Dick Lehr and the Bright Line Rule

POLICING THE TRUTH

Another interesting development: the Boston Police Commissioner has made it clear that any instance of police officers “testilying” or in any way at any stage of any investigation or trial not-telling the truth … will be a firing-offense.

From his lips to God’s ear, as they say.

It’s always been a problem. The tendency to bend the truth for personal advantage, or to get yourself out of a pressured situation, or because you think it’s OK to do it in a ‘good’ cause – this has always been with us.

In a recent Post I talked about the philosophy of Muldoon of the Strong-Arm Squad, that 1880s New York City immigrant cop: if a crime is committed and you need an arrest right away, you find a plausible individual – one you know is guilty of a whole bunch of crimes, and is indeed a ‘criminal’ by his very nature – and you swear to the judge that he did it. A bad guy gets put away, the citizens get another bad guy off the streets, you get a smile from the Chief, and somehow the cosmic balance of justice is served; and as for whoever might have actually committed the crime … well, some other decent copper who shares your philosophy will probably frame him for some other crime that that copper needs to make an arrest for … and so life and justice goeth on.

Far more officers than anybody would care to think about have gone through their careers following, or at least employing from time to time, this philosophy.

After a while, as you may imagine, it’s tremendously though insidiously corrosive and corrupts lethally.

Because if you keep doing this, you start to lose the boundary between truth and untruth (if an ‘untruth’ can be ‘good’ sometimes, then things get mushy real quick). Worse, you start to think that you have the power to make such decisions, not only about what is truth (Pilate’s famous sleaze-question to Christ) but about who gets his or her life invaded by the full weight of the criminal law. Worse, you start to think that God is ‘your special friend’ and ‘understands’, or that ‘nothing is on the level anyway’.

None of those are good paths to walk in life. Not for an individual, not for a society.

And those are just the natural problems.

The SO community faces, additionally, an ‘unnatural’ problem, as it were. Because national and State legislators have inserted into all the SO enabling legislation that “immunity”clause. What the telecoms had to fight for, what Cheney and many of the Bush-era ‘war and torture’ enthusiasts now have fight for, the pols simply gave to police in all matters pertaining to SOs.

If the media helped spawn this SO mania by publicizing lurid stories without any effort to put them into context, let alone do a careful analysis of proposed legislation, then the pols did their bit by letting the law enforcement and criminal justice types know that “the gloves were off” (recall Dick Cheney saying that about Iraq some years after the SO mania got rolling?). In this case “the gloves” were the standard and traditional fundamental Constitutional and procedural safeguards that worked to quietly put limits on police abuse of power by making police and prosecution agents stop and think about their own liability if they got carried away in the enforcement of a law.

But in SO matters they were given what amounts pretty much to “blanket immunity” beforehand.

All they had to do was to state under oath – testify, formally – that they felt they were doing the right thing at the time.

The Nuremberg Court did not allow any defendants such a way out of responsibility for their official actions. Technically, not even the US military allows its troops such blanket immunity: you are required precisely not to obey an illegal order or one that would violate the laws of war.*

And while the media – interestingly – did not much publicize this ‘immunity’ element of SO legislation, yet I think it is a major element in the creation of a ‘mania’: the police promptly began producing gratifying numbers of ‘perps’. Who became fodder for the prosecutors and the courts. And the media. And each element began to feed the others, creating a lethal synergy. And that convinced folks that a) there was a huge ‘emergency’ and b) it was being vigorously addressed and that c) there were still untold myriads of ‘them’ still out there, waiting to pounce. Like Communists in their ‘sleeper cells’ 50 and 60 years ago.

And so the mania achieved its ‘maturity’ and is only now beginning to slow down – which perhaps is why AWASORNA was made so stunningly ‘comprehensive’: to keep the numbers up and keep up the appearance of a ‘threat’ that justifies the (verrrrrry) dubious Constitutional measures that are so reminiscent of a police state.**

The pressures on even mature and decent law enforcement officers are tremendous in the best of times. The urge to restore order and protect the public is strong and is one of the major motivators of the healthy career motivation to police work. But to violate truth and the laws that are on the books to protect truth … those pressures, even from other law enforcement personnel and prosecutors, and politicians, are very strong.

And in a mania situation, the pressures increase exponentially. As do the temptations: to be even more successful in ‘protecting the public’, to ‘go along to get along’, to slip the surly bonds of Constitutional process and quickly and efficiently get ‘perps’ and feel good about yourself and your job.

It’s not surprising that the case that moved the Commissioner to take his stand was not a sex-offense case. Nobody wants to stand in front of that freight train yet.

But the integrity of police and prosecutors is a crucial element in the SO mania. Such integrity – the respect for truth and accuracy – is one of the first restraining walls to be broken down, and when that wall goes, then the mania spreads even more freely and rapidly and thoroughly.

It’s like purposely opening a water-tight door deep within a ship at sea. More water flows in to fill up the new space made available by the violation of the watertight integrity. And that much more water will then be able to exert even more pressure on the next water-tight door down the line, and the next, and so on. And the ship becomes dangerously – perhaps lethally – flooded, failed door by failed door.

The Ship of the Republic is in such a condition now.

NOTES

*Of course, you as a well-intentioned soldier are risking a whole lotta trouble if you actually try to follow those particular official regulations. Which is why it’s never a good idea to have a justice-system heavily controlled by just the government, with no independent defense and judiciary, and with no awareness on the part of the government agents that they will be held responsible for their actions.

**Don’t forget that with the exception of Doe v. Poritz [and I will finish that Post today] which was decided 6-1 by the New Jersey Supreme Court, very few SO cases have been Decided by large majorities. And in any of them, the Dissents – including the Dissent by Justice Stein in Poritz in 1995 – have actually proven to be blueprints of what is fundamentally wrong with SO legislation and what baaaad consequences would result from it.

ADDENDUM

I should add another point, about Muldoon’s assumption that an individual can be “criminal” in his very nature.

This is a hugely fraught assumption.

First of all, the Framers themselves didn’t allow such a single aspect of a citizen to become – in their minds and in their Constitutional plan – the primary and overriding definition of a citizen. All citizens – being human – were capable of committing a crime.

(In more religious terms, all were capable of committing a sin. Of course, in the process of the Protestant Reformation the Catholic and the assorted Protestant theologies of sin diverged. Some of the most significant Reformers latched onto the human capacity for sin and declared that all humans were, primarily, sinners. The Catholic view was not quite so extreme in that regard: all humans were capable of it, but that sinfulness did not ultimately “define” humans; they were created in God’s image and were thus able to repent and be forgiven – no person living was definitively and ultimately a “sinner” and nothing beyond that. All of this would be general background knowledge for the Framers.)

So the Framers did not consider that having committed a “crime” made a citizen somehow a permanent second-class citizen. They were familiar with the religious and also European (and other cultures’) practices of permanently ‘branding’ somebody as ‘a criminal’ or as primarily a member of ‘the criminal class’. This was philosophically repugnant to them.

It was also, in practical terms, a no-win path for a democratic government to go down. Because if you create a permanent criminal class – a class of persons who by ultimate definition are criminal – and then you keep enforcing the laws, then before too long you’re going to start having a large group of citizens who are second-class and deprived of rights of participation in government. This didn’t bother monarchies and tyrannies so much – everybody was a prisoner, more or less, in those types of government. But it would be impossible for a democratic Republic, grounded in The People, to function that way.

The SO mania has created something very similar (and growing more similar every time the pols come up with new SO legislation and regulations). Here is a class who are permanently ‘criminal’, permanently (or almost permanently) ‘dangerous’. And will be tagged as such.

Yes, it is an echo of the old radical Protestant ideas, and of the more recent Fundamentalism.

But it is nicely couched in modern psychological (not to say ‘scientific’) terms now. The ‘sex offender’ (an impossibly broad term that includes everything from child-rapists and murderers to people taking a leak in the woods and teens texting among each other and office-party blockheads) may well be mentally “abnormal”, as in the civil confinement legislation, and needs to be confined after any prison sentence is served, so he can get therapy. That there is no useful therapy because, in great part, there is no professional diagnostic criterion called ‘sex offender’, hasn’t stopped the legislators or many of the courts. Lock’em up for rehabilitation even if we haven’t really got a rehabilitation therapy yet, or even a clear understanding of what makes a ‘sex offender’ offend sexually.

Clearly, a person so confined could wind up that way for quite some time. Which perhaps is exactly what the law was intended to do, even if none of the legislators will admit to it.

And since nobody knows enough to actually have a solid diagnostic criterion capable of identifying a ‘sex offender’ with a ‘mental abnormality’ that makes him offend sexually, then the pols can happily keep tossing more and more persons into the bin. God and Science can sort’em out in their own good time.

This is a recipe for many baaaad things. Once the government can classify citizens on such flimsy grounds, and as a result consider itself empowered to deploy its awesome police powers to deprive them of Constitutional freedoms, then not only the current ‘sex offenders’ but everybody is in danger of being scooped up. If it’s ‘sex offenders’ this time around, what and who will it be next time around?

This starts to get disturbingly similar to Nazi racial legislation.

And along that train of thought: I was sitting having coffee in a coffee shop yesterday. A family with two young children came in and sat at the next table. It came to me that if I were a sex-offender they would have no way of knowing, even if I were legally ‘registered’. The whole Registration and Notification thing only works around residences and such.

It then occurred to me that for this whole idea to really work, the individual registered sex-offender (RSO) would have to be tagged, publicly, and made to display his ‘status’ at all times when he was outside of his own residence. Otherwise, folks could be sitting down next to RSOs and standing next to them on buses and so forth – and never know it.

So, logically, it is the individual RSO who has to be somehow clearly marked at all times when not inside his home.

But then it came to me: this idea has already been tried. It was the methodical and logical Germans, under the Third Reich, who simply started making certain designated classes of folks wear large colored stars on their exterior clothing whenever they left their home (it was the nice Nazi touch to make you pay for your own cloth for the star and make the thing yourself).

It was the most logical way to ‘tag’ these designated classes in such a way that all ‘good Germans’ and ‘racially pure’ Germans could quickly identify a wearer as ‘impure’ and as a “threat to State and People” (Reich und Volk).

