Saturday, August 29, 2009



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.


*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.

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