'Dangerous' Sex Offenders Can Be Imprisoned Indefinitely, Supreme Court Rules

In a span of just a few minutes Monday morning, the Supreme Court exhibited the breadth and complexity of the nation's sentencing laws. In one ruling, the justices declared that juvenile defendants may not be sentenced to life in prison without the possibility of parole for non-capital crimes. And in the other ruling, the justices declared that some mentally ill sex offenders may be kept indefinitely in "civil confinement" despite already having done the time for their crimes.

With the latter decision, the court gives great comfort to prosecutors, the police and victims' rights groups, who have pushed for decades now to better protect communities from recidivism among sex offenders. With its former decision, the justices take away from prosecutors, the police and victims' rights groups the rationale for continuing to push juvenile defendants into adult courts to get tougher sentences. As a result of both cases, we'll have fewer juvenile prisoners serving longer sentences and more sex offenders serving long past what judges gave them.

The juvenile sentencing ruling (Graham v. Florida) strikes down 37 state laws, plus federal law and the law of the District of Columbia. But, as Justice Anthony Kennedy noted, only 129 men and women around the country were sentenced as juveniles to life in prison without parole. No fewer than 77 of them are in Florida. This, the justice declared, meant the practice was actually "exceedingly rare," touching upon Florida and only 10 other states, and thus unconstitutionally "cruel and unusual" under the Eighth Amendment's punishment clause.

Focusing on how many juveniles are actually being sentenced to life without parole instead of on how many states permit the practice, Justice Kennedy emphasized the relative "lack" of maturity and "underdeveloped sense of responsibility" that juvenile offenders often have. As was the case five years ago, when he wrote the majority opinion striking down capital punishment for juvenile offenders, Justice Kennedy focused on the developmental differences between adults and teenagers.

He wrote: "... [D]evelopments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. For example, parts of the brain involved in behavior control continue to mature through late adolescence." And then he reiterated his empathetic view. A life sentence, he wrote, "means a denial of hope" for juvenile offenders. Thanks to a 6-3 ruling (in which Chief Justice John Roberts voted with the majority on the case but argued in a separate opinion that it should not set precedent) Monday, those juvenile offenders now may hope for new sentencing hearings.

Ruling on Sex Offenders

There will be plenty of hearings, too, for sex offenders judged too dangerous and mentally ill to be released back into society. The court's other notable decision Monday -- on a 7-2 vote -- buttresses a congressional effort in 2005 to keep in custody any past sex offender who, according to the words in the statute, "currently 'suffers from a serious mental illness, abnormality, or disorder' and who 'as a result of' that mental illness, abnormality, or disorder is 'sexually dangerous to others' in that 'he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.'"

The feds must bear this burden of proof under a "clear and convincing" standard, which is lower than the criminal proof standard of "beyond a reasonable doubt" but higher than the civil standard, which is "by a preponderance of the evidence." And if they can, offenders will remain in custody, long past the end of their official criminal sentences, until they can establish that they are no longer dangerous or the state decides to assume "responsibility for his custody, care and treatment."

This process was authorized by the Congress and it was that legislative authority under the necessary and proper clause -- and not the due process clause of the Constitution -- which lay at the heart of United States v. Comstock. (The necessary and proper clause gives Congress the leeway to act where there is not explicit authority granted to it in the Constitution). A bipartisan court found that the Congress, indeed, had the power to compel this sort of civil confinement over the wishes of the states, some of which complained to the justices about the measure being an "invasion" of state sovereignty. But the justices explicitly left open new and stronger challenges to these sorts of indefinite confinements.

What's most interesting about Comstock is the dissent. Justice Clarence Thomas took a very stark view of the necessary and proper clause. He wrote that the federal civil confinement statute wasn't even viable under the more expansive commerce clause of the Constitution. Civil confinement, Justice Thomas wrote, "the power 'to protect the community from the dangerous tendencies of 'some' mentally ill persons, are among the numerous powers that remain with the states."

It's rare for two such decisions to be announced on the same day. In both we see the old familiar tensions, between the states and the federal government, between the courts and the Congress, between prosecutors and civil libertarians, all over the nature of crime and punishment in modern America.