DOE v. PORITZ 7

DOE v. PORITZ 7

This Post continues our look at this landmark 1995 case. As always, the text of the Opinion is here.

Section VII is entitled “Equal Protection”.

Here Plaintiff Doe lodged the assertion that “he is entitled to be treated as an individual and not classified with other sex offenders who, unlike Plaintiff, have not successfully completed treatment at Avenel [the New Jersey sex-offense rehabilitation facility]”. Doe had completed that treatment regimen (whatever it may have consisted of, given the state of ‘sex offense science and therapy’) and had, as we know, taken up his life again, and with notable success, in the general civic community.

The Court thinks not. “Equal protection does not preclude the use of classifications, but requires only that those classifications not be arbitrary”. It cites a New Jersey case from 1994 (again, within the mania timeframe) that the US Supreme Court had refused to review.

You can see here how the ‘science’ now justifies the legality: as long as the science is well-grounded (and presumably accurate) then it’s Constitutional to apply the classifications devised by the Megan’s Law scheme.

But of course, when you look at this case, as we now can, both from the point of view of 1995 and also from the perspective of 2009, it becomes clear that the ‘science’ was not credible, and certainly not accurate, then or now.

The Court quotes (it appears – the text itself is vague as to quotation marks) the 1994 case, State v. Mortimer: “Where individuals in the group affected by the law have distinguishing characteristics relevant to interests [that] the State has the authority to implement, the courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued”.

We note again that the cited case and stems from 1994, right in the middle of the initial mania phase.

We also recall that the Chief Justice of the New Jersey Supreme Court was and still is (in 1995) Chief Justice Robert Wilenz, publicly lauded by ‘preventive mother-hen law’ advocates as ‘reliable’ and ‘friendly’ to their cause. And that fact would have been known to all the lower courts and judges in the State.

And that ‘cause’ is precisely the introduction of this European and Continental approach to law into the United States, whose Founders precisely refused that approach when framing the Constitution in 1787.

A historically minded reader might recall the ‘justice’ of the French Revolutionary era. And a literary-minded reader might well recall the ‘yellow passport’ imposed upon Jean Valjean in Victor Hugo’s “Les Miserables”. The ‘yellow passport’ – required for internal travel – had to be carried by all members of the ‘convict’ class for life after they had been released from prison, and had to be presented to the local police whenever such a second-class citizen entered a town or were seeking employment or simply when required to produce ‘his papers’ by the police; one also might recall the character of Inspector Javert, who followed Valjean and sought to expose him as a ‘convict’ and thus not a ‘decent’ citizen.

Second, we can now note that the “characteristics” to which the Court refers in justifying itself and the Megan’s Law are precisely those ascribed by the sex-offender ‘science’: an incorrigible and uncontrollable propensity to commit sex-offenses, “repetitive and compulsive”. Which is now known to be, and was described by many professionals back there in 1995 as being, wildly inaccurate.

But on the basis of this ‘science’ the Court can claim that since the Legislature has passed a scientifically well-grounded law, then it’s not the Court’s right to interfere with the Legislature’s careful laws. You see again how so much hinges on the ‘science’. As long as that ‘science’ demonstrates that ‘sex offenders’ pose a grave and uncontrollable threat, then the Court can say that it must respect whatever the Legislature has decided to do about it in fulfillment of its authority and responsibility to “protect the public”.

It seems to me that in hastily passing a law that had not gone through any Committee work or Hearings, a law which few legislators read and most likely few legislators understood, and that was passed so quickly – hastily even , then the Legislature had not acted responsibly at all.

The Court immediately goes on: “In such cases, the Equal Protection Clause requires only a rational means to serve a legitimate end.”

But this is a shell-game. The “legitimate end” – protecting the public – is only “rationally” connected to the Megan’s Law scheme because the ‘science’ insists that the ‘sex offender’ class is incorrigible and uncontrollable because of their “compulsion” to reoffend. The sex-offender is going to get pushed over the cliff in his car by the government while the Court is content that the government has complied with the law by ensuring that his seatbelt is legally fastened.

And the Court, by agreeing to the Legislature’s Findings of Fact (which could hardly have been carefully considered, given the hasty legislative treatment that the Law received), has already given away the store. All it’s doing here is building a structure of legal justification on a foundation that is hugely and fatally flawed, insofar as the sex-offender ‘science’ is grossly inaccurate.

And third, we could also point out that – even as law enforcement types and researchers are now saying – the entire scheme really does little to protect the public, and indeed goes no small way toward complicating public protection. So in that sense too, then, the law and the scheme are not really ‘rational’ at all. Even if the Legislature does have a duty to protect the public (which within Constitutional parameters it does), and even if the sex-offender ‘science’ of uncontrollable repetitive compulsion and incorrigibility were true (which it most certainly is not), the scheme concocted in the Law is still not a very effective means to achieve the purpose – and indeed interferes with the purpose in numerous ways.

Of course, it’s also possible – we’ve seen it in other laws passed since 1995 – that the Legislature, or certainly the preventive-mother hen law advocates, knew that this was only a ‘first step’, and that what would really be needed – as the Nazis realized straightaway – was to ‘tag’ each individual with some clearly visible marking. But who could say that then in 1995?

Or even now?

Instead, building upon the technology of the computer and internet age, laws have been passed (and judicially approved) that seek to ‘tag’ the offender through the publicly-accessible Registries even more than through the clunky 1995 method of door-to-door Notification. And at this point, as we now know, you can subscribe to an I-Phone app that will advise you constantly. And of course, with interlocking databases, then once you are on a Registry, you are indeed issued a ‘yellow passport’: you cannot move, you cannot get or renew a drivers license, you might not even be able to get on a plane – certainly to a foreign country – without your name being flagged, with whatever consequences might then ensue.

And given the potential authority of volunteer sex-offender-watch groups to scroll and troll in the NCIC, it is easily conceivable that local realtors might, for example, ask their local volunteer group to check out the potential buyer of a home. While this is not something the police can legally do, the volunteer groups might well be able to, since they are not so bound by regulations and laws that boundary the official police authority. Can you see where this can go? And where certain groups probably want this thing to go?*

The Court continues a bit further on: “This Court, moreover, has specifically held that creating a separate classification for repetitive-compulsive sex offenders is not arbitrary and has a rational basis”. But are all sex-offenders reliably “repetitive-compulsive”? Even first-time offenders are required to Register. And even single-conviction offenders who committed their crime years before, had paid their debt, and were re-integrated into the community.

And again: “The Legislature has determined that convicted sex-offenders represent a risk to the public safety and that knowledge of their identities and whereabouts is necessary for protection of the public. Since the registration and notification requirements are rationally related to that legitimate state interest, the requirements of equal protection under the Fourteenth Amendment are satisfied”.

But again, the Legislature’s initial “determination” is gravely, probably fatally, flawed. To focus on its easily-admitted responsibility for public safety in order to justify the scheme is dodging the main issue. And of course there remains the question: Granted that a legislature is responsible for the public safety, just how far may it Constitutionally go in ensuring the public safety?

This is the kicker. In Continental law, always weighted toward the government from the days of monarchy, the rights of the ‘individual’ could not prevail over the rights of the Crown. Nowadays, that same theory is imported over here, merely substituting the authority of the ‘community’ or ‘the public’ for that of the Crown and the monarch. But that is precisely where the Framers were most “American”: they insisted that the individual Citizen had rights that neither the government nor the ‘public’ could lightly override.

And if this almost completely unconsidered and incompletely examined Law, based on such inaccurate ‘knowledge’, proposing to introduce so ‘alien’ a scheme as Registration and Notification – which carries so profoundly abhorrent a historical record from the recent past and more distant past … if this Law does not lightly override the most fundamental Constitutional guarantees, then nothing does.

NOTE

*I acknowledge here that many police and criminal-justice professionals at this point are now voicing significant doubts about the operations and expansion of the whole SORN scheme and I hope that they can convince even more of their colleagues and peers. But I also note that there seem to be many civilian groups that seem to be seeking the equivalent of police authority to conduct their own ‘monitoring’ of Registrants; I ask you to imagine where all of this might lead if it is not stopped. And by ‘stopping’ it I mean carefully and honestly examining the scheme’s fatally flawed scientific basis, upon which its legal justification precariously rests. And in this regard, I invite your attention to the prestigious government-friendly RAND Corporation’s recent embrace of one such small and local volunteer civilian group (see my Post “Violent Offender Laws” of August 13, 2009, on this site).

And I would say here, expanding on what I said in my very first Post on this site, that we are present at the creation of a very significant – and I would say dangerous – change in America’s fundamental philosophy of law and the limits (or lack of them) to government police authority. It is not being presented as such by its supporters and advocates, but it most certainly is a major shift in the foundational assumptions of the American approach to the scope of government authority.

And if the Constitution, a carefully constructed mechanism, was based on certain assumptions as a large building is built on carefully laid out foundations, then to shift those foundations – especially to greatly shift them – endangers the entire structure that is built upon them. And that structure here is the Constitution and the entire American ‘way’, so to speak.

And I would also add that with this scheme of 1994 we see the first major insinuation of a Continental, government-and-monarchy weighted legal vision. Since then, in other areas, we have seen the government begin to act as a monarch. Since 9-11, we have seen the Patriot Acts, the waging of wars based on the most inaccurate information and beyond the scope authorized by the Congress, the conduct of telecommunications monitoring by the government and even of torture as an instrument of policy … in short, the government has started acting somewhat like a divine-right monarch (and perhaps a not particularly competent one).

This is the fierce urgency of now, if I may borrow a phrase.

DOE v. PORITZ 6

DOE v. PORITZ 6

This is the 6th in the series dealing with the 15 Sections of this landmark 1995 case. As always, the text of the case is here.

Section VI of the Opinion is entitled “Privacy”.

The Court admits straightaway: “Grounded in the Fourteenth Amendment’s concept of personal liberty, the right of privacy safeguards at least two different kinds of interests: ‘the individual interest in avoiding disclosure of personal matters’ and ‘the interests in independence in making certain kinds of decisions’”, which are categorized respectively as “confidentiality” interests and “autonomy” interests. You have a right not to have your private life blared out all over the place and you have the right to make certain decisions about the shape of your life.

Now in my immediately previous Post, in the Notes, I discussed Legal Idealism and Legal Positivism. The Framers were Idealists: they believed that human law – made by a government – still had to conform to a higher Law, an Ideal law.

So in this matter of the Constitution and Privacy, the Framers developed guarantees precisely conformed to the needs of the human being: given that all human beings were imperfect, yet possessed of an utter and inviolable dignity, then you were entitled to and needed a certain Confidentiality. After all, nobody’s perfect and if everybody was constantly prompted to harp on everybody else’s weaknesses and failures, then nobody would want to trust or build relationships with anybody and true civic community would wither away quickly.

Worse, given the way humans predictably function in groups when they aren’t operating at their highest levels, a majority of folks might band together and if they got the chance they would go after the weaknesses of some individual or some smaller group of people – and call it a good day’s work. And the Framers saw clearly that if you let that sort of dynamic get started and run unchecked, then your civil society would fracture itself into scads of pieces and, again, true civic community would collapse like a great wooden house with a really bad termite infestation.

And, the Framers’ Idealism would demand, as a human being each citizen was entitled to a certain Autonomy in order to achieve the fullness of that natural dignity which resides in each and all human beings. This wasn’t a ‘gift’ on the Framers’ part, nor did they see the American government – or any government – as being able to make such a ‘gift’. Rather, the law they framed was a recognition of the human dignity that was already there in the human beings who would be the new America’s citizens.

