« US Supreme Court, voting 6-3, issues last-minute stay of execution in Georgia | Main | Grover Norquist calls criminal justice reform one of the "conservative movement’s most important recent accomplishments" »

September 27, 2017

"Will SCOTUS Let Fear of Sex Offenders Trump Justice?"

The title of this post is the headline of this new Reason commentary by Jacob Sullum spotlighting two cases I have tracked on this blog as they have made their way up to the Justices. Here is how the piece starts and ends:

According to the U.S. Supreme Court, locking up sex offenders after they have completed their sentences is not punishment, and neither is branding them as dangerous outcasts for the rest of their lives.  Two cases the Court could soon agree to hear give it an opportunity to reconsider, or at least qualify, those counterintuitive conclusions.

Karsjens v. Piper is a challenge to the Minnesota Sex Offender Program (MSOP), which since 1994 has confined more than 700 people who were deemed too "sexually dangerous" to release after serving their prison terms.  Although these detainees are supposedly patients rather than inmates, in more than two decades only one of them has ever been judged well enough to regain his freedom....

Another case pending before the Supreme Court, Snyder v. Doe, is an appeal of a 2016 decision in which the U.S. Court of Appeals for the 6th Circuit ruled that Michigan's Sex Offender Registration Act, ostensibly a form of civil regulation aimed at protecting public safety, is so punitive that its requirements cannot be applied retroactively without violating the constitutional ban on ex post facto laws.  The 6th Circuit noted that the law "has grown into a byzantine code governing in minute detail the lives of the state's sex offenders," including onerous restrictions on where they may live, work, and "loiter."....

The Supreme Court has let fear of sex offenders, a despised minority that includes many people who pose no real danger to their fellow citizens, trump traditional concerns about due process and just punishment.  By hearing these cases, it can begin to repair the damage it has done to those principles.

September 27, 2017 at 11:06 AM | Permalink


A rare example of a question in a headline that is answered with a "yes".

Posted by: Daniel | Sep 27, 2017 11:17:23 AM

The word "trump" is going the route of "gay" as never truly being without a different meaning than originally intended.

Posted by: Joe | Sep 27, 2017 12:13:58 PM

Each section of these extensive regulations should be shown to be safe and effective for their intended purpose. If no such proof exists, undue burden analysis should apply, as it does in other medical controversies, such as abortion.

For example, prior to placement, the sex offender had the typical 400 victims over 10 years. He has proven to be busy, and unable to control himself. He is both dangerous and mentally ill. Since placement, he has had none. That is an effective remedy, and should continue. This is for specific deterrence via incapacitation.

Posted by: David Behar | Sep 27, 2017 12:19:44 PM

"the sex offender had the typical 400 victims over 10 years"

In psychology we have a term for this kind of mental activity, we call it projection.

Posted by: Daniel | Sep 27, 2017 12:29:03 PM

My hunch is that they will deny cert on the civil commitment case. To the best of my knowledge, there is not yet a Circuit split on that issue.

If it was just registration, you would probably be looking at a summary reversal on the Michigan case. With the other restrictions in play, I am thinking that full briefing is more likely.

Posted by: tmm | Sep 27, 2017 1:02:43 PM

Daniel. That number is from a survey with a certificate of immunity from the DOJ. I sat down with an exhibitionist. We did some lawyer arithmetic. 7000 victims. Not a typo, 7000.

Posted by: David Behar | Sep 27, 2017 3:59:05 PM

In reply to David Behar. The best remedy is to provide treatment during the sex offender's imprisonment instead of waiting after its expiration. Why do the proponents of civil commitment want to delay "treatment" until after the individual's sentence. The sooner an offender gets real treatment the better, not just warehousing.

As to making anybody safer, you could potentially put the staff and corrections guards at risk to their own safety when you keep one beyond his or her imprisonment. Once civilly committed, where is the detainee's incentive to behave toward his or her jailors instead of lashing out? If civilly committed detainees decide to take a page from the Attica Prison insurrection of 1971 or the wave of prison strikes, both violent and non-violent, that got started around this time last year, your policy could actually put guards and staff at extra risk to their own safety. Civilly committed inmates have nothing to lose once indefinitely committed. As soon as this fact sinks into many of these detainees, we could have major militant revolutionary unrest behind the walls of these civil commitment institutions.

Who pays for civil commitment? Not indigenous inmates, mind you. It's us tax payers who have to pay for this by taking away money from much needed public schools, city parks, community policing, public transit, safe streets, etc. Only a few right-wing tea party politicians make any profit from civil commitment.

