SORTS
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 three 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.]
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