Why Max Hardcore May Never Be Released

WASHINGTON, D.C.—It's long been a maxim that bad cases make bad law—and on Monday, the U.S. Supreme Court handed down a decision that should make adult content producers cringe.

At base, it seems simple enough: The question presented in the case of United States v. Graydon Earl Comstock, Jr. et al was, does Congress have the power, under the "Necessary and Proper Clause" contained in Article I, Sec. 8 of the U.S. Constitution, to require prisoners (and even some people who aren't prisoners) who are deemed to be "sexually dangerous persons" to remain in prison even after their full sentences have been served?

"Congress has very limited powers, and in order to facilitate those powers, the Constitution provides that Congress also has the 'necessary and proper' authority to do the things that it's allowed to do," explained noted First Amendment attorney Allan Gelbard, who represents producer John Stagliano in the Evil Angel obscenity case. "So, for example, if it's allowed to regulate the mail, it's allowed to criminalize misuse of the mail; it's allowed to build post offices—the things that are necessary and proper in order for the government to facilitate its otherwise enumerated powers. Now, government has the authority to imprison sexually violent offenders, and if the government has the authority to do so, and it also has the authority to protect the populace from those people if they're a risk when their confinement is up, the necessary and proper clause says Congress has the authority to do that."

At issue were four offenders from North Carolina—three who pled guilty to possession of child pornography and one to sexual abuse of a minor—and one person who had been charged with aggravated sexual abuse of a minor but was confined to a mental facility after having been found mentally incompetent to stand trial. In late 2006, the U.S. Attorney for the Eastern District of North Carolina had instituted proceedings under United States Code Title 18 §4248, to keep all five men in custody past their statutory release dates, on the basis that each had previously "engaged or attempted to engage in sexually violent conduct or child molestation"; currently "suffers from a serious mental illness, abnormality, or disorder"; and "as a result of" that mental illness, abnormality, or disorder is "sexually dangerous to others," in that "he would have serious difficulty in refraining from sexually violent conduct or child molestation if released."

It is noteworthy that although three "respondents" (feel free to think of them as "defendants") the state is seeking to retain indefinitely in custody pled guilty merely to possession of child pornography, each had, according to the government's Supreme Court brief, engaged in more overt sexual behavior. Comstock had had a previous conviction for "taking aggravated indecent liberties with a child"; Thomas Matherly had been convicted of "traveling in interstate commerce to engage in a sexual act with a minor"; and Markis Revland had been convicted of "indecent exposure."

"One of the things you have to consider is that people who plead to possession of child pornography may have been accused of much more serious crimes, but that's what they pled to," Gelbard correctly noted. "I'm the first one to be on the side of the First Amendment here, but it's really easy to get caught up in an argument without reading past it, and I haven't done that, so I don't know, but it may have been somebody who engaged in actual sexual deviance on a minor, and in order to do a plea deal—because you don't want to say you're going to jail for that, because then you get fucked up in jail—you plead guilty to possession of child pornography, which has the same sentence."

Of course, one may quibble as to whether "indecent exposure" is "sexually violent conduct" or even "child molestation," but what's more worrisome is how this ruling might be applied to those who've been convicted of creating obscene content that may involve "sadomasochistic abuse," as was alleged by the Max Hardcore prosecution—and who the government may "certify to a federal district judge" therefore "suffers from a mental illness that make him correspondingly dangerous to others," as Justice Stephen Breyer wrote in the high court's majority opinion.

"When such a certification is filed, the statute automatically stays the individual’s release from prison, thereby giving the Government an opportunity to prove its claims at a hearing through psychiatric (or other) evidence," Breyer wrote. [Citations removed here and below]

And while the statute provides that the accused may be represented at the hearing by counsel, may present evidence in his/her behalf, and may subpoena witnesses and confront and cross-examine them, the outcome will be entirely in the hands of a judge alone; there is no right to a jury.

And if the defendant loses at that hearing?

"Confinement in the federal facility will last until either (1) the person’s mental condition improves to the point where he is no longer dangerous (with or without appropriate ongoing treatment), in which case he will be released; or (2) a State assumes responsibility for his custody, care, and treatment, in which case he will be transferred to the custody of that State," the Comstock opinion states.

