I want to look at some of the major points in Aya Gruber’s research paper “The Feminist War on Crime”, a 2007 piece done under the auspices of Florida International University. It’s available here. * (Note: the paper is paginated from 742 to 833 so it’s a little under 100 pages; but it’s highly readable and well worth a look.)
I’d also like to point out a couple of things before I begin. Her concern in this paper is with the history of the confluence of feminism (I would add that it’s more specifically radical feminism and its politically active elements), victim rights theory, and the prosecutor-friendly, law-and-order approach (termed ‘conservative’ for the purposes of her paper).
This is an approach that I think serves well our understanding of the sex-offense mania. Much of what we know from SO matters is first introduced in the domestic-violence arena, which preceded much of the full-blown SO mania of the 1990s (although the now infamous pre-school cases date back to the early 1980s, which is another story). As always, I think it’s vital that persons seriously interested in SO matters have a grasp of how various currents and trends came together throughout the past 25 years or so; concepts and political calculations and actual political alliances morphed together, although I would also say that as you look at it, you get the sense of separate wild-fires starting in different parts of a large area but then burning toward each other until they combine in a super-fire.
By understanding how various concepts and political influences interact we gain a much more comprehensive understanding of ‘the ground’ (to use Sun Tzu’s phrase) on which we are operating as we try to correct the deformations of the SO mania. This is ‘the ground’ on which all the current players are positioned, and as that ground shifts beneath them then we understand the forces acting on them to which they respond. Or, to use a nautical or naval image form the Age of Sail: if you understand how the wind and waves and currents combine and interact, you will be much better able to understand and perhaps affect how all the various vessels in this engagement will behave and act. That’s always a good thing to know.
I will give page numbers from the article to reference major points.
Her Prologue (p742) concerns a composite case around a young poor couple in 2000 in whose domestic-violence case she was involved as a legal advisor to the male. His 18-year-old girlfriend had called the police on him and he was now facing a Hearing on a Civil Protection Order (CPO).
You may be aware that a CPO or its equivalent is a product of domestic-violence legislation; it is a civil (so the law states) remedy by which a person, “upon showing of good cause to believe that the respondent (defendant) has committed or is threatening to commit an intrafamily offense”; it is good for one year and can be renewed. On the basis of a CPO a respondent-defendant can be “routinely ordered to leave their homes, stay away form their children, pay substantial amounts of money, and submit to counseling”, and often loses use of home, possessions, and his car.
Gruber notes in a footnote that “CPOs impose these burdens on respondents without any finding of criminality beyond a reasonable doubt” and are often not represented by counsel at the Hearing (the procedure is putatively non-criminal but only civil – a distinction the SO community is very familiar with).
From a Constitutional point of view, there are grave problems with this entire approach (‘scheme’ is not excessive a characterization here, I would say). The invasion of government authority into the home, the bedroom, and the personal relationships of citizens is ominous. The infliction by government of such broad and deep disabilities upon a Citizen without any trial or finding of guilt must be seen as anti-Constitutional (if not also anti-American) in its very nature. The characterization of such disabilities inflicted on a Citizen as ‘civil’ is a mis-categorization so stunning as to incite alarm in any genuine ‘conservative’ or ‘liberal’.
And any knowledge of human nature – especially in the hugely fraught area of intimate personal relations among individuals, especially younger, less mature, less educated individuals (but not excluding any individuals who are better off financially or educationally) – must sense immediately the profound possibilities of misuse of such a sweeping authority. And this is even more the case as the wider cultural dissolution of the family and parental participation in the maturing process is resulting in ever-larger numbers of immature and relationally-incompetent persons, many of whom are now chronologically ‘adults’.
In this case the complainant is now trying to get the court to allow him back with her, since – the young woman confides to Gruber – “she only called the police ‘because I was mad and wanted him out of the house’".
Worse, unrepresented at such a Hearing, a respondent-defendant is in grave danger of saying something that the State will then use in evidence against him (almost always a him, although in studies not given much publicity the percentage of female-as-initiator of violence in domestic situations is demonstrably higher than the male’s). Yet if the respondent-defendant says nothing or does not appear at the Hearing, then the CPO is routinely granted or extended (for another year). This is not only unfair; it is treacherously weighted against an individual; it goes without saying that this entire scheme a) undermines the legitimacy of the law and b) corrupts the integrity of prosecutor and judicial actors.
In this instance, Gruber is suddenly confronted by a “domestic violence clinic student” who demands to know why she (Gruber) is “talking to my victim”. It would appear to me that while these proceedings are “civil” and no counsel is required, the complainant is routinely provided with such a person who – from the sound of it – has indeed been somewhat schooled in the applicable law and seems to consider the complainant to be a professional ‘client’.
Gruber also notes that prosecutors prefer that attorneys for the respondent-defendant do not talk to the complainant-victim, since that will interfere with the intended trajectory of this type of proceedings.
It’s clear that in this entire area of domestic-violence (DV) law the traditional tenets of American law and jurisprudence have been subverted., and intentionally so. And in ways that would not much later be introduced into the SO mania.
Gruber notes one former prosecutor (p747) who acknowledges that “domestic violence is one area of law where conservative and feminist ideologies converge” – and this conceptual and political alliance between (radical) feminism from the Left and prosecutor-friendly, law-and-order conservatism from the Right is a profound force now exerting deforming gravitational pull on American law (as we soon will see in the early 1990s SO mania).
More frighteningly, Gruber quotes one 1985 law journal article (p748) written by a female legal commentator who observes that “According to the conservative argument, deterrence often doesn’t work, rehabilitation doesn’t work, and retribution and incapacitation are the only tenable justifications for punishment of criminals”. In 1985 in this DV law and the professional commentaries and analyses of it, you can already see the outlines of the SO assumptions that SOs are incorrigible and cannot be rehabilitated, so they must simply be caught, imprisoned and tagged (don’t forget that there were DV ‘registries’ before there were SO registries).
Gruber traces the history of the ‘crime victims’ rights’ movement back to the very early 1980s and the first Reagan Administration (p.749). “In response to a perception, however false, that crime rates were perpetually rising and that the court system afforded too many rights to defendants, a grassroots movement revolving around the victim emerged”. In this sense, Gruber traces what is literally the conceptual invention of ‘the victim’ as a full-blown actor in the court system, replete with suddenly asserted ‘rights’ that actually are of dubious provenance and standing (even today a Victim Rights Amendment is being pressed, so far unsuccessfully, to actually give Constitutional status to ‘rights’ that actually aren’t there).
In this sudden invention of a new character, ‘the victim’, I see the same dynamic that will in a few short years be deployed again, this time to create the ‘monster-sex-offender’. While in one sense you might see the former invention as ‘positive’ and the latter as ‘negative’ – there is a deeper level to the thing: in both cases the position of the prosecutorial and police power of the State and the Federal government is enhanced – and that, I would say, is the key to it. As I said in a recent Post here, the invention of ‘the victim’ solved the government’s ‘Abe Lincoln in Illinois problem’: that Americans always saw the defendant as the ‘underdog’ and as sympathetic and the prosecutors were thus always at a disadvantage – with the invention of ‘the victim’ the prosecutorial power now had its own ‘underdog’ to hide behind.
Gruber will go on in several places – acutely and incisively but not of immediate relevance here – about how ‘the victim’ was embraced by the government only to reinforce its own position but not to actually ‘empower’ the victim, who by the nature of the government’s purposes had to be portrayed as pure, helpless, and thoroughly in need of grateful rescue by the hero-prosecutors and police power.
But she notes here that the victims’ rights movement is more of an “anti-defendant” movement than a movement intended solely to give victims of crime more participation in the criminal process” (p750). She will point out in various places in the rest of the article how designated victims who express any sympathy for the defendant are shushed or ignored by prosecutors (since such victims’ influence, if given play, would run precisely counter to what the purpose of ‘the victim’ is supposed to be in the prosecutorial scheme).
But then Gruber gets to a meaty observation (p750): “Unfortunately, feminist criminal law reform, which began laudably enough with the goal of vindicating the autonomy and rights of women, has increasingly mirrored the victims’ rights movement and its criminalization goals”.
What Gruber is getting at here is the original feminist legal efforts on behalf of women before the legal system became mixed up with the victims’ rights movement (which, as Gruber demonstrates, was actually a front for the rapid and broad systematic engorgement of police and prosecutorial powers).
I also point out the wider cultural ramifications of the ‘victim’ identity: huge numbers of individuals are now growing up and have grown up (victimism has been with us since at least Reagan’s first Administration more than a quarter-century ago) seeing themselves primarily as ‘victims’. As I have said on this site and my other site, you can’t expect folks to function as Citizens, as a Citizenry, or as The People in the Constitutional vision of American society and culture if they primarily see themselves as weak, helpless, surrounded by fearful monsters, and accept themselves as thoroughly dependent upon the government authority to protect them and even – and it has come to that now – to make sense of their lives.
And once ‘the government’ is expected to make all ‘pain’ go away and enforce ‘closure’ upon the open-ended rough-and-tumble of human life, then you have a government expected to function as God – and to the original Constitutional vision such a development is not simply politically lethal but fundamentally blasphemous.
Let me also say here that I am not anti-victim or anti-woman. But I have become acutely sensitive to the wider and deeper and larger consequences of some of the victimism and radical feminism, and I think those consequences are extremely ominous. If I may say it again here: I hold no brief for any human being inflicting violence upon any other individual. But I also realize that there’s only so much that the government police power can do in human affairs before it passes a ‘tipping point’ into a police state, no matter how well-intentioned or at least benevolently presented.
Gruber recounts (p753) how “The second wave of feminism brought rape and domestic violence reform to the forefront of the feminist movement. Motivated in part by Catherine MacKinnon’s theory, feminists moved beyond purely liberal reasoning and asserted that under-enforcement of domestic violence and rape laws represented more than just the failure of the criminal justice system to render formal equality. The lack of enforcement of these laws reified patriarchal views that women are objects and reflected conservative ideology that subordinated women’s issues by deeming them private and thus inappropriate for legal response”.
What Gruber is recounting here is the MacKinnon theory that criminal law must be brought into the most private (and heretofore immune from the criminal law and the police power) realms of the lives of the Citizenry. According to MacKinnon, the characterization of sexual and domestic relationships as “private” is merely “political methodology employed by men to subordinate women”.
Absent from the MacKinnon theory is any awareness of or notice of or appreciation for the huge dangers, Constitutionally, clearly inherent in the expansion of the government police power into the most intimate and private (i.e. safe from government intrusion and control) realms of its citizens’ lives. MacKinnon wants to see government expansion into the “intimate contexts” of citizens’ lives because it is here – in a “social” rather than a purely legal context – that women are structurally oppressed.
I am not disputing MacKinnon’s description of a problem here. I am seriously doubtful about the efficacy or workability or Constitutional wisdom of trying to use the criminal law and the police power to solve the problem. The deployment of the police power here is – eerily – similar to using the military as a solution to the international diplomatic challenges facing the country.
And as more and more individuals are growing up in broken or incomplete families with little or no parental guidance (‘parents’ themselves are increasingly incompetent in matters of human maturity), then the government must perforce be drawn more deeply and more frequently into deploying its police power to referee the increasingly chaotic private lives of the Citizens.
The Constitutional vision of a democratic politics and a Republic requires a mature Citizenry of mature individuals – and the government police power is useless to perform such a task, which had been handled by parents in the stable familial setting. And, of course, such deployment of the police power, in addition to being useless, is also lethal to the Constitutional vision of boundaried government power and to the Constitutional presumption of mature individual Citizens.
Indeed, MacKinnon’s theory – widely accepted not only in feminist circles but also by the political class – asserts that “sex is the core of this phenomena [sic]: sexuality appears as the interactive dynamic of gender as an inequality”. Which translates into the government deploying its police powers against ‘sex’, one of the most powerful and primal of human instincts.
The state has been “complicit”, the theory goes (p754), in the patriarchal and gender oppression of women through “its failure to intervene”. Although no sober Constitutional heart – whether genuinely ‘conservative’ or genuinely ‘liberal’ – can accept such a huge and hugely-fraught expansion of the government police power. And certainly not enthusiastically.
And on top of that, since ‘men’ are seen as the perpetrators in this, then the government is going to wind up invasively ‘warring’ against ‘men’ on behalf of ‘women’ – which is a recipe for political and societal as well as civic catastrophe. We wind up with a situation similar to Lenin’s and Stalin’s and Mao’s deployment of police power against all domestic ‘enemies of the revolution’, whereby they amassed the history’s most shocking record of governments warring upon sizable portions of their own populations.
And what has always frightened me is the sense that such a vision seems to far too many elite thinkers to be the very acme of ‘progress’ and ‘reform’, and certainly an ‘acceptable loss’ to be incurred.
Worse, as Gruber then notes (p754), “In the feminist mindset, domestic violence and rape were not merely about individual “deviant” males asserting illegitimate power over individual women. Rather, such crimes reflected larger social inequalities”. Gruber goes on to note immediately that feminist thought saw “sexual and domestic crimes” as “problematic precisely because they reproduced and reinforced not only biases within the legal system but also the vigorously defended patriarchal mindset of society”. These ideas were widespread in the later Seventies.
We are heading here towards a ‘war on men’ and on ‘the patriarchal mindset’. Any one who has worked with the SO mania can see here the clear precursors of a ‘philosophical’ justification for ‘war’ on ‘men’. Especially since the problem is not seen as one of ‘individual deviants’ but as the entire ‘class’ of males.
And when you take this and blend it with the prosecutorial tendency to militarize law enforcement – seeing their ‘enemy’ not as an individual defendant (which is bad enough) but as a “hardened criminal class” (a phrase from President Reagan in 1982) which is itself warring upon society … then you have the makings of an awesome wildfire here.
One interesting note Gruber makes (p756) is that feminists claimed that requiring evidence of ‘resistance’ in a rape case was nothing more than a patriarchal ploy, since such a requirement “did not apply to any other crime”.
I hold no brief for rape whatsoever. But clearly, no other crime involves an area of human activity where the delicate mutual dance of willingness, of invitation and mutual approach, are the constitutive elements of the activity in the first place. There is no probability of such a nuanced human complexity in the interaction with a robber, say: the robber wants your money, and that alone is a crime which you presumably do not prefer to have happen to you; there is no ‘tipping point’ where a robbery suddenly becomes a crime – it is a criminal interaction from the get-go and the law need not have to read tea-leaves to divine the deepest human dispositions of the individuals involved.
This is not at all the case in the human interaction of sex. The activity of human sexual play and relations is not only not criminal in and of itself, but it is one of the most primal and significant of human relational activities (more than it should be, I’d say). Any law system would be prudently hesitant if contemplating involvement in so complex and nuanced an area of activity; there is no clearly criminal nature to ‘sex’ and in all but the most obvious cases your evidence – upon which any legitimate conviction might be based – may well be reduced to the self-reports of one or both parties, for which no corroborating evidence can be produced or discovered, and may not even exist.
This is the awesome complexity which the reigning feminist theory simply ignores and has all along. To simply dismiss all hesitation to get involved as evidence of “sexism” and “patriarchal oppression” and “the complicity of the government” is hugely inadequate as analysis.
While the early DV reforms did not require that women’s preferences as victim correspond always to prosecutorial visions, yet “as time passed, domestic violence reform became more prosecutorial in nature and policies involving intrusive state intervention emerged”, embraced by many feminists (p.757). Further, feminists insisted on mandatory arrest and sentencing policies (on top of queasy changes in the evidentiary rules) because it was felt that without such requirements “police and prosecutors would not make the ‘right choices’”.
But (p758) “the alliance between early domestic violence advocates and law enforcement, however, was tenuous at best, as feminists realized the risks of using state power to make the lives of women better”. And here we get to the alliance that not only deeply distorted and deformed the criminal justice process (not only in DV but then also in SO matters) but did so under the deceptive ‘cover’ of appearing to be a ‘liberal’ and ‘reform’ movement, dressed in the sheep’s clothing of ‘sensitivity’ and surfing on the public assumption that anything that came from the Left and the ‘liberals’ had to be in the best interests of the average citizen.
Instead, Gruber immediately continues, “state institutional mechanisms had historically subverted efforts toward women’s empowerment”. Here I think she is trying to lay the groundwork for an exoneration of feminism: they were duped and used by the prosecutors and the Rightist law-and-order crowd.
But I don’t think that can be. In the first place, Gruber herself (p759) admits that feminists saw an upside to an alliance with the prosecutors: “First, there was a symbolic value of state actors taking domestic violence seriously … [second], prosecution of those who abuse women, many hoped, would send a message to society not to tolerate violence within domestic relationships … [third] this might have some salutary effect on changing sexist attitudes about wife abuse … [fourth] that state intervention would deter future violence … [and fifth] that properly administered state intervention that treated women with appropriate dignity might empower women to stay abuse free.” (Surely, to listen to the news two decades or so later, this last point has proven chimerical.)
In the second place, feminism always needed an ‘enemy’ – ‘men’ or ‘macho men’ or ‘white macho men’ – in order to make its revolution. Every revolution needs an ‘enemy’, and feminism’s varied and complicated agenda, rife with conceptual incoherence and contradictory objectives, almost had to ‘go negative’ to secure a source of unity, since no amount of finessing of the positive points of the agenda could bring about a comprehensive and fundamental feminist movement unity: this revolution, more than most, needed an ‘enemy’.
“The idea that victims were helpless objects and defendants monstrous agents appealed to mainstream sentiments …” [p763]. Yes, melodrama will do that: it makes things exciting, ‘meaningful’, but without the need for any heavy mental lifting: everything is simply good or simply bad and you want the ‘good’ to win. And the revolution needed an ‘enemy’ and the prosecutors needed a front that would put a human ‘face’ on their assorted pomps and works.
