March 20, 2012
Interesting medical marijuana data from Arizona
Among the many benefits, in my opinion, of legalizing and regulating marijuana is the opportunity to assemble data on who uses this drug to help assess in a more systematic way the drug's potential benefits and burdens. Consequently, I was intrigued to see this new press report out of Arizona, headlined "Data: Many medical marijuana cardholders are older than 50." Here are the intriguing details:
Medical marijuana is being used to relieve pain by people of all ages and backgrounds — including the elderly, Baby Boomers and 20- to 30-somethings, according to new data from the Arizona Department of Health Services.
Arizonans voted in November 2010 to allow cancer patients and others with certain debilitating illnesses to get a medical-marijuana card with a doctor’s approval. Since marijuana was legalized for medicinal use, more than 22,200 people have received permission to smoke, eat or otherwise ingest it to ease their ailments.
Of those, nearly three-quarters are men, and nearly 85 percent of all patients have requested to grow their own cannabis. Officials denied nine applications.
People ages 31 to 50 make up the largest group of patients using the drug to counter illness, representing 40 percent of all medical-marijuana users. Those 51 to 81 account for more than 35 percent of patients, while 18- to 30-year-olds make up about 25 percent. People younger than 18 represent less than 1 percent.
The overwhelming majority of medical-pot users reported chronic pain as their medical condition, while muscle spasms were also high on the list, health officials reported. Other ailments include hepatitis C, cancer and seizures.... Will Humble, director of the state’s Department of Health Services, said the data indicate the state has avoided becoming a “largely recreational program as opposed to medical.”
“The fact that we’ve got an older demographic tends to make me think that we did a decent job,” Humble said. “When you add up the folks older than 41, it’s well over half of the participants. That doesn’t mean there’s not recreational users in that group, but as you get older, you do tend to get more debilitating medical conditions, so I’m encouraged by that.”
Opponents of medical pot, however, are discouraged by the data. Carolyn Short, chairwoman of Keep Arizona Drug Free, campaigned against efforts to legalize medical pot and said the data suggests most patients are faking or exaggerating their problems. She believes Arizona’s data indicates that nearly all patients are substance abusers, based on research by an addiction psychiatrist who opposed the legalization of medical marijuana in 2010.
March 19, 2012
Video preview of Jackson and Miller Eighth Amendment cases
As repeatedly mentioned recently, the Supreme Court is due to hear oral argument tomorrow in Jackson v. Hobbs and Miller v. Alabama, the two cases concerning the constitutionality of sentencing a 14-year-old killer to life without parole. The crackerjack folks here at the OSU Moritz College of Law has put together this video preview of the case (in which you can see me magically placed in front of the US Supreme Court while I discuss the basic jurisprudential issues in Jackson and Miller and also this amicus brief that I put together along with a group of my students for these cases).
Some recent related posts providing previews of Jackson and Miller cases:
- Basic background on Jackson and Miller, the new SCOTUS juve LWOP cases
- Briefs available, and jurisprudential challenges clear, in Jackson and Miller JLWOP cases
- Notable early prediction on what SCOTUS will do with juve LWOP in Jackson and Miller
- "The Lives of Juvenile Lifers: Findings from a National Survey"
- Taking stock of Michigan's interests in JLWOP issues before SCOTUS
- Lots of media coverage anticipating SCOTUS arguments on JLWOP
Professor Bibas guest-blogging on "The Machinery of Criminal Justice"
Especially because I am heading out on a Spring Break trip that will soon lessen my (daytime) blogging opportunities, I am very pleased to be able to welcome Professor Stephanos Bibas as a guest-blogger to discuss sentencing issues raised by his terrific new book my new book, titled "The Machinery of Criminal Justice," which was just published by Oxford University Press and is available here. (Though I have not yet had a chance to read the entire book, I feel confident already describing the book as terrific based on the introduction available here via SSRN and based on the guest-blogging Stephanos has already done recently in this series of posts at The Volokh Conspiracy.)
For those interested in the broad array of topics that Stephanos takes on in this book (and everyone should be), I highly encourage whetting your appetite by checking out the posts already up at Volokh (or at least this provocative first one in the series). Here is a key theme from the book mentioned set forth in that post: "without much thought, we have drifted over the past four centuries from the colonial morality play to the modern criminal justice machine. There’s no question that professionalization has brought tangible benefits, especially the ability to handle staggering caseloads. What I want you to see, however, is the price we have paid to purchase more and more efficiency."
