Monday, July 6, 2009



I want to explore the relevance of Obama’s recent speech at the National Archives to the sex-offense phenomenon.

In doing so, I am going to use several of Obama’s comments as a jumping-off point. But I am also going to be using a recent book entitled “Laws of Fear” by a prestigious Democratic and Obama legal adviser, Cass R. Sunstein. Sunstein is highly influential in Democratic circles and most certainly familiar with the Beltway modes of thinking and proceeding.

As I get into Sunstein, I am going to quote relevant passages (giving page numbers for your reference) and then make my comments. This is a little different from a pure essay or article format, but such a bullet-point approach makes it easier to follow.

Let me say a couple of things at the outset. First, I am not politically averse to Obama as President and I respect the huge complexities of the tasks he faces.

Second, in all of my thoughts on the ins and outs of the sex-offense phenomenon, I am operating from the assumption that no matter how convoluted and even dangerous the sex-offense phenomenon’s effects, no human being should be subjected to unwanted sexual intrusions by another human being. And that any human being who finds him or herself prone to try to inflict such intrusions needs to take command responsibility for not-doing that.

So the various errors and mistakes in the government and public actions in regard to the sex-offense phenomenon – and I think that they are many and deep – do not absolve any individual inclined to be sexually-intrusive from the responsibility of getting control of him or herself. There are many sources of assistance available, even though ‘reporting’ laws can sometimes now make things more dicey. But nobody is blocked from assuming within himself or herself a firm ‘command stance’ that is committed to making whatever changes ‘inside’ that will eliminate such intrusive incursions into the lives of others.

So on to Obama and Sunstein.

Obama says that “my single most important responsibility as President is to keep the American people safe”. Actually, that’s not in the Oath of Office – the President’s job is to “preserve, protect, and defend the Constitution” and there’s always the bit about seeing that “the laws be faithfully executed”. The Framers thought that the best way to keep the American people American was to protect the Constitution; because if the Constitution went, there would be no American people ... except in the mere geographical sense that there is a country called America and certain folks belong to it.

But 'America' was more than that to the Framers: an 'American' was a person committed to the vision enshrined in the Declaration of Independence and the Constitution. An 'American people' uncommitted to the Constitution would cease to be the 'American people' in any sense the Founders would accept. That's how unique America is. That's why they were all so excited back then: 'America' wasn't a chunk of turf a bunch of folks happened to live on - it was a living idea that drew its life from the citizens' commitment to the Vision that first breathed life into the Constitution.

His comment reveals something significant about how things have changed in the country: starting in the atomic era after 1945, with the danger of sudden and catastrophic Soviet atomic attack, the role of the President (as opposed to Congress) increased, and especially since the increase was for the purpose of protecting, we started to think of the President as Protector.

This is not quite how the Founders envisioned it; they would immediately think of Cromwell’s unhappy dictatorship as Lord Protector of England and immediately say No Way.

And given the growing influence and success of American corporations, we began to see the President as sort of a CEO, and maybe the Congress as a Board of Directors of the Corporation. And that’s not really what the Founders envisioned: if anything, The People would be the Board of Directors, the Congress would be the CEO, and the President would be the Chief Operating Officer.

But then – and with no disrespect to the women’s movement – one of the consequences of the rise of ‘women’s issues’ became an intense focus on domestic safety and security, and on a corresponding fear of victimization, especially in matters of male-female relations.

And since the Beltway suddenly realized that the women’s vote theoretically constituted more than half of the national vote, such issues and concerns suddenly gained tremendous political influence.

And the ‘mother’s’ concern for children, especially as family life and parental attention began to spread thin and children were more often out in the world than ‘at home’, developed into a national policy concern as well.

‘Safety’ and ‘security’ and the fear of not being safe and secure … there are more than enough ways that fear’s worst-case scenarios could be realized in the modern world.