Here’s my guess: the SO-legislation supporters are on that path, whether they know it or not. And for the SO community and for all citizens, it will only be a matter of time before some form of the colored-star is merely “the next logical step”. And those States considering special license plates are simply getting a little closer to the logical but brute reality of what this whole mania is really about and where it is heading.

If you think that this sounds a little over-the-top, ask yourself, as I have done, if in 1980 or even 1990, it was ever conceivable that the entire SO Registration and Notification apparatus could ever have taken root in this country.

The good news – such as it is – is that more judges, and perhaps more legislators, are beginning to see what the nature of this beast really is. And where it is taking them. And all of us.

WATCH CRIME WATCH

TOO MUCH OF A GOOD THING IS A BAD THING

I’ve Posted on this just recently: the Bill S.7612, by which some New York pols are trying to get a local Megan’s Watch group the authority to access the NCIC and start hunting SOs, and funding them a million a year for five years.

But a news item today gets me to thinking that there might be a lot more of this sort of thing already going on. And that’s worth saying it again.

In the small Cape Cod town of Wareham (MA) a retired police officer, now 70, has become the head of the municipal Crime Watch volunteers. He has taken to driving around town in his own plain Ford Crown Victoria (which even without any antennas or a spotlight would look like an unmarked police vehicle), with some sort of a radio. (Whether there are any emergency grille lights or a siren in there is another question.) His group – there are about 60 of them – even shares offices in a police substation.

Well, it’s a small town, and it fills up to many times its usual size in the summertime with strangers and renters. The local police force is no doubt stretched, even with the summer ‘temp’ officers and whatever auxiliary police the town has.

But this gent got himself into trouble a short time ago by ‘telling’ a driver to move her truck out of a parking space because it was illegally parked. She didn’t take orders from other citizens and he sort of got loud and – ummm – assertive, and he wound up getting arrested himself for assault and battery with a dangerous weapon: He started photographing her truck, then he came at her with his car and hit her.

He claims she made “insulting comments” to him. You can imagine: Grow up; Get a life; You’re no cop; Didja buy your own fake police car, ya loon? The comments apparently hit a nerve and then she got rammed.

Can anybody say such a scenario was ‘impossible’ or even ‘improbable’?

It’s also possible that once he realized that she wanted his name and was taking his license plate number down, then he didn’t want to play anymore and just wanted to get out before – ummmm – ‘real life’ kicked in.

He’s back on the streets now. And it turns out that he and his cohorts actually do give out parking tickets – real ones, that you have to pay.

Well, the town can use the cash, and if you are familiar with summer beach locales you know how people from out-of-town can be when they just want to get out of the car and get onto the beach.

The local police union had misgivings. And I agree with them. It’s not just a ‘turf’ thing or a ‘jobs’ thing; it’s that you start crossing a dangerous line when you’ve got civilians doing police work. Whether it’s because the civs feel like they want to help the overworked police, or because the civs feel like the cops aren’t taking something ‘seriously enough’ – it’s not a wise thing in the larger picture of the integrity and legitimacy of law enforcement. The town management says that “Crime Watch is a separate entity unto itself” although it has “permission from the Police Department to issue parking tickets”. That sounds nice, but so did the Iraq War in the beginning.

Indeed, some critics of the arrangement question whether the parking fines legally have to be paid. And they’re right. It would be a ‘legal’ cover if all the civs were sworn in as ‘temps’ or ‘auxiliary’ officers. But even so, if they haven’t attended a police academy and been formally sworn in – with all the competence and accountability that the training and swearing-in are designed to provide – then you’re starting to weaken a very significant carrying wall in the Constitutional structure.

Courts give deference to sworn officers in the cop-said/defendant-said scenarios that arise so baldly, especially in ‘traffic’ cases. And that seems reasonable. But not if it’s a volunteer-said/defendant-said type of situation.

I had mentioned in my earlier Post that in Ohio the laws passed to try to bring that State into conformity with AWASORNA refer to “the sheriff or his designee” as persons authorized to check on the compliance of SOs. There is – as best I can make out – no indication in the law that the “designee” has to be a police officer.

And as we know, there are plenty of volunteers willing to step up ‘for the Cause’, as in New York.
I don’t know what would be worse: volunteers (so often ‘wannabes’) who just like the frisson of doing ‘police work’ or ‘dedicated’ sex-offense law believers who are now given legal authority to go out hunting on their own.

In either case I think it would be hugely bad – and dangerous, Constitutionally – for the integrity and legitimacy of law enforcement and for the health of American society itself.

And this is especially true in such an area of mania-law and public mania as has been created in the matter of ‘sex offenses’ and ‘sex offenders’. It’s probably bad enough with the real police and criminal justice personnel feeling that they can do ‘whatever it takes’ with impunity; don’t forget, as long as a police officer swears in court that s/he was acting “in good faith”, the pols have written a free-pass of criminal and civil immunity for them into all the relevant enabling legislation.

But if the “designees” or ‘concerned civilians’ start doing this … what then?

And I won’t accept a pious bleat from the courts and the pols that “we” all have to trust in the maturity and integrity of legislators, police, citizens, and press that they won’t go overboard with all these SO laws. In the crucial New Jersey case of Doe v. Poritz, the 1995 case that upheld the brand-new so-called Megan’s Law, the Court made precisely such a bleat in support of its Decision. Reading it in the dark-bright light of 2009, the Court’s sermon of 14 years ago – vigorously and acutely refuted in the one Dissent – seems either fatuous or witless or worse; recall how reading any of the sermons in favor of going after Sadaam’s WMD seems now either remarkably ill-informed or remarkably treacherous. [I hope to Post my thoughts on this key New Jersey case later today.]

Quis custodiet ipsos custodes? Who will guard the guards themselves? – that’s what the canny Romans asked themselves. And if it’s bad enough that the law enforcement and criminal justice agents are not always doing things right, and the legislators just seem to be churning this stuff out as if they wanted to see how much they can get away with, then what happens when a whole army of ‘volunteers’ – many with ‘causes’ to uphold or games to play – are turned loose?

It’s worth keeping an eye on and maybe asking questions in your local area.

ADDENDUM

A couple of refinements to this:

As I said above, you have your police-wannabes and you have your ‘Cause’ folks. And the folks dedicated to the Cause are always ‘up for it’; and at this point it may well be that the mania is weakening to the point where the public might start to see just how much of a stampede it has all been. So if the Cause folk are in danger of losing their Cause, and maybe some of the baaaad things perpetrated against defendants in this thing might come to light, then a ‘community of interest’ is certainly forming around keeping it all going.

I would have thought this beyond-realistic not so long ago, but after what I’ve seen in the past few months I’ve got to consider it as a possibility: with States now hesitant – especially for financial reasons – to take on the burdens of AWASORNA, is it possible that the organized pro-mania groups might volunteer to do most of the work that AWASORNA would generate for the States?

Think of it: they would be the “sheriff’s designees”, they would volunteer to do all the admin work … and it would be sold in best defense-industry fashion: overinflate the ‘threat’ to the max, give a wildly best-case outcome of what would happen if your plan is approved, and figure quietly that when ‘reality’ starts to show through, your PR folks will cover the gap “by all means necessary”.

Legislators uneasy about the fiscal problems – and maybe even the conceptual and Constitutional problems – can be seduced with the idea that now they can have it both ways: they can have AWASORNA so that they can still appear to be ‘tough on SOs’ while not having to shell out scarce budget dollars to pay for the skyrocketing cost of AWASORNA’s massive regulatory scheme.

Law enforcement and criminal justice personnel who rightfully oppose AWASORNA will have the ground cut out from under them. And those who still think it still could work (especially if perhaps the ‘dirty work’ can be done by ‘volunteers’ who aren’t bound by Constitutional and police-procedural boundaries) will have more material to spin the web that AWASORNA and all the SO laws can still ‘work’ and even ‘win’.

We are at the point that reminds me of LBJ after Tet: it finally got through to him that Vietnam was the wrong war in the wrong place against the wrong enemy and could not be won … and yet somehow a coalition of various groups and factions and interests kept the thing going for another five years, under the spell of the promise that there was light at the end of the tunnel. I think it was the former CIA analyst Ray McGovern who noted that the entire left-side of the Vietnam Memorial Wall would never have been there (all those troops named on it would not have been lost) if the war had been allowed to die a natural death after Tet, which is what LBJ wanted in early 1968.

While I’m on this theme, I can’t help but notice that Megan’s Law was something of the equivalent of the Tonkin Gulf incident: an incident that was untruthfully spun as evidence of a massive North Vietnamese plan to wage war on us, on the basis of which ‘proof’ and therefore of the ‘emergency’, Congress hastily passed the Tonkin Gulf Resolution and the war was on!

And of course, with more than half a million registered SOs, and maybe double that number if AWASORNA is accepted by the States, a vast blast-wave of tragedy will ripple throughout the entire country.

Funny how the night moves.

HATE CRIMES POLITICS

WHAT’S UP WITH THIS?

(This is a longer, SO-oriented version of a Post on my other site.)

McClatchy Newspapers reports that the Dems have just pulled off a shrewd and not-uncharacteristic bit of legislative magic: they have tacked onto a vital defense appropriation bill an amendment that will constitute the enabling legislation for an expansion of the federal hate-crimes law.

It’s become a sleazy bit of standard operating procedure on the Hill, tacking on stuff that you want but that you don’t trust the Congress to pass to a larger, more complex, but absolutely essential bill. This is basically the gambit of piggy-backing what is often totally unconnected material, and obviously material that is uncertain of passage on its own merits, to something that absolutely has to pass quickly, and which enjoys a strong chance of passage.

Congressfolk often do this with appropriations bills – where a little ‘pork’ amendment gets lost in the shuffle to get major budget provisions passed. But it’s expanded now to include the type of ‘pork’ that is actually, I would call it, pander-pork: something not necessarily fiscal, but that you have to provide because you or your Party have ‘promised’ it to certain vocal Advocacies and lobbies, who will take out their ‘hurt’ on you and the party in very public venues if they don’t get what they want. And what you promised them.

In this case, it’s a bill to further extend the federal hate-crimes laws.

As always in these types of mania-law, the new legislation is carefully calibrated to generate a wave and a cloud of emotion, so that nobody will be tempted to really think about the law, or so that nobody will dare to object to it at the risk of being labeled ‘insensitive’ or as a ‘hateful’ person or as a ‘hater’ … and so on.

