star-telegram.com (Texas): Adam Walsh Act is an Iffy Means to a Noble End.
A basic principle of criminal law is that someone who commits an offense against society must pay a penalty. Elected legislators set parameters for punishment, based on the severity of the crime. Juries and judges then decide actual punishment warranted in individual cases. Once a fine is paid or a sentence is served, those who committed the crimes are allowed to go on with their lives, having paid their debt to society.
When prisoners are released, the government can attach reasonable conditions of probation or parole. But the government can’t add punishment once a sentence is served. The Constitution — and justice — don’t allow that.
But that’s essentially what the Adam Walsh Act allows. When prisoners convicted of sex-related crimes were finishing their federal sentences, the attorney general designated them as "sexually dangerous" and kept them in prison, some now years beyond the length of their original sentences.
The Justice Department argues that the Constitution allows this under Congress’ power to take "necessary and proper" action to enforce the law, including running a criminal justice system.
But inmates challenging the law counter that this is federal intrusion into traditional power of the states to police sex-related violence, most of which doesn’t involve interstate commerce. Besides that, if the federal government can hold people to prevent them from committing future sex crimes, it could continue holding any inmates it wants to prevent them from doing other unlawful things.
But the Constitution doesn’t give the federal government power to imprison people for crimes they haven’t been convicted of, or just to protect society, no matter how worthy that goal.
That doesn’t mean clearly dangerous people must be let out into society. To protect their residents, states can take civil custody of individuals who pose a serious public safety risk — based on evidence presented in a procedure that provides due process protections.
But if existing punishments aren’t enough to keep dangerous people from causing more harm, elected officials should reconsider whether sentences for certain crimes should be revised. If a civil commitment component should be added to prison time for some offenses, that should be put into the law upfront, not done after the fact.
Society has a vested interest in keeping people safe from sexual violence and sex crimes against children. But not all means can be used to serve a noble end.