Kitsap Crime and Justice

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Supreme Court: Sex Offenders Can Be Held Indefinitely

May 18th, 2010 by josh farley

The US Supreme Court has upheld a 2006 law that allows for the federal government to imprison sex offenders beyond their sentences if they’re deemed “sexually dangerous.

Sound familiar? That’s because Washington was the vanguard in sex offender confinement with its passage of the Community Protection Act of 1990. That state law, along with creating a registration and community notification system for sex offenders, also set the stage for the state’s Special Confinement Center on McNeil Island — a place that holds those deemed “sexual violent predators,” indefinitely after they serve their prison time.

From what I’ve read, there isn’t that much different about the federal Adam Walsh Child Protection and Safety Act and Washington state’s law. The federal Walsh Act allows a judge to determine if a person should be held past their sentence; our state law allows for a kind of jury trial to determine if they should be confined indefinitely.

But I think the US Supreme Court’s overwhelming 7-2 decision puts more weight behind the Washington state law.

Here’s part of the decision, courtesy of the Christian Science Monitor:

“The statute is a ‘necessary and proper’ means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others,” Justice (Stephen) Breyer wrote.

But here’s what I see as the most important aspect. Like Washington state’s law, it seemed Breyer — and U.S. Solicitor General Elena Kagan, a supreme court nominee who argued the government’s position — believe sex offenders are as great a risk to public health as a disease outbreak.

From the Washington Post:

Kagan in January compared the government’s power to commit sexual predators to its power to quarantine federal inmates whose sentences have expired but have a highly contagious and deadly disease.

“Would anybody say that the federal government would not have Article I power to effect that kind of public safety measure? And the exact same thing is true here. This is exactly what Congress is doing here,” she said.

But not so fast, wrote Clarence Thomas, whose overarching fear seemed to be the idea of a national police force — an overreach by the federal government in his mind. From the Monitor:

“Protecting society from violent sexual offenders is certainly an important end,” Thomas wrote. “But the Constitution does not vest in Congress the authority to protect society from every bad act that might befall it.”

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