This week’s Supreme Court calendar is a win-some-lose-some scenario. It’s unconstitutional to lock up juveniles for life with no parole, for any crime that does not involve homicide, they tell us. So far, so good. But it’s okay, they announce, to keep sex offenders locked up indefinitely, even after they have served out their sentences. Not so good. I’m not necessarily objecting to the result. If we really don’t know how to rehabilitate sex offenders, life behind locked doors may be the only solution. My problem is with the procedure.
If we really believe that sex offenders cannot safely be returned to live among us, our elected representatives in the legislative branch should say so, by making such offenses punishable with life-without-parole. Then that sentence should be imposed by the judicial branch after a proper trial. That’s called due process, without which, according to the Fifth Amendment, nobody should be deprived of life, liberty, or property.
If we do not trust out elected legislators to accomplish this task within the bounds of the Constitution, I think it’s fair to wonder why. I think the Framers had a lot more faith in states, and their governments, and their lawmakers, than we do. Admittedly, I’m from Illinois, which is probably one of the worst of this year’s horrible examples. I wouldn’t trust our legislature to protect me from an invasion of the Iowa Homosexual Conspiracy. But in fact, most of our state governments have fallen a far distance from the 1780s. It’s hard to believe in subsidiarity when our governments get less competent and more corrupt the closer they get to home.
The legality of keeping “unlawful combatants” locked up indefinitely without trial is still being worked out. But the sex offender decision makes the outcome a foregone conclusion. If we can do this to an American citizen after he is convicted in a proper trial in an American court, we can do it to a nameless foreigner, even without trial or after a determination of innocence.
This is an odd decision, kind of like Kelo vs. City of New London (http://www.washingtonpost.com/wp-dyn/content/article/2005/06/23/AR2005062300783.html). In both of these cases, I was amazed to find myself agreeing with Scalia, Alito, and Thomas in the minority. However, given the position of that august trio on the Gitmo detainees, I think their position on limiting governmental power is not a hardline principled one. They just draw the line a bit short of where I do. I can hardly wait for the Season Finale.