In this regard, too, I think you can see where ‘the children’ suddenly came in. Whereas ‘women’ were the focus of the DV campaign, that ‘front’ had become too entangled to use in the SO mania that hit its stride soon thereafter, and so suddenly everything was about ‘the children’ who would, like baby seals in the anti-fur ads, provide the ultimate ‘pure and innocent victim’ in a way that the image of the adult woman navigating the nuanced and complex mutualities of a sexual relationship never could.
The consequences for the fundamental unity of the American Citizenry around the identity of being ‘American’ have been catastrophic. Especially when legislators and pols decided that in order to maintain electoral viability they needed to pander to this ‘demographic’ and so put the full weight of the Beltway behind it. And at this point, as Gruber notes in 2007, “all fifty states now allow police to make warrantless arrests of those [almost always male] accused of domestic violence offenses”. This is far more than Constitutionally repugnant; it is Constitutionally lethal.
But women themselves slowed the surge, refusing to let themselves become mired in the DV system. So much so that Elizabeth Schneider, a feminist reformer, “mused on the dangers of criminalization and questioned whether feminists had directed disproportionate efforts towards prosecution, but [she] fell short of calling for an abandonment of mandatory arrest policies" [p762]. One of the great problems in so much of the DV and the SO manias is that even commentators and thinkers with the skill and placement to speak out authoritatively on these hugely flawed initiatives censor and stifle themselves in order not to upset … whomever they wish to keep in their good graces.
And in the third place, feminist thought really doesn’t seem to be too concerned about the Constitutional ethos at all, nor willing to consider any of the subtle but vital realities underlying the edifice of the Framer’s official vision. Thus one feminist writes that “The dilemma for feminists is to develop strategies for controlling state action – ensuring that the police come when called and that prosecutors do not trivialize cases – without increasing state control of women” [p762]. As you can see, the Constitutional vision and the ‘rights of man’ – as it were – don’t enter into their calculations and concerns at all. Their concern is purely tactical, to protect or advance the interests of their own sex or gender or ‘identity’.
Gruber then goes into significant historical detail as to the origins of the victims’ rights movement. She traces it back to the Reagan era, when tough-on-crime became a premier ‘conservative’ (I would say Rightist) trope. Indeed, it was Regan who set up The President’s Task Force on Victims of Crime in 1982, and it was that Task Force that discovered that the criminal justice system “had lost essential balance and was doing a disservice to victims”.
Although ‘victim’ had never been a primary formal role in the criminal justice process at all; when the government assumed a monopoly of violence, then the aggrieved individuals seeking vengeance had to yield their place to the government’s functionaries: judges and prosecutors and police. This had been one of the hallmark developments in Western justice. And it was certainly so in the Framers’ vision (which Reagan – intentionally or not – was about to distort significantly).
As Reagan himself put it: “This rise in crime, caused by a hardened criminal class, was fostered by a liberal social philosophy that too often called for lenient treatment of criminals” [p764]. We can see here, bright as day, the introduction of the idea of a permanent and incorrigible “criminal class” that preyed on ‘decent folk’ (much as in the old Western movie scripts of Reagan’s youth).
We can also see a shrewd political tactic: the ‘liberal’ social philosophy of feminism, requiring ‘men’ as an ‘enemy’, was conveniently ignored for the sake of the nascent alliance between feminism and prosecutorial expansion of power.
We can also see the seed that would bear terrible fruit a dozen or so years later in the SO mania’s legislative ‘Findings’ that SOs constitute an incorrigible and monstrous criminal class.
Reagan went on: “Is it any wonder, then, that a new and privileged class emerged in America, a class of repeat offenders and career criminals who thought they had the right to victimize their fellow citizens with impunity”. Again, had he merely added ‘male’ before ‘repeat offenders’ this comment could have come from any of half a hundred feminist pundits and writers. And of course, in the SO ‘Findings’ a dozen years later, that’s precisely what happened.
Gruber continues [p765]: “Tough-on-crime proponents characterized crime not as a social ill but rather as an independent force hostile to American society”. I would add that those proponents also did not focus on the relatively small number of individuals who committed crimes but rather conceived of it in military – and almost metaphysically combative – terms as an independent force attacking American society.
This had the dual effect of flattering ‘American society’ for being decent and law-abiding and pure, while providing an ‘enemy’ who was purposely seeking to destroy them. Which, by the by, is precisely the mindset that underlay the Salem Witch Trials: a godly community under attack by the awesome power of Satan and channeled into this dimension by Satan’s willing and evil team of human agents.
Nor was such a conceptual approach inhospitable to feminist visions of evil and oppressive ‘men’ assaulting pure and innocent women at every conceivable juncture.
And so, Gruber immediately continues, “government could declare war on crime and the criminal element, cementing the notion that crime existed as an evil entity that could be beaten with a harsh enough criminal policy”. Much like the cavalry in the old Westerns could do whatever it took to eliminate the Indian attacks on the settlers and the wagon trains. Much like the government in 2003 figured that it could do to the Iraqis what it had done to the sex-offenders here at home.
She continues [p766]: “In this era, government and media perceived criminals not as products of circumstances but rather as defective creatures – a class of people wholly different in comportment from the average, law-abiding citizens”. Well, I concur in part and disagree in part.
First, a person who commits a crime is not necessarily a ‘criminal’, which I take to mean a person with a predisposition toward committing crime, a preference for it perhaps as well.
Possibly circumstances enter into the existence of a criminal predisposition, and the wrong social circumstances or structures can put many persons at risk of developing the criminal potential. If every person who commits a crime is a ‘criminal’, then we are all criminals – and that would be too complicated to use as the slogan-concept for fueling a stampede and a mania.
In a sense, the commission of any crime reveals a defect in the perpetrator. But in that sense we are all defective to some extent (as the old doctrine of Original Sinfulness kept trying to tell us).
But when you try to turn all such individual ‘defective creatures’ into a ‘defective class’, and then try to create the impression that this ‘class’, like the fancied Communist cadres of McCarthy’s era or of the Red Scare of 1919 (in which the young J. Edgar Hoover made his first big strides to power) or the ‘witches’ of Salem (male and female, though the accusers were almost all female) … that this class is some sort of an army or savage tribe attacking the settlements … now you see how the sex-offender mania got rolling.
And you can see how the government and the feminists merged their interests – although, when you lie down with a government, you’re always going to get … fleas.
For much of the 20th century the primal (not to say primitive) ideology of retributivism and incapacitation could only hold its ground on the basis of the occasional truly hardened criminal who was beyond rehabilitation and could only be locked away for society’s safety. But for most individuals who committed crimes, the fundamental American response was an effort to ‘correct’ them, trusting in the fundamental goodness or at least redeemability of the human being. Nor was there widespread acceptance of a freewheeling vengeance, a concept that struck most Americans as truly primitive and certainly unenlightened.
It was to overturn this constellation of civilized values that the victim rights movement – a creature of the Rightist and prosecutorial government enhancement advocates – was developed and deployed, shrewdly dressing itself in the sheep’s clothing of ‘liberal’ ‘sensitivity’.
Gruber acutely outlines the actual state of affairs [p770-771]: “The movement wisely uses the rhetoric of rights … [but] the victims’ rights movement, I assert, is not now and never really was about securing individual’s rights against or benefits from the government. If the movement were about rights it would seek to secure victim autonomy”. But victims do not have any such autonomy. Only those who support the prosecutorial strategy of shilling for vengeance and harsher sentences and punishments are ‘empowered’ to say their piece; victims who seek to move beyond vengeance and harsh punishment are ignored. “The movement has no tolerance for victims’ desires that conflict with prosecutorial goals” [p773].
“In fact, the victims’ rights movement has always been about changing the procedural balance in the system so that it leans even more toward conviction and incarceration. Scholars have observed that victims’ rights were always intended to counter defendants’ constitutional rights” [p773].**
The victims’ rights strategy requires a certain ‘essentialism’ – the tactic of reducing an individual or groups to one core aspect by which the individual or group is permanently defined – and ‘objectification’ – the tactic of treating individuals or groups as objects, either ‘good’ or ‘evil’ but in any case not in control of themselves or their actions [p775].
You can see where this would lead in the reduction of all ‘sex offenders’ to the essential definition (incorrigible monster) and to the objectification as ‘driven by compulsions’ and thus unable to control themselves.
Ironically, it is precisely against the essentialism of a ‘female nature’ and the objectification of women in ‘the male gaze’ that feminism has so strenuously fought. Yet in the alliance with the prosecutors and government, and in the seductive gambit of reducing ‘men’ to an essentialist objectification as dangerous and out-of-control monsters, this was the price that had to be paid: the movement’s integrity had to be sacrificed in order to take advantage of government and prosecutorial support.
To see just how murky and mushy the liberal-conservative lines have become, it is necessary only to read Gruber as she reminds us that “as early as 1984, conservatives took up the domestic violence issue … mainstream government officials, like the former Detroit Police Chief William Hart and John Ashcroft, rejected the idea that domestic violence was simply a ‘private’ family matter” [p794]. When you think of the Constitutional dangers of such an expansion of the government power into the most intimate realms of citizens’ mutual interactions, it is impossible to respect the term ‘conservative’ as it has come to be applied. And for that matter, when you look at the later Ashcroft record on civil liberties post-9/11, you can see that it wasn’t the ‘shock’ of 9/11 that turned him into such an authoritarian overnight – he had been heading that way for quite a few years. ***
That 1984 Final Report of the President’s Task Force reduced all of the complex planes and axes of the domestic violence problem to merely one of criminal activity. This, Gruber notes, had the useful (for the government) effect of distracting feminism’s reformist urges into criminal law, thus weakening its demands for far more radical and profound redistribution of power in American society. So it has turned out that feminism’s original discourse of ‘liberation’ has been reduced to a continuous yammering for increased criminal law power. And in that direction lies a police state.
Although I would say that the government-sponsored war on ‘men’ was radical enough indeed, and the profoundness of its consequences have not yet fully revealed themselves. But they will.
Gruber concludes [p823] that her article “is a cautionary tale about the conservatization of a progressive movement”. As I’ve said, I think the feminist movement – in its radical variant – was neither progressive nor liberal, but radical and revolutionary – and as such posed serious potential threats to a democratic politics and a Constitutional ethos.
But she is certainly correct that this is a cautionary tale: those who seek political power and status by throwing in their lot with the government power, especially where the police power is involved, and especially in these increasingly corporatist times when there is a strong pull towards making citizens more obedient and pliable, run a terrible risk of betraying their own ‘identity’ and further weakening an already battered American national sense of identity and meaning and purpose.
She proposes that feminists stop supporting “criminalization policies”. If that’s true for DV matters, I think it’s even more true for SO matters.
NOTES
*This is an SSRN site. Once you get to the page, you will see the Abstract of the article. There will be a box entitled "Download"; click on it; it will then give you a page with download options (I use the SSRN-New York option); this will download the 725KB file and prompt you to save or open; I recommend saving to your Documents or Downloads, and then opening and reading it at your leisure.
**I am not saying in all of this that each and every person who is a victim is an active and willing and conscious co-conspirator in this strategy. Nor am I implying that there are no persons who have been harmed – greatly in some cases – by a crime.
***I think it also has to be said that when radical feminists – as they are starting to do more often nowadays – crow about how they have ‘vanquished’ all their macho enemies and that the very scope of their success over the past decades must prove the soundness of their ideas and their cause, an alternative explanation must be considered: ‘feminism’ succeeded in its radical variant not because of its essential soundness, coherence, or value as program and idea, but rather because feminism struck a bargain with government power that was itself looking for a ‘front’ to put a human face on its increasingly urgent drive to exert a more perfect and thorough social control over the American Citizenry.
Perhaps feminism thus ‘succeeded’ so greatly because it willingly struck a bargain with the patriarchal and oppressive government; a bargain in which feminism would play the junior-partner role, as ‘front’ (if not also as dupe and patsy and useful idiot). This is demonstrated with striking clarity when Gruber recalls [p795] that in a 2002 address to a domestic violence gathering, Ashcroft asserted that the greatest harm done by domestic violence is that it prevents parents from instilling “family values”; if there is one constellation of tradition and practice that feminism has consistently decried it is the traditional family, the role of parents and the male-female parental pair, and the existence of anything like ‘values’ at all. Funny how the night moves.
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Thursday, November 5, 2009
22 YEARS LATER
I just came across an article in the print edition of 'Reason' magazine (December, 2009: 'How to Get Ahead In Law', pp. 36-7; not available on-line until the next monthly print edition comes out).
It concerns Bernard Baran. He was one of the earliest of the ‘pre-school’ defendants in that first, ominous manifestation of public mania (and government complicity) in the early 1980s.
He has just been freed after 22 years, half his life, in prison, where he was raped and assaulted (it being open season on ‘child molesters’ in there and such assaults being the only public service some types of inmates can think to provide).
The case against him so riddled with prosecutorial misconduct that the State doesn’t dare re-try it.
Especially since the miscreant prosecutor from 1985 is now a sitting Judge of the Superior Court.
There is a strong possibility that a homophobic mother placed the blame on him in order to divert attention from the child’s stepfather, whom the child had originally reported as the molester.
The DA’s interview tapes of the children, withheld from an incompetent or spineless defense counsel, indicated stunningly overt instances of browbeating or enticement of child ‘witnesses’ and ‘victims’. The segments which clearly pointed to the defendant’s innocence – attested to by the children – were also withheld.
As profoundly painful as it is to imagine 22 years of a life wracked away on a bad rap, it is even more frightening to imagine what can happen in a time of government-induced public mania when prosecutors realize that they will never be held accountable. While this particular prosecutor later found added ‘insurance’ by securing appointment to the Bench, few prosecutors are ever investigated for malfeasance, and that would hold especially true in sex-offense cases since – as you may recall – legislatures thoughtfully and deliberately (indeed, in some of the only elements of sex offense laws that can be accurately described as ‘thought out’) provided the police-and-prosecutor free-pass clause: in matters relating to sex-offenders, if you mean well, then you cannot be held civilly or criminally liable for whatever you might do.
Nor can it be accepted that ‘interviewing techniques weren’t as well developed then as they are now’. Despite the fact that computers were a lot clunkier and ‘portable phones’ were the size of briefcases and available only to the wealthy, 1985 was not the Middle Ages: truth was still truth, a lie was still a lie, and coercing or rewarding a witness for the desired testimony was still clearly unprofessional, immoral, and a crime. You didn’t need a Harvard Ph.D. in psychology or a Yale law degree to know that.
It was a time of mania and the awful feedback loop was created whereby each Constitutional and legal barrier, as it was burned away, collapsed into the flames of the mania and fueled them further.
But that isn’t the bad news. The bad news is that they got away with it then, and so half a decade later created the specific sex-offense mania We have been dealing with for almost 20 years.
The corruption – perversion, even – of criminal justice in this sex-offense mania has been far more profound than We know, and surely far more intense than anything even hinted at in the pious – almost impious – blathering of the majority in Poritz.
They told themselves that it was in a good cause; that it was an emergency; that some people didn’t deserve the protections of the Constitution; that the prosecutor’s job was to avenge society when it sought vengeance; that the Constitution was ‘quaint’ where it obstructed such vengeance; that all that stood between the helpless victimized citizenry and the monsters were the fearless vampire-killer prosecutors.
And so they were invited in through the front door, welcomed, with the same frenzied mixture of relief and appreciation that old newsreels captured on the streets of Berlin in another recent Dark Age.
One defender of the former prosecutor (and now the sitting Superior Court Judge ) bleated that “it’s unfair to hold the judge accountable for something he did a quarter century ago”. Marvelous. And isn’t that precisely what so many of the sex-offense laws do in their retroactivity? Isn’t that what AWASORNA wants to do even now?
Twenty-two years in prison for a frame-up. Does anyone want to speculate on the quantum of pain that such a pilgrimage through hell caused to this man? Who will accept responsibility for the verrrry bad juju, the implacable karmic bill, that has been run up through the undeserved suffering this young – now middle-aged – man has gone through?
And does anyone really believe that there isn’t some Collector – on some plane of existence not very far from this one – that will enforce the collection of so monstrous a debt?
I think perhaps all Americans might understand now why the Puritans were so given to public Days of Prayer, when the entire community would gather to reflect not only on its personal sins, but on such sins as were committed by the public authorities on the authority of the entire community and for which the entire community, and each adult in it, was in a very real way responsible.
Now that was a technique that was highly developed back then, and appears to have been lost now.
But I’m not sure that pleading ignorance is going to be any excuse in any event.
If I recall correctly, it was Thomas Jefferson, contemplating slavery, who said “I tremble for my country, when I think on the fact that there is a just God”.
Weep not for him who has now been released, but on those who think that a few bucks and a puff-piece in the papers, or just a brassy bray to the effect that extremism in the war against crime is no vice, is going to make it all right, and that it will get a lot of ‘honorable’ people off the hook.
But as they like to tell you in the interrogation room: Sorry, that’s not how it works.
I think far more prosecutors and jurists than anybody would care to speculate would see themselves in the movie ‘Judgment at Nuremberg’, and not as the fearless American prosecutor (Richard Widmark) or the rock-jawed American judge (Spencer Tracy) but rather as the German judges – now defendants – personified most abhorrently in the cultured persona of the Burt Lancaster character: defending himself and his Nazi jurisprudence at the very end, he said to Tracy “It wasn’t supposed to turn out like this”. To which Tracy, standing at the door to the cell, retorted quietly: “But it was guaranteed to turn out like this, the very first time you sentenced a man you knew to be innocent”.
Frankly I think Jefferson was right to be afraid, to be very afraid. And I think that there will be an Accounting yet.
Before that time, I think the American People – Constitutionally the ultimate judges of their government – must step up and put an end to this treacherous betrayal that has gone on for so many years now.
And if you need to take a Day of Prayer to think that one over, well … I support that fully.
It concerns Bernard Baran. He was one of the earliest of the ‘pre-school’ defendants in that first, ominous manifestation of public mania (and government complicity) in the early 1980s.
