Ox
05-26-2010, 08:06 PM
It is not unusual for me to receive PMs requesting legal advice or analysis. Usually these are simple issues along the lines of, “I murdered a hooker, what should I do?” These are straightforward discussions and best dealt with in private and for a hefty price.
Today, however, I received one that might be worth a little more public discussion. My correspondent (whom I will not identify without permission) asks:
Did you read the Comstock decision? Do you have an opinion on 1) the scotus decision in particular and 2) your feelings on the law in question?
I'm trying VERY hard not to believe that civil detention of individuals who were competent enough to stand trial and serve their sentence, for crimes they have not yet committed but MIGHT commit, is the beginning of the end. I feel like I'm losing that fight because the more I think about this, the angrier I get. Help talk me down, please! :)
(Yes, I know that the decision was only dealing with whether the law itself attached to an enumerated power of congress, but I'm having such a hard time understanding how the law on its face can stand up against any number of challenges, ie habeas, due process, cruel & unusual punishment, etc)
Paranoid in Punxsutawney
Dear Paranoid,
I did read the Supreme Court’s decision in United States v. Comstock (”http://www.supremecourt.gov/opinions/09pdf/08-1224.pdf”) with great interest. In Comstock, the Supreme Court held that the federal government could hold convicted sex offenders in “civil commitment” (i.e., involuntary incarceration that is separate from criminal imprisonment) indefinitely. However, as you note, that case did not address the concerns you have, like due process, habeas corpus, and cruel & unusual punishment. If this is the end, we are not at the beginning; this is more like the elevenses of the end. To address your concerns, we should get into the Wayback machine and look at how involuntary indefinite civil commitment without conviction of a crime got started.
Let’s go back to 1905. The Edwardian Era is in full swing, men wear boaters and seersucker without irony, and Justice John Marshall Harlan is the lion of the nascent civil-rights movement after his lone dissents in the Civil Rights Cases and Plessy v. Ferguson. Then Justice Harlan is assigned to write the majority opinion in Jacobson v. Massachusetts (”http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=197&invol=11”). In that case, Massachusetts had a law that permitted local boards of health to mandate vaccination in areas with disease outbreaks, with fines and imprisonment for people who willfully defied the board of health’s orders. Cambridge had a smallpox outbreak, but Jacobson refused to be vaccinated because he was convinced vaccines caused health problems and were ineffective at combating smallpox. (Smallpox is now extinct, thanks to those supposedly ineffective vaccines.) Jacobson was tried and convicted of the crime of refusing to be vaccinated when ordered. Jacobson then claimed it was a violation of his rights to be ordered to be vaccinated.
Harlan rejected this argument in a seemingly innocuous paragraph. To wit:
But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others… An American citizen arriving at an American port on a vessel in which, during the voyage, there had been cases of yellow fever or Asiatic cholera, he, although apparently free from disease himself, may yet, in some circumstances, be held in quarantine against his will on board of such vessel or in a quarantine station, until it be ascertained by inspection, conducted with due diligence, that the danger of the spread of the disease among the community at large has disappeared.
You see the trouble with this: what Harlan says is probably true, but he offers no limiting principle. “We are only restricting your liberty to protect society” is a sentence that could be uttered by almost any regime to justify almost any action. Does the Constitution offer any limits on restricting liberty at all, if it’s done for public safety?
Now fast forward to 1979, tossing aside your seersucker for wide ties and put four on the floor. Jive to the beat of Addington v. Texas (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=441&invol=418) (for this analysis, you should be dancing, yeah). Addington was a mentally ill man who had been in and out of mental hospitals and jail for several years. Eventually his mother sought to have him committed to a mental institution “indefinitely.” Texas law permitted commitment upon a showing to the preponderance of the evidence; however, the jury was told that a patient could be involuntarily committed upon a showing by “clear, unequivocal, and convincing evidence” that he is a danger to others. Addington argued that this was equivalent to a sentence of life imprisonment without the possibility of parole, and if he was going to be imprisoned for life, he should have to be convicted of a crime (or at least of being “dangerous”) beyond a reasonable doubt. The Court, in an analysis that was notably lacking in anything resembling citations to authority, declared that preponderance of the evidence was too lenient a standard. However, it also rejected the notion that involuntary civil commitment resembles criminal incarceration:
There are significant reasons why different standards of proof are called for in civil commitment proceedings as opposed to criminal prosecutions. In a civil commitment state power is not exercised in a punitive sense. Unlike [juvenile] delinquency proceeding[s], a civil commitment proceeding can in no sense be equated to a criminal prosecution.
