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Analysis: What do sex offenders and health-care reform have in common?

This article first appeared in the St. Louis Beacon, May 19, 2010 -  The soundbites from this week's two big U.S. Supreme Court decisions were:

  • Government can continue to hold dangerous sex offenders after they serve their sentences, and;
  • Juveniles can't be sentenced to life in prison without parole if they did not commit murders.

Underneath those soundbites are the echoes of centuries of debate about the extent of federal power and the standards of decency in a civilized society.
The most important thing about the sex offenders decision had nothing to do with sex offenders. It was the broad interpretation that five members of the court -- surprisingly including Chief Justice John G. Roberts -- gave to congressional power under the "necessary and proper" clause of the Constitution.

That broad interpretation in Justice Stephen Breyer's opinion may not be as spicy as the sex offender angle, but it lends new support to the already strong argument that Congress had the power to pass this year's health-care law.

"Roberts' concurrence in the Breyer opinion makes the prospects for a successful constitutional challenge to the federal health-care mandate look even more forlorn than they did before," wrote Ronald Levin, a professor at Washington University law school.

Roger Goldman, law professor at Saint Louis University, agreed. He wrote in an email: "It was significant that Roberts joined the majority's opinion upholding Congress' power under the necessary and proper clause under the very deferential 'rational relationship test'.... Roberts may not be sympathetic to claims that the necessary and proper clause isn't a sufficient basis to uphold the recently enacted health-care reform law."

Bruce La Pierre, a law professor at Washington University, pointed out that Roberts took a much more favorable view of national power than his predecessor, Chief Justice William H. Rehnquist. But La Pierre wondered if Roberts might have joined the Breyer opinion partly because of what La Pierre facetiously termed, "the noble end (civil commitment of sex offenders)," an end "no politician can criticize."

There was nothing new in the court ruling that sex offenders could be held after their sentences expired. The Supreme Court had ruled eight years ago that states could hold mentally ill and dangerous sex offenders beyond their sentences. The only question was whether the federal government had the power to do the same thing.

To find the answer, the court reached back to the historic case of McCulloch vs. Maryland in which Chief Justice John Marshall found in 1819 that Congress had the power to set up the controversial Bank of the United States. The Bank of the United States was the "Obamacare" of the 19th century, at least as unpopular in parts of the country as the new health-care law is today.

Marshall set out a broad interpretation of the "necessary and proper" clause in this famous passage memorized by generations of law students: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist within the letter and spirit of the constitution, are constitutional."

The case the court decided this week involved five federal prisoners whom the government sought to commit civilly after their criminal sentences ran out. The prisoners had served time for child pornography and molestation crimes and were deemed still dangerous.

Writing for himself and four other justices, Breyer concluded that Congress has the power to act as long as its means is "rationally related" to implementation of a power enumerated by the Constitution.

Breyer created a daisy chain of linkages. Congress can pass laws to carry out its constitutional powers. It can pass criminal laws making it illegal to violate these federal laws. It can enact laws to imprison those who violate federal criminal law and can enact laws to protect people around the federal prisons by committing dangerous sexual offenders. None of these powers is enumerated by the Constitution, but Congress has the power to enact them to execute its enumerated powers, he wrote.

Justices Anthony M. Kennedy and Samuel Alito agreed with the result but not the reasoning. They thought that Breyer's rationality test was too lax, making it too easy for Congress to exceed its authority. Alito argued against a daisy chain of linkages, saying a power mentioned in the Constitution had to have an "appropriate link" with the act taken by Congress to implement it.

Kennedy used a different analogy for Breyer's judicial creation, pointing out that Thomas Jefferson had once warned against linking powers together into a "House that Jack Built."

La Pierre, the Washington University professor, agreed with the criticism. In an email, he wrote: "Breyer's opinion is indeed a 'House that Jack Built' argument: (1) Congress has enumerated powers (never specified -- Clarence Thomas is clearly right on this point); (2) Congress under the 'necessary and proper' clause can punish violations of laws enacted under its unspecified enumerated laws; (3) civil commitment is a means of carrying into execution its power to punish -- Breyer never provides any explanation how civil commitment is a means under 'necessary and proper' clause to carry into execution any particular enumerated power."