He has just been freed after 22 years, half his life, in prison, where he was raped and assaulted (it being open season on ‘child molesters’ in there and such assaults being the only public service some types of inmates can think to provide).
The case against him so riddled with prosecutorial misconduct that the State doesn’t dare re-try it.
Especially since the miscreant prosecutor from 1985 is now a sitting Judge of the Superior Court.
There is a strong possibility that a homophobic mother placed the blame on him in order to divert attention from the child’s stepfather, whom the child had originally reported as the molester.
The DA’s interview tapes of the children, withheld from an incompetent or spineless defense counsel, indicated stunningly overt instances of browbeating or enticement of child ‘witnesses’ and ‘victims’. The segments which clearly pointed to the defendant’s innocence – attested to by the children – were also withheld.
As profoundly painful as it is to imagine 22 years of a life wracked away on a bad rap, it is even more frightening to imagine what can happen in a time of government-induced public mania when prosecutors realize that they will never be held accountable. While this particular prosecutor later found added ‘insurance’ by securing appointment to the Bench, few prosecutors are ever investigated for malfeasance, and that would hold especially true in sex-offense cases since – as you may recall – legislatures thoughtfully and deliberately (indeed, in some of the only elements of sex offense laws that can be accurately described as ‘thought out’) provided the police-and-prosecutor free-pass clause: in matters relating to sex-offenders, if you mean well, then you cannot be held civilly or criminally liable for whatever you might do.
Nor can it be accepted that ‘interviewing techniques weren’t as well developed then as they are now’. Despite the fact that computers were a lot clunkier and ‘portable phones’ were the size of briefcases and available only to the wealthy, 1985 was not the Middle Ages: truth was still truth, a lie was still a lie, and coercing or rewarding a witness for the desired testimony was still clearly unprofessional, immoral, and a crime. You didn’t need a Harvard Ph.D. in psychology or a Yale law degree to know that.
It was a time of mania and the awful feedback loop was created whereby each Constitutional and legal barrier, as it was burned away, collapsed into the flames of the mania and fueled them further.
But that isn’t the bad news. The bad news is that they got away with it then, and so half a decade later created the specific sex-offense mania We have been dealing with for almost 20 years.
The corruption – perversion, even – of criminal justice in this sex-offense mania has been far more profound than We know, and surely far more intense than anything even hinted at in the pious – almost impious – blathering of the majority in Poritz.
They told themselves that it was in a good cause; that it was an emergency; that some people didn’t deserve the protections of the Constitution; that the prosecutor’s job was to avenge society when it sought vengeance; that the Constitution was ‘quaint’ where it obstructed such vengeance; that all that stood between the helpless victimized citizenry and the monsters were the fearless vampire-killer prosecutors.
And so they were invited in through the front door, welcomed, with the same frenzied mixture of relief and appreciation that old newsreels captured on the streets of Berlin in another recent Dark Age.
One defender of the former prosecutor (and now the sitting Superior Court Judge ) bleated that “it’s unfair to hold the judge accountable for something he did a quarter century ago”. Marvelous. And isn’t that precisely what so many of the sex-offense laws do in their retroactivity? Isn’t that what AWASORNA wants to do even now?
Twenty-two years in prison for a frame-up. Does anyone want to speculate on the quantum of pain that such a pilgrimage through hell caused to this man? Who will accept responsibility for the verrrry bad juju, the implacable karmic bill, that has been run up through the undeserved suffering this young – now middle-aged – man has gone through?
And does anyone really believe that there isn’t some Collector – on some plane of existence not very far from this one – that will enforce the collection of so monstrous a debt?
I think perhaps all Americans might understand now why the Puritans were so given to public Days of Prayer, when the entire community would gather to reflect not only on its personal sins, but on such sins as were committed by the public authorities on the authority of the entire community and for which the entire community, and each adult in it, was in a very real way responsible.
Now that was a technique that was highly developed back then, and appears to have been lost now.
But I’m not sure that pleading ignorance is going to be any excuse in any event.
If I recall correctly, it was Thomas Jefferson, contemplating slavery, who said “I tremble for my country, when I think on the fact that there is a just God”.
Weep not for him who has now been released, but on those who think that a few bucks and a puff-piece in the papers, or just a brassy bray to the effect that extremism in the war against crime is no vice, is going to make it all right, and that it will get a lot of ‘honorable’ people off the hook.
But as they like to tell you in the interrogation room: Sorry, that’s not how it works.
I think far more prosecutors and jurists than anybody would care to speculate would see themselves in the movie ‘Judgment at Nuremberg’, and not as the fearless American prosecutor (Richard Widmark) or the rock-jawed American judge (Spencer Tracy) but rather as the German judges – now defendants – personified most abhorrently in the cultured persona of the Burt Lancaster character: defending himself and his Nazi jurisprudence at the very end, he said to Tracy “It wasn’t supposed to turn out like this”. To which Tracy, standing at the door to the cell, retorted quietly: “But it was guaranteed to turn out like this, the very first time you sentenced a man you knew to be innocent”.
Frankly I think Jefferson was right to be afraid, to be very afraid. And I think that there will be an Accounting yet.
Before that time, I think the American People – Constitutionally the ultimate judges of their government – must step up and put an end to this treacherous betrayal that has gone on for so many years now.
And if you need to take a Day of Prayer to think that one over, well … I support that fully.
Sunday, November 1, 2009
THE GLOBE: ONE STEP FORWARD
An editorial in the ‘Boston Globe’ today is one of those tortured pieces that simultaneously signals the paper’s efforts to be objective (it’s a forgotten skill there), while backing away from a stampede it helped to create, without admitting either its role in creating the stampede or that it was indeed a stampede in the first place, and simultaneously leaving the door open to the defense that ‘whatever’ it has turned out to be it was meant well and fueled by only the very best of intentions.
It’s stuff like this that makes learning to read in the Soviet mode (read what isn’t there) worth it.
The background: a little under two weeks ago a gentleman with a long string of exposing himself and other similar crimes tried to rape a woman in a bathroom at a local hospital; the gentleman is described as 40 years old and ‘homeless’.
As – alas – should be clear as a bell nowadays, the ‘homeless’ tag is not so much a useful descriptor as a warning that anything from genuine mental illness to addiction (and if chronic, then with its own train of consequences psychologically and physically). Whatever this gentleman may be, a pure and simple ‘sex offender’ (if any such creature exists) he most certainly is not.
He had been recently released, having completed a prison sentence. The prosecutors had wanted to have him committed civilly, but in that State (Massachusetts) an individual facing such a proceeding may choose a judge or a jury to make the legal determination. The man chose a judge, and that judge did not consider that the man qualified for civil commitment under the relevant sex-offense legislation.
As it turned out, the man went out and was soon caught in the current situation. A District Attorney – at a moment in the State’s politics when the current State Attorney General is looking to get herself elected to the US Senate – quickly made public a proposal to amend legislation so that juries – rather than judges – would do the deciding. This is the way it is, the paper faithfully barks, “in other civil matters”.
Naturally, the practiced eye notices our old nemesis, the civil-not-criminal classification of sex-offense laws, and especially the commitment regimes. As soon as you see this, you are almost required to suspect either actual ignorance or some type of skullduggery in the form of ulterior motive.
And from what we know now of the political circumstances in New Jersey in 1994 when Megan’s Law was so indecorously and hastily rammed through the legislature by a Speaker looking to be elected to the US Senate (and a zealous Chief Justice, and prosecutors looking to distract attention from a fatal plea-bargain that they had allowed), we know that ‘politics’ has played a stunning – perhaps primary – role in all sex-offense legislating.
The ‘Globe’ can’t see what the fuss is about. Juries, it opines, in one of the State’s largest counties have been in the past decade “almost twice as likely as judges to commit offenders for periods that can last anywhere from one day to life”. You are welcome to go digging and tote up the number who have been committed for “one day”.
But lest it appear to be simply a shill for prosecutorial dampdreams of easy convictions, the paper notes immediately that “in a quarter of the cases decided by jury, the convicted sex offender was found to be no longer sexually dangerous”. (So, he only had to Register and go onto the Internet).
This very line of thought is tinged with conceptual incoherence. The entire gist of the legislative Findings that ground this sex-offense law in the first place is that a sex-offender is always potentially dangerous in a sexual way. That’s why there are Registries and Notification regimes in the first place.
On top of that, then, the civil commitment scheme is not so much an effort to deal with mental illness (after all, the offender is for all practical purposes to be considered sex-crazed to begin with) as it is a handy second-option to get rid of sex-offenders under color of law and – so sensitively – therapy.
There is no ‘sex offense’ diagnosis in the Manuals, and while the legislation (though not the professional psychiatric research and therapy community) admits ‘mental abnormality’ (a journalistic but not professional diagnostic term) and any sort of ‘personality disorder’, yet ‘personality disorder’ is one of the lowest-grade and almost hopelessly general and non-specific diagnostic categories. So much so that there is even a ‘personality-disorder, not otherwise specified’ to give any enterprising ‘therapist’ a hook for getting a reimbursable diagnosis into the main computer. So if your ‘patient’ can’t even conceivably be shoe-horned into one of the already ‘specific’ personality-disorder categories, you can go and toss him into the ‘not otherwise specified’ basket for the money-shot, billable diagnostic numerator category that will open the insurer’s spigot. It is possible that fully half the population, conservatively, qualifies as having some sort of ‘mental abnormality’ or ‘personality disorder’.
Clearly, the prosecutors in this matter are looking to get around the judges. And given some of the legal ‘thinking’ we’ve seen in some of these SO cases, you have to figure that something’s up: are the judges starting to back off from the SO mania? Or do the judges themselves want to get out from under the burden of having to protect SOs’ rights and would prefer a jury to take on the responsibility?
And perhaps in this case, while the gentleman in question may have qualified for some sort of civil commitment on the basis of outright insanity, he did not qualify for civil commitment under the sex-offense rubric, so the judge felt compelled by justice and law to let him go. Which perhaps indicates that the prosecutors should have gone for a garden-variety ‘insanity’ commitment rather than the trendier ‘sex offense’ commitment.
Of course, the gentleman may simply be a ‘career’ type of offender, in which case he should be subject to increasingly long penalties for subsequent convictions.
But that’s the kicker: sex-offense law, on top of its hugely dubious Registration-Notification regime, is also an exercise in ‘preventive’ law: the idea is to prevent the crime, not simply to convict the perpetrator afterwards.
As I have said in prior Posts, this is a recipe for a police-state, and a verrrrry invasive one. Think of the book-film ‘Minority Report’ where a special police unit arrests persons before they commit a crime, and perhaps before the persons conceive of the idea of committing the crime. Of course, that requires the mysterious fortune-telling aliens who work for the police; in their absence, sex-offense law relies upon the legislative Findings about certifiable and incorrigible monstrousness … not as dramatic as the fortune-telling alien life-forms, but the pols tried to compensate for that lack with the most vivid and exaggerated language and selectively chosen factoids in their Findings.
But there’s another straw in the wind in the text of the editorial. The DA wants the juries dealt into the game because “it’s a reasonable proposal that could help gain broader community acceptance of verdicts in an explosive area of the law”.
Wow.
So there’s some sort of concern among the elites that there isn’t (any longer, at least) a broad community acceptance of SO verdicts? Is this phrase an indicator that the elites are now worried that folks aren’t taking SO convictions seriously?
Surely, this would be – for the elites up to their elbows in the SO mania – a verrrry disturbing trend. After all, if the SO mania stampede starts to slow down, then the dust will start to settle, folks will start doing some thinking again, and they will notice – like Tolkien’s King Theoden as Grima Wormtongue’s spell wears off – that they have been turned into “a beast, crawling around on all fours”. And that, from an elite career point of view, wouldn’t be good – getting chased out by a very angry former spell-bound party now back in possession of his senses and royally pissed. Thus The People if they come to realize they have been cast under a spell and manipulated.
And in case you missed the phrase the first time around, the paper comes back to it later on in the editorial: While nobody knows if a jury too might not have freed this particular offender rather than civilly commit him, “it is certain that the public would be more understanding of the decision to free him had it been rendered by a group of fellow citizens”.
Well that’s a nice thought but I don’t see at all where it is “certain”. And in a mania situation – which is precisely the agitated and emotionally roiled state of affairs that the pols and the press created – it is precisely the judicial Branch that the Framers expected to stand tall against the law-squashing passions of the moment.
So are the prosecutors looking for more ‘play’ or are the judges looking to get off the hook of defending the rights of SOs? Or do prosecutors and/or judges realize that the SO mania is running out of steam, and the smoky fog that used to cover the true shape of this monstrosity is starting to clear away and they want to start putting some distance between themselves and the ‘mistakes that were made’ (ach!)?
After all, the editorial has termed the area of sex-offense law “explosive” – and that not only strikes a note that I have rarely heard, but is so vivid and over-the-top that it almost seems to indicate a genuine agitation … maybe even a fear. It’s a stunning admission – however indirect or unremarked – for a major paper to make; for so long SO law has been passed off as just a particularly newsworthy bit of ‘progress’ in the development of American law but otherwise it ain’t but a thang. Now suddenly this is an “explosive area of the law”. Y’a think? It’s been blowing up fundamental Constitutional integrity for almost 20 years – yeah, I’d say it was “explosive” and has been all along.
But as I entitled this Post, it’s a step forward. The editorial, and I expect with information provided by its friends in the DA’s office, goes out of its way to paint the DAs and even the juries in a reasonable light: While juries have been “twice as likely to commit” as judges in the past 10 years, “they are not acting reflexively either” because “in a quarter of the cases decided by jury, the convicted sex-offender was found to be no longer sexually dangerous” (except that he’s a sex-offender, but go figure).
Also “prosecutors aren’t going overboard to confine sex-offenders who have served out their sentences … since 2004 district attorneys have sought commitment petitions for just 515 of 8,700 sex criminals who completed their sentences … Of that number only 253 went to trial.” What happened to the other 262 of that 515?
And immediately thereafter: “It’s not a witch hunt. It’s an attempt to deal with the worst of convicted sex offenders”. The fact that the editorial would even volunteer that “witch hunt” (and on top of “explosive”!) is curious indeed: for sooo long the media didn’t even want the phrase ‘witch hunt’ associated with sex-offenses; America of the 1990s was far too enlightened and progressive to ever indulge in any of that stuff (and of course, to the secular elites of the recent revolutions, such irrational frakkery could only take place under the influence of ‘religion’; secular elites – by double definition – didn’t cause stampedes like that … yah).
“This is no small matter. Community acceptance of verdicts is a pillar of the legal system”. Again, the editorial volunteers this queasy non-admission: that it seems to think that at this point there isn’t so much ‘community acceptance’ of sex-offense verdicts. This is more than a straw in the wind; something has the elites riled and worried.* They’re trying to defend their actions without admitting that they’ve actually done anything wrong or frakked anything up (how Beltway!).
So this is a step forward, but I’m still not sure just why it’s being taken, so I’m not popping any champagne corks.
But I will note this, in conclusion. The editorial notes that “this is a challenging area in which judges and juries are not asked to determine what, if anything, someone did, but what they are likely to do in the future”. Again, this is preventive law – and will probably wind up causing as much frakkery as its younger (on the American scene) sibling, preventive war (and can you say ‘Iraq War’?). We shall wind up occupying ourselves as a police state the same way we are now occupying Iraq and trying to get control of Afghanistan.
But then it continues: “the law already recognizes the uniquely compulsive nature of sex crimes”.
Welllllll now. ‘Sex’ is certainly hard-wired into the human biology; Evolution has planned for the species to reproduce itself, after all.
But is it “compulsive” such that an individual has no control over it? This is a thorny enough question as it is.
It’s rendered even more so when you consider that for the past four decades or so it has been precisely a hallmark of ‘liberation’ that ‘sex’ is good and nobody can tell you when you can and when you can’t, and that ‘young women’ – as they are called – can do whatever they want and nobody – parents, ‘traditions’, or certainly ‘men’ – can tell them what they can or can’t do.
Surely, a civilization that spent a great deal of time and energy trying to shape the latent force of human sexual desire in order to clear a bit of space for humans to conduct their lives in pursuit of their higher and less primal potentials was doing something right. The fact that it has all been ‘deconstructed’ – and in the name of ‘liberation’! – in the past few decades has meant that huge numbers of youth are now grossly undertrained in the arts of controlling or usefully channeling their sexual capacities.
But this is a different type of ‘compulsion’ altogether. It’s a compulsion that’s not built into the sexual drive (persistent as it is) but rather is the result of an individual not being prepared , educated, or trained in the mastery of the sexual potential – and so the individual ‘feels’ that the sexual potential is ‘compulsive’ simply because the individual has no inkling of how to control it.
And – as has happened in this sex-offense mania – the “uniquely compulsive” nature is apparently specific to males, according to the theory. And I will certainly agree that in terms of maximizing reproductive potential, the male is sent into this life by Evolution with a hard-wired urge to propagate. But that is not a certificate of incorrigible monstrous danger so much as it is a clear challenge to civilization to train the male in the responsible use of his potentials. Which was what civilization had been doing for quite some time.
It was fashionable – perhaps still is – to assert that civilization was doing a poor job of it. But even if that were true it would be a signal flag for an improvement in civilization’s methods of education, not for a ‘deconstruction’ of any boundaries, followed by the invasive deployment of the criminal law to brand ‘sex offenders’ (which now comprise about one in every 230 males in the country).
So this “uniquely compulsive nature of sex crimes” is a hugely fraught, and not altogether accurate, assertion.
We had seen the conceptual problems with that approach in the Poritz Opinion, where the Findings ascribed an “incorrigible” aspect to sex-crimes (and, without having to say it, to males).
So, again, things are happening in matters sex-offensual. And any improvement should be encouraged. But it must not be forgotten that this entire sex-offense mania – in the content of its ideas and in the methods of its implementation – is fundamentally flawed. And poses – in its failures even more than in its ‘successes’ – a grave threat to democratic politics and to the foundations and structure of Our Constitutional Republic.
