As promised yesterday, here is part 2 re the Hamdan verdict and sentence:
In my FindLaw column, I explain that within the civilian justice system it is possible for the government to detain a person not as a punishment for past wrongs but out of fear of future dangerousness. Within the criminal justice system, bail is sometimes denied out of fear of the defendant's future dangerousness. The Supreme Court approved that practice in United States v. Salerno over the dissenting objection that the point of bail (or denying bail) is simply to ensure the defendant's presence at trial. But in any event, pre-trial detention is relatively short. Long-term preventive detention requires civil commitment, which in turn requires proof by clear and convincing evidence that the person to be committed is both mentally ill (or suffers some form of mental impairment) and poses a danger to self or others. Crucially, civil commitment is not permanent. Someone who is locked up as mentally ill and dangerous must have that status periodically reviewed.
Needless to say, people who are civilly committed AFTER causing serious harm face serious difficulty in getting released. Few judges are willing to take the risk of releasing someone who may commit future violence. Likewise, psychiatrists are often reluctant to testify that a once-violent patient no longer poses a risk. Thus, John Hinckley, Jr. remains in civil confinement, only quite having become eligible for supervised visits with his parents a few years ago.
Would the same dynamic apply for war-on-terror detainees? Quite possibly. My column proposes that the government be required to make periodic showings that a detainee remains dangerous in order to be able to continue to hold him, but it is easy to see how judges would be reluctant to order the release of anyone once branded a dangerous terrorist.
Accordingly, my proposal can legitimately be criticized on the ground that it is too forgiving of the government. And yet, in the current political environent, the proposal would likely be dismissed as wildly civil libertarian.
Posted by Mike Dorf