The Legal Positivists – and this is the thinking that since the very early 1990s has taken over ‘elites’, especially in law schools and in jurisprudential and legislative circles – would say that it is the government that makes rights real by giving them as a gift to the citizens. And thus the government can say when it wishes to take the gift back or when the citizen can be said to have lost the gift through his/her actions. (To the Framers, Idealists, a citizen cannot ever be deprived of or even get rid of his/her human dignity – it is a natural characteristic of human beings.)

You can quickly see here how Legal Positivism is on a lethal collision course with the Framers, and in that sense can even be described as anti-American or anti-Constitutional.

You can also see where what might seem to be a certain ‘softness’ on punishment has a sound basis in the founding vision of the Framers, of the Constitution, and of the country: no government has the right to interfere with essential human dignity and the rights that flow from it. Yes, a government has to make laws to punish those of its citizens who in their weakness do not respect the dignity of other citizens, but at no time does a government have the right to withdraw from any human being and citizen his/her human dignity or the rights that flow from it.

So the Constitution makes it somewhat difficult for the government to go into the prosecution and punishment business: the Framers’ fear was that a) every citizen sooner or later , in one way or another, is liable to prosecution and punishment for something they have done, and b) the government itself is made up of human beings who are notoriously prone to human weaknesses and could easily get carried away. And the Framers didn’t want civic society and the country to collapse in a fractured frenzy of prosecution and punishment.*

Of course, the majority of the Poritz court subscribes precisely to the implication that ‘the country’ and the ‘citizenry’ really means the ‘good’ people (the Nazi would have called them the ‘pure’ people) with the implication that the designated sex-offenders are some sort of weird, monstrous alien infestation – like a 1950s science-fiction movie about space invaders. Exactly what the Framers were trying to prevent, since in the matter of human goodness and evil the Framers knew that nobody is ‘pure’ and - with the Gospels, nicely enough – they would “call no man good”: everybody had it in him/her to screw things up, and in the course of a lifetime no doubt would.

And in the Poritz view of things, the ‘good’ and ‘pure’ are thus victims who may yet be empowered to ‘fight back’ if the court simply gives them the tools – and helpfully breaks down some of those obstructive and ‘quaint’ walls that the Framers constructed precisely to prevent such mass frenzies of ‘self-defense’ against what I would call the ‘convenient monster’ or what the poet Cavafy called the ‘necessary barbarian’.

So what I see here is not the Poritz court unleashing the righteous guard dogs of the citizenry, but rather I see the Poritz court breaking down the watertight doors that hold back the flood of irrational and delusionally ‘righteous’ violence that all populations inherently harbor; deep in the heart of every majority – as the Framers saw – there dwells a mob and a mob-scene; the mature and constructive government takes care not to pander to those potentials.

Rather, the mature government functions like the baffles in a big oil tanker truck: within the tank there are secondary walls every few feet. Their purpose is to prevent any dynamic of a ‘wave’ building up and running freely back and forth along the entire length of the tank as the truck moves along, agitating all those thousands of gallons of liquid until such a ‘wave’ inside the tank is strong enough to tip the whole truck over. Those little walls are the ‘baffles’ that prevent a flood and actually a mini-tsunami inside the tank.

But what we are seeing in the early and mid 1990s is precisely a government removing the baffles in the huge tank of American society. Don’t forget – and this surely should have been an indicator of ‘mania’ – this type of law was passed by every State and by the Congress, within the space of just a year or two. Indeed, this Megan’s Law in New Jersey – subject of the Poritz case – was passed almost overnight; there was no committee work, no hearings, no deliberation; it went straight to the floor, was passed almost unanimously, and that was that.**

There are only two instances when any scheme of legislation might pass so universally and quickly. First, when a marvelous discovery is indisputably made. For example, somebody discovers that water can be turned into gasoline by mixing it with certain vegetables and spices under a full moon, and all citizens have to be immediately restrained from turning the country into a massive and unregulated fuel dump with fresh-brewed gasoline lying around in plastic jugs in the living room.

Second, when there is a monstrous public mania that’s gotten started, a tsunami of emotion that threatens to flood the country.

But in this second situation, the government’s role is to be a ‘baffle’ to prevent the amplification of dangerous public tendencies. And – in the long run – to prevent the weakening of the government’s authority and legitimacy which will happen when it becomes clear that the government has caved in to the flood of mania and has even helped it by giving it legal status and stature.

So where I’m going with this is that the government’s behavior in these sex-offender laws reminds me of a passenger ship captain deciding to solve a suspected rat infestation by opening up the sea-cocks and literally flooding the ship. If you just stop to think about it for a minute, the baaaadness of that idea should become apparent. If you realize that you are on a ship at sea. Which – you imagine – a captain would remember.

And it should go without saying that no American government or Court should go along with the idea of officially declaring any citizen or bunch of citizens to be nothing more than the equivalent of “rats”. A human being is never reducible to a "rat" except in bar-room blabber. Certainly not in matters of profound civic and indeed Constitutional import.

So too with Autonomy: an individual human being is possessed of inherent dignity which the government must recognize and respect as coming from an Ideal Law beyond the power of any this-worldly government to take away (Lincoln is thinking like this when in the Gettysburg Address he says “beyond our poor power to add or detract”). Without that Autonomy, the dignity is functionally useless. You need the freedom to shape your life as best you can, according to your individual and unique genius, interacting – of course – with the realities of ‘the world’ and the equally unique rights and potentials of other human beings.

The principle of Autonomy prevents the government from merely paying lip-service to your right to Privacy. If you cannot freely go forth into your day and your world, with – as the saying goes – a ‘fresh start’, then you cannot build that web of Love and Work, that web of social relations, that most people would call a life.

If the government is going to actively interfere with those efforts – those rights – then it’s going to be overstepping its bounds. And the Framers had seen enough governments (they studied a lot of History in those days, don’t forget) to know that, just like a too-frisky and large horse, you never gave a government too much free rein; it would most likely go galloping along the street or running off into the fields.

The Court bases its privacy thoughts on the simple fact that “New Jersey specifically guarantees public access to all court records, including criminal records” (which it started doing, curiously, in the mid-1980s). The Court goes on: “In most New Jersey counties it is possible to go to the courthouse and request an individual’s criminal record within that vicinage, providing only the individual’s name and address.” And that now (1995) in New Jersey “any person may obtain a complete criminal history from the State Police by providing a name and either date of birth or social security number and paying a fifteen-dollar fee” – this law, MOST interestingly, was passed in 1994.***

But of course, it’s one thing to have public records about an individual’s criminal history available down at the courthouse. But given the psychology of mobs and the weaknesses of human nature, it’s verrrry much another thing to have it a click away on the internet. This is barely a short step removed from the type of mouth-to-mouth chatter that – in the manner of tuning-forks stimulating each other in a closed room – sets off a mania, and perhaps a mob, reaction. In this matter, technology indeed changes the substance of the matter, and is not simply an harmless ‘convenience’.

And the Court then leads into another box canyon: “Likewise, requiring the disclosure of other information, such as [the sex offender’s] age and legal residence or a description of his vehicle, does not infringe on any expectation of privacy.” To which I say: it most certainly does when that admittedly public information is directly connected to the public declaration by government authority that the individual is a monstrous and ongoing threat to the public and to children.

This is the hugely relevant fact: it’s not that the State is making ‘information’ public that is available anyway and that is given by lots of folks to get drivers licenses and certifications to practice medicine or barbering. It’s that the State has connected this information to such a terribly negative (and quite probably untrue) assertion, an assertion of monstrousness that cannot but have the effect of ruining not only ‘privacy’ but ‘reputation’ and any possibility of conducting a decent life in the community – even if, granting that a person is legitimately guilty of a sex-offense, any possibility of rehabilitation and getting on with his life.

This, I say again, is the gravamen here. And it is lethally significant.

So in this matter I say that the Court is hugely wrong when it then asserts that “Lastly, an individual cannot expect to have a constitutionally protected privacy interest in matters that are exposed to public view”. The internet has made “public view” something else altogether different from what it was. In the pre-internet days a person would have to have the motivation and deliberation to go to a courthouse, or at least pay money and write to a Police agency and wait for the mail. But in the internet age – which was clear even in 1995, and is certainly clear by 2000 and all subsequent years of intensifying sex-offender legislation – anybody, on a whim, in any state of mind, can simply troll and scroll.

Nor is it enough that the Court tries then to put a ‘limit’ on things by piously asserting that “We believe that disclosure of the [sex offender’s] home address does implicate privacy interests.” Nope. The privacy interests were implicated, and Constitutional protections triggered, when the State chose to connect the information – however ‘public’ it already may be – with the State-authorized Declaration of Threatening Monstrousness, which is precisely what the State has done.

And again, it is almost disingenuous, and worse, when the Court admits that the sex-offender “may be exposed to uninvited harassment”. His entire capacity and potential for conducting a civic and personal life may be ruined. And if the Court hides behind a narrow definition of ‘harassment’ – if the Court defines it merely as other folks going up and getting in the sex-offender’s face, as it were – then the Court is truly minimizing what is in effect the government pushing the sex-offender off a cliff.

Because it is not so much those possible acts of overt harassment. It is the utterly forseeable and most certainly probable actions of folks whereby pressure is exerted, not on the sex-offender, but on his family, his employer or potential employers, his church, and all the panoply of civic venues and groupings, to effectively kill him as a functioning member of civil society. If this isn’t unconstitutional, then nothing is unconstitutional.

And this is true even in 1995. If we then look at how these mania-laws have intensified since then, year by year, into the byzantine web of almost-gratuitous oppressions that they have now become, then the Court’s flawed reasoning becomes clear. And it is this case, so early on, that helped to provide the legal justification for the whole thing all those years ago.

But of course, the Court goes on to ‘reason’, since this is such an ‘emergency’ because sex-offenders are both so compulsively prone to such monstrousness and so incorrigible and so clever in masking themselves in the appearances of decency, then “the state interest in public disclosure substantially outweighs [the sex offender’s] interest in privacy”. So baaad ‘science’ leads to baaad legislation, and the Court will both accept that ‘science’ and do whatever it takes to justify the legislation. Oy.

Nor is it in any way sufficient for the Court to say that “the degree and scope of the disclosure is carefully calibrated to the need for public disclosure: the risk of reoffense”. Because that very ‘risk’ is non-existent, based as we can now see that it is, on verrrrry baaaad ‘research’ and ‘science’.

But the fact that its fifteen years later doesn’t get the Poritz court off the hook. Because the calibration can hardly be called “careful”. In the first place, it is based on a grossly not-careful acceptance of the flawed research – against which numerous competent professionals filed Amicus Briefs pointing out that very thing (which would have been discovered earlier if the Legislature had held any Hearings, which it (slyly?) did not).

And in the second place, given the huge variation in genuine sex-offenders, a simplistic Low-Medium-High scale is almost juvenile in its inadequacy.

And in the third place, it is, given the state of ‘sex offense science’ back in 1995 (which professionals at the time pointed out) a highly subjective process – this assigning of a Low-Medium-High or Tier 1, II, or III classification. Classification will depend almost completely and totally on what the (prosecutor friendly) classifier decides it will be or ‘feels’ it should be.

