DEBORAH AMOS, Host:
At the Supreme Court today, a case will test the federal government's power to keep convicted sex offenders behind bars after they've served out their prison terms. Eighty-four such prisoners are now being held at a federal prison in North Carolina. NPR's legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: Kansas Solicitor General Stephen McAllister, who filed a brief in the case siding with the federal government, summarizes the argument this way.
STEPHEN MCALLISTER: The federal law does have a provision allowing for the transfer of dangerous prisoners to the states, but as McAllister concedes, the states aren't interested.
MCALLISTER: We don't want 'em.
TOTENBERG: But lawyer Jeff Green, who filed a brief on the opposite side of the case, points to statistics showing a relatively low recidivism rate for sex offenders overall. The fact that some released offenders have committed terrible crimes proves a different point - that there's no way to predict future dangerousness.
JEFF GREEN: Those are hideous tragic crimes, but they demonstrate that the experts, in terms of identifying which individuals are dangerous, are no better than astrologers.
TOTENBERG: Green maintains that the government's so-called treatment program is nothing more than a Catch-22, in which the offender is required to talk about his sexual fantasies and accept responsibility, but then those conversations can be used against him if he seeks release.
GREEN: How is he going to demonstrate that he's capable of modifying his behavior or that his mental illness is cured so that he can get out? That is a practical impossibility.
TOTENBERG: Kansas solicitor general, McAllister, concedes that few offenders get out once they're civilly committed in the states. That opens up more questions for a federal statute that provides fewer protections for the accused. If you can civilly commit someone as sexually dangerous, why not civilly commit people believed to be just dangerous in general? McAllister says civil commitment has to be linked to a mental abnormality or condition. But a lot of people in prison are deeply disturbed - drug addicts, kleptomaniacs, vicious sociopaths - why not commit them too once they have completed their prison terms?
MCALLISTER: Constitutionally, it might be possible. I don't have a constitutionally limiting line for what kinds of mental disorders might be permissible and those not. If they lead to danger to others, potentially, they could be covered under such a law.
TOTENBERG: Nina Totenberg, NPR News, Washington.
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