As perhaps now we will see more and more elites trying to either back away from it or ‘tweak’ it, we cannot forget that this entire thing is a plague and no amount of tweaking or fine-tuning will turn it into ‘progress’.
NOTES
*Interestingly, I noticed the same sort of dynamic this past week in another context, and Posted about it on my other site here.
It’s stuff like this that makes learning to read in the Soviet mode (read what isn’t there) worth it.
The background: a little under two weeks ago a gentleman with a long string of exposing himself and other similar crimes tried to rape a woman in a bathroom at a local hospital; the gentleman is described as 40 years old and ‘homeless’.
As – alas – should be clear as a bell nowadays, the ‘homeless’ tag is not so much a useful descriptor as a warning that anything from genuine mental illness to addiction (and if chronic, then with its own train of consequences psychologically and physically). Whatever this gentleman may be, a pure and simple ‘sex offender’ (if any such creature exists) he most certainly is not.
He had been recently released, having completed a prison sentence. The prosecutors had wanted to have him committed civilly, but in that State (Massachusetts) an individual facing such a proceeding may choose a judge or a jury to make the legal determination. The man chose a judge, and that judge did not consider that the man qualified for civil commitment under the relevant sex-offense legislation.
As it turned out, the man went out and was soon caught in the current situation. A District Attorney – at a moment in the State’s politics when the current State Attorney General is looking to get herself elected to the US Senate – quickly made public a proposal to amend legislation so that juries – rather than judges – would do the deciding. This is the way it is, the paper faithfully barks, “in other civil matters”.
Naturally, the practiced eye notices our old nemesis, the civil-not-criminal classification of sex-offense laws, and especially the commitment regimes. As soon as you see this, you are almost required to suspect either actual ignorance or some type of skullduggery in the form of ulterior motive.
And from what we know now of the political circumstances in New Jersey in 1994 when Megan’s Law was so indecorously and hastily rammed through the legislature by a Speaker looking to be elected to the US Senate (and a zealous Chief Justice, and prosecutors looking to distract attention from a fatal plea-bargain that they had allowed), we know that ‘politics’ has played a stunning – perhaps primary – role in all sex-offense legislating.
The ‘Globe’ can’t see what the fuss is about. Juries, it opines, in one of the State’s largest counties have been in the past decade “almost twice as likely as judges to commit offenders for periods that can last anywhere from one day to life”. You are welcome to go digging and tote up the number who have been committed for “one day”.
But lest it appear to be simply a shill for prosecutorial dampdreams of easy convictions, the paper notes immediately that “in a quarter of the cases decided by jury, the convicted sex offender was found to be no longer sexually dangerous”. (So, he only had to Register and go onto the Internet).
This very line of thought is tinged with conceptual incoherence. The entire gist of the legislative Findings that ground this sex-offense law in the first place is that a sex-offender is always potentially dangerous in a sexual way. That’s why there are Registries and Notification regimes in the first place.
On top of that, then, the civil commitment scheme is not so much an effort to deal with mental illness (after all, the offender is for all practical purposes to be considered sex-crazed to begin with) as it is a handy second-option to get rid of sex-offenders under color of law and – so sensitively – therapy.
There is no ‘sex offense’ diagnosis in the Manuals, and while the legislation (though not the professional psychiatric research and therapy community) admits ‘mental abnormality’ (a journalistic but not professional diagnostic term) and any sort of ‘personality disorder’, yet ‘personality disorder’ is one of the lowest-grade and almost hopelessly general and non-specific diagnostic categories. So much so that there is even a ‘personality-disorder, not otherwise specified’ to give any enterprising ‘therapist’ a hook for getting a reimbursable diagnosis into the main computer. So if your ‘patient’ can’t even conceivably be shoe-horned into one of the already ‘specific’ personality-disorder categories, you can go and toss him into the ‘not otherwise specified’ basket for the money-shot, billable diagnostic numerator category that will open the insurer’s spigot. It is possible that fully half the population, conservatively, qualifies as having some sort of ‘mental abnormality’ or ‘personality disorder’.
Clearly, the prosecutors in this matter are looking to get around the judges. And given some of the legal ‘thinking’ we’ve seen in some of these SO cases, you have to figure that something’s up: are the judges starting to back off from the SO mania? Or do the judges themselves want to get out from under the burden of having to protect SOs’ rights and would prefer a jury to take on the responsibility?
And perhaps in this case, while the gentleman in question may have qualified for some sort of civil commitment on the basis of outright insanity, he did not qualify for civil commitment under the sex-offense rubric, so the judge felt compelled by justice and law to let him go. Which perhaps indicates that the prosecutors should have gone for a garden-variety ‘insanity’ commitment rather than the trendier ‘sex offense’ commitment.
Of course, the gentleman may simply be a ‘career’ type of offender, in which case he should be subject to increasingly long penalties for subsequent convictions.
But that’s the kicker: sex-offense law, on top of its hugely dubious Registration-Notification regime, is also an exercise in ‘preventive’ law: the idea is to prevent the crime, not simply to convict the perpetrator afterwards.
As I have said in prior Posts, this is a recipe for a police-state, and a verrrrry invasive one. Think of the book-film ‘Minority Report’ where a special police unit arrests persons before they commit a crime, and perhaps before the persons conceive of the idea of committing the crime. Of course, that requires the mysterious fortune-telling aliens who work for the police; in their absence, sex-offense law relies upon the legislative Findings about certifiable and incorrigible monstrousness … not as dramatic as the fortune-telling alien life-forms, but the pols tried to compensate for that lack with the most vivid and exaggerated language and selectively chosen factoids in their Findings.
But there’s another straw in the wind in the text of the editorial. The DA wants the juries dealt into the game because “it’s a reasonable proposal that could help gain broader community acceptance of verdicts in an explosive area of the law”.
Wow.
So there’s some sort of concern among the elites that there isn’t (any longer, at least) a broad community acceptance of SO verdicts? Is this phrase an indicator that the elites are now worried that folks aren’t taking SO convictions seriously?
Surely, this would be – for the elites up to their elbows in the SO mania – a verrrry disturbing trend. After all, if the SO mania stampede starts to slow down, then the dust will start to settle, folks will start doing some thinking again, and they will notice – like Tolkien’s King Theoden as Grima Wormtongue’s spell wears off – that they have been turned into “a beast, crawling around on all fours”. And that, from an elite career point of view, wouldn’t be good – getting chased out by a very angry former spell-bound party now back in possession of his senses and royally pissed. Thus The People if they come to realize they have been cast under a spell and manipulated.
And in case you missed the phrase the first time around, the paper comes back to it later on in the editorial: While nobody knows if a jury too might not have freed this particular offender rather than civilly commit him, “it is certain that the public would be more understanding of the decision to free him had it been rendered by a group of fellow citizens”.
Well that’s a nice thought but I don’t see at all where it is “certain”. And in a mania situation – which is precisely the agitated and emotionally roiled state of affairs that the pols and the press created – it is precisely the judicial Branch that the Framers expected to stand tall against the law-squashing passions of the moment.
So are the prosecutors looking for more ‘play’ or are the judges looking to get off the hook of defending the rights of SOs? Or do prosecutors and/or judges realize that the SO mania is running out of steam, and the smoky fog that used to cover the true shape of this monstrosity is starting to clear away and they want to start putting some distance between themselves and the ‘mistakes that were made’ (ach!)?
After all, the editorial has termed the area of sex-offense law “explosive” – and that not only strikes a note that I have rarely heard, but is so vivid and over-the-top that it almost seems to indicate a genuine agitation … maybe even a fear. It’s a stunning admission – however indirect or unremarked – for a major paper to make; for so long SO law has been passed off as just a particularly newsworthy bit of ‘progress’ in the development of American law but otherwise it ain’t but a thang. Now suddenly this is an “explosive area of the law”. Y’a think? It’s been blowing up fundamental Constitutional integrity for almost 20 years – yeah, I’d say it was “explosive” and has been all along.
But as I entitled this Post, it’s a step forward. The editorial, and I expect with information provided by its friends in the DA’s office, goes out of its way to paint the DAs and even the juries in a reasonable light: While juries have been “twice as likely to commit” as judges in the past 10 years, “they are not acting reflexively either” because “in a quarter of the cases decided by jury, the convicted sex-offender was found to be no longer sexually dangerous” (except that he’s a sex-offender, but go figure).
Also “prosecutors aren’t going overboard to confine sex-offenders who have served out their sentences … since 2004 district attorneys have sought commitment petitions for just 515 of 8,700 sex criminals who completed their sentences … Of that number only 253 went to trial.” What happened to the other 262 of that 515?
And immediately thereafter: “It’s not a witch hunt. It’s an attempt to deal with the worst of convicted sex offenders”. The fact that the editorial would even volunteer that “witch hunt” (and on top of “explosive”!) is curious indeed: for sooo long the media didn’t even want the phrase ‘witch hunt’ associated with sex-offenses; America of the 1990s was far too enlightened and progressive to ever indulge in any of that stuff (and of course, to the secular elites of the recent revolutions, such irrational frakkery could only take place under the influence of ‘religion’; secular elites – by double definition – didn’t cause stampedes like that … yah).
“This is no small matter. Community acceptance of verdicts is a pillar of the legal system”. Again, the editorial volunteers this queasy non-admission: that it seems to think that at this point there isn’t so much ‘community acceptance’ of sex-offense verdicts. This is more than a straw in the wind; something has the elites riled and worried.* They’re trying to defend their actions without admitting that they’ve actually done anything wrong or frakked anything up (how Beltway!).
So this is a step forward, but I’m still not sure just why it’s being taken, so I’m not popping any champagne corks.
But I will note this, in conclusion. The editorial notes that “this is a challenging area in which judges and juries are not asked to determine what, if anything, someone did, but what they are likely to do in the future”. Again, this is preventive law – and will probably wind up causing as much frakkery as its younger (on the American scene) sibling, preventive war (and can you say ‘Iraq War’?). We shall wind up occupying ourselves as a police state the same way we are now occupying Iraq and trying to get control of Afghanistan.
But then it continues: “the law already recognizes the uniquely compulsive nature of sex crimes”.
Welllllll now. ‘Sex’ is certainly hard-wired into the human biology; Evolution has planned for the species to reproduce itself, after all.
But is it “compulsive” such that an individual has no control over it? This is a thorny enough question as it is.
It’s rendered even more so when you consider that for the past four decades or so it has been precisely a hallmark of ‘liberation’ that ‘sex’ is good and nobody can tell you when you can and when you can’t, and that ‘young women’ – as they are called – can do whatever they want and nobody – parents, ‘traditions’, or certainly ‘men’ – can tell them what they can or can’t do.
Surely, a civilization that spent a great deal of time and energy trying to shape the latent force of human sexual desire in order to clear a bit of space for humans to conduct their lives in pursuit of their higher and less primal potentials was doing something right. The fact that it has all been ‘deconstructed’ – and in the name of ‘liberation’! – in the past few decades has meant that huge numbers of youth are now grossly undertrained in the arts of controlling or usefully channeling their sexual capacities.
But this is a different type of ‘compulsion’ altogether. It’s a compulsion that’s not built into the sexual drive (persistent as it is) but rather is the result of an individual not being prepared , educated, or trained in the mastery of the sexual potential – and so the individual ‘feels’ that the sexual potential is ‘compulsive’ simply because the individual has no inkling of how to control it.
And – as has happened in this sex-offense mania – the “uniquely compulsive” nature is apparently specific to males, according to the theory. And I will certainly agree that in terms of maximizing reproductive potential, the male is sent into this life by Evolution with a hard-wired urge to propagate. But that is not a certificate of incorrigible monstrous danger so much as it is a clear challenge to civilization to train the male in the responsible use of his potentials. Which was what civilization had been doing for quite some time.
It was fashionable – perhaps still is – to assert that civilization was doing a poor job of it. But even if that were true it would be a signal flag for an improvement in civilization’s methods of education, not for a ‘deconstruction’ of any boundaries, followed by the invasive deployment of the criminal law to brand ‘sex offenders’ (which now comprise about one in every 230 males in the country).
So this “uniquely compulsive nature of sex crimes” is a hugely fraught, and not altogether accurate, assertion.
We had seen the conceptual problems with that approach in the Poritz Opinion, where the Findings ascribed an “incorrigible” aspect to sex-crimes (and, without having to say it, to males).
So, again, things are happening in matters sex-offensual. And any improvement should be encouraged. But it must not be forgotten that this entire sex-offense mania – in the content of its ideas and in the methods of its implementation – is fundamentally flawed. And poses – in its failures even more than in its ‘successes’ – a grave threat to democratic politics and to the foundations and structure of Our Constitutional Republic.
As perhaps now we will see more and more elites trying to either back away from it or ‘tweak’ it, we cannot forget that this entire thing is a plague and no amount of tweaking or fine-tuning will turn it into ‘progress’.
NOTES
*Interestingly, I noticed the same sort of dynamic this past week in another context, and Posted about it on my other site here.
Friday, October 30, 2009
THE MEGAN’S LAW STUDY
I’ve read the recently-released Megan’s Law Study funded by the DOJ.
It’s a 46-page document and its text is available here.
There are a lot of graphs and charts and you may look at those on your own. The Executive Summary (pages 1-2) is reproduced on Constitutional Fights here (the entry is dated for Tuesday, October 20, 2009) and clearly indicates that the approach enshrined in Megan’s Law (and all the similar laws throughout the country) is at its very best only dubiously and tenuously ‘successful’ and indeed in many ways demonstrates little promise of ever achieving success even on its own stated terms.
So no amount of ‘tweaking’ or ‘refining’ or ‘fine-tuning’ is going to turn it into a viable proposition as public law and policy.
And its financial costs are significant and can only rise, probably exponentially.
There are only a couple of points I want to mention in this Post.
On page 3 the Report notes that “The premise was, and still is, that with this knowledge [i.e. from Notification] citizens will take protective measures against these near-by sex offenders”.
But it sharpens that insight by quoting a 2004 Study: “Exactly what [action] is expected is not clear, but it is hoped that, armed with this critical information, citizens will work on their own or in concert with government to make their neighborhoods safer”.
As I have said in previous Posts, especially in the series on the Portiz decision of 1995 in which the New Jersey Supreme Court twisted itself into a pretzel to uphold the original Megan’s law, this is a truly awful vagueness, freighted with very dark possibilities (or probabilities) indeed.
The very ‘vision’ which is supposed to ground the law is vague – the legislators weren’t really sure what was supposed to happen (and can you say ‘Iraq War’?). They had a fond hope that folks would do some stuff to make their neighborhoods “safer”.
But as Justice Stein pointed out in his lonely but gleaming Dissent in Poritz, it betrays a stunning lack of awareness of human nature and group dynamics to imagine that any neighborhood or community confronted by such putative (and State-certified) ‘monsters’ would limit itself to a series of ‘harmless’ measures (e.g. holding your child close as a Registered Sex Offender (RSO) walks by). After all, it’s going to be a lot of trouble to continuously repeat such a process.
It would more probably appear to any group in such a situation that the ‘best’ or ‘only’ solution to their problem would be to get the RSO(s) out of the neighborhood permanently. And while the ‘vigilante violence’ solution might not occur on a massive scale* there are many other types of pressure – what can be called non-physical violence – that can be applied by a sufficiently determined group within the neighborhood.
Thus, pressure on landlords to revoke rental agreements, on employers, on the very families and even children of RSOs (whose offense, presuming an accurate conviction, may well have had nothing whatsoever to do with children). Local schools, bank branches … the list could go on. And of course, there is the ancient tactic of simply freezing-out not only the RSO but his family and children from any meaningful participation in community events or even in the small civilities that define the daily life of a community.
And all of this presumes a police force that is at least ‘neutral’ and does not try to contribute a few inventive gambits on its own.
And all of this presumes that there is no ‘volunteer civilian’ group empowered through government funds and even quasi-police authority to keep the ‘concern’ very much ‘alive’.
The Report enumerates (page 4) an earlier Study’s list of qualifiers for Tier III: “The factors necessary for the placement into a tier three category are a high probability of re-offending evidenced by a particularly heinous instant offense or a high-risk assessment score, repetitive and compulsive behavior, sexual preference for children, failure or refusal of treatment, denial of the offense and lack of remorse”.
But as the SO community realizes, such a scientific and objective-sounding list is riddled with problems of coherence and accuracy and context. If, say, the conviction-offense was heinous and thus proving a “high probability of re-offending” then what of murder – surely a heinous conviction offense, yet murderers as a crime-class have almost the lowest rate of recidivism among crime-classes, even lower than actual sex-offenders. And the definition of “heinous” is remarkably elastic.
And while this is not a trump point, I note that if you were convicted though you pled not-guilty, then once imprisoned you are in the impossible position of ‘denying your guilt’ and thus not cooperating with such therapy as the institution provides, or you ‘admit’ your guilt to prison staffers and leave yourself open to fresh charges (and perhaps undercut any appeals).
But on page 5, this Report raises a point that I have not noticed anywhere else and which, if true, would go a long way to explaining some stubborn oddities in this entire SO mania-law situation.
Quoting a 2004 Study the Report gently muses that perhaps “community notification laws were enacted more to change the behaviors of potential victims than the behaviors of potential sexual recidivists” and that “it is not the enactment of community notification laws themselves that influences protective behaviors, but the community members’ perceived risk of victimization” [italics mine].
In other words, some researchers have looked at things from the assumption that the whole point of these laws was to ‘send a message’, that new-fangled legal theory called “expressive law”.
And that the ‘message’ was primarily to the citizens (as opposed to the RSOs): you are in such great danger that you must take action.
