DOE v. PORITZ 2

DOE v. PORITZ 2

This Post considers Section II of the case, entitled “The Laws and the Attorney General’s Guidelines”. As always, the text of the Decision is here.

The Court begins by again repeating its illogical assertion: “Despite complexities of detail, the Registration Law is basically simple. It requires registration of sex offenders convicted after its effective date and all prior-convicted offenders whose conduct was found to be repetitive and compulsive.”

A first-time offender is still going to wind up on this thing, though it is impossible to assert from that offense that the offender is in the grip of “repetitive and compulsive” urges. The Registration and Community Notification Laws (RCNLs) are attempting to determine a psychological state or condition (although we shall see soon enough that psychological expertise or competence is not going to be required to make the determination). And it appears clearly to be sidestepping the usual procedures for civil commitment, which of course have to do with serious mental illness, which leads on to think that the State and the Court realize that sex-offenses, by and large, are not the result of a professionally determinable condition of mental illness.

The Court lists the offenses that trigger RCNLs, and in doing so reveals that the offenses that trigger RCNLs extend beyond ‘sexual assaults on children’ to include sexual offenses or attempted offenses against anybody.

“The requirements apply as well to sex offenders convicted elsewhere who relocate to this state.” Interestingly, the problem has been created, which the Court does not consider, as to what happens to persons reviewed in another State and found ineligible for sex-offense registration by the convicting State (and there might be a number of reasons how that might happen). The State will not recognize such ineligibility, but will require New Jersey registration based only upon the offense. This is a sidestepping of the usual procedure (as with drivers licenses and marriage licenses) where all States accept the authoritative judgment of one State that its determinations are valid. (AWASORNA, most recently, has attempted to ‘solve’ this problem by removing the entire question of assessment and making eligibility hinge not on anybody’s or any State’s evaluation, but rather on the brute fact of conviction.)

Re-registration will even be required if the individual moves to another municipality within the State.

“All of these are lifetime requirements, unless the registrant has been offense-free for fifteen years following conviction or release from a correctional facility (whichever is later).” The Legislature and the Court are looking to cast the widest possible net (and to ‘keep the numbers up’ – let folks think that there are myriad hordes of stranger-sex offenders prowling the country).

The Court then proceeds with a recital of the Notification requirements, based on the Tiers (One, Two, and Three in ascending order) which have been established to denote risk of reoffense. Of course, the parameters put forth in the entire Tier scheme are remarkably vague and fluid, pretty much leaving it up to the State to say whether an individual has a Low, Moderate, or High Risk of reoffending.

Somewhat remarkably, the Court then follows up quickly with the observation that “No suggestion has been made [in the RCNL legislation] that any registrant could be classified as posing no risk of reoffense.” This does not bother the Court. That an offender might pose no risk of reoffense – while certainly conceivable in a professional therapeutic program – is not something that the State is going to permit. And this is not a clinical evaluation but a legislative one. For all its eagerness to see this entire scheme ‘scientifically justified and grounded’, the State is weirdly determined not to let the ‘scientists and professionals’ make the assessments.

This is certainly a give-away that the entire program is not motivated to any credible extent by any ‘scientific or clinical’ concerns, but rather by – shall we say? – ‘other’ concerns, among which I think ‘political’ are right up there with ‘community safety’ and ‘public protection’.

And of course, if you were to allow the professional clinical community to make such determinations, there is a hugely increased chance that when they make the no-risk assessment frequently, the scientific (in)validity of the entire scheme would be inconveniently highlighted. And it is of concern to the State that the public is kept under the impression – or illusion – that the entire scheme is indeed ‘scientific’.

This impression of the State’s unwillingness to trust its professional community with assessment is immediately reinforced by the Court’s observation that “the risk of reoffense, and therefore the extent (the level of Tier) of notification shall be assessed by the prosecutors of the county of conviction, together with any law enforcement officials” that they deem “appropriate”. In other words, the RCNLs have the prosecutors and the police making the assessment as to the risk of reoffense.

There is an ominousness to this entire gambit: not only are these officials non-professionals in the matter of clinical determination and assessment, but they are far more liable to political and communal pressure as well as to their own professional police tendencies to lock ‘em all up and let God sort it out – or, since most of these cases will be for lifetime registration, Time.

I can’t help but notice, as well, that this ‘valorization’ of the prosecution’s power is uncomfortably reminiscent of the prosecutor’s heavily-advantaged authority in the military justice system, especially as it existed in the mid-1990s but also as required by the inherent and uniquely anti-Constitutional forces and dynamics governing any attempts at ‘justice’ in the military milieu.

This discomfiting observation is reinforced when it is recalled that in the federal legislation preceding the State legislation, the military justice system’s convictions – heretofore largely left alone in mute recognition of the military system’s unique Constitutional flaws – are included among the convictions that validly trigger eligibility for the RCNLs. I get the idea that the military lawyers lobbied not only to get ‘their’ system introduced formally into the national civil justice forum, but that they also imparted their own unique ‘approach’ to law enforcement and jurispraxis as it is deployed in courts-martial. That cannot be good on its face, and the years-long complicity of military justice in subsequent programs of torture (not to be mitigated by a far-too-late ‘shock’ when the cat got out of the bag) must itself stand as a clear alarm as to the deeply disturbing genesis of all these sex-offense mania laws.

