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Austin Cline

Confining Criminals After Their Sentence Has Been Served

By October 28, 2005

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If a person is convicted of a serious crime, they normally serve time in prison. Once that time is served, they should be set free - right? What's the point of having a defined prison sentence if a person is not allowed to return to society afterwards? Unfortunately, there are some who seem to want exactly that: indefinite detention without a criminal trial.

New York Newsday reports on remarks made by Jeanine Pirro, the Republican who wants to defeat Hillary Clinton in the New York Senate race:

During a speech to Chemung County Republicans on Tuesday night, Pirro continued her criticism of the Democratic-controlled state Assembly for its refusal to adopt legislation that would civilly confine violent sex offenders after their prison sentences end.

“That’s a difference between Democrats and Republicans — we don’t want them next door molesting children and murdering women,” said the Westchester County prosecutor, according to Wednesday’s Elmira Star-Gazette newspaper.

That drew a sharp rebuke from the Clinton camp, and a demand for an apology. “Ms. Pirro’s comment is an affront to common decency and an outrageous insult to the five and a half million law-abiding Democrats in our state,” said Clinton adviser Howard Wolfson. “With statements like these, Ms. Pirro’s campaign is rapidly going from an embarrassment to a disgrace.”

Although Pirro’s accusation that Democrats don’t mind if people molest children and murder people is unusually egregious, her general position that some people are too dangerous to be allowed to be free, even if they have fully served their lawfully decided prison sentence, is not very unusual. It’s becoming very popular among conservatives in America — they don’t seem to realize that the rule of law is undermined if the state begins to civilly confine people outside the context of criminal trials. Sadly, we have evidence of what happens this occurs:

Justice Jackson: Protective custody meant that you were taking people into custody who had not committed any crimes but who, you thought, might possibly commit a crime?

Hermann Goering: Yes. People were arrested and taken into protective custody who had not yet committed any crime, but who could be expected to do so if they remained free ... the original reason for creating the concentration camps was to keep there such people whom we rightfully considered enemies of the state.

This sort of testimony should be chilling to most people — if you care about freedom, then you don’t want the state to have the power to arrest people who haven’t done anything wrong. Arresting such people did, however, grow logically out of the Nazi’s concerns about protecting the state from hostile and subversive elements. Criminals weren’t imprisoned in order to be rehabilitated, they were imprisoned in order to punish them and protect others. Non-criminals were arrested for much the same reason: punish them for presenting a danger to the state and protect the community from whatever crimes they might be expected to commit in the future.

Unfortunately, similar attitudes continue to find support in America. Convicted pedophiles or other sex criminals should be kept in prison, it is argued, even after their sentences have been served. Why? To protect the community. The same arguments were used about different sorts of criminals in Nazi Germany. Once people can be kept in jail even after their sentences have been served, it’s not such a huge step to begin putting people in “protective” custody before any crimes have been committed.

People should ask themselves if they would support preemptive, protective custody for certain types of people who represent (according to the government) a threat to the community. Would you trust the government to only use this power against “genuine” threats and against the “worst” of not-yet-criminals? Would your decision be affected if someone you knew and trusted were taken into custody?


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