Frankly, it's a wonder that so many civil commitment institutions have not yet blown up in violent uprising. The fact that they so far have not does not mean that they never will. We once thought that our prisons would never explode until Attica disabused us of such wishful thinking. Over ten guards and thirty inmates lost their lives then. We never thought our inner cities would erupt against police and racism until Watts blew up in 1965.

Besides, what about other dangerous offenders who reoffend like drunk drivers, drug dealers, drive-by shooters, embezzlers, arsonists, traitors, etc. We don't civilly commit them or force them to register upon completion of their sentences. I guess you would rather some arsonist burn your house down with innocent people like yourself inside than release somebody who has already paid their debt to society?

If a person re-offends, we can simply re-convict them in a court of law with a harsher sentence based on their prior record. That way, one gets a trial and is at least CHARGED with an offence instead of civilly committed without due process.

If you want to move to Stalinist Russia or Nazi Germany where they had such laws, be my guest. But the U.S. is supposed to be about due process. Start acting like a real American for a change, Mr. Behar instead of like a Stalinist or Nazi!

Posted by: william r. delzell | Sep 27, 2017 7:18:55 PM

William. Do you have any comment addressed to the hundreds of victims of one, and to the thousands of victims of the other? Do you believe that re-offenders can be managed by the legal system, after they relapse? In no count of crime were the 7000 exposures of the guy counted, including to 6 year old girls and their mothers on their way to school. You are the mother, what do you say to the girl after the guy pulls down his pants to show his genitals? B specific, write down what you would say, exactly.

Posted by: David Behar | Sep 27, 2017 9:27:46 PM

David, first, one doesn't have to be a male to commit this disgusting type of crime and, second, a child does not have to be female to experience such a traumatic crime. Too many people have this stereotype that only males can commit sex offenses and that only females can be victims. This is just like racial stereotypes that many whites have about black suspects or black criminals. If this happened to my child, I would want to comfort my child and assure my child that I as her father am there to protect her (or him) and to help the authorities find the person who committed this offense. When my child was comfortable enough, I would ask her or him if s(he) remembered what the offender looked like and if s(he) remembered exactly what happened. I would ask the authorities if the offender had a prior record. If one relapses and re-offends, throw the book at that person as a repeat offender! I would also advocate programs on how to teach children how to defend themselves and how to report what happened to them to their teachers, parents, police, etc.

David, what about other repeat offenders like arsonists who endanger people by burning buildings down with people in them. We don't civilly commit these types of offenders. Their victims experience trauma, if they survive, of having been almost burnt alive. What about drunk drivers who have injured or killed people in more than one offence as a result of their intoxicated driving? Victims of those crimes suffer terrible trauma if they survive. If a drunk driver hit my child and sped off, I would chase after the person if I had the opportunity. On one occasion, a woman near my church almost hit a child due to her reckless driving. I and several people chased after her car on foot (we didn't have a car to chase her down). We tried to get the license of her car before she turned off at a curve. Briefly, we were tempted to take the law into our own hands against her. Hopefully, the police got her.

I hope I answered your question. I can only guess on what I would do as I don't have children of my own.

Before closing, I want to add that most sex predators know their victims and are often in positions of high trust with the child and the child's family. Very few sex crimes against children happen by strangers in parks or on side walks. Yes, they do happen, but most of these crimes happen behind closed doors by somebody in a position of trust.

Posted by: william r. delzell | Sep 28, 2017 9:37:37 AM

Yes, we all want to live in a perfectly safe society. I cannot comment on the last two post as I know nothing about, I am not privy to data that speaks to the success/failure rate of therapy for exhibitionist. What I must implore the supreme court justices to do is to get their law clerks busy and research, research! Collect and compile as much empirically based science on exhibitionism, and all sex offenses as possible. We know now, and for some time now that the supreme court failed us in this regard. Just ask Robert Longo. Are there dangerous predators out there who need to be monitored closely? Yes. Does the clinical world have proven methods of successfully rehabilitating so-called sexually dangerous offenders? I don't know. Why, because very, very few clinical bloggers respond to this blog. Why, because all sex offenders by law are condemned and demonized with very little regard to the effectiveness of clinical therapy.

Posted by: tommyc | Sep 28, 2017 10:36:36 AM

May I add something else to my latest post?

While you have many fine people out there who have a genuine concern about crime victims/survivors' welfare without attempting to destroy our constitutional government, you have a lot of unsavory opportunists who pretend to be for law and order and for victim/survivor rights when they are actually for order without law and for cynically exploiting people's genuine fears about crime for their own personal gain and power-grab. John and Reba Walsh are blatant examples of such dangerous cynicism. They were criminally negligent of their little boy, Adam Walsh, by leaving him unattended at a penny arcade in a shopping mall when he got kidnapped and murdered. Now, the Walshes are using the horrible crime against their little boy to cash in and become filthy rich and influential as a result.

