Friday, July 31, 2009

Dick Lehr and the Bright Line Rule


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.


*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.


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.

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