The Court notes approvingly the ‘forms’ to be used in community-notification, although once it had given away the store by accepting the assumptions upon which the law was built, no amount of ‘careful’ documentation is going to mitigate the toxicity of the laws.

In this regard, I cannot ignore the legislative strategy deployed by Stalin in the Soviet Constitution of 1936, which at the time was observed by many to afford more protections than the US Constitution: once you are sure that all your own cadres are in all of the key positions for implementing the on-paper “guarantees” made to “all Soviet citizens”, then you can – on paper – make all the grand and glowing promises and portentous assurances that you want; because when push comes to shove, it will be ‘your’ people who will be doing the ultimate deciding, under the illusory aura of the system’s guarantees.

One last time, I’ll note that it was precisely this model that was adopted by the military in the late 1940s when Harry Truman insisted to the Pentagon – after innumerable complaints from returning GIs – that genuine Constitutional process be built-into the military justice system. In order to placate Harry but keep their control of the system so as to ensure the outcomes desired by commanders, the military bosses simply stitched together a marvelous system on paper, secure in the knowledge that when it came down to actual practice, they would ‘own’ the judge, jury, prosecutors, investigators, defense counsel, most of the witnesses, and – naturally – the ‘defendant’ himself. Stalin won more in the Second World War than any of us would ever like to believe. And I sense acutely that same sinister hand in this sex offense legislation.

Towards the end of this short section, the Court then gives away the underlying strategy: “All of these provisions of the laws, the requirements for registration, the provisions for notification, and the many other related parts, are tied together by the statement of legislative purpose … to aid law enforcement in apprehending sex offenders and to enable communities to protect themselves from such offenders.”

This is the key, I think, to understanding this system, as it was the key to deciphering the dangers resident in Stalin’s 1936 Constitution: once you allow yourself to be lulled by the assumptions stated at the outset, and once you forego any analysis of the actual system and bureaucracy tasked with administering the thing, you have trapped yourself into accepting what on its surface is a cleverly-woven fabric of seemingly ‘logical’ and even ‘benevolent’ practices. If you simply stare at the paper on which the law is printed, and go no further in your analysis, you have allowed the vampire into the house; and thus all the rest is at that point made irrelevant.

Readers of a historical bent will recall that in 1937, with the ink hardly dry on his new Constitution, Stalin started the infamous ‘show trials’, to which much of the world’s educated elites, having already eagerly attested to the wonderfulness of the paper, could only whimper that it was all “legal”. Although many gamely and brazenly tried to make a silk purse out of this sow’s ear by insisting that when – like Stalin – you are trying to bring an entire nation and its citizenry into broad sunlit uplands of enlightened progress, then – as Stalin himself said – some eggs will have to be broken to make the omelet.

“Together these laws are fairly designed to achieve those purposes.” The Court – and perhaps not un-knowingly – rides straight into the trap so marvelously designed in the original by Stalin himself.

But at that point, in concluding the Section, the Court cannot rid itself of the unease that it knows will accompany the approval and implementation of these laws: “We are aware of the uncertainties that surround all aspects of the subject of sex offender recidivism and the effectiveness of preventive measures”. The general outline of profound and grave weaknesses in all the ‘studies’ that the Legislature chose to ‘Find’ and ‘Declare’ accurate, and the wide and deep objections raised against them by substantive professional opinion, were clear at the time this thing was passed by the Legislature and approved by the Court.

And the Court – and I suspect the Legislature – knew it.

And went forward anyway.

But the Court will do what it can to put a good face on this thing: “Legislatures, despite uncertainty, must sometimes act to deal with public needs, basing such action on what they conclude, in a welter of conflicting opinions, to be the probable best course. Our Legislature could reasonably conclude that risk of reoffense can be fairly measured, and that knowledge of the presence of offenders provides increased defense against them.”

I had mentioned in an unrelated Post not long ago the concept of “migration” – that an idea that works well in one area of endeavor will – especially in the Beltway – be taken up by interests working in another area of endeavor.

In this case, one thinks of environmental law: although we cannot know everything there is to know about the dynamics of environmental change – global warming, say – yet we have to start taking action now as best we can.

This is not a happy situation, but if the consequences are grave enough, then you have to do what you can with the best knowledge you have available.

But to ‘migrate’ this approach to the criminal law – and to the police authority of the State – and to do so especially given the profound and hardly unwise concerns the Framers had about an unboundaried government police power, is hugely dangerous. And the consequences Constitutionally are so profoundly lethal that no genuinely American jurisdiction or legislator or jurist can conceivably undertake it without the most intensive, careful, painstaking, and unfettered deliberation.

Which is not what New Jersey – or the federal government in the legislation that preceded the New Jersey legislation under consideration here – did.

And they know it.

And – I will say it again – the same pattern raises its diabolically ugly head a few years later in the run-up to the Iraq War: either through haste or through ignorance or through willful deceit and misrepresentation, a plan of action was adopted that set in train the most grave and lethal consequences.

The government – in its Legislatures and in its Courts – has chosen to travel a dark path indeed.
And take us with it.