Anyone who has followed this column for the last several years knows how passionately I feel about victim’s rights and recovery for those who have suffered sexual violence or assault. When one in five women in America and one in six African-American men or women are reportedly victims of sexual violence in this country we cannot sit by and let others suffer in silence because of our old-fashioned puritanical views of sexual propriety.
I am in favor of tough sentences for sexual predators, and I cheer every time “To Catch a Predator” host Chris Hanson shocks some pervert sitting in his underwear in a suburban kitchen. Despite all that, the Supreme Court’s recent ruling that sexual predators can be held indefinitely is something that any American – even an advocate for sexual violence – has to stand against.
Last week, the Supreme Court ruled 7-2 on the case of U.S. vs. Comstock. The case revolved around actions taken by former President Bush’s attorney general Alberto Gonzalez in 2006 after the passage of the Adam Walsh Child Protection and Safety Act. The act, named after the son of “America’s Most Wanted” host John Walsh, specified that the federal government could indefinitely hold convicted or ‘potential’ sex offenders if they were deemed as likely to commit crimes in the future. Gonzalez used this act to continue the sentences of several men who had already served jail time for obtaining child pornography. The men sued, and the case made it’s way to the highest court in the land. The dissenting ruling from Justice Antonin Scalia and Clarence Thomas stated unequivocally that continuing to hold someone in jail even after they have served their sentence is a grotesque violation of the Constitution.
I believe the sky is falling, pigs are flying and dogs and cats are living together in peace, because I have found myself agreeing with something that Scalia and his law clerk, Clarence Thomas, have written. I am as in favor of locking away pedophiles and throwing away the key as the next person, but this law is not going to accomplish anything but taking the nation down a slippery slope towards martial law. If someone has committed a crime and then gone to trial and been sentenced they should serve that sentence fully and completely. However, when the sentence is over they are free to go and should be able to go back and try to make their way into society. Retroactively passing a law that allows the federal government to extend your sentence indefinitely makes a mockery of the criminal justice system.
Further, the ruling essentially falls on the side of saying that jail is for rehabilitation rather than punishment. Prison can serve two purposes. Some guys just need to go to jail as punishment because they knocked over a liquor store. But for other criminals, rehabilitation is not a bad idea. Prison can give some wayward men and women job training, get them off drugs and help them make something of themselves after years of crime. But we cannot change our sentencing structure because of this logic. If a stint in jail doesn’t rehabilitate someone it doesn’t mean we can just make them stay longer. If some psycho doesn’t think jail is a punishment but is in fact a way to gain street cred, we can’t then decide to change sentences around to fit his crazy psychology.
The horrible extension of this ruling is apparent to anyone who’s read “1984” or seen any other dystopian future. If the court can now legally and retroactively extend sentences for sexual offenders, what’s to stop them from doing the same thing against people accused of other crimes? If a court appointed counselor determines that I’m not penitent enough about stealing a car, can they keep me around longer until I seem sorry? What about embezzlers, con artists or even accused terrorists? Most of these folks are going to commit crimes again. Should they just go to jail forever? In an attempt to solve one problem the court has caused potentially dozens of others.
I favor just about any punishment you can think of for men and women who commit acts of sexual violence against others. Jail, chemical castration, and in some cases I don’t know that those who commit these crimes can be rehabilitated. However, I do know this: throwing out our Constitution to capture potential repeat offenders is not going to make anyone safer. If anything, it leads us ever closer to giving up our rights for safety that can’t be achieved.