Walsh made the false statement that male baby sitters are automatically predators while females are not. We in our family had two good male sitters (one a friend of the family; the other with excellent references from the college he attended). Most of our female sitters were quite good except for one female who was verbally abusive. After that incident, our parents were very careful about checking references of anybody, male or female, whom they hired to sit for us when we were children.

Posted by: william r. delzell | Sep 28, 2017 11:00:40 AM


Let see, 800,000 sex offenders times 400 victims per offender equals 320,000,000 offended or about the entire population of the US. Since I was not "assaulted" nor was anyone I know closely (a circle of about 100 people) I assume that means that you must have been raped, touched, groped or looked at cross-eyed several times during your great but traumatic life to account for the mathematical disparities.

Posted by: albeed | Sep 28, 2017 9:55:22 PM

Al. 32 million uncounted crimes a year is a totally real statistics. These crimes are not even FBI Index felonies. They are not even counted in the gold standard, DOJ, Household Crime Victimization Survey.

I saw the guy because a judge required it. He did well, with zero victims for a year, under care. Then, he stopped, because treatment interfered with his lifelong way to find sexual pleasure. For someone with that track record, I do not think anything can beat the motivation of sexual pleasure, not even the fear of prison.

Posted by: David Behar | Sep 28, 2017 10:51:43 PM

William. I like your response to the child. It avoids age inappropriate conversation.

I hope we can agree that we share support for individualized remedies, accuracy of sentencing, but the priority of public safety in the face of uncertainty about those first two values.

I oppose lawyer stupidity, oppression, and rent seeking. I oppose prosecution of thought crimes, that violate the Free Speech Clause, and its obverse, the right to receive speech. No dumbass defense lawyer has put that defense forward.

Posted by: David Behar | Sep 28, 2017 11:02:10 PM


You are right, I must have repressed an old traumatic event and forgotten that I was sexually assaulted.

When I was in college, I worked many jobs to put myself through. One job was as a bartender at a popular nightspot. One night I was working the door for crowd control and only permitting entrance as space became available and other patrons left. I was leaning against the cigarette machine at the entrance (horrors - a cigarette machine) looking into the crowd inside to see what was available when someone grabbed my "gonads" from behind. I turned around to see a group of about 5 attractive girls look away sheepishly. I was so traumatized that I became a victim of some kind of Stockholm syndrome and told them please don't stop as that was the highlight of my day.

If I had pressed charges (as many now do), now one of them would be on the registry for life and could not live within 1,000 feet of a place where children gather, pay a fine every year and be shunned by society and probably homeless. It is politicians (aka, vote whores) who pass these "laws" (head bowed please), judges which enable this stupidity and nine baboons in black pajamas that endorse this madness because it is the law, while whitewashing the Constitution.

Meanwhile, real sexual criminals like J. Walsh, Mark F., Teddy K. and WJC walk free among us and are even admired. This not only breeds disrespect for the law but outright contempt!

What was I thinking?

Posted by: albeed | Sep 29, 2017 5:59:56 AM

Al. What happened to you that fateful day was an uncounted sex crime by feminists.

Posted by: David Behar | Sep 29, 2017 11:18:51 AM

I have found that District Attorney's fail at defining the offense. The definition of sex offender has many meanings. It is the hardest offense in proving innocence for many reasons. Prison is not the only answer for "sexual crimes", certainly not for a elementary student on a sex offender list.

Prison is for capital offenses such as MURDER.

Once time has been served (full time) there should be no probation and further penalties.

Posted by: LC in Texas | Sep 29, 2017 9:44:56 PM

Why,O why can't our judicial system truly be correctional and rehabilitative instead of punitive and inhumane? Why does our country breed so much hatred for its own citizens? So many of these so called sex offenders never harmed a soul. Just consider what John Walsh did to a woman he dated?

Posted by: Tommyc | Sep 30, 2017 12:07:35 AM

Tommy. We are speaking of chronic condition, with an 80% hereditability. Then, we are speaking for people choosing, low reward, hard working lifestyle over a lucrative and easy working lifestyle.

If you want correction, lobby the DOJ to fund research into finding those genes, and the CRISPR/cas 9 technology to correct then in all the cells of the criminal, including the gametes, or reproductive cells. Such corrective technology would also prevent criminal tendencies in the offspring.

I predict such technology will be coming from China or from Japan. They have less crime dependent employment than the over-lawyered United States.

Posted by: David Behar | Oct 1, 2017 1:46:52 PM

Sorry David, I was referring to the Scarlett Letter of our time.

Posted by: Tommyc | Oct 1, 2017 5:33:39 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB