By Jon Brandt, MSW, LICSW
ATSA has filed amicus briefs in many important court cases, and some have been cited by the Supreme Court (SCOTUS). ATSA members are likely to recognize the mission-driven arguments crafted mostly by President Mike Miner and Executive Director, Maia Christopher. “Granting review here is necessary to take account of important advances in the empirical study of (1) rates of recidivism among sexual offenders, (2) effective assessment, treatment, and management of sexual offenders, and (3) factors that influence the effectiveness of treatment interventions. It is a central tenet of mental health care that psychiatric treatment of individuals facing involuntary hospitalization must be provided in the least restrictive environment in which such individuals can safely and effectively be provided services.”
“As this Court has recognized, the extent to which a state policy furthers a legislative objective (under any standard of review) is an empirical question. This Court’s past decisions examining sexual offender legislation have, unfortunately, relied on sources that derived their information from public discourse – not from the empirical literature. Unfortunately, discourse regarding sex offender management and treatment has often been dominated by fear and misinformation and not by accumulating empirical evidence. Careful and impartial review of the empirical evidence in constitutional decision-making is essential in discharging this Court’s solemn duty to review legislation imposing special disabilities upon disfavored groups, and crucial in standing guard against the kind of ‘class or caste’ treatment that the Fourteenth Amendment was designed to abolish.”
The Fair Punishment Project (FPP) is a joint project of the Charles Hamilton Houston Institute for Race and Justice and the Criminal Justice Institute, both at Harvard Law School. The FPP brief was joined by four criminology scholars. “The right to be free from confinement is ‘of the very essence of a scheme of ordered liberty.’ It forms the basis of other rights deemed fundamental in this country… and it prevents this nation from devolving into tyranny. The government must tread lightly when it intrudes on that freedom, enacting safeguards to prevent it from overreaching. When republican institutions pass laws in response to moral panics and popular passions, with little thought, deliberation, and scrutiny, the rights of the most vulnerable and unpopular suffer. When ‘prejudice’ against unpopular groups curtails the operation of those political processes ordinarily to be relied upon to protect minorities, more searching judicial inquiry is required.”
“Moral panics have recurred in the history of our democratic republic, and they have led to some of the greatest infringements on fundamental rights and enormous national embarrassments. Most famously, just weeks after Pearl Harbor, public opinion demanded the removal of all Japanese Americans from the west coast; Japanese internment followed. Fear of Soviet aggression lead to McCarthyism and the Red Scare. Fear over same-sex marriage led to the passage of thirteen referenda barring same-sex marriage. Courts have both the authority and the duty to intervene in cases where popular passions lead legislatures to infringe on the ‘fundamental rights and liberties’ that are deeply rooted in this Nation’s history and tradition. Those whom we would banish from society or from the human community itself often speak in too faint a voice to be heard above society’s demand for punishment. It is the particular role of courts to hear these voices, for the Constitution declares that the majoritarian chorus may not alone dictate the conditions of social life. This case cries out for judicial intervention.”
“There is broad consensus that the current system of civil commitment of sex offenders in Minnesota captures too many people and keeps many of them too long.” These are the words of the Honorable Eric Magnuson, former Chief Justice of the Minnesota Supreme Court, in a 2013 report to the US District Court for Minnesota. If readers want to understand why “no one has any realistic hope of ever getting out of this ‘civil’ detention,” read Federal Judge Donovan Frank’s compelling 2015 opinion, finding SOCC in Minnesota unconstitutional. If readers want to understand why SOCC is more about public policy than public safety, read the full 2017 amicus briefs.