Translation: this is TOTALLY DIFFERENT from criminal cases, because one is intended to be punitive and the other only seems to be punitive.
In addition, the "beyond a reasonable doubt" standard historically has been reserved for criminal cases. This unique standard of proof, not prescribed or defined in the Constitution, is regarded as a critical part of the "moral force of the criminal law," In re Winship, 397 U.S., at 364 , and we should hesitate to apply it too broadly or casually in noncriminal cases. Cf. ibid.
That is a legitimate point. On the other hand, that In re Winship case you guys cited? The one decided in 1970, just a few years earlier? Allow me to quote from that: “The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation.”
It may be true that an erroneous commitment is sometimes as undesirable as an erroneous conviction. However, even though an erroneous confinement should be avoided in the first instance, the layers of professional review and observation of the patient's condition, and the concern of family and friends generally will provide continuous opportunities for an erroneous commitment to be corrected. Moreover, it is not true that the release of a genuinely mentally ill person is no worse for the individual than the failure to convict the guilty. One who is suffering from a debilitating mental illness and in need of treatment is neither wholly at liberty nor free of stigma. It cannot be said, therefore, that it is much better for a mentally ill person to "go free" than for a mentally normal person to be committed.
Translation: letting sick people go free is bad for them, so really, involuntary commitment is in their own best interests. This is a good example of a conflict between liberty and paternalism.
Finally, the initial inquiry in a civil commitment proceeding is very different from the central issue in either a delinquency proceeding or a criminal prosecution. In the latter cases the basic issue is a straightforward factual question - did the accused commit the act alleged? There may be factual issues to resolve in a commitment proceeding, but the factual aspects represent only the beginning of the inquiry. Whether the individual is mentally ill and dangerous to either himself or others and is in need of confined therapy turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists. Given the lack of certainty and the fallibility of psychiatric diagnosis, there is a serious question as to whether a state could ever prove beyond a reasonable doubt that an individual is both mentally ill and likely to be dangerous.
We’re not going to impose a higher burden of proof because it would be too hard.
So that’s Addington. The Court settled on “clear and convincing evidence” as the burden of proof of dangerousness. But Addington is at least partially concerned with the paternalistic “we have to treat the mentally ill, even if they don’t want to” issue. It didn’t require the state to prove the person was mentally incompetent, but there’s some glimmer of hope for civil libertarians.
Here to crush all glimmers of hope is 1997. Biggie and Lady Diana are killed, Tony Blair takes office, and Kansas v. Hendricks (”http://www.law.cornell.edu/supct/html/95-1649.ZO.html”) is decided. Hendricks was a repeated child molester who was scheduled to be released from prison. In response, Kansas passed the Sexually Violent Predator Act and immediately slammed Hendricks with civil confinement. Hendricks appealed, arguing inter alia that the Act violated his substantive due process, ex post facto, and double jeopardy rights. He also claimed that Kansas had no intention of attempting to treat his pedophilia and the confinement would be punitive, necessitating a criminal conviction.
Again, the Court pissed in civil libertarians’ cornflakes. It noted that, since at least 1788, states have had authority to forcibly detain the mentally ill. It also held that a finding of dangerousness combined with a finding of “mental abnormality” was sufficient to confine a person non-punitively for an indefinite period. It also disagreed that the Act created an effectively criminal or punitive sanction. The reasons for why the Court held this commitment was not subject to criminal procedure rules were:
1. “Here, Kansas' objective to create a civil proceeding is evidenced by its placement of the Sexually Violent Predator Act within the Kansas probate code, instead of the criminal code, as well as its description of the Act as creating a "civil commitment procedure."”
2. “The Act's purpose is not retributive because it does not affix culpability for prior criminal conduct. Instead, such conduct is used solely for evidentiary purposes, either to demonstrate that a "mental abnormality" exists or to support a finding of future dangerousness.”
3. “In addition, the Kansas Act does not make a criminal conviction a prerequisite for commitment--persons absolved of criminal responsibility may nonetheless be subject to confinement under the Act.”
4. “Moreover, unlike a criminal statute, no finding of scienter [mental status, like intent, knowledge, or recklessness – Ox] is required to commit an individual who is found to be a sexually violent predator; instead, the commitment determination is made based on a "mental abnormality" or "personality disorder" rather than on one's criminal intent.””
