DOE v.PORITZ 1A

This is the first of a series of Posts I am going to do on this crucial case. It has 15 main sections, and I will cover one section at a time, within the next two weeks or so. I am not going to do a ‘law review’ of it, nor a ‘study’ of one or another aspect of it – although if you google around you will find numerous law review articles and studies of it.

I am going to give my thoughts on each section, quoting the Court and then saying what I think. I want to share my take on it, as readably as I can, blending in what I know and what I recall. And you can take it from there.

This was the New Jersey Supreme Court case whose Decision upheld the Constitutionality of the first Megan’s Law, back in 1995. It was a 6-1 Decision, although the Dissent, especially viewed from almost 15 years later, is not only acutely insightful but prophetic. And when I say ‘prophetic’ I don’t mean that the estimable Justice Stein is a sorcerer, but rather that the problems in this thing were clear at the outset all those long years ago.

The Decision itself is here. It includes Stein’s Dissent, which alone is worth the read.

The Decision is by my count about 65 pages long. But it’s not as totally wrapped up in abstract legalese as you might fear. The Court was up to something here: it was not only Deciding, it was trying to forestall what it must have felt were deep and broad public and professional misgivings about the wisdom and validity of this type of scheme, and it seems also to have been trying to ‘educate’ the public, which in this situation meant re-educate the public into an entirely new (and I would say ‘alien’) approach to American law and the scope of government power. And I think it was also trying to provide lots of nice sound-bite quotables for ‘advocates’ of the whole scheme.

So as a result it is kind of more readable than the average sixty-or-so page Decision usually is.

I’d add here that you will probably sense what seems to be a ‘team-work’ effect: the Court is bending over backward to support the Legislature, and at the same time its efforts will bolster the ‘advocacies’ who pushed the whole scheme onto the Legislature to begin with, and the media as well – who will have to spin this thing for public consumption and make sure that only Correct ideas are given a public hearing. This is, I think, a clarion example of what always lay hidden in the ‘elite’ and ‘sensitive’ philosophy of John Rawls: that those in positions of authority
(legislative, justicial, cultural) who ‘get it’ should feel no qualms in doing ‘whatever it takes’ (that ominous Israeli phrase) to pull the country, and certainly (unenlightened) public opinion, into the Correct paths; and in the pursuit of such a plan, even Constitutional impediments should be seen as ‘quaint’. O brave new world!

As a result, and especially if you read this now, in 2009, it will seem – I think – dated. And, in light of the many baaad things that have happened that the Court piously presumed would precisely not happen, kind of pathetic. But pathetic in a Constitutionally and societally lethal way.

I’ll go over the main points of the Decision, and then Justice Stein’s Dissent.*

If you go to the Rutgers site provided in the hyperlink above, you’ll notice that there is a helpful 4-5 page ‘Supreme Court Syllabus’ preceding the text of the actual Decision. It is succinct and gives the core quotes for each of the 15 sections.

The Court essentially Held the following: A) The Registration and Community Notification Laws (RCNLs) do not violate Ex Post Facto, Double Jeopardy, Cruel and Unusual Punishment, or Bill of Attainder Clauses of either the federal or New Jersey constitutions. B) The acts do not deprive sex offenders of the right to equal protection under the laws or to their constitutional rights to privacy.

Then in 15 sections it explains how it reached those conclusions. (Each of the Holdings noted above is in response to an Objection made to the RCNLs by “Doe”, the Plaintiff-Appellant.)

In this Post I’ll deal with Section One.

Sec. I – The Legislative Purpose: Addressing the Problem of Repetitive Sex Offenders
“The essence of our decision is that the Constitution does not prevent society from attempting to protect itself from convicted sex offenders, no matter when convicted, so long as the means of protection are reasonably designed for that purpose and only for that purpose and not designed to punish; that the community notification provided for in these laws, given its remedial purpose, rationality, and limited scope, further assured by our opinion and judicial review, is not constitutionally vulnerable because of its inevitable impact on offenders; that despite the possible severity of that impact, sex offenders’ loss of anonymity is no constitutional bar to society’s attempt at self-defense.”