But Obama goes on to say that “in the long run we also cannot keep this country safe unless we enlist the power of our most fundamental values”. Which is very true. Our fundamental values, and the vision of the Founders as to how democratic government and politics would basically work in a Republic, constitute the unique gift that America brings to the world and its history. That ‘people’ could become The People, and could be entrusted with governing themselves by governing their government … this was a radically new thought (even kind of radical for many of the Founders!).

He then says “unfortunately, faced with an uncertain threat, our government made a series of hasty decisions”. Oh yeah.

And that brings me to Sunstein’s book.

Sunstein writes this book to explore the interaction of “fear, democracy, rationality and the law” (p.1). More specifically, “how should a democratic government respond to public fear?” (p.1).

Because we are a “deliberative democracy” (p.1) . And that means that careful thought and reason has to be applied to an evaluation of threats that we feel are the cause of our fear; as opposed to a “populist” approach, where the “rule of law” is overridden by simply giving in to “baseless” fear (p.1). He’s using the word ‘populist’ in a special sense here, going for the sense that people simply transmit their fears and feelings directly into public and government policy with no intervening deliberation and careful thought.

It’s interesting because in the psychology of maturity, it is precisely the task of the uniquely human ‘frontal lobes’ and ‘prefrontal cortex’ (those parts of the brain that we do not share with other animal life-forms), to provide a sort of speed-bump between the emotion-centers of the brain (which we do share with animal life-forms) and the actions we actually take. The ability to ‘step back’ from our own emotional surges and evaluate them is a remarkable human ability. You can say that the Framers – even without the scientific knowledge of the human being we have today – put together a political system that relied precisely on the most unique elements of the human brain and of human capability.

I would add here that since we are still a young species, we have not mastered those capabilities to the point where we are reliably ‘deliberative’ all the time. We are dynamic creatures that way; the interplay and the interaction between feelings and thoughts has to be watched all the time, just like the crew of a nuclear warship has to keep an eye on ‘the reactor’ all the time to make sure that ‘the reaction’ is proceeding properly. Otherwise, things get out of whack and can ‘go critical’ – and that’s not what you want.

So the government has to have some amount of “accountability” to The People but it also cannot allow itself to be stampeded by people, especially if people start to get so agitated that they want to break down the rule of law – like a stampeding herd. It’s a bit of a complex vision here: The People hold the government accountable, but one of government’s jobs is to make sure that it does not yield to (let alone encourage) a stampede by people.

But then Sunstein gets into something verrrry interesting (because a lot of what he writes reflects how they’re thinking in the Beltway): “well-functioning democracies often attempt to achieve consensus on the basis of incompletely theorized agreements” (p.2). He’s saying that sometimes consensus is achieved on how to deal with perceived problems through policies, laws, or regulations … even though the problems themselves aren’t really completely understood.

This is hugely relevant to the sex-offense phenomenon.

And it’s important to note that he is talking about environmental law here. In, say, global-warming, we don’t really understand everything about it. But we sort of just know it’s tremendously important because if things go wrong the result will be world-class catastrophe. So even though we don’t know everything or understand everything about it yet, we need to start making some laws, policies, and regulations now. We can’t afford to wait until the problem is completely understood and clear, because by that time it will probably be too late to do anything about it.

And that makes sense. Start cutting emissions and green-house gases now. Even if that’s not the whole of the problem, it’s a start. It’s a good precaution, and the Precautionary Principle says that it’s always good to be looking ahead and preparing for potential harms that may come down the road.

BUT then in the Beltway you get what I call ‘migration’: a way of looking at things that works in one area of concern starts to get talked up, and politicians and bureaucrats and experts in other areas start to see if they can use it in what they’re working on in their own projects.

And suddenly what makes really good sense in environmental law and policy gets applied to – oh say – criminal law and sex-offenses. And you can see where things can go really wrong really fast. And yet everybody in the ‘in-group’ there in the Beltway are thinking that they are not only making a big bunch of potential voters ‘happy’ but are doing it by using the latest cutting-edge thinking. They assume that if a way of looking at things and dealing with things works in one area of concern, then it will work pretty well in any area of concern.

