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This bit of ex-post facto legislation by Congress and President
Bush has been upheld by the entire bloc of liberals plus federalist (in the
sense of federal government power freaks Roberts, Alito, and Kennedy.
This is the first major decision since President Obama's endorsement of
judicial restraint and deference to congressional decisions regardless of
the constitutional provisions.
Many have been worried about the possibility that Elena Kagan will be a kind
of liberal swing vote on the Supreme Court. This should relieve their
fears. The entire liberal wing of the court is now a swing vote.` Without
their support this vote could not have gone for Roberts, Alito, and Kennedy.
How Kagan will actually vote is hard to determine. I don't think her past
record, colored by efforts to please her employers, tells us anything.
Actually, she is not guaranteed to join the bloc of liberal swing voters,
although her past record, insofar as there is one, does not guarantee
anything concerning someone whose whole career has been about pleasing the
authorities. Now, compared to the rest of us, she will be relatively free.
But is freedom what she wants? Well, we will find out. At any rate, I think
a fight against her in particular at this point is worth a plug nickel given
the responsiveness of the current court liberals, including retiring John
Paul Stevens, to Obama's signals.
No one should imagine that this is limited to the current focus on sexual
offenses. Not at all. It all depends on Congress.
If you are sentenced to twenty years for murder (really, not so much less
than a sexual offense, your term can be extended indefinitely unless the
cops and judges are convinced you might do so again. If you were charged
with robbing an apartment or mugging a passerby, how do you prove that you
might not do so again.
In fact, what we are confronted with is a society in which any offense
against the law can be punished with a life sentence, if Congress so decides
(and Congress will decide so if the ruling-class tabloids so rule, no matter
what the ruling-class New York Times might mumble in protest.
Imagine how enthused the "Mothers Against Drunk Driving" (well, many of
them, I suspect) would be if Congress or the state legislature adopted such
sentencing practices.
According to our NEW, IMPROVED SUPREME COURT, any sentence for any offence
can be a life sentence (and why not an ex post facto death penalty, I might
add) if a legislative body and associated executive so decides.
Were there no liberal heroes to stand up in this situation? There were two,
I admit. Clarence Thomas and (on some aspects) Antonin Scalia. Those who
want to have confidence in these defenders of what's left of our liberties
have my permission to do so.
For the rest, my advice to anybody who finds themselves threatened with
arrest and prosecution for a particularly unpopular (in the media especially
but also elsewhere} is simply "RUN! What do you have to lose, when a
sentence of thirty days or thirty years can become a life sentence (or more)
at the discretion of your local legislative body.
Fred Feldman
Supreme Court rules 'sexually dangerous' inmates can be held in prison
indefinitely
By Michael Sheridan
DAILY NEWS STAFF WRITER
Monday, May 17th 2010, 11:43 AM
The Supreme Court has ruled that federal officials can keep prisoners it
deems 'sexually dangerous' in jail, even after their prison terms have
expired.
Kyte/Getty
The Supreme Court has ruled that federal officials can keep prisoners it
deems 'sexually dangerous' in jail, even after their prison terms have
expired.
Take our Poll
Sex Offenders in Prison
Is it fair to keep someone incarcerated after their prison term has expired?
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Related News
* Articles
* Supreme Court rules out life sentences without parole for juveniles
who haven't killed someone
Sex offenders can be kept in prison "indefinitely" if federal officials
believe they could still be a threat, the Supreme Court ruled on Monday.
The ruling supported the Adam Walsh Child Protection and Safety Act, signed
by President George W. Bush in 2006, and authorized the civil commitment of
sexually dangerous federal inmates.
"A federal civil-commitment statute authorizes the Department of Justice to
detain a mentally ill, sexually dangerous federal prisoner beyond the date
the prisoner would otherwise be released," said Justice Stephen Breyer, who
wrote the majority opinion for the 7-2 ruling.
It is "a 'necessary and proper' means of exercising the federal authority
that permits Congress to create federal criminal laws, to punish their
violation, to imprison violators, to provide appropriately for those
imprisoned and to maintain the security of those who are not imprisoned by
who may be affected by the federal imprisonment of others," he said.
The judgment reversed a lower court ruling that said Congress overstepped
its authority in allowing indefinite detentions of prisoners considered
"sexually dangerous."
"The Federal Government, as custodian of its prisoners, has the
constitutional power to act in order to protect nearby [and other]
communities from the danger such prisoners may pose," Breyer wrote.
In order to do it, however, the government must prove the following:
1. The individual has previously "engaged or attempted to engage in sexually
violent conduct or child molestation."
2. He/She currently "suffers from a serious mental illness, abnormality, or
disorder,"
3. The prisoner "as a result of" that mental illness, abnormality, or
disorder is "sexually dangerous to others," in that "he would have serious
difficulty in refraining from sexually violent conduct or child molestation
if released."
A hearing, during which the individual would remain incarcerated, would then
determine whether or not he/she could be released.
"If the Government proves its claims by 'clear and convincing evidence,' the
court will order the prisoner's continued commitment," Breyer said.
"I am concerned about the breadth of the Court's language," wrote Justice
Clarence Thomas, who wrote the ruling's dissent.
Thomas argued that Congress can only pass laws that deal with the federal
powers listed in the Constitution.
Nothing in the Constitution "expressly delegates to Congress the power to
enact a civil commitment regime for sexually dangerous persons, nor does any
other provision in the Constitution vest Congress or the other branches of
the federal government with such a power," Thomas said.
Thomas was joined in part on his dissent by Justice Antonin Scalia.
[email protected]
http://www.nydailynews.com/news/national/2010/05/17/2010-05-17_supreme_court
_rules_sexually_dangerous_inmates_can_be_held_in_prison_indefinitel.html#ixz
z0oDVg9scW
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