5. “Nor can it be said that the legislature intended the Act to function as a deterrent. Those persons committed under the Act are, by definition, suffering from a "mental abnormality" or a "personality disorder" that prevents them from exercising adequate control over their behavior. Such persons are therefore unlikely to be deterred by the threat of confinement.”
6. “While we have upheld state civil commitment statutes that aim both to incapacitate and to treat, we have never held that the Constitution prevents a State from civilly detaining those for whom no treatment is available, but who nevertheless pose a danger to others. A State could hardly be seen as furthering a "punitive" purpose by involuntarily confining persons afflicted with an untreatable, highly contagious disease.”
So, Paranoid, where does this leave us?
Well, first, it’s a mistake to compare the mental illness needed for involuntary commitment with the mental state needed to be competent to stand trial. One can stand trial so long as one is capable of understanding the proceedings and the purposes of punishment, as well as being able to assist in one’s own defense. Commitment concerns one’s ability to conform one’s actions to the dictates of law. They aren’t really related.
Second, it’s a mistake to analyze this issue from the perspective of preventing crime. At least in theory (highly, highly lawyerly theory), these laws aren’t concerned with preventing crime. They don’t view pedophilia as a tendency to commit crimes, but rather as an illness with the possibility of hurting others like smallpox does. Even the legally insane (who by definition cannot commit crimes) can be committed, because that mental disease is analogized to contagious bacterial and viral diseases.
Third, it makes no sense to cite Comstock as being the problem. If you have a problem with involuntary civil commitment, take it up with Justice Harlan. Or possibly the 1788 New York Legislature.
Fourth, I’m not exactly blasé about involuntary civil commitment myself. It is in practice far more potent than criminal sanction (indefinite restraint, more social stigma) while garnering far less in the way of procedural protection. But it doesn’t seem as if the Founding generation had much of a problem with it. To be fair, that might partially be explained by the fact that modern criminal procedure law is a heck of a lot younger than involuntary commitment is. But while it’s tough to draw a line between criminal and civil confinement, I’m also reluctant to argue that involuntary quarantine of people suspected of carrying contagious disease is unconstitutional. All in all, this is why I prefer the approach of originalist and textualist constitutional thought: I don’t want to have to draw these lines in a free-floating undergraduate bull session.
Today, however, I received one that might be worth a little more public discussion. My correspondent (whom I will not identify without permission) asks:
Did you read the Comstock decision? Do you have an opinion on 1) the scotus decision in particular and 2) your feelings on the law in question?
I'm trying VERY hard not to believe that civil detention of individuals who were competent enough to stand trial and serve their sentence, for crimes they have not yet committed but MIGHT commit, is the beginning of the end. I feel like I'm losing that fight because the more I think about this, the angrier I get. Help talk me down, please! :)
(Yes, I know that the decision was only dealing with whether the law itself attached to an enumerated power of congress, but I'm having such a hard time understanding how the law on its face can stand up against any number of challenges, ie habeas, due process, cruel & unusual punishment, etc)
Paranoid in Punxsutawney
Dear Paranoid,
I did read the Supreme Court’s decision in United States v. Comstock (”http://www.supremecourt.gov/opinions/09pdf/08-1224.pdf”) with great interest. In Comstock, the Supreme Court held that the federal government could hold convicted sex offenders in “civil commitment” (i.e., involuntary incarceration that is separate from criminal imprisonment) indefinitely. However, as you note, that case did not address the concerns you have, like due process, habeas corpus, and cruel & unusual punishment. If this is the end, we are not at the beginning; this is more like the elevenses of the end. To address your concerns, we should get into the Wayback machine and look at how involuntary indefinite civil commitment without conviction of a crime got started.
Let’s go back to 1905. The Edwardian Era is in full swing, men wear boaters and seersucker without irony, and Justice John Marshall Harlan is the lion of the nascent civil-rights movement after his lone dissents in the Civil Rights Cases and Plessy v. Ferguson. Then Justice Harlan is assigned to write the majority opinion in Jacobson v. Massachusetts (”http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=197&invol=11”). In that case, Massachusetts had a law that permitted local boards of health to mandate vaccination in areas with disease outbreaks, with fines and imprisonment for people who willfully defied the board of health’s orders. Cambridge had a smallpox outbreak, but Jacobson refused to be vaccinated because he was convinced vaccines caused health problems and were ineffective at combating smallpox. (Smallpox is now extinct, thanks to those supposedly ineffective vaccines.) Jacobson was tried and convicted of the crime of refusing to be vaccinated when ordered. Jacobson then claimed it was a violation of his rights to be ordered to be vaccinated.