And that whether the sex-offenders (already ‘Certified’ as monsters in the legislative Findings) did or did not ‘stop’ was not the main point of the laws. Or, perhaps, that it was actually useful if the sex-offenses did not stop – so as to keep up the apparent need for and urgency of ‘the message’.
This kind of stuns.
Has this entire mania been a government-initiated exercise in spooking the citizenry? Or ‘raising the consciousness’ of the citizenry? Or ‘raising the awareness’ of the citizenry? Has ‘expressive law’ raised the agitprop and street-political-theatre of the late Sixties and Seventies to the status of national law and policy?
That thought isn’t mean to ‘minimize’ the damage the laws and the mania have done: after all, in order to justify so ‘urgent’ a ‘message’, the government had to create the monster-stranger-sex-offender-against-children threat and inflate its size far beyond any actual facts.
But once having started down the dark path of stampeding the public into its white-hot but darker passions, the government has had to keep fueling the ‘threat-emergency’, both by manipulating ‘the numbers’ and by ignoring more recent scientific analysis. And by passing law after law, intensifying penalties or registry regulations until it almost seems that nobody dares now to stand up and say Wait a minute.
This whole dynamic debases the processes of responsible law-making, law enforcement, and jurisprudence. And after the public has noticed enough debasement, then the threat to the very legitimacy of those vital processes begins to erode. If that happens, then law will be given by a single Authority, and the country is on the road to the Man (or Woman) on a White Horse. Although given the trajectory of the political myths of the current era, perhaps Lord Protector will be the form it will take here.
Obama at some point, you recall, repeated the Bush-2 mantra that the President has a responsibility to protect the American people (rather than, as the Oath of Office insists, the Constitution). But perhaps it will all be kept nice and democratic by calling the occupant of the Oval Office ‘Mr. Protector’. You see where these things can go.
And of course, this would explain why putatively intelligent and competent legislators and jurists have steadfastly ignored the increasing amount of research that is now undermining what they claimed were the original justifications for this whole ‘emergency’ in the first place. What Wayne Logan tactfully noted was the whole sex-offense phenomenon’s lack of an “empirical” dimension, its resistance to any scientific evidence now refuting the ‘Findings’ that started the thing in the first place.
And as I said, would a notable ‘decline’ in sex-offenses really be something that the legislators would like to see at this point? Hell, sex-offenses, like all violent crimes, were declining before the mania started up, and that fact didn’t seem to stop it at all.
“Despite widespread community support for these laws, there is virtually no evidence to support their effectiveness” (page 7).
I sense that there isn’t such widespread public support, certainly not in the categories beneath (as most of them are) abduction-sexual violation-murder of small children. But as I have said, the vast majority of RSOs are on the registry because the membership in the pro-sex-offense laws alliance is so varied: the ‘protect the children’ subgroup supporting these laws is only one (although the chosen ‘front’) for a much larger and more tenuous collection of interests whose primary concern is not with ‘children’. And perhaps here too, neither the ‘decline’ of violent sex crimes nor the rehabilitation of sex-offenders would suit larger purposes.
Public opinion has been led for a walk on the dark side, indeed.
I wonder too, if on top of the spook-the-citizens angle, and the ‘send a message’ angle, there is also the following angle: that having for decades supported the anything-goes and do-what-you-want-because-nobody-can-tell-you-what-to-do ‘philosophy’ of human life and of child-rearing, and also the ‘deconstruction’ of the family as well as of parental authority, the Beltway now has to find some way to ‘control’ several decades’ worth of now-grown ‘youth’ who have grown up under-parented and under-Shaped into any sort of self-mastery or mature and socialized self-identity at all.
Having thus swept away the primary and indispensable formative structures that American (or any) society and culture require to impart some Shape to the young, the Beltway now has to insert the government and the law ever more intrusively into American life in order to keep any viable sense of order at all.**
This is a recipe for a police state – and that consequence was as conceptually clear a probability decades ago as it has proven to be an awful reality now.
Considered from this angle the SO mania is not only a repugnant and dangerous development in and of itself, but is also a harbinger of things to come (or even things-that-now-have-to-come).
But let’s not be deceived that a little bit of tweaking by the same Beltway will return things to ‘normal’ and will ‘re-balance’ things. American society and culture, and the processes of legislation, law enforcement, and jurisprudence have been seriously deformed. Like steel girders in the frame of a bridge or a large building, such deformity is not easily ‘fixed’, if ever.
NOTES
*And yet another site lists the shockingly long list of RSOs who have been attacked, injured, and even killed by vigilante violence or by victims seeking ‘closure’.
**And again: this is eerily similar to the grave mistake made in Iraq: ‘deconstruct’ everything and – somehow – everything will get ‘better’. Alas no.
It’s a 46-page document and its text is available here.
There are a lot of graphs and charts and you may look at those on your own. The Executive Summary (pages 1-2) is reproduced on Constitutional Fights here (the entry is dated for Tuesday, October 20, 2009) and clearly indicates that the approach enshrined in Megan’s Law (and all the similar laws throughout the country) is at its very best only dubiously and tenuously ‘successful’ and indeed in many ways demonstrates little promise of ever achieving success even on its own stated terms.
So no amount of ‘tweaking’ or ‘refining’ or ‘fine-tuning’ is going to turn it into a viable proposition as public law and policy.
And its financial costs are significant and can only rise, probably exponentially.
There are only a couple of points I want to mention in this Post.
On page 3 the Report notes that “The premise was, and still is, that with this knowledge [i.e. from Notification] citizens will take protective measures against these near-by sex offenders”.
But it sharpens that insight by quoting a 2004 Study: “Exactly what [action] is expected is not clear, but it is hoped that, armed with this critical information, citizens will work on their own or in concert with government to make their neighborhoods safer”.
As I have said in previous Posts, especially in the series on the Portiz decision of 1995 in which the New Jersey Supreme Court twisted itself into a pretzel to uphold the original Megan’s law, this is a truly awful vagueness, freighted with very dark possibilities (or probabilities) indeed.
The very ‘vision’ which is supposed to ground the law is vague – the legislators weren’t really sure what was supposed to happen (and can you say ‘Iraq War’?). They had a fond hope that folks would do some stuff to make their neighborhoods “safer”.
But as Justice Stein pointed out in his lonely but gleaming Dissent in Poritz, it betrays a stunning lack of awareness of human nature and group dynamics to imagine that any neighborhood or community confronted by such putative (and State-certified) ‘monsters’ would limit itself to a series of ‘harmless’ measures (e.g. holding your child close as a Registered Sex Offender (RSO) walks by). After all, it’s going to be a lot of trouble to continuously repeat such a process.
It would more probably appear to any group in such a situation that the ‘best’ or ‘only’ solution to their problem would be to get the RSO(s) out of the neighborhood permanently. And while the ‘vigilante violence’ solution might not occur on a massive scale* there are many other types of pressure – what can be called non-physical violence – that can be applied by a sufficiently determined group within the neighborhood.
Thus, pressure on landlords to revoke rental agreements, on employers, on the very families and even children of RSOs (whose offense, presuming an accurate conviction, may well have had nothing whatsoever to do with children). Local schools, bank branches … the list could go on. And of course, there is the ancient tactic of simply freezing-out not only the RSO but his family and children from any meaningful participation in community events or even in the small civilities that define the daily life of a community.
And all of this presumes a police force that is at least ‘neutral’ and does not try to contribute a few inventive gambits on its own.
And all of this presumes that there is no ‘volunteer civilian’ group empowered through government funds and even quasi-police authority to keep the ‘concern’ very much ‘alive’.
The Report enumerates (page 4) an earlier Study’s list of qualifiers for Tier III: “The factors necessary for the placement into a tier three category are a high probability of re-offending evidenced by a particularly heinous instant offense or a high-risk assessment score, repetitive and compulsive behavior, sexual preference for children, failure or refusal of treatment, denial of the offense and lack of remorse”.
But as the SO community realizes, such a scientific and objective-sounding list is riddled with problems of coherence and accuracy and context. If, say, the conviction-offense was heinous and thus proving a “high probability of re-offending” then what of murder – surely a heinous conviction offense, yet murderers as a crime-class have almost the lowest rate of recidivism among crime-classes, even lower than actual sex-offenders. And the definition of “heinous” is remarkably elastic.
And while this is not a trump point, I note that if you were convicted though you pled not-guilty, then once imprisoned you are in the impossible position of ‘denying your guilt’ and thus not cooperating with such therapy as the institution provides, or you ‘admit’ your guilt to prison staffers and leave yourself open to fresh charges (and perhaps undercut any appeals).
But on page 5, this Report raises a point that I have not noticed anywhere else and which, if true, would go a long way to explaining some stubborn oddities in this entire SO mania-law situation.
Quoting a 2004 Study the Report gently muses that perhaps “community notification laws were enacted more to change the behaviors of potential victims than the behaviors of potential sexual recidivists” and that “it is not the enactment of community notification laws themselves that influences protective behaviors, but the community members’ perceived risk of victimization” [italics mine].
In other words, some researchers have looked at things from the assumption that the whole point of these laws was to ‘send a message’, that new-fangled legal theory called “expressive law”.
And that the ‘message’ was primarily to the citizens (as opposed to the RSOs): you are in such great danger that you must take action.
And that whether the sex-offenders (already ‘Certified’ as monsters in the legislative Findings) did or did not ‘stop’ was not the main point of the laws. Or, perhaps, that it was actually useful if the sex-offenses did not stop – so as to keep up the apparent need for and urgency of ‘the message’.
This kind of stuns.
Has this entire mania been a government-initiated exercise in spooking the citizenry? Or ‘raising the consciousness’ of the citizenry? Or ‘raising the awareness’ of the citizenry? Has ‘expressive law’ raised the agitprop and street-political-theatre of the late Sixties and Seventies to the status of national law and policy?
That thought isn’t mean to ‘minimize’ the damage the laws and the mania have done: after all, in order to justify so ‘urgent’ a ‘message’, the government had to create the monster-stranger-sex-offender-against-children threat and inflate its size far beyond any actual facts.
But once having started down the dark path of stampeding the public into its white-hot but darker passions, the government has had to keep fueling the ‘threat-emergency’, both by manipulating ‘the numbers’ and by ignoring more recent scientific analysis. And by passing law after law, intensifying penalties or registry regulations until it almost seems that nobody dares now to stand up and say Wait a minute.
This whole dynamic debases the processes of responsible law-making, law enforcement, and jurisprudence. And after the public has noticed enough debasement, then the threat to the very legitimacy of those vital processes begins to erode. If that happens, then law will be given by a single Authority, and the country is on the road to the Man (or Woman) on a White Horse. Although given the trajectory of the political myths of the current era, perhaps Lord Protector will be the form it will take here.
Obama at some point, you recall, repeated the Bush-2 mantra that the President has a responsibility to protect the American people (rather than, as the Oath of Office insists, the Constitution). But perhaps it will all be kept nice and democratic by calling the occupant of the Oval Office ‘Mr. Protector’. You see where these things can go.
And of course, this would explain why putatively intelligent and competent legislators and jurists have steadfastly ignored the increasing amount of research that is now undermining what they claimed were the original justifications for this whole ‘emergency’ in the first place. What Wayne Logan tactfully noted was the whole sex-offense phenomenon’s lack of an “empirical” dimension, its resistance to any scientific evidence now refuting the ‘Findings’ that started the thing in the first place.
And as I said, would a notable ‘decline’ in sex-offenses really be something that the legislators would like to see at this point? Hell, sex-offenses, like all violent crimes, were declining before the mania started up, and that fact didn’t seem to stop it at all.
“Despite widespread community support for these laws, there is virtually no evidence to support their effectiveness” (page 7).
I sense that there isn’t such widespread public support, certainly not in the categories beneath (as most of them are) abduction-sexual violation-murder of small children. But as I have said, the vast majority of RSOs are on the registry because the membership in the pro-sex-offense laws alliance is so varied: the ‘protect the children’ subgroup supporting these laws is only one (although the chosen ‘front’) for a much larger and more tenuous collection of interests whose primary concern is not with ‘children’. And perhaps here too, neither the ‘decline’ of violent sex crimes nor the rehabilitation of sex-offenders would suit larger purposes.
Public opinion has been led for a walk on the dark side, indeed.
I wonder too, if on top of the spook-the-citizens angle, and the ‘send a message’ angle, there is also the following angle: that having for decades supported the anything-goes and do-what-you-want-because-nobody-can-tell-you-what-to-do ‘philosophy’ of human life and of child-rearing, and also the ‘deconstruction’ of the family as well as of parental authority, the Beltway now has to find some way to ‘control’ several decades’ worth of now-grown ‘youth’ who have grown up under-parented and under-Shaped into any sort of self-mastery or mature and socialized self-identity at all.
Having thus swept away the primary and indispensable formative structures that American (or any) society and culture require to impart some Shape to the young, the Beltway now has to insert the government and the law ever more intrusively into American life in order to keep any viable sense of order at all.**
This is a recipe for a police state – and that consequence was as conceptually clear a probability decades ago as it has proven to be an awful reality now.
Considered from this angle the SO mania is not only a repugnant and dangerous development in and of itself, but is also a harbinger of things to come (or even things-that-now-have-to-come).
But let’s not be deceived that a little bit of tweaking by the same Beltway will return things to ‘normal’ and will ‘re-balance’ things. American society and culture, and the processes of legislation, law enforcement, and jurisprudence have been seriously deformed. Like steel girders in the frame of a bridge or a large building, such deformity is not easily ‘fixed’, if ever.
NOTES
*And yet another site lists the shockingly long list of RSOs who have been attacked, injured, and even killed by vigilante violence or by victims seeking ‘closure’.
**And again: this is eerily similar to the grave mistake made in Iraq: ‘deconstruct’ everything and – somehow – everything will get ‘better’. Alas no.
Tuesday, October 27, 2009
A FOLLOW-UP
Just a point to fill out what I had mentioned in the immediately previous Post.
I think you can see – in a tactic that dates back almost 30 years and predates even the McMartin Pre-School cases of the early 1980s – what happens when a situation is ‘selectively’ presented to the public by an advocacy for the purposes of eliciting public support or approval (which almost always requires the pre-step of igniting public fear or public rage – never a thing to be undertaken lightly).
In both the MADD Brief (presumably ‘liberal’) and Chief Justice’s Dissent (avowedly ‘conservative’), we see a selective ignoring of any downside or negative consequences to their desired outcome. Thus MADD emphasizes (using inaccurate imagery as well as inflammatory vocabulary) the ‘violent crime’ without mentioning that the worst-case outcome is only potential; the Dissent – and from the most senior jurist in the nation – conducts an analysis that either fails to consider or willfully ignores the possibly (or probable) negative consequences to the Constitution and the Constitutional ethos.
This type of ‘presentation’ mimics, as I have mentioned in other Posts, the corporate and certainly military-industrial practices of ‘selling’: give an exaggerated view of the problem that your product or service is designed to ‘solve’; then give a worst-case scenario of what happens if the problem continues at this level of threat or damage; then give a best-case scenario of what will happen if your product or service is purchased.
This is selling, and this is how it’s done. Let the buyer beware and these are the hazards of a commercially-oriented culture and civilization.
BUT: this approach to things has migrated to law and policy, to legislation and to law enforcement. And this unleashes a legion of new troubles.
Legislators and public opinion are stampeded into a highly emotional state; so much so that they overlook the un-mentioned ‘downside’ to the pitch: negative consequences, intended or unintended, and their degree of possibility or probability.
Given vivid ‘stories’ and easily digestible (though wayyyyy too simplified, good-vs-evil) plotlines, the media fall into the lazy habits of turning their analysis and objective reporting into merely play-by-play description, sort of like the old sports-announcers used to deliver over the radio.
Worse, the public is now – and without being warned and probably without realizing it – put in the position where the advocacies and the government itself are functioning as the used-car salesmen who will sell this thing to the ‘rube’ standing out on the lot.
And if some members of the public do realize what has subtly but seriously happened, then they now must assume the stance of being openly and clearly skeptical of claims being pressed upon them, and rightly so – you can’t say that the Framers were all that ‘optimistic’ about ‘government’ … after all, they caged it pretty carefully with their Constitution.
Yet this ‘merchandising and packaging’ and ‘pitching’ approach to public policy profoundly destabilizes the relationship between the Citizenry and the government. Rather than being the ultimate judges of the government, the Citizenry become the ‘marks’, the ‘rubes’, the ‘consumers’, the herd – and this cannot sustain a Constitutional polity. Not hardly.
And the selective skewing of a proposal to make it look like it will have no downside (except – yuck yuck! – to the ‘perps’) puts a necessarily false choice before the public: thus, in the Roberts Dissent, the choice is to either A) allow the police to be freed from the fundamental Constitutional restraint of having actually observed criminal behavior in exercising their official coercive power or B) allow a terrible event to happen.
When actually, the choice is much more complicated – if it is viewed without the selective filters and thus if it is viewed more accurately: Should the precedent of police deployment of their coercive authority – without the justification of observed criminal behavior – be permitted when A) it is at best possible that they might stop some terrible events from happening but B) at the certain cost of significantly weakening a classic Constitutional protection from the arbitrary deployment of the government police authority?
As in a sales pitch strategy, the precise objective of the supporters is to prevent any but ‘positive’ thinking about what they wish to ‘sell’. Thus their plan must be seen only in a best-case light and without negative consequences; the victims must be seen as pure and outrageously wronged; and conversely – and with equally stern strategic necessity – the designated ‘perp’ must be seen only in the most vividly worst-case light.
And – worse – any hesitation or desire to examine any of the foregoing in the pitch must be instantly discredited as ‘insensitive’ or some such. This is simply the adaptation of the used-car sales handbook about how to deal with the family member or family friend who stands there wanting to have the hood opened and to look at some key indicators of the vehicle’s serviceability. (Example: “I suppose we could open the hood, if we really didn’t care whether you had the means to go and get your baby the fresh milk she so deeply needs, folks – since that’s what your brother-in-law is pretty much saying he doesn’t care about ….” That sort of thing.)
