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“Sexually Dangerous” Can Be Imprisoned Indefinitely: Can Politicians Be Considered “Sexually Dangerous”?

9:27 am in Government, Judiciary by Kevin Gosztola

Flickr Photo by bobster855

A Supreme Court decision on Monday stated that federal official could hold people who are considered "sexually dangerous" indefinitely even if their prison terms have been served completely.

The idea of keeping sexually dangerous people off the streets is not a bad one until you think of the enforcement mechanisms. Who gets to decide who is sexually dangerous and who is it? Aren’t these the same people who go to work with politicians who themselves have committed sex crimes?

Justice Stephen Breyer wrote the majority opinion:

"The statute is a ‘necessary and proper’ means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned and to maintain the security of those who are not imprisoned by who may be affected by the federal imprisonment of others."

Justice Clarence Thomas dissented (not because he found indefinite detention to be a violation of one’s civil liberties but because he found it to be a violation of state’s rights):

"The historical record thus supports the Federal Government’s authority to detain a mentally ill person against whom it has the authority to enforce a criminal law. But it provides no justification whatsoever for reading the Necessary and Proper Clause to grant Congress the power to authorize the detention of persons without a basis for federal criminal jurisdiction."

What exactly does it mean to be "sexually dangerous"? Is this strictly a designation based on a perceived mental illness by psychiatrists?

Text of the Court opinion, (posted here by Georgetown University professor and lawyer Jonathan Turley) states, "Congress could have reasonably concluded that federal inmates who suffer from a mental illness that causes them to "have serious difficulty in refraining from sexually violent conduct…would have especially high danger to the public if released." Furthermore, it states, "Congress could also have reasobnably concluded that a reasonable number of such individuals would likely not be detained by the States if released from federal custody."

The argument appears to be that the federal government must intervene and do what state governments are not properly doing. Yet, it’s hard to believe that there is any place in the United States where government is not tracking sexually violent predators — people who would most likely be designated as "sexually dangerous."

Under Megan’s Law, all 50 states are supposed to have laws that require sex offenders to register with police and report where they are living after leaving prison or when being convicted of any crime. The public also must be able to access this information.

However, a distinction should be made: This decision probably has more bearing on sexually violent predators and little bearing on sex offenders. While research polls and reporters may rarely differentiate the two and while the public may not either, there is a definitive legal differentiation that is made by the Sexual Violent Predator Act of 1995.

"Sexually violent predators" are strictly people deemed to have a mental disorder that would lead them to "re-offend." It "requires anyone convicted of two sexually violent offenses to undergo a psychological evaluation to determine if a mental disorder makes it likely they will re-offend. If they are classified a [sexually violent predator], the district attorney can file a petition to commit. If a court or jury finds evidence is strong, the person may be committed to a secure state hospital for an indeterminate amount of time.

The Supreme Court decision reinforces public attitudes toward sex offenders (which are probably similar if not more lenient than attitudes toward sexual predators). A Gallup poll in 2005 found that at least two-thirds of Americans support the use of the registry to track sex offenders and have little sympathy for arguments against the registry that would suggest the lists would lead to harassment of people.

Presumably, the same group that expressed little concern about the registry is the same group that is significantly afraid of child molesters in their community. The poll found two-thirds think a convicted child molester probably lives in their neighborhood. And, even more important is the fact that this Gallup poll found that 65% think sex offenders (or child molesters) cannot be rehabilitated.

There is little concern for the rights or civil liberties of anyone committing foul sex acts.

It’s not surprising that Americans would be so afraid that "sexually dangerous" people are out there waiting to get them or believe that offenders or predators could not be rehabilitated. Popular shows like all the versions of "Law & Order" (especially "Law & Order: SVU"), all the versions of "CSI," and any true crime show on television sensationalize the danger of "sexually dangerous" criminals.

So, does this decision hold any implications for politicians who may use their money and power to seek licit and illicit pleasures?

Republican and former U.S. Representative Donal "Buz" Lukens of Ohio was accused of "fondling and propositioning a young woman who worked as an elevator operator at the Capitol. He was jailed in 1988 for paying a 16-year-old girl to have sex with him and was convicted the next year of having sexual relations with a 14-year-old girl. Maybe this is not the behavior of a sexually violent predator but certainly a predator. Yet, he is now retired and not serving time in prison.