Harlan rejected this argument in a seemingly innocuous paragraph. To wit:
But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others… An American citizen arriving at an American port on a vessel in which, during the voyage, there had been cases of yellow fever or Asiatic cholera, he, although apparently free from disease himself, may yet, in some circumstances, be held in quarantine against his will on board of such vessel or in a quarantine station, until it be ascertained by inspection, conducted with due diligence, that the danger of the spread of the disease among the community at large has disappeared.
You see the trouble with this: what Harlan says is probably true, but he offers no limiting principle. “We are only restricting your liberty to protect society” is a sentence that could be uttered by almost any regime to justify almost any action. Does the Constitution offer any limits on restricting liberty at all, if it’s done for public safety?
Now fast forward to 1979, tossing aside your seersucker for wide ties and put four on the floor. Jive to the beat of Addington v. Texas (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=441&invol=418) (for this analysis, you should be dancing, yeah). Addington was a mentally ill man who had been in and out of mental hospitals and jail for several years. Eventually his mother sought to have him committed to a mental institution “indefinitely.” Texas law permitted commitment upon a showing to the preponderance of the evidence; however, the jury was told that a patient could be involuntarily committed upon a showing by “clear, unequivocal, and convincing evidence” that he is a danger to others. Addington argued that this was equivalent to a sentence of life imprisonment without the possibility of parole, and if he was going to be imprisoned for life, he should have to be convicted of a crime (or at least of being “dangerous”) beyond a reasonable doubt. The Court, in an analysis that was notably lacking in anything resembling citations to authority, declared that preponderance of the evidence was too lenient a standard. However, it also rejected the notion that involuntary civil commitment resembles criminal incarceration:
There are significant reasons why different standards of proof are called for in civil commitment proceedings as opposed to criminal prosecutions. In a civil commitment state power is not exercised in a punitive sense. Unlike [juvenile] delinquency proceeding[s], a civil commitment proceeding can in no sense be equated to a criminal prosecution.
Translation: this is TOTALLY DIFFERENT from criminal cases, because one is intended to be punitive and the other only seems to be punitive.
In addition, the "beyond a reasonable doubt" standard historically has been reserved for criminal cases. This unique standard of proof, not prescribed or defined in the Constitution, is regarded as a critical part of the "moral force of the criminal law," In re Winship, 397 U.S., at 364 , and we should hesitate to apply it too broadly or casually in noncriminal cases. Cf. ibid.
That is a legitimate point. On the other hand, that In re Winship case you guys cited? The one decided in 1970, just a few years earlier? Allow me to quote from that: “The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation.”
It may be true that an erroneous commitment is sometimes as undesirable as an erroneous conviction. However, even though an erroneous confinement should be avoided in the first instance, the layers of professional review and observation of the patient's condition, and the concern of family and friends generally will provide continuous opportunities for an erroneous commitment to be corrected. Moreover, it is not true that the release of a genuinely mentally ill person is no worse for the individual than the failure to convict the guilty. One who is suffering from a debilitating mental illness and in need of treatment is neither wholly at liberty nor free of stigma. It cannot be said, therefore, that it is much better for a mentally ill person to "go free" than for a mentally normal person to be committed.
Translation: letting sick people go free is bad for them, so really, involuntary commitment is in their own best interests. This is a good example of a conflict between liberty and paternalism.
Finally, the initial inquiry in a civil commitment proceeding is very different from the central issue in either a delinquency proceeding or a criminal prosecution. In the latter cases the basic issue is a straightforward factual question - did the accused commit the act alleged? There may be factual issues to resolve in a commitment proceeding, but the factual aspects represent only the beginning of the inquiry. Whether the individual is mentally ill and dangerous to either himself or others and is in need of confined therapy turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists. Given the lack of certainty and the fallibility of psychiatric diagnosis, there is a serious question as to whether a state could ever prove beyond a reasonable doubt that an individual is both mentally ill and likely to be dangerous.
We’re not going to impose a higher burden of proof because it would be too hard.