And in the fourth place, the classification will be made by the prosecutors – with perhaps such help from ‘reliable’ experts as the prosecutors might be able to drum up. Although it is also allowed that either the prosecutors can dispense with any individual classification Hearing or that the prosecutors themselves may designate anybody they choose whom any court in the State will have to accept as an ‘expert’.

To which – in the accents of Linus confronted with yet another of Lucy’s whacky but pretentious schemes – one can only intone “Good Grief”.

NOTES

*In that regard, it is hugely and ominously significant that since the advent of ‘preventive, mother-hen’ law – based in Legal Positivism – this country now imprisons more of its citizens than any other nation in the world (including Communist China!). And that about 1 in every 160 males is now on a sex-offender registry. This doesn’t count men on the domestic-violence registries (some of which keep you on even if a judge dismisses the allegations against you and vacates the Restraining Order). Nor does this count the number of men who would be enmeshed in the new, pending AWASORNA net – which might double or triple the number of ‘sex offenders’ overnight if a State accepts it.

**We would see this same dynamic at work in the Patriot Act of 2001, 5 years after Poritz. And in far too many other significant legislation subsequent to that; it appears to have become somewhat ‘normalized’ on Capitol Hill – and this cannot be a good thing at all for the country.

***We can see why some volunteer sex-offender organizations now (2009) want direct access to the NCIC Federal criminal database. New Jersey apparently opened the door to this sort of thing in the mid- 1990s and now some of the organizations might simply feel like they want to eliminate the middleman as it were, by not having to go through an actual Police agency and pay for each individual look-up. Instead, they’d just like to troll and scroll and see what they might find. See my Post “S. 1146: The Camel’s Nose Under the Tent” of June 23, 2009, on this site.

ADDENDUM

I’d like to mention something that I’ll discuss at length in one of the upcoming Posts. It requires a little history, but it’s worth it, I think.

At the end of World War 2, Harry Truman had to think about how to prosecute the captured Nazis. The legal problems were significant: If you were going to have to take each individual Nazi and treat him as a defendant in the ordinary way, then you were going to have to prove the guilt or innocence of each of them, with all the possibilities for acquittal or not-guilty findings that stem from any normal trial.

The solution was devised by a War Department lawyer named Murray Bernays: if, he said, you consider the Nazi Party and its agenda as one giant criminal conspiracy, then by that very fact everybody who was a member of the Nazi Party was automatically guilty of at least that crime – and ‘membership’ would be easy to prove, since all the prosecution had to do was to produce the actual Party membership records. Simple ‘membership’ was thus the criminal act, and that same simple membership would constitute irrefutable proof of guilt, and all of that with a minimum of prosecutorial effort and government expense.

In that way, large numbers of Nazis might be successfully prosecuted and ‘processed’ with minimum effort and at minimum expense, in a short period of time, and it would be done ‘efficiently’ – which is to say that you could pretty much guarantee a conviction.
Such are the legal maneuverings that occur in great affairs.

But I can’t help but noticing that very much the same strategy seems to underlie the sex-offense laws: how to ‘reliably’ ‘process’ large numbers or persons at minimum expense in a short amount of time? By criminalizing simple ‘membership’ in a group.

What group? The group of ‘sex offenders’.

Of course, the problem here is that in the American prosecution of the Nazis, it was the Nazis themselves who invented their Party, came together and willingly joined it and carried out its agenda. In the sex-offense matters, however, we have a disparate group of individuals – not at all an organized group of deliberate and voluntary members – and so the government has had to pretty much ‘invent’ the equivalent of the Party.

It has done this not by creating a political entity, but a psychological entity: the entire group of persons psychologically and legally described as ‘sex offenders’.

The focus, being psychological, is not on the voluntary and deliberate participation in a political agenda, but rather in the compulsive and uncontrollable characteristic of their ‘diagnosis’. Their membership is not in a political group but in a psychological group.

But again, it is not voluntary and conscious and deliberate, and the ‘group’ was actually constructed by the government, on the basis of ‘science’ and ‘research’ which we now know to be grossly inaccurate.

But the idea of simple ‘membership’ in a target group being enough to constitute a crime has a substantial history – and not a pleasant one. Usually it has been a group defined by its politics, but now it is a group defined by its psychology. And that difference is disturbing enough: because where you willingly and deliberately and consciously enter a political group and take action to support its agenda, this is not at all the case with a psychological characteristic.

Especially when the psychology underlying the characteristic is so weak and inaccurate.

And especially when it is the government police power and not the individual which determines an individual’s membership in the group.

You wind up pretty much with the equivalent of the government itself constructing the concept of the Nazi Party, then assigning you membership in it, and then prosecuting you because membership in that Party automatically constitutes a crime.

There is a legal – but not actually officially psychiatric – group called ‘sex offenders’ that the government has chosen to consider as real. It will assign you as a member of this group if you are convicted of certain crimes of a sexual nature – although those certain types of crimes exist along a broad spectrum of severity and causation and operational dynamics and rehabilitative potential. Simple membership in the group constitutes the ‘crime’ of being monstrous and incorrigible, and on that basis you are condemned to the lethal civic consequences of being officially declared a ‘sex offender’, that State-sponsored label that is almost guaranteed to destroy any possibility for a normal or even a minimal life in society.

I’m still working on this, but the similarity seems striking.

And if this is the game-plan that was adopted against sex-offenders … then once again it is an indication that those publicly and officially caught up in the SO laws are considered by the government authority to be legitimate candidates for a legal strategy that was last used against captured Nazis. And for all practical purposes the government authority considers increasingly large numbers of its (male) citizens to be no better than captured Nazis.

This is not a wise civic policy. Nor a wise Constitutional policy. Nor is it at all American in any traditional sense of the word.

And we are rapidly becoming a "house divided".

And we all know what happens then.

DOE v. PORITZ 5

We continue with our look at this landmark 1995 Opinion. The text of it is here.

Section V is entitled “Challenges Based on the Claim that the Laws Constitute Punishment”.

The Court reviews some of the prior cases (almost all from the very early 1990s) that decided similar legal challenges – most of those cases deciding that in the matter of whether the laws’ requirements constitute ‘punishment’ the laws are Constitutional, although some cases decide against Constitutionality.

The Court will go the ‘precedent’ route, for which the Latin term is stare decisis – roughly: the matter having already been decided, let the decision stand. “Our discussion and determination will rely almost exclusively on federal cases”; there is not yet (in 1995) much New Jersey case law on the matters at bar. Not much case law, because these Registration and Community Notification Laws (RCNLs) are something rather new to American as well as State jurisprudence, reflecting the early-1990s blooming of the ‘ethic of care’ rather than ‘ethic of justice’ in the law schools and among jurists, and all of that ‘preventive state’ legislation to which the mother-hen vision of law inevitably leads.*

“Our review of the law leads to the following conclusions: a statute that can fairly be characterized as remedial, both in its purpose and implementing provisions, does not constitute punishment even though its remedial provisions have some inevitable deterrent impact, and even though it may indirectly and adversely affect, potentially severely, some of those subject to its provisions. Such a law does not become punitive simply because its impact, in part, may be punitive unless the only explanation for that impact is a punitive purpose: an intent to punish.”

OK, now.

First, let me recall a point made in prior Poritz Posts, but also in the two Posts immediately preceding this one: An application of this exact legal analysis to Nazi ‘community purification’ laws of the 1930s would have a hard time saying why such laws were evil.

The Nazis, we recall: a) claimed the benevolent and legitimate government purposes of seeking to protect and to purify the German people and the community of the Volk; b) they therefore targeted for ‘community awareness’ all manner of undesirables – not undesirable behavior, but undesirable ‘classes’ of persons, because these classes were assumed to be incorrigible in the particular version of ‘impurity’ which their ‘offense class’ represented; c) it was therefore only for the most benevolent and legitimate government purposes that these individuals and classes be ‘tagged’ by the mandatory system of wearing colored-stars (only the Jews wore yellow stars; there were different colors of star for different targeted groups and classes of offensiveness); d) registering these persons and classes with the police was simply the only logical method of carrying out the benevolent and legitimate aims of the government to protect its people.

Now there is an argument to be made against my point here. Some official activities of the German government of 1933-1945 were inherently evil because they were ‘Nazi’. But others, such as assuring that municipal water supplies were pure and that the roads and bridges were kept in good repair, were simply the tasks that any government has to perform.

To which I would reply: OK, then. And does the colored-star ‘tagging’ fall into the first or the second of these types of official activity? Are we here in the United States now to embrace government ‘tagging’ as just another thang, like keeping the bridges in good repair or making barbers and doctors and motor-vehicle operators get officially and publicly approved before they start doing their thing? Because that surely is where ‘preventive law’ is taking us all, and the Court here is twisting itself into a pretzel to convince us not only that it’s a good thing but that it’s just a thang.

Second, the Court here continues its sly strategy of minimizing the impact upon those caught up in the RCNL web. There is “some inevitable deterrent impact” – the impact is “inevitable” because this is precisely where ‘preventive’ or ‘mother hen’ law has to lead. That impact is “deterrent” – what it is trying to get around is admitting that these laws are “inevitably” ‘punitive’, which they are and which the Court realizes will be an admission fatal to its entire effort to approve the RCNLs and by implication the entire (and highly novel and questionable) ‘preventive-mother hen’ approach to law.

It minimizes through some amount of abstraction, speaking of “indirectly and adversely affect” and through the use of the subjunctive mood: RCNLs may adversely affect those caught up in the web – but as has been demonstrated, they most certainly always do adversely affect their targets, and I would say that they have to by the very nature of their stated purpose. The Court has to avoid any but the abstract subjunctive mood here, because to say candidly that the laws most certainly and logically will “adversely affect” their targets would, again, be to make a fatal admission. If you are tagging targeted individuals or classes, then it won’t work unless others know that they are tagged – that’s the whole idea.

Nor is the Court concerned, it says, that some of these ‘adverse’ effects will be “potentially severe”. Potentially? Try: most certainly. And “severe” is a little abstract for describing the wreck of any possibility of maintaining employment and relationships, or of your family doing so – including your kids.

Nor was any of this monstrous wrack of consequences only revealed ‘over time’ such that the Court here in 1995 can be forgiven for not having a crystal ball. The Court is so ‘aware’, the possibilities and probabilities so clear even then, that the Court cannot avoid the use of the word “severe”.

But, as we have seen and will see again in this case, the Court slyly reduces the ‘certainty’ of severely adverse consequences by purring loudly its belief that the citizens and the media and the police wouldn’t get carried away. You can tell a group of humans that there are incorrigible threatening strange monsters among them, seeking to brutalize their children, force the said ‘monsters’ to be tagged, and yet not worry that things might get out of hand. This isn’t a simply an optimistic take on human nature and the dynamics of human groups; this is a willful ignoring (not ‘ignorance’) of the historical record of the species.

But of course, the ‘monsters’ are expendable: their lives are – to use a phrase that would be so clearly put by Madeleine Albright a few years later talking about the probable death of half a million Iraqi children through sanctions and invasion – “acceptable losses” when you consider the prospect of marvelous benefits that such policies are guaranteed to bring about. Just “collateral damage” in the professional government argot.

In order to serve the voracious need of any government police power for sustained and continually enhanced power – mother-hen law must have threats to the ‘chicks’ which the mother-hen can then be seen to instantly and caringly squash.

So in the mother-hen vision, there is no unified Citizenry; there are ‘chicks’ (no pun intended) and ‘threats’. The Citizens are simultaneously divided and then reduced hugely in stature: either they are merely passive victims or they are nothing but incorrigible perps.