A vivid case – not always serious but in this case serious indeed – is made the occasion of the law. In this matter, it is the brutal murder of the young gay college student, Matthew Shepard, a decade ago in Wyoming. Having somehow attracted the attention of some ‘straight’ guys at a bar, he was taken out to a remote field, beaten and mutilated, and strung up on a fence and left to die. It was a truly reprehensible crime and no decent, mature Citizen can but be angered and saddened that this sort of thing can happen. We are a flawed species, although I am not pretending that that’s news. Or should be.

And as added insurance, the bill is named, telegenically, the “Matthew Shepard Hate Crimes Prevention Act”. As with so much of the sex-offense and ‘violence’ legislation, the name of the occasioning victim is tacked on to remind you that Correct sensitivity demands your immediate acquiescence and approval. Otherwise you’d best keep your mouth shut. Sort of like naming a law “An Act for the Protection of Nation and People” (“Reich und Volk” in the German original) – you sort of know that you’re going to make a lot of trouble for yourself if you say anything that indicates doubt or hesitation about the law.*

Senator McCain – for whom I hold no brief whatsoever – stated that it’s greatly disturbing to see the Senate (Democratic) leadership “take a totally non-relevant, all-encompassing and controversial piece of legislation and put it on a bill that is as important to the nation’s security as this legislation [the appropriations bill] is.”**

But of course, since everybody on the Hill has been doing this, for pork or pandering, for quite some time, the Dems can simply smile as if butter wouldn’t melt in their mouth and claim that a) this is ‘normal’ procedure for the Hill and b) the Republicans have done their share of it.

Lost in the shuffle is any consideration as to whether such a practice – let alone the Shepard Act itself – should be considered ‘normal’ in any sense at all. The whole idea of a democratic politics in a deliberative democracy in which mature voters vote for mature representatives is that major proposed laws get major serious deliberative treatment in their own right, after which they are enacted or not-enacted.

This is where I think there is an interesting straw in the wind. It appears that there has been a great deal of difficulty in getting the hate-crimes extension accepted as a good piece of legislation. Yes, the Dems claim that this is merely due to Republican tactical obstructionism and that the Republican objections deserve no respect or even hearing, since it’s all just ‘politics’.

But I don’t think that’s all there is to it.

As with the violence and sex-offense legislation – which I call mania-law – We are beginning to see, finally, widespread and major concern, even by those professionals in law enforcement, mental health, and public policy, who must enforce them. And even by groups representing the ‘potential victims’ on whose behalf the laws are being rammed through.

We cannot rule out the possibility that at long, long last democratic and deliberative politics is starting to demonstrate its built-in ability to correct itself.

We recall that the last time this happened was with the McCarthy-ite stampede (hysteria, truly) against hidden Commies among us, roaming freely and masquerading as nice folks. Nobody who grew up watching B-movie matinees on Saturdays back in the day can fail to recognize the alien pods that walk around in human form and must be exterminated.

But back then McCarthy and his stampede could be stopped relatively quickly. Before him, on a much more limited basis, the internment of Japanese-Americans in the deserts of the West in 1942 ran on for just several years, and was then quietly ended. Although not before even the Supreme Court affirmed its ‘legality’ and before irreversible and profound damage was done to the life and livelihood of thousands.

Not so with much of the mania-law of the past few decades, which has kept expanding for a number of years. The reasons for this are several, all inter-connected. First, the media now no longer provide accurate facts, but simply accept faxes from the public-relations personnel and paid public-opinion manipulators of both the government and the lobbies of both Right and Left. At this point, the mainstream media (MSM) have for wayyyy too long simply been printing the faxes as ‘reports’, hoping to keep their ‘consumers’ of either a Right or Left proclivity ‘happy’. The idea of a reporter actually ‘informing’ Citizens accurately has been repudiated by most of the MSM (see Glenn Greenwald’s excellent observations on Walter Cronkite’s death here).

And talk-radio has replaced ‘deliberation’ and ‘thinking’ with juvenile outbursts of sass and vitriol that provide much heat but little light (to use Lincoln’s image).

Second, under the influence of allegedly brilliant philosophers (such as John Rawls) the Branches and the advocates and the self-proclaimed ‘experts’ and the lobbies and all the Beltway gang a) believe themselves to be ‘elites’ that ‘get it’, b) that The People does not exist, but only ‘people’ who are lumps that ‘just don’t get it’, c) that therefore in the interests of this or that ‘emergency’ and the sanctity of their presumedly ‘good’ cause pols, bureaucrats, and even jurists can and must steer the popular herd toward whatever broad sunlit uplands of perfection (perfect safety, perfect security, moral perfection) their elite instincts dictate, and d) that in this ‘good’ cause the Constitution and democratic politics have become ‘quaint’ if not actually tainted, perhaps irretrievably.

Which is a theory of government that Lenin and Hitler and Mao could love. And did. (Not so much Stalin, who really didn’t bother with public opinion – he simply eliminated any person or group of persons (the intelligentsia, the bourgeois, the kulaks, even the Old Bolsheviks) who did or might disagree with him).

This approach to politics is one of the great viral infections that survived the destruction of their great nurturing laboratories (Nazi Germany, the Soviet Union, Fascist Italy, Maoistic China) and went on to infect the Allies of the West who, to all military purposes and appearances, had ‘won’.

Third, the Branches of the government are now so deeply enmeshed in their prior support for the stampedes – and perhaps still benefit from them – that they are actually still supporting them, against the corrective tendencies of democratic and deliberative politics. The political Parties, led by the Democrats but later joined by the Republicans, embraced ‘feeling’ over ‘thinking’ and thus set themselves on the path of an irrational, anti-rational politics of manipulating public opinion by inflaming public emotions and actually undermining deliberation and thought.

At this point, ‘pain’ and ‘outrage’ have so largely been allowed to trump sober and mature deliberation that few among the Branches can figure how to back away without being accused of ‘insensitivity’ and other ‘outrageous’ betrayals. Truly, in Jefferson’s vivid imagery describing the national adherence to slavery, the Beltway now “has a wolf by the ears”. ***

And so there is now in place – which has not often been seen in Western democracies – the lethal dynamic wherein the government itself is trapped into trying to prevent a ‘correction’ that would save and restore a democratic and deliberative politics. This is not an ‘experiment’ – not any more than running Titanic alongside a berg and ripping open a third of her hull could be characterized as an ‘experiment’ in ‘progress’ to see how well she would hold up.

Of course, ‘experiments’ on ‘undesirable life forms’ was a major element of totalitarian medicine in both the German Reich and the Japanese Empire, under the justifiying ‘emergency’ - of course – of ‘war’. The government doctors reported much ‘progress’ for that period when they were “dress’t in a little brief authority”. Afterwards, they said they were only following orders or serving a ‘higher law’ of ‘knowledge’ and 'progress'.

So on top of actually having to try to stop a stampede, We are now bethump’t by a government that in many ways is trying to continue it.

So there’s good news and bad news. The good news is that there is a palpable sense that the stampede is starting subside, through the healthy working of Our democratic and deliberative politics. But the bad news is that the Beltway and the Branches are so mired in the stampede – to their own political benefit – that they are still trying to keep it going.

Interesting times indeed.

It is of especial interest to the SO community in that there now appears to be a growing hesitation among lawmakers in regard to all of this mania-law.

The reasons may not be pure and simple legislative and constitutional maturity.

First, maintaining all of the new requirements (IF a State decides to accept the laws’ requirements and forego the small sums in Law Enforcement Assistance funds it will forfeit if it doesn’t) not only creates a permanent expenditure of tax funds, but also a consistently increasing expenditure as well. And with the national economy in deep trouble, which may only be in an early phase of a multi-phase downturn that may become permanent, State legislators are now faced with something of a dilemma. They have ‘advocates’ and their lobbies on one side, but now undeniable financial realities on the other side. And AWASORNA clearly demonstrates that rather than ‘subsiding’, the SO laws are actually intensifying and expanding. National legislators cannot ignore this reality.

Second, advocates as well as law enforcement types are now pointing out that the expansion of SO-registration requirements (especially the increases mandated by AWASORNA) is actually reducing the effectiveness of ‘tagging’ truly dangerous individuals. (Of course, there are really not so many such individuals ‘out there’, a ‘numbers’ problem that the original stampede-pushers did not want the public to realize back then, and surely don’t want the public to realize now. And since so many of the ‘child’ incidences take place within the family-and-acquaintance circle, neither law enforcement nor politicians want to turn this entire machinery upon so large a group of ‘voters’; going after the ‘friendless and dangerous stranger’ was far more politically acceptable a strategy.)

Third, the ‘regulatory not punitive’ legal fiction cannot be assumed to hold up much longer. Although many courts are still parroting the Supreme Court decision in Smith v Doe, yet courageous and honest individual courts are still issuing Decisions indicating that the Registration and Notification requirements are indeed ‘punishment’.

Some courts are taking the high-road and finding that the requirements have been – in effect even if not in legislative intent – ‘punishment’ from the very beginning. Others are starting to state that the requirements, while constitutionally acceptable back at the beginning, have now “evolved” to the point where they do indeed constitute ‘punishment’. This is a dynamic area of SO jurisprudence where much can happen.

And in this regard, it’s important to recall (see my Post on Smith v. Doe on this site) that the 6-3 Supreme Court split in upholding the constitutionality of SO laws included a Concurrence by Justice Souter to the effect that he considered it a 50-50 possibility that the SO laws were indeed unconstitutional by reason of constituting ‘punishment’ – and that the only reason he was voting with the majority was his desire to respect the clearly (and shrewdly) made assertions by State legislators that their ‘intent’ was not to ‘punish’ but merely to provide for public safety. Had Souter not allowed his ‘respect’ for legislators’ public statements to override his otherwise acute awareness of the problems with SO law, the split would have been 5-4.

So there is much reason for hope in this still very unsettled, fluid, and dynamic area of the constitutionality of SO laws, as well as the fiscal viability of SO laws and the growing awareness – even by law enforcement and advocates – that the expansion is now actually weakening their intended effects.