You can see how any effort at mature and rational assessment of the vehicle and any deliberation about purchasing it is going to be derailed and indeed snuffed out.
And the same thing is true in matters of grave and large national import, where public opinion is similarly manipulated.
Worse, while a family only buys a used car once in great while, such ‘sales techniques’ have been deployed against the American Citizenry almost continuously for the past several decades.
Which means that a lot of folks have either gotten used to this sort of thing (normalizing the abnormal, you might say) or else now have grown up with this type of thing and assume that it’s just the normal way ‘democratic politics’ works. And may well have lost, or never have learned, how to analyze carefully and maturely deliberate about a proposal which requires them to make some sort of choice or decision.
Which is a hugely dangerous state of civic affairs. If an increasing percentage of the Citizenry can neither analyze nor assess nor deliberate, then they will rely on the more primitive human capacities to choose by ‘feeling’ alone – and sustaining a Constitutional Republic requires a mature and competent Citizenry. Otherwise the liberty of The People will be undermined by the forces of authoritarianism, who may very well justify their actions by saying that since there is no competent People, there is no need for a genuine Constitutional Republic.
In these matters, ‘good intentions’ are not enough. A baaad plan or a baaad way of getting it accepted (of making the sale, as it were) cannot be made ‘good’ simply by the fact that those who ‘sold’ it really meant well and were trying to address a real problem.
The iron rule of selling is to make the sale – everything else can be ‘worked out’ later.
But this cannot be the underlying principle in the conduct of public business and in the formulation of public policy and in the passing of legislation and the making of laws.
The People has every right to expect – and would fail in its duty if it did not expect – that every law, like the projected flight of an airliner, is carefully considered beforehand, and not approved until the concept, the plan, and the execution were considered thoroughly.
The concept, therefore, of ‘expressive law’ – that it’s OK to pass a bad law if it’s going to ‘send a great message’ and that once the law is passed then ‘it’s the courts’ problem’ (and the defendants caught up in it?) … this concept must be expunged from the law schools and from standard-operating procedure on Capitol Hill and in legislatures around the country.
Somehow the Constitution – its spirit and ethos even more than its letter – has become a neglected Party in legislation and (too often, alas) in jurisprudence. I am almost tempted to suggest that like a minor child in a custody dispute between two adults, the Constitution should have a special representative appointed to protect its interests in any official proceedings.
But it goes deeper than that. The Constitutional vision itself is based upon the idea that The People will be largely comprised of mature, serious, sober individuals who have handled responsibility in their lives and are willing and able to take on the added responsibility of preserving a democracy and a Republic.
A culture in which a) ‘responsibility’ and b) the willingness to achieve the competence necessary to discharge a responsibility are considered ‘quaint’ or even ‘oppressive’, or any other of half a hundred other epithets … such a culture is not going to shape individuals competent to be Citizens in the sense that that capital letter requires.
No Citizens, no need for a Constitution and a Republic.
And an increasingly incompetent public, no longer effectively able to be a Citizenry, will require more and more assistance, and be willing to tolerate any amount of governmental authority’s expansion and control over every aspect of life.
You see where things can go.
And why there is a fierce urgency to now.
And why these SO laws must command our concern: they are the products of some hugely and deeply baaad trends in American policy and polity and in the very ability of Americans to exercise ultimate authority over their government and the legislation it churns out.
I think you can see – in a tactic that dates back almost 30 years and predates even the McMartin Pre-School cases of the early 1980s – what happens when a situation is ‘selectively’ presented to the public by an advocacy for the purposes of eliciting public support or approval (which almost always requires the pre-step of igniting public fear or public rage – never a thing to be undertaken lightly).
In both the MADD Brief (presumably ‘liberal’) and Chief Justice’s Dissent (avowedly ‘conservative’), we see a selective ignoring of any downside or negative consequences to their desired outcome. Thus MADD emphasizes (using inaccurate imagery as well as inflammatory vocabulary) the ‘violent crime’ without mentioning that the worst-case outcome is only potential; the Dissent – and from the most senior jurist in the nation – conducts an analysis that either fails to consider or willfully ignores the possibly (or probable) negative consequences to the Constitution and the Constitutional ethos.
This type of ‘presentation’ mimics, as I have mentioned in other Posts, the corporate and certainly military-industrial practices of ‘selling’: give an exaggerated view of the problem that your product or service is designed to ‘solve’; then give a worst-case scenario of what happens if the problem continues at this level of threat or damage; then give a best-case scenario of what will happen if your product or service is purchased.
This is selling, and this is how it’s done. Let the buyer beware and these are the hazards of a commercially-oriented culture and civilization.
BUT: this approach to things has migrated to law and policy, to legislation and to law enforcement. And this unleashes a legion of new troubles.
Legislators and public opinion are stampeded into a highly emotional state; so much so that they overlook the un-mentioned ‘downside’ to the pitch: negative consequences, intended or unintended, and their degree of possibility or probability.
Given vivid ‘stories’ and easily digestible (though wayyyyy too simplified, good-vs-evil) plotlines, the media fall into the lazy habits of turning their analysis and objective reporting into merely play-by-play description, sort of like the old sports-announcers used to deliver over the radio.
Worse, the public is now – and without being warned and probably without realizing it – put in the position where the advocacies and the government itself are functioning as the used-car salesmen who will sell this thing to the ‘rube’ standing out on the lot.
And if some members of the public do realize what has subtly but seriously happened, then they now must assume the stance of being openly and clearly skeptical of claims being pressed upon them, and rightly so – you can’t say that the Framers were all that ‘optimistic’ about ‘government’ … after all, they caged it pretty carefully with their Constitution.
Yet this ‘merchandising and packaging’ and ‘pitching’ approach to public policy profoundly destabilizes the relationship between the Citizenry and the government. Rather than being the ultimate judges of the government, the Citizenry become the ‘marks’, the ‘rubes’, the ‘consumers’, the herd – and this cannot sustain a Constitutional polity. Not hardly.
And the selective skewing of a proposal to make it look like it will have no downside (except – yuck yuck! – to the ‘perps’) puts a necessarily false choice before the public: thus, in the Roberts Dissent, the choice is to either A) allow the police to be freed from the fundamental Constitutional restraint of having actually observed criminal behavior in exercising their official coercive power or B) allow a terrible event to happen.
When actually, the choice is much more complicated – if it is viewed without the selective filters and thus if it is viewed more accurately: Should the precedent of police deployment of their coercive authority – without the justification of observed criminal behavior – be permitted when A) it is at best possible that they might stop some terrible events from happening but B) at the certain cost of significantly weakening a classic Constitutional protection from the arbitrary deployment of the government police authority?
As in a sales pitch strategy, the precise objective of the supporters is to prevent any but ‘positive’ thinking about what they wish to ‘sell’. Thus their plan must be seen only in a best-case light and without negative consequences; the victims must be seen as pure and outrageously wronged; and conversely – and with equally stern strategic necessity – the designated ‘perp’ must be seen only in the most vividly worst-case light.
And – worse – any hesitation or desire to examine any of the foregoing in the pitch must be instantly discredited as ‘insensitive’ or some such. This is simply the adaptation of the used-car sales handbook about how to deal with the family member or family friend who stands there wanting to have the hood opened and to look at some key indicators of the vehicle’s serviceability. (Example: “I suppose we could open the hood, if we really didn’t care whether you had the means to go and get your baby the fresh milk she so deeply needs, folks – since that’s what your brother-in-law is pretty much saying he doesn’t care about ….” That sort of thing.)
You can see how any effort at mature and rational assessment of the vehicle and any deliberation about purchasing it is going to be derailed and indeed snuffed out.
And the same thing is true in matters of grave and large national import, where public opinion is similarly manipulated.
Worse, while a family only buys a used car once in great while, such ‘sales techniques’ have been deployed against the American Citizenry almost continuously for the past several decades.
Which means that a lot of folks have either gotten used to this sort of thing (normalizing the abnormal, you might say) or else now have grown up with this type of thing and assume that it’s just the normal way ‘democratic politics’ works. And may well have lost, or never have learned, how to analyze carefully and maturely deliberate about a proposal which requires them to make some sort of choice or decision.
Which is a hugely dangerous state of civic affairs. If an increasing percentage of the Citizenry can neither analyze nor assess nor deliberate, then they will rely on the more primitive human capacities to choose by ‘feeling’ alone – and sustaining a Constitutional Republic requires a mature and competent Citizenry. Otherwise the liberty of The People will be undermined by the forces of authoritarianism, who may very well justify their actions by saying that since there is no competent People, there is no need for a genuine Constitutional Republic.
In these matters, ‘good intentions’ are not enough. A baaad plan or a baaad way of getting it accepted (of making the sale, as it were) cannot be made ‘good’ simply by the fact that those who ‘sold’ it really meant well and were trying to address a real problem.
The iron rule of selling is to make the sale – everything else can be ‘worked out’ later.
But this cannot be the underlying principle in the conduct of public business and in the formulation of public policy and in the passing of legislation and the making of laws.
The People has every right to expect – and would fail in its duty if it did not expect – that every law, like the projected flight of an airliner, is carefully considered beforehand, and not approved until the concept, the plan, and the execution were considered thoroughly.
The concept, therefore, of ‘expressive law’ – that it’s OK to pass a bad law if it’s going to ‘send a great message’ and that once the law is passed then ‘it’s the courts’ problem’ (and the defendants caught up in it?) … this concept must be expunged from the law schools and from standard-operating procedure on Capitol Hill and in legislatures around the country.
Somehow the Constitution – its spirit and ethos even more than its letter – has become a neglected Party in legislation and (too often, alas) in jurisprudence. I am almost tempted to suggest that like a minor child in a custody dispute between two adults, the Constitution should have a special representative appointed to protect its interests in any official proceedings.
But it goes deeper than that. The Constitutional vision itself is based upon the idea that The People will be largely comprised of mature, serious, sober individuals who have handled responsibility in their lives and are willing and able to take on the added responsibility of preserving a democracy and a Republic.
A culture in which a) ‘responsibility’ and b) the willingness to achieve the competence necessary to discharge a responsibility are considered ‘quaint’ or even ‘oppressive’, or any other of half a hundred other epithets … such a culture is not going to shape individuals competent to be Citizens in the sense that that capital letter requires.
No Citizens, no need for a Constitution and a Republic.
And an increasingly incompetent public, no longer effectively able to be a Citizenry, will require more and more assistance, and be willing to tolerate any amount of governmental authority’s expansion and control over every aspect of life.
You see where things can go.
And why there is a fierce urgency to now.
And why these SO laws must command our concern: they are the products of some hugely and deeply baaad trends in American policy and polity and in the very ability of Americans to exercise ultimate authority over their government and the legislation it churns out.
Saturday, October 24, 2009
"VIRGINIA v HARRIS"
This Supreme Court case has made some headlines since Chief Justice Roberts, joined by Justice Scalia, Dissented from the Decision of the Court not to review the case and to let it stand as decided by the Supreme Court of Virginia.
It’s not an SO case, but it struck me as a similar dynamic.
The individual was the subject of an anonymous phone tip to the police (not on a 911 line apparently, and there are no tapes of it) about a man in a “striped shirt” and a certain type of car with a certain partial plate driving down a certain street and that he was intoxicated.
A police car happened to be nearby and responded to the radio call that went out. That officer saw such a car on that street, turned around and quietly followed it. The car braked before arriving at an “uncontrolled intersection” (no lights or signs in any direction) and a bit further on braked when approaching a red light – which the officer decided was “erratic”.
Apparently having noticed the police car behind him the driver pulled over to let it pass, whereupon the officer put on his warning lights, sounded his siren, and made a traffic stop. The driver appeared intoxicated to the officer when forced to step out of the car.
The defendant/driver moved to have the evidence of his intoxication suppressed since the stop itself was a violation of Fourth Amendment rights against unreasonable search and seizure. The trial court refused and he was convicted. He appealed to the State Appeals Court, and that Court upheld the trial court. He appealed to the Virginia Supreme Court and that Court reversed the conviction.
At which point the Commonwealth of Virginia appealed to the US Supreme Court.
The US Supreme Court refused to review, basically leaving the case as the Virginia Supreme Court had handled it.
Since CJ Roberts appears in his Dissent to echo much of what was proposed in the Amicus Curiae Brief from Mothers Against Drunk Driving, I’ll reference a few points made in the MADD Amicus Brief, and then the Roberts Dissent.
The question is whether police can make traffic stops on the basis of anonymous tips, even when they themselves have not observed any offending behavior.
The MADD position is that such ‘anonymous tips’ are a vital tool in their thirty-year struggle against drunk-driving (DD). Their mission is “to stop drunk driving, support the victims of this violent crime, and prevent underage drinking”. All worthy objectives, even that interesting twist that drunk-driving is a violent crime.
They classify DD as “a serious national public health hazard”, in addition to it being a violent crime.
Further, they assert that “by requiring law enforcement officials to personally observe erratic driving before acting on an anonymous tip, the decision of the Virginia Supreme Court dangerously limits law enforcement officials’ ability to intervene and stop drunk driving before an accident occurs, and undermines government efforts to deter drunk driving”.
This, I think, illustrates the nub of the problem: is there a crime (or health hazard) so urgent and violently dangerous that the police power may act without any observed evidence in order to prevent it? And more ominously to the point: is there any crime or health hazard so urgent and violently dangerous that the police power can be trusted with “flexibility” in the matter?
Because let’s not be deceived by what’s at stake here: the Constitutional integrity and viability of the Framers vision and the United States as a Constitutional Republic. Yes, the scenes of a particular crime are grisly and enraging, but no analysis can stop there. To rework the old Chinese proverb: it is easy to perceive a great tree falling, harder to perceive the forest growing. The ‘forest’ is the Constitutional integrity of the Republic.
You can quickly see where things can go in a Constitutional Republic when the police are allowed to deploy their authority without any evidence.
We arrive here at ‘preventive law’, the theory that if a type of crime is bad, then it’s better to prevent it than to clean up after it.
This opens all sorts of watertight doors deep within the hull of Our great Ship of Liberty. First, you have the police able to inject their authority without any observable proof of criminal behavior. Second, you get a ‘type of crime’ that can quickly start to expand: MADD began its work in 1980 and since then the country has seen drugs, domestic violence, and sex-offenses added to the list of crimes that for one reason or another are ‘too bad’ not to try to prevent. (You may come up with some others.)
Thus it is considered somehow negligent for the government and the courts to force an officer to wait until he witnesses a crime in one of these categories.
I have always felt that this position doesn’t really understand what is at stake in all of this. Nobody can doubt the awfulness of certain crimes, and frankly the inherent riskiness of living on this planet. The sensible person takes measures to protect him/herself and prays to God, which is not a bad way to go through life.
But to expand the government police authority to fill in for a God who apparently doesn’t care to ‘prevent’ or ‘stop’ such crimes – now that does not strike me as good Constitutional thought. Crime has always been with us – it was there in the Founders’ era as much as it is with us now. Yet their concern was that the Citizenry be protected as much as possible from the invasive, coercive, and omnivorous tendency of governments in their police power.
(Of course, the Founders presumed that the Citizenry, as mature or maturing individuals, would be continually striving to improve their competence as decent human beings. But if you want to make the case that that is no longer what Americans see themselves as doing, then the solution must be to recover a nation-wide sense of maturity, because otherwise we are going to have a country where the Citizens become increasingly less morally and ethically competent and the government police power expands to fill the gap by forcing them to do under penalty of law what they no longer know how to do as an expression of personal moral and ethical maturing.)
The police are characterized in their role of “protecting the public” – but this is a hugely fraught comment. EVERYbody is a member of ‘the public’, are they not? Unless you are presuming that there is ‘the public’ and then there are ‘criminals’ – but that is an insidious separation of ‘sheep’ and ‘goats’ that undermines the Constitution and the national community. We are all, after all, members of the ‘public’, whether at some point we are on the committing or the receiving end of a crime (see the immediately previous Post about every American probably committing 3 Federal felonies a day).
And from May of 1980 when MADD first characterized only drunk-drivers as such non-members (or enemies) of ‘the public’, the list has now grown to include assorted drug-users or providers (a rather large fraction of the population), ‘batterers’ (as that term has been hugely expanded in domestic violence usage*), and ‘sex offenders’ (now about 1 in every 200 males).
Second, if the public are now to be empowered to get people stopped by police who themselves have observed no criminal behavior, then you are on the road to something that the SO community is now seeing: ‘volunteer’ organizations (and some for-profit businesses) who are seeking government funding and authorization to do their own ‘sex offender policing’. Which takes matters in a direction that, admittedly, MADD probably never imagined. But that’s how it is sometimes: a potentially dangerous idea gets traction because its deepr and darker implications are ignored because of the 'emergency' and the 'good intentions', and then other folks or groups come along and ‘improve’ upon it.
The police, MADD notes, “have sought the greatest flexibility to deter and intercept drunk drivers before they cause accidents”. And I can understand that. But we cannot forget the other side of the equation: flexibility in going after ‘certain crimes’ is always a dynamic thrust that seeks ever to expand itself; and a free People cannot remain free if they are living in a police state, no matter how benevolent. And in the American vision, there is no such thing as a ‘benevolent’ police state.
Of course, as I’ve said, the first foundation of the freedom of the Citizens is their own individual commitment to living their lives responsibly and maturely. THAT, naturally, is precisely not what the message has been for the past 40 years or so. Instead the message has been: do what you want because it’s your life and nobody can tell you how to live it.
Perhaps then all of this ‘preventive’ policing stuff – seen, as here with CJ Roberts, at the highest levels – was sparked by the everything-is-equal and I-can-do-whatever-I-want strains in much popular philosophy.
But as I’ve said, if you’re going to have the police-power increasingly substitute for the moral and ethical maturity of the Citizens, then you’re on the road to a police state.
