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May 21, 2010

"First, They Came for the Sex Offenders"

The title of this post is the heading of this interesting new commentary at Cato's @ Liberty blog by David Rittgers. Here is how it starts:

First, they came for the sex offenders.  I am not a sex offender, but I opposed the civil commitment of sex offenders by the federal government because it is not an activity within the enumerated powers of Congress.  The Supreme Court decided otherwise in Comstock, with the exception of Justices Thomas and Scalia.

Next, they will come for suspected terrorists.  As Dahlia Lithwick (who I rarely agree with...) points out, the Supreme Court’s decision in Comstock may have some frightening implications for domestic preventive detention of terrorism suspects in lieu of criminal prosecution.

I saw this firsthand last summer when I attended a scholars meeting with the Obama administration’s Detention Policy Task Force (the same one that Andy McCarthy publicly refused to attend).  I gave my views on where detention policy should go, as did a conference room full of experts on the laws of armed conflict and criminal justice (who shall remain anonymous, as this meeting was off the record).  I was dismayed to hear a law professor from a prestigious university propose a system of preventive detention as the logical solution to countering terrorism.  Worse yet, to make this law less provocative, the professor further proposed that preventive detention should be applied in other criminal contexts, so that the department of pre-crime would not be seen as unfairly targeting only enemy combatants overseas.  This professor had taught many of the Department of Justice staffers in the room, and I looked around to see heads nodding at the suggestion.

May 21, 2010 at 01:02 AM | Permalink


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sounds to me like this professor you met needs a bullet to the head for TREASON.

Posted by: rodsmith | May 21, 2010 1:26:28 AM

All statutes and case law are ghoulish human experimentation. These should be proven safe and effective in small pilot studies prior to enactment. The lawyer has given itself absolute immunity for its carelessness and idiocy. There is no experimentation to validate these sick human experiments. If liability is a substitute for violence, then immunity is a moral and intellectual justification for violent self-help. This tyranny is inherent in the criminal cult enterprise indoctrination it has undergone in law school. The lawyer cannot be fixed. It can only be excluded from all benches, all legislative seats, and responsible policy positions in the executive. This is both analogous to and a literal exclusion of the convicted felon. The lawyer is a cult criminal. The content of the law is full of supernatural, garbage doctrines. The sole validation of most laws is at the point of a gun, and no other way. The profession is the world's most powerful and wealthiest criminal syndicate.

When the time comes, Rittgers should be kept off the lawyer arrest list.

These problems would all be solved by 123D, with the D on the 18th birthday, with hundreds of future victims spared. The D would be for past victimizations, not for future ones, and would pass constitutional muster in a non-lawyer Supreme Court. The Supreme Court wants them alive generating extremely expensive daily cost in special built, health style facilities. The purpose is not the protection of the public, but the generation of a lot of worthless government jobs babysitting ultra-violent rapists. Naturally, the rapists will have to have the continual services of defense lawyers for years.

Posted by: Supremacy Claus | May 21, 2010 5:19:24 AM

Well, sex offenders certainly make an easy target -- and not that it's entirely undeserved -- but it seems to be cranking up. I guess indefinite, post-incarceration, civil confinement is really just the next logical progression. After all, we already exclude certain classes of criminals from having certain constitutional rights (such as felons and the 2nd Amendment), so why not gut the ex post fact clause, too?

Not that I'm some expert on risk assessment, but the thing that troubles me about this and civil commitment in general is the fact that many of the variables on which risk is assessed are static. They don't change, regardless of the steps that the offender takes. For example, no matter how much therapy you undergo won't change things like the age or sex of the victim or whether or not they were known to you. In that respect, risk assessment is a bit like a roach motel -- you check in but you don't check out.

Of course, I suspect that's how the voting public likes it.

Posted by: Guy | May 21, 2010 6:03:06 AM

I actually agree with Scalia and Thomas on this issue. Is supervision of criminals, once they've served their sentence, Necessary and Proper? Seems to me the answer is no.

Guy, I suspect most voters would look at these things with deep unease. I loathe sexual predators and I believe in stiff sentences, and I think that states certainly have the right to monitor them etc., but the federal government, a government without a general police power? And sex offender registries have gotten out of hand. I take a back seat to no one when it comes to the legitimacy of harsh sentences for bad crimes, but whenever I see prosecutions with lifelong consequences for innocent sexting (I get that sometimes, it's not so innocent) or butt-slap day, I cannot help but wonder whether these people simply relish the opportunity to ruin lives. I believe that the criminal justice system, generally speaking, is there to keep us safe (putting aside fraud etc.). Those with the power to prosecute need to remember that.

I can't really put my finger on it, but many in government have seemed to lose a sense of proportion. And it needs to stop. We are a free people.

