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Modern Leper Colonies
People infected with the bacteria mycobacterium leprae were once so feared they were banished from society. Lepers were quarantined — and essentially imprisoned — for the public good. We’ve thankfully since discovered that leprosy is both treatable and not highly contagious, so the practice of exiling the diseased is no longer practiced, though the last leper colonies in the United States (Kalaupapa in Hawaii and Carville outside of New Orleans) were only shut down within the last 20 years. We no longer give non-penal life sentences to people considered too dangerous to exist in society, except when we do.
Unsympathetic cases make the best tests of our principles. There exists today a new kind of leper, a category of persons considered too dangerous to be free in society and given life sentences in exile. The inhumane treatment once suffered by lepers is now being thrust upon this class of people. The least sympathetic of all who are treated more like animals than humans are, of course, violent sex offenders.
The Supreme Court this term had an opportunity to clarify the constitutionality of imprisoning sex offenders indefinitely and answered affirmatively to Reason.com’s question, Will SCOTUS Let Fear of Sex Offenders Trump Justice? By denying certiorari in Karsjens v. Piper, the court lets stand the Minnesota program which “has detained sex offenders released from prison in a ‘therapeutic program’ conveniently located on the grounds of a maximum-security prison in Moose Lake. The ‘patients’ are kept in locked cells, transported outside the facility in handcuffs and leg irons, and subjected to a regimen that looks, sounds and smells just like that of the prison it is adjacent to.” [quote source]
As the Reason and Cato amicus brief puts it, “It is functionally impossible to distinguish between Minnesota’s civil commitment for sex offenders and imprisonment.” In the 24 years of its operation the program has only successfully treated and released one individual. The program offers no hope of a return to society. The trial court held that the plaintiffs had a “fundamental right to liberty.” The Eighth Circuit disagreed with this position, and now the Supreme Court has confirmed that no such right exists, at least not for those who are the modern equivalent of lepers.
Beyond the incarceration there is also the material treatment of these sex offenders being called into question. A recent case filed by sex offenders secluded on McNeil Island in Washington State contends that the drinking water provided to them by the facility is not safe. Cases filed by the incarcerated are often taken with a grain of salt, but this one is likely worth watching. As a society we’ve deemed that even the worst among us retain some degree of humanity and should be treated humanely, even if just barely so. Contaminated drinking water likely fails that standard.
I’m not arguing here that these are not monsters. I’m not even sure where I stand on indefinite civil commitment because the data on recidivism are dicey at best. But I am saying that if we are to do these things as a society we better be damn sure we’re right about it. Angels still don’t govern men, and I fear this is a situation which demonstrates it.
Published in General
I know. I was a sucker. (Still am.) It’s a pretty idea…until it isn’t.
The two facilities mentioned in the OP are located within the Moose Lake maximum security prison in Minnesota and McNeil Island in Wa, which was the last island prison in the U.S. until it was transformed into the state’s sex offender detention center. These places don’t resemble prisons; they are prisons.
Yup, I know someone who got ground up in the machine too. Actually, more than one, now that I think of it. Laws and procedures enacted in a panic can definitely end up screwing people over who don’t deserve it, while not increasing the margin of safety much, if at all.
Sanatorium…also “asylum.” I remember when some fuzzy-wuzzy liberals invited a bona fide baby-raper (sorry, LEO-speak) to join our church upon his parole from prison. They thought it kinder not to tell anyone. When folks found out, the kaka met the wind-pusher, though fortunately he hadn’t yet begun attending, or we could’ve had a huge lawsuit on our hands. Parents whose children had been interacting with a child molester at coffee hour or (?!) Sunday school would not have been, shall we say, pleased at this display of tolerance and inclusiveness.
Anwyay, at some point during the drama, the sex offender was interviewed and he said “yes, I am a pedophile. That IS my sexuality.”
I heard about this, and my first feeling was protective, of course (my newly-fatherless children would have been easy picking for this guy) but my second was pity. I can’t imagine a more horrible affliction: he cannot express his sexuality without harming an innocent and vulnerable person. It’s appalling.
An “asylum,” a place where he could live out his days without risk of harming anyone, is the best we can offer. Isn’t it? (I think I would kill myself. But I don’t know. I have my sins but, thank God, that isn’t one of them.)
Placing a treatment facility for violent sex offenders inside the confines of a prison seems a practical alternative to building an entirely new facility with comparable security. Perhaps you have some knowledge of the staffing and services provided within these facilities. (I don’t.) Absent that, I don’t know how you can rule out the possibility that these are high-security treatment facilities — as opposed to simply high-security prisons.
