Tuesday, June 23, 2009


A news blurb over on Constitutionalfights is verrrry ominous. A bill has been introduced in both the Senate and House entitled the SORT Act of 2009 (S.1146, H.2612). The Senate version has been read twice and sent to the Judiciary Committee. It’s only a few pages long and worth a few minutes to read it yourself. The House version is here.

The Senate version was introduced by Schumer of New York, and the House version by King of New York, and since they both seek funding and authority for a New York-based organization, you can imagine that it’s all a bit of hometown pork. But it’s wayyyy more than that.

The organization in question is the non-profit corporation Parents for Megan’s Law, Inc. It has to be recalled that it was the murder of Megan Kanka in the mid-1990s, by a deeply troubled man living across the street from her, that became the touch-point for the sex-offense Registration and Notification wildfire that is still, clearly, burning out of control.

It also has to be recalled that whereas the ‘accepted’ version of events is that nobody knew the man was a potential danger and so a Registration and Notification regime would prevent that tragedy from happening by giving parents ‘information’, yet at the time of the killing the other residents on the street mentioned to local reporters that they all knew the man had a history and was dangerous. Nor did the Kankas themselves deny that they had already known.

But somehow a different version of events was erected into ‘reality’ and things have gone where they have gone.

Now this bill (I’m focusing on the Senate version): The organization has made itself into a clearing-house of community education and also a rape-crisis center and a ‘support’ resource for persons (“child and adult victims” it calls them) who otherwise would not want to go public with what they consider to be their situations. This starts to shade into some verrry deep psychological and therapeutic territory, and that includes a whole bunch of concerns about ‘therapy’ that ‘moves’ a patient – child or adult – toward a particular legal outcome. Which is a lot for a non-profit volunteer-type organization to be taking on. We recall the disastrous pre-school day-care cases of the 1980s.

And the organization also relays ‘tips’ on sex-offenders to the relevant police authorities.

Persons can anonymously send in ‘tips’ and this organization will forward them (they like to call it a “criminal justice referral”). The organization conducted its own ‘survey’ which – who can be surprised? – discovered that a quarter (100,000 or so) of registered sex offenders were not complying with the laws (those registration and notification laws that the Kanka case – whatever its actual elements – helped bring about).

And this ‘tip’ thing suddenly reveals itself to be the innocent looking tip of a monstrous berg. Because somehow the organization is either looking for, or possibly already has, access to the National Criminal Information Databases (the NCIC), the stuff policemen can look up on the computers in their patrol cars.

It claims that it needs this authority to “effectively evaluate the veracity of tips received, proactively research noncompliant registrants or registrants engaged in criminal activities, and provide law enforcement with viable accurate information for follow-up action”. Which are all things that – not to put too fine a point on it – only police forces are authorized to do.

And just where do you put “proactive” research of (allegedly) noncompliant registrants? This is something that is very close to unconstitutional for the government to do (think of Tom Cruise’s unit in the movie “Minority Report”, arresting people who have been ‘seen’ by a psychic being committing a crime in the future and being imprisoned before they do so).

So is this Bill an attempt to let civilians do something that the government is constitutionally prohibited from doing? Because nobody should be willing to let such a feral camel’s nose under the Constitutional tent. Or is this Bill an attempt to actually force police departments – that are increasingly coming to realize that the vast sex-offense registration and notification apparatus is a useless waste of precious police resources – to keep going through the motions? Because I am going to bet that if any police agency declines to ‘follow up’on a "referral" that the organization has decided to make, then the organization will threaten to go to the media and the mayor with placards and all the now-usual panoply of props and players. In other words, this is an attempt to force the police to stay in a losing, and very badly-conceived, game, and to keep up appearances (and 'numbers' and funding and you can see where all this goes).

Worse, this Bill and this organization seek to do this by demanding what is essentially police authority. Why not give this organization autos or even paddy wagons equipped with emergency lights, sirens, and radios? Why not given them arrest powers like bounty-hunters? The police have access to the NCIC databases because they are the police: they are trained and they are sworn and they are – ideally – accountable to extensive procedural requirements. And, as noted above, they are constitutionally guided as to what they can and cannot do. None of this is true of this non-profit organization which has, it must be said, an axe it needs to grind. And to keep grinding.

In a bit of sleazy wording, the Bill piously notes that the organization needs the NCIC access to carry out its “duties and responsibilities”. The organization may well have adopted its own goals and agenda, but it has utterly no official duties and responsibilities that require it to carry on what is very much official police work. Nor is the NCIC access simply a way to help the organization “assist and support law enforcement agencies in administration of criminal justice functions”. That’s like giving the Salvation Army not just sandwich-and-coffee trucks to pass out refreshment to firemen at major fires, but actually giving the Salvation Army real fire-trucks to join in fighting the fire.

And the Bill is so loosely worded here (Sec. 3.c.) that it opens up the possibility of this organization, or any other non-profit volunteer organization, expanding its interests beyond sex-offense matters to any other criminal offense or records (or perhaps tax-watchdog organizations accessing government income tax files). And if that happens, then what if a for-profit organization decides it wants to try doing this sort of thing? We’ll have the equivalent of Blackwater ‘contractors’ loose all over the place doing pretty much the same thing the official forces do, except without the constitutional responsibilities or restraints.

This organization already has – as the Bill acknowledges – the resources of “existing Internet sex offender registries and public information”.

The bottom-line here (Sec. 3.d.) is that the organization wants a million dollars a year for the next five years. But, really, there is a much deeper line in this bottomless thing: the organization wants to start garnering police-authority. And if this Bill is passed, then it will be only ‘the next logical step’ to give it all sorts of other police authority. And to give other similar organizations such authority.

Like the sex-offense enabling legislation itself, this is a baaad Bill, a baaad and indeed constitutionally dangerous idea, and it is based on assertions and claims that are not exactly – ummm – true.

And for that matter, I’d say it’s a classic example of what’s gone wrong on Capitol Hill: you would have to say that Schumer has done absolutely no serious long-term thinking about the consequences of this Bill. Either that or he has no working knowledge of the purposes and dynamics of this government’s – or any government’s – monopoly of officially-sanctioned use of violence through its police power and the role of Constitutional limitations in actually keeping that role legitimate.

This cannot end well.

And should not even be allowed to go any farther than it already has. The government has gotten itself into this frakking mess by indulging and fueling this entire unholy sex-offense mania to begin with. Now, with the actual truth and its consequences starting to become unavoidably clear, there is a groundswell from interested parties to try to plaster over the widening holes and keep the show on the road. And to do so by getting the government to dole out its constitutional authority to such interested parties as are willing to make a jihad out of their Cause, even if the government can no longer manage to keep the lid on the problems with the whole thing in the first place.

Government’s only course here is to prevent any such dispersal of its own authority. And instead, to own up to its responsibility – at last – to look carefully at the whole mania and its constitutive elements and start to fix the things that it has rather largely broken. And - We can only hope - with more success than it has had fixing things up in Iraq.

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