Stephanos reports he will be covering a lot of different ground in this blog space than he did at Volokh. As he put it in an e-mail to me, he plans to cover different aspects of the book likely to be of even more interest to sentencing fans, "especially the shift from temporary punishments to prison, the frustration that causes, and various reforms to punishments (work / military service, collateral consequences, reentry)." I am very happy to be lending this space for this great use and very excited to see what Stephanos has to say.
(I hope and expect to do still do some additional blogging while on the road over the next few days, but I cannot predict how much or how often, especially because I also have a fantasy baseball draft for which to prepare.)
"Keep Fighting Drugs: Giving up is not an answer"
The title of this post is the headline of this National Review Online commentary authored by (my former law school classmate) Artur Davis, who served four terms in Congress representing Alabama’s 7th district. Here are excerpts from an interesting piece that merits a full read:
On the African-American left, the momentum is building for a rollback of the War on Drugs. This is a consistently vague agenda; it shifts from legalizing marijuana, to freeing police resources for more urgent matters, to comprehensive sentencing reform, and all points in between. But at its worst, it is a dangerously misplaced priority, and a sad reminder of the leadership vacuum in the one community that is trapped in a depression.
To be sure, critics of the War on Drugs have some indisputable facts on their side: Prisons at the federal and state level are crowded with relatively inconsequential, low-level dealers who are hardened by their stint behind bars, and who are often rendered permanently voteless and jobless when they resurface. A disproportionate number of those men, and ever so occasionally women, are black, a factor that helps give prisons the ugly look of a barricaded ghetto. (See Michelle Alexander’s best-seller The New Jim Crow.)...
Most of these flaws have a valid remedy that policymakers should consider.... All these shortcomings need to be addressed.
But the War’s sharpest critics would probably consider [sentencing] reforms to be piecemeal and tepid. Their rhetoric, if not their specific proposals, suggests that they would be dissatisfied with any regime that stresses incarceration and punishment, and that they would distrust even a system that treats the bit players differently from the ringleaders. According to this view, the status quo is so steeped in disparity and so invidious in its purpose that it would take something quite close to disarmament to undo the damage.
Michelle Alexander’s recent work, for example, explicitly ties the origins of the War to the rise in conservative, law-and-order politics and to a backlash against the assertiveness of the civil-rights movement. Her charge ignores the objective facts that (1) the crack trade exponentially expanded in the Eighties, and (2) the users who were maimed by the drugs and their trade were overwhelmingly African-American. Her book offers a strangely sympathetic treatment of the viciously predatory men who ran that trade and built mini-fortunes from it....
John McWhorter, in The New Republic, makes a claim even more circuitous than Alexander’s: that it’s the drug crackdown — and not the drug epidemic itself, or the explosion of births out of wedlock, or crushing poverty, or abysmal education, or the insidious gang culture — that is responsible for the rise in inner-city alienation. That is a sweeping underestimation of every destructive trend in distressed communities, and it is as single-mindedly wrong as Alexander’s effort to read right-wing politics into what was, after all, predominantly a crackdown on black-on-black crime. (It is worth noting that, for all their flaws, drug sentences are the rare instance in which crimes with black victims are consistently punished severely.)
There is of, course, a cruel set of ironies at work here. In associating the devastated lives of young, poor black men so tightly with the War on Drugs, liberals are doing exactly what the most unfeeling conservatives do when they collapse all inner-city black men into vignettes of current and future street criminals. In arguing that incarceration and punishment drive poverty in the black community, the Left is unintentionally mimicking the Right’s bias that poverty is secondary to a pattern of criminal irresponsibility in the destruction of the ghetto. In its zeal to encourage a radical scaling back of the drug laws, the Left is short-changing the importance of education, jobs, and community reinvestment — in other words, it is de-emphasizing priorities in the same way the Right is accused of doing.
A lot can and should be said about Davis's notable perspective on these issues, but I think the folks at National Review do his commentary a significant disservice by giving it the title that headlines the piece. Davis is making an interesting (though surely contestable) claim that racial sentencing disparities and the impact of the drug war is not a healthy focus for those principally concerned with the state and future fate of black community. But that claim does not amount to significant advocacy for continuing the drug war, it just is an effort to urge a certain group of advocates not to put too much emphasis on this front.
