Sunday, August 16, 2009



This Post covers Sec. III of Doe.v Poritz. As always the text of the case is available here for your own inspection.

The Section is entitled by the Court “The Challenges to the Laws”. The “Laws” refers to the Registration, Classification and Notification Laws, called here RCNLs.

The Court wants to make sure that it squelches all possible objections and saves a lot of time, since numerous individual cases could be expected to be filed against this wide-ranging scheme. “Although plaintiff is seeking relief only for himself [which means he is not filing a ‘class action’ suit], our decision will affect all sex offenders covered by the laws.” They knew they were putting something across that was hugely dubious and bound to generate a great deal of court activity by the many persons caught in the net.

The Court justifies itself: “Plaintiff’s claims are the same as any offender could assert, whether convicted before or after the enactment of these laws, although his ex post facto and bill of attainder claims apply only to previously-convicted offenders.” These are verrry significant Constitutional objections that the Court realizes this scheme is going to generate.

“The claims that can be made after the enactment of the laws – double jeopardy, cruel and unusual punishment, invasion of privacy, equal protection, and procedural due process, can also be made by the plaintiff.” Again, these are also major Constitutional claims: the Court realized that it was dealing with a verrry Constitutionally dubious scheme, and yet it will attempt to sweep all of them away in one stroke, in one case, and sort of hope that it will pull the rug out from under everybody. Sort of a ‘many birds with one stone’ approach.

I think that the Court here takes a very inappropriate approach; no prudent jurist would want to handle so quickly and sweepingly such a gravely-fraught scheme. And I think that the Court’s doing so indicates just how urgently they all wanted to get this thing set up and protected from further scrutiny – and if that meant coarsely silencing the many who would be affected by it, then the Court apparently was very willing to do that.

Of course, I’d say that, in addition to constituting highly imprudent jurisprudence, this is a clear warning of the mania dynamic at work. Here, the Court will abdicate any extensive role, hoping to do what it has to do and get itself out of the line of fire, or out of any further responsibility. And in the process, cover the Legislature’s responsibility for enacting the RCNLs to begin with.

It’s too quick, it’s too cozy, and it undermines the entire speed-bump or watertight-compartment role that the separation of powers mechanism is precisely designed to enforce. Now, instead of the judicial branch carefully scrutinizing a law (and a highly dubious one) that the legislative branch has enacted, thus slowing down whatever hasty, rushed, manic dynamics might constitute a stampede or a flood, the judicial branch is simply going to add its impetus to the flood and push it along as fast and as powerfully as it can.

Actually, the plaintiff – due to the circumstances of his situation – had a rather wise strategy of not making his suit a ‘class action’ suit, but rather seeking to be judged on the merits of his own situation. His own situation was strong in its way.

As the Court notes, he was a “first-time offender who successfully completed treatment as the Adult Diagnostic and Treatment Center at Avenel [New Jersey], was paroled, successfully completed parole, and has been living and working in the community. He has not reoffended, is apparently totally integrated in and accepted by the community, which except for his employer and co-employees is ignorant of his offense.” In other words, this is an individual who has very much fulfilled the traditional American path for someone convicted of a felony, and done it in pretty much a best-case scenario – done his time, completed his parole, gotten on with his life, re-integrated into his community, and is carrying on again as a citizen.

He poses a problem for the Court, and a significant one: by being a best-case example of the ‘traditional’ American ex-convict, his situation under the new-fangled RCNLs will draw attention to just how un-American (there, I’ve said it) this new scheme is.

The Court must somehow weaken him. It does so first by the snide “apparently” in its reference to his being integrated into his community. It’s a low blow, but this is – alas – politics, after all, and the Court is almost desperate to keep the lid on the process of justifying the imposition of the new scheme.

It then blithely asserts that anybody subject to the RCNLs can be “making the same attacks”.