NOTES

*Certain laws, such as the recent Adam Walsh Sex Offender, Registration, and Notification Act, actually have almost every section named after an individual victim, and even a paragraph describing the crime against the victim in question. Then, ominously, each of the sections, content-wise, introduces sweeping new requirements, many of which are not only eerily and disturbingly close to old European ‘internal passport’ and ‘criminal passport’ laws, but have already generated wide Constitutional doubts. They will also generate huge and ever-increasing costs to States that agree to implement them, even as law enforcement and even victim-advocate groups express alarm at the complexities of enforcement and the watering-down of effectiveness in somehow ‘tagging’ truly dangerous persons.

**Lest I be misinterpreted here as being in favor of hate-crimes, or as being ‘soft’ on hate-crimes, let it be noted that there are already State laws in place that criminalize all such crimes. This is a federal-level law that not only adds an unnecessary layer, but actually shades into interfering with the Constitutional rights of States (under the Xth Amendment) to formulate and administer their own laws.

Things have gotten to this point because the national legislature – under the influence of vote-desperate Parties – tried to guarantee reliable voter support for themselves by putting themselves forth as the primary ‘protectors’ and ‘avengers’ of this or that favored group. Thus Obama’s recent ominous if well-intentioned assertion that his first responsibility is to “protect the American people”. He is not Lord Protector; he is President and his oath requires him – as it did the egregious frak Bush – to “preserve, protect, and defend the Constitution” – which almost appears to be, frighteningly, as distasteful to him as it was to his treacherous predecessor.

***If you are close enough to the wolf to be holding it by the ears, then you can’t let go without getting your face and head bitten off.

SEX-OFFENSES, THERAPY, AND LAW

PROSEC NATION

(I am reprinting here with some additions a Post I made in December of 2006 on my other site.)
Katherine Mieszkowski has* an article in Salon about tracking sex offenders with GPS. It’s interesting because it’s one of the first times I’ve come across a report that things on that front are not working out as planned. There are doubts about the danger of recidivism among many (though not all, certainly) of the so-called ‘sex offenders’; there are questions as to the Constitutionality of such gambits as civil commitment and municipal residency laws.

Interestingly, a distinction is finally made among this vast seemingly-monolithic mass of persons: there are misdemeanor sex-offenders and felony sex-offenders. Simply from the view of good scientific procedure, this is a start, however belated. Given the elastic definition of ‘sex offenses’ and the concomitantly huge range of acts (proven or alleged) falling under this categorization, no person pretending to scientific competence could accept this indiscriminate and undifferentiated mass of human beings at face value, as not requiring any further serious and careful inquiry.

Of course, from a legal point of view, one has to wonder about the validity of felony-offenders category as well, since the chances of an allegation n-o-t becoming a conviction are, given the temper of the times, slim indeed. And of course, in the Great State of Ohio, one can simply be placed on the Registry without charges or trial, merely on the basis of an accusation. Such is our modern American reality.

Apparently California is now starting to tote up the costs of this massive, not to say orgiastic, campaign. They are huge and promise only to increase almost exponentially.

Supporters of this ever-expanding program claim that GPS will help police keep track of where offenders are – as if this would be of much help in the most frequent sexual miscreancy scenario: the offender is well-known to the victim and indeed lives in, or belongs in, the same house. GPS will do nothing to help here. GPS will help in the TV-ish scenario where a stranger finds his way to a home or school, but that scenario is actually true for only a miniscule proportion of the ‘sex offenses’ committed, even according to the theorists whose opinions underlie the whole thing.

Rather courageously – given our modern American reality – the article reports accurately the Department of Justice’s own sex-offense unit’s conclusion that recidivism and re-offense numbers for ‘sex offenders’ as a criminal category “are significantly less than other criminals”. This is another fact, a truth – we might venture – that has not been heard in the general “hysteria” (and I use the term despite the PC objections, since it is the only social-science and diagnostic term for what has been happening among us).

And at long last, an actual number is given for sex-offender registrants: there are about 600,000 nationwide. Again, though, there is no breakdown even according to the generally accepted categorization scheme of Levels I, II, and III, which are necessarily pretty general and of very modest scientific use, and would be of limited use to citizens trying to reflect upon and deliberate about the pervasive societal and legal changes wrought hastily on the basis of the ‘knowledge’ these numbers and categories are claimed to provide.

But as of yet, little evidence of such deliberation have become public knowledge. Whether this reflects an unreflective citizenry, or a media that doesn’t care to see what it is inconvenient to see – this is not known. Or perhaps many citizens have now become Sovietized – carefully keeping to themselves doubts and fears that could, if expressed, bring down upon oneself and one’s family the unwelcome and never-pleasant attentions of the marvelously named ‘organs’ of State security. After all, we might say that avoiding the unwanted attentions of organs is what this brouhaha is all about in the first place.

The feminism (or at least the theories trumpeted in earlier ‘waves’ of it that now perhaps are, in the Nixonian argot, ‘no longer operational’) underlying the thing famously erected and then took under fire ‘patriarchy’, which, politically, amounts to declaring some form of war upon that half of the entire population possessed of such organs. The case could be made that going after sexual activity was the easiest way to get a handle on the situation and further the Cause.

California is also considering imposing the GPS system retroactively, i.e. persons convicted before this proposed GPS law might be passed, having served their time, been released, and presently living offense-free lives, would still be required to wear the ankle bracelet. This bit of profoundly un-American governmental coercion is justified by the legal fiction that Registration, civil commitment, and the proposed GPS is not a punishment, but only a “regulation”.

It is a distinction too subtle for me. And seems more like the type of ‘legal fiction’ – so called by jurisprudential professionals – that once enabled the maintenance of slavery and still enables massive corporations to enjoy many of the same Constitutional rights as individual, breathing, thinking, ensouled human citizens of the Republic.

The use of analogies and ‘fictions’ when dealing with the most fundamental rights of citizens under the Constitution is hugely ill-advised and dangerous. It is on a par with having Disneyland put up an Iraq-land to acquaint homebound citizens with the actual state of affairs in that hugely afflicted place. Although, the case might well be made that much of Washington City (certainly its Federal Triangle) is operating on principles very similar to Disneyland even as we speak. Such is our modern American reality.

A book has recently been published (“Failure to Protect: America’s Sexual Predator Laws and the Rise of the Preventive State”) by a law professor very knowledgeable in such matters, Eric. S. Janus. It is a very attractive and dangerous work.

It is attractive because it is one of the first books (Phillip Jenkins has written previously, as well as a large issue of the journal “Psycho;ogy, Public Policy and Law", back in 1998) to actually examine this whole thing. The state of debate in this country – it is news to nobody – has been reduced to the adolescent or pre-adolescent level of: you either agree with me or you totally hate me and totally agree with the ‘other side’ and maybe even are one yourself.

While most recently deployed in the field of foreign affairs, and made the lucrative operational methodology of numerous media enterprises, this type of logic has been known to teachers since the early Greeks and probably long before. Prior to its adoption by the Right in the 1980s, it was erected into a plan by the assorted Advocacies in the early 1970s and has enjoyed a continuous expansion of influence ever since.

It makes for a quick-burning fire that snuffs out the possibility of skeptical consideration or deliberation, individual or public, thus reducing the time and effort required to ram one’s agenda through or over the political and legal hurdles precisely in place to give the citizenry a chance to kick tires and think things through.

The consequences for us as a polity and a People are only now beginning to come to light. The good news is that it is finally happening; the bad news – now so brutally obvious on the foreign affairs front, at least – is that some of the consequences may be irreversible or inescapable. Or both.

It’s good to see some one trying to rationally deal with the whole thing. Of course, Janus has to tiptoe around the fact that much of what’s happened isn’t completely rational. He still has a career in academia to think of, after all, and ‘academia dentata’ is a threat to any one who speaks about taboo subjects and still hopes to keep the old job.

Courageously, he raises issues that have been begging for examination for what is now decades: the science and the research and the figures; the Constitutional and jurisprudential effects; the effect on law enforcement and prosecutorial practice. He does not examine what we might call ‘the temper of the times’ but the word “hysteria” does pop up here and there, and not inappropriately.

But it’s a dangerous book for anyone new to the problem because Janus grants a great deal of credit to the feminist philosophy and strategy that he rightfully identifies as having played no small part in getting this whole thing started.He almost gives too much away in his basic assumptions, and thus cannot limn the deepest dynamics at work here.

And while accurately describing large problems in almost all areas of the whole thing, he still affects the upbeat, can-do sense that with some tweaking and lots more money, genuine research can yield much useful information to spackle up the programme.

It starts to sound, after a while, like Administration talking-points about Iraq: If we just forget about how we got here, and assume that things will always work out for us, then you can see that mofre money and more study by experts will give us a light at the end of the tunnel, or at least some light in the tunnel.

And one is left with the thudding question: if we know so little now, then how have we enacted so much draconian and Constitutionally dubious legislation in the past 15 years?

Still, he deserves a great deal of credit and his presentation is well worth the time (the book is a meaty but easy, if disturbing, read). He notes repeatedly that the ‘science’ of sex-offenders is still in a very early stage of development. The terms ‘study’ and ‘professionals’ and ‘research’ have been rather too generously deployed in these sex-offense matters. While he doesn’t mention it particularly, some government publications support their awesome numbers of ‘offenses’ with “unofficial records” which, when you think of it, could be just about anything, asserted by anybody.

Then there are vast numbers of offenses asserted to take place but are ‘hidden’, i.e. unreported.

How it is possible to make that assertion about what is by definition unknown? This is another of the questions that has been begging for consideration. And how is it that massive changes in law and the weakening of Constitutional and jurisprudential praxis have been effected on the basis of such assertions and have been implemented with little or no serious deliberation ... this is frankly jaw-dropping. This is, after all, the 21st century and folks were supposed to be a lot more enlightened than this, especially after the awe-full examples set by other nations and peoples in the raving, blood-soaked 20th.

But ‘enlightenment’ has come to mean something else altogether now; one has to ‘get it’ not by applying one’s mind but insyead by going out and joining this or that crowd making loud demands en masse. In this sense, one thinks of the Fundamentalistic assumption that ‘thinking’ is the enemy of ‘faith’, to which no revolutionary could do more than add ‘faith in the Cause’.

Nor can any serious citizen comfortably read of this yet-again resurgence of the ‘dangerous other’. Although it is accepted quietly by many knowledgeable in the field that most sexual transgressions take place in the home or among acquaintances, yet the only incidents vividly brought to public attention through the media are those actually rare incidences where complete strangers violently obtrude into the lives of children, “stranger danger” as it is pithily called. The long-familiar human tendency to find status and the release of anxiety the easy way – by demonizing some suddenly focused-upon ‘dangerous other’ – is not something we like to recognize or acknowledge in oh-so-modern, sensitive, tasteful, and enlightened America.