Undoubtedly, there are some dangerous individuals under SOCC, but with equal certainty, SOCC is overreaching. SOCC is a slippery slope. On the front end, SOCC creates a tenuous relationship between psychology and law. On the back end, it conflates past heinous acts with future dangerousness. Two respected New York Law School professors, Michael Perlin and Heather Ellis Cucolo, are signatories of the “Law Professor’s Amicus Brief,” and recently published a thoroughly researched book that takes aim at sexual offender policies in the US. In Shaming the Constitution: The Detrimental Results of Sexual Violent Predator Legislation, (Temple University Press, 2017), Professors Perlin and Cucolo write, “society’s ‘solutions’ to the issues before us are all wrong… not simply ineffective, but counterproductive, failing to add to public safety while ruining lives. Media hysteria exacerbates all of this and strangles any attempts at legislatively remediating the situation. Forensic psychologists have demonstrated – beyond doubt – that the actuarial instruments regularly used to determine who is a ‘predator’ are fatally flawed. Our sexual offender laws… shame and humiliate those who violate them. In doing so… they ignore and mock the due process clause, the ex post facto clause, the double jeopardy clause, and the cruel and unusual punishment clause… they truly shame the constitution and stain the political and social fabric of our nation.”
The Appellate Court, in finding MSOP constitutional, abdicated judicial oversight for ensuring balance between public safety and civil rights. The Eighth Circuit ruling not only approves status quo in Minnesota and other states, it affirms false claims that “sex offenders” are an intrinsically dangerous subclass of US citizens. If SCOTUS rejects the appeal, the Eighth Circuit ruling becomes the law of the land. Consider some conditions of SOCC, which currently exist in Minnesota, that could be extended nationwide:
- Detainees can be confined indefinitely under the guise of treatment because there is no constitutional right “to appropriate or effective or reasonable treatment.”
- There is no right to the least restrictive level of confinement.
- The threshold out of SOCC can be higher than the threshold in.
- Detainees can be confined for years without evaluations to ensure criteria for confinement.
- There is no affirmative duty for the state to release detainees who are no longer dangerous.
- The burden of eligibility/application for reduction of custody can be placed on detainees.
- Executive orders can broadly block discharges.
- Violations of civil rights are not unconstitutional unless such violations “shock the conscience.”
In Minnesota and several other states, there are many detainees who, by consensus among professionals, could be safely released (conditionally or unconditionally) to the community, but they remain imprisoned for reasons that are clearly political. Apparently, the Eighth Circuit was not moved by the prospect of “political prisoners.” Hopefully, the Supreme Court will see Karsjens differently.
Justice Anthony Kennedy wrote in Romer v. Evans (1996) that, “laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected [homosexuals]. If the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” In Kansas v. Hendricks (1997), Justice Kennedy warned that SOCC, in concept or practice, could unconstitutionally overreach. Twenty years later, perhaps Justice Kennedy will be the voice that unites liberal and conservative justices to bring new guidance to SOCC in the US.
Another indication that the Supreme Court might grant certiorari (accept the appeal), and potentially reverse the Eighth Circuit, is the unanimous June 2017 SCOTUS opinion in Packingham v. North Carolina. Applying the proper standard of legal review is at the core of Karsjens. Judge Frank ruled that SOCC was subject to “strict scrutiny” and therefore SOCC laws must be “narrowly tailored” to achieve their purpose. In reversing the District Court, the Appellate Court said Judge Frank should have applied a lower legal standard; that SOCC laws must bear only a “reasonable relationship” to a legitimate government interest. However, in Packingham, Justice Kennedy wrote that the North Carolina law broadly restricting “sex offenders” from accessing the Internet was overreaching, and that such infringements on civil liberties must be “narrowly tailored.” If justices apply the same reasoning to liberty interests under SOCC, perhaps they will agree to review Karsjens.
Judge Frank, plaintiffs’ attorneys, and the amicus briefs state that the goal of Karsjens is not to strike down SOCC broadly, but rather to acknowledge the constitutional infirmities of a system that is overreaching, and restore the constitutional integrity that SCOTUS established in previous SOCC rulings. The Eighth Circuit held that the 14th Amendment’s right to due process applies only to “fundamental liberty interests,” and that the Supreme Court “has never declared that persons who pose a significant danger to themselves or others possess a fundamental liberty interest in freedom from physical restraint.” Well, now SCOTUS has a vehicle to fix that. Substantive due process and fundamental liberty interests are bedrock in the history of civil rights – constitutional rights that should be inalienable for all Americans.
Much appreciation to attorneys who provided guidance for this op-ed piece.