And in that regard, the comment in the Brief that “the decision below undermines such programs by mandating that law enforcement officials personally observe narrowly-defined evidence of drunk-driving before they can act on an anonymous tip” must command attention. The programs referred to are those whereby drivers or ‘the public’ can call in what they think is a drunk driver and the police, merely on the basis of that ‘report’ can make a stop.
I don’t think it’s ever a good idea to get the government police power out of the habit of hewing to personally observing narrowly-defined evidence – and a) I think I am in agreement with the Framers on this point and b) the SO community knows full well what happens when narrow and careful defining goes out the window for the sake of ‘the emergency’.
Which is not to say that MADD is up to bad things here – I concur fully with their concerns. But it’s a dangerous thing – no matter how good your intentions – to loosen up the procedures and the laws and the principles that boundary the government authority so that it does not engorge and invade the civil space.
Finally, the Brief urges that “the harm inherent in drunk or erratic [notice the expansion here] driving can best be prevented” if the police are allowed to follow up on an anonymous tip. But again, if you are going to set up a government whose primary responsibility is to “prevent harm”, then it will need the powers formerly ascribed to God and it will of necessity have to be even more intrusive than the Deity on all but His worst days.
The purpose of the government is to “preserve, protect, and defend” the Constitution – not to protect every citizen from every harm. And while I am not as certain about the oath taken by police personnel, I am going to imagine it’s about protecting the State’s constitution.
And if you say that it is only the uniquely dangerous ‘harm’ posed by the drunk-driver, I would respond that while that may have been so in 1980, yet now the list of such “uniquely” dangerous harms justifying the punching of a hole in the Constitutional firewall has now expanded exponentially. (And as I tried to demonstrate in my mini-series on the New Jersey Poritz case, with very little clear thinking.) And it’s still expanding; so much so that I think we’d have to consider it a trend.
Chief Justice Roberts had wanted the Court to review the Virginia Supreme Court’s overturn of the conviction. Although he couldn’t convince enough of the other Justices, he made his preferences clear in his 5-page Dissent.
He quotes the figures and statistics conveniently rendered simple but vivid (1 fatality every 40 minutes in the US) and that DD is a serious and potentially deadly crime; then he moves right in and says that the Court’s refusal to consider the case “will undermine such efforts to get drunk drivers off the road”.
He goes further: “The imminence of the dangers posed by drunk-drivers exceeds that at issue in other types of cases”. Perhaps it escaped his mind that there are all those SO laws that the Court has had to deal with. Once again, the ‘emergency’ that ‘justifies’ the expansion of government power – although I would like to know what he thinks constitutes the greater threat.
He concludes that “the conflict is clear and the stakes are high” – with which I am in complete agreement. But I don’t think he quite grasps the “stakes” the way I’ve discussed them above: the integrity of the Constitutional structure and the robustness of the Constitutional vision.
He grudgingly allows that “maybe the decision of the Virginia Supreme Court was correct” and “if so, then the dangerous consequences of this rule are unavoidable”. Again, he’s only talking about the consequences on one side of the equation, not on both: the health and vitality of the Constitution itself will apparently suffer no ill or dangerous consequences from having well-intentioned holes chopped here and there; he seems to imagine that there will be no damage to the Constitutional ethos. Does he think it is permanently invulnerable?
I wonder sometimes if these 'law and order' types aren't even more dangerous to the Constitution than the stereotypical liberal-elites who want what is basically a benevolent dictatorship run by themselves, the elites who 'get it'. The National Security State or the National Nanny State ... or the two of them fused together into some monstrous hydra-headed feedback-loop.
And then he finishes up his document with a blatantly rhetorical call to the gallery: “It will be difficult for an officer to explain to a family that the police had had a tip that the driver of the other car was drunk, but they were powerless to pull him over.”
Rather, he accuses the Court, every drunk driver will be allowed “one free swerve”. This is one of those cutesy PR-soundbites that smells strongly of the glue hastily lathered on to hold it together. Some drunk drivers will get many free swerves (can you say ‘Chappaquiddick’?) Some will kill others, some only themselves. And many will go through life driving drunk and never coming to the law’s attention (this is not a minimization or any sort of approval on my part that DD is somehow ‘OK’).
What’s amazing here is that this jurist – and Justice Scalia who concurs with him – are putatively ‘conservatives’. And yet they are willing to knock down the Constitution to get at ‘crime’ (although only that one reely reely uniquely baaaad crime; or those two; or those three; or those four; or …).**
Who can forget Robert Bolt’s character of Thomas More in “A Man for All Seasons”, saying that if we knocked down all the laws in England to get at the devil, and then the devil turned on us, what would protect us then – the laws being all flat?
This is a problem that the SO community knows from first-hand.
NOTES
*In this regard, let's also recall that in current domestic-violence law one person, with no corroborating evidence, can have the police remove a person from house, home, access to children and other property. While a mandatory Hearing is usually scheduled within a period of a week or ten days (!) there exists no guarantee that the individual will be restored.
In both Soviet and Nazi law enforcement, the practice of 'delation' was considered perfectly valid: one citizen could turn in another citizen to the security police with no evidence. As ex-Gestapo and ex-Stasi officers later admitted, they could not keep up with the number of citizens eagerly turning in their neighbors, friends, rivals, community oddlings, and even in-laws and family members. Did you think it can't happen ... ummm ... anywhere else?
**But when you get right down to it, it has to be admitted that both of MADD’s and thus the Chief Justice’s main images are inapposite, and in a way so favorable to their cause that both images become highly suspect.
The idea that DD is a “violent crime” is not really accurate. It may indeed be a potentially violent crime, and in and of itself driving while intoxicated is a crime. But the damage that it can cause and upon which the ‘emergency’ is based is only a possible outcome, not a guaranteed outcome (say, for example, like firing an automatic weapon at pointblank range into a crowd in a full move theatre).
This of course brings matters to the stage of reasonable difference among prudent and reasonable persons as to just how much of the Constitution should be jeopardized in a tradeoff enlargement of police power in order to arrest the perpetrator. And let’s not be deceived: the intent in all this is not to prevent the crime (DD) but to prevent the possible consequence of the drunk-driver killing somebody else (causing his/ her own death solely … that doesn’t appear to be of such concern).
So you are into the matter of preventative policing (sort of similar to preventative war, when you come to think of it) as well as police-arresting without have observed any criminal behavior.
Just where there should be a whole lotta discussion, there was very little: ‘emergencies’ make great politics and great ‘stories’ for the media … and that’s pretty much what it’s all about now.
Second, a drunk driver in a vehicle is not like a ‘ticking bomb’ (the old horror image from the age of anarchist agitation in the late 1800s). A bomb is a thing which, once activated, is made to and guaranteed to explode – presumably with great loss of life. And yet again, a drunk behind the wheel is not made to nor guaranteed to cause a lethal or fatal MVA.
(Please let there be no doubts here: drunken driving is, in my view, a monstrous legal and moral failing and persons prone to doing it must be shown the error of their ways – but we can’t be shunting all this off on the police just because we’re a culture that doesn’t want to think of itself as ‘directive’ or ‘setting boundaries’; at the rate we don’t want to be ‘directive’ or ‘set boundaries’ but still want at least some amount of ‘law and order’, then we are riding right into the Valley of the Police State, which is a process that the government of itself will probably do nothing to prevent. Indeed, to look at the Roberts-Scalia Dissent, and a whole lotta judicial ‘reasoning’ in SO matters, it looks like the government will be happy to grade and pave that particular road to hell. )
ADDENDUM
I recently watched a dvd of John Ford's 1930s classic "Abe Lincoln in Illinois" with Henry Fonda.
You may recall the story: Lincoln the youngish small-town lawyer defends two brothers who are accused of killing a local - but popular - roughneck; the witness against them is another local -but popular - roughneck. Eager to get a conviction while minimizing costs and time, the State's Attorney urges the mother of the two to name one of her sons the murderer and then the other will be set free. It was a stunningly awful choice to impose upon any mother and you can feel Ford's own outrage at his accumulated knowledge and experience of prosecutorial ways.
Lincoln, famously, saves the day when he gets both brothers off by pulling out an almanac that proves there was no moonlight the night that the accusant roughneck claimed to see the brothers kill the first roughneck; and, indeed, the accuser was the killer after all.
Prosecutors have always had this hydra-headed problem: they need to get convictions quickly and efficiently, they don't get a lot of money for investigations, and since there's such a caseload then a certain amount of 'business haggling' has to be deployed in the game just in order to keep the system's head above water.
Which is cold but clear.
But it doesn't get them off a second hook: folks like to think that when it comes to 'crime', the 'law' is on the level and the 'perp' is the only bad guy onstage - and when folks start realizing just how dark a path a prosecutor might be willing to travel (you don't think Cheney thought that idea up himself, do you?) then they remember that traditionally in American law and politics, the heart of the public mostly went out to the underdog, which was whomever the government was trying to put in the can.
But then came 'the victim' - and while this was a movement and concept emanating from the ostensibly liberal Left, it quickly became clear to the government itself just how useful 'a victim' could be: 'the victim' could solve the government's Abe-Lincoln-in-Illinois problem: now the government would have a heart-rending face to put up against the defendant's 'Ma'.
I don't think this was the original intent of the early victim-advocacy folks. But the government, I think, made an offer they couldn't refuse: go in front of the cameras for us, and we will give you role and stature and clout, and even funding.
And then came 'the children'.
It’s not an SO case, but it struck me as a similar dynamic.
The individual was the subject of an anonymous phone tip to the police (not on a 911 line apparently, and there are no tapes of it) about a man in a “striped shirt” and a certain type of car with a certain partial plate driving down a certain street and that he was intoxicated.
A police car happened to be nearby and responded to the radio call that went out. That officer saw such a car on that street, turned around and quietly followed it. The car braked before arriving at an “uncontrolled intersection” (no lights or signs in any direction) and a bit further on braked when approaching a red light – which the officer decided was “erratic”.
Apparently having noticed the police car behind him the driver pulled over to let it pass, whereupon the officer put on his warning lights, sounded his siren, and made a traffic stop. The driver appeared intoxicated to the officer when forced to step out of the car.
The defendant/driver moved to have the evidence of his intoxication suppressed since the stop itself was a violation of Fourth Amendment rights against unreasonable search and seizure. The trial court refused and he was convicted. He appealed to the State Appeals Court, and that Court upheld the trial court. He appealed to the Virginia Supreme Court and that Court reversed the conviction.
At which point the Commonwealth of Virginia appealed to the US Supreme Court.
The US Supreme Court refused to review, basically leaving the case as the Virginia Supreme Court had handled it.
Since CJ Roberts appears in his Dissent to echo much of what was proposed in the Amicus Curiae Brief from Mothers Against Drunk Driving, I’ll reference a few points made in the MADD Amicus Brief, and then the Roberts Dissent.
The question is whether police can make traffic stops on the basis of anonymous tips, even when they themselves have not observed any offending behavior.
The MADD position is that such ‘anonymous tips’ are a vital tool in their thirty-year struggle against drunk-driving (DD). Their mission is “to stop drunk driving, support the victims of this violent crime, and prevent underage drinking”. All worthy objectives, even that interesting twist that drunk-driving is a violent crime.
They classify DD as “a serious national public health hazard”, in addition to it being a violent crime.
Further, they assert that “by requiring law enforcement officials to personally observe erratic driving before acting on an anonymous tip, the decision of the Virginia Supreme Court dangerously limits law enforcement officials’ ability to intervene and stop drunk driving before an accident occurs, and undermines government efforts to deter drunk driving”.
This, I think, illustrates the nub of the problem: is there a crime (or health hazard) so urgent and violently dangerous that the police power may act without any observed evidence in order to prevent it? And more ominously to the point: is there any crime or health hazard so urgent and violently dangerous that the police power can be trusted with “flexibility” in the matter?
Because let’s not be deceived by what’s at stake here: the Constitutional integrity and viability of the Framers vision and the United States as a Constitutional Republic. Yes, the scenes of a particular crime are grisly and enraging, but no analysis can stop there. To rework the old Chinese proverb: it is easy to perceive a great tree falling, harder to perceive the forest growing. The ‘forest’ is the Constitutional integrity of the Republic.
You can quickly see where things can go in a Constitutional Republic when the police are allowed to deploy their authority without any evidence.
We arrive here at ‘preventive law’, the theory that if a type of crime is bad, then it’s better to prevent it than to clean up after it.
This opens all sorts of watertight doors deep within the hull of Our great Ship of Liberty. First, you have the police able to inject their authority without any observable proof of criminal behavior. Second, you get a ‘type of crime’ that can quickly start to expand: MADD began its work in 1980 and since then the country has seen drugs, domestic violence, and sex-offenses added to the list of crimes that for one reason or another are ‘too bad’ not to try to prevent. (You may come up with some others.)
Thus it is considered somehow negligent for the government and the courts to force an officer to wait until he witnesses a crime in one of these categories.
I have always felt that this position doesn’t really understand what is at stake in all of this. Nobody can doubt the awfulness of certain crimes, and frankly the inherent riskiness of living on this planet. The sensible person takes measures to protect him/herself and prays to God, which is not a bad way to go through life.
But to expand the government police authority to fill in for a God who apparently doesn’t care to ‘prevent’ or ‘stop’ such crimes – now that does not strike me as good Constitutional thought. Crime has always been with us – it was there in the Founders’ era as much as it is with us now. Yet their concern was that the Citizenry be protected as much as possible from the invasive, coercive, and omnivorous tendency of governments in their police power.
(Of course, the Founders presumed that the Citizenry, as mature or maturing individuals, would be continually striving to improve their competence as decent human beings. But if you want to make the case that that is no longer what Americans see themselves as doing, then the solution must be to recover a nation-wide sense of maturity, because otherwise we are going to have a country where the Citizens become increasingly less morally and ethically competent and the government police power expands to fill the gap by forcing them to do under penalty of law what they no longer know how to do as an expression of personal moral and ethical maturing.)
The police are characterized in their role of “protecting the public” – but this is a hugely fraught comment. EVERYbody is a member of ‘the public’, are they not? Unless you are presuming that there is ‘the public’ and then there are ‘criminals’ – but that is an insidious separation of ‘sheep’ and ‘goats’ that undermines the Constitution and the national community. We are all, after all, members of the ‘public’, whether at some point we are on the committing or the receiving end of a crime (see the immediately previous Post about every American probably committing 3 Federal felonies a day).
And from May of 1980 when MADD first characterized only drunk-drivers as such non-members (or enemies) of ‘the public’, the list has now grown to include assorted drug-users or providers (a rather large fraction of the population), ‘batterers’ (as that term has been hugely expanded in domestic violence usage*), and ‘sex offenders’ (now about 1 in every 200 males).
Second, if the public are now to be empowered to get people stopped by police who themselves have observed no criminal behavior, then you are on the road to something that the SO community is now seeing: ‘volunteer’ organizations (and some for-profit businesses) who are seeking government funding and authorization to do their own ‘sex offender policing’. Which takes matters in a direction that, admittedly, MADD probably never imagined. But that’s how it is sometimes: a potentially dangerous idea gets traction because its deepr and darker implications are ignored because of the 'emergency' and the 'good intentions', and then other folks or groups come along and ‘improve’ upon it.
The police, MADD notes, “have sought the greatest flexibility to deter and intercept drunk drivers before they cause accidents”. And I can understand that. But we cannot forget the other side of the equation: flexibility in going after ‘certain crimes’ is always a dynamic thrust that seeks ever to expand itself; and a free People cannot remain free if they are living in a police state, no matter how benevolent. And in the American vision, there is no such thing as a ‘benevolent’ police state.
Of course, as I’ve said, the first foundation of the freedom of the Citizens is their own individual commitment to living their lives responsibly and maturely. THAT, naturally, is precisely not what the message has been for the past 40 years or so. Instead the message has been: do what you want because it’s your life and nobody can tell you how to live it.
Perhaps then all of this ‘preventive’ policing stuff – seen, as here with CJ Roberts, at the highest levels – was sparked by the everything-is-equal and I-can-do-whatever-I-want strains in much popular philosophy.
But as I’ve said, if you’re going to have the police-power increasingly substitute for the moral and ethical maturity of the Citizens, then you’re on the road to a police state.
And in that regard, the comment in the Brief that “the decision below undermines such programs by mandating that law enforcement officials personally observe narrowly-defined evidence of drunk-driving before they can act on an anonymous tip” must command attention. The programs referred to are those whereby drivers or ‘the public’ can call in what they think is a drunk driver and the police, merely on the basis of that ‘report’ can make a stop.
I don’t think it’s ever a good idea to get the government police power out of the habit of hewing to personally observing narrowly-defined evidence – and a) I think I am in agreement with the Framers on this point and b) the SO community knows full well what happens when narrow and careful defining goes out the window for the sake of ‘the emergency’.
Which is not to say that MADD is up to bad things here – I concur fully with their concerns. But it’s a dangerous thing – no matter how good your intentions – to loosen up the procedures and the laws and the principles that boundary the government authority so that it does not engorge and invade the civil space.
Finally, the Brief urges that “the harm inherent in drunk or erratic [notice the expansion here] driving can best be prevented” if the police are allowed to follow up on an anonymous tip. But again, if you are going to set up a government whose primary responsibility is to “prevent harm”, then it will need the powers formerly ascribed to God and it will of necessity have to be even more intrusive than the Deity on all but His worst days.
The purpose of the government is to “preserve, protect, and defend” the Constitution – not to protect every citizen from every harm. And while I am not as certain about the oath taken by police personnel, I am going to imagine it’s about protecting the State’s constitution.
And if you say that it is only the uniquely dangerous ‘harm’ posed by the drunk-driver, I would respond that while that may have been so in 1980, yet now the list of such “uniquely” dangerous harms justifying the punching of a hole in the Constitutional firewall has now expanded exponentially. (And as I tried to demonstrate in my mini-series on the New Jersey Poritz case, with very little clear thinking.) And it’s still expanding; so much so that I think we’d have to consider it a trend.
