Baby Rapists Are Bad, Still Deserve Due Process

June 24, 2015 (Mimesis Law) — On June 17, U.S. District Judge Donovan Frank issued findings of fact, conclusions of law, and an order in a case brought against seven senior managers of the Minnesota Sex Offender Program (MSOP). He declared the state’s program unconstitutional. The same day, Texas Governor Greg Abbott signed into law reforms to his state’s program. Both programs, and parallel programs in many states, have been subject to harsh criticism by civil libertarians and close scrutiny by the press.

The temptation to compromise core principles of justice and fairness is rarely as seductive as it is when considering civil commitment programs for sex offenders. Civil commitment by definition occupies a blade’s edge between criminal law and civil penalties, between what society wants and what society says it wants.

By design, not accident, these programs are a way for the state to involuntarily detain individuals deemed immediately threatening to the public. Aiming to keep certain dangerous individuals away from the opportunities to harm the public that those individuals would have without government intervention is a central function of law, of course. Not only do most citizens not oppose such state efforts, they would be inclined to vote out of office any elected official who the public saw as soft on such efforts. If the law isn’t there to keep us safe from the baddest bad guys, then what is it good for?

Ordinarily, the citizenry trades a bushel of legal safeguards for the criminally accused for the public’s right to deprive someone of his liberty. We get to lock up the bad guys, but only after the bad guys get greater due process than the civil law system affords.

Civil commitment programs flout the usual trade. Civilly committed persons are forced to relinquish their basic liberty without the elaborate procedural protections of the criminal justice system in exchange.

In 1997’s Kansas v. Hendricks, the United States Supreme Court held that civil commitment of sex offenders under Kansas’s Sexually Violent Predator Act did not violate the U.S. Constitution. The Court found that the constitutionally protected liberty interest to not be physically restrained or detained is not absolute, even in the purely civil context. Civil commitment laws such as the one at issue in Kansas that provide for a pre-commitment finding of dangerousness and a determination that the person to be committed suffers from a “mental abnormality,” satisfy due process standards. Because the involuntary confinement in civil commitment is not intended to be a punishment, laws like the SVPA do not create a criminal proceeding. According to the Court’s ruling, states can take away a whole lot of liberty, without providing additional due process rights, so long as the purported goal is to treat and not to punish.

Policy makers and others concerned with public safety get something for nothing. Who doesn’t relish a bargain, right? Not surprisingly, then, lawmakers embrace civil commitment programs, and tend to squeeze as much government power out of them as possible.

Civil commitment for sex offenders offers a further temptation for society to relax its usual principles of justice. Sex offenders get little sympathy. Even among hardened criminals, people who perpetrate sex crimes — especially against child victims — are notoriously viewed with merciless disgust. It is hard to care a whole hell of a lot about whether a baby rapist is entitled to the benefits of the Confrontation Clause.

If ever there was an instance when generally fair-minded, civil libertarian folks might be willing to fudge, you know, just a wee bit on due process, civil commitment of sex offenders is it. Not because they — we? — sincerely believe the bullshit about indefinite detention being copacetic so long as there’s no punitive purpose. Not because disinterested deductive application of legal precedent happens to lead to the conclusion that civil commitment of sex offenders is compatible with the Constitution. But because it really feels pretty good to think of dudes who sexually assault elderly women and sodomize little boys remaining under the never-blinking eye of state supervision, long after the criminal justice system has done all the punishment it can do.

Be honest. Doesn’t it?

As individuals, we show our true character when we have the chance to get away with something that we would not do if others were watching, that we couldn’t defend. Our virtue is only as virtuous as it is when there are no consequences, and our vice is never so vicious.

Likewise, our society’s commitment to civil liberties is only as strong as it is when the people whose rights we insist upon are people with whom we may not empathize. Talk of due process is mere lip service if the baby rapists don’t get it in the same measure as our brother who was charged with petty possession or our friend who was accused of embezzlement that he couldn’t possibly have actually committed.

Civil commitment programs for sex offenders are where the rubber meets the road. Where society puts its perceived safety and its unspoken desire for perceived retribution where its due process is. As Minnesota, Texas, and other states begin to reevaluate the permissibility of their civil commitment programs, it’s worth remembering this: Our system is only as fair and as just as it treats its sexual predators.

*Main image is a stock photo. Not an actual baby rapist.

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