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.