The Supreme Court
An Unreliable Protector of Rights
by Mac MacArthur

Tuesday, June 24th 1997 -- New York (APJP) -- The Supreme Court, in its traditional quest to mirror public attitudes rather than protect the Constitution, sent down two decisions which ought to give you pause.

First, the top court rabbit-punched the White House, requiring it to give Whitewater prosecutors attorney notes taken during talks with First Lady Hillary Clinton. A US Court of Appeals earlier held that attorney-client privilege did not apply to the notes.

It's expected that the notes will find their way to a grand jury that had originally subpoenaed the documents.

The Supreme Court rejected arguments by White House lawyers that the notes were privileged but submitted no explanation for its decision.

The White House responded, saying. "We continue to believe that government lawyers must be allowed to have confidential discussions with their clients if they are able to provide candid and effective legal advice''

The court, in deciding not to intervene in the matter, decided to base its decision on a technicality. The First Lady had two conversations with her private lawyer, David Kendall, regarding the suicide of White House Deputy Counsel Vince Foster and her billing records that turned up mysteriously at the White House. Had she had these conversations in private, the notes would have been protected. However, Mrs. Clinton talked with Kendall in front of government-paid White House lawyers. Thus, the court must have reasoned that the conversations were not protected merely because they were held in the presence of government counsel.

Ridiculous.

Even Whitewater prosecutor "Malibu" Ken Starr was surprised by the Supreme Court's action. Sources say he fell off his chair at the result.

The second decision, even more bizarre, allows states to lock up violent sex offenders in psychiatric treatment centers -- perhaps for life -- even when they have already completed serving their terms and are not considered so mentally ill as to be committed against their will.

Shades of Soviet justice!

No one wants to see a predatory rapist, child abuser, or other pervert walking the streets -- but the failure of prosecutors to make a case against these felons should not open the door to infinite "hospitalization" merely to avoid what might occur in future.

The reasoning of the five justices is that Kansas, which passed an act allowing the "hospitalization," did so to treat violent sex offenders. However, Leroy Hendricks, the felon in question, was evidently not offered "treatment" after being locked up the second time.

The dissenting justices had it right. If you are committing a man for treatment, that's one thing, but if you commit him to protect the community, that's another.

The dissenters should have gone further. There was nothing stopping the Kansas legislature from passing laws which forced violent sex offenders to serve their time and to then subsequently enter psychiatric hospitals for treatment for such time as it might take to cure them. While the offender might never be cured, such laws would protect the rights of others, deemed to be dangerous, who may now be faced with incarcerations in hospital lockdown facilities for life.

What if Kansas decides that all sorts of felons pose threats to the community? What if lawmakers decide that most criminals are mentally unstable or even untreatable? It could be that they all will be subject to indeterminate "sentences" in facilities called hospitals that really function as prisons which become warehouses for the socially undesirable.

The preposterous action by this court opens too wide a door that was left ajar by Stalin in the old Soviet Union. There too, men and women were judged as threats to community for what they thought, said and wrote. It's only a small step from convicted felon to undesirable citizen.

Who will judge that gap?