Throwing Away the Key.

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(Flickr/Tim Pearce, Los Gatos)

Yesterday, the Supreme Court decided that the indefinite detention of "sexually dangerous persons" after they have completed their sentences is constitutional.

In case you weren't aware of it, in recent years, many states have established procedures whereby officials can, at the end of someone's prison sentence, place them in some kind of preventive psychiatric detention, essentially forever. The plaintiffs in the case (which concerned federal prisoners) argued that they had served their sentences and should therefore be set free, not given an indefinite sentence at the whim of federal officials. There are currently fewer than 100 federal prisoners in such detention, though those held by states numbered a few thousand.

What you have here is a fundamental principle of justice coming in conflict with a powerful practical consideration. On one hand, in a system like ours, if you're convicted of a crime and given a sentence, and you serve that sentence, you've paid your debt and ought to be freed. The idea that some bureaucrat can say, "I don't like the looks of that guy, so I think we'll just keep him locked up" seems offensive to our understanding of the way a just system of justice ought to operate.

On the other hand, most of us agree that pedophiles are uniquely undeterrable. A guy who robbed liquor stores for a living can in theory be convinced to put that life behind him, while a guy who is sexually attracted to children is in the grips of a mental disorder that puts every child he comes in contact with at risk. In arguing the case before the Court, Solicitor General Elena Kagan compared such inmates to carriers of an infectious disease, whom the government has an obligation to quarantine.

This problem has no good answer. And there is another area in which the law treats pedophiles differently than any other kind of people. In First Amendment law, you generally can't be punished for possessing obscene materials, only for creating or distributing them. There is an exception for child pornography, however -- it's the only kind of speech you can be punished for receiving. The rationale is that the harm of child pornography is so overwhelming that the government can attempt to restrict the market for it by almost any means necessary.

You might think that conservatives, who are more likely to divide the world into good people and bad people, and be perfectly happy with taking away any and all rights from the bad people (see the torture debate) would take the government's position on this question, while liberals, who are more likely to be concerned about fair procedures, would take the plaintiff's position. That might or might not be what would happen if you took a poll, but it wasn't what happened on the Court. There were seven votes in favor of allowing indefinite detention, including not just two core conservatives (John Roberts and Sam Alito) and one moderate conservative (Anthony Kennedy) but all four of the Court's liberals.

The dissent came from Clarence Thomas, writing for himself and Antonin Scalia. His primary argument was that the Constitution didn't say anything about the government having the power to do this sort of thing, and so therefore they shouldn't be able to. I wonder how many conservative commentators will be siding with Thomas and Scalia and condemning the Court's judicial activism?

-- Paul Waldman

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