“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.