But while sadomasochistic abuse was an element of the government's case against Hardcore, it wasn't an element of the charges, which were generally interstate transportation of obscene material. However, the alleged sadomasochism was used by the Justice Department to enhance Hardcore's sentence by several levels—and Hardcore has stated that he intends to continue making movies upon his release.

"This case, if you read it literally, only says that under the Necessary and Proper Clause, Congress can pass such a law," H. Louis Sirkin, one of Hardcore's attorneys, was quick to note. "Now, whether this law is okay is subject to further question. But they can pass such a law. Now, what's frightening with it is, there was play-acting violence in these particular movies and we lost in court on the issue of sadomasochism. Now, an argument can be made, 'Look it's only simulated; it's only whatever, and they're acting,' but in the acting, they are still really doing it. All you need is one girl to really say—and in some of the outtakes, the people have said, 'Well, this is the first time I've done this and it was painful, it was uncomfortable,' and who knows? It is subject to some attack as to whether that's constitutionally vague language, but it's frightening."

The ability of the government to continue to confine the mentally ill after completion of their prison (or other) sentences has been recognized since the late 1940s, but in the Insanity Defense Reform Act of 1984, the statute's language was altered "so as to authorize (explicitly) civil commitment if, in addition to the other conditions, the prisoner's 'release would create a substantial risk of bodily injury to another person or serious damage to the property of another.'" The 2006 Adam Walsh Child Protection and Safety Act added the concept that a person who was "sexually dangerous" due to a mental illness could be indefinitely confined—and there are currently many segments of society, including a fair number of conservative judges, who look upon BDSM play as a mental illness that can be "sexually dangerous" to its participants.

"This is just the start," Sirkin opined, "and it's subject to whatever interpretation whatever person is handling the cases or is in charge of it has, and I'm really alarmed at the current direction this court is taking. We all had these high hopes for the new administration, but from what I'm seeing so far, we may have more to worry about from the current Justice Department than we had under Bush."

The Comstock ruling did have its dissenters—amazingly, Justice Clarence Thomas, with Justice Antonin Scalia joining part of Thomas' dissent. But since the only question before the court was whether post-sentence confinement was a legitimate practice under the Necessary and Proper Clause, most of Thomas' comments were confined to that subject. Nonetheless, he hearkened back to the seminal case involving congressional power, McCulloch v. Maryland, noting that Chief Justice John Marshall summarized Congress' power under the clause as, "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."

For Thomas, however, the idea of confining a prisoner (or mentally ill patient) beyond the end of his/her sentence strays too far afield from Congress' enumerated powers under the Constitution.

"Unless the end itself is 'legitimate,' the fit between means and end is irrelevant," Thomas wrote. "In other words, no matter how 'necessary' or 'proper' an Act of Congress may be to its objective, Congress lacks authority to legislate if the objective is anything other than 'carrying into Execution' one or more of the Federal Government’s enumerated powers.... No enumerated power in Article I, §8, expressly delegates to Congress the power to enact a civil-commitment regime for sexually dangerous persons, nor does any other provision in the Constitution vest Congress or the other branches of the Federal Government with such a power."

"To be sure, protecting society from violent sexual offenders is certainly an important end," Thomas later added. "Sexual abuse is a despicable act with untold consequences for the victim personally and society generally. But the Constitution does not vest in Congress the authority to protect society from every bad act that might befall it... In my view, this should decide the question. Section 4248 runs afoul of our settled understanding of Congress’ power under the Necessary and Proper Clause. Congress may act under that Clause only when its legislation 'carr[ies] into Execution' one of the Federal Government's enumerated powers. Section 4248 does not execute any enumerated power. Section 4248 is therefore unconstitutional."

Thomas later became more detailed in his objections.

"First, the statute’s definition of a 'sexually dangerous person' contains no element relating to the subject's crime," he observed. "It thus does not require a federal court to find any connection between the reasons supporting civil commitment and the enumerated power with which that person's criminal conduct interfered. As a consequence, §4248 allows a court to civilly commit an individual without finding that he was ever charged with or convicted of a federal crime involving sexual violence. That possibility is not merely hypothetical: The Government concedes that nearly 20% of individuals against whom §4248 proceedings have been brought fit this description."

"Second, §4248 permits the term of federal civil commitment to continue beyond the date on which a convicted prisoner's sentence expires or the date on which the statute of limitations on an untried defendant's crime has run. The statute therefore authorizes federal custody over a person at a time when the Government would lack jurisdiction to detain him for violating a criminal law that executes an enumerated power..."