Democrat and U.S. Senator Brock Adams used drugs and alcohol as aids in sexual abuse of female employees in 1992. He drugged and raped his employees, according to eight signed statements. Adams was not charged. Is this because of his social status? Wouldn’t anybody else have been sent to jail and possibly been labeled mentally ill?

Democrat and former U.S. representative Mel Reynolds engaged in a sexual relationship with a 16-year-old campaign volunteer during a 1992 campaign and was convicted of 12 counts of sexual assault, obstruction of justice and solicitation of child pornography. If he committed another sex crime and went to prison, would he be deemed a sexually violent predator and held indefinitely?

Former Republican mayor Philip Giordano had a prostitute arrange meetings with her daughter and niece so he could have oral sex. The girls were 8- and 10-years-old. Giordano was convicted and sentenced to 37 years. Is there any chance that he will be deemed a sexually violent predator and held indefinitely?

It’s highly unlikely. And, that’s the problem with decisions like this.

Who gets to decide who is a "sexually dangerous person" and who isn’t? Most likely the Courts, which hold offices and regularly interact with city, state and federal officials. And quite simply certain people with the social status of holding public office will never be held to the same standards as average community residents who can be found all over this country.

Authorities would have to find that these individuals were immoral individuals and people who were not one-time offenders. It would have to be concluded that they could not be rehabilitated and most likely politicians with public personas would be able to craft this idea that they would never commit a crime again—that they might find Jesus or God and become puritanical and properly bourgeois once again.

Politicians have the ability to use their image to combat prosecution. They have the ability to pay off people. And, while it’s possible that politicians have been wrongfully accused of sexual conduct before, it’s also a huge possibility that politicians have used their power to intimidate women (or men depending on how evangelical you claim to be) and threaten them with violence if they tell anyone that they engaged in sexual abuse or conduct with one another.

The label of "sexually dangerous" can be attached to people like "terrorist" can be ascribed to people. Nobody can know if they will commit a sex crime again any more than they can know if they will commit a terrorist act.

What this decision does is impose morality (as the Supreme Court likes to do), further criminalize people, and increase suspect culture in America.

If the intention of this decision is to prevent sex crimes in the long term, it’s next to impossible to prove this will have any impact. The decision gets America no closer to solving the problem sexual predators present to society.


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…And Crown Thy Good With Corporate Personhood

12:23 pm in Uncategorized by Kevin Gosztola

Flickr Photo by unionwhore

The recent Supreme Court ruling that is widely believed to have opened the floodgates for unlimited corporate spending in elections has many citizens of America upset over the prospect of a nation where corporate power may no longer have to answer to any state controls.


The Supreme Court decision is believed to have nullified decades of law that imposed restrictions on the way corporations can impact elections. Calls to overrule the decision are already mounting. But, if we assess the current state of our nation’s managed democracy (a term from the great political philosopher Sheldon Wolin), does anyone really think that in the past decade regulations have actually prevented corporations from significantly influencing elections? Could corporate influence in elections really get anymore pervasive than it already is?


I’m just as inclined as the next liberal to look at the decision and lash out in opposition to it. I certainly empathize with Keith Olbermann’s remark during his "Special Comment" that this will now allow all the politicians to be prostituted all of the time instead of just some of the time. But, to me, the backlash against a decision, which is believed to do away with limits to corporate spending, is predicated on the notion that somehow we as a people have had freedom of choice in our democracy.


The reality is that we are a people who have acclimatized ourselves to voting for the lesser of two evils in each election. While other systems of government in other countries spanning the globe elect people from many different parties, we have two parties to choose from. And as Jesse Ventura has characterized it, that’s like going to the grocery store and finding only two soft drinks available—Pepsi and Coke. There’s no Mountain Dew, no Dr. Pepper, nothing else; just two drinks—Coke and Pepsi—one slightly sweeter than the other depending on your taste buds.


During the edition of Countdown that featured Olbermann’s "Special Comment" on the Supreme Court decision, constitutional law expert Jonathan Turley of Georgetown University suggested that the decision indicates this nation doesn’t just need a way to restore limits on corporate spending. This nation needs a fundamental "paradigm shift" in politics.