Notable NJ criminal justice feud between US Attorney (appointed by Ds) and federal judge (appointed by Rs)
A helpful reader altered me to this fascinating article from the New York Times reporting on a significant spat between a notable federal judge and the US Attorney in New Jersey, some of which appears to be centered on mandatory minimum sentencing matters. As my post title hints, this quarrel is especially interesting and telling because the US Attorney is a Democratic appointee complaining about a Republican-appointed judge being too soft:
The judge, William J. Martini, 65, a Republican congressman in the 1990s, has taken to rolling his eyes and barking “sit down” at federal prosecutors while declaring their tactics “grossly offensive.”
The United States attorney, Paul J. Fishman, 55, a Justice Department official under President Bill Clinton, has had his prosecutors call the judge “misguided,” “irrational” and worse in court filings.
The feud centers on two cases, a murder trial and a drug trial. In the murder case, Judge Martini dismissed some charges in a racketeering indictment and limited the evidence that Mr. Fishman’s office could introduce. In the drug case, Judge Martini refused to impose a mandatory 40-year sentence, which he said was excessive for a street-level trafficker.
Both cases featured Judge Martini steaming about what he labeled overzealous prosecutors, an appeals court overruling him, and Mr. Fishman’s prosecutors claiming that he proceeded to cripple their cases anyway. Each side has cast itself as fighting for justice and has suggested that the other was out of control, in an important test of the roles of the judiciary and the prosecution.
“We’re talking about a life imprisonment case here, and he should be tried fairly,” Judge Martini said in the murder case, implying that prosecutors did not agree with that fundamental principle of fairness.
But the real cringing among lawyers started when Mr. Fishman’s office asked a federal appeals court not only to overturn the judge’s ruling in the drug case, but also to remove him from the case, saying it seemed that he “could no longer be impartial.” One removal request would be startling enough, coming from a United States attorney who files all his cases in federal court. But soon, Mr. Fishman’s prosecutors had begun a second written attack on Judge Martini, the likes of which lawyers here said they could not recall.
The prosecutors went after Judge Martini aggressively in the murder case, involving witness-killing charges against a former federal prosecutor turned defense lawyer, Paul W. Bergrin. They said the judge had displayed an “unwillingness to conduct a fair trial” and should be removed from that case as well. Judge Martini “had several inexplicable blowups,” Mr. Fishman’s brief added. The two cases will soon reach the federal appeals court in Philadelphia, and the stakes are high for both men. Neither would be interviewed for this article.
Judge Martini, who has a reedy voice and a thatch of wiry hair, could be branded by a higher court as biased against prosecutors or, perhaps more damaging in the close-knit legal community in Newark, as an unpredictable bearer of grudges. Mr. Fishman, compact and intense, could come to be known for crossing the line that often keeps such personal battles private in the courts, infuriating many of the state’s federal judges.... Some lawyers said they were stunned by Mr. Fishman’s move against Judge Martini. “I don’t think they’re acting rationally,” said Gerald Krovatin, a defense lawyer who has appeared before the judge....
The drug case involved an Irvington heroin trafficker, Douglas Kennedy, who had been convicted on drug and gun charges. Judge Martini railed against the prosecutors for demanding the “draconian” mandatory 40-year sentence, and constructed a legal argument to impose a 15-year sentence instead.
The prosecutors appealed. Judge Martini was overturned by a federal appeals court. He then presented a different legal analysis and again sentenced Mr. Kennedy to 15 years. He said the prosecutors had misused their power in pushing for the longer “sledgehammer” sentence for “street activity” that often got more lenient treatment.
Now the prosecutors want the appeals court to overturn the sentence again and send Mr. Kennedy’s case to another judge. They said they had told Judge Martini that most judges would have imposed the maximum. Judge Martini’s reply: “Well, that’s not Judge Martini.”
Report on Southern Union argument suggests SCOTUS will apply Apprendi to fines
This AP report on today's oral argument in Southern Union, the Apprendi fines case before the US Supreme Court, indicates that "several justices sounded skeptical of the government's case for upholding the penalty against Texas-based Southern Union Co. over its improper storage of mercury in a building in Pawtucket." Here is more from the press account:
Unlike other Supreme Court disputes involving corporations, this case does not appear to divide the justices along ideological lines. In the sentencing cases, conservative Justice Antonin Scalia has been the most forceful advocate for reining in judges and requiring juries to find any facts that could lead to a longer sentence.
Scalia said he sees the Southern Union case as a logical extension of the court's earlier rulings. He said it would be odd to require a jury to establish facts that lead to even the shortest jail term, yet give judges freedom to decide on fines that "will make a pauper of you."
But another conservative justice, Samuel Alito, seemed more open to the administration's argument. Alito, a former prosecutor, has been more supportive of the government's side in sentencing cases.
