai ( 717556 ) * on Monday May 17, 2010 @07:21PM (#32246546) Journal

    Democracy is two wolves and a sheep deciding what to have for dinner.

  • Re:Scope (Score:4, Interesting)

    by jd ( 1658 ) <{moc.oohay} {ta} {kapimi}> on Monday May 17, 2010 @07:24PM (#32246590) Homepage Journal

    Yes, but do they meet the criteria for criminal insanity or only the criteria for psychological insanity?

  • Re:The real problem (Score:5, Interesting)

    by Lemmy Caution ( 8378 ) on Monday May 17, 2010 @07:37PM (#32246724) Homepage

    I agree with you in theory - that a custody meant to protect society at large should be distinguished from a punitive one. But we don't really agree that incarceration is meant to be punitive: we think it might be rehabilitative, or protective, as well. Prisons have become places that have slid back into pre-modern forms of punishment, meted out by other prisoners rather than by the state. Perhaps the anxiety about distinguishing between punitive and protective incarceration after conviction is about a reluctance to recognize that other prisoners are now effectively delegated by the state to punish each other.

  • Re:The real problem (Score:4, Interesting)

    by commodore64_love ( 1445365 ) on Monday May 17, 2010 @07:38PM (#32246744) Journal

    If only it were that simple. What if the "child" that was "raped" is a Lolita-type that deliberately seduces and encourages older men into her bed? Seems to me they should both be in jail..... or better yet, allow an exception for sex that is consensual, as when Jerry Lee Lewis had sex with a 14 year old (whom he eventually married).

    POINT: The world is not black-and-white. Neither should be the punishments. A life sentence for doing what Nature designed us to do (procreate like rabbits/ rut like Romeo & Juliet) is ridiculous and foolish. I'd say 10 years top.... 20 if its a repeat offender. But not life.

  • Re:Scope (Score:5, Interesting)

    by jcr ( 53032 ) <> on Monday May 17, 2010 @07:49PM (#32246858) Journal

    On a related note, the Soviet Union used to routinely confine dissidents to psychiatric hospitals if they were too well-known to just disappear in the gulag.


  • by Jah-Wren Ryel ( 80510 ) on Monday May 17, 2010 @07:50PM (#32246874)

    There is a guy who's in prison for life with his 3rd strike being a shoplifting charge.

    Furthermore, it has the effect of making life more dangerous for cops and the law-abiding. It turns people who are at risk of being busted for a third strike into caged animals. Someone who has just commited shoplifting and sees the store security coming after him is a lot more likely to shot or knife them, or anyone nearby in order to make his get away. A 2-striker who gets pulled over with a joint or even just a crack-pipe in his car is now a lot more likely to pull an OJ and try to make a break for it, endangering everybody else on the road with him.

    The path to hell is paved with good intentions and the guys driving the paver are blind lead-foots.

  • Re:Scope (Score:5, Interesting)

    by Hierarch ( 466609 ) <[CaptainNeeda] [at] []> on Monday May 17, 2010 @08:02PM (#32247044) Homepage

    Are you thinking of the Nellie Bly [] case? Or did someone decide to try the experiment again?

  • Re:Obligatory (Score:3, Interesting)

    by Locke2005 ( 849178 ) on Monday May 17, 2010 @08:16PM (#32247170)
    We're all perverts, it's just that most of us don't commit unlawful or harmful acts. Remember, any sexual act not performed for the sole purpose of procreation is a perversion, meaning that anybody who uses birth control is a pervert!
  • by Motard ( 1553251 ) on Monday May 17, 2010 @08:19PM (#32247192)

    Ok, so, if you're a dangerous sex offender, you never need to be let out of prison.

    But, you can't get life without parole unless you've killed someone.... []

  • Age of consent (Score:4, Interesting)

    by Artemis3 ( 85734 ) on Monday May 17, 2010 @08:21PM (#32247206)

    Isn't that what the Age of consent [] is for? What you need to strive is to lower this age in the States.
    By definition Pedophilia [] means under 14, the middle range above 14 would be Ephebophilia [], which is the "lolita" type.
    I assume this is a taboo issue there.

  • Re:A free society. (Score:3, Interesting)

    by theycallmeB ( 606963 ) on Monday May 17, 2010 @08:21PM (#32247208)
    Before you wish for more Supreme Court justices in the mold of Scalia and Thomas, you may wish to read this article, [] also in the NYTimes, about another recent court decision where the two were again part of the dissent. In this case, they dissented from the majority's ruling that life imprisonment without the possibility of parole for a teenager who hasn't killed (or been party to a killing) is cruel and unusual punishment.

    Scalia's and Thomas' objection to civil commitment has nothing to do with opposing excessive sentences and everything to do with opposing an administration they personally do not like (If you want to play the 'limiting Federal powers' card, please check up on some of their terrorism-related rulings during the Bush administration first).
  • Unbelieveable (Score:4, Interesting)

    by shellster_dude ( 1261444 ) on Monday May 17, 2010 @08:22PM (#32247220)
    I am extremely conservative. I have two immediate family members who have been raped and several very close friends. I do not believe the US has any current punishment which is fitting for horrible destruction that rape causes. And yet...