Note first that a distinction is immediately set up between “society” and “sex offenders”. This is profoundly anti-democratic: sex-offenders, like any other criminal, remain members of American society even though they have committed a crime; one’s status as a citizen is not dissolved by the conviction for a crime. The distinction betrays – in almost the first sentence of the Decision – the ‘us versus them’ approach that, I would say, is inherited from both the ‘war’ mentality of anti-male radical feminism and of the victimist philosophy (i.e., the world – and American society – is divided up into ‘victims’ and ‘victimizers’, and the ‘victims’ must be protected by all means necessary and at all costs, and anything that stands in the way of that is ‘quaint’ and must be overridden in the ‘emergency’ of this ‘war’). These philosophies gained great sway and political power with the accession of the Clinton Administration in 1993, although legal and political maneuvering had been building with increasing intensity through the later 1980s.

This is reinforced by the idea that “society” has to “protect itself” from what are in effect some of its own members. The traces of Identity Politics are here, especially its lethal presumption that “American” is not the primary ‘identity’ of Americans, but rather the primary identity is whether you are a ‘victim’ or a ‘victimizer’ (or ‘perp’ or ‘predator’ or some such).

“No matter when convicted” telegraphs that fundamental Constitutional concerns about Retroactivity and Ex Post Facto laws will not be allowed to interfere. The ‘war’ and ‘emergency’ mentality justify so novel and sweeping a plan as the RCNLs will impose. The traditional assumption was that once a citizen had served time for a conviction offense, then that was that; if a citizen were to go out and commit another crime, or another instance of the same crime, then that would be dealt with. And if a citizen were a ‘repeat offender’ there were increasing penalties.

But again, what we are seeing here is not a determination to enforce the law and prosecute crime, but rather to prevent crime, and to prevent crimes on the part of a specific group, singled out as and even constructed as a ‘class’ – which is not something that America had ever attempted on a large scale. After all, once you are trying to prevent crime, you almost have to have the knowledge of a divinity to predict the future. No wonder the Founders didn’t go near it; although they could have – after all, examples of prosecuting witches or using divination to help a court determine guilt or innocence went back to Medieval times – at least – in the West. But the Founders wouldn’t touch it. And the problems are clear in a film like “Minority Report”. This constitutes a huge expansion not only of the government police power, but of the government’s inflated sense of what it could possibly have the human ability to achieve.

“The law”, the Court insists, “must be reasonably designed for that purpose [remedial and not punitive] and that purpose only”. But if the purpose is to protect by giving parents notice of the identity of sex offenders, then the law will only work when the offender is in his house or neighborhood; and that leaves huge loopholes. Further, what precisely will parents do? Not let them go wandering around? Give them lectures? Don’t parents do that anyway? Is all of this RCNL legislation necessary?

Further, the Court limits its examination of the purpose of the law merely to what the Legislature officially says is the intent of the law: if the Legislature says it doesn’t mean to be punitive, then the law isn’t punitive. But a knowledge of human dynamics – individual and communal – easily provides grounds for seeing that the law’s intended purpose, even if truthfully stated, may well careen out of control amid a welter of public anxiety, fear, anger, illusions, and hysteria. And surely, a knowledge of the historical record will demonstrate precisely the same thing. But of course, the Court can’t look at any of that for fear of drawing attention to the similarities between what it is approving here and police-state and totalitarian practices as recently as the late-20th century. The Serbs were engaged in widespread and sustained hysterical societal retribution against the Kosovars – widely publicized in the mid-1990s – even as the Court was considering this case.