And again, I note that the characteristic dynamics in the matter of the ‘eternal sex-offender’ mimic precisely the Nazi dynamics deployed against – with all respect to that beleaguered folk – ‘the eternal Jew’.

This is the true nature and origin of mother-hen law and the ‘preventive state’. This isn’t where it may take us if it isn’t properly implemented. This is where it has to take us in order to ensure its own survival and success.

Is this what we want for America? For our society and our culture? I am not asking this rhetorically or dramatically – this is a serious question for all Americans to consider. And that is the fierce urgency of now. And it was a fiercely urgent question then in 1995, but the Court was doing its best to mask the question, soften it, cloak it in the sheep’s-clothing of ‘benevolent and legitimate government objectives’.

And the mania – in the devious but inevitable dynamics of large public mania – feeds off precisely the deep public unease, repressed, not with the targeted class and its threat, but rather with the dark and primal awareness that all ‘pure’ citizens are now participating in a fundamentally noxious public policy, supporting it even by their silence. The German people learned all that the hard way – when it was too late.

That example was staring the Court in the face. To use an image from contemporary film, the Court is responding to Voldemort’s return just as did the Ministry of Magic: by denying it. But too, worse than that: the Court is trying to make Voldemort’s return look like a reely reely good idea.

God save the United States indeed.

Nor is it in any way sufficient to say “Such a law does not become punitive simply because its impact, in part, may be punitive unless the only explanation for that impact is a punitive purpose: an intent to punish.” Nope. The Nazi attempt was not to punish – it was to ‘protect and purify”. And look then at what happened. An action and a policy are not redeemed merely by their ‘good intention’. (Can you say Iraq War?)

The Court admits that there are “towering constitutional provisions” against this sort of thing, and indeed “of great importance to individual dignity, freedom and liberty”. But the underlying assumptions of mother-hen and preventive law are hell-and-gone from that; they are Volkisch: the rights of the individual, and the individual him/herself, are not only secondary to the ‘rights’ of the collective; rather, those individual rights are for all practical purposes non-existent. The ‘rights’ of the collective are all.**

This is not ‘new’ thinking. This is very old thinking – so old that it was the Framers who saw that it was noxious, toxic, and lethal to the vision of America for the protection and flourishing of which they put together a Constitution based most seriously on “individual dignity, freedom and liberty”. What we are dealing with here in these RCNLs and sex-offender law is nothing less than a profound threat to the entire Constitutional vision of what America and Americans essentially are. And that threat is itself an ancient enemy of genuine democracy.

And the fact that these RCNLs had to be implemented only upon the surge-wave of a deceptively fabricated national public mania is actually a back-handed compliment to the strength of the genuine vision of the Framers. And it shades, I would say, into a profound treachery perpetrated upon the American Vision as well as on the American people.

So then I cannot sigh with relief when the Court immediately asserts: “But while the role of these constitutional provisions as protectors of individual rights must always be fully enforced, care should be exercised not to convert them into obstacles that prevent the enactment of honestly-motivated remedial legislation”.

“Care”? The acceptance – in the teeth of deep and wide professional and general knowledge to the contrary – of ‘science’ that ‘proves’ the monstrousness and permanence and omnipresence of a ‘threat’ that leads directly to the legal construction of a target ‘class’ of individual citizens who must be subjected to the same dynamics last and most famously deployed by Nazi legislation and jurisprudence? This is “care”?

Nor can you say that ‘honest motivation’ is enough to make a law constitutionally acceptable or even morally passable.

Nor, come to think of it, can I accept that anyone holding high elective or judicial office can make such a preposterous set of mistaken Findings of Fact “honestly”. Are they then all so grievously ignorant and unable to think, deliberate, and analyze? I think, contrary to the Court, that in the light of the preposterousness of the Findings of Fact, that no protestations of honestly-motivated benevolence on the part of the Legislature can be accepted at face-value.

And even if we grant that the Legislature is indeed honest, then I think it is so gravely incompetent in its analysis that the incompetence itself constitutes ground for legal action.

After all, even if a bank-robber holds up a bank with an automatic assault weapon, and claims that s/he did it so as to distribute the money to the poor, and that s/he didn’t realize that the actions involved in effecting the robbery might have really adverse consequences … do we simply say Oh, OK then – carry on … ?

This raises, of course, the question of just what the Judicial Branch can do when the Legislative Branch goes kind of dangerously gaga.

Ideally, the electorate would step in and remove the offending legislators. But of course in a period of public mania, the electorate (or a majority of it, anyway) may indeed be as gaga as the legislators.

And in this post-Nazi era, public opinion in a large and complex society can be so expertly and effectively manipulated that it’s not so hard now to create such a public mania – if enough dedicated and even ‘well-intentioned’ folks decide that they want to do it. With enough money and political support and media cooperation, and with some ‘reliable’ ‘science’ you can get a lot of mania stoked up – and you can keep it going for quite a while.

It’s been two decades now, at least.

And again, the Court creates a distinction without a difference: “We assume that if the legislative purpose was to deter sex offenders, the law would be invalid: and we have no doubt that if the government ordered punishment, the law would be invalid. Neither, however, is the case here.”

But if the wrecking of citizens’ lives by calculated government action contrary to the fundamental philosophy of the American vision not only results but has to result from that calculated government action, then all the Court is doing here is to insist that the government ensure that your seat belt be fastened before it pushes you and your car off the cliff.

Can you say that the German government’s declared good intentions in securing Lebensraum for its citizens in the East outweighed and even redeemed the deaths that the invasion of Russia would cause?

Or can you even say: well, it might have been morally justifiable if the campaign weren’t botched so much in implementation because it was originally intended not to cost many lives at all. (And can you say Iraq War? … Funny how the night moves.)

The Legislature has passed a law that in the light of human societal dynamics virtually guarantees wrack and ruin for its targets, even though the Legislature insists that its intentions are ‘benevolent and legitimate’ and is focused not on the target class but only on helping people. Is it enough for the Court to say ‘Well, they mean well and that’s all that counts’ … ? It’s not as if the wrack and ruin is only a distant and improbable possibility – the historical record of the 20th century and all the mob scenes in every movie in history literally shriek a warning.

And the demonstrated wrack and ruin inevitably visited upon sex-offenders are hardly a mere “deterrent consequence”. You have by government action and authority pretty much destroyed a person’s ability to carry on a life of Love and Work in a community – if that’s only a mere “deterrent consequence” then ‘tagging’ target classes and putting targeted classes into the Reich’s concentration camps were merely deterrent consequences. To destroy a life must be seen as a bit more than ‘deterring’ that life’s possible actions.

I would say, contrary to the Court, that having one’s civic and personal and relational and career life – and its possibilities for future improvement – all erased by government action does indeed constitute “punishment”. And, having been alive and sentient in the Year of Grace One Thousand Nine Hundred and Ninety Five and of the Independence of the United States the Two Hundred and Nineteenth, I say that such a conclusion was as clearly to be discovered then as it is now.

And I’m not going to go for ‘empathy’ here; I’m not pleading for the Court to simply ‘have a heart’ and feel sorry for poor bedraggled sex-offenders, from the unassailable and virtuous majesty of its high position.

I want to reassert an ‘ethic of justice’ here. And to say that on the basis of such principles, the Court and all its cohorts in cohoots over the ensuing years, have contributed to what in effect (if possibly not in intent) constitutes a grave treachery to the Constitution and to the vision of America and Americans upon which the Constitution is based.

Is that rather strongly worded? I recall what Harry Truman said in response to an interviewer’s reference to his nickname of Give-em-Hell Harry: “I never gave anybody hell – I told them the truth and they thought it was hell.”

Zackly so.

NOTES

*See my immediately preceding two Posts.

**This is as good a place as any for a relevant tad of legal philosophy.

Legal Idealism - upon which the Framers grounded their vision of Law and of the Constitution - holds that there are principles that pre-exist the laws that the government makes, and to which those laws must conform or else they are invalid. There is a Good and there is a Bad; humans have a deep sense of that; if a law made by a government tries to impose something that is not Good, then the law (and maybe the government, if it persists in trying to do it) loses its legitimacy.

Legal Positivism holds that there are no principles, nor any realm of Principle or Principles. Rather, laws have their power and legitimacy only because the government makes them and enforces them with its authority. So, for example, a Positivist wouldn't say that murder cannot be legalized because it is Wrong; a Positivist would say that if a government wishes to legalize it (and the citizens - or enough of them - are willing to go along with it) then murder, in that country, is legal. 'Good' and 'Bad' are, to the Positivist, meaningless terms.

So an Idealist view of a citizen's 'rights' is that they stem from that realm of Principle and therefore are beyond the power of a government to take away; and that any government that tries to do so thereby delegitmizes itself. The government must respect Principles.

A Positivist view of a citizen's rights is that they stem merely from the willingness of the government to grant them, and the government can give as well as take away.

A major element of post-modern thought is 'deconstructionism': not only are there no Principles, but any 'principle' is best seen as merely a cloak for those in power to oppress those without power, since - at the heart of it all - nothing is real anyway and it's all really just a matter of how people 'perceive' things (or can be made to perceive them).

In the very early 1970s, the American philosopher John Rawls held that a nation's "elites" - those who really saw how things should be - should feel free to 'lead' all the other citizens (who 'just didn't get it'). There was no valid authority - including the Constitution - that they should allow to stand in their way of this great 'mission'.

Such abstractions as Principle and Reason and Principles, said a determined cadre of radical feminists, are merely tricks whereby those in authority continue their oppression - and what the country must therefore do is to base law on Feeling (like George Bush's 'gut-feeling', oddly enough).

Blend Positivism, deconstructionism, Rawlsian elitism, and Feeling-ism; imagine each of these separate forest fires burning toward each other and combining into one mega-fire ... and you can start to see what's happened in the country, and especially what's happened in the sex-offense mania: the government - under the influence of its elites - will say what's best to be done and who gets what rights (and who loses them, for all practical purposes), and if all the citizens simply give in to the feelings that the government thinks they should have and then take the government's word for it that the new stuff is reely reely goood, and they just 'change their perception' of what's going on, then everything will 'progress' to a much better nation and society and culture.

So here in Poritz we see Chief Justice Wilenz - who bought into all that new stuff - using this Opinion to put that overall plan and method into operation. The citizenry, already in a mania with the help of sensationalistic and selective media coverage, need only take the Court's word for it that the Legislature has done the right thing and if the citizenry just shuts up and goes along and learns to get used to the new stuff, then it will be a much better State of New Jersey and a much better America. Judge for yourself.

Creating a public mania - in this 'new' view - would be a step toward 'educating' the citizenry, not 'stampeding' it, since the elites who created and sustain the stampede have a very clear destination in mind, whereas a stampede is actually kind of aimless. But aimless or not, a stampede works on feelings; you never saw the cattle consulting a map beforehand or once the thing got started. That wasn't their role.

You can see where this sort of thing can go.

And has.

“COMMONWEALTH v. CORY”

“COMMONWEALTH v. CORY”

I covered a number of the points when discussing the news report in the Post prior to this.

Here I’ll just point out some of the highlights from the text of the Opinion itself.*

The Court concludes that the Massachusetts law requiring any sex-offender placed on probation to wear a GPS during that probation period “to be punitive in effect, and under the ex post facto provisions of the United States and Massachusetts Constitutions, may not be applied to persons who are placed on probation for qualifying sex offenses before the statute’s effective date”.

