The panoply of laws that govern the lives of individuals convicted of sex crimes after they have served their sentences is overwhelming. As this web of civil regulation has “grown into a byzantine code governing in minute details” how these people must live day-to-day, questions about these laws’ legitimacy and constitutionality are being litigated around the country. Several courts have struck down onerous and overbroad registration requirements that apply to offenders living in the community. Yet, questions persist, particularly where the government actually deprives individuals of their physical liberty. Civil commitment schemes specifically designed for sex offenders have been in vogue for more than two decades now. The U.S. Supreme Court approved some of these schemes as they took root, but it insisted that courts could bring constitutional scrutiny to bear if it turned out these schemes were punitive. The real test of that promise has now arrived.

On September 25^th, the Court will consider the petition for certiorari filed in Karsjens v. Piper. The case is a class challenge to Minnesota’s sex offender civil commitment regime, known as the Minnesota Sex Offender Program (“MSOP”). At its core, the lawsuit challenges the Program’s profound and persistent failure to ensure that individuals who pose no danger to society actually get released. In the more than 20 years before the case went to trial, over 700 individuals were committed to the MSOP; none had ever been released. In short, the Program appears to function as a prison by another name. The MSOP provides no regular or meaningful risk assessments to those in custody. Even individuals who have completed the “treatment” plans and whom State doctors agree will present no threat to public safety remain confined. The federal district court ruled in favor of the class, finding that the MSOP violated due process because it systematically thwarted the principle that non-dangerous individuals must be released from secure confinement. Finding that MSOP is a “punitive system,” the court observed that “hopelessness pervades the environment” and that “there is an emotional climate of despair among the facilities’ residents.” On appeal, the Eighth Circuit Court of Appeals reversed the district court’s decision, holding that the MSOP did not offend the Constitution.

In presenting information about what appears to be the worst sex offender civil commitment program in the country, the Karsjens petition effectively asks whether the Court plans to abdicate its responsibility for evaluating these programs altogether. The case is garnering attention. Four friend-of-the-court briefs were filed at the cert stage, a striking number considering the Court has not yet decided whether to take the case on the merits. One amicus brief provides the cultural context for sex offender civil commitment programs, explaining how they both respond to and further aggravate a moral panic surrounding sex crimes. Another endeavors to give the Court accurate information about sex offender treatment and recidivism; information that has apparently eluded the Court for too long. And, a brief filed on behalf of 26 law professors emphasizes what is at stake. Quoting Justice Scalia (who was himself drawing on Blackstone), the brief underscores that “incarceration without a criminal charge [is considered] ‘an act of despotism’ that is ‘so gross and notorious . . . as must at once convey the alarm of tyranny.’”

In large part, the Eighth Circuit’s decision turned on its determination that the individuals committed to the MSOP did not possess a “fundamental liberty interest in freedom from physical restraint.” If the Petitioners’ interest in freedom from physical restraint was fundamental, then the courts would have to apply strict scrutiny analysis to the legislature’s approach to sex offender civil commitment (as the district court did). However, the Eighth Circuit decided that “the proper standard of scrutiny to be applied . . . . [is whether the law] bears a rational relationship to a legitimate government purpose.” Rational basis review is the most deferential form of scrutiny; some scholars have characterized this level of review as one in which “anything goes.” Sure enough, once it decided to look for a “rational relationship,” the court quickly approved of the nightmarish civil commitment scheme. After all, “[n]o one can reasonably dispute that Minnesota has a real, legitimate interest in protecting its citizens from harm caused by sexually dangerous persons . . . .”

Of course, nobody does dispute the legitimacy of Minnesota’s interest in preventing sexual violence. The problem is that the “rational relationship” test is so undiscerning that a legislature could enact almost any conceivable policy of prolonged confinement against any class of individuals convicted of a sex offense and evade judicial scrutiny. (It is worth noting that the district court’s factual findings here are so eye-opening that this could be the rare case in which a court strikes down as unconstitutional a statute under the normally-toothless rational basis test because it detects that the state’s actions were arbitrary and arose out of out of animus. While the Supreme Court could theoretically reach that result, it seems unlikely, particularly given the question presented in the cert petition.) More than that, the Eighth Circuit’s decision calls into question whether people maintain a fundamental liberty interest in being free from physical restraint. To water down that interest based on someone’s status is to damage not only the person but the interest itself. As the CATO Institute and Reason Foundation submitted in an amicus brief (on which I was co-counsel):

[I]t is constitutionally coherent to acknowledge that sex offenders—like all people—have a fundamental right to be free form bodily restraint. That the right is fundamental, however, does not render the government helpless to overcome it. Instead, the government is required to articulate a compelling interest to which the state’s infringement of liberty is narrowly tailored to meet.          

Karsjens is not the only case implicating sex offender laws that the Court will consider this term. On the same day it conferences Karsjens, the Court will also look at Snyder v. Doe, a case out of Michigan in which the Sixth Circuit struck down the retroactive application of the state’s sex offender registration scheme as a violation of the ex post facto clause. The Court invited the Solicitor General’s view on whether it should grant the State’s cert petition in that case. Surprisingly, the Solicitor General’s brief suggests that the Supreme Court should deny the petition, thereby leaving the Sixth Circuit’s decision intact. According to the SG, the court below utilized the correct legal framework to make its decision, and the outcome simply turned on the unique facts applicable under Michigan’s law. The SG’s recommendation is not binding, but the Court agrees with the SG’s suggested disposition in a significant majority of cases.

While the Court will see many petitions that challenge countless civil restrictions imposed on sex offenders—from registration requirements and residency restrictions to prohibitions on internet activity—Karsjens presents a pressing question that could provide courts with fundamental guidance. After all, if it passes constitutional muster for an individual to face indefinite deprivation of physical liberty with almost no means of obtaining release, it becomes difficult to imagine whether our Constitution provides any limits on the government’s ability to curtail liberty on the basis of predicted future dangerousness. This would be a disturbing expansion of governmental power.

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