I would be ok with this provided it wasn’t an actual prison, but now we’re back in leper colony realm. No right answers, only trade offs.
Would you be okay with a sentence of life-imprisonment, so that the same thing could be accomplished within an actual prison?
Well the successful treatment rate of one person per quarter century speaks pretty loudly on this point.
I’m still not sure preemptive incarceration jives well with the constitution. These people aren’t confined because of what they have done but because of what they are capable of.
If that was the law, but it never has been. We’ve had ample opportunities to make it the law and have chosen otherwise.
(duplicate)
Actually, it pretty much is the law. People are sentenced to prison terms, with an understanding that they will be released into secure treatment facilities from which they will likely never be released into society. The courts have ruled that this is legal.
So, again, I’m not sure they’re better off in prison forever versus in a similarly secure psychiatric facility forever. But I’m comfortable with them being confined forever in either case, as long as it’s done within the law — as seems to be the case.
Let’s be clear: this is the continued incarceration of convicted felons deemed too dangerous to be released back into society. I’m sure that jives well with the Constitution.
There always George Carlin’s idea of turning Colorado into a penal colony. ;)
My mum wanted to turn the Falklands into a penal colony. Lots of ocean between the perps and civilization. A little tough on the sheep, though.
Incorrect. This requires a civil commitment, a separate process.
This is where the rub is for me. Perhaps it’s just my misunderstanding of criminal justice, but in my mind incarceration requires criminal conviction, not civil commitment. This stinks of enacting criminal penalties through the civil justice system rather than through the criminal justice system.
I think the manner of their confinement matters. Moving from one jail cell to another without another criminal conviction just doesn’t sit well with me. It strikes me as being deprivation of liberty without the normally ascribed due process.
That’s McNeil Island. The three miles of frigid Puget Sound is a sufficient barrier to prevent escape.
Are you saying that these people are being held illegally now? I did not pick that up from my reading of the article. If not, what are you saying? (Perhaps I’m simply misunderstanding your point.)
I used the word “incarceration” in its more general sense (which includes medical incarceration). I won’t pretend to know the law here, but I assume (and nothing I’ve read here makes me think otherwise) that what is being done is legal: that their conviction as violent sexual offenders qualifies them to be committed — against their will — to treatment facilities.
That’s an interesting question, and one not really addressed in the Reason article — or a point I missed if it was. How is it that these people are being remanded into the treatment facilities? I can’t believe that this is happening without a legal process. These people have lawyers, and they can’t simply be detained against their will without some official mechanism being in place to achieve that. I don’t recall the article mentioning that.
I would absolutely agree with you — and join in your call for action — if I believed that what was happening was extra-legal. However, the Supreme Court has ruled that it is allowable — that a civil commitment following release from a criminal sentence is acceptable. The Reason article cites the case here.
Having said all that, my jumbo shrimp friend, I should add that I’m not accustomed to being in the lock-them-up-and-throw-away-the-key camp. I’m a huge fan of the Constitution and of protecting all of the rights it aims to protect. I don’t mean to sound cavalier about this issue. At the same time, I don’t entirely trust the judgment of the good folks at Reason (which is why I ended my subscription 20-some years ago), and I’m not confident that what they’ve identified as a miscarriage of justice actually qualifies.
And, truth be told, in the case of violent sexual offenders, I probably am of the lock-them-up-and-throw-away-the-key persuasion — so long as it’s done within the law.
This is currently (and will remain) legal because SCOTUS denied cert a few days ago. The question the court was asked to resolve was whether or not it should be. The problem wasn’t the civil commitment so much as it was the pretty plain fact that it was de facto indefinite as opposed to commitment with a potential end. One of the articles stated that one plaintiff had successfully completed every treatment offered and was still confined. I wouldn’t even mind indefinite civil commitment if that is what was ordered, but when the order is “until such time” and that time can’t ever exist, then the state is disingenuous about what they’re really doing. They’re tossing undesirables in an oubliette. The Cato brief explains it better than I can.
If the state is knowingly keeping people who meet the discharge criteria from being discharged it is an enormous problem, possibly in the illegal realm you mentioned.
I wonder what that suggests. (Sincerely. I don’t know how much and what kind of analysis goes into the decision to refrain from hearing a case.)
And “oubliette” is a great word, however grim in the circumstances.
One last thing. You said:
One possible interpretation of that is that there is really very little prospect of satisfactory reformation/rehabilitation, but that the state allows the attempt as a final effort to avoid permanent criminal incarceration for people who, absent rehabilitation, would require it.
If that’s the case, the low success rate is more indicative of the state’s extreme effort to avoid unnecessary incarceration — even when the effort is almost hopeless — than it is of excessive incarceration.