    I am incredibly enraged that the Supreme Court would rule that it is Constitutional to violate the 5th Amendment Due Process clause because of the children. If you want to give them counseling, then put a prescribed amount in the sentence. The courts have ruled that "life" sentences violate due process, and yet holding them indefinitely for counseling doesn't?

    Emotion should, from time to time, temper the application of law, but never the application of rights ~ shellsterdude.
  • Re:Scope (Score:3, Interesting)

    by Anonymous Coward on Monday May 17, 2010 @08:31PM (#32247306)

    there was more to that story, his name was david rosenhan. one of the main contributing factors into him doing it in the first place was that he listened to a lecture by r.d.laing who was very blatantly accusing then modern psychology of being a massive group of charlatans. it has since become known as the rosenhan experiment because once he (and all of the other people he convinced into doing it) were released, he wrote a paper detailing how r.d.laing might have been correct in some aspects. so here is the funny part:

    several institutions challenged rosenhan, they went on public record as saying 'send us some more frauds and we will find them, it isnt all psychologists or the system that is inept, it was just the specific places you and the others went'. so rosenhan agreed. a month later the most vocal institution proudly announced they had discovered 30+ of his frauds. he then admitted, much to their dismay that he hadn't sent anyone.

    and yes, for the lurking /. hivemind pedantic self proclaimed clerisy types, i know i didnt us any proper capitalization and hardly any correct punctuation. go fuck yourselves.

    also, if you found this post interesting look up a book called 'the man who mistook his wife for a hat' by oliver sacks.

  • Re:Scope (Score:4, Interesting)

    by Peach Rings ( 1782482 ) on Monday May 17, 2010 @08:48PM (#32247434) Homepage

    Insanity is a legal defense, not a crime

  • Re:The real problem (Score:2, Interesting)

    by Anonymous Coward on Monday May 17, 2010 @09:00PM (#32247544)

    If you don't think that teenagers under the age of consent ever go out looking for sex with older partners, you've spent a remarkably long time away from high school. When I was 14-15 there were countless 18-25-year-olds I would've slept with at the drop of a hat. Any hat.

  • by meburke ( 736645 ) on Monday May 17, 2010 @09:13PM (#32247640)

    TOA was a little misleading. I originally had the impression that the guy got 37 months for receiving kiddie porn, and that the issue was whether he was likely to look at kiddie porn again. Uh-oh!... We'd better lock up those picture lookers for LIFE! (Wouldn't it be cheaper to just blind them?)

    Actually, the issue is: Once the Government has a dangerous (and dangerous is pretty well-defined) criminal incarcerated, and they know that he/she is not rehabilitated or mentally stable, is the Government entitled to protect society by keeping him locked up until either a State or institution takes custody and care? Yeah, there are some issues about incarcerating someone for something he might do in the future, but the general public is too ignorant to evaluate that properly. So, the solution is to preserve the status quo until you can shift the responsibility/blame onto someone else. After all, the perp is already locked up; what difference does a few more years make?

    Considering that a huge number of ex-cons are recidivists, it might be used as an argument to keep everybody locked up forever. I noticed that in the case quoted, it was the State that certified him as "dangerous". Given the demagoguery and hysteria of some of our Texas prosecutors, I'm not sure I trust them to define "dangerous" in any meaningful way.

  • Re:The real problem (Score:1, Interesting)

    by angelwolf71885 ( 1181671 ) on Monday May 17, 2010 @09:17PM (#32247662)
    i like 3 strikes then castration 25 MINIMUM sentience in prison after castration and 15 years probation and psychiatric followup's if you commented murder while committing the crime then the death penalty is on the table next to the meat cleaver
  • by dirkdodgers ( 1642627 ) on Monday May 17, 2010 @09:45PM (#32247890)

    Thomas is not the intellectual that Scalia is, but my praise isn't for being an intellectual. My praise is for refusing to substitute personal beliefs on social policy for the clear an unambiguous language, or lack of language, of the constitution. Thomas in his own writing and speaking has his constitutional principles right on.

    That's saying more than I can for any of the other justices, including Roberts and Alito.

    Give me the federalism enshrined in the constitution any day. Sure, that might mean that Texas has fucked up state laws for one generation longer than the rest of the country, but it also strips the federal government of the power that is becoming our undoing.

    And with good reason. It is at the federal level where our representation is weakest that today the power and wealth of government is greatest. The reverse of this was the intent. Here today we see just one illustration of why.

  • by Anonymous Coward on Monday May 17, 2010 @10:20PM (#32248168)
    I agree. Every time you start thinking that Scalia or Thomas might be clouds of prejudices in search of legal justifications, they return a dissent like this, standing on principle over an immensely unpopular and emotional issue (Alito, on the other hand...). It is also true that every justice has issues on which he or she is more willing to find, say, a "compelling interest" than on others; there is rarely a more perfect illustration of that reality than this case.