In addition, it asserts that since it has no proof that he is as successfully treated and re-integrated as he says, then for all the Court knows he may wind up being a Tier III [the most serious and dangerous] offender, once the classification ‘experts’ get through with him. So, the Court says, for all it knows he’s just as awful as a full-blown voracious sex-offender can be. The Court does not intend to find out his ‘record’ for itself – since according to the RCNL scheme, the State will judge that record when it makes his Tier classification.

Neat. Catch-22: you can’t stand on your record in order to claim exemption from this scheme, since the scheme itself is the only one authorized to judge your record (and anyway – really – as we will see in the ‘logical’ development of this whole scheme to its most recent form in AWASORNA, your record doesn’t count … only your conviction does; you are a ‘status class’ criminal, which is a smarmy way of saying that you are now part of – for all practical purposes – a permanent criminal class … which is hardly the American way at all).

And so Mr. Doe’s respectable achievements in rehabilitation and reintegration are submerged in the general smoke-screen and miasm now being laid down around all ‘sex offenders’, those dangerous and threatening non-citizens against whom all pure and right-thinking folk are invited to defend themselves. Ach.

The Court is caught here, trying to accept without actually pointing to it, the gravely ‘new’ idea of erecting a ‘class’ that is by its very existence ‘guilty’(or ‘dangerous’), such that the only recourse a member of that class now has under the law is to submit himself to what ‘degree’ of guilt or ‘dangerousness’ he shall be assigned to bear. This dynamic is disturbingly similar to the Nazi race-laws or to Communist jurisprudence in the matter of the ‘kulaks’. There is strong historical precedent for this sort of thing, but … not in America.

Then the Court admits the stakes: “We note … that if plaintiff’s attacks are successful these laws may be invalidated not only for previously-convicted offenders but for all sex offenders who are convicted in the future.” Well, if you as a Court are faced with a highly dubious new legal scheme, and a single plaintiff’s complaint might well undermine the whole thing, then you might well figure that your job is to scrutinize the law, decide the merits, and let the chips fall where they may. The Legislature are big boys (and girls); they passed this scheme, and if it is so fragile or dubious that this plaintiff’s case – if it deservedly succeeds – will collapse it, well then the Legislature will just have to grit-up and go back to the drawing boards and rethink their whole approach.

But no.

The Court quickly concludes this brief Section by observing that if any of this plaintiff’s issues are sustained for him, they are sustained for everybody, whether previously convicted or convicted in the future.

In its way, here, the Court is providing a blueprint of precisely what legal fictions absolutely must be maintained in order for this scheme (or any RCN scheme) to function: 1) it must be accepted as non-punitive, so as to avoid the Constitutionally fatal Violation of Double-Jeopardy charge; 2) equally, it must be accepted as non-punitive, so as to avoid the Constitutionally fatal Violation of Ex Post Facto charge; 3) it must be accepted as having a scientifically-grounded and rational basis for Classification, so as to avoid the Constitutionally fatal Violation of Due Process charge; 4) it must be accepted as relatively benign in its effects on the lives of SOs, so as to avoid the Cruel and Unusual Punishment charge; and 5) ditto to avoid the Invasion of Privacy charge.

If any of these ‘attacks’ succeed, then this whole thing will collapse like a house of cards. The Court hopes that folks will simply assume that since NO legislature could possibly be so Constitutionally-incompetent or treacherous as to pass a wide-ranging set of laws that are so poorly grounded and so dangerously designed that they would collapse like a house of cards, then NO court can be expected to collapse such a set of laws like they were a house of cards.

But – I would say – this is precisely what the New Jersey Legislature did when it created this scheme, and what the New Jersey Supreme Court was preparing to do by propping it up: to insinuate and impose into the living body of American law and jurisprudence a hugely dubious, most certainly un-American scheme, that would require undermining the entire American approach to law, substituting an alien concept that was being masked as ‘progress’ in ‘sensitivity’.

Because there were two theories, very big in the universities and law schools back then, both of which considered ‘traditional’ American law and jurisprudence to be not only ‘quaint’ but ‘tainted’, and proposed – demanded even – that they be replaced with a revolutionary new approach.