Sentencing minors

In the juvenile sentencing case, Kennedy wrote the decision holding that it is cruel and unusual punishment to sentence children under 18 to life in prison without the possibility of parole when they have not committed murder. Children have less culpability and a greater capacity for change than adults and should not be denied all hope of release, he said.

The decision reignites a 5-year-old constitutional argument on the Eighth Amendment's ban on cruel and unusual punishment. In 2005 Kennedy wrote the decision throwing out the death penalty for juveniles. That decision was in a Missouri case where 17-year-old Christopher Simmons had murdered Shirley Crook by tying her up and throwing her in the Meramec River.

The crimes involved in this week's case, a series of armed burglaries and robberies, were not as horrifying as the Crook murder. But the decision is likely to be similarly controversial because Kennedy used much of the same reasoning.

Once again Kennedy pointed to a "global consensus" against the sentencing practice. Kennedy and the court were strongly criticized for citing the international consensus against the juvenile death penalty in the Simmons case. The topic could come up in the forthcoming confirmation hearings for Elena Kagan.

Kennedy emphasized Monday that the views of the rest of the world were not the basis for the decision but said the court looks beyond its borders for support for its independent judgment that life sentences without parole are cruel and unusual punishment for juveniles who haven't murdered. Only 11 countries authorize life sentences for juveniles who have not murdered and only the United States and Israel have employed the sentences.

The court has held for more a century that the definition of cruel and unusual punishment is based on society's evolving standards of decency

First Kennedy looked at whether there was an emerging consensus on the issue. Supporters of the sentences noted that 37 states have laws permitting life sentences for juveniles who have not murdered. This they argued was a consensus in favor of the sentences.

But Kennedy turned the argument around. He noted that many of the states permit life sentences without parole but never mete out that punishment. Missouri and Illinois are two such states.

All told, only 129 juveniles face life sentences without parole for non-homicide crimes and 77 of them are in one state, Florida. The rest are imprisoned in only 10 states plus the federal system. That means, Kennedy concluded, that a consensus opposing such sentences exists because 39 states are not holding a juvenile on a life sentence without parole in a non-homicide case.

Kennedy also argued that "developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. For example, parts of the brain involved in behavior control continue to mature through late adolescence....Juveniles are more capable of change than are adults, and their actions are less likely to be evidence of 'irretrievably depraved character' than are the actions of adults," he wrote.

Finally, Kennedy argued that a life sentence without parole "means denial of hope; it means that good behavior and character improvement are immaterial; it means that whatever the future might hold in store for the mind and spirit of [the convict], he will remain in prison for the rest of his days."

Justices Thomas, Alito and Antonin Scalia dissented. Thomas wrote that the majority had not paid attention to what punishments were permitted at the time the Bill of Rights was adopted. He noted that at the time even a 7-year-old could face execution for theft.

Retiring Justice John Paul Stevens ridiculed Thomas' argument. "While Justice Thomas would apparently not rule out a death sentence for a $50 theft by a 7-year-old, the court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so."

Dora Larson, an Illinois woman who is an officer in the National Organization of Victims of Juvenile Lifers, said this week that she worried the decision will be extended in the future to allow juvenile murderers to escape life sentences without parole. Larson's 10-year-old daughter was murdered by a teenage boy.

Goldman, the Saint Louis University professor, said it was possible that the decision could be extended to some teenage murderers. "This is surely a distinct possibility," he wrote. "If a juvenile, age 10, commits a murder while at play with a classmate, compared to a 16-year-old repeat offender who tries to kill several people but only wounds them with a gun, why say the former can get life without parole but the latter doesn't? Once the argument is accepted that juveniles aren't fully formed personalities, shouldn't a state have to take this into account and give him a 'realistic opportunity to obtain his release at some point,' whether it's murder or any other crime?"

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute.

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.

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