    The challenge to the civil commitment law was brought by five prisoners. The case of Graydon Comstock was typical. In November 2006, six days before Mr. Comstock was to have completed a 37-month sentence for receiving child pornography, Attorney General Alberto R. Gonzales certified that Mr. Comstock was a sexually dangerous person.

    Last year, a three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., unanimously ruled that none of the powers granted to Congress in the Constitution empowered it to authorize such civil commitments. But the decision was stayed, and Mr. Comstock has remained confined in a federal prison.

    A three year sentence (for looking at porn) becomes a sort of "indefinite detention" (still in federal prison!) by the fiat of a cabinet member with minimal judicial oversight, and a seven-justice "liberal" majority hands down a ruling more authoritarian than the (unanimous) Fourth Circuit. Shit.

    Personally I find this ruling considerably more despicable and dangerous than the Alito-Scalia-Thomas dissent in the narrow Graham v. Florida ruling (majority: no JLWOP sentences, except for homicide). That dissent was extremely conservative, and perhaps Scalia and Thomas' definitions of "cruel" punishment are regressive and have not changed with the times, but even the majority didn't hand down some kind of progressive ultimatum. Now juvenile criminals--who didn't kill anyone--must be offered the chance of parole...eventually. In Comstock, on the other hand, a larger majority, led by "liberal" justices, gave the government the right to indefinitely imprison U.S. citizens (four of whom were perfectly, legally sane when they were convicted) on the grounds that any sex-crime conviction (even totally non-violent ones) is sufficient de facto evidence of mental illness (after conviction) for civil commitment. *Chirping of crickets*. Is this legal reasoning coming from a seven-justice majority of the Supreme Court, or from Comrade Breyer of the Politburo? Perhaps we could also charge the prisoners for their "treatment?"

    The court observes that "Congress has long been involved in the delivery of mental health care to federal prisoners, and has provided for their civil commitment." I'm sure the plaintiffs appreciate the "mental health care" they are receiving in a federal penitentiary. This could become a gaping hole through which the fifth, sixth and eighth Amendments could plummet. You thought the commerce clause was abused? Now the government has necessary and proper powers to implement unconstitutional ones (though the court "assumed but did not decide" the constitutionality of the powers themselves, embracing a rather convenient opportunity to abandon "judicial activism," it seems).

    I would take issue with the assertion that we are "ruled by the arbitrary will of an unelected few," however. An unelected few has failed to prevent the tyranny of the majority (by the hand of another unelected few), but the policies they endorsed are hardly unpopular. Some of the blame lies with the people. Eroding Miranda polls very well, too; ultimately the constitution can only limit the government if people believe that it does. Even the judiciary is ultimately appointed by an elected government. The notion that we are a nation of laws must itself be popular, because democracy (even the republican sort) is an inherently unstable mechanism.

  • Re:A free society. (Score:1, Interesting)

    by Anonymous Coward on Monday May 17, 2010 @10:41PM (#32248320)

    Historically both Scalia and Thomas are originalists or textualists. Both believe the executive has more power than is commonly thought and that the federal government has less. Their dissent fits this mold.

  • Re:Scope (Score:3, Interesting)

    by Hatta ( 162192 ) on Monday May 17, 2010 @10:45PM (#32248346) Journal

    Reading about this today, I found that the scope of this particular decision is less scary than I initially assumed -- it's limited to prisoners who meet a standard as being "sexually dangerous", so they're not just being held without due process. Apparently this applies to about 100 prisoners nationwide.

    The thing is with governments, if you give them an inch they take a mile. And when they overstep their authority, there's never, ever, ever, even the tiniest little bit of repercussion for it. I would feel safer with every one of those 100 molesters on the street than living under a government that has the power to imprison anyone indefinitely.

  • Re:ColdGate (Score:2, Interesting)

    by TruthSauce ( 1813784 ) on Tuesday May 18, 2010 @12:11AM (#32248908)

    What an interesting statement. The smart ones never get caught...

    I've done some postgraduate research on the topic and my experience is exactly the same.

    But you do realize that most people judge all pedophiles on the standard of those that are in prison? Low impulse control, poor self-esteem, etc and I've never actually seen that from population samples.

    During population sample surveys (our numbers are probably a bit biased due to sampling biases) we find almost 5% of respondents admit to certain pedophilic feelings, but only about 0.5% have ever been incarcerated for it (that's about 10% for the math-challenged). We don't ask if they've ever committed a crime because of the ethics of how to deal with the answers that say "yes", but we find that they're not much more likely than average to have been abused themselves, nor to have any other fundamental psychosocial adjustment problems.

    I'm floored that you came to this conclusion. Most people just tick off the "drooling pervert" as the norm and assume the other 90% who have never been caught must also be this.... but my experience tends to lead me to believe that this isn't the case.

    Your insight is refreshing.

  • Ex post facto is interesting, but the first thing that crossed my mind was the 6th amendment because the Government is bypassing the right to a jury trial.

    This whole case emphasizes what Jefferson talked about with the Government's ability to define its own rules. If we let the Supreme Court decide the very definitions of the law, then we are doomed.

    Amendment VI, Section 1:

    In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

In the realm of scientific observation, luck is granted only to those who are prepared. - Louis Pasteur