This sort of thing is for peasants, benighted primitives, Southerners before 1965, and – with some justification – Central European villagers chasing Frankenstein’s monster with rakes, torches and shovels. Real and modern Americans aren’t susceptible to such outbursts – at least not anymore. There were the villagers of Salem, but they were more English than American; and there were the mobs that burned the Catholic convents in Charlestown in the 1830s, but that was then. There were the aforementioned Southrons, but they’ve gotten over it. There were the Californians who got rid of pesky Japanese business competitors by getting the government to ship them all out to the desert, but that’s history and anyway, Reagan apologized and paid the survivors some money so they’ve got no reason to complain. Yah.

But we are not dealing with monsters here; we are dealing with citizens, and of this Republic, our Republic. If their rights don’t mean anything, and if Law can be overrun in order to ‘get them’, then nobody's rights are long for this world, either. Nor is our character as a democratic People safe and secure. But such thoughts are too abstract for revolutionaries and mobs.

But then again, we really can’t be sure how many citizens support all this, and how many are just keeping quiet, hoping they’ll be allowed to get on with their increasingly difficult lives. In law, the rules of evidence have been effectively weakened in the name of ‘reform’ and ‘responsiveness’, which for all practical purposes means that in the face of someone making an almost unprovable assertion, the Law should accept it as-is without further distressing the asserter by ‘insensitively’ asking questions.

The wisdom of placing statutes of limitations on cases appearing before civil or criminal courts – so that there is at least some reasonable hope of getting to the facts through witnesses and testimony and evidence – has gone by the board. No wonder, perhaps, this Administration figured it didn’t need real evidence to go to war, but simply needed to make its assertions; the folly of that gambit is only now coming to light.

How seriously one can take such assertions as the basis for deploying the awesome police power of the State is another issue begging for consideration. And this acceptance of somebody’s ‘story’, its evidentiary value based purely on the vividness of the telling, not only recalls the ‘spectral evidence’ of a more primitive age, but also bears a baleful resemblance to the Fundamentalistic assumption that one’s conversion is demonstrated not through a solid grasp of the faith but rather through the intensity of one’s conversion ‘story’.

It appears now that the Springer-ite and Oprah-ite shows are essentially secular versions of a revival meeting, foreboding an alliance between ‘Left’ and ‘Right’ that combined to form a not-quite-perfect storm. In that regard, and a true jaw-dropper is this: Janus quotes (but does not necessarily agree with) the claim made by many of these 'sex offense experts' that the reason these laws are needed is that there is a 'prevention gap', i.e. that the country is wayyyy behind in a race with 'sex offenders' who are 'addicted to' their crimes and so the country must declare a state of emergency to attempt to perfect the wall-of-perfect-prevention, and so all this registration and notification and civil commitment and residence restrictions and GPS must be erected.

While retaining a robust skepticism as to the Constitutionality and demodratic wisdom and rational efficacy of these sex-offense laws and programmes, you have to stop a moment and simply appreciate the sleazy chutzpah of trying to run the old 1950s 'gap' play by the Ameriocan people again.

In the early and mid-50s the anti-communist Right tried in a very anti-conservative way to stampede Eisenhower and the nation into militarism by screaming that there was a 'bomber gap', i.e. that the Soviets had far more intercontinental nuclear bombers than we did (and this at a time when the B-52 was making its awesome debut). Eisenhower, who had seen war and knew the score, resisted them. But just a few years later, letting politics override truth and accuracy, Kennedy campaigned on the assertion that there was a 'missile' gap', i.e. that the Soviets had far more nuclear warheads and ICBMs than we did; we found out much later that when he made the assertion the Soviets had fewer than 10 and we had something over 1200.

And now come the 'sex offense experts' who claim that the integrity of the Constitution needs to be compromised so that we can get at this newly-erected class of 'dangerous other' because there is a dangerous 'gap' between 'prevention' and the sex-offenders irresistibly addicted to their crimes. Once it was dedicated Communists who were hiding in plain sight all around us and among us; now it's sex-offenders (almost all of them, by the way, 'men').

We shall end up not with the protection of a Great Wall of China, but rather with the modern Chinese system of policing and governing. And do the P.R. folks whom these 'experts' hired (no advanced-level Advocacy can do without them) have any concept of the baggage that the 'gap' gambit carries with it?

Still, their deployment of it reveals their strategy: inflate, conflate, escalate fears, stampede the herd. And Constitutional praxis has further been compromised. To give the State and national governments such power to curtail the freedom of a citizen without rational justification is hugely disturbing. Civil commitment statutes have been upheld on the basis of the Supreme Court’s opining that even if the highest medical and psychiatric organizations don’t consider a ‘sex offender’ per se mentally disturbed, nonetheless it can be left up primarily to politicians and legislators.

This heretofore well-hidden intellectual and diagnostic competence among state and national pols is a revelation indeed; the competence of Congress-members already enjoys a certain reputation.

Our attention is urgently needed here. We would do well to kick some damn tires.

Nor can it be said that the marriage of convenience between the therapeutic and jurisprudential modalities has been successful. You can't run the thereapy 'play' on the courtroom 'field'; you can't transfer the drama of thereapy to the drama of criminal justice.

In therapy, especially when perfused with Freudian attitude that much of what drives human behavior is unconscious and beneath awareness, the therapist is free to suspect, to formulate theories which if after a while bear no fruit can be altered. Certain strategies can be employed, if the therapist is personally convinced that the trouble has been correctly identified, which box the patient in, on the presumption that the patient is indeed thus afflicted the way the therapist thinks he is and if the patient doesn't agree then the pateint may well be in denial. Such is therapy: the therapist quietly formulates a diagnosis, and works on that basis. If mistakes are made, the therapist can quietly change course and take a new tack.

But a court, wielding the criminal-justice authority of the government, is permitted no such liberties. Assertions have to be proved then and there with facts that can be examined and challenged, and at the end of the day a decision must be produced as to guilt or innocence, a decision bearing great consequences for the liberty of the accused.** Thus what might appear as mildly manipulative or perhaps heroic interventions in a therapy setting – as for example claiming that if the patient admits his affliction he is indeed afflicted and if he denies his affliction then he is simply ‘in denial’ – take on hugely ominous proportions in a court of law.

Because when a court quietly makes up its mind and then figures it 'knows' and that whatever the defendant says is unreliable and that 'facts don't matter', well then you're looking at a type of 'justice' that is very - ummm - early 20th century, if you get my drift: Russia, the Third Reich, Mao's China. And this can't be good for a modern democracy.

To stage the classic and rather theatrical ‘intervention’ in the courtroom setting, with the consequences of criminal conviction added for a certain frisson, does not constitute a more intense form of intervention but rather a violent and profound perversion of Constitutional and jurisprudential principles.

But yes, such a gambit will yield a more intense form of theatre, hence the media’s attraction to it. As things stand now, great big holes have ripped in the Constitutional retaining walls. And in a not too distant tomorrow, the ‘emergency’ and ‘outrage’ against sex matters having been established as 'normal', those empty spaces will permit the police power of government to flood in and enlarge its scope of invasion by declaring some other group or class as 'evil'. Until maybe we reach the Day when there will be nobody left to speak up for anybody else.

THAT Day, and not some angel-crammed fire-and-sword-and-sandal epic, is the awful Day that hovers along the line of our march into the future.

The core problem with the feminist agenda is that it sought to effect its revolution by inviting the vampire of the police power of the State into the most central and most intimate areas of citizens’ lives. Yes, the feminist insight that there is a lot more unwanted sex than there should be, is spot on. Yes, the feminist dismay that female biology has left the woman in such encounters facing the consequences, is very understandable. Yes, the feminist anger at the physically less-strong musculature of the female leaving her at a disadvantage in relationships with the male of the species is also spot on. Yes to all of that. And things need to be changed.

But none of this was demonstrably the result of some purposeful patriarchal conspiracy extending over millennia, handed down from guy to guy like Freemasonry was thought to be passed on to fresh generations of secret initiates. Nor can we accept as sufficient the assertion that the ‘structural’ lineaments of civilization have evolved to the point where all of this content is pre-loaded, invisible and unconscious, thus justifying that we should without further ado rip numerous hull planks out of the Republic and the Constitution in order to hugely and rapidly change how citizens think. Or think they think.

It was probably a certain prudence that kept Western law out of the ‘home’. Not just because a man’s home was his castle, but because it was clearly perceived that there is utterly no way an earthly judge – or jury – can figure out what happened in most of the quadratillions of sexual encounters that take place in any human society.

Here, as an example of the troubles Janus faces, he accepts a rather over-done PC reading of Sir Matthew Hale, Lord Chief Justice of the Court of King’s Bench in the 17th century. Hale opined that “[A rape charge] is easily made and once made impossible to defend even if the person accused is innocent”. Echoing uncritically the archetypal feminist interpretation, Janus sees this as evidence of collusive patriarchal insensitivity, and with malice aforethought.

But surely Hale makes perfectly good sense. How on earth do you find out what actually happened in a he-said she-said (or he/he or she/she) encounter, especially in the privacy of a dwelling? Hale, himself a staunch defender of the limits of government’s power in the life of a citizen and well-known to the Founders, realized that to bring the battleship of criminal law into the tiny and shallow inlet of the individual thatch-roofed home and start blasting away with the 16-inch main battery of felony conviction and imprisonment and registration was going to be a disaster not only for the citizens but also before long for the validity of the Law itself.

And then the royal prerogative would surge back into the hard-won space for civil and free society carved out with much blood, tears, and sweat over centuries of legal and political development extending back beyond Magna Carta to Alfred the Great and the canon law and the Romans. (Yes, I know – they were all men, but I don’t accept that as a conclusive, if even a completely relevant, argument). We are running into all those problems now.

Just a few days ago [this article was written in December, 2006] the prosecutor in the Duke lacrosse-team rape-case withdrew the rape charges because the accuser suddenly could no longer recall if she was ‘penetrated’, although she had previously been certain that she had.

