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February 10, 2021

Mid-week and mid-winter perspectives on lots of hot criminal justice reform stories

February has been cold and snowy in Ohio, but there are still lots of hot criminal justice reform stories cooking in the middle of winter all over the USA.  So, mid-week and mid-winter, here is a round-up of just some of the reform stories and commentaries catching my eye:

From The Appeal, "Trump Turned The Justice System Into a Black Box.  Biden Could Fix It."

From Bloomberg Law, "Law Firms and Nonprofits Must Work Together for Criminal Justice Reform"

From The Marshall Project, "What 120 Executions Tell Us About Criminal Justice in America"

From The Nation, "How Progressive District Attorneys Are Leading the Charge to Fix Our Broken Justice System"

From Newsweek, "The Biden Administration Can Act on Criminal Justice Reform Now"

From Real Clear Policy, "Washington Must Atone for its Legacy of Mass Incarceration"

From Reason.com, "Civil Commitment of Sex Offenders Pretends Prisoners Are Patients"

From Time, "Why It's So Significant That Virginia Looks Set To Abolish the Death Penalty"

February 10, 2021 at 01:47 PM | Permalink


I first became aware of and was shocked to see the civil commitment of allegedly sexually dangerous persons in my Appellate Advocacy Seminar, when I was a law student at U.Va. Law School in 1986. Our Adjunct Professor in that seminar was a former Assistant Solicitor General of the United States. He picked a group of cases pending before the U.S. Supreme Court for us to brief and argue in our seminar. Then, we drove to the Supreme Court in D.C. to listen to the actual oral argument of our case before the Court. Our professor also got the attorneys who would argue the actual case before the Supreme Court to come to Charlottesville to serve as Judges for our oral arguments in the seminar, which proved to be a very stimulating learning experience. The case my partner and I briefed and argued was "Allen v. Illinois", 4788 U.S. 364 (1986), where the Supreme Court upheld the Illinois Sexually Dangerous Persons statute and provided that defendants undergoing psych interview before and during the program did not have a Fifth Amendment privilege against self-incrimination, because the statute is civil in nature, not criminal. One of the most shocking parts of that Supreme Court holding is that persons committed under the Illinois Sexually Dangerous Persons Act are held (incarcerated?) in a maximum security prison (the Penitentiary at Menard, Illinois), alongside convicted felons! How can the Court call the statute civil when people detained under it are held in a criminal penitentiary, alongside convicts? From working on the Allen case in my law school seminar, I have never gotten past thinking that it is just wrong. In the 35 years since then, this issue has only become more profound, as it has become clear that many states are not engaging in any meaningful treatment of those allegedly being held under "civil commitment", so Courts are ordering the states to spend large sums of money to treat these men. The other problem I see with the statutes is that they place the burden upon the committed man to prove by "clear and convincing evidence" that they are no longer sexually dangerous to be released back into society, or to remain detained for life! Exactly how are these men supposed to prove that they are no longer sexually dangerous? This is nothing more than a Kafkaesque Catch-22. It's hard to believe that we actually do this to people in America, given the supposed provisions of our Constitution. Regardless of what the Supreme Court says, this so-called "civil commitment" sure looks criminal to me.

Posted by: Jim Gormley | Feb 11, 2021 8:38:13 AM

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