OLBERMANN: What can be done? I mean, legally, what now holds the corporations back from completely taking over the electoral process, 99.9 percent of advertising, 99.9 percent of winning politicians, no limit to the ante, and no limit to what they want to do, including eliminating the First Amendment, if that was one of their goals for some reason?

TURLEY: Well, I think you’re right to be alarmed. I mean, there’s only about 2,000 PACs that are created under the old system. That old system really has been shredded today. There are millions of companies and corporations that could — could now directly support this political system.

But I have to tell you, I have long argued that we are in need of more fundamental reforms. Campaign finance primarily looks at the fuel, rather than the machine, itself. I think that we have a political failure in this country, a monopoly by two parties that is strangling the life out of this republic. And I think that we need to, perhaps, with this decision, look for something of a paradigm shift, to look at how we can change our political system with very fundamental issues to deal with — everything from the Electoral College, which is a disaster, to the monopoly of the two parties, to the hold of incumbents.




There’s ample evidence from the past to suggest that what Turley has to say about campaign finance reform is accurate.


Many Americans are familiar with the McCain-Feingold campaign finance reform, which enacted a ban on "soft money," money that flows from businesses directly into political campaign coffers in 2002 just after the major corporate scandal with Enron. Despite the limits on "soft money," the reform legislation doubled the amount of "hard money" that could be given by one person directly to members of Congress or presidential candidates from $2,000 to $4,000.


The U.S. Public Interest Research Group, which had supported the reform, wound up denouncing the legislation and characterized McCain-Feingold as "sham reform" that would take America backwards:

"In a climate of spiraling fundraising, and in the wake of the Enron debacle, Congress had the opportunity to pass real campaign finance reform that would have reduced the influence of money on American democracy. Unfortunately, politicians were not up to the task. . . the Senate passed a soft money ‘ban’ riddled with loopholes and actually increased the amount that the wealthiest individuals can contribute to candidates."


Given the power of corporate, special, or private interests in Washington, one might wonder if the Fair Elections Now Act could even make it through committees in the House and Senate without being defanged like health "reform" legislation has been defanged. (Fair Elections Now is a bill introduced by Sen. Dick Durbin (D-IL) and Rep. John Larson of Connecticut that blends "small donor fundraising with public funding to reduce the pressure of fundraising from big contributors," and it is being widely promoted by progressives and Democrats as a response to the Supreme Court decision.)


Lawrence Lessig, leader of Change Congress, even said after the decision, "It’s very difficult to see how any piece of legislation could undo the damage the Court did yesterday, and I think the American people need to consider all the tools at our disposal as we think about the kind of democracy we want to have and how we want to make it a reality."



And, we all know how likely the Senate or the House is to do anything substantial in the wake of debacles, scandals, or situations that draw attention to the excesses of capitalism in America. Just look at how they’ve managed to hold Wall Street accountable for the economic collapse in this country in 2008 and even managed to properly regulate the bailout money that was given to banks to help so-called "too big too fail" banks survive…


Since most of the backlash to the Supreme Court decision seems to be fueled by those who fear they have lost the ability to influence elections and, therefore, corporations will now forever control the political process, it seems like–rather than take a chance on cobbled together and ultimately ineffective legislation–those upset should go a step further and support fundamental reforms that might might make it more possible for minorities and those voices often marginalized to have an impact in elections.


This fundamental reform could involve addressing the disaster that is the Electoral College.


The Center for Voting and Democracy offers several suggestions that could be considered like direct elections with instant runoff voting (IRV), proportional allocation of electoral votes, direct vote with plurality rule, the congressional district method, the national bonus plan, or the binding proposal.


Of those, the Center primarily supports the abolition of the Electoral College and the replacement of it with a system that involved direct elections and IRV.The Center explains:

"Instant runoff voting (IRV) could be used for Presidential elections with or without the Electoral College. With a direct vote, voters would rank their preferences rather than marking only one candidate. Then, when the votes are counted, if no single candidate has a majority, the candidate with the lowest number of votes is eliminated. The ballots are then counted again, this time tallying the second choice votes from those ballots indicating the eliminated candidate as the first choice. The process is repeated until a candidate receives a majority, reducing time and money wasted in a normal runoff election.