He goes on to define “fear” as “the judgment that we are in danger” (p.3). When humans make this judgment, the part of the brain called the amygdala is mobilized immediately to start neurochemical flows that will press for action (fight or flight, stop it or get away from it).

The amygdala is not part of the uniquely human pre-frontal cortex structure, but rather part of the brain that we share with the rest of the animal kingdom. You can see what goes into starting a stampede: folks get this rush of urges from their brain pushing them to ‘do something’ and a lot of the time they don’t stop to think (with the pre-frontal cortex) What is actually the problem – if anything, and then What is the best way of handling it? Lincoln, faced with General Maclellan’s poor fighting record was confronted by an angry Senator who said Replace him. Replace him with who? Lincoln asked. Oh, anybody, said the Senator. Lincoln replied: you can have anybody, but I must have somebody. You see the problem.

You can also see how such a ‘migration’ into – say – foreign affairs can lead to foreign wars, and pre-emptive wars at that. It’s strange but true: good precautionary environmental procedure can lead to an almighty frak-up in foreign affairs or criminal law.

Sunstein goes on into some statistical theory terms and the psychology behind them. The “availability heuristic” is the term for the tendency of people in a state of fear to focus on whatever ‘cause’ of the problem is available (p.5). “When people lack statistical knowledge” they tend to focus on a cause and an outcome that is most easy for them to imagine.

Of course, if people either have no knowledge, or have knowledge that is (deliberately or accidentally) inaccurate or incomplete, then things are going to get that much worse. We have seen that in the sex-offense phenomenon: people, the media – and worse, the legislatures and the courts, including the US Supreme Court – have used inaccurate information to justify the sex-offense legislation. Recidivism is a good example; the general lumping together of all types of sex-offenses and all levels of severity of offenses and all probability of re-offense, individually and taken as a bunch of mistakes interacting together, create the illusion of extensive and accurate scientific knowledge and ‘proof’ that the laws are both necessary and effective.

Worse, there is the statistical phenomenon called “probability neglect” (p.6): people will focus on the worst possible outcome, and do so without calculating the probability of such a worst-case outcome actually happening. Huge amounts of energy and resources can wind up being thrown at a ‘worst-case’ outcome that actually has little demonstrated probability of happening. Yet they feel better, like the fellow in Manhattan who bangs pots on the street ‘to keep the elephants away’ and is happy and satisfied that it’s a good idea because he’s never had to encounter an elephant on the streets of Manhattan. And politicians, of course, are happy and satisfied if their constituents are happy and satisfied. And the beat goes on.

Worse, there is the statistical phenomenon called “social cascades” (p.6): people can set each other off emotionally. We are like a roomful of tuning-forks: if one starts vibrating, it will set off the rest. Worse, people can actually feel better, actually feel good, simply from the experience of being emotionally in tune with everybody else in their group. So once this thing gets started, our remarkable capacity and even need to be attuned to and ‘in sync’ with everybody else also fuels the fire, the stampede.

Worse, there is the statistical phenomenon called “group polarization” (p.6): such unthinking social interactions lead people in groups to be more extreme in their views; the dynamic of group support – and with no dissenting ‘speed bump’ input – amplifies the original fear and the visions of worst-case outcomes. And if the original fear is overblown or mistakenly conceived to begin with … you see where this can go.

Now in an individual’s system of functioning checks-and-balances, the frontal lobes would put the speed-bump there to break the circuit and the individual would come to his or her senses. And in a governmental system of functioning checks-and-balances, one or both of the other Branches would perform that same task: if the Executive says that it doesn’t look like a good way to proceed, or the Legislative stops and actually deliberates with accurate information, of if the Judicial insists on accurate information and makes its decisions accordingly – if any of that happens, then the frightful stampede can be slowed or even stopped.

But if that doesn’t happen then things can get really big and really bad.