I don’t pretend to know how such an oversight might have taken place, but surely on ground as torturously complicated as this we cannot be operating the massive armored columns of the criminal law. This starts to sound like the Iraq War.

But this, I think, is part of the unseen developments lying behind Janus’s worthwhile efforts. I think that although we have not been so informed by its bosses, the sex-offender thing is starting to fray in ways so obvious that things can no longer be ‘spun’ the way they used to be back in the early days (remember when concern or doubt was just ‘backlash’?). And the bosses are looking for ways to get some distance from the thing before it goes south in ways so obvious that heads will – figuratively anyway – roll. One of his larger refrains is that feminist thought did a superb job of raising consciousness, and of increasing our ‘knowledge’ of sex crimes. Yes certainly to the former, but I’m not nearly convinced about the latter being ‘knowledge’.

But what then happened, he says, was that where the feminists wanted to draw attention to the situation of sexual vulnerability to which women and children were exposed within the domestic setting, the media (though he can’t bring himself to blame them) and other forces (he won’t specifically blame the pols’ vote-pandering or the citizenry’s volatile instincts) somehow hijacked the good idea and went and turned it into the sex-offender craze, and all to the feminists’great dismay.

But I say that even if all of this just sorta got out of control, then like somebody who started a classic Southern Californai wildfire by lighting a barbecue just to grill some hot dogs ... that's still a very baaad thing.

And the wildfire has not only spread, but sparked other wildfires. Because so much of what lubricated the Iraq invasion was first deployed in the sex-offense mania:

Emergency-ism: this is a unique and uniquely evil situation that requires unusual and extreme measures immediately, with no time for deliberation.

Evil-ism: these folks are so evil that any sort of deliberation and skepticism is itself evil, delaying the measures necessary to deal with the problem.

Feeling-ism: Thinking is not what’s needed now because matters are so urgent that the best thing to do is let your outrage motivate you; and with Feelings you don’t need facts, and the only truth you need to know is the awfulness of what they are and what they do.

Just-one-ism: no matter what we have to do, if it only saves ‘just one’ then it will have been worth it.

Just-trust-us-ism: we in government know what’s best so don’t ask questions if you hear about lack-of-justification and lack of planning and – oh, yeah - torture.

And so Saddam could be connected to al-Qaeda, an impossible scenario to anyone familiar with the actual situation; WMD could be conjured up and then proclaimed to be “imminently” deployable; anyone who doubts or tries to present inconvenient facts has to be discredited; ‘mistakes’ can be made with impunity because the emergency is so great, even if people wind up incarcerated for years; failures can – at least until they become too large to hide – be hidden or spun or even lied about with impunity, especially since the media will simply take its cue from the government.

We’re seeing the effect of this on the national government now; imagine the corrosive effect on law enforcement. It’s late in the day, and a lot of damage has been done – including stuff that can never be made up for, and we face the report Janus quotes to the effect that things are not going to be getting better but are actually – years after ‘experts’ predicted that the special measures needed to stamp out sex-offenses would fade away of their own accord – giving fair promise of expanding exponentially. Our own personal domestic Iraq-Afghanistan-Pakistan, and they say that generations of Americans can expect to be fighting it. What will this country look like after generations have gotten used to sex-offense mania-law?

It is to his great credit that at the very front of the book Janus quotes the words of Thomas More’s character from Robert Bolt’s “A Man For All Seasons” In response to his interlocutor’s assertion that he would “cut down every law in England” to get at the devil, More replies: “And when the law was turned and the devil turned around on you, where would you hide; the laws being all flat? This country’s planted thick with laws from coast to coast, and if you cut them down, do you think you could stand in the winds that blow through them?”

With almost eerie prescience, Bolt captures precisely the madness that has so much undone our own Constitutional system: the identification of ‘the’ or ‘a’ devil, the ensuing urgency to ‘get him’ that justifies cutting down the laws that the devil might hide behind, and the ensuing unintended and witlessly unforeseen consequence of all manner of even worse evils flowing in through the holes that had been cut. It's like chopping holes in the bottom of your ship on the high seas in order to drown the rats you think are down there. Usually only Homer Simpson does stuff like that.

We face that today in our domestic and foreign pursuit of ‘the devil’ or ‘devils’, an analogy morally impermissible to apply to human beings under any circumstances.

Let us not be distracted by questions as to whether Bolt's almost precise foresight must constitute a form of brilliant insight; the examples of the European 1930s were fresh, those of the Japanese internments of 1942 even fresher, those of McCarthy in the 1950s even fresher still. Those who had eyes to see, saw.

And did the feminists (I am not using this as a synonym for ‘women’) imagine that their own focus on the domestic sexual forum was not going to wind up inviting the police power of the government into home and hearth, into the intimate private lives of the citizens?

And did they not consider that such a gambit was fraught with fundamental Constitutional dangers of the highest order?

And did they not notice that according to their own theory, a 'war' against both sex and the male half of the population was only going to serve as a wave upon which the invasive forces of the government police power could effect even further invasive landings?

And did they and their conceptual offspring, the victimists, not notice that the sustained application of that police power was simply going to draw the government in and the civic polity down? Is any of this news to them? If so … if not …

So something is afoot in this domestic campaign that was so brassily begun. The feminist philosophers whose thought – whether or not it is still accepted as valid – underlies much of the current sex-offense legislation may not have envisioned so utter a co-optation of victimhood and outrage by the government, but they must have realized that going after ‘men’ for sexual activity was a surefire way to gain some leverage for the Cause, and – in the accents of Muldoon of the Strong-Arm Squad*** – even if a particular ‘man’ was not guilty of this or that particular accusation, the chances are he was guilty of one somewhere sometime.

This approach to the criminal law is – again – hugely regressive and profoundly un-American. It represents a hark-back to the rough ‘justice’ of a peasantry, weirdly paralleling the Fundamentalistic yearning for the good old days of the village. That such a programme was espoused by so many academics paid by the most prestigious universities masked for a time the raw conceptual primitivism of the actual plan, just as the grossly flawed programme of the Iraq war was hidden behind the golden-hot aura of patriotism and enthrallment to the trappings of Executive status. For a while.

Now, in yet another eerie symmetry, the domestic ‘war’ which mid-wifed the foreign war in Iraq is itself running into the same level of un-spinnable realities that are sounding the knell of our imperial Cause. We may hope that its passing is not long delayed. Not so that we might childishly ‘forget and move on’ but rather so that we might face soberly the consequences of our actions, mending what can be mended and mourning what we have irreparably harmed. This is the same ‘medicine’ that we have insisted that sex-offenders take so that they might be re-admitted to our society.

Our Iraq gambit has created far more victims than any ravenous sex-offender or regiment of same could ever have perpetrated. So far our media refuse to help us face those consequences.

Nor can we present in our defense our own traumatization on 9/11. In the eyes of the world we are all sex-offenders now. And still in denial. Chances of a conviction are pretty damned good, as Bush’s Gang have already figured out. Let’s take our own best advice and make the necessary changes in ourselves. There is nothing sturdier than a soul that has metabolized its own failures and sins and crimes. We’re going to need that sturdiness of spirit and soul now. And our example will be a service of expiation to the world’s peoples.

As for the sex-offense mania: let us save the baby and throw out the ocean of bathwater. The marvelous vessel that was entrusted to us by prior generations of Americans all the way back to the Founders has now been chopped open and the seawater of authoritarian control is flooding in, mixing with the fetid bathwater of the sex-offense laws. Floods are bad things, but especially so in ships.

We cannot afford primitivism now, whether secular or religious, whether of the Left or the Right, whether baldly advertised as increased authoritarian control or shrewdly hidden in the swaddling clothes of sensitivity to a perceived emergency.

It’s no longer ‘California or bust’. It’s ‘Maturity or bust’. Political and personal Maturity. We have a new Frontier again.

NOTES

*This would be December of 2006.

**I wrote just last week here about the gentlemen who has spent 20 years in prison and only now are his accusers recanting testimony that should never have been deemed credible to begin with.

***In William Marshall's novel "New York Detective", about a detective and his Irish patrolman side-kick Muldoon in 1880s New York City, Muldoon explains his philosophy of law enforcement and criminal justice thus: I have to make an arrest quickly in order to keep my sergeant happy, who has to keep the Inspector happy, who has to keep the Chief Inspector happy, who has to keep the Commissioner happy; here I have arrested a man who I know is a career bad-guy and must be guilty of something; whether or not he is guilty of this particular crime I don't know and maybe - even probably - he isn't; but he's guilty of something, so when I pinch him and he goes away, the whole police force is happy, the citizens of this great City are safer, and in the great balance-book in the sky the accounts will be evened-up, even though in this particular case I had to stretch the dear old law just a bit.

This is a charming bit of folksy wisdom that is fatal to the Constitutional vision of the Republic and of the Citizen. In Muldoon's view, the policeman is God's agent (or whoever is keeping the account book up in the sky) and the people he encounters in the city are easily classed as 'good' or 'bad'. By departing from truth under the authority of his badge, Muldoon will be following 'a higher law' that justifies him breaking the City law. And that's OK because he's pretty sure he's got 'a' bad man, even if not 'the' perpetrator in this particular case. And even if Muldoon pinches an innocent man (although no 'bad' man is really innocent, ye know) God will sort it out.

Once you've turned the police authority loose to make arrests and testi-lie according to its own lights, then you've opened the door and invited the vampire of the police-state into the American house.

The Founders were first and foremost concerned to avoid the arbitrary deployment of the government police power against the Citizens. If some guilty got away, it was better than having the innocent ensnared and the police-power allowed to run loose. God's justice would, in the next life, catch up with whoever got away in this life. But the Framers weren't going to let the police-power of the State run loose like it had in old Europe.

As the postmodern world has denied the existence, or at least competence, of 'God', so it has started to try on its own - as it were - to stamp out all the 'evil' in this life. And that has meant that the government police-power has been brought back again as the most 'efficient' tool available to stand in for God in the task of ensuring total justice. The police-power, working according to its own lights and with the authority of the government supporting it uncritically, and tasking it with ever more intrusive assignments, is back in the saddle - just like in old Europe.

This is not progress. This is hell and gone from the very heart and soul of the Founding vision.

