giving thanks

Today in criminal law, we discussed the implications of the Supreme Court's ruling in Kansas v. Hendricks.

Hendricks was a serial child molester, a man who abused children for at least thirty years and who freely admitted that if he was released, he would abuse again. He himself said that the only way his abuse would stop would be if he died.

The problem was that he had served his time. This country has a long and great tradition of preventing double jeopardy (being tried twice for the same offense), and Hendricks had been already punished for his crimes.

The state of Kansas, understandably concerned about his upcoming release, passed a law that kept Hendricks in jail under civil detention. Hendricks sued, alleging double jeopardy as well as violation of due process and ex post facto.

The Supreme Court, in a controversial decision written by Justice Thomas, ruled that detaining Hendricks was not a violation of his constitutional rights. It's a complicated decision, but more or less the Court held that the state has a right to use civil detention to imprison people who have a "mental abnormality", who show a likelihood of committing crimes again, and whom the state deems dangerous.

It's easy to see this decision as a slippery-slope sort of argument, regardless of which side you stand on. Those who opposed the decision saw it as one step towards the Minority Report, where we lock up those who have not committed any crimes because they might commit a crime in the future. Those who supported it saw a troubling acceptance of child molestation and an appalling lack of consideration for his victims. Debate certainly raged in the classroom when the professor asked us what we thought.

It is a deeply troubling case. I don't know what the right answer is. But, on this eve of September 11th, I do know that I am extrodinarily fortunate to live in a time and in a place where the rights of both the most contemptible of criminals and the most innocent of victims are considered to be a matter of serious consideration, worthy of public discussion and continued debate. For that, and for many other things, I am grateful.