And, in that case, simply acknowledging reality and sentencing convicted violent sex offenders to life in prison might be the more practical, and economical, choice.
Previous case law held civil commitment to be legal so long as it was therapeutic vice punitive. Minnesota’s program seemed wholly punitive with any therapy thrown in just as a cover. Only criminal conviction can hand out a punitive outcome because only criminal law is restrained by constitutional curtailments of government power.
It might be, but it would not be in accordance with the law as written, and it could not be retroactively applied to current prisoners because of ex post facto limitations.
At the risk of kicking this dead horse to death: It seems that way if you see it that way. On the other hand, you can see it as a sincere, if hopeless, attempt to reform violent sexual offenders.
How could such a program come about? Well, it could be mandated by a legislature with unreasonable expectations, and then executed by therapists and psychiatric counselors who are realistic enough to know that it isn’t working, and so refuse to give their permission to release people they believe are not rehabilitated.
If that’s the case, we should (1) be thankful that the therapists aren’t yielding to political pressure to release “reformed” offenders, (2) ask the legislature to end the program, and (3) encourage longer criminal sentencing.
But here’s a question. Other states probably do something similar. What is their success rate? What is the recidivism rate (as far as we can tell) for people who have been through such programs? Or are all such results similar?
KP, I can’t imagine having much to add beyond what I’ve said. This has been a good discussion, and I’ve enjoyed it. I’ll yield the floor to you and others with something new to add. Thanks. It’s been a pleasure. — H.
One point hammered in the Cato brief was how unlike other state programs was the Mn program.
Then I will read the Cato brief in full. Because that invites other questions.
But not tonight. ;)
People who sexually abuse children deserve to die in horrible pain, and I would be honored to serve as their executioner. If they get a lighter sentence than death, that is an injustice. Unlike lepers, these scum choose to be monsters.
It’s a good thing we’re a nation of laws.
It certainly decreases impulses but there are ways around such issues if people are out in society.
We are a nation of laws, at least for little people like us. If someone rapes one of my kids they are going to die if I can get to them. I’ll deal with the legal consequences.
5 years probation
No charges
https://www.youtube.com/watch?v=uGP4vNrEEJs
Liberty is double edged sword. You advocate for 2nd Amendment rights because lives saved are just as important as lives lost. So I ask what is society’s gain by the release of sexual predators, especially the ones that prey on children?
During my long career as a special education teacher I worked with quite a few who were categorized as conduct disorder, in the vernacular, sociopaths. Authors such as Stanton E. Samenow have written extensively on the essential incurability of people who are so classified. They are criminals who simply continue to commit crimes no matter the consequences that befall them. Many seem quite sane, more so often than others whose behaviors are far less dangerous to those around them. They lack a conscience. They have no empathy. They are extremely manipulative. Their goals are purely self-involved.
Sexual predators, violent sex offenders are the worst of this type of criminal because their needs involve the degradation or killing of another person. In some cases their disorder is the consequence of having been preyed on themselves by a sexual predator. I worked with a young lady who was classified as SAYS (Sexually Aggressive Youth Syndrome). Her behavior involved sexually assaulting any vulnerable child, preferably female, that she had unsupervised access to. In all other ways she seemed very normal, charming, intelligent, an attractive young woman. Yet she could never be allowed to even be near a vulnerable child. In one situation she lived in she actually cut a hole though the wall boards separating her room from the bedroom of another foster child so that she could gain access to that child during the night. This was a compulsion she could not control, nor is it likely that she would ever be able to control it.
When someone is convicted of an assault or other violent crime and that person is diagnosed as a sexual predator, it may be totally appropricate to incarcerate them in a prison situation for the duration of a sentence appropriate to that particular crime. However, once they have served their time, it is essential that they not be allowed to return to normal society where they will once again respond to their compulsions. Society has a right to protect itself from those who would do harm to its members. These people, in general, do not display behaviors that would identify them as what they are. One need only remember Ted Bundy, as an example.
Comparing them to lepers is absurd in my opinion. Other than the assumption of infectiousness, lepers were essentially harmless. They did not seek to hurt others. They committed no crime. These people are dangerous to the most vulnerable members of society. They have, like most mentally ill people, adapted to their disease, or should say maladapted. I suspect that chemical castration would only be partially successful since part of that maladaption is that their compulsion is not just sexual, but becomes over time a psychogical need. By way of comparison, children who have suffered from ADHD for years and are finally put on drugs to control the disorder do not automatically become perfect students. They have lots of learned behaviors which continue long after their hyperactivity has been resolved.
“Coventry” – Heinlein – comes to mind. Not an exact match, but the idea had to do with permanent exile.