Tuesday, August 18, 2009



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.


*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.

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