The ‘emergency’ of “society’s attempt at self-defense” is so great that it justifies the “possible severity” of the “inevitable impact” on sex offenders. This asserts the clearly repugnant historical practice of claiming that since you are defending yourself, then anything is allowed. Hitler claimed it against everybody he attacked: the Poles, the Czechs, the French, the Russians, and certainly the Jews. The Israelis had done so against the Arabs so consistently that even by the mid-1990s the world was beginning to have serious doubts. And the United States would claim precisely the same thing when it invaded Iraq six years after this Decision (and the host of other Decisions by other Courts that it spawned).

And again, the Court – against Lincoln’s and the Bible’s advice – divides the ‘house’ of American society against itself, which is a stunning and lethal gambit. The sex offender must be defended against by society – as if he weren’t a part of it. There are psychiatric terms for such a gambit: splitting and projection and reaction-formation are three that are relevant here.

While lightly accepting “the inevitable impact” on sex offenders, the Court minimizes that impact to the gentle-sounding “loss of anonymity”. That doesn’t begin to touch it, and reflects an incompetent or treacherous under-analysis: it isn’t the loss of anonymity – movie stars and celebrities ‘suffer’ that. It is the widely-broadcast publicizing of so negative an aspect of the individual’s life – AND self.

And it presumes that a sex offender has been rightly convicted, and that the assumptions about the personality matrix of ‘sex offenders’ – if a common one even exists at all – are accurate.

And the dangers of public misperceptions or the public’s extreme reactions to such a negatively shaped ‘profile’ are bound to have a far wider negative impact on the offender’s life and life-prospects: Who will hire him? Who will rent to him? What congregations (this is not so much a Catholic problem) will allow him to pray with them? How will he make a living? His prospects of supporting himself, maintaining constructive and supportive relationships, and in the most fundamental ways carrying on a life are lethally compromised by action of the State, in its Legislature, its Courts, and its Police.

Does the Court really accept these consequences so lightly, and endorse the police power that will inflict them, and the RCNLs that will ensure their broadest possible application? I can’t see it as an overstatement to say that the Court is endorsing something close to a sentence of Impossibility: the impossibility of sustaining a life in even the most minimum way.**

“The [RCNLs] are not retributive laws but laws designed to give people a chance to protect themselves and their children. They do not represent the slightest departure from our State’s or our country’s fundamental belief that criminals, convicted and punished, have paid their debt to society and are not to be punished further. They represent only the conclusion that society has the right to know of their presence not in order to punish them, but to protect itself.”

Again, are the sex offenders not also “people”, and do they not also have families and even children?

And we see here the insidious – either through stunning conceptual sloppiness or genuine treachery – conflation of ‘sex offender’ as a general term with offenses against children; yet also, that “people” might want to defend “themselves”. Here is the political sleight of hand, whereby huge Constitutional (or anti-Constitutional) novelty is being introduced under the cover of ‘the children’. Surely ‘women’ are a major fraction of those adults who want to defend themselves, and – both now and then – sexual assaults – narrowly or widely defined – upon women were seen as a ‘feminist’ thing, and the Court didn’t want to risk losing any of whatever support it was going to muster in public opinion by making itself seem to be toying around with ‘feminist law’. No, this was for ‘the children’. Although, the RCNLs would not actually protect children; they would merely inform the parents who – apparently – were letting their children out of their supervision in the first place. A most extraordinary thing, as the Brits would say.

The Court is inventing here a “right” for “society” – to know of the presence of someone convicted of a crime who has already paid the debt. This is clearly indicative of the “preventive state’ type of law, coupled with the “nanny state”. The nanny-state knows what’s good for the citizens and the preventive-state will actually read the tea-leaves so as to prevent things before they happen. It is not difficult to see here a lethal challenge to the development of the type of mature and resilient adult citizen who is required in the Constitutional vision to exercise ultimate authority and judgment over the doings of the government.

If the nanny-state sees the government as a parent, then the citizen-as-child cannot know enough to disregard its instructions. If the preventive-state sees the citizen as either totally helpless victim or totally evil perpetrator, then nobody is going to be safe from its intrusions. And in either case the danger to any Citizenry capable of discharging its duties of ultimate oversight of the government is clear: no independent and mature adult Citizens, no Republic – and no need for one. Might as well have a monarchy. Or a nanny-archy. Or a tyranny. Or – as the kids say nowadays – whatever.