So, echoing Obama’s comment about “safe”, if a lot of folks don’t feel safe, and the Branches don’t help them to get a solid grasp on what is the cause of the problem, and how might the problem be best addressed, then you’re going to wind up with a continually increasing spiral of policies, regulations and laws – which is now not only feeding off the various phenomena discussed above, but is also being fueled and amplified by the media and all the Branches of the government. This, I think, is what happened after 9-11, and it has not worked out well at all.

(And I will add here that by the time of 9-11, the sex-offense phenomenon had already laid down the pathways by which such comprehensive national stampedes could take place.)

Sunstein entitles his fourth chapter “Fear as Wildfire” (p.89). It is a wildfire. But it’s also worse: it’s several smallish wildfires that get out of control and then start burning toward each other to create one monster fire. Think of the Great Yellowstone Fire of 1988 or 1989 where a couple of small fires in the Park were not dealt with well, got out of control, then began burning toward each other, and then joined up together, and created a fire that almost took the heart of the Park.

And of course, in human groups, once this sort of thing gets started, there’s less and less chance of anybody having the courage to stand up and try to stop it. Like in a stampede, any critter or cowpoke that stops in the middle of it or tries to stand in front of it is going to wind up as hamburger. And elected folk don’t like to see their career ending up as a pile of squashed hamburger on some desert trail.

There’s also the social phenomenon that confidence breeds extremism (p.100). If you’re ‘sure’ that you’re right, and especially if you’re supported by others who either agree with you or accept that you must be right, then you’re going to hold an even more extreme form of your view.

And he notes (p.102) that in situations where folks are thoroughly and deeply worked-up about something, then media outlets that agree with those folks are going to make a lot more money. Media outlets, conversely, that try to slow or stop the stampede, will see their circulation slide into squashed hamburger.

Sunstein notes (p.112) that one thinker, Stephen Gardiner, has tried to borrow a concept from the social thinker John Rawls. In the matter of the re-distribution of income toward the poorer citizens, said Rawls, lawmakers should try to maximize their vision of how bad the life of the disadvantaged is – since it’s better to err on the side of being too generous rather than being too stingy.

Gardiner tries to apply this to national-security policy: “when ‘grave risks’ are involved, and when probabilities cannot be assigned to the occurrence of those risks” then you should maximize your vision of how bad those risks might work out. This ‘migration’ was evident in Condoleeza Rice’s comment that even if there was no evidence and no “smoking gun” connecting Iraq to 9-11, still the U.S. should do something before there was “a smoking mushroom cloud”. And so the war. And so we found out that there were no WMD in Iraq. But by then it was too late: too late to stop, too late to go back.

The consequences were “irreversible”. This is a point Sunstein makes: when there are alleged “grave risks” and you feel you have to do something, you especially have to consider – on the other hand – the irreversibility and gravity of the consequences of your action. If a worst-case outcome may happen, but the negative consequences of your planned ‘solution’ will be irreversible, then you have to sit down and balance and calculate and figure whether there is a sufficient probability of the worst-case happening; otherwise you’re going to wind up generating bad and irreversible consequences and it may turn out that the worst-case scenario was not very probable at all.

In this regard, I also note “zero-tolerance”. This is a relatively recent approach to policy goals: it effectively commits the government to totally and utterly eradicating something. In the matter of ‘fear’ or, really, any undesirable reality, it is almost impossible to achieve. This is especially true in the case of crime, which is so often based on human weakness. To declare a ‘war’ on – say – a crime is to commit the government to eradicate a human weakness totally – which is not only impossible but is also dangerous, not the least because it commits the government to a war – really – on its own citizens, and on some of the most stubborn or robust characteristics of those human citizens. It’s a recipe for an unending and destructive misadventure (and can you say War in Iraq?).

In environmental law, Sunstein notes that the European Commission convened about the environment calls for “scientific evaluation” of probabilities and negative side-effects and consequences before governments there commit to massive programs (p.122). This raises the important point of ‘science’ in all of the sex-offense phenomenon. It has become fashionable in recent decades for scientists to engage in ‘advocacy’ (just like journalists). This means in effect that you are putting your professional skills in the service of enlightening folks about a particular issue that you feel is of great public significance. Well and good.

