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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 . However, the Eighth Circuit decided that “the proper standard of scrutiny to be applied . (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.
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.
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.
Several courts have struck down onerous and overbroad registration requirements that apply to offenders living in the community. The case is a class challenge to Minnesota’s sex offender civil commitment regime, known as the Minnesota Sex Offender Program (“MSOP”).
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.
Another endeavors to give the Court accurate information about sex offender treatment and recidivism; information that has apparently eluded the Court for too long. [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. .”Of course, nobody does dispute the legitimacy of Minnesota’s interest in preventing sexual violence.
And, a brief filed on behalf of 26 law professors emphasizes what is at stake. 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). 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 . 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.
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