Chief Justice Roberts had wanted the Court to review the Virginia Supreme Court’s overturn of the conviction. Although he couldn’t convince enough of the other Justices, he made his preferences clear in his 5-page Dissent.
He quotes the figures and statistics conveniently rendered simple but vivid (1 fatality every 40 minutes in the US) and that DD is a serious and potentially deadly crime; then he moves right in and says that the Court’s refusal to consider the case “will undermine such efforts to get drunk drivers off the road”.
He goes further: “The imminence of the dangers posed by drunk-drivers exceeds that at issue in other types of cases”. Perhaps it escaped his mind that there are all those SO laws that the Court has had to deal with. Once again, the ‘emergency’ that ‘justifies’ the expansion of government power – although I would like to know what he thinks constitutes the greater threat.
He concludes that “the conflict is clear and the stakes are high” – with which I am in complete agreement. But I don’t think he quite grasps the “stakes” the way I’ve discussed them above: the integrity of the Constitutional structure and the robustness of the Constitutional vision.
He grudgingly allows that “maybe the decision of the Virginia Supreme Court was correct” and “if so, then the dangerous consequences of this rule are unavoidable”. Again, he’s only talking about the consequences on one side of the equation, not on both: the health and vitality of the Constitution itself will apparently suffer no ill or dangerous consequences from having well-intentioned holes chopped here and there; he seems to imagine that there will be no damage to the Constitutional ethos. Does he think it is permanently invulnerable?
I wonder sometimes if these 'law and order' types aren't even more dangerous to the Constitution than the stereotypical liberal-elites who want what is basically a benevolent dictatorship run by themselves, the elites who 'get it'. The National Security State or the National Nanny State ... or the two of them fused together into some monstrous hydra-headed feedback-loop.
And then he finishes up his document with a blatantly rhetorical call to the gallery: “It will be difficult for an officer to explain to a family that the police had had a tip that the driver of the other car was drunk, but they were powerless to pull him over.”
Rather, he accuses the Court, every drunk driver will be allowed “one free swerve”. This is one of those cutesy PR-soundbites that smells strongly of the glue hastily lathered on to hold it together. Some drunk drivers will get many free swerves (can you say ‘Chappaquiddick’?) Some will kill others, some only themselves. And many will go through life driving drunk and never coming to the law’s attention (this is not a minimization or any sort of approval on my part that DD is somehow ‘OK’).
What’s amazing here is that this jurist – and Justice Scalia who concurs with him – are putatively ‘conservatives’. And yet they are willing to knock down the Constitution to get at ‘crime’ (although only that one reely reely uniquely baaaad crime; or those two; or those three; or those four; or …).**
Who can forget Robert Bolt’s character of Thomas More in “A Man for All Seasons”, saying that if we knocked down all the laws in England to get at the devil, and then the devil turned on us, what would protect us then – the laws being all flat?
This is a problem that the SO community knows from first-hand.
NOTES
*In this regard, let's also recall that in current domestic-violence law one person, with no corroborating evidence, can have the police remove a person from house, home, access to children and other property. While a mandatory Hearing is usually scheduled within a period of a week or ten days (!) there exists no guarantee that the individual will be restored.
In both Soviet and Nazi law enforcement, the practice of 'delation' was considered perfectly valid: one citizen could turn in another citizen to the security police with no evidence. As ex-Gestapo and ex-Stasi officers later admitted, they could not keep up with the number of citizens eagerly turning in their neighbors, friends, rivals, community oddlings, and even in-laws and family members. Did you think it can't happen ... ummm ... anywhere else?
**But when you get right down to it, it has to be admitted that both of MADD’s and thus the Chief Justice’s main images are inapposite, and in a way so favorable to their cause that both images become highly suspect.
The idea that DD is a “violent crime” is not really accurate. It may indeed be a potentially violent crime, and in and of itself driving while intoxicated is a crime. But the damage that it can cause and upon which the ‘emergency’ is based is only a possible outcome, not a guaranteed outcome (say, for example, like firing an automatic weapon at pointblank range into a crowd in a full move theatre).
This of course brings matters to the stage of reasonable difference among prudent and reasonable persons as to just how much of the Constitution should be jeopardized in a tradeoff enlargement of police power in order to arrest the perpetrator. And let’s not be deceived: the intent in all this is not to prevent the crime (DD) but to prevent the possible consequence of the drunk-driver killing somebody else (causing his/ her own death solely … that doesn’t appear to be of such concern).
So you are into the matter of preventative policing (sort of similar to preventative war, when you come to think of it) as well as police-arresting without have observed any criminal behavior.
Just where there should be a whole lotta discussion, there was very little: ‘emergencies’ make great politics and great ‘stories’ for the media … and that’s pretty much what it’s all about now.
Second, a drunk driver in a vehicle is not like a ‘ticking bomb’ (the old horror image from the age of anarchist agitation in the late 1800s). A bomb is a thing which, once activated, is made to and guaranteed to explode – presumably with great loss of life. And yet again, a drunk behind the wheel is not made to nor guaranteed to cause a lethal or fatal MVA.
(Please let there be no doubts here: drunken driving is, in my view, a monstrous legal and moral failing and persons prone to doing it must be shown the error of their ways – but we can’t be shunting all this off on the police just because we’re a culture that doesn’t want to think of itself as ‘directive’ or ‘setting boundaries’; at the rate we don’t want to be ‘directive’ or ‘set boundaries’ but still want at least some amount of ‘law and order’, then we are riding right into the Valley of the Police State, which is a process that the government of itself will probably do nothing to prevent. Indeed, to look at the Roberts-Scalia Dissent, and a whole lotta judicial ‘reasoning’ in SO matters, it looks like the government will be happy to grade and pave that particular road to hell. )
ADDENDUM
I recently watched a dvd of John Ford's 1930s classic "Abe Lincoln in Illinois" with Henry Fonda.
You may recall the story: Lincoln the youngish small-town lawyer defends two brothers who are accused of killing a local - but popular - roughneck; the witness against them is another local -but popular - roughneck. Eager to get a conviction while minimizing costs and time, the State's Attorney urges the mother of the two to name one of her sons the murderer and then the other will be set free. It was a stunningly awful choice to impose upon any mother and you can feel Ford's own outrage at his accumulated knowledge and experience of prosecutorial ways.
Lincoln, famously, saves the day when he gets both brothers off by pulling out an almanac that proves there was no moonlight the night that the accusant roughneck claimed to see the brothers kill the first roughneck; and, indeed, the accuser was the killer after all.
Prosecutors have always had this hydra-headed problem: they need to get convictions quickly and efficiently, they don't get a lot of money for investigations, and since there's such a caseload then a certain amount of 'business haggling' has to be deployed in the game just in order to keep the system's head above water.
Which is cold but clear.
But it doesn't get them off a second hook: folks like to think that when it comes to 'crime', the 'law' is on the level and the 'perp' is the only bad guy onstage - and when folks start realizing just how dark a path a prosecutor might be willing to travel (you don't think Cheney thought that idea up himself, do you?) then they remember that traditionally in American law and politics, the heart of the public mostly went out to the underdog, which was whomever the government was trying to put in the can.
But then came 'the victim' - and while this was a movement and concept emanating from the ostensibly liberal Left, it quickly became clear to the government itself just how useful 'a victim' could be: 'the victim' could solve the government's Abe-Lincoln-in-Illinois problem: now the government would have a heart-rending face to put up against the defendant's 'Ma'.
I don't think this was the original intent of the early victim-advocacy folks. But the government, I think, made an offer they couldn't refuse: go in front of the cameras for us, and we will give you role and stature and clout, and even funding.
And then came 'the children'.
Monday, October 19, 2009
CRIME GOES DOWN BUT
A short article at the “Reason” site this past week makes some interesting points.
“Violent crime is down in America, across the board, spanning two decades.” Thus the Justice Department earlier this month reporting “that the incidence of rape had hit a 20-year low”.
Ditto that “homicides are down, as are juvenile violence and crimes committed against children”.
And that “crime rates have been plummeting since the early 1990s to such an extent that explaining the drop has become something of an obsession among criminologists and sociologists”.
That much I think the SO community has already come to suspect.
Certainly the drop predates all the SO laws in the current mania and indeed the mania itself.
A skeptical turn of mind might be forgiven for imagining that 20 years ago, at the first sign of a decline in crime, the government eagerly jumped on any bandwagon that claimed it was outraged by this or that crime, simply to keep up the level of public fear. It’s a tactic that has worked well, after all, since at least 1948 and the Cold War: you can never go wrong politically by scaring the hell out of the American people and then promising to save and protect them.
And it used ‘the children’ somewhat as a front, as a guaranteed and instantaneous objection-suppressor; a gambit that has recently been deployed far less skillfully by some poor backwoods parents with a balloon and their darling boy. But they had picked up the idea, I would say, from some verrry high-level sources indeed.
But what is really news is that “since 2002 the percentage of the American public who think violent crime is on the rise has been increasing, even as the violent crime rates continue to fall”. (Until 2002 when terrorism – a form of crime – suddenly got the public worried and has continued to do so.)
Even more: “there was actually a drop in public worry about crime that began in 1992 and continued until 2002”. This was the period when the SO mania was brought to the boil by the Findings in the various State and Federal laws screaming concern over the emergency created by hordes of incorrigible monster stranger sex-offenders roaming the land, and upheld by far far too many courts. And yet the public was actually becoming less worried by crime during that period.
Now this is interesting indeed. And not at all consoling, from a Citizen’s point of view. Clearly the legislatures were not responding to “public outcry”, at least not as the term is normally construed. But again, perhaps the legislators were simply making common cause with any bandwagon that might help keep public fear whipped up – not that that thought is very consoling either.
So maybe the legislatures – State and Federal – were engaging in the practice of creating “expressive law”: make a law that will send a certain ‘message’, one that a particular pressure-group wants passed; whether the law itself is workable or Constitutional or even just or wise doesn’t matter; once it’s passed it’s the courts’ problem, although you can always tell the cameras that if there’s any ‘tweaking’ and ‘fine-tuning’ to be done, you’ll do it if the need arises. And then ‘move on’.
That sounds more probable, but insufficient somehow. I think it makes the legislators out to be the ‘victims’ (!) in the matter – the victims of the pressure groups.
And I don’t think that can be right. Governments by their nature tend to like public ‘fear’ – it keeps people in line and out of the way. Especially for a government that can’t really solve the huge and real problems facing its citizens, then a handy ‘war’ against some fearsome monster (created for the purpose by the PR folks) will serve as well in this era as “a short little war in the Far East” served the purposes of an earlier era.
“Fear makes easy politics” the article notes. And that’s too too true. And doesn’t the SO community know it from first-hand?
And if there’s a high crime rate or at least the perception that there is, then it’s easy for legislators to score points by sending more money to law enforcement.
But in an era of shrinking funds there’s another option that doesn’t require so much cash: create so many laws and water down Constitutional protections so much, that prosecutors have a much simpler time of it when it comes to wringing a plea out of a defendant.
In this regard, the article mentions a new book by veteran Boston attorney Harvey Silverglate, who opines that there are now so many Federal crimes that the average Citizen commits at least 3 Federal felonies per day.
And yet, as the article notes, “we aren’t a nation of degenerates”.
But I wonder if it wouldn’t be a good idea for ‘decent’ folks to start wondering just how many times over they are already Federal felons. That would give them a little broader perspective when it comes to thinking about ‘sex offenders’, and about what is happening not only in this country, but to it.
And if this article is on the right track, then the perps are indeed among us and known to us: we voted them into office.
ADDENDUM
It is probably more than coincidence, the era of the 1990s. In domestic politics the eager-to-please re-election concerns of the Bush 1 Administration, followed immediately by the arrival of the Clinton Administration, triggered a massive surge in pressure from major Advocacy groups whose primary chosen bugbear was the ‘male’ and ‘male violence’ and – inevitably – matters of ‘sex’ and intimate relationships.
Additionally, the continuing dissolution of family and parental ties – a direct result and even objective of certain Advocacies for their own purposes – triggered a deep national need to somehow express ‘concern’ for ‘children’ and the deep public psychological need to feel that something was being done for ‘children’.
On the international scene, the peaceful dissolution of the Soviet Union had the perverse effect of dissolving the world-community’s need for the US to protect them from the Soviet threat.
And this thump landed on a Beltway already sensing its inability to meet the economic challenges of the now-gone post-1945 American industrial and economic primacy.
Clearly, I think these realities served as pressure for legislators to both satisfy the demands of certain pressure-groups domestically, while also raising up new ‘monsters’ and ‘threats’ to distract the public from what was sure to soon reveal itself as a long period of legislative mishandling of major national and international challenges facing the nation and the fact that so many of the grave problems had now gone beyond the point of any simple solution.
And here We are.
“Violent crime is down in America, across the board, spanning two decades.” Thus the Justice Department earlier this month reporting “that the incidence of rape had hit a 20-year low”.
Ditto that “homicides are down, as are juvenile violence and crimes committed against children”.
And that “crime rates have been plummeting since the early 1990s to such an extent that explaining the drop has become something of an obsession among criminologists and sociologists”.
That much I think the SO community has already come to suspect.
Certainly the drop predates all the SO laws in the current mania and indeed the mania itself.
A skeptical turn of mind might be forgiven for imagining that 20 years ago, at the first sign of a decline in crime, the government eagerly jumped on any bandwagon that claimed it was outraged by this or that crime, simply to keep up the level of public fear. It’s a tactic that has worked well, after all, since at least 1948 and the Cold War: you can never go wrong politically by scaring the hell out of the American people and then promising to save and protect them.
And it used ‘the children’ somewhat as a front, as a guaranteed and instantaneous objection-suppressor; a gambit that has recently been deployed far less skillfully by some poor backwoods parents with a balloon and their darling boy. But they had picked up the idea, I would say, from some verrry high-level sources indeed.
But what is really news is that “since 2002 the percentage of the American public who think violent crime is on the rise has been increasing, even as the violent crime rates continue to fall”. (Until 2002 when terrorism – a form of crime – suddenly got the public worried and has continued to do so.)
Even more: “there was actually a drop in public worry about crime that began in 1992 and continued until 2002”. This was the period when the SO mania was brought to the boil by the Findings in the various State and Federal laws screaming concern over the emergency created by hordes of incorrigible monster stranger sex-offenders roaming the land, and upheld by far far too many courts. And yet the public was actually becoming less worried by crime during that period.
Now this is interesting indeed. And not at all consoling, from a Citizen’s point of view. Clearly the legislatures were not responding to “public outcry”, at least not as the term is normally construed. But again, perhaps the legislators were simply making common cause with any bandwagon that might help keep public fear whipped up – not that that thought is very consoling either.
So maybe the legislatures – State and Federal – were engaging in the practice of creating “expressive law”: make a law that will send a certain ‘message’, one that a particular pressure-group wants passed; whether the law itself is workable or Constitutional or even just or wise doesn’t matter; once it’s passed it’s the courts’ problem, although you can always tell the cameras that if there’s any ‘tweaking’ and ‘fine-tuning’ to be done, you’ll do it if the need arises. And then ‘move on’.
That sounds more probable, but insufficient somehow. I think it makes the legislators out to be the ‘victims’ (!) in the matter – the victims of the pressure groups.
And I don’t think that can be right. Governments by their nature tend to like public ‘fear’ – it keeps people in line and out of the way. Especially for a government that can’t really solve the huge and real problems facing its citizens, then a handy ‘war’ against some fearsome monster (created for the purpose by the PR folks) will serve as well in this era as “a short little war in the Far East” served the purposes of an earlier era.
“Fear makes easy politics” the article notes. And that’s too too true. And doesn’t the SO community know it from first-hand?
And if there’s a high crime rate or at least the perception that there is, then it’s easy for legislators to score points by sending more money to law enforcement.
But in an era of shrinking funds there’s another option that doesn’t require so much cash: create so many laws and water down Constitutional protections so much, that prosecutors have a much simpler time of it when it comes to wringing a plea out of a defendant.
In this regard, the article mentions a new book by veteran Boston attorney Harvey Silverglate, who opines that there are now so many Federal crimes that the average Citizen commits at least 3 Federal felonies per day.
And yet, as the article notes, “we aren’t a nation of degenerates”.
But I wonder if it wouldn’t be a good idea for ‘decent’ folks to start wondering just how many times over they are already Federal felons. That would give them a little broader perspective when it comes to thinking about ‘sex offenders’, and about what is happening not only in this country, but to it.
And if this article is on the right track, then the perps are indeed among us and known to us: we voted them into office.
ADDENDUM
It is probably more than coincidence, the era of the 1990s. In domestic politics the eager-to-please re-election concerns of the Bush 1 Administration, followed immediately by the arrival of the Clinton Administration, triggered a massive surge in pressure from major Advocacy groups whose primary chosen bugbear was the ‘male’ and ‘male violence’ and – inevitably – matters of ‘sex’ and intimate relationships.
Additionally, the continuing dissolution of family and parental ties – a direct result and even objective of certain Advocacies for their own purposes – triggered a deep national need to somehow express ‘concern’ for ‘children’ and the deep public psychological need to feel that something was being done for ‘children’.
On the international scene, the peaceful dissolution of the Soviet Union had the perverse effect of dissolving the world-community’s need for the US to protect them from the Soviet threat.
And this thump landed on a Beltway already sensing its inability to meet the economic challenges of the now-gone post-1945 American industrial and economic primacy.
Clearly, I think these realities served as pressure for legislators to both satisfy the demands of certain pressure-groups domestically, while also raising up new ‘monsters’ and ‘threats’ to distract the public from what was sure to soon reveal itself as a long period of legislative mishandling of major national and international challenges facing the nation and the fact that so many of the grave problems had now gone beyond the point of any simple solution.
And here We are.
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