"Third, the definition of a 'sexually dangerous person' relevant to §4248 does not require the court to find that the person is likely to violate a law executing an enumerated power in the future. Although the Federal Government has no express power to regulate sexual violence generally, Congress has passed a number of laws proscribing such conduct in special circumstances. All of these statutes contain jurisdictional elements that require a connection to one of Congress' enumerated powers... Section 4248, by contrast, authorizes civil commitment upon a showing that the person is 'sexually dangerous,' and presents a risk 'to others.' It requires no evidence that this sexually dangerous condition will manifest itself in a way that interferes with a federal law that executes an enumerated power or in a geographic location over which Congress has plenary authority."

The concept that the government might retain custody over, for instance, Max Hardcore—or even Extreme Associates' Rob Black and Lizzy Borden, who released the simulated rape video Forced Entry—on the basis that after they were released, they might make more movies similar to the ones that led to their incarceration in the first place is particularly worrisome, and attorney/constitutional scholar Reed Lee agrees.

"Making those kind of movies is not the danger," Lee observed. "There was no evidence, as far as I know, in those cases that any of [Hardcore's or Borden's] performers were unwillingly harmed. ... Now, if a prosecutor comes and says or some government official says that means he's a danger in the future, they would have to say one of two things: That he's going to physically abuse unwilling people in the future—well, he hasn't even done that in the past in connection with making these movies, so there's no reason to think he's going to start doing it in the future in connection with making these movies—or that these movies will lead other people to do bad things. That would be a First Amendment problem of the highest order, and I don't think any of the due process determinations that are being made now with respect to sexually dangerous people or with respect to confinement of people who medical authorities say due to a mental defect are a danger to themselves or others—I don't think those due process decisions have a bearing on what the outcome would be if a government official would say his movies would cause people to do bad things. That's a very different matter, and this wouldn't open the way for that. The Supreme Court has said the government cannot anticipate obscenity."

But while none of the adult producers currently in prison on obscenity charges have yet been evaluated by mental health personnel regarding their propensity to commit "sexual violence"—that is, make non-vanilla hardcore fare—when they get out, Lee sees a possible further problem with such evaluations.

"A lot of times, I think, counselors say, 'Oh, he's still a danger because he didn't go with the program exactly as we wanted; he didn't confess,' and there's this whole confession mentality that really has a surprisingly large following. If you talk to cops in Chicago, at least until very recently, the institution of the police department is very heavily Roman Catholic, in terms of ideology, in terms of background—it's just suffused with it. If you listen to them, I think they think there's something mystical about confessions, and it's why they stick to confessions as much as they do, and I think they get it from their sacrament. And in another profession, a psychoanalytic, helping profession, counseling, that whole broad category of professionals, I think some of them run the risk of falling into that too, that there's a certain catharsis that comes with confession in group therapy sessions, and if somebody doesn't buy into that, they're not cured. And there's a real danger with these cases that you have the government seeking continued commitment from some people just because they don't play into the psychoanalyst game, and it's one of those things we’re just going to have to keep fighting."

"I think we're right to be concerned about this whole issue as a general matter," Lee concluded. "I don't think it's likely to go to the obscenity line, but it really is an awful set of problems when all of these things come together: The professional says he's not playing the game the way we expect people to; the administrator saying, 'Hey, it's a risk and it's going to come back on me if something goes wrong so I'll just avoid the risk'—it leads to a society where everybody's locked up, and we've got to realize in a lot of these areas that there's a price to be paid for the presumption of individual liberty and we can't reduce that price to zero without reducing individual liberty to zero, and this is just one area where we have to wrestle with that."

It probably can't be stated too often that, as Gelbard notes, This is a 'Necessary and Proper Clause' interpretation and that's all it is, and it says so in both the opinion and the dissent numerous times," but admitted that, "If you read Thomas' dissent, it's a first step down a slippery slope, though not with regard to the kinds of things we generally look at."

Still, with more and more states gearing up, as also required by the Adam Walsh Act, to add obscenity offenses to the list of crimes that trigger the necessity for a defendant to register as a sex offender for a minimum of 10 years after release, the industry should watch carefully if and how the government may try to apply its newfound ability to forever confine "sexually violent" criminals to adult producers whose only crime is the portrayal of consensual acts of so-called "sadomasochistic abuse."