Category: reason

Sold as a means of giving potentially dangerous sex offenders treatment for their conditions while indefinitely confining them, civil commitment programs invite skepticism about their motivation and effectiveness. While courts have signed off on the practice, keeping people locked up after they’ve served their prison sentences raises sticky legal and ethical questions. Now a lawsuit and a recent hunger strike by Minnesota prisoners offers new opportunities to reconsider and reform the practice.

At the end of February, the United States Court of Appeals for the Eighth Circuit gave the green light to a lawsuit challenging Minnesota’s civil commitment program for sex offenders. Importantly, the court allowed the plaintiffs to argue that civil commitment as practiced in the state is punitive in nature—something that’s not permitted of a supposedly therapeutic program.

The current case reboots an earlier legal challenge making similar allegations. The first case resulted in a 2015 U.S. District Court ruling 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.” While that ruling was reversed on appeal, the new decision revives hope that such arguments will prevail, and that such programs will be found unconstitutional.

That’s possible because the over 730 Minnesota prisoners subject to commitment have already served prison sentences for their crimes. They continue to be held under a state law providing for the confinement of “a sexually dangerous person or a person with a sexual psychopathic personality … to a secure treatment facility unless the person establishes by clear and convincing evidence that a less restrictive treatment program is available.” They can be held until they convince authorities “that the committed person is capable of making an acceptable adjustment to open society, is no longer dangerous to the public, and is no longer in need of treatment and supervision.”

Civil commitment has its roots in 1990s concerns that some sexual offenders are especially dangerous and prone, because of mental illness, to reoffend if released. The practice spread to 20 states, the federal government, and the District of Columbia, involving, at this time, roughly 6,300 inmates. Despite the potential for sentences without end, the U.S. Supreme Court signed off on civil commitment in 1997 on the grounds that it is permissible to continue to confine a person with a “mental abnormality” or “personality disorder” and that it is “not punishment”.

So, the basis for civil commitment is treatment of people who are ill, not extra punishment of people who have already served their sentences. Except that treatment facilities are awfully punitive, as the judge behind the 2015 decision ruled. News stories in Minnesota and elsewhere refer to “prisonlike treatment centers” and “prison by any other name.” The conditions, rules, and guards are entirely recognizable to anybody familiar with the corrections system, though the terminology is a bit fuzzier.

“‘FYI, we don’t have inmates here,’ a faceless voice over an intercom told me,” relates Texas Observer reporter Michael Barajas of his 2018 visit to a facility in his state. “‘We have residents.’ When I started taking photographs, a Correct Care guard ordered me to leave the parking lot.”

The prison-like conditions prompt prison-like responses, including a two-week hunger strike earlier this year by inmates at the Moose Lake, Minnesota, treatment facility. The strike came to an end when officials agreed to meet with them to discuss their concerns.

“The purpose of the meetings will be to discuss the strikers’ primary complaint: They have no ‘clear pathway’ for release from the program and its prisonlike treatment centers in Moose Lake and St. Peter,” reported the Minneapolis Star-Tribune.

The strikers pointed out that only 13 offenders have been fully released over the program’s 27-year history. They’re also concerned about close quarters and minimal sanitary provisions in pandemic-era “treatment centers,” risking the conversion of indefinite confinement into death sentences.

The sketchy history of civil commitment for sex offenders inspires skepticism among many of those who are supposed to provide the treatment supposedly at its heart. In 1997, the American Psychiatric Association formally urged “that psychiatrists vigorously oppose sexual predator laws.”

“We were concerned that psychiatry was being used to preventively detain a class of people for whom confinement rather than treatment was the real goal,” Paul Appelbaum, chair of the APA’s Council on Psychiatry and Law, commented at the time. “This struck many people as a misuse of psychiatry.”

Those concerns have yet to fade.

“The use of civil commitment for postprison confinement of sex offenders represents a quintessential example of a poorly conceived scheme designed to unify concepts from the fields of law and medicine,” argued Corey Rayburn Yung of the University of Kansas School of Law in a 2013 AMA Journal of Ethics article. “Legislators supporting such programs attempted to utilize the authority of mental health professionals to lend credence to legal regimes on shaky doctrinal ground. The result has been a set of programs that fail from both a medical and legal standpoint.”