It is impossible to accept as either competent or sincere the Court’s assertion that what it is proposing is in perfect conformity with “our State’s and our country’s fundamental belief”. The invention of such a “right of society” is nothing short of Volkisch, the German idea so recently and unhappily in ascendance, that in the name of “society” the government may do whatever it feels it has to do to whatever citizens or classes of citizens it has to – and not only by virtue of any emergency, but simply because the individual counts for nothing and society counts for everything. This is hell-and-gone from the Founders, the Constitution, or any classically American formulation.

In an insidious effort to maximize the fear at the expense of sex offenders, the Court then immediately goes on to bleat incomprehensibly that “The laws represent a conclusion by the Legislature that those convicted sex offenders who have successfully, or apparently successfully, been integrated into their communities, adjusted their lives so as to appear no more threatening than anyone else, are entitled not to be disturbed simply because of that prior offense and conviction; but a conclusion as well, that the characteristics of some of them, and the statistical information concerning them, make it clear that despite such integration, reoffense is a realistic risk – and knowledge of their presence a realistic protection against it.” [italics mine]

So the Court starts out nicely and nobly speaking for the Legislature (did those gentlefolk fear that their handiwork needed extra positive blurbing by the Court to get it by public opinion?). The pols acknowledge – and the Court clearly agrees – that sex offenders who have done their time and gotten their lives back together and on track deserve not to be disturbed simply on the basis of that prior conviction. Well, good.

But the Court has loaded the dice by saying – in the sections I italicized – that such former sex offenders (my word – ‘former’ – and you’ll notice that nowhere does the Court or legislature speak of ‘former’ sex offenders; apparently they presume that once a sex offender, always a sex offender … which is a huge and hugely dubious assertion, scientifically and Constitutionally) may only appear to have done so successfully, and that perhaps all they’ve really done is give the appearance of being less threatening – in other words, that the vampires have simply smartened up. And given the absence of any use of the concept of a ‘former sex offender’, I’m thinking that ‘sex offender’ is the new ‘vampire’ in the eyes of the Court; this ‘class’ are permanently dangerous and constitute a permanent threat. And this is where mania and mania law and public hysteria begin.

So then, while the Court piously agrees with the Legislature that sex offenders should not be bothered for a past crime, yet still there’s too much possibility – according to the studies the Court and the Legislature have selected – to let them do that. So, since some sex offenders statistically will reoffend, then all sex offenders lose whatever privacy and anonymity they have a right to. Because sex offenders in general pose a “realistic” risk, and knowing they are there (this DOES start to sound like a vampire novel) is a “realistic” protection against them.

And of course, the scheme will allow NO sex offender to escape the RCNLs, although if you were really just taking a leak against a tree, then you’re Tier I and only your local sheriff will know for sure. Everybody else gets the larger Medieval package.

And once again the Court conveniently under-states the challenges to sex offenders: “The choice the Legislature made was difficult, for at stake was the continued apparently [there they go again] normal lifestyle of previously-convicted sex offenders …” Well, as noted, the Court loads the dice in its own favor again. But it also assumes that the RCNL experience will merely upset a “normal lifestyle”. Yet of course it will do much, much more than that; the sex offender will be verrry lucky to maintain an independent life at all – employment, relationships, Freud’s great duo of Love and Work – are almost impossible to maintain. How are these people supposed to live at all? Carry on a life of any sort at all?

The Court then gives the Legislature’s excuse: the sex offenders’ “lifestyle” had to be “weighed against the potential molestation, rape, murder by others of women and children because they simply did not know of the presence of such a person and therefore did not take the common-sense steps that might prevent such an occurrence.”

Let’s not even worry about the hugely elastic nature of the term “molestation”, which may or not be the same as or equal to “abuse”, its sibling in sex-offense science’s special vocabulary.