The ‘old’ approach – upon which the Framers built their vision – was that the law must adhere to principles and ideals based upon the nature of human beings and human existence, and that the power of the government to interfere in the lives of the citizenry must be carefully fenced in. This was not only to prevent tyranny, but to give the natural creativity of the human citizens in their civil society the space to flourish and – really – to build up the country and keep it going.

The ‘new’ approach – that had been building in the West since the rise of industrial and corporate capitalism – was that the government and its authority was the only thing ‘big’ enough to protect the citizens from the huge and powerful corporations, and that it was not ‘the nature of things’ but simply the authority and wisdom of the government and of the laws it made that determined if something was ‘right’ or ‘wrong’. And that consequently, it was up to government to say what was ‘right’ or ‘wrong’, ‘good’ or ‘bad’.

Worse, in addition to that, was the idea that most people in most societies don’t really know what the ‘best’ way to proceed is – certainly not in matters of wide and deep significance; rather, it is only the enlightened few who ‘know’. And so it is the responsibility of those few who are enlightened to be the ‘elites’ who ‘lead’ the rest; and – of course – it is the responsibility of ‘the rest’ to follow, or more candidly, to be led.

In the early 1970s, at Harvard, a philosopher named John Rawls came up with the idea of blending all of this ‘new approach’ with an added twist: that in American society, it is the university professors, the judges, and the lawyers – with input from other ‘experts’ – who were the elites, and as elites they were morally bound to do whatever it took to re-shape society into a ‘better’ shape. He was very much considered a genius by university professors, judges, lawyers, and anyone else admitted into the ranks of the elite.

You might think that – whatever else he was – he was somebody unfamiliar with the entire Founding vision of what the American vision is all about and how its governance should work: “of the People, by the People, for the People” as Lincoln would later sum it up.

But ‘revolution’ was in the air back then – the Communists had done it (and hadn’t lost Vietnam), Mao was doing it (and everybody was smiling for the cameras, as far as TV news could tell), and it was all so ‘cool’ and ‘hip’ to ‘get it’ when so many others ‘just didn’t get it’. Happy times indeed. To be ‘elite’, to ‘get it’ when most others didn’t, and to have a moral responsibility to take over the political process and impose the ‘correct’ stuff that would make America what you honestly felt it would be best to be … sort of a moral hat-trick (although few of the elites played hockey, so they wouldn’t actually have put it that way).

In all of this, the police and coercive authority of the government was re-imagined. The Framers had considered it a wild beast, a lion looking always to devour if it weren’t kept within tight limits.* The ‘new’ or ‘revolutionary’ approach was that government was a mother-hen, doing what was best for her chicks. Or – if you prefer – a lioness doing whatever it took to protect her cubs.

The Framers’ view saw all Citizens as equal – in potential weakness as well as in potential virtue – but all deserving to be protected from the historically-demonstrated ravages of unbalanced government power by making the government subservient to the Citizens.

The ‘new’ view sees some Citizens as ‘good’ and others as ‘evil’ and as ‘threats’ to the good ones, and wants the government to have free rein – no pesky ‘principles’ or ‘abstractions’ or ‘ideals’ – to get rid of those ‘threats’ by whatever means will work quickly and effectively. If government-as-lioness ‘felt’ that something was a ‘threat’, or if one of the good ‘cubs’ felt it was being threatened and cried out, then government’s only job was to come right over and dispose of the threat.

You can see where such a vision might lead.

So all this was thick in the air of the national elites – legislators, law school and university faculties, judges – when the 1990s began.

‘Feeling’ – not only what you felt (fear, especially)but who you felt (to be a threat, especially) – replaced ‘thinking’ (about those quaint and obstructive principles and ideals). So – as you may have noticed in recent years – the quality of American thinking (even by, or especially by, its elites) has gone down. Way down. The wars (failing), the economy (failing), the very fabric of society (fraying) … it’s against this background and from the same poisoned well that the mania-law of the 1990s has sprung.

Has sprung forth.

Has sprung at us.


*With a revealing oddness, this is exactly what the government accuses sex-offenders of being.

No comments:

Post a Comment