Nor is it clear that civil commitment addresses a real problem—though it’s difficult to be certain because relevant research was suppressed. In the mid-2000s, Dr. Jesus Padilla, a clinical psychologist at California’ Atascadero State Hospital, found that sex offenders have a low rate of recidivism.

“In his sworn testimony before the judge and an October 10, 2006, memo, Padilla explained that of the 93 ex-offenders he and a colleague had tracked, just six had been rearrested for an alleged sexual crime after about five years in the community,” Steven Yoder wrote for Reason last year. “That amounts to an astonishingly low rearrest rate of 6.5 percent. By comparison, a 2018 study by the federal Bureau of Justice Statistics found that 49 percent of all state prisoners were arrested again for the same type of offense within five years of their release.”

Faced with evidence that civil commitment of sex offenders is based on faulty assumptions, the state of California promptly shut down Padilla’s study and destroyed his data. Law professors Tamara Rice Lave, of the University of Miami, and Franklin Zimring, of the University California of Berkeley School of Law, are trying to resurrect the research.

“The Padilla study demonstrates why states should be required at the very least to prove recidivism danger at regular intervals, as California used to do,” they wrote in a 2018 American Criminal Law Review article. “Putting the burden on the committed person to prove he is no longer dangerous is not a legitimate alternative.”

Reviving research into the scientific justifications for civil commitment programs couldn’t be timelier as prisoners in Minnesota argue that, instead of the promised treatment, those programs constitute nothing more than prison without end.

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Did you take the SATs to try to get into college? Your kids may not have to.

More than 1,300 schools have become “test optional,” meaning students need not submit SAT scores. Some, like the entire University of California system, now won’t even look at scores.

There are seemingly legitimate reasons to oppose the tests. Richer kids often get tutoring that gives them an advantage.

Critics claim the tests are culturally biased and say that’s why Blacks and Latinos don’t score as well. But that doesn’t explain why Asians do so well. In fact, Asians get the best SAT scores.

I assume it’s more about culture and parenting. Kids raised in front of the TV do poorly. Those encouraged to read do better. Kids who spend time talking to adults do better.

Bob Schaeffer, executive director at FairTest, an advocacy group that helped persuade colleges to dump tests, says testing companies just want to make money.

“These are businesses selling products,” Schaeffer says in my new video. “The College Board is a billion dollar a year business.”

I ask him what’s wrong with the tests themselves. He replies, “The SAT and ACT are inferior predictors of college performance.”

It is true that high school grades predict 33 percent of college grades, while tests predict 32 percent. But that is just barely “inferior.” Combining grades and SATs predicts 42 percent of college grades, which makes the tests useful.

Also, tests can help the smart student who, for whatever reason, doesn’t do well in high school.

“It’s the diamond in the rough argument,” Schaeffer responds. “There are actually very few examples of that being true.”

I believed him until I looked at College Board data. It shows that students with C grades in high school, but great SAT scores, do better in college than A+ students with low SAT scores.

Without tests, schools often choose students based on parental connections or donations.

Tiwalayo Aina, a black student at MIT, got good SAT scores. He tweeted, “The SAT is fairer than the alternative: needing my parents to connect me with a…professor.”

I say to FairTest’s Schaeffer, “By eliminating tests, you’re screwing the minority student who is really smart, but goes to a lousy high school, has family problems, and got low grades.”

“That student would have shown brilliantly in her high school classes,” is Schaeffer’s reply.

Wall Street Journal columnist Jason Riley says colleges scrapped tests to make it easier for administrators to control how many people from each racial group attend their college. Without an objective standard, who’s to say an administrator’s admission picks are wrong?

“It really is about making these campuses look right.…It’s not about learning,” says Riley.

“If you want more diversity,” he adds, “open up more of these charter schools [like the ones that are] able to prepare kids for these tests.”

Some charters, the Success Academies, do that well. Sadly, those charters are criticized and limited by politicians because they are not under the control of teachers unions.

Ending limits on charters and allowing school choice, says Riley, would do much more to close the race gap than dropping SATs. “Eliminate the test, you’re just going to delay where it shows up elsewhere in this child’s life. You’re not doing that child any favor.”