Posted by: federalist | May 21, 2010 9:13:53 AM

I think federalist nailed it, but I'll go a step further. The reason why sex offender registries operate in such a bizarre fashion is because the legislature was lazy and lumped all crime into the same category. Thus, consensual sex between people 5 years apart, public urination, sexting, and pats on the butt get placed in the same category as rape and child molestation. And it's not just registries--legislatures routinely make inane criminal categories. In Ohio, underage drinking is in the same criminal category as negligent homicide (both first-degree misdemeanors).

My experience is that many prosecutors are not evil (though some are way overzealous), but are stuck between a rock and a hard place--they want to enforce the law (which is their job), but doing so sometimes mandates stupid results. The only way to solve both is for the legislature to step up and actually take responsibility for the impact of its laws, rather than kowtow to the most hysterical elements in society. There is no reason that Congress could not write a sexting exception into the child pornography laws, or a state make registry as a sex offender discretionary--they simply choose not to. And that, in my view, is cowardly and a farce of justice.

Posted by: Res ipsa | May 21, 2010 10:30:19 AM

Justice Scallia is a champion for individual liberties.. with some shortcomings like any judge, he is still my favorite SCJ. He believes in the Constitution as being an unchanging, unliving document. As do I. You don't just throw away our rights and freedoms detailed in that document when one group of people become unpopular.. look where that led in Nazi Germany, Rwanda, Darfur.. etc. Although they did not have our constitution, they did create a second class of citizenry, ramped up the hype, and started restricting and killing. It should not matter if the cause is unpopular, it SHOULD matter if it applies to the Constitution. Basic, inalienable rights is a timeless entitlement for all Americans, and people who have paid for their crimes should not be repunished more harshly by law changes that the Constitution specifically prohibits.

Ignoring laws to persecute the unpopular is the slipperiest of slopes.. they don't realize their rights are next. Scallia and Thomas did.. and I have new respect for Justice Thomas, I will be watching his decision making more closely from now on.

Posted by: tbucket | May 21, 2010 12:33:16 PM

There are a lot of threads in this fabric. I'll just take a few:

-- I admire Cato and have been both a participant in their events and a contributor. Their skepticism about prosecutorial power has never looked more persuasive than it does with the politicized DOJ we have now. Still, libertarianism has the defects of its virtues. Releasing a sex offender who is very likely still dangerous means you are very likely going to have a future victim. Than cannot just be blown off.

-- I am glad to see Scalia finally get some love on this site. He is indeed a principled man. So is Justice Thomas, who should also get some love (thank you, tbucket). They actually follow the law, rather than seek results. Does anyone think Kagan will be equally disciplined? Ha!! Indeed, Obama has made clear his view that judges SHOULD seek results. The benighted teenage mom and all that.

-- Res ipsa: Prosecutors are given considerable discretion. If I were still in the business, and some agent came to me with a 16 year-old sexting nudie pictures to his/her 15 year-old girlfriend/boyfriend, I would just tell him, thanks, I actually have meth dealers to handle, so why don't you just talk to their parents or something, but I am going to use the state's power differently.

This position is so common-sensical that I doubt there are many teenage sexting prosecutions at all, certainly not relative to the amount of sexting that gets done, that being a zillion times a day. Indeed, such prosecutions are so rare that they make the news (which is why we hear about them).

If we want to worry about the encroachment of the coercive power of the state, how about looking at these you-have-to-buy-insurance mandates in Obamacare, which will affect MILLIONS of people who don't want insurance (mostly in their 20's and 30's), but who, if they don't comply, have the government's mailed fist waiting for them down the line.

federalist -- Every day I came to work, I remembered that merely an indictment could ruin a person's life. Some leftwing zealot wrote on this site a couple of days ago that everyone is a criminal and it's just a matter of who gets caught. This is so much baloney. Prosecutors have to, and do, think about what they're doing. Persons who potentially could be charged are NOT all the same and are not treated the same. Distinctions must be and are made -- not on the basis of race or color but on the basis of behavior, personal history and attitude.

I was not hesitant to cut a break to someone who earned it and who was not, in any realistic sense, a threat to my client (the public). I was also not hesitant to go whole hog after a defiant smartass who had gotten away with and thought he was going to continue to get away with it. The fact that I support stern sentences for such people, in the face of endless whining about how they're all victims (and/or how America stinks) has gotten me no little flak here.

Given its sources, I welcome it.

Posted by: Bill Otis | May 21, 2010 2:05:10 PM

Two things:

1. Raich v. Ashcroft
2. Was the unnamed law professor Cass Sunstein? (Maybe he wasn't a professor any more at that point -- put it sounds like some crazy sh-- he would get behind!)

Posted by: Anon | May 21, 2010 5:02:09 PM

Not to hijack the thread, but I wonder about the sense of proportion of those who get nuts over the execution of a killer. I get called all sorts of names in here simply because I believe in capital punishment and I am willing to defend my beliefs. At the end of the day, an abusive prosecutor is far more of an injustice than the execution of a guilty murderer.