CATHY YOUNG’S BATTERED WOMEN – AND MEN

A BAT SHOULD BE A BAT

I’ve just come across a new article by Cathy Young. If you haven’t read her, she’s well worth it. Balanced, acute, and independent in her thought. She’s a contributing editor at ‘Reason’ magazine, which has a website as well. Getting the sense and the sensibility of her take on things is worth the read.

In the piece I’ve just read, she’s talking about ‘battering’. It’s not precisely within the parameters of SO concerns, but it’s relevant. Building up as part of the general feminist influence throughout the 1980s*, ‘battering’ really gained traction when the Democrats took back the White House under Clinton. Before there were sex-offender registries, there were ‘domestic violence’ registries, and their excesses in the name of the emergency of preventing domestic violence (always by men against women) laid the groundwork for the sex-offender registry stuff that followed almost immediately after.

Young notes the interesting fact that ‘Lynn Rosenthal, a veteran of the battered women’s advocacy movement, was named to the new post of White House counsel on violence against women on June 26.” But at the same exact time, Young goes on to report, “a conference opened in Los Angeles disputing the basic tenets of the movement that Rosenthal represents – such as the view that domestic violence is overwhelmingly a male crime against women rooted in patriarchal power”.

Anyone familiar with the problems connected to the ‘battering’ and ‘domestic violence’ legislation and the conceptual framing that underlies it can take heart – at last a wider and more complete assessment is being heard.

The declaration of an ‘emergency’; the deprivation of property without (for 10 days) formal hearing; the issuance of court orders merely on the unsubstantiated word of one party who is hardly ‘disinterested’; the placing of even exonerated persons in a registry maintained by the police and available to employers, landlords, and others; the continued and stealthy expansion of the definition of the offending act until it is bloated far beyond any reasonable descriptor of criminal action (‘battering’ can include silence in a conversation, even if by phone from thousands of miles away); the complainant’s feelings being allowed to define the tripping point when police and court action are deployed; and – as so often nowadays – the ‘male’ as the presupposed perpetrator and initiator … None of this should be completely unfamiliar to the SO community.

As in so many other significantly dangerous legal and cultural developments of late, the presumption that males are always the initiators of violence, and that they are so thoroughly addicted to it that ‘special measures’ and ‘emergency measures’ are required, and that those measures are even justified in overriding traditional Constitutional safeguards (you can’t think Alberto Gonzales thought up ‘quaint’ all by himself, surely) … all of this is now starting to get looked at.

Not that it hasn’t been around for a long time, this professional concern to get the full picture of domestic violence. But the political uses of the topic were more important to too many players than any actual professional effort to get at the truth of the thing. Politicians wanted to keep the lobbyists who said they controlled that huge 51% of the electorate happy; the media loved the good-evil melodramatic scripting which the advocacies and lobbies conveniently faxed over to unripe ‘reporters’ for immediate insertion in the daily edition; the law-enforcement folks saw the opportunity for expanded power, funding, and popularity … something for everyone!

And they even had a ready answer to anybody – female as well as male – who got up and tried to suggest that the causes of the problem might be, perhaps must be, more than simply ‘men’: the response was that any such doubt about the “feminist orthodoxy”, as Young calls it, was merely “backlash”. Case closed.

If you were a student of history, you might note the similarity of such tactics to the propaganda techniques perfected by Joseph Goebbels during his decade-long tenure in that German government that followed the Weimar Republic.

Anyhoo, Young reports on this Los Angeles conference, and observes that it will be hard to pooh-pooh it: “the speakers included scholars, social workers, and counselors; about half were women”. Unless you wanted to trot out the old ‘self-hating’ or ‘masculinized female’ epithet that doctrinaire feminists hurl at women who disagree with feminism’s doctrines about women (and Goebbels had the same tactic ready for members of the ‘master race’ who traitorously disagreed with Nazism), then you’d have to say that there’s a lot more to the matter than anybody has been allowed to believe.

Young mentions one sociologist, Murray Straus, who in the 1970s became a feminist hero for his pioneering work in the study of domestic violence. Until, that is, he began to study “female violence”.

He found that “women assault their partners about as often as men”.

Which, while a perfectly valid research finding, subject to peer review and replication, was totally unacceptable to the political true believers who needed a total and complete Evil Enemy against whom the Movement could define itself and against whom the Movement could stretch its political muscles by imposing all sorts of punishments, without having to stop for any Constitutional red-lights. (And you can see now why all this is of interest to the SO community.)
Men HAD to be evil, because women – the doctrine insisted – were totally good. For the SO community, and for SO legislation where ‘men’ was replaced – nominally anyway – by ‘sex offender’, the dynamics given their first public full-scale deployment in the Domestic Violence legislation can only serve to deepen awareness of just how much of a stampede it all is, and just how a mania and mania-law get started.

“Female aggression must be taken seriously”, said Deborah Capaldi, a researcher for the National Institutes of Health.**

Capaldi notes that “if hitting your partner is wrong, it should be wrong for everybody”. Again, the politically-driven mania-law would violently disagree. The entire world-view of the mania is bipolar and Manichaean: there are only two positions or types, and one of them is totally good and the other one is totally bad. Only in this wayyy too simplistic and cartoonish vision of the world and of human beings can you then flatter folks into thinking that they can be on the ‘good’ side if only they join in the stampede.

Also of interest to the SO community is that Kenneth Corvo, of the Syracuse University faculty, took great issue with “the Duluth model” of treatment. That model takes as its base assumption that all ‘battering’ and ‘abuse’ (another elastic term) is totally the result of “male privilege”; there is no other cause. Alas, the courts have been stampeded into accepting this treatment model as the only approved one, so when a ‘batterer’ is ordered into court-ordered treatment, he (always a ‘he’) is going to wind up in a Maoist-model ‘re-education’ program designed to get him to accept and then renounce his ‘privilege’.

Drugs, alcohol, mutual violence, psychological or psychiatric problems, a deficient up-bringing … none of this will be addressed.***

Needless to say, this isn’t going to greatly help a lot of folks mandated for ‘treatment’.

The ‘treatment’ issues facing SOs are much the same. Some of the biggest professional proponents of treatment are saying – even now, after almost 20 years of legislation – that we know almost nothing about sex-offense dynamics; indeed, the master directory of mental health diagnoses – the Diagnostic and Statistical Manual (DSM) – doesn’t even have a diagnosis entitled ‘sex offender’.****

This, of course, should have given any sober legislator pause, but … no. And as a result, all manner of ‘experts’ have set up shop and started billing for services, though an SO mandated for treatment may well wind up in some SO version of “the Duluth model”. Such treatment, as Corvo says of the Duluth-type treatment, “is largely useless”. But it plays well to the voters, or at least to the media.

And of course, given the no-longer-sacrosanct relationship of therapist and patient, persons with ‘arrested development’ issues and who have never come to the attention of the criminal justice system or the SO laws but who genuinely want help are prevented, by the workings of the mania as well of the mania law, from seeking treatment since they may well be ‘reported’ by a therapist who is ‘mandated’ to do so. Which is a self-defeating effect of the laws – unless the purpose of the laws is really just to cast as wide a net as possible to ‘keep up the numbers’.

Young concludes with a quote from President Obama about “ensuring that scientific data is never distorted or concealed to serve a political agenda”. If that advice is followed, it’s hard to see how any of the SO laws can stand.

And it’s hard to imagine that Obama – a Constitutional law professor, after all – doesn’t have SO law in mind when he says this.

Which is encouraging. But don’t go popping any champagne corks just yet. The fact that even he can’t come right out and mention the SO mania directly demonstrates how deep the mania has really gripped the country.

Let us continyuh, as LBJ would say.

NOTES

*I am not saying that all feminist thought is bad or that it can all be reduced to this or that; but some of the consequences of some of its more radical proponents, when fueled by a legislative frenzy to please a theoretical 51% of the electorate, have created some very baaad things.

**I recall reading somewhere recently that lesbian couples report notably more violence than male homosexual couples. It seems to me that the increased levels of testosterone in the lesbian might have something to do with that, but that’s still a matter for much research. As it should be. But politically motivated ‘doctrine’ is not going to get us anywhere.

***One writer made the observation about Michael Jackson: “Jackson’s psycho-sexual development might have been arrested somewhere in pre-adolescence, and his affinity for young children, especially boys, would make any parent uneasy. But no one had made public any evidence of real harm Jackson has done to any child. A mature man sleeping with a young boy – merely sleeping – is neither a crime nor prima facie evidence of evil influence”.

The "arrest of psycho-sexual development” is standard stuff for mainstream therapy. And is probably as widespread in the population as other forms of immaturity. No news there.

But you can see what happens if somebody with that issue winds up in a mania-therapy along the lines of “the Duluth model”: not much help and probably much damage is going to be the result.

I suppose I should say here what I said in my first Post: I am not implying here that it’s a good or positive thing for adults to be sleeping with children. Of course, in the interests of balance, let me also say that I don’t think that it’s a good or positive thing when, on the basis of premeditated untruths, adults holding positions of public trust create a war in which persons just a day beyond sex-offender ‘child’ or ‘minor’ status are induced by said adults to be cannon fodder in the said war.

****See for example: Janus, Eric S. “Failure To Protect: America’s Sexual Predator Laws and the Rise of the Preventive State”: Cornell University Press, Ithaca, NY; 2006. The question that screams for attention is: If even the best psychological and legal professionals acknowledge that we know so little about the causes – let alone treatment – of ‘sex offenses’, then on what basis have so many dangerously intrusive laws already been enacted?

Of course, the way mania-law works is that the stampede created by the ‘emergency’ very effectively (and conveniently, for those who want to start the stampede) overflows the restraining-wall created by the huge lack of actual knowledge or the existence of actual knowledge that actually would put the brakes on the stampede. Mania-law proponents are always leery of ‘knowledge’: they prefer that folks just yield to their emotions, perhaps lubricated by a few cooked statistics by mania-friendly ‘researchers’.

The aversion to actual knowledge – and even to careful deliberation and thinking – is one reason that the many ‘emergencies’ and mania-stampedes of the past decades have resulted in a profound decline in the citizenry’s ability to process information. Lobbying pressures and media cooperation contribute, as citizens see ‘stories’ in the media and see their supposedly mature legislators (and courts) supporting the whole thing. This dynamic, at the moment restricted to certain target groups, has now been established as ‘normal politics’ here, and can be turned upon anybody, as new stampedes may dictate. This will not end well for anybody.