Try to imagine the story that the Court and the Legislature is giving: do like McGarrett and Danno and Ho and Chin and try to work out how their ‘story’ would actually work out at the scene: you know that the person next door is a sex offender. So you don’t date him? OK, how often does that happen? And this won’t work if you meet somebody in a bar or at the circus or in the park. Unless you ask him – maybe like partners now consider it perfectly good form to inquire as to HIV-status before – ummm – pursuing the wonders of a mature, mutual, genuinely loving relationship.

Or: You know that the person next door is a sex offender – so you tell your kids to stay away from him and always monitor them to make sure. That makes some sense.

But … wouldn’t it be easier to just get the bum out of there once and for all? Make sure that if he’s working in town his boss understands that it’s not a good idea to keep him? Make sure that if he has a family that they know they’re unwelcome because they’re related to a sex offender? Make sure that if he goes out for a walk in the evening you call the police to let them know?

That’s got to be easier – maybe even a little more exciting – than simply establishing a routine of keeping an eye on the kids all the time. Does any of this sound like stuff that folks would NOT do? The Germans of the Hitler era even had a term for it: Selbstschutz, protecting yourself, and the Reich made certain groups wear colored stars on their exterior clothing whenever outside the home, so that “pure” Germans could “protect themselves”. The Reich would use its authorty to force selected groups to wear colored stars, and the people would then "protect themselves" from the 'threat'.

But in order to keep up their game, the Court and the Legislature have to pretend that human communities are essentially made up of Vulcans – totally rational and dispassionate. And they say that kids are the ones who watch too much TV.

So at this point, in the eyes of the Legislature and the Supreme Court of the Great State of New Jersey – as it was, anyway, in 1995 – we see a group of folks classified as essentially Vampires, and a civic population which in the careful assessment of the Legislature and the Court is comprised of Vulcans.

There seems to be a thread here. But I don’t think it’s very complimentary to Their Worships.

And then the Court has to tackle the next mess: how to justify the grossly un-American practice of making a law retroactive?

The Court starts with the strategy of the thing: “If the law did not apply to previously-convicted offenders, notification would provide practically no protection now, and relatively little in the near future. The Legislature reached the irresistible [italics mine] conclusion that if community safety was its objective, there was no justification for applying these laws only to those who offend or are convicted in the future, and not applying them to previously-convicted offenders.”

This conclusion was very resistible indeed, I think.

The Legislature’s objective was not ‘community safety’ – the Great State of New Jersey and its citizens had gotten along for 219 years of American independence and about two more centuries before that, and by its very continued existence gave rather irrefutable evidence that its community was safe. It had survived Indians (with all respect to that beleaguered folk), the British, the Hessians, the Confederacy, the Kaiser and the Fuhrer, mobsters and mob bosses innumerable, race riots, police riots, and I think a couple of humdinger factory and ammunition ship fires down in Bayonne or thereabouts. New Jersey is a survivor – no doubt about it. And God save it.

No, in truth what was irresistible was that the Legislature desperately wanted to be seen as doing something right now; the irresistible element did not at all stem from the logic or Constitutional maturity of its conclusion, but from the political need to do something – anything – right now.

And if that meant demonizing some group and for all practical purposes turning New Jersey into a Transylvanian village where the State would point out the vampires and the villagers would get out their garlic but not go running around with stakes and torches, and the Court would bleat its approval – well, that’s what they were prepared to do.

And I think that by 1995 they were teaching ‘theories’ in law schools all over the country that would make that seem like a good idea.

The Court gives this game away in the next sentence: After all, “had the Legislature chosen to exempt previously-convicted offenders [it carefully doesn’t mention that they had completed their sentences and were ‘free’ citizens again], the notification provision of the law would have provided absolutely no protection whatsoever on the day it became law, because it would have applied to no one.”