This is a heartening conclusion. The finding that it is “punitive” – even if only in effect and not on its face and by its very nature – goes to one of the core issues in SO legislation: it is indeed “punitive” and not simply “regulatory” (like being Registered for a barber’s or doctor’s or driver’s license).

The other core issue is whether sex-offenders as a general class are indeed so uncontrollably and almost universally prone to a compulsive recidivism that the State can claim any legitimate and rational ‘compelling interest’ in forcing them to be Registered at all. But that will have to wait for another day.

The Court recites the facts of the case. And let me say here that if a defendant has indeed committed a heinous assault on a child, then he has to deal with that, and be dealt with within the framework of law. But a couple of points here as well.

First, this was a charge of Indecent Assault and Battery on a child under fourteen. I don’t know the age, and the Indecent Assault and Battery charge conceptually covers a broad range of actions, from the plain-meaning of a sexual attack to something far less assaultive, that may not have even required a clear knowledge and criminal intent. I’m not trying to make excuses here, but one simply doesn’t know – and in matters sex-offensual, with those numerous fluid and generalized definitions of proscribed acts, it is wise to get the facts before forming a final impression.

Similarly, this defendant violated his parole by not attending counseling and treatment programs. Again, there are more possibilities than meet the eye. Of course, this fellow may simply have refused to ‘get better’. Then again, and especially in light of what may have been a conviction offense on the lower end of that Indecent Assault and Battery spectrum, he may have not seen the need. Or perhaps, if somewhat professionally informed, he may have judged that the programs on offer could do little (sex offense ‘therapy’ is only modestly more advanced than some of the original sex-offender ‘science’).

Whatever the case may be in this individual instance, I am not here trying to make excuses, but rather to point out how torturous the ground is in this entire area of SO legislation and sex-offenses; the wise field commander will not leap to conclusions that may yield a substantially inaccurate impression of the ground. (Such easy assuming was part of what led to the military situation in Iraq and – most likely – in Afghanistan.)

The Massachusetts law in question in this case requires that any person be fitted with GPS when on probation “for any offense listed within the definition of ‘sex offense’, ‘a sex offense involving a child’, or a ‘sexually violent offense’ as defined [by statute].”

First, this law requires that all sex offenders on probation be so fitted. Again, it is the grossly exaggerated ‘science’ that originally gave us those huge ‘recidivism’ figures which initially enabled the various legislatures to cast so broad a net in the first place: all sex offenders were believed to be highly likely to reoffend, and to be incurably compulsive and consequently unable to control themselves or their urges. And it was this same ‘science’, its figures luridly amplified in the media, which stampeded public opinion into imagining that the citizenry were, indeed, under permanent assault by sex-addled, zombie-like creatures (who, of course, might also appear as smooth and nice and well-adjusted, rather than leering, slavering, and gibbering with sexual anticipation).

Which as a schematic reminds me, by the way, of Anne Rice’s conception of the vampire community: there are the slavering, un-evolved primitives who lived like feral animals in cemeteries, feeding on any creature they could find, or on the bodies of the dead; but then there were the cultured and tasteful and – as it were – maturationally evolved vampires who were perfectly capable of ‘passing’ for human, went out into the world and even into high society, such as the vampire Lestat. This is disturbing: is it conceivable that the founding vision of the SO laws and the SO regime – which has wreaked so much havoc when adopted as the official policy of the national and State governments - took its shape from a pop-fiction (and film) fantasy about monsters?

Interestingly, the Court cites a 1981 Federal case (Weaver v. Graham, 450 U.S. 24, 31) wherein that Court states in definition that “a law is retrospective if it ‘changes the legal consequences of acts completed before its effective date’”. But of course, the SO laws – especially the Megan’s Law that was the initiating cause of Doe v. Poritz – were shrewdly drawn so as to appear non-punitive and ‘merely regulatory’. So that, they hoped folks would believe, increasing sex-offense consequences would be seen as nothing more than a State changing the minimum age to operate a motor vehicle, or even the amount of the renewal fees for licenses and registrations. It is a sad commentary on the media as well as the legislative and judicial elements, that such a phantasmagoric legal fiction could be accepted seriously for so long.

But then, in a time of public mania, if you point out anything that might cast doubt on the fact that the mania is indeed a mania – no matter how highly placed in societal authority – you could wind up tarred and feathered yourself. That’s how these mania dynamics work. Many good and intelligent people went to the guillotine in The Terror in France precisely because they were trying to call folks back to their senses. But the folks were stampeded. And the Jacobin revolutionaries themselves, now in power, very much wanted the stampede to continue.

In considering whether the GPS law is intended as a ‘civil’ or a ‘criminal’ statute, the Court winds up cataloguing a number of jurists in assorted cases over the years who have not considered the SO laws to be clearly and simply ‘civil’ (or ‘regulatory’): Justice Souter, in that key case of Smith v. Doe, who considered the nature of Alaska’s SO laws “to be in rough equipoise” (meaning it’s a 50-50 toss whether they are ‘criminal’ and ‘punitive’ or not); Justice Ginsburg, concurring with Justice Souter in the same case, that whether the Alaska law was regulatory or penal was “unclear”.

These sex-offender laws have never enjoyed enjoyed a total and inevitable and unassailable legal security; in many of the cases – alas – it is the Dissenting Justices who saw most clearly, but now that a period of years have accumulated (6 for Smith v. Doe, 15 for Doe v. Poritz, for example) it is possible to see how the several courts’ conclusions have held up, especially in the light of further research.

And if memory serves, it was Justice Thomas, Concurring in Kansas v. Hendricks which upheld the constitutionality of Kansas’s civil commitment for sex offender law in 1997, who said in effect that of course, if there really is no therapy available for these offenders, then the entire civil commitment scheme collapses constitutionally. And while there have been some glimmers of light in the therapeutic field, nothing like a reliable therapy exists.

Which, as I have always held, may stem not from the radical incorrigibility of the allegedly afflicted offenders, but rather from the fact that there actually is no full-blown and florid sex-offender ‘disease’ for which a therapy or a ‘cure’ could be devised. The assorted States’ legal solution has been to require a ‘mental abnormality’ or a ‘personality disorder’, but the former term is so vague as to be useless and the latter condition in some form and at some level of severity can be said to afflict a major fraction of the citizenry at any given time.

The Court goes on to assert that the GPS scheme most certainly does constitute a “limitation or burden on liberty”, and in two ways: “by its permanent physical attachment to the offender, and by its continuous surveillance of an offender’s activities”. I can only agree. But I repeat my belief that courts must allow themselves to examine the societal situation of a registered SO more broadly: it is not simply the GPS; it is the double whammy of being effectively told by your government that you are an eternal and incorrigible threat to your fellow citizens and then having your government broadcast that ‘fact’ to your fellow citizens.

Your own sense of self is lethally injured, and there is every likelihood that your own sense of self-confidence is profoundly damaged. Which in turn weakens you as you must face the monstrous array of mania-driven legal restrictions and public opprobrium that will most likely include any chance to conduct a life of Work and Relationship within the civic community.

As I have said, any outside observer would have to wonder just when the legitimate terms of the social contract can be said to have been abrogated, by the government. Rome and the old South, to take two examples, were profoundly weakened by their ongoing fears of those in their midst whom they had effectively and legally disenfranchised. Those same dynamics must be considered at least a possibility here. Although one can only hope that the nation and the Citizenry will recover their sense of balance, either following or leading their governmental authorities back to a saner course of policy. The vast majority of those convicted of a sexual offense are not ‘sex offenders’ in the sense of the mania imagery, and have never ceased to be members of the American civic community.

The Dissent, joined by two other Justices, gives some indication of the state of things.

First, it disagrees that the “statute is penal”. It considers that even though the legislature did not say clearly in the law that it intended the statute to be ‘civil’, yet “I do not agree that the legislative intent was so unclear that we cannot conclude that the intent was regulatory and remedial”. This is very much the approach of precedent, that a court will base its decisions in great part on prior decisions of other courts in similar matters. In that sense, Doe v. Poritz in 1995 set in train a lethal course of events, since other courts also faced with the novel SO legislation almost immediately took to repeating the justifications that the New Jersey Opinion so helpfully provided.

The Dissent bases itself in the possibility that these laws can result in rehabilitation – theoretically, at least – as well as the protection of the public [from the compulsive sex-offender monster]. While the hypothesis is legitimate as a pure exercise in logic, yet it bears little relationship to the actual state of affairs in matters of sex-offense diagnosis and therapy, nor – as we know are seeing – to the actual nature of the sex-offender class, such as it is.

Further, the Dissent falls back on this Court’s own Opinions in prior cases: “Both the Legislature and this Court have recognized that sex offenders represent a serious threat to the public and have a high rate of recidivism”. Here you see the problem that the earliest laws and cases created: those Legislatures and Courts accepted the hugely-flawed ‘Facts’ presented to them by advocacy ‘research’, which precedents were then followed by other Legislatures and Courts, which as the mania spread came to include all the Legislatures and Supreme Courts of the States, as well as the national Legislature and the Supreme Court, so that now any Court (or Legislature, if any of them have the political courage) that tries to make a course correction has to confront its own previous acceptance of the flawed ‘research’ and ‘science’.

Yet, clearly, Massachusetts’ Supreme Judicial Court was willing (by a 4-3 vote) to do so.

And clearly, the reconsideration of all of the original ‘high recidivism’ and ‘incorrigible compulsion’ Findings of Fact can only lead to substantial change. The Massachusetts Court itself is soon to hold a Hearing as to a prior conviction based largely on ‘recovered memory’.

The Dissent asserts that “protecting the public from sex offenders is a nonpunitive objective”. Which might be true as stated, but implies a plan that can only wind up being punitive. After all, how go about protecting the public? By effectively ‘tagging’ or ‘yellow-starring’ everyone convicted (in a time of deliberately concocted national public mania) of a sex offense, with the result that such persons are deprived of the liberty to conduct any significant sort of employment or family life, or participate in the civic life of the community. And even more lethally, are tarred by their government as ‘incorrigible and permanent threats’ to their neighbors. Which information is amplified not only through the news media, but through the Internet and even commercial applications. How in all get-out is any of this genuinely characterizable as ‘nonpunitive’?

What more profound liberty is there than to be able to carry on a life – work and relationships – in a community of one’s peers?

And if the commission of – or at least conviction for – a crime is going to ‘justify’ the destruction of such liberty, then – as St. Peter asked – “who then can stand?”

The Dissent’s foregoing reasoning is the equivalent of saying that the Third Reich’s search for Lebensraum for its beleaguered Volk was a ‘nonmilitary objective’. Which might be true as stated, but which was an objective that required for successful achievement a most hugely military campaign. I can imagine such a defense being made at Nuremberg: we only sought to do good for our people. But alas for the Nazis, Hitler knew from the get-go that such an ‘objective’ would require aggressive war and never flinched from it, and built the German armed forces up to it, and left an irrefutable and inescapable written and filmed record of it.

Shrewdly, in the sex-offense legislation, the government Branches all avoid his mistake: from the outset they have claimed only the most benevolent objective, while studiously understating any overt discussion of what actual actions and policies would be required to achieve the objective. Which is a shrewd lesson learned from History. Here’s hoping that History keeps teaching. Which it no doubt will.