So that’s Addington. The Court settled on “clear and convincing evidence” as the burden of proof of dangerousness. But Addington is at least partially concerned with the paternalistic “we have to treat the mentally ill, even if they don’t want to” issue. It didn’t require the state to prove the person was mentally incompetent, but there’s some glimmer of hope for civil libertarians.
Here to crush all glimmers of hope is 1997. Biggie and Lady Diana are killed, Tony Blair takes office, and Kansas v. Hendricks (”http://www.law.cornell.edu/supct/html/95-1649.ZO.html”) is decided. Hendricks was a repeated child molester who was scheduled to be released from prison. In response, Kansas passed the Sexually Violent Predator Act and immediately slammed Hendricks with civil confinement. Hendricks appealed, arguing inter alia that the Act violated his substantive due process, ex post facto, and double jeopardy rights. He also claimed that Kansas had no intention of attempting to treat his pedophilia and the confinement would be punitive, necessitating a criminal conviction.
Again, the Court pissed in civil libertarians’ cornflakes. It noted that, since at least 1788, states have had authority to forcibly detain the mentally ill. It also held that a finding of dangerousness combined with a finding of “mental abnormality” was sufficient to confine a person non-punitively for an indefinite period. It also disagreed that the Act created an effectively criminal or punitive sanction. The reasons for why the Court held this commitment was not subject to criminal procedure rules were:
1. “Here, Kansas' objective to create a civil proceeding is evidenced by its placement of the Sexually Violent Predator Act within the Kansas probate code, instead of the criminal code, as well as its description of the Act as creating a "civil commitment procedure."”
2. “The Act's purpose is not retributive because it does not affix culpability for prior criminal conduct. Instead, such conduct is used solely for evidentiary purposes, either to demonstrate that a "mental abnormality" exists or to support a finding of future dangerousness.”
3. “In addition, the Kansas Act does not make a criminal conviction a prerequisite for commitment--persons absolved of criminal responsibility may nonetheless be subject to confinement under the Act.”
4. “Moreover, unlike a criminal statute, no finding of scienter [mental status, like intent, knowledge, or recklessness – Ox] is required to commit an individual who is found to be a sexually violent predator; instead, the commitment determination is made based on a "mental abnormality" or "personality disorder" rather than on one's criminal intent.””
5. “Nor can it be said that the legislature intended the Act to function as a deterrent. Those persons committed under the Act are, by definition, suffering from a "mental abnormality" or a "personality disorder" that prevents them from exercising adequate control over their behavior. Such persons are therefore unlikely to be deterred by the threat of confinement.”
6. “While we have upheld state civil commitment statutes that aim both to incapacitate and to treat, we have never held that the Constitution prevents a State from civilly detaining those for whom no treatment is available, but who nevertheless pose a danger to others. A State could hardly be seen as furthering a "punitive" purpose by involuntarily confining persons afflicted with an untreatable, highly contagious disease.”
So, Paranoid, where does this leave us?
Well, first, it’s a mistake to compare the mental illness needed for involuntary commitment with the mental state needed to be competent to stand trial. One can stand trial so long as one is capable of understanding the proceedings and the purposes of punishment, as well as being able to assist in one’s own defense. Commitment concerns one’s ability to conform one’s actions to the dictates of law. They aren’t really related.
Second, it’s a mistake to analyze this issue from the perspective of preventing crime. At least in theory (highly, highly lawyerly theory), these laws aren’t concerned with preventing crime. They don’t view pedophilia as a tendency to commit crimes, but rather as an illness with the possibility of hurting others like smallpox does. Even the legally insane (who by definition cannot commit crimes) can be committed, because that mental disease is analogized to contagious bacterial and viral diseases.
Third, it makes no sense to cite Comstock as being the problem. If you have a problem with involuntary civil commitment, take it up with Justice Harlan. Or possibly the 1788 New York Legislature.
Fourth, I’m not exactly blasé about involuntary civil commitment myself. It is in practice far more potent than criminal sanction (indefinite restraint, more social stigma) while garnering far less in the way of procedural protection. But it doesn’t seem as if the Founding generation had much of a problem with it. To be fair, that might partially be explained by the fact that modern criminal procedure law is a heck of a lot younger than involuntary commitment is. But while it’s tough to draw a line between criminal and civil confinement, I’m also reluctant to argue that involuntary quarantine of people suspected of carrying contagious disease is unconstitutional. All in all, this is why I prefer the approach of originalist and textualist constitutional thought: I don’t want to have to draw these lines in a free-floating undergraduate bull session.