Macon Baker is not
a sympathetic character. At the age of 18, the St. Louis
Post-Dispatch
reports, “He got caught sticking his hand in the pants of a
5-year-old girl playing in a yard.” He pleaded guilty to sexual
abuse, got probation, and underwent treatment. More than a decade
later, he was arrested for molesting the 7-year-old daughter of
close friends. That time he was sentenced to 10 years in prison.
Although he completed his sentence at the end of 2006, he remains
behind bars in what the Post-Dispatch calls “a different
kind of limbo.”
Baker is not officially a prisoner. Nor is he considered a
patient, although the state has repeatedly tried to make him into
one by committing him to “a secure state mental institution called
Sex Offender Rehabilitation and Treatment Services, or SORTS.”
Under Missouri law, that kind of transfer requires the unanimous
approval of a jury after a civil trial. So far two juries have
deadlocked on the question of whether Baker qualifies as a
“sexually violent predator,” meaning he suffers from a mental
defect that makes him apt to commit more sex crimes if he is
released. Now the state is trying again, so Baker continues to
reside in a local jail more than seven years after he was supposed
to be released. The Post-Dispatch calls him a “detainee,”
which aptly brings to mind someone indefinitely held without charge
in a place where the ordinary rules of American justice do not
apply.
You may well think a 10-year sentence is too short for a child
molester. The prosecution thought 25 years would have been
appropriate. But that is not the sentence Baker got, and now the
government wants a do-over. It is using quasi-medical,
pseudoscientific language to flout the rule of law by changing
Baker’s 10-year term into the equivalent of a life sentence, served
in a prison disguised as a hospital. (As you might expect given the
incentives involved, people committed to facilities like SORTS are
almost never deemed to be “cured,” so they are
almost never released.) Worse, it looks like the state can keep
Baker behind bars for the rest of his life even without a jury’s
permission. It just has to keep asking.
How is all of this possible in a country where even the most
loathsome defendant has a constitutional right to due process,
where we do not punish people twice for the same crime or
retroactively extend their sentences? It turns out the Supreme
Court sees nothing wrong with preventively detaining people after
they have completed their sentences, provided the government pays
lip service to psychiatry.
In the 1997 case Kansas
v. Hendricks, the Court ruled that a state law authorizing
civil commitment of sexually violent predators was not punitive and
therefore did not violate the Constitution’s Double Jeopardy Clause
or its ban on ex post facto laws. It also concluded that
commitment procedures established by Kansas satisfied the
requirements of due process. Writing for the majority, Justice
Clarence Thomas said the law’s criteria, which refer to
scientific-sounding terms such as “mental abnormality” and
“personality disorder,” would “limit involuntary civil confinement
to those who suffer from a volitional impairment rendering them
dangerous beyond their control.” Thomas added that the “lack of
volitional control, coupled with a prediction of future
dangerousness, adequately distinguishes [sexually violent
predators] from other dangerous persons who are perhaps more
properly dealt with exclusively through criminal proceedings.”
That perhaps speaks volumes. According to Justice Department
data, 64 percent of local jail inmates, 56 percent of state
prisoners, and 45 percent of federal prisoners have “mental health
problems.” I suspect an awful lot of them have behaved in ways that
might reasonably give rise to “prediction[s] of future
dangerousness.” If that’s all it takes to lose your freedom
forever, the constitutional exception carved out for sex offenders
may eventually swallow a big chunk of our criminal justice system.
At that point the idea that people should be imprisoned only for
crimes they have already committed, as opposed to crimes they might
commit in the future, will seem positively quaint.
[Thanks to Mark Sletten for the tip.]
from Hit & Run http://ift.tt/MFNKCA
via IFTTT