But it doesn’t take long to slide down a slope to figuring that if you’re doing it in a ‘good’ cause, then it will be OK if you put your thumb on the scales of your research findings, so to speak. So we get ‘advocacy science’ where actual scientific authorities – and the far more numerous self-declared ‘experts’ hired by advocacies or dedicated to ‘the cause’ – churn out all sorts of ‘facts’ and ‘statistics’ that aren’t quite what they seem to be. They’re manipulated in half-a-hundred ways to ‘ensure the result’ that the researcher wants to discover.

I know the temptation would be strong among many in the S.O. community to have piles upon piles of ‘proof’ that support their goals and objectives; let's get 'our' scientists to say what we'd like to hear! But honesty and truth are always the best way – and I further believe that the truth of the sex-offense phenomenon is that it is indeed a social cascade, a stampede, and a very misinformed one.

It has been fueled by ‘advocacy science’ that is convinced that it’s OK to jigger the results if you’re doing it in a good cause. This approach was well in place before 9-11, when it migrated into foreign affairs and led to the jiggering of intelligence purporting to justify the invasion of Iraq. It has become a verrrry baaaad national habit.

I’ll conclude this look at Sunstein’s book with his absolutely vital Chapter 9: “Fear and Liberty” (pp.204-223).

Here he essentially points out that when the government makes laws that deprive persons of civil rights, it’s better that the laws be broadly based. Because when that happens – when everybody is put at risk of losing their liberties – then there’s a much greater chance, in a democracy, that folks are going to be looking very carefully at those laws, and they will let the government know in no uncertain terms if they don’t agree.

The greatest danger to democracy and liberty, says Sunstein, is when the government passes narrowly-based laws depriving persons of civil liberties. Because then there won’t be a large group of the citizenry who will be personally affected, and so there won’t be a corrective groundswell of widespread public analysis and objection.

He cites the World War Two experience with the Japanese-Americans of the West Coast: they were selected as a specific group, isolated as a specific group, and since the terrible deprivations inflicted on them did not affect other citizens, the government was able to treat them outrageously. This is precisely the dynamic at work in the sex-offense phenomenon.

And worse, because in the case of the sex-offense phenomenon, a group was actually ‘created’ to be stereotyped as a ‘worst-case threat’ and selectively isolated for deprivation. Worse, in order to create a plausibly large enough group to represent a large enough ‘threat’, all manner of activity was bunched together in vastly but quietly expanded ‘definitions’. And this despite a large body of professional objections and concerns. (Persons interested in following this may want to get a copy of the 500-page double-issue of the journal “Psychology, Public Policy, and Law” for March-June 1998, Vol. 4, numbers 1 and 2; the ISSN (magazine code identifier in libraries) is 1076-8971. This is a compendium of scholarly articles and professional opinion – especially reservations and objections – to the sex-offense phenomenon; and it was compiled in 1998.)

Well, one last point. As you can see, much of what Sunstein says is applicable to the sex-offense phenomenon. Yet while he uses many examples from environmental and foreign policy, in no place at no time and in no way does he ever make a single reference to the sex-offense phenomenon.

I cannot imagine that as widely competent an author and intellectual has no knowledge of it. Rather, I think that it’s just too dadblasted hot for him to handle. And perhaps that’s especially true as a Beltway honcho and a Democratic Party adviser. But I find it a stunning omission.

And I think it tells us just how much of a mania-law wildfire the whole sex-offense thing has become: while it seems that every legislature from D.C. on down wants to pass laws, NObody - not even the most respected and connected national legal honchos - wants to talk about it.

Anyhoo, we have our work cut out for us. And I hope it becomes clear that the sex-offense phenomenon represents not only a threat to those persons and their loved ones caught up in this thing, and I would include victims as well. It also constitutes a grave threat to American democracy and to the integrity of our legislative process, our Constitutional vision and practice, and to the rule of law itself.

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