Joyfully, we can all now read the oral argument transcript ourselves in Southern Union because it is now posted here at the Supreme Court's official website. I hope to have time later today to read and provide further comments on the full argument.
Some recent related posts:
- SCOTUS to decide whether Apprendi applies to criminal fines via Southern Union
- Sixth and Eighth Amendment cases as notable amuse-bouche for SCOTUS health care litigation
- Top-side brief in Southern Union explains why Sixth Amendment Apprendi rule applies to fines
- How might newer Justices take on Apprendi jurisprudence in Southern Union?
- Seeking early predictions on Southern Union (and Apprendi's future)
UPDATE: The transcript reveals every Justice played their expected role, with Justice Alito and Breyer continuing to have a very hard time accepting Apprendi and Justice Scalia continue to stress its import. I expect there are five votes (and perhaps more) for Southern Union to prevail, but I also expect we will see a narrow opinion in order to garner the most votes and reduce multiple opinions.
Sympathy for a devil?: Eager to hear (civil) thoughts on military mass murderer and death sentencing
The provocative start to the title of this post (as well as the image I have posted) not only borrows from my favorite Rolling Stones' song, but also seeks to encourage thoughtful reflections on readers' reactions and feelings concerning Staff Sgt. Robert Bales, the Army soldier who is set to be charged in the killings of 16 Afghan civilian men, women and children. The personal and professional history of Bales emerged in the media this past weekend, and his backstory adds many potential layers to what is already a dynamic story of one man's experiences with both guns (in the military) and roses (though succes in other parts of his life). Here is some of that backstory via this lengthy Wall Street Journal article:
Interviews with those who knew Staff Sgt. Bales where he grew up outside Cincinnati, where he was known as "Bobby" and at Joint Base Lewis-McChord outside Tacoma, Wash., where he was stationed, expressed disbelief over the accusations he is facing. "That just wasn't him. That's why it's torn anybody up that knew him," said Nita Pertuset, who lives three doors from the house in Norwood.
Military officials have said alcohol was likely involved in the killing spree, and Staff Sgt. Bales has had minor skirmishes with the law over the past 10 years, according to records.
Records and interviews reflect the family's financial stress, a recent decision to sell their Lake Tapps, Wash., home at a loss, and professional disappointment, first at missing out on a promotion after a tour in Iraq and then being sent to Afghanistan after believing his overseas assignments were finished.
"It is very disappointed [sic] after all of the work Bob has done and all the sacrifices he has made for his love of his country, family and friends," Karilyn Bales, the soldier's wife, wrote last year on her family blog, say excerpts quoted by the Associated Press. "I am sad and disappointed too, but I am also relieved, we can finally move on to the next phase of our lives."
She said that she hoped Staff Sgt. Bales would be given a new assignment in a different location, perhaps Germany, Italy or Hawaii. "We are hoping that if we are proactive and ask to go to a location that the Army will allow us to have some control over where we go next," she wrote.
Some who knew Staff Sgt. Bales in the community of Norwood, outside Cincinnati, were puzzled when he abandoned what seemed like a promising career in the financial-services industry to enlist in the Army following the Sept. 11 attacks. He went to Norwood High School, where he played on the varsity football team. He was popular among other players: "The kind of guy that got everybody pumped up," said Mr. Berling, who was a teammate. "Popular guy, captain, big smile," Mr. Berling said. "He was always very personable."...
Robert Bales was ... a student of military history. Mr. Berling remembers a course in which Staff Sgt. Bales went back and forth with the teacher over particulars of war. "He knew all the names of the generals and battles, from the Revolutionary War and Bunker Hill, and all that," Mr. Berling said.
Still, some didn't understand why he enlisted in the Army, especially after attending Ohio State University and beginning a career as a financial adviser. In a high school graduating class of about 125, most students had gone on to college, and few went into the military, which wasn't a particularly big part of the culture.
Another friend and neighbor in Ohio, Michael Blevins, 35, said he has known "Bobby" since he was 2 years old and Staff Sgt. Bales was 5. Mr. Blevins still lives across the street from the red brick single-family home where the suspect grew up. He and Mr. Berling both recalled that Staff Sgt. Bales helped care for a special needs man in the neighborhood. When he enlisted in 2001, he was heading to boot camp, and called Mr. Blevins the night before he left. Mr. Blevins said he told him that it "felt right to him. He had a real sense of pride about it."
