Wednesday, August 19, 2009



(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.


*If you want to get a head-start on the Decision today, follow these instructions: a) go to; 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.)

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