The Crimson White

I hope the felons win

Alan Blinder

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For an unfathomable reason, we in the media have drawn battle lines on how the political parties approach law and order issues. Republicans are allegedly the ones who will protect children from harm. Their campaign advertisements accuse “liberal Democrats” (Have you ever heard an advertisement describe a Democrat as anything but liberal?) of being “soft on crime.”

And in the South, there are few accusations that sink a candidate faster than being described as “soft on crime.”

I wonder if the same applies for opinion columnists.

When the Supreme Court of the United States convened Tuesday, the court heard arguments in a little-publicized case that originated in Raleigh, N.C. The case is not as glamorous as the Marshall v. Marshall case involving the late Anna Nicole Smith – or as prominent as Bush v. Gore. But, when it comes to the preservation of the Constitution, United States v. Comstock may be one of the most important cases to come before the court in recent history.

The case centers on a provision of the Adam Walsh Child Protection and Safety Act, a 2006 bipartisan effort to curb sexual offenses in the United States. The law gives the attorney general the authority to order the civil commitment of a “sexually dangerous” individual, even after the person has completed his or her prison sentence.

The statute describes such as person as someone who “has engaged in or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others.”

The Walsh Act also allows for indefinite civil detention of an individual with a mental illness who would “have serious difficulty in refraining from sexually violent conduct or child molestation if released.”

The question that is pending before the court is whether the federal government can order civil detention, a power traditionally reserved for the states.

The solicitor general, the U.S. government official responsible for representing the federal government before the Supreme Court, employed the Necessary and Proper Clause when defending the government’s quashing of its bedrock principles.

Elena Kagan, the solicitor general (and an attorney who I thought would have made for a far superior Supreme Court justice than Sonia Sotamayor), said the civil detention law was an extension of the government’s authority “to run a responsible criminal justice system.”

But a responsible criminal justice system must be one that exists under the law. For me, the issue is not whether Congress has the authority to permit civil detentions – even though I side with the defendants who argue that the Constitution does not give the federal government the explicit power to create or run a criminal justice system – but that Congress seems content with giving permission for inflating punishments after a judge sentenced a defendant.

Perhaps I am mistaken, but I hold the perspective that once a defendant has completed his or her sentence, as ordered by a judge at the time of the original proceedings, they have paid their debt to society. With that being said, I support programs such as a sex offender registry, provided that is part of the sentence from the start.

The problem with the civil detention provision of the Walsh Act is that it allows the attorney general to request what essentially amounts to additional prison time for those already in the federal system.

It is a slippery slope, and one that we must avoid at all costs. While we must do more to protect the innocent from sexual predators, we cannot and should not trample on the Constitution to do so.

I can’t support the government’s position in this case. It’s legally untenable, and while the government has a duty to protect its citizens, that duty does not extend to tearing up the Constitution.

When the government can present a plan to protect that does not extend the confinement – without a jury trial – of individuals, I’ll be inclined to support it.

But for now, when the court returns its opinion later this year, I hope the felons win.

Alan Blinder is the opinions editor of The Crimson White. His column runs weekly on Friday.

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I hope the felons win