Instant runoff voting on a national scale has the potential to solve many of the current dilemmas introduced by the Electoral College as well as the problems introduced by some of the other alternatives. It would end the spoiler dynamic of third party and independent candidates and consistently produce a majority, nationwide winner. It also allows voters to select their favorite candidate without ensuring a vote for their least favorite (as often happens when the spoiler dynamic is a factor and a voter prefers a third candidate the most)."



Most progressives would probably be thrilled to get rid of the spoiler dynamic since it would mean they would never have to get into another pointless and ultimately unproductive but divisive argument on third parties ever again.


Even better, those upset with the recent decision that opens the floodgates for unlimited corporate spending could support a movement to do away with our nation’s winner-take-all system and support a system of proportional representation instead.


In an article posted on FairVote recently, Rob Richie explains:

"Proportional representation (PR) is based on the principle that any group of like-minded voters should win legislative seats in proportion to its share of the popular vote. Whereas the winner-take-all principle awards 100 percent of the representation to a 50.1 percent majority, PR allows voters in a minority to win their fair share of representation.

How does this work? A typical winner-take-all system of divides voters into "one-seat districts," represented by one person. With PR, voters in a constituency instead have several representatives: ten one-seat districts might, for example, be combined into a single ten-seat district. A party or group of voters that wins 10 percent of the popular vote in this district, then, would win one of the ten seats; a party or slate of candidates with 30 percent of votes would win three seats, etc. Various mechanisms work to provide proportional representation, and the details of different systems matter. But the principle of full representation is fundamental. Acceptance of it changes the way one sees electoral politics."



I encourage you to read more of Richie’s explanation of PR and how it works. I believe you will find it to be a hugely appealing solution to the marginalization of people in elections right now.


Any fundamental reform would have to wrest control of the debates from the Republican and Democratic Parties, which established the Commission on Presidential Debates (CPD) and seized control of the debates from the League of Women Voters in 1988. Since the League of Women Voters lost control, the CPD has regularly excluded candidates voters want to see debate, restricted formats so that candidates don’t really debate, and used secret debate contracts to set restrictions that greatly debase this nation’s democracy.


I temper my reaction to the decision because I mostly agree with Glenn Greenwald’s response to the decision, and I think Greenwald is right to assert that, "the First Amendment is not and never has been outcome-dependent; the Government is barred from restricting speech — especially political speech — no matter the good results that would result from the restrictions. That’s the price we pay for having the liberty of free speech."


And, I think Greenwald is right to be skeptical of the "apocalyptic claims about how this decision will radically transform and subvert our democracy" because "the reality is that our political institutions are already completely beholden to and controlled by large corporate interests."


But, if this is the catalyst that creates a movement of Americans who finally take back this nation and force corporate and special interests to cede control, I will fully support that movement. I will gladly contribute to any populist movement that challenges corporate personhood.


But, I think that ultimately taking personhood or "human rights" away from corporations, unions, or other entities would still leave us in a situation where power is concentrated in a "two-party dictatorship" or a one-party system with two wings that have cosmetic and minute differences.


On the other hand, taking aim at the electoral system could have its own way of diminishing the influence of corporate power in politics. It would give away to a political climate that could easily advance the repeal of provisions that have established corporate personhood in America.


Whatever happens in the aftermath of this decision, we should consider the words of Noam Chomsky:

"We can either predict the worst–that no change is possible–and not act, in which case we guarantee there is no change. Or, we can understand that change always is possible, even in the face of great odds, and act on that assumption, which creates the possibility of progress."

This decision lays bare the need for independent political action in this country. It lays bare the necessity for letting all citizens know of opportunities to engage in that independent political action. And, it calls for citizens who are willing to connect with others to discuss the shortcomings and pratfalls of our system so that a vibrant movement of people can rise and bring the honeymoon corporations and special interests have enjoyed for too long to an absolute end.


Anything and everything we do will be met with struggle. But, if we have the courage to engage in struggle–to, as Robert Jensen writes, not just "struggle against illegitimate structures of authority in the abstract" but also struggle to "find the facts, to analyze clearly, to imagine solutions, to join with others in collective action for justice, and struggle to understand ourselves in relation to each other and ourselves as we engage in all of these activities"–we just might surprise ourselves and succeed at what we set out to do collectively.


The onus is on us to seek out ways we can act. Maintaining a state of civic adolescence must come to an end now if we wish to stop any of this madness at all.