Rights balancing is a tricky business, and sometimes it's just easier to look the other way. That's what happened when a Boston court sentenced Jeffrey Shields to civil detention last week as a sexually dangerous person. In this case, the court pulled a trick straight from "Minority Report" and locked up Shields, an ex-felon, to prevent him from committing future offenses.
For starters, the civil detention of past criminals comes eerily close to a double jeopardy violation because the state is inferring future crimes from past behavior. In essence, a person goes to jail for a crime, gets released and gets sent to a high-security civil detention center. The only reason it's not legally double jeopardy is that it's a civil rather than a criminal sanction, but that distinction is dubious at best. Whether they are in a prison or a detention center, the people in question are still behind bars.
In most cases, the state is merely using the guise of civil detention to unethically tack on years to a sentence beyond what the initial criminal court had determined fair. In particular, this toys with the idea that there is a just punishment for each crime. If, as a society, we feel that sex offenders are not serving enough time in prison, we should raise sentences, but instead we are looking for back doors.
The simple fact is that we do not lock sex offenders up for life, and there's probably a good reason for that. As hard as it is to come to terms with when staring evil in the eyes, we are a society that fundamentally believes in the idea of just desert. We believe that prisoners pay their debt to society and then start again with a clean slate. That's what helps us cope with crimes and believe that human beings, no matter what they've done in the past, are capable of redemption. It's also why our prison system has so long incorporated the idea of rehabilitation.
Nevertheless, society has given up on sex offenders, deeming them incapable of recovery. While Shields was the first person sentenced to civil commitment under the Adam Walsh Child Protection and Safety Act of 2006, thousands have been put in civil detention facilities since the 1997 Supreme Court decision in Kansas v. Hendricks, which allows for the indefinite civil incarceration of sex offenders.
The purpose of these detentions is nominally to rehabilitate mentally ill sex offenders. But the problem is that these ex-prisoners are being detained because the state has deemed them incapable of recovery. Basically, in order to leave civil detention, Shields and others will need to prove that they have recovered even though the state has already give up hope. That's quite the catch-22.
If we truly believe that certain sex offenders are incurable, then we are in some need of serious reform. But if we do believe there is hope, we should get them the help they need while they are in prison. The problem with civil detention is that it makes it all the more tempting to ignore sex offenders during their time in prison and wait to cure them afterwards. But when offenders see that even after they have done their time, they are still looking at indefinite detention, they have no reason to reform themselves. And the state has no reason to help.
As a society, we tend to have little sympathy across the board for criminals, but we hold a special wrath against sex offenders. That's understandable, particularly since they thrive on robbing their victims of their innocence and have astonishingly high rates of recidivism. We even have special provisions for them after they leave prison. We make them register as sex offenders and sometimes even inform their neighbors of their past convictions.
There are certainly privacy concerns at play, but these punishments are acceptable because they are reasonable. When the rights of past felons come in conflict with the safety of society, it makes sense to err on the side of protecting innocent people. But in doing so, we can't escape from the uncomfortable reality that even sex offenders have rights.
Locking them up indefinitely for crimes they have not committed is undoubtedly convenient, and determining rights is complicated. But we have constructed a justice system that cares about these complications and that places individual protections above expediency. Expediency, for example, would dictate skipping the trials of those we know are guilty. It would allow us to go into dangerous neighborhoods and just start arresting. In both cases, crime rates would drop, but at what cost?
Sex offenders are some of the most repugnant members of society, and we certainly need protection against them. We just can't let that protection come at the cost of our ideals.
That's not to say that we can never civilly detain them. But we cannot be trigger happy, nor can we use these detentions as an unethical lengthening of a prison sentence they have already served. And when we do detain them, we must do so without creating impossible preconditions for release.
After all, it is fine to detain somebody with a specific plan to commit a sex offense, but the indefinite incarceration of somebody with tendencies they are working to control only assumes that the state has the ability to predict the future.
Ultimately, it's a balancing act, but in cases like that of Shields, our justice system has leaned too far to one side. It's time to move back toward the center.
