« More old-school, tough-on-crime talk and thinking from Attorney General Jeff Sessions | Main | Spotlighting a remarkably thoughtful federal sentence in a remarkably challenging setting »

July 23, 2018

"Beyond Strict Scrutiny: Forbidden Purpose and the 'Civil Commitment' Power"

The title of this post is the title of this new paper that I just noticed on SSRN that was authored by Eric Janus. Here is the abstract:

Sex offender civil commitment (SOCC) is a massive deprivation of liberty as severe as penal incarceration.  Because it eschews most of the "great safeguards" constraining the criminal power, SOCC demands careful constitutional scrutiny.  Although the Supreme Court has clearly applied heightened scrutiny in judging civil commitment schemes, it has never actually specified where on the scrutiny spectrum its analysis falls.

This article argues that standard three-tier scrutiny analysis is not the most coherent way to understand the Supreme Court’s civil commitment jurisprudence.  Rather than a harm-balancing judgment typical of three-tier scrutiny, the Court’s civil commitment cases are best understood as forbidden purpose cases, a construct that is familiar in many areas of the Court’s constitutional analysis.  But the Court’s civil commitment cases tie the search for punitive purpose to another genre of constitutional analysis, the application of the substantive boundaries on governmental power most commonly associated with the specific grants of federal power.  In contrast to the normal conception of state power as plenary, limited only by the specific constraints of the bill or rights and the amorphous limits of "substantive due process," the Court has posited a narrowly limited "civil commitment" power. The search for the forbidden purpose maps directly onto the inquiry into the limits of this discrete and special state power.  Finally, the article argues that the forbidden purpose/discrete power analysis provides clarity on another vexing issue, the facial/as-applied distinction.

July 23, 2018 at 12:30 PM | Permalink


The dunderheads at the Supreme Court took over psychiatry in 1976. They know shit. They made it so that involuntary treatment was no longer for clinical necessity as determined by two unrelated doctors. Instead, a dangerous act had to have been committed, and a trial had to be held, generating jobs for three lawyers who know shit. The lawyer in the middle, the magistrate was going to make a psychiatric decision based on the prediction of the future of a mental patient.

Result of this lawless, irresponsible, and idiotic decision in the past 50 years? 2 million suicides, 90% of which should have been prevented. Then 10% of murders are committed by paranoid schizophrenics, including all school shootings. Almost all could had been prevented by adequate, and involuntary clinical care.

This idiot, this dangerous idiot, the Supreme Court dunderhead, the one who knows shit, is the most dangerous criminal of all in this country. This Ivy radicalized fool is the biggest mass murderer of all. Throw in the abortion of black babies over the past 45 years, and this Ivy radicalized dunderhead achieves Mao, Stalin, and Hitler status of mass murderers.

Posted by: David Behar | Jul 23, 2018 10:37:59 PM

What incentives to civilly committed detainees have to behave toward staff and corrections officers? We have seen incidents in regular prisons where inmates doing life without hope of parole will lash out at their jailers, which led to the rational behind "super-max" prisons like Mariana and Pelican Bay.

Keeping a person beyond his or her original sentence is very dangerous for the well-being of staff and corrections officers especially if somebody decides to needlessly provoke one of these detainees. How do these civil commitment centers hire and retain people to work there given these safety concerns?

Posted by: william r. delzell | Jul 24, 2018 9:42:34 AM

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