Once in the military, many of those who served with him considered him a "likable guy" — always laughing, quick with a joke, said retired Capt. Blake Hall. Both were from Joint Base Lewis-McChord near Seattle and served in Mosul, Iraq, then saw fighting in Najaf and Karbala as well as action in Baghdad. "He was involved in all of that," said Mr. Hall, who now operates an online firm called TroopSwap, which arranges consumer bargains for military families....
Mr. Browne, his attorney, has suggested in several interviews that Staff Sgt. Bales may have been deployed too often. After three stints in Iraq, he has said the family thought the Middle East deployments were finished. Then, however, Staff Sgt. Bales was sent to Afghanistan.
But others disagree with that complaint, and even some who knew him said they didn't think the massacre was a result of U.S. military policies and deployments. "What he did is not systemic; he was a lone actor," said Mr. Hall, the retired captain, commenting on the allegations. "The media is painting this as 'too many deployments,' [but] he broke several orders, first drinking and then shooting women and children."
In addition to urging readers to keep civil here, I am especially interested to hear from supporters of the death penalty concerning whether (and why) they think these and other personal background matters are important in assessing Bales' punishment for what seems like a death-deserving crime. Unprovoked slaughter of many women and children is often justifiably viewed as a the kind of horrific crime for which death is a fitting punishment. I fully expect the anti-death penalty crowd will be eager to stress the personal factors to explain why, even for an extreme mass murder, death is not a justifiable punishment. But, especially due to the political and social overtones of this case, I want to know if strong death penalty supporters have a unique kind of sympathy for this (not-so-unique?) kind of devil.
Recent related post:
UPDATE: This lengthy new profile of Bales in the New York Times adds these addition details concerning how those who knew Bales before his recent arrest have come to think about why he was involved in this awful crime:
Friends, relatives and his lawyer say they have an idea of what that horrible thing was [which happened to him]: war. Three deployments in Iraq, where he saw heavy fighting, and a fourth in Afghanistan, where he went reluctantly, left him struggling financially, in danger of losing his home.
And there were more direct impacts. During his deployments, Sergeant Bales, 38, lost part of a foot and injured his head, saw fellow soldiers badly wounded, picked up the bodies of dead Iraqis, was treated for mild traumatic brain injury and possibly developed post-traumatic stress disorder, his lawyer and military officials said.
SCOTUS grants cert on two capital habeas cases
As reported here at SCOTUSblog, the Supreme Court this morning kick off a week that has lots of criminal justice issues afoot with certiorari grants in two capital habeas cases: Ryan v. Gonzales (SCOTUSblog case page here) and Tibbales v. Carter.
According to the folks at SCOTUSblog, "Ryan is about appointment of counsel for indigent capital defendants" and Tibbales concerns whether "capital prisoners have a right to competence in habeas proceedings, and can a court order an indefinite stay of habeas proceedings." Based on these descriptions, I surmise neither of these cases are likely to be blockbusters or even to have much impact outside of the technical world of federal habeas process. But the cases may end up providing the newer Justices with an opportunity to articulate their views on just how different death penalty all and practice should be.
UPDATE: This new AP article provides more details on the cases the Supreme Court this morning decided to take up:
The Supreme Court has agreed to hear appeals from two states objecting to federal court-ordered delays for death row inmates claiming serious mental health issues.... In each case, a death row inmate won an indefinite delay from federal judges based on disputed claims of mental incompetence to understand the proceedings against him and aid in his own defense.
Sean Carter was sentenced to death for raping and killing his adoptive grandmother in 1997. Ernest Valencia Gonzales received a death sentence for a murder in Arizona in 1990.
STILL MORE: Lyle Denniston has this new post at SCOTUSblog discussing these circuit grants, which provides this basic thematic context:
The Justices’ agreement to take on two new death-row cases brings the Court back to an exploration of the rights of individuals who have been sentenced to death in murder cases and then are found to be mentally incompetent. If they are actually insane, they cannot be executed, under the Court’s 1986 decision in Ford v. Wainwright. The mentally retarded were also shielded from execution by the 2002 decision in Atkins v. Virginia. Those rulings meant flat bans on the death penalty. But the Court has not sorted out what other legal rights the mentally ill on death row have when, having failed in challenges in state court, they turn to federal courts to press their legal claims.
Lots of media coverage anticipating SCOTUS arguments on JLWOP
Unsurprisingly, the media now has lots of discussion of kids sent to prison for life with the US Supreme Court due to hear oral argument tomorrow in Jackson v. Hobbs and Miller v. Alabama, two cases concerning the constitutionality of sentencing a 14-year-old killer to life without parole. Here is just a sampling of some of the notable new pieces from both old and new media:
From ABC News here, "Juvenile Murderers: Is Life Without Parole Unconstitutional?"
From the Chicago Tribune here, "For young killers, 'a chance to have a chance'; Supreme Court to consider whether a life sentence without parole is too harsh for juveniles"
From the Daily Beast here, "Ex-Prisoners Say Life Term Is Cruel for Teens, As Case Hits High Court"
From UPI here, "Under the U.S. Supreme Court: When children commit murder"
In addition, a large number of news outlets have recent editorials urging SCOTUS to declare these juve LWOP sentences always unconstitution, including CNN and the Los Angeles Times and the New York Times and the Washington Post and lots of other smaller media outlets from all around the nation (as evidenced here and here and here).
Some recent related posts on Jackson and Miller cases:
- Supreme Court grants cert on two Eighth Amendment LWOP challenges for 14-year-old murderers!
- Basic background on Jackson and Miller, the new SCOTUS juve LWOP cases
- Briefs available, and jurisprudential challenges clear, in Jackson and Miller JLWOP cases
- Notable early prediction on what SCOTUS will do with juve LWOP in Jackson and Miller
- "Graham on the Ground"
- Does Graham create constitutional problems for juve LWOP for murder accomplice?
- "Teen killers get inconsistent sentences"
- "The Supreme Court and the Sentencing of Juveniles in the United States: Reaffirming the Distinctiveness of Youth"
- "Juvenile Criminal Responsibility: Can Malice Supply the Want of Years?"
- Great early commentary on SCOTUS taking "Another Bite at the Graham Cracker"
- "The Lives of Juvenile Lifers: Findings from a National Survey"
- Lengthy new New Yorker piece on juve LWOP and 14-year-old Michigan murderer
March 19, 2012 in Assessing Graham and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3) | TrackBack
March 18, 2012
Extraordinary review of federal sex offender civil commitment program
USA Today has published this extraordinary report on the federal sex offender civil commitment program under the headline "Sexual predators rarely committed under Justice program." Here is how it gets started:
Inside the sprawling federal prison here is a place the government reserves for the worst of the worst — sexual predators too dangerous to be set free.
Six years ago, the federal government set out to indefinitely detain some of the nation's most dangerous sex offenders, keeping them locked up even after their prison sentences had ended. But despite years of effort, the government has so far won court approval for detaining just 15 men.
Far more often, men the U.S.Justice Department branded as "sexually dangerous" predators, remained imprisoned here for years without a mandatory court hearing before the government was forced to let them go, a USA TODAY investigation has found. The Justice Department has either lost or dropped its cases against 61 of the 136 men it sought to detain. Some were imprisoned for more than four years without a trial before they were freed.
Dozens of others are still waiting for their day in court. They remain in a prison unit where authorities and former detainees said explicit drawings of children are commonplace, but where few of the men have received any treatment for the disorders that put them there.
Despite that, neither the Justice Department nor other watchdog agencies have offered any public assessment of how well the federal civil commitment law works.
For this investigation, USA TODAY reviewed all 136 cases that have been brought to court, drawing on thousands of pages of legal filings and dozens of interviews with attorneys, psychologists and former detainees.
The outcomes documented by that review have raised questions about a system meant to control men too seriously ill to control themselves. A federal appeals court in Richmond, Va., has already called delays in bringing the men to trial "troubling," and suggested that they could raise concerns about the detainees' constitutional right to due process. And Rep. Jim Sensenbrenner, R-Wis., one of the law's key supporters, said "there will be somebody who will have to answer" for them.
"We need to be very, very careful in a free society about a system in which a group of people can make statements that result in someone being deprived of their liberty for a future crime," said Fred Berlin, the director of the Sexual Behaviors Consultation Unit at the Johns Hopkins Hospital. "If it's going to be done, it has to be done in a just and fair manner."
Many of the men the government sought to detain have been found guilty of molesting children or brutal sexual assaults. One killed a woman. U.S. Bureau of Prisons psychologists certified that the men also suffer from mental abnormalities making them "sexually dangerous," a determination that keeps them locked up while their cases are reviewed. By law, a federal judge must ultimately decide whether the government can prove the inmate is too dangerous to be released. Worst of the worst
But in case after case, those determinations have come into question. In at least two cases, the government could not prove the men had committed crimes serious enough to justify committing them. Others had not been found guilty of a "hands-on" sex offense in decades. Some psychological assessments failed to fully account for men's ages, a key factor when assessing risk.