From the blog of the Lexington correspondent of the Economist.
THE other striking Supreme Court ruling yesterday concerned sex criminals. The court said the federal government could detain them indefinitely, even after their sentences end, if they are determined to be sexually dangerous.
Much of the debate turned on whether the power to detain such people properly belongs to the federal government, or to the states. Justice Clarence Thomas predictably says that Washington is over-stepping its enumerated powers.
Perhaps so. But I think the most important question is how the system will actually work. The government is claiming the power to imprison people forever, not for crimes they have been convicted of, but for crimes they might commit in the future. That's an extraordinary power. It's similar to the power both the Bush and Obama administrations claim to detain "enemy combatants" indefinitely because, although there is not enough evidence to convict them in a court of law, we know they will re-join al-Qaeda if we let them go.
Neither problem is easy. But with the sex offenders, we could be looking at a much, much larger group of people. The lead petitioner in yesterday's case, Graydon Comstock, was convicted of buying child pornography and sentenced to 37 months in prison. Less than a week before he was due to be released, Alberto Gonzales (then the attorney general) declared him to be sexually dangerous.
That is, the government asserts that he:
(1) has previously "engaged or attempted to engage in sexually violent conduct or child molestation," (2) currently "suffers from a serious mental illness, abnormality, or disorder," and (3) "as a result of" that mental illness, abnormality, or disorder is "sexually dangerous to others," in that "he would have serious difficulty in refraining from sexually violent conduct or child molestation if released."
The thing is, he doesn't have to have been convicted of a sexually violent offence, or of child molestation. The standard of proof for holding Mr Comstock for the rest of his life is "clear and convincing". That is less rigorous than the "beyond a reasonable doubt" standard you'd need to establish to send me to jail for a few months for picking someone's pocket.
Will this kind of preventive detention be applied sparingly? Will there be adequate safeguards to prevent abuse? I have my doubts. There are more than 600,000 people on sex-offender registries in America, probably most of whom are not dangerous. Given the immense political pressure to keep our children safe, I worry that giving someone like Alberto Gonzales the power to hold people forever for crimes they have not yet committed is asking for trouble.