What’s wrong with these schools saying we want a more diverse student body?

“There’s this assumption,” says Riley, “we just get these kids in the door and they’ll be fine. No, they won’t! They’re being set up to fail. I see no progress in getting a bunch of black kids admitted to MIT, and then having them flunk out or struggle. They don’t need to be struggling. They could go be going to another school and doing quite well.”

But woke educators want to eliminate tests.

And these days, what the woke want, the woke get.

COPYRIGHT 2021 BY JFS PRODUCTIONS INC.
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Bodycam video showed several Seattle police officers as they wake Howard McCay from a nap in his home and order him at gunpoint to lift his shirt up to show he has no weapons then to kneel on the floor with his hands on his head, where they handcuff him. McCay asked the officers why they are there and “What did I do?” He gets no answer. It turns out that someone had seen the door to his house open and called 911 for a welfare check. McCay has filed a lawsuit against the city.

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Two years ago, peaceful, law-abiding gun owners across the country became felons overnight, thanks to the Trump administration’s ban on bump stocks. But as the U.S. Court of Appeals for the 6th Circuit recognized last week, Congress alone has the authority to define new federal crimes, while the president and his underlings are charged with enforcing those laws.

Combining both powers in a single branch is a license for tyranny—a danger the Framers tried to avoid by carefully separating the legislative and executive functions. Regardless of their views on gun control, Americans who care about the rule of law should be troubled by the implications of letting unelected bureaucrats unilaterally and arbitrarily criminalize previously legal conduct.

Bump stocks, first patented in 2000, allow rifles to slide backward, propelled by recoil energy, after a round is fired, which resets the trigger. The sliding stock facilitates a rapid firing technique in which the shooter maintains forward pressure on the rifle, causing his stationary finger to bump repeatedly against the trigger.

These accessories were mainly of interest to hobbyists, regulators, and industry insiders until October 1, 2017, when a gunman murdered 60 people in Las Vegas. Because the killer’s rifles reportedly were equipped with bump stocks, Donald Trump responded to the massacre with a promise to ban them by administrative fiat.

Tasked with inventing a legal rationale for a ban the president already was determined to impose, the Bureau of Alcohol, Tobacco, and Firearms (ATF) reinterpreted the statutory definition of machine guns to cover bump stocks. But as the ATF itself had repeatedly recognized over the years, that reading of the law was inconsistent with its plain meaning.

Under the National Firearms Act, “the term ‘machinegun’ means any weapon” that fires “automatically more than one shot…by a single function of the trigger.” The definition also includes parts “designed and intended” to convert a weapon into a machine gun.

A rifle equipped with a bump stock, however, fires just one round for each “function of the trigger,” which must be reset before the weapon can fire again. The ATF tried to get around that problem by defining “a single function of the trigger” as “a single pull of the trigger,” defining pull to exclude what happens during bump firing, and treating the shooter as part of the rifle mechanism, ignoring his active participation in the process so that the gun could be said to fire “automatically.”

The ATF maintained that the 6th Circuit was bound to accept this highly implausible interpretation under “Chevron deference.” According to that controversial doctrine, courts must accept an agency’s “permissible” interpretation of an “ambiguous” statute.

Critics of that doctrine argue that it undermines the separation of powers, inviting administrative agencies to interpret laws, which courts are supposed to do, and even rewrite them, which is Congress’ job. That danger is especially acute, the 6th Circuit noted, when an agency threatens to fine and imprison people based on its own idiosyncratic understanding of the law.

As a result of the ATF’s ban, continued possession of bump stocks—products the agency had previously deemed legal—is punishable by a maximum fine of $250,000 and up to 10 years in prison. In this context, the appeals court said, deferring to the ATF’s new interpretation of the law would violate the “rule of lenity,” which says ambiguous criminal statutes should be read to favor defendants.

In light of those concerns, the 6th Circuit said, “an agency’s interpretation of a criminal statute is not entitled to Chevron deference.” And without the benefit of that doctrine, it concluded, the ATF’s redefinition of machine guns cannot be accepted, since it is clearly not the “best interpretation” of the law.

