Monday, May 17, 2010

Court Commentary: Comstock v. United States pt. 2

Not too long ago, I briefly profiled (in verse) a Supreme Court case about civil commitment, which uses mental health laws to keep sex offenders in jail after their jail term is up. Depending on the state's law, this can be with the approval of a three-person board (like a parole), or a judge's hearing.

In my opinion, this amounts to giving someone who was not handed a life sentence, with little chance for appeal, for a potential future crime. I am against using the legal system to combat potential future crime, for reasons most eloquently argued in Minority Report, or in the episode of This American Life that explored a two-year operation to create a terrorist arms trader to then arrest him.

In a 7-2 ruling (opinion by Justice Breyer), the Supreme Cort upheld civil commitments as being legal. The dissenters were Thomas and Scalia... which makes me feel a little strange, seeing as I never thought I'd be counted among Thomas and Scalia.

Breyer's opinion begins:
The Necessary and Proper Clause grants Congress authority sufficient to enact [civil commitment]. Taken together, five considerations compel this conclusion. [...]
(1) The Clause grants Congress broad authority to pass laws in furtherance of its constitutionally enumerated powers.
Already, my red flag is up. The "Necessary and Proper Clause" is rightly nicknamed the "Elastic Clause" because it is very easy to use it to negate the rest of the Constitution. But deciding on exactly where the limits of the Elastic Clause lie is tricky and slippery. I'm very upset to hear that in this case, civil commitment was considered "necessary and proper" to uphold the laws.

From there, the argument is that civil commitment falls under mental health laws, which provide Congress with the authority to pass laws involuntarily committing anyone who appears to have mental health problems.

The problem is that civil commitment requires the decision of whether or not a person has the right to freedom based on their character, without needing empirical evidence of actions committed--because that person, having been in jail, has not been capable of doing anything (unless they have committed a crime in jail, in which case there is a separate disciplinary mechanism for dealing them).

Where would civil commitment end? Could people be indefinitely detained for having violence issues that prison didn't cure? For arson, or for kleptomania? To what degree do you have to be cured internally to be assured of not committing crimes externally? To what degree does this open up the government to enforcing our internal states rather than what we do in the real world?

I don't know. This case doesn't provide any limits or structures on that.

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