Thus the Dissent greatly undermines itself when it asserts that “the ‘most significant’ factor in determining that Alaska’s sex offender registration statute was not an ex post facto law, was its rational connection to the nonpunitive purpose of protecting the public from sex offenders.” Because if all the science of ‘high recidivism’ and ‘incorrigibility’ is and always has been mostly wrong, then there is no “rational connection”. And the “nonpunitive objective”, as I just noted above, is hardly anything less than lethally punitive in effect and inescapably entails a broad government assault of the most profound sort on individual liberty.

Thus the Dissent’s assertion that “the urgency of the regulatory concern of protecting the public from sex offenders” is sufficient justification for not condemning the SO laws as punitive does not correspond to any actual state of affairs. This entire line of justification, as it was set forth early on in Doe v. Poritz by a Chief Justice well-known for his partiality to such schemes and ‘objectives’, is a web of exaggerated facts, half-truths, and ungrounded assertions, all in the service of a novel (to America) legal philosophy that is itself, at the very least, hostile to the Constitutional vision and lethal to the continued existence of a genuinely democratic Republic.

Let’s not be deceived any further. Or any longer.

NOTES

*To get to the text of the Opinion follow these instructions: a) go to www.massreports.com/; b) that screen will give you click-options on your left-hand side of the screen – click ‘slip opinions’, which will immediately prompt you to choose ‘Supreme Judicial Court’ or ‘Appeals Court’ – click ‘Supreme Judicial Court’; c) that will lead to a screen containing the 9 or 10 documents from August 18, 2009 – you want Number 2 (the text of the Decision) and Number 3 (the Order).

The title of the case is COMMONWEALTH vs. Russell M. CORY. SJC-10314 August 18, 2009.

CURBING GPS IN MASSACHUSETTS

MORE STRAWS IN THE WIND

(Once again, a fresh development leads me to interrupt my Poritz series, but the series will continue.)

On August 18, it is reported, the Supreme Judicial Court of Massachusetts decided 4-3 that a 2006 law mandating GPS monitoring of all sex-offense probationers cannot be applied retroactively.

I have the newspaper report and I also now have the text of the Decision. In this Post I am going to comment on the newspaper article making the report . Later today or early tomorrow I will Post on the text of the Decision (and Dissent); I will of course provide hyperlinks to the Decision.*

So to the news report, which is not a bad one at all, considering what you usually encounter in matters sex-offensual.

The case concerns a man convicted of a sex-offense in 1997 (the MA GPS law took effect 12/21/06). So there arises immediately the issue of ‘retroactive’ or ‘retrospective’ application of the law, especially since if the law is criminal in legislative intent or in effect, then it cannot be applied to persons convicted before the law went into effect without violating the Ex Post Facto Clause of the US Constitution (and the Massachusetts Constitution). That EPF Clause prohibits the increasing of a penalty for a crime after the crime was committed; it does not apply to ‘civil’ or ‘regulatory’ law.

As we know, the classification of any sex-offender laws as ‘punitive’ or ‘regulatory’ is a crucial key to their permissible scope. If punitive in intent or effect, then they cannot be retroactively applied to persons convicted before the law came into effect. You will recall from Poritz that the NJ Supreme Court had to go to great lengths to explain away the fact that in 1995 it was seeking to cast a net back in time to Register persons convicted of sex-offenses decades before that date.
The first solution was to declare the sex-offender scheme ‘regulatory’ rather than ‘punitive’; hence it could be retroactively applied.

As I said in my immediately preceding Post (“Doe v. Poritz 4”) this requires courts to focus – almost to the point of absurdity – on legislative intent as stated and on the narrowest framing of the sex-offender’s situation under the scheme. But a legislature can (disturbing and ominous as it is to contemplate) claim officially to seek only ‘regulatory’ goals with a law, while its ulterior motive is to punish or to control the liberty of citizens.

And ‘regulation’ is hardly adequate to describe what the sex-offender laws do to an individual. It is not the same as an individual wanting to cut hair being ‘registered’ as a barber or stylist, or a doctor wishing to practice medicine being ‘registered’ as a doctor: in these instances, the individual actually benefits from having publicly-accessible approval from the State to practice that craft. Similarly, a motor-vehicle operator does not suffer any loss of liberty or reputation or standing in the community from being publicly identified as a licensed (or ‘registered’) driver.

But of course, such is totally inapplicable to designated sex-offenders, since the SO Registry is precisely for the purpose of ‘tagging’ or identifying individual citizens to the community as unpredictable, dangerous, threatening, and – according to the judicially and legislatively recognized ‘scientific facts’ – compulsive and incurable.

Even if the essential underlying ‘science’ were accurate, an SO Registry would constitute a punishment and trigger the Ex Post Facto Clause (among others).

But given that after over 15 years of these things we are now finding out just how flawed the initial underlying ‘scientific’ research and assertions and claims and predictions were back then, then these SO laws are even more fundamentally unjustifiable. SO ‘recidivism’ and ‘dangerousness’ – in its width and depth and temporal duration – is now clearly characterizable as minimal compared to other crime-groups (that have not been so ‘tagged’ and ‘stigmatized’), and such spikes in recidivism as there are appear only in very limited sub-categories of sex-offenses.

So if the entire matrix of SO laws is characterizable as ‘punitive’ and ‘scientifically ungrounded’, then the two great pillars identified by the laws’ supporters themselves thus collapse. And if the courts and legislatures don’t recognize that, and continue to maintain and expand the schemes, they risk the very legitimacy of American Law itself. And their own legitimacy as Legislators and Jurists.

The article reports that “the decision, which forced judges to weigh child protection against constitutional rights, outraged enforcement officials and [State] lawmakers”.

Well, a couple of things.

First, we note once again the sly conflation of ‘sex offenders’ and ‘sex-offenders against children’. There is no rational basis for presuming that ‘all’ SOs or ‘any’ SO will constitute a threat to ‘children’. Yet when defending these laws, supporters (and too many journalists, whether they have thought it through or not) instantly mention ‘children’ as the reason why ‘sex offenders’ must be tagged and stigmatized. The vast majority of currently-defined sex-offending does not take place against children.

This, of course, recalls the unpleasant possibility that ‘children’ are being deliberately used as a ‘human face’ to ensure a stampede of public opinion in support of sex-offense laws that are in essence profoundly anti-Constitutional in spirit and concept and effect.

I can’t imagine any public servant at this stage who wouldn’t be risking his or her career by expressing any opinion except ‘outrage’ at any curbing of the SO laws. It has taken a particularly courageous group of senior State jurists to do it.

Further, we then see another old demon invoked: “If there is even one individual that is not required to be monitored, and that individual reoffends, then that is one too many”. This from a State lawmaker, she who sponsored the GPS bill to begin with.

Nothing more clearly indicates how far away from the American Constitutional vision this citizenry, this country , and clearly many of its legislators, have fallen.

The Founders’ vision was that individual citizens are equally capable of moral failure and moral greatness, and hence all other citizens are continually exposed to each others’ possibilities for harm or – let’s not forget – advantage. Hence, the Founders’ vision encompassed setting up a government criminal justice and police power that would be carefully constrained in its ability to interfere with the lives of its citizens. The danger was, as I have said in prior Posts, the ‘ravenous lion’ of government power coming to control the lives of the citizenry.

But with the ‘mother hen’ vision of American law, which has quietly insinuated itself into American law and politics in the past three or four decades, the government police power is a benevolent mother hen, which will respond with its full force to any distress – real or perceived – on the part of its chicks. This, as I have said, is the recipe for a police state, and surely not the grounds for a Constitutional democracy and Republic, comprised of equal and mature citizens who all share the status of Citizen and who together then constitute The People.

And rather than a democratic government we get what Eric Janus calls "the preventive state", a government demanding enough police power to 'prevent' whatever happens to be the threat-du-jour, and a serfdom happy and eager to give that power to it. The country was not founded by people looking to be 'safe' - let alone totally safe - but by people looking to exercise liberty. Not the same thing at all. If you get my drift.

And thus it can hardly be surprising when the old Goebbels-ian tactics of manipulating public opinion in order to stampede it in favor of the government’s all-encompassing control are the tactics which have recently come to control American law and legislation. False ‘science’ brazenly asserted and accurate science deliberately ignored or suppressed, emotionally gripping (if rare) cases luridly amplified as if they were usual occurrences, ‘reason’ denigrated in favor of ‘feeling’.

Thus this ‘if only just one’ (a spinoff from the old ‘zero tolerance’ of the War on Drugs era) is actually – whether its speakers realize it or not – profoundly anti-Constitutional. The Founders were willing to accept that some crime would be committed, even heinous crime, as happens in any human community; but they were not willing to permit the engorgement of a police-state on the pretext of utterly stamping out ‘crime’. To have said to the Framers in Philadelphia in that hot summer, that ‘even if only one’ crime were to be committed, then they must engorge the police-power … would not have been met with an enthusiastic and supportive response.**

And of course, this legislator also goes on to add “There are too many instances where a child is harmed that shouldn’t be”. There are too many instances of all sorts of humans being harmed who shouldn’t be. If we are going to engorge the police power to stamp out all ‘crime’ or all ‘sin’ then we have indeed turned the Constitution into a suicide pact – as a democracy and a Republic. Because this country cannot exist under a government that has taken upon itself the task and authority and mission that not even God has chosen to assume and deploy: the immediate and utter abolition of human moral weakness.

The (female) Justice who wrote the Opinion defended the ruling, calling the statue “punitive in effect”. As did the Alaska Supreme Court, until the US Supreme Court beat it down in 2003 in Smith v. Doe. (See my Post of June 29, 2009 on this site.) And we see here once again some respectable judicial effort to gauge the actual situation into which SO law casts the tagged ‘offender’: when government can destroy reputation in the community with such immediacy, on the basis of grossly inaccurate science to the effect that the offender – or his ‘class’ – is reliably beyond effective rehabilitation and constitutes a compulsive and violent and unending danger, then that government has on false grounds effectively ‘yellow-starred’ an entire constructed ‘class’ of its own Citizens. Governments have gone down this dark path before in recent history.

In a lengthy Dissent, another Justice rightly falls back on the precedents of State, Federal, and Supreme Court Opinions of the past 15 years: “This court has stated that recidivism among sex-offenders is high and protection of the public a compelling state interest”. The interest, of course, is only compelling if the recidivism is indeed high – precisely what we know are seeing is inaccurate in the extreme. If it’s not true about the ‘recidivism’, then there is no compelling justification for the State to so monstrously destroy the lives of a designated class of Citizens. ***
And this Dissenting Justice continues that “this statute establishes a nonpunitive regime to protect the public”. Again, we are faced with the courts standing next to the car with the sex-offender in it, about to be pushed over the cliff by the government police power, and focusing with ludicrous narrowness on whether the seat-belt is fastened (it’s all ‘legal’ if the seat-belt is fastened before car and occupant are pushed over the edge). If having yourself publicly and officially branded as a permanent and eternal threat to the community – and on the basis of hugely inaccurate ‘science’ – is not punitive, then nothing is punitive.

Admittedly, the Court takes no position on the validity of the law as it applies to sex-offenders convicted after the law took effect on December 21, 2006.

The article refers to this Opinion as an example of the Court’s “new thinking”. I think not. The ‘new thinking’ was the insidious ‘mother hen’ approach to law (more formally known as ‘an ethic of care’) that insinuated itself into law schools and legislative philosophy several decades ago. The Court here is returning to some sense of an ‘ethic of justice’: that there are rules, that the government police power must respect them, and that individual cases or periods of high public emotion do not and cannot override those rules and the principles that ground them.