Now that right there should have given any mature Constitutional thinker pause. Why are we making this law at all? And is it justifiable to gut the Constitution in order to make a law just to show folks that we are doing something? Doesn’t this whole thing sound kind of – not to put too fine a point on it – un-American? Kinda communist, sorta? Do we really want to start this sort of thing up in this country? Didn’t we fight two world wars and a Cold War exactly to prevent this sort of thing?

The Court answers for the Legislature as well as for itself, hiding behind “the children”: “The Legislature concluded that there was no justification for protecting only children of the future from the risk of reoffense by future offenders, and not protect today’s children from the risk of reoffense from previously-convicted offenders …”

Shrewdly, so huge a Constitutional and rather un-American novelty could not be ascribed to protecting “adults”; after all, something this big and repugnant (and the Court sensed the novelty and the repugnance back there in 1995) would have to be fronted by the most appealing ‘victim’ possible. So, like trapped bank robbers grabbing a hostage to put in front when they faced the music outside, the Legislature and the Court grabbed some kids. The cameras ate it up.

Then the Court went one better: the sex offenses against the present children “arose almost exclusively from previously-convicted offenders, their numbers now and for a fair number of years obviously vastly exceeding the numbers of those who, after passage of these laws, will be convicted and released and only then, for the first time, potentially subject to community notification.”

Now here the assertion is made that “almost exclusively” it was not ‘new’ sex offenders, but the old “previously convicted” ones, who were committing the sex offenses against children. But if this is so, then there apparently aren’t so many sex offenders out there at all – just a few repetitive ones. And are they the same few, or are the reoffenses occurring among all of the now-released sex offenders? Or is that thinking too much?

Because if all of this brouhaha stems from a few previously-convicted offenders, and a small percentage of the whole number of previously-convicted offenders, then why on earth create this Nazi and Soviet-level registration and notification system?

And if a sex offender has been convicted of a crime not involving a child, then why is there a need to Register him at all? Aren’t women adult enough to exercise judgment in their relationships? Because this system isn’t going to work on – say – a rapist who hits and runs. Unless the police get really really lucky – but is that enough to introduce police-state practice into the United States?

And suppose his offense was – unpleasantly enough – with an animal? Why register him at all if your objective is “community safety” or “the safety of the children”? It’s already a crime to have intercourse with an animal, he’s done his time and is out – so why Register him?

What really is going on here?

And if there are almost no ‘new’ sex offenders currently active, then why is that so? How, indeed, could it be?

And if the Legislature and the Court yet assert that in the future there will be many many new sex offenders for registration … how can that be? How will it come about? Where will they come from?

What really is going on here? And does it justify the monstrous betrayal of the core American values and practices that in the eyes of the Framers and throughout American history have distinguished this nation from all the monarchies, tyrannies, totalitarianisms and fascisms that blot this planet’s history?

As I mentioned, they are teaching some things in law schools – and were a decade and maybe more before Poritz – that the public and The People should really look at a lot more carefully. What those closed circles of ‘elites’ did in the business schools and the big banks and regulatory offices, with the help of far too many in political authority, had started long before in the closed circles of law schools, judges and courts, attorneys' associations, and again with the help of far too many in political authority.

None of this worked out well for the economy, and I say that it hasn’t worked out well for any Law that will sustain the Republic, nor for the integrity of many who have sworn to “preserve, protect, and defend the Constitution”.

[This concludes the first Post. The first section is longish, so I’ll do a Poritz-1-B Post next, to finish this section. It should be much shorter.]

NOTES

*It’s quite possible that the Amicus Curiae Briefs against the Constitutionality of Megan’s Law also raised a number of clear warnings about the Constitutional defects and the probable bad consequences of its implementation. I haven’t been able to track those down online, but no doubt Justice Stein relied on them for his own Dissent. I imagine they would make very interesting reading.

**And this is 1995, before the huge expansions culminating in the jaw-dropping AWASORNA regulations. Note also that under AWASORNA a sex offender cannot simply move away to try and start over. This level of ‘trapping in place’ approaches the diabolical, and has certainly shaded over into the Nazi and the Soviet.