It may help if at the very least folks understand that the ‘findings’ made by courts and legislators are a matter of ‘selection’. In other words, lobbyists for the law submit ‘facts’ and ‘statistics’ from ‘studies’ whose validity is not deeply questioned by the legislators or the court. What they select as ‘fact’ depends on what they want to ‘find’. Those who oppose also make submissions. The legislators or the court don’t hold serious scholarly debates; they select what they intend to ‘find’. Politics is as least as important as truth in this process. Which is what Obama realizes, I think, when he makes his statement that Cathy Young quotes.

PASS ID LEGISLATION

OH BIG BROTHER

I want to Post on this right now, although I have not yet read the text of the legislation itself. It’s important in many ways, and of especial relevance to the SO and anti-AWASORNA community.
Jim Harper has Posted several good pieces on the Cato site, and I am linking to his most recent here. Within that Post are links to the other articles he has written.

PASS-ID is a variant on the old REAL-ID legislation, which died an undeclared death a year or so ago. You may recall that REAL-ID wanted to link all State driver-license databases so as to provide the basis for what was in effect – even if they never wanted to call it that – a national ID.

The ostensible purposes for this national ID are to combat terrorism, of course, and thus to increase security.

The SO-AWASORNA community will realize immediately that if ‘terrorists’ are the target problem, then ‘sex-offenders’, the class erected almost 20 years ago and the targets of so much intrusive legislation, cannot be far behind on the target list.

The Registrar of the Massachusetts RMV, Anne Collins, has already stated (and I am quoting Harper’s piece here “’If you build it, they will come.’ What she meant by that is that if you compile deep data bases of information about every driver, uses for it will be found. The Department of Homeland Security will find uses for it. Every agency that wants to control, manipulate, and affect people’s lives will say, “There is our easiest place to go. That is our path of least resistance.”

And the government has been building a ‘sex offender’ database for a couple of decades now, and indeed has tied it into drivers-licensing; in most States you can’t get a license or get your license renewed if you are flagged in a linked sex-offender database – and in some way your SO status will come up in any license-check.So if the government is going to find any more ‘uses’ for information, SOs will be right up there on the top of the menu.

If you travel – even within the country by air, let alone outside the country with a passport – you are going to be liable to ‘flagging’; in that way any of these ID-schemes are going to provide the basis for the old Soviet ‘internal passport’ whereby you couldn’t travel freely without producing ‘your papers’ and exposing yourself to god-knows-what police interference.

The French in the Revolutionary era had ‘yellow passports’, internal ‘papers’ that had to be produced if a person was traveling beyond his/her usual domicile; the 'yellow' indicated to all police and magistrates that you were 'a criminal. Unlike the United States, where the dignity of the individual citizen survived even a criminal conviction, the French system recalled the old 'class' distinctions of the aristocratic era plus the 'ontological' distinctions of the medieval mindset. The Framers were pleased and proud to have gotten beyond that.

And of course the Nazis imposed precisely such restrictions in the countries they occupied, as well as on their own German people (theoretically the ‘master race’, so go figure).

The new Obana-era version of REAL-ID is PASS-ID. It allows, Harper notes, for individuals to vet their own information, but this offers no real help. First, it will be impossible for the government to make it possible for every citizen to correct his/her information. And second, if you are ‘duly’ (I am not saying legitimately) listed as an SO by action of the numerous laws (and AWASORNA is a monster designed precisely to cast the widest possible net), then you can’t change that ‘legal’ information without committing a crime. So for most persons affected in this way, simply having an opportunity to ‘correct’ their information won’t do any real good.

Harper also notes the suspiciously vague ‘limit’ in the bill: nobody “without lawful authority” can access the information. You will recall in a recent Post I had mentioned the pending legislation entitled the SORT ACT OF 2009 (S.1146, H.2612)* This legislation was seeking to allow a private organization – comprised of supporters of Megan’s Law – access to the NCIC database so that they could, on their own, go out in search of SOs who are ‘noncompliant’, ostensibly for the purposes of reporting them to the police. If there are Congressional supporters for that – and there apparently are - then “lawful authority” means a lot more than just duly sworn police personnel in the performance of their duties. And if such zealots can get their hands on the NCIC, then they can easily be ‘lawfully authorized’ to troll this PASS-ID database. You can imagine where that might go.

Further, since the State databases now include a digitized photo of you, then the door is open for biometric tracking around the country. That means facial-recognition software, which can be set up anywhere (not just airports, by any means) and who knows what could flow from that?

In all of this, Harper and others note the eternal danger of ‘mission creep’: what starts out with a limited purpose suddenly expands just because ‘the information is there’ and government operatives (and – as in the Megan’s Law group – interested others) tell themselves ‘we can technologically do it’, which almost always quietly winds up being ‘we have to do it’. And that cannot end well for a democracy.**

The SO community is interestingly placed in all of this. The SO community has up-close and personal experience with such mission creep. I have been reading some of the original New Jersey court cases brought against the first incarnation of ‘Megan’s Law’ back in 1995 (and I will be Posting on those very soon). At that time the objectives of the legislation were disturbing but somewhat limited. But in the past 15 years the ‘mission parameters’ of the legislation have expanded and are still expanding (e.g., AWASORNA), and they are getting worse each time (for democracy as well as for SOs).

So this whole matter of national ID cards and databases must become of great concern, to the SO community but also to any sober and serious American citizen.

One last point. This just came to me this morning over coffee in conjunction with something else I was working on, but it’s important enough, I think, to mention it right away; you will be hearing more about it as I go into the Court cases, and it connects with the crucial US Supreme Court case Smith v. Doe about which I recently Posted.***

One of the most fundamental keys to the legal sustainability of SO laws has been the ‘finding’ that these laws are not ‘punitive’ but only ‘remedial’. Thus, they are not intended to inflict punishment, but merely administrative and regulatory attempts by legislatures to fulfill their responsibility to public safety.

I am reminded of the February 1968 incident of the USS Pueblo. She was a small, clunky, little trawler of a ship of the US Navy whose job was to collect intelligence by picking up electronic transmissions of any kind then known. Though she was manned by a Navy crew, she had no guns and no aircraft and was totally incapable of doing anything a ‘warship’ could do.

Nonetheless, the North Koreans considered her a military ‘threat’ and captured her while she was operating just off their coast, listening with her equipment to their radio transmissions and lots of other stuff.

The Pentagon made some noises about the fact that she wasn’t a warship and therefore she was not a military threat. And in some sense that was true. Or would have been, as late as World War Two and certainly in the age of sail.

But in the electronic age of 1968, though she had no guns or aircraft, she indeed posed a military threat for all practical purposes: she could hear military and government conversations and transmit that information quickly back to Washington, in almost real-time.

The distinction between ‘warship’ and ‘Navy ship’ was completely inadequate to describe her, due to the ‘world’ or the ‘milieu’ surrounding her in 1968: electronics and electronic transmissions were by then an integral part of military operations and any ship capable of tuning into them was capable of directly affecting the military operations.

The Pentagon, for a while, wanted to have it both ways: she was indeed a US Navy ship but she was not a ‘warship’, not a ‘combatant’. But she was not tanker or cargo or supply ship, let alone a hospital ship. She had no guns or aircraft and her purpose was not to conduct shooting-operations, but she was no ‘non-combatant’ – she had the power to inform the actual combatant forces in real-time and she was a potent part of that team.

So too in the sex-offender legislation. To say that the laws are not ‘punitive’ simply because they say they don’t want to be, or because they don’t come ‘armed’ with prison sentences and so forth, is to apply a hugely outdated definitional scheme to a very modern ‘world’: where persons are quickly linked to information (accurate or otherwise), where mass societies can be agitated by vivid stories (accurate or not) and made to fear (rationally or not) for their safety, where electronic databases can keep files on citizens in a way that the Gestapo could only dream of and that not even the old KGB had access to … in a ‘world’ or an ‘environment’ like that, then these laws are indeed possessed of the capability to create serious consequences for individuals that they target.

The legislatures and far far too many of the courts are trying to run the old Pentagon gambit of the Pueblo era: use an old-fashioned definition, so outdated as to be almost ‘unreal’, in order to justify what they’re trying to pull off.

Naturally, their efforts depend upon a whole lotta people just taking their ‘word’ for it and not looking at things any more closely.

That’s where we come in. And that means you.

NOTES

*See my Post “S.1146: The Camel’s Nose Under the Tent” on this site, June 23, 2009.

**I have a clear impression that here and there in some State-level SO legislation I’ve seen the phrase “the sheriff or his designee” when referring to who is authorized to check up on ‘compliance’ of SOs. If this dot is connected to or winds up connecting to such groups as the Megan’s Law group or to for-profit organizations who are willing to be ‘designated’, then there is profound potential for Constitutional corrosion. The legislation doesn’t say “sheriff or deputy” or indicate that the “designee” has to be a sworn police officer at all.

And as I say in the “Camel” Post listed immediately above, individuals or groups could put themselves forward as potential designees for any number of reasons, and sheriffs could appoint them for any number of reasons: groups may have vendettas, or need to ‘keep their numbers up’; sheriffs may not have the manpower and resources to do all the legislatively mandated checking-up, or may feel that the whole thing is way over the top and that they have more important matters to attend to.

As we are now seeing come to light in Pentagon and Congressional acquisition strategies, you want to craft a plan that has something in it to sweeten the pot for as many worthwhile interested parties as possible. The pro-SO-laws groups get ‘purpose’ and maybe even some funding, lots of creds, and get to’ keep their numbers up’; law enforcement either gets to use groups that are not bound by formal law-enforcement procedures and regulations to do the dirty work, or else it gets to fob off fruitless tasks to groups (groupies, in a way) that are eager to do ‘field work’ under the aura of police authority. You can do an internet search under ‘Vigilantism’ or ‘Iron Guard’ if you need spelled out in a bit more detail just how bad this whole idea is.

***See my Post “Some Thoughts on ‘Smith v. Doe’ of June 23, 2009.

ADDENDUM

I’ve looked at the legislation (S.1261 in the 111th Congress; entitled the “Providing for Additional Security in States Identification Act of 2009” or the “PASS ID Act”)/ It’s only about 15 pages long and you can review it here. Harper’s discussions pretty much nail it in terms of description. Its relevance to SOs is what I’ve dealt with above.