US Supreme Court Associate Justice Clarence Thomas’s legend on the SCOTUS is that he doesn’t speak during oral argument. He does not pepper counsel with questions. He does not interrupt counsel presentations. His reasons (which I respect and admire, even if I disagree) are that he is briefed extensively and he doesn’t want to draw attention to himself by making a show.
Thus, when Clarence Thomas speaks people take heed. Clarence Thomas spoke a couple of days ago in Voisine v. United States. The case involves the questions: (1) Whether a misdemeanor crime with the mens rea of recklessness qualifies as a “misdemeanor crime of domestic violence” as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9); and (2) whether 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9) are unconstitutional under the Second, Fifth, and Sixth Amendments and the Ex Post Facto Clause of the United States Constitution.
A rather unremarkable case of statutory construction. Justice Thomas, after the counsel for the US asked whether there were any further questions, said, “one question.” He actually asked a few. But is started with this:
“One question. . . . [T]his is a misdemeanor violation. It suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends a constitutional right?”
Justice Thomas went into forest from the trees. And asked an important question about Constitutional rights: Why aren’t other rights treated like the Second Amendment?
It is right along the lines with the gun debate. I haven’t hit this debate because people either like guns or don’t.
But people like to fight. People would rather snipe than solve a problem. Like the author of this article. http://thinkprogress.org/justice/2016/02/29/3754773/justice-thomas-just-broke-his-ten-year-silence-to-complain-that-domestic-abusers-cant-have-guns/
Do you hate or mistrust Justice Thomas? Then you will love this article. Do you like or trust Justice Thomas? Then you will hate this article.
Look, however, at the questions presented. Justice Thomas provided a solution to the issue right in his question: “[T]his is a misdemeanor violation.”
Criminal Punishment Policy has a Nice Recent History of Short Sentences with Long Consequences
Rapists. Child molesters. Each are those who commit sexual crimes. Many states have created sexual offender registries. They have created laws that prohibit sexual offenders from living near parks or schools or wherever children may be. The reason is because the legislatures, executing the will of the people, have determined that those who commit sexual crimes cannot be trusted. Therefore, the public must know and be aware of their presence in order to protect themselves.
Still other states actually go further. Many states have laws that allow the civil commitment of sexually violent predators (SVPs). So a guy (let’s face it, they are mostly guys) has committed some sex crimes. Maybe the guy has committed dozens. Perhaps he is a stepfather who spent years molesting and raping a stepdaughter. Or even a biological father.
The guy gets caught. Charges get pressed. And a pleas deal maybe gives him a decade or so. With good behavior, he can be out in a few years. But the state has decided that this person is a danger to society. Therefore, prior to the convict being released, the state petitions the court to say that there is some mental illness in the person that makes him likely to reoffend.
Should the state prevail, the guy commits his sentence and gets transferred to an indeterminate sentence at a state mental hospital. Regardless of whether there is any actual mental illness that can be treated by medical and mental health professions, the legislature has determined that the person’s prison sentence is far too short and no proof of rehabilitation is demonstrated.
As a matter of law, the person is mentally ill. As a matter of medicine? Who the hell knows? In fact, all it takes is for a defense psychiatrist to be more convincing than a prosecution psychiatrist that, “This guy is just a jerk.” But since they get juries, there is not a rational jury member that wants this person wandering the streets.
So the jury votes to commit the person to a state hospital. Rather than being in prison, the predator is now in a hospital. Rather than being subject to the limitations of correctional facilities, they have run of the hospital.
I will suggest that, in many ways, this is the Garden of Eden for these guys. The public perception is that they are segregated and therefore not a problem. Some violent predator assaults another person in a hospital? So what? That person is already kept away from society.
The point? Society has deemed these people to be dangers to society. The state has deemed them to be worthy of seclusion from society.
But what society won’t do is just sentence them to prison until they can show proof of rehabilitation. How many of these Sexually Violent Predators belong in hospitals? Probably a lot of them are indeed mentally ill and act out in sexual ways. On the other hand, how many people in these hospitals should be in prison? Plenty.
Problem is that legislatures, for some odd reason, are hesitant to segregate certain people until they are no longer a threat. But states will treat them like a threat even though they are out of prison.
Justice Thomas Suggested a Solution: Make Domestic Violence a Felony
Is a person who beats a spouse a threat to society? Regardless of what I think, it appears that the author of the thinkprogress article thinks that once a person commits an act of violence against a family member that the person can never be trusted again.
So why isn’t the author arguing what Justice Thomas suggested? Make domestic violence a felony.
Felons have all kinds of rights taken. Right to vote. Right to gun ownership. Lots of rights are lost when a person is convicted of a felony.
Justice Thomas gave a clear indication that this would not be an issue if domestic violence was a felony. I know plenty of women and children and MEN who were victims of domestic violence. And who were victims of sexual abuse. People recover from gunshots more quickly than they recover from abuse.
Would those who criticize Clarence Thomas suggest that perpetrators of domestic violence should not face the consequences of a felony? I bet they would actively LAUD such a suggestion. But as is clear, it is a lot more fun to snipe at Justice Thomas.
A person can either be part of the solution or part of the problem. Want to do something about domestic violence? Out of all the victims of domestic violence and sexual assault I know, none has ever been shot. (I’m not saying they aren’t out there – the Supreme Court had a case a decade or so ago where it found that police had no duty to enforce a temporary restraining order after the subject of the order committed some murders).
It is as if many people don’t actually care about preventing domestic violence. “Domestic violence is cool, so long as you don’t shoot her.” It’s the inference I glean from the article.
I therefore allege that the criticism of Justice Thomas is less about domestic violence and more about: (1) hating Justice Thomas; and (2) hating guns.
Propose Solutions Instead of Sniping
I am shocked that in a quick search online, I didn’t see anything in the news that made the suggestion, “Make domestic violence a felony.” Instead, what I see are people hating on Justice Thomas for having the audacity to view a misdemeanor as a misdemeanor.
Is it worse that a misdemeanor? Then let’s get the legislatures to call it a felony. Rather that sitting back and sniping at a judge (whom we all know will just be dissenting) because, well, sniping is what they do, how about actually looking at what Justice Thomas said, figure out the problem, and then propose a solution.
Anyone disagree? If domestic violence is worth treating LIKE a felony, then just call i a felony. Who knows? It might actually cause reason for people to say, “I actually need to control my temper.”
But since the proposal would take away the reasons to fight and snipe, don’t expect it to be supported. Easy to hate on Justice Thomas. Hard to ask that domestic violence perpetrators be punished accordingly.