Indeed, I think it can be said that the ‘ethic of care’ has the effect – intended or not – of creating in a very real sense an ‘unprincipled’ vision of American legislation and jurisprudence.

And since the early 1990s, we have seen increasingly vivid and Constitutionally violent deformations of American principles, not only in sex-offense laws and domestic violence laws, but also in the behavior of the government in the conduct of foreign military adventures and of the business and financial elites in the pursuit of personal profit.

I don’t think that’s a coincidence. Not hardly.

NOTES

*If you want to get a head-start on the Decision today, follow these instructions: a) go to www.massreports.com/slipops; b) that screen will give you click-options on your left-hand side of the screen – click ‘slip opinions’, which will immediately prompt you to choose ‘Supreme Judicial Court’ or ‘Appeals Court’ – click ‘Supreme Judicial Court’; c) that will lead to a screen containing the 9 or 10 documents from August 18, 2009 – you want Number 3 (the Order) and Number 2 (the text of the Decision). The title of the case is COMMONWEALTH vs. Russell M. CORY. SJC-10314 August 18, 2009.

**This point is covered in radical feminist legal and philosophical thinking by simply dismissing the Founders (although not for wide and sustained public consumption) as ‘quaint’, ‘patriarchal’ and ‘oppressive’. Alberto Gonzales was not smart enough to think up the Constitution’s ‘quaintness’ on his own; he got it from other Beltway sources.

***And in this regard, the sudden appearance of the RAND Corporation as a supporter of these types of laws very probably constitutes an effort to ‘shore up’ the failing ‘science’ without which these laws cannot survive stand Constitutional scrutiny. (See my Post on ‘Violent Offender Laws’ on this site, August 13, 2009.)

DOE v. PORITZ 4

DOE v.PORITZ 4

This Post covers Section IV of the Opinion: “Interpretation of Statute; Revision of Attorney General’s Guidelines; Judicial Review”. As always, the full text is here for your inspection.

The Court here is trying to bolster its conclusions and to save the whole scheme from its own Constitutional defects and infirmities. “Our resolutions to the challenges to the laws is based on our interpretation of them [the “them” is a vague referent; does it apply to the ‘challenges’ or to the ‘laws’ – those Registration, Classification, and Notification Laws (RCNLs) themselves?] and our revision of the Guidelines.”

The Court here is going to actually impose a few changes on the Guidelines in order make them a little more Constitutional, as it were. I recall an image used by Rory Stewart, a noted commentator on foreign policy matters who was talking about the Iraq and Afghanistan wars and I think that image applies here equally as well: this whole Poritz scheme – with the Court trying to bolster the Legislature’s flawed scheme – is similar to the government trying to push you, in your car, off a cliff: the Court is going to ensure that government police power makes certain that your seatbelt is fastened first (there’s a law about that, doncha know?) so that it will fulfill its duty to the Law. You wonder, reading this case, how not to smile at such a scenario; until you realize just how many lives this thing is going to frak up and just how deeply into classical American jurisprudence this scheme is going to bite.

The Court references one of its own 1988 cases in which it allowed “reading judicially created provision into law in order to avoid its own [meaning the subject law’s] invalidation”. So the Court – rather than pass judgment on the Constitutionality of the RCNLs pure and simple and leave it up to the Legislature to go back and fix the defective law it passed – the Court is going to insert some stuff to ‘fix’ the RCNLs and save the Legislature the trouble. Separation of powers this is not.

“The basic attack on these laws is the alleged excessiveness of community notification.” Well, that’s only a part of it – the basic attack, as the Court itself enumerated in earlier Sections, was a multi-point objection that the whole scheme was lethally and Constitutionally flawed on several counts. And of course, using Rory Stewart’s image, the Court’s insistence on ignoring the fact that the State seeks to push you off a cliff, and the Court’s absurdly narrow focus on whether your seatbelt is fastened first, reduces the entire process almost to farce. But the US Supreme Court – when it finally gets around to the matter in Smith v. Doe in 2003 – will pretty much follow the same script.*

“Our interpretation and revisions strictly confine that notification in accordance with legislative intent. The judicial review required by our opinion assures implementation of that intent.” So the Court is going to ensure that you as an SO are going to be treated legally, in accordance with the Legislature’s “intent” (the legality and Constitutionality of whose intent is precisely one of the questions at issue in this whole case). They used to call this ‘circular reasoning’ and it was traditionally listed as one of the classic mistakes in thinking and logic which deceptively made something look ‘logical’ when in fact it really wasn’t.

The Court here is also quietly re-defining its role not as an independent and authoritative examiner of the legitimacy of a questioned law, but rather as just another State agency trying to do its bit to ensure that the law gets rolling. And, most ominously, the Court considers that there is so much of an ‘emergency’ that the more traditional, separation-of-powers and skeptical approach that might be expected of the Court , would be obstructionist … and the Court doesn’t want to get in the way or slow things down; indeed, exactly the opposite – the Court wants to do its part to move things along.

Which, I can’t help but noting, is precisely the role expected of German courts and Volksgerichte in the 1930s and up until 1945. And the courts didn’t cease and desist with their official cheerleading and rubber-stamping on their own, you will recall; it took a ‘correction from Hell’ in the form of the Allied armies shooting their way into Germany, and especially the Red Army shooting its way into Berlin. Once a corruption is spread deeply and widely throughout a governmental system, it may take a lot more to heal the infection that it did to introduce the infection in the first place.

The Court proceeds to tweak the law’s Notification criteria a wee bit, having to do with the “likely to encounter” requirement that triggers notifying citizens of a Tier Two SO’s presence.
But its other, larger, tweak is revealing: “the most significant change, of course [!], is the requirement, on application, of judicial review of the Tier classification** The Court will, in some way, insist on somebody other than the State criminal-justice authorities having the final say in what Classification an SO is assigned. Nice. But again, this is ‘tightening the seatbelt’ while the car is teetering on the edge of the cliff and the SO is in it. And while the agents of the State are waiting by the back bumper to do the pushing.

“Because we have concluded that despite its constitutionality, the statute sufficiently impinges on liberty interests to trigger both procedural due process and the fairness doctrine in our state [AWASORNA now seeks to undo or circumvent this whole section, as I Note below] those subject to the statute are entitled to the protection of procedures designed to assure the risk of reoffense and the extent of notification are fairly evaluated before Tier Two or Tier Three notification is implemented.”

Sounds nice, and it certainly is the direction the Court should be taking. But in context of the whole scene, it’s almost window-dressing.

First, the Court has to tiptoe verrrrry carefully around the admission that RCNLs do indeed “impinge” on “liberty interests”, which is a simple phrase that triggers the entire traditional American Constitutional vision and concern: the government power is going to be messing with the individual’s liberty in a very palpable way.

Second, those “procedures” that the Court wants to enforce, presumably and with a crocodile smile on behalf of the individual SO, are precisely the ones about ‘risk of reoffense’, which – through the Legislature’s stunningly selective Findings of Fact that are indeed not ‘fact’ at all – the Court has already admitted to constitute a public ‘emergency’ and ‘threat’ of the highest order.

And who in this mania – with all its mania ‘science’ and ‘research’ as well as its emotional agitation – is going to be doing any evaluation “fairly”? The criminal justice and law enforcement agencies? The media? Surely not the Court which has already demonstrated its unwillingness or inability to do more than pretty the scheme up.

And I can’t even begin to assess the dubious validity of the justification or usefulness of the Tier classifications. They are drawn far too broadly and the ‘dangerousness’ criterion is verrrry subjective. And who is going to wind up in Tier 1? What public official or State employee or contractor is going to want to risk all by assigning an SO (who has already gone through a trial that is indubitably mania-affected) to the low Tier 1, when career concerns would strongly advise going with Tier Two or even Three? As science and as a matter of the dynamics of public bureaucracies – especially in a matter of mania – the whole scheme is ungrounded and rife with the potential for official abuse (even if that abuse is ‘in a good cause’).

And I’d also note that the sex-offense ‘emergency’ is not – to use the World War Two term – ‘for the duration’. This ‘emergency’ promises to last permanently (as, I have to note, do American ‘wars’, now). This scheme is not going to ‘go away’ when the ‘emergency’ is over because the ‘emergency’ will never be over. The ‘science’ of sex-offending as accepted by the Court and the Legislature pretty much assumes that sex offending’ is some sort of permanent and uncontrollable tendency (like an ‘addiction’, a pop psychology conceit that was all the rage in the early 1990s) or like the ‘eternal Male’ predisposition to Sex and Violence (a fundamental trope of radical feminist belief).

But the Court has a solution that waves away all that. “Although there is no reason to believe that the prosecutors and other law enforcement personnel charged with the decision-making power that controls both the level of notification and the specific steps that will determine the amount of notification will not discharge their duties competently and fairly …” Well, if that’s the case, then why did the Founders waste all that time at the Constitutional Convention at all? Why not just say that there is no reason to believe that the agents of the police power of the government won’t do their job “competently and fairly” and decide that the Constitution was unnecessary in the first place? Why not, indeed, in 1776, just forget about a Declaration of Independence and decide that if anybody thought that George III was a tyrant then that person merely had a bad attitude and ‘just didn’t get it’?

Yet it will keep up appearances: “[W]e have concluded that judicial review through a summary proceeding should be available prior to notification, if sought by any person covered by the law.” So the Court will not go after this law itself: if you get convicted in some sort of trial of a sex-offense, you’re in the web. But it will – if you ask – allow you to appear in a summary (meaning: no appeal) Hearing before a local judge (who will have already sensed which way the wind is blowing from reading this Opinion) to contest your Classification.

And again, this all smacks of Stalin’s 1936 Soviet Constitution scheme: once you are sure of the reliability of all the (seemingly) independent and competent players in the process, then you can make any promises you want on paper. And he immediately deployed this scheme in the 1937 ‘show trials’ – and it worked like a charm: the conviction rate was just a shade under 100%, including ‘confessions’ made by defendants who may have figured that there was no use trying to make a case for yourself in a system like this.

What is happening to us in this country?

But, not to seem to be soft on ‘sex offenders’, the Court immediately proclaims that “We realize that in some cases it may be impossible as a practical matter to give such notice [to an SO to contest his Classification], or to give it timely [an SO might get the Notice the day before the Hearing], and in those cases it may be dispensed with.” So much for that. But all in a good cause, Comrades - or does anyone here wish to stand up and doubt that … Be assured that your concerns – and your name – will be on Comrade Stalin’s desk by tomorrow morning.

You see where these things can quickly go.

And at this point I’d like to propose that the Citizens of this Republic are indeed bethumped by a grave public emergency – but that it is a Constitutional one, profound, insidious, and lethally far advanced.

If the SO does get to the Hearing itself, the rules of evidence will not apply, it will be held ‘in camera’ in the judge’s office with no spectators, ‘expert’ opinions will be admitted (and in 1995 you can guess where all that ‘expert opinion’ was headed, and who but the State could afford to bring an ‘expert’ in?), and the judge will take into consideration “the apparent need for prompt determination, presumptively present in all cases”. In other words, no matter how dubious the matter of the SO’s individual ‘risk’, the ‘emergency’ need to get him Classified will govern the proceedings (as if he would otherwise be leaving the ‘camera’ to go out and reoffend forthwith).
And again, here, clear as day, the Court indicates that there is such an ‘emergency’ that lack of knowledge or of reasonable certainty cannot be allowed to stand in the way of things.

