NY Times Realizes Thought Crimes Exist In America 20 Years Late

Aug. 17, 2015 (Mimesis Law ) — This is not news.

You are punished for the crime you committed. You can’t be punished simply because you might commit one someday. You certainly can’t be held indefinitely to prevent that possibility.

So says the Gray Lady’s esteemed Editorial Board in the first paragraph of Sunday’s lead editorial.

And yet that is exactly what is happening to about 5,000 people convicted of sex crimes around the country.

Which is the first sentence of the second paragraph. Sad to say, that’s not news, either.

Our story’s older, but for simplicity we’ll say that it started in Kansas in 1994. The good people of that state, or at least their elected representatives who wanted to show they were tough on crime, were troubled. Kansas law allowed involuntary commitment of people with serious mental illness who were dangerous to themselves or others. The idea was that they’d get treatment, be re-evaluated regularly, and released when they were safe. But sex.

The Kansas leg found that

The existing involuntary commitment procedure . . . is inadequate to address the risk these sexually violent predators pose to society.

And so, they amended the law. Serious mental illness? Pish tosh. Not enough people are really crazy. And it’s too hard to prove. Let’s try “mental abnormality.” Yeah. And we’ll give it a clinical sort of definition.

[C]ongenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.

Which, if you think about it for a moment, covers pretty much anyone who might commit such an offense. I mean, anyone who’s going to commit “sexually violent offenses” has a condition (desire to commit) that “affect[s] the emotion or volitional capacity which predisposes.” Hell, anyone who wants to do anything has a condition that makes the person want to do it. Whether that person will do it or not.

So what happened is that after a person served his sentence for a sex offense, he could be locked up forever lest he might do it again. Except the new prison term wasn’t in a prison but in a state-run institution with barbed wire and armed guards. And the inmate wasn’t allowed to leave.

The first guy sentenced imprisoned locked-up whatever under the new law was Leroy Hendricks and he complained. Said it violated due process and double jeopardy and was an ex post facto law. All that shit the Constitution forbids. The Kansas high court agreed, but they knew better in D.C. In Kansas v. Hendricks, the Court, in a 5-4 decision with an opinion by Clarence Thomas, said that the Constitution wasn’t at all offended. Because there was nothing criminal about it.

Oh, sure, it looked criminal. But looks can be deceiving. I mean, Kansas put the law in the Probate Code rather than the Criminal Code. They called it a “civil commitment procedure.”

Nothing on the face of the statute suggests that the legislature sought to create anything other than a civil commitment scheme designed to protect the public from harm.

Anyhow, the purposes of criminal law are retribution and deterrence, and this law has nothing to do with them. You can’t deter people who might have a mindset that leads them to want to commit crimes. And it isn’t retributive because it has nothing to do with what they’ve done – only with what they might do.

That was 1997. One state. One law. But bad ideas have a way of metastasizing.

The night before Thanksgiving in 2003, Dru Sjodin, 22 years old, a student at the University of North Dakota, disappeared from the Columbia Mall parking lot in Grand Forks. Her body was found, some five months later. She’d been, it seemed, raped and murdered. By a guy who’d previously committed a sex offense.

A guy who hadn’t been civilly committed in Minnesota even though the law allowed for it. Briana Bierschbach and Andy Mannix in the Minnesota Post.

Following Sjodin’s case, the number of people committed to Minnesota’s sex offender program skyrocketed, peaking at 88 in 2007, an almost six-fold increase from 2003.

Not because there were more dangerous people out there but because there were more scared people. Don’t listen to me. Listen to David Gilbertson, the county attorney (i.e., chief prosecutor) of Chippewa County where, per the Census Bureau, the population density in 2010 was just 21.4 persons per square mile.

“No one has a crystal ball,” says Gilbertson. “What weighs on me the most is public safety. I don’t want to have another Dru Sjodin.”

Well, yeah. Nobody does. And so his county has the second highest rate of civil commitments in the state.

And once the prosecutor decides to seek them, they’re comparatively easy to get. Eric Janus, Dean of the William Mitchell College of Law.

Criminal laws are precise about what they state needs to prove and they have to prove it beyond a reasonable doubt. This law really turns that whole process upside down. You don’t have to prove anything specific, that the person might be dangerous in the future.

Back in June, a federal judge, Donovan Frank, said that the Minnesota program of locking up folks for what it’s feared they might someday do is unconstitutional. In his opinion in Karsjens v. Jesson, he wrote

The overwhelming evidence at trial established that Minnesota’s civil commitment scheme is a punitive system that segregates and indefinitely detains a class of potentially dangerous individuals without the safeguards of the criminal justice system. The stark reality is that there is something very wrong with this state’s method of dealing with sex offenders in a program that has never fully discharged anyone committed to its detention facilities in Moose Lake and St. Peter since its inception in 1994. . . . In light of the structure of the MSOP and the history of its operation, no one has any realistic hope of ever getting out of this “civil” detention.

Which means, in laymen’s terms, it is exactly what Clarence Thomas said the substantively indistinguishable Kansas scheme was not: Criminal punishment. And therefore unconstitutional.

To those of us in the trenches, none of this is news. But now the Gray Lady says “Enough.” And we say,

Thanks for noticing. Amen.

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