In a 7-2 decision, the Supreme Court has upheld the power of the federal government to detain dangerous sexual offenders even after their prison terms are up.
The mechanism that federal prosecutors use is called civil commitment — placing sexual offenders in locked psychiatric units against their will, until they are considered safe. Many states already use civil commitment as an “add-on” to hold sex offenders longer than jails can.
On the surface, this way of dealing with sexual offenders may seem wise. After all, who wants to release dangerous sex criminals to the streets? But I worry about the shell game being played here between the criminal justice system and the medical system.
The theory behind the federal law is that sexual offenders are so sick that they can’t be released to the streets — maybe, ever — because they can’t control their behavior. And this implies that the offenders may well have qualified for verdicts of not criminally responsible (i.e. “not guilty by reason of insanity”) when they were tried. They should have been routed to locked psychiatric units to begin with, not sent to prison and then sent off to another kind of incarceration after they had done their time.
In most states one of the “prongs” of being found not criminally responsible (by reason of mental illness) is the inability to conform one’s behavior to the requirements of the law. Clearly, that is what federal prosecutors are contending — but only in retrospect — about the sexual offenders they seek to commit: They can’t control themselves and never could. They are turning prisoners over to the secure hospitals that should have held them and tried to heal them from the very beginning (and, probably, for just as long).
A beefed-up forensic mental health care system, with the power to enforce outpatient monitoring and medication, is the solution here. That way our society doesn’t find itself in the position of short-circuiting truth and justice in order to protect itself.
The potential for abuse of the federal sexual offender statute is too great. What happens when gang members are deemed too violent to be released after their prison terms are up? What happens when spousal abusers are considered too dangerous to hit the streets? How about those who conspire against the government in any way? Will they somehow find themselves not only sentenced to prison, but also later held without criminal trials in mental health units?
Sound far-fetched? Well, smart, democratic, free societies that hope to stay that way need to see the seeds of authoritarianism when they are planted. The federal sex offender law is such a seed. It blurs the boundaries between punishment for crimes and enforced psychiatric care for sick people (who can’t control themselves). In so doing, it gives the government the power to lie in court and coerces the mental health care system to cover its backside.
Inappropriate government power is best sold to the public when it is said to apply only to the most hated folks among us. It’s funny (actually, it’s scary), though, how quickly that power could be applied to the rest of us.
Dr. Keith Ablow is a psychiatry correspondent for Fox News Channel and a New York Times bestselling author. His book, "Living the Truth: Transform Your Life Through the Power of Insight and Honesty" has launched a new self-help movement including www.livingthetruth.com. Dr. Ablow can be reached at firstname.lastname@example.org.