On Monday, the Supreme Court ruled 7-2 (with Thomas and Scalia dissenting) that the federal government has the power the keep some sex offenders behind bars indefinitely if officials determine that those prisoners may “prove to be sexually dangerous in the future.”  (Note: this affects only inmates in the federal system, not those in state prisons.  See United States vs. Comstock for more information).

I think that most people would agree that sex offenders do pose a threat to society and that they should be dealt with harshly by the justice system.  I agree with this, and the rest of this article should not be construed as condoning any of the actions of the offenders.  I most certainly do not condone their actions.

I do, however, have a problem with this Supreme Court ruling.  The primary building block of justice in this country is the jury trial.  The accused is entitled to a trial, and if convicted, is sentenced appropriately.  At the end of the sentence (or, more often, earlier), the prisoner rejoins society.

This SCOTUS ruling appears to subvert the decision made by the jury.  The ruling makes a complete mockery of the sentencing process.  Why should the jury waste their time determining an appropriate sentence when, in the end, it really won’t matter?

I understand the severity of sexual crimes, and also am familiar with research that suggests that it may not be possible to rehabilitate these criminals.  However, murder is also a severe crime, and we do set some murderers free after they serve their sentences.  This will continue to be standard operating procedure for all other crimes – criminals will be arrested, be convicted, serve their time, and then rejoin society.  Only sex offenders in federal prisons will be at risk of having their sentence extended indefinitely.

Are the current sentences handed down by juries too short?  If that’s the case, there is a better way to fix this.  Have congress and state legislatures impose more strict punishment for those crimes.  Then, from this date forward, impose those sentences upon those convicted of sex crimes.  However, I do not feel that it is appropriate to retroactively impose the law upon those whom have already been sentenced.

Am I defending sex offenders?  No, certainly not.  I am, however, defending justice.  It brings to mind a line from the movie Ghosts of Mississippi.  The defense attorney, defending the killer of civil rights leader Medger Evers, reminds the jury that “if the system doesn’t work for Byron De La Beckwith , it doesn’t work for anyone.”  If the system doesn’t work for sex offenders, does it really work at all?

I have discussed his ruling with several people, including a couple of hard-on-crime guys with backgrounds in law enforcement.  At this point, everyone seems to agree that the prisoners should be set free when their sentence is complete – while at the same time acknowledging the serious nature of the crimes and the high probability that the criminals will re-offend following their release.

I expect this Supreme Court ruling to remaining in place for many years.  The fact that it was a 7-2 decision means that change 1 or 2 members of the court will not swing the court to the other side.  The president’s Supreme Court nominee, Elena Kagan, actually argued the case on behalf of the government in her role of Solicitor General.

It seems, then, that it would be left up to congress to pass a law that would neutralize the impact of this ruling.  I’m not holding my breath – supports of such a law would no doubt be painted as supporters of sex offenders by their opponents.  I doubt that any politician is willing to risk being slapped with that label.

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Kosmo is the founder of The Soap Boxers and writes on a variety of topics. Many of his short stories have been collected into Kindle books.

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