I point out the similarity to ‘revolutionary law’ as it was practiced in the Terror following the French Revolution. Were you born an aristocrat – then you are guilty by that simple fact. And if you have evidence that might indicate that you personally, despite being a member of the target ‘class’, are not an ‘enemy of the Revolution’ … well, you’re already here and the next bus to the guillotine leaves in five minutes – so talk fast so we can get you onto it. Long live the Revolution.

Ignorance of the reality is no excuse for leniency. “We realize the generality of the standard against which the court will decide the correctness of the Tier level decision, but given the unavoidable uncertainties in this entire area, we do not believe that it is realistic to impose requirements of proof of some statistical differentiation of the risk of reoffense between the classes [Low, Moderate, or High risk] or between the offender before the court and the typical offender of other classes.” In other words, even if the SO gets to the Hearing, and tries to introduce facts about his own case, they won’t count for much – it’s enough that he’s an SO. Nor does the State have to prove that this particular SO is personally different from the ‘usual’ or ‘typical’ sex-offender (as the cartoonish vision of ‘sex offenders’ existed at the time, and still does).

And again, the Court has to move quickly over the fact that there are “unavoidable uncertainties” that exist “in this entire area” – in other words, that nobody really knows much about anything at all.

It gets worse. The Court immediately notes a prior case in which a juvenile was to be held over for trial because there was a “serious risk” that if released he would commit a crime prior to his next court appearance. The defense attorney had made the objection that “the standard for detention was fatally vague” and that “it is virtually impossible to predict future criminal conduct with any degree of accuracy”, and that such a vagueness is simply too great to be justified by the State’s claim that such detention “served legitimate regulatory purposes”.

Nah, the Court says here. “[O]ur cases indicate, however, that from a legal point of view there is nothing inherently unattainable about a prediction of future conduct.” There isn’t? Humans can indeed predict the future? And this is in the twentieth century? In modern America?

And once again, and immediately, the Court gives its game-plan away: In matters of sex-offenses, “it is the quality of the offense – a sex offense – [that] undoubtedly led to this legislative conclusion that notification was warranted even when reoffense was not probable, and that legislative conclusion is unassailable in any proceedings before the court”.

So, the Court is saying, it’s not you – it’s the nature of the offense – that is the key to the ‘emergency’ here. And the nature of that offense – according to those highly dubious Legislative Findings of Fact that even the Court admits are highly contested and unavoidably uncertain – is such (sex-offenders as a group are at high risk of reoffending and cannot reliably control themselves) that a sex-offender is for all practical purposes a guaranteed ‘emergency’ just waiting to happen. In other words, the Court and the Legislature are not saying they can predict the future; the “science” however is saying that, and the Court and the Legislature must bow to the “science”. ***

Nonetheless, the Court will applaud the Legislature for “having stuck the balance between the need for safety and individual rights” by refusing to mandate that the entire State be formally notified of each sex-offender’s presence; no, only those groups and persons “likely to encounter” the SO will be formally notified. Of course then came the Internet registries – and anybody can now either access them or even subscribe to an I-Phone app that keeps you constantly updated – and that leaves the Court’s already flawed thinking in the dust.

But the Court, so distrustful of sex-offenders as a group and a class, proves itself charmingly trustful of the media: “We assume that the media will exercise responsibility in this matter in recognition of the critical societal interest involved. In particular, we assume that the media will not knowingly frustrate the explicit legislative goal of confining notification to those likely to encounter the offender.”

In other words, in 1995, the Court will see no reason to fear that a sensationalist and no-longer-strictly-accurate media will go and broadcast SO material all over the place, just to – say – increase circulation and viewership or readership. Nor that the media will do so “knowingly”. I ask you: in all of the SO mania reporting of the past dozen years or so, have you ever seen a paper or station hauled into court for violating this Court’s assumptions? And yet the country was then and still is treated to lurid stories (although less so now than before).

And indeed, in 1995, the Court had the clear, screaming example of the media coverage of the early-1980s ‘pre-school sex scandals’ clearly before it.****

In a love-note to the media, the Court purrs that “we do not believe that the response of the media to this law, whatever it may be, can determine or affect its constitutionality.” This is the seat-belt focus again. By refusing to consider the societal context of this law, or the (sadly) demonstrated tendencies to mania latent in all human societies, or even to recent American legal history and events, the Court (and the US Supreme Court would run the same play in Smith v. Doe in 2003) claims that it can’t see anything that might go wrong. Stare at the seatbelt, and hold the seat-belt law close to your eyes, don’t look at the car on the cliff or the government agents waiting behind it to push, or the reporters and the crowds, and then declare that it all looks OK to you – as long as that seat-belt is fastened.

No, says the Court, “clearly there is no occasion to pass on that issue [the media amplifying sex-offense matters sensationally], for to do so assumes conduct on the part of the media that should not be attributed to it hypothetically in this litigation”. The history of propaganda in the 20th century, the pre-school mania and the missing-child mania before that in the late 1970s, the general awareness of media’s pressure to increase viewership and readership – no, the Court cannot allow itself to be jumping to any conclusions or making any assumptions.

When it comes to making huge assumptions about sex-offenses and SOs, however, the Court is perfectly willing to make the hugest and most anti-Constitutional assumptions.

The Court then shrewdly absolves itself of any bad consequences which its present reasoning might engender: “Whether such feared reaction would affect the legislative policy judgment in the future is not a matter for us to determine.” In other words, if this doesn’t work, blame the legislature.

“We note only that uncertain assumptions of inappropriate and destructive future behavior on the part of either the media or the public do not, and should not, govern judicial constitutional rulings.” Harrrrumph! The Court is not into the ‘assumptions’ business when it’s going about the serious business of assessing Constitutionality, especially in a matter that almost immediately raised the most acute and profound Constitutional challenges, to which the Court has admitted it cannot bring any certain science or knowledge.

You have to ask yourself just where and when we have gone through the looking-glass here. Because somehow, we are most surely sitting at the Mad-Hatter’s Tea Party … and are expected to observe decorum and keep a straight face.

But then, in concluding this Section, the Court recaps its excuses, just in case you were indeed starting to stare at its Opinion in stunned disbelief: “The complexity of the social problem addressed by the Legislature in Megan’s Law is clear. The recidivism of a repetitive and compulsive sex offender is almost intractable.”

Just so you don’t forget.

And blame the Court.

NOTES

*See my Post “Some Thoughts on Smith v. Doe”, June 24, 2009, on this site.

**Of course a decade later, AWASORNA seeks to dilute any judicial review of the Tier Classification by State authorities by simply creating a ‘status class’ of targeted individuals: in AWASORNA, the mere fact of your conviction of a ‘sex offense’ (widely defined) – or the mere fact of your having pleaded guilty, whether a court accepted the Plea or not – automatically triggers your ‘eligibility’.

The States in the AWASORNA scheme are reduced merely to book-keepers, raising – by the by – Xth Amendment concerns that the Federal government is seeking to interfere with the criminal-law authority that resides properly with the individual States.

The trick is that the States have to willingly accept the AWASORNA scheme or else lose 10% of certain of their law enforcement assistance monies from the Feds. Once they did that, the States would have effectively signed away their Xth Amendment authority, mooting the question as to whether the federal government had taken it away from them.

If there is any proof for the existence of God, I think it would partially be that a) the AWASORNA scheme itself effectively guaranteed to increase State costs far in excess of any monies a State would lose by not signing-on to the AWASORNA scheme, and b) the economy collapsed (and ain’t coming back to pre-2007 levels for quite a long while). But again, look what it has taken – the shocking collapse of the postwar American economy – to even begin to slow this mania down. Neither Legislatures nor Courts – for the most part – have been able or willing to slow things down on their own. Not pretty.

Further, I point out that it was the strategy of the advocacies’ over time to imitate the path taken by the Civil Rights movement of the 1950s and subsequently, which has borne this poisonous fruit. The Civil Rights movement realized that rather than fight racism State-by-State as it were, it would be much quicker and more efficient to simply get the Federal government to support the struggle, and let the Feds issue national legislation binding upon the States.

But look what happens when this strategy ‘migrates’ to sex-offenses and criminal law process.
First, where in the 1950s there was clear and overt racism that just about every citizen wanted to see corrected, in the SO mania there is a hugely dubious ‘emergency’ – fueled as is now becoming clear by grossly inaccurate ‘research’ and ‘science’ and hugely inflated ‘numbers’ and amplified by a sensationalist national media.

Second, such a ‘migration’ of the strategy into the criminal law arena triggers not only individual Constitutional concerns, but even (through the Xth Amendment) State concerns as to the intrusive expansion of the Federal power.

You might say that the Poritz court could not have known in 1995 what would happen in 2006, but clearly that’s insufficient: the flaws in the law, and the mania that reacted in concert with the law, were all clear in 1995, and indeed the Court here goes to great lengths to finesse the flaws.

And the AWASORNA ‘refinements’ – intensifications, really – are themselves an ominous indicator of a sustained mania, and given the fact that a decade has passed and the laws are getting more intense instead of abating, suggests strongly that some focused force and power is continuing to sustain the mania and drive it to ever-increasing legal intensity.

***Of course, four years later, when some very competent national scientific authority clearly discovered and reported that the previous sex-offender “science” was to some extent unsupported by any discoverable facts, Congress went kablooey and issued its first-ever rebuke of “science” for discovering such not-Correct things. See the Notes to my Post “Careful Now” about “Violent Offender Law” of August 13, 2009 on this site.

****More than you might think: Chief Justice Wilenz, of the New Jersey Supreme Court, author of this Poritz Opinion, was involved in New Jersey’s jurisprudence back then. He is mentioned most favorably in a 1993 compendium of feminist law as a jurist who ‘gets it’, precisely for his “detailed and sympathetic treatment” in the development of the domestic-violence initiatives (and the DV Registry) in 1984, nine years before this Poritz case. See Patricia Smith (ed.), “Feminist Jurisprudence”: New York, Oxford University Press; 1993; p. 207.

He is especially complimented for his reliance on the ‘research’ of one Lenore Walker, whose astronomical figures ‘proving’ overwhelming male advantages in divorce settlements had to be withdrawn and disavowed when other scientists first couldn’t get her to provide her actual research figures and then discovered that she had doctored the figures through blatant mis-counting procedures.

In regard to mentioning the Domestic Violence material, I am planning to do a brief Post after this series on the 'research' underlying that. On the IPT-Forensics site, here, psychologist Douglas Mould reports at length on the fact that even in the original DV research, it was discovered that a solid half and a bit more of the women admitted to initiating physical violence against their husbands.

This is not intended to 'trump' the matter of DV, nor to in any way minimize the pain and genuine trauma of DV. But it is a solid warning that there is a serious 'science' problem in DV as well as in SO research. There exists an 'other half' of DV research that reveals the amount of female-initiated violence, and yet in the late-1980s and early-1990s that 'other half' of the research was suppressed because it 'would not support the Cause' that certain advocates and advocacy-science researchers wanted the public to agree to.

That in itself constitutes a clear relevance to our present SO concerns. The 'science' in all of these huge society-wide initiatives has been deliberately suppressed even more than it has been selectively reported.

And Chief Justice Wilenz, author of this Poritz Opinion, was deeply involved in the DV arena before the SO arena.