Here’s a law school hypothetical: A person is convicted at trial of the offense of extortion. He receives a sentence of 10 years. Prior to his release from prison, however, the government decides he might very well commit another, similar offense if he is released from his sentence; so the government motions the court to have him detained in prison. At a hearing on the motion, the government shows — by a lesser burden than “proof beyond a reasonable doubt” (the burden they must have met in order to have had him incarcerated in the first place), that he might very well commit another offense after his release. So, the court orders him held beyond the end of his original sentence, and perhaps indefinitely, because he might similarly harm victims if he is released. The law student would be required to respond to this hypothetical, with an analysis of whether such indefinite incarceration beyond a term of imprisonment for an offense passes constitutional muster.
The hypothetical would be an easy one to correctly answer. Clearly, such a move on the part of the government would be violative of more than one provision in the Bill of Rights.
In fact, this hypothetical is not a hypothetical at all. The Supreme Court of the United States, in an opinion earlier this month, confronted just such a question; except in this case, it involved a real federal statute enacted in 2006. The High Court found, by a 7-2 majority, that of a person who has already served their term of imprisonment can be detained for an indefinite time beyond that, simply because the government shows they might commit a similar offense after release.
The particular facts of the case before the Court were different from those of my hypothetical; but the principle is the same. The Supremes were presented with a 2006 law that permits the US Attorney General to seek to have a federal inmate convicted of certain federal sex offenses held in prison indefinitely, if the government shows he might be inclined to commit other sex offenses.
The nature of certain sex offenses make those who commit them among the most despicable of people. State governments have wide leeway in dealing with such offenders, but the federal government does not. Neither the Congress nor the president possess express or implied power under the Constitution to incarcerate people simply to “protect the public,” much as people might want it to do. This was the thrust of Justice Clarence Thomas’ dissent in this latest case (in which he was joined by Justice Scalia).
Permitting the federal government to act as a national nanny and detain people without any legitimate authority to do so under the Constitution, even those who have commited despicable crimes, is offensive to the basic underpinnings of our system of federalism and limited federal government powers. That a majority on the Supreme Court is willing to jettison those principles is deeply disturbing.