The issue here is not whether banning bump stocks is a good idea but who has the authority to do it. As the appeals court noted, “that judgment is reserved to the people through their duly elected representatives in Congress.”

© Copyright 2021 by Creators Syndicate Inc.

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From People v. Viviani, a unanimous opinion written by Judge Garcia

As part of the Protection of People with Special Needs Act, the Legislature enacted Executive Law § 552, which created a special prosecutor, appointed by the Governor, empowered to investigate and prosecute crimes of abuse or neglect of vulnerable victims in facilities operated, licensed, or certified by the State. The special prosecutor, acting pursuant to this statutory authority, obtained indictments against the three defendants in the cases before us. {Each … defendant … was alleged to have sexually abused a vulnerable person in the defendant’s care.} ….

We recognize that this well-intentioned legislation was aimed at protecting a particularly vulnerable class of victims. But we cannot rewrite a statute in order to save it. Accordingly, we hold the provisions of Executive Law § 552 creating a special prosecutor with authority concurrent with that of the District Attorneys to be unconstitutional and, on that ground, affirm….

More than 100 years ago, in People ex rel. Wogan v. Rafferty (1913), we considered a constitutional challenge to legislation authorizing the Kings County Clerk, an elected constitutional officer, to appoint a Deputy County Clerk who would have the full power to act as the chief clerk for the County Court of Kings County. The “fundamental objection” to the law was that it took away “from the county clerk, who is a constitutional officer, an integral and essential part of his office, to wit, the clerkship of the County Court,” and gave it to a non-elected, non-constitutional officer. In holding the challenged provisions unconstitutional, this Court made clear that “[w]here the Constitution establishes a specified office, or recognizes its existence, and prescribes the manner in which it shall be filled, the [L]egislature may not transfer any essential function of the office to a different officer chosen in a different manner.” …

[T]he creation of the special prosecutor by the Legislature runs afoul of the rule set out in Wogan—namely, … Executive Law § 552 takes an essential function from a constitutional officer and gives it to a different officer chosen in a different manner. We conclude that it does….

Although the Constitution establishes the elected office of the District Attorney, it does not assign prosecutorial authority to any constitutional officer, leaving that allocation as a matter for the Legislature. The County Law accomplishes the task by providing that it is the “duty of every district attorney to conduct all prosecutions for crimes and offenses cognizable by the courts of the county for which [such District Attorney] shall have been elected or appointed.” District Attorneys, in sum, “have plenary prosecutorial power in the counties where they are elected.” And, as we have explained on a number of occasions, “the essence of a District Attorney’s constitutional, statutory and common-law prosecutorial authority is the ‘discretionary power to determine whom, whether and how to prosecute [in] a criminal matter.'”

The history of the office of the District Attorney and the scope of the authority allocated to this officer answers the constitutional question. Executive Law § 552 deprives the elected District Attorneys of an essential function of their constitutional office—namely, the “‘discretionary power to determine whom, whether and how to prosecute [in] a criminal matter’)—by vesting concurrent discretionary power in a different officer, appointed by the Governor. Accordingly, the statute runs afoul of the rule set out in Wogan.

Nor can the constitutionality of Executive Law § 552 be preserved by application of the canon of statutory interpretation providing that a statute should be construed, whenever possible, in a way that avoids placing its constitutionality in doubt…. The Attorney General proposes we “find implicit” in the statute a requirement that, in order for the special prosecutor to act, the local District Attorney must (1) consent—perhaps even in writing—to the prosecution, and (2) retain the ultimate responsibility for that prosecution. This we cannot do.

The touchstone of the avoidance canon is the text of the statute, and, unquestionably, the text of Executive Law § 552 contains no express requirement that the local District Attorney consent to, and retain authority for, the prosecution of the designated crimes…. To the contrary, [such a construction] is at odds with the Special Needs Act…. This Court is “not at liberty to save a statute by, in effect, rewriting it in a manner that contravenes its unambiguously articulated legislative purpose.”

Judge Rivera agreed that the statute was unconstitutional as written, but would have concluded that “Executive Law § 552 may be interpreted to allow the Special Prosecutor to appear in criminal matters on consent of the local District Attorney, who would retain ‘ultimate, nondelegable responsibility’ for the prosecution.”

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