Posted by: federalist | May 21, 2010 6:14:37 PM

federalist --

The assumption of moral superiority by abloitionists is a catalyst to the name-calling. The cause, however, is different and even less pleasant.

If a person were actually morally superior, he would just make his arguments and hope to persuade others. Modesty and maturity would counsel letting it go at that. The cause (as opposed to the catalyst) of name-calling is just old-fashioned arrogance. Anonymity helps too. The degraded level of debate we sometimes see here would be impossible in a live, in-person debate.

There can be sound reasons for anonymity, but when anonymity goes hand-in-hand with name-calling and other types of spitting, it's a putrid brew. I'm sure you've noticed that at Crime and Consequences, we have none of that. Commenters have various and differing opinions, but people act in good faith and (correctly) assume others will as well.

Posted by: Bill Otis | May 21, 2010 7:14:32 PM


I hope that you're right that most voters would look on this expanded power of the federal government with unease, but I do have my doubts as to whether or not that is the case. Supposing that the electorate has reservations about granting the federal government such power, I kind of think that such hesitations would be trumped by the desire for retribution.

I do agree with you, however, that the government has lost it's sense of proportionality. I think that, more than just the unnecessary destruction of lives, a criminal justice system that lacks a sense of proportionality also lacks legitimacy.

@res ipsa:

I agree with you on the sex offender registry. Someone put it to me that it would be like creating a registry for those convicted of property offenses, and placing those who were convicted of stealing a candy bar on it along with those who robbed banks with no clear delineation between the two. The problem is, of course, something of a ratchet effect: legislators are more than happy to expand the list of crimes for which one can become a registrant, because it allows them to appear tough on crime (if you will forgive the cynicism) but cutting that list is a different story altogether (though for much the same reasons).

And the result? A sex offender registry that is essentially worthless as a crime prevention tool (and, indeed, may even be counter-productive), but is very effective as a tool for inflicting pain...which I suspect is probably the intended function.

Posted by: Guy | May 21, 2010 9:08:56 PM

guy: "Someone put it to me that it would be like creating a registry for those convicted of property offenses, and placing those who were convicted of stealing a candy bar on it along with those who robbed banks with no clear delineation between the two"

me: i don't really agree with that point. first, even though both the bank robber and the candy stealer will be listed, the registry listing will be list their offense and the code sections. even the dimmest members of the general public will know that "armed robbery of a bank" or whatever the precise listing would say is a more serious crime than "shoplifting." similarly the public can tell the difference between something like "rape of a child" or "forcible sodomy" and "bestiality" or "public urination."

second, while you often hear about how the registry covers all sorts of teenagers who were sexting or public urinators or 17 year olds who had sex with 15 year olds, any time i've looked up the sex offender registry in the state where i live i've noticed that almost everyone listed on the public registry in fact does have actual serious sex offense with an actual victim. while i do agree that the sex offender registry is basically useless as a public safety tool and needlessly spreads hysteria, its not because it lists a large number of relatively innocent offenses. its because even the most detailed entry on a sex offender registry really doesn't provide much information even with violent sex crimes like rape.

Posted by: virginia | May 22, 2010 12:04:22 PM


I agree that members of the public will be able to tell the difference between the two crimes - and perhaps the point is stated a bit ineptly. The purpose of the registry, at least ostensibly, is public protection and the predicate for inclusion on that registry is not a finding of risk, but merely the commission of an offense. Even if someone is adjudged to be at a low-risk of reoffense, they are nevertheless included on the registry (and that is a distinction, by the way, that does not always break down among offense-type) -- and differentiating between those who pose little risk to those who pose great risk, if even possible, is something that I dare say the public is not able to do, much less trained clinical and forensic psychologists. In other words, while the public can discern between serious and non-serious crimes, a serious crime does not necessarily translate into high risk of recidivism (though it often probably does).

While you may not have seen the listings yourself, it is an unfortunate fact that the registry does cover such Romeo & Juliet relationships in many states (mine included), though some states are inching towards reform, slow as it may be. But your point is well taken that most people on the registry have committed a serious offense against another person.

I do have trouble, however, understanding how providing more detailed information about the crime of the offender (concern's about victim's privacy aside) would lend itself to greater protection of the public. What's the notion, here?

Posted by: Guy | May 22, 2010 8:42:26 PM

"and differentiating between those who pose little risk to those who pose great risk, if even possible, is something that I dare say the public is not able to do, much less trained clinical and forensic psychologists."

How true guy!

that big mess in texas last year over the cult where the state went in and kidnapped about 80 so-called children and had them in their control under observation by the EXPERTS......over 6 weeks later they realized HALF werent' even CHILDREN to begin with.

If experts can't tell how's some drunk in a bar supposed to be able to!

or in this case some redneck on a computer.

Posted by: rodsmith | May 23, 2010 1:52:12 PM

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