VIOLENT OFFENDER LAWS

CAREFUL NOW

I will have the next Post on Poritz up, but again I’ve come across something in the news today that seems to require a few thoughts right now.

There is a new advocacy group, called the Ally Foundation – somehow now connected to the RAND Corporation – that is seeking to “analyze research done on sexual and violent offenders”. The report goes on: “The idea is to study recidivism the way scientists study disease, objectively and with an eye toward prevention. The goal is to provide research based on scientific evidence that would guide policy makers and community activists as they draft legislation or strategies to deal with violent perpetrators.”

I’m all for accurate and careful and honest research. Surely, the SO mania, and its similar siblings, has been in great part fueled by ‘research’ that was either poorly designed or not-quite-honestly presented, especially with an eye to careful solutions.

But there are a couple of points here that raise my concern right off.

The foundation was created by Andrea Casanova, the mother of a 30 year old woman killed at a rest stop in 2002 by a released sex-offender whom a judge would not civilly-commit when he was arrested again but not for a sex-offense.

So this is not a seriously competent professional organization, comprised of the type of researchers who are trained to do serious research. And actually, it has the earmarks of other organizations founded by individuals whose life experiences (the murder of their daughter in this case) not only haven’t prepared them to be conducting major research analysis and evaluation, but rather have inflamed them to conduct their ‘cause’. We recently saw the Parents for Megan’s Law group in New York seeking federal funds to get access to the NCIC in order to go looking for sex-offenders on their own (See my Post “S.1146: The Camel’s Nose Under the Tent”, June 23, 2009).

It’s also curious that this homegrown group has somehow managed to attract the attention – and partnership – of the RAND Corporation, an established major-league national research organization with strong ties to the military and the police and other government agencies, for which it has long and often conducted research and issued Reports and Studies.

Surely, the study of “recidivism” is a key to the SO laws. The wildly astronomical “recidivism” figures upon which the Poritz court, and indeed national as well as State legislatures, based their initial rush to SORNA laws continue to remain one of the increasingly discredited chunks of ‘scientific knowledge’ by which supporters of the SO laws – and enablers of the SO mania – have continued to provide cover for hard-pressed but SORNA-friendly courts and legislatures to keep things going.

I can’t help but notice that the most recent studies, some by the government agencies themselves, now indicate that SO recidivism isn’t really as high as was originally made out to be – not hardly at all.

And that in Massachusetts, site of this particular new group’s activities, that State’s Supreme Judicial Court is going to accept an Appeal by convicted former priest Paul Shanley on the basis of the invalidity of the accuser’s ‘recovered’ or ‘repressed’ memories.

And the timing of this partnership seems a bit curious. As does the remarkable fact of such a partnership with a major government-connected research corporation.

I’m also interested in a certain ‘migration of concept’ dynamic in all this: “recidivism” is going to be studied “the way scientists study disease: objectively and with an eye to prevention”. I’m all for finding ways to therapeutically reduce whatever SO recidivism there may be; heck, I’d support all efforts to reduce recidivism for all the varieties of crime.

But it is now clear that when this “prevention” intention gets mixed up with criminal law, and especially SO mania law, you wind up with “civil commitment” – post completion of any prison sentence – and also with the weirdly un-therapeutic legislative insistence that ‘therapy’ not begin until after the prison sentence ends and the civil commitment begins. No respectable therapist would recommend a lapse of several or more years between the entry of a prospective patient into State control at incarceration and the initiation of substantive therapy. You want to get at the patient’s problem right away, not after a period of years (and years in prison, which can inflict all sorts of subsequent obstacles to therapy).

And then there’s the ‘prevention’ intention – a laudable therapeutic goal – being ‘migrated’ to the criminal justice arena. That doesn’t work well – it leads to the ‘logic’ of ‘preventing’ crime by incarcerating the offender before he (always a he) commits the crime.

It may have something to do as well with the distinction made in legal thinking now between an ‘ethic of justice’ and a feminist ‘ethic of care’. The former, the ‘patriarchal’ approach which, by the by, was built into the foundations of the American vision by the Founders, requires that law reflect the demands of principles and ideals; the latter, demanded by feminist theory, requires that law disavow fidelity to any principles, and rather that it concern itself with the needs of particular cases and situations, regardless of precedent or the ‘quaint’ Constitutional praxis.

This opens the door to what I would call the ‘dark side’ of ‘empathy’, where ’feeling’ trumps all other concerns and demands that the law acknowledge no boundaries. The law in this vision is supposed to behave like a mother hen – or lioness – allowing nothing to interfere with helping its cubs.

Worse, this un-grounds the entire Constitutional vision that law must respect individuals and be constrained – since it involves the government police power – by solid rules to prevent its overflowing into the lives of the citizens and of civil society. The Founders, fresh from the experience of tyranny, would never have considered the police power of a government to be anything like a mother hen. Government was and had throughout recorded history proven itself to be a roaring and ravenous lion, which was always seeking to break its bonds and run riot.

And when the Constitutional vision is un-grounded, it is destabilized. Which may go quite a ways toward explaining the seemingly endless Constitutional problems and failures of recent years.

I’d also note that it is precisely in this era of the rapid rise to influence of this so-called ‘liberal’, mother-hen concept of government power, coupled with a purposeful and lurid stoking of public fear that drives it into the waiting arms of the government police power, that we have also seen – in rapid succession – the implementation of Registries: for domestic violence, for sex-offenders, and now for ‘violent offenders’. And who knows who’s next? This is why I put what I call the National Nanny State on the same level of dangerousness to the Republic as the National Security State. And I recall clearly a time when the only people who talked about ‘your paperz, pleeze’ and started thumbing through card files were SS and Gestapo agents; and no red-blooded American wanted to see that sort of thing ‘over here’.

And I’d say that in essence this approach whereby you disregard ‘principle’ in favor of ‘feeling’ creates terrible Constitutional and political corrosions. It’s much easier to start this type of mania-stampede, because the public no longer presumes that ‘principles’ – such as, oh, the Constitution – are the inviolable bedrock of any consideration of social issues. Instead, whatever the public is ‘feeling’ (and we have seen how public opinion is now expertly manipulated) becomes the governing principle of public discourse. And so legislatures and courts – and the government police power – are given hugely increased scope, because the restraining power of the Constitution is effectively gutted.

Additionally, this dynamic puts intolerable pressure on any legislators and judges who try to stop it. You can’t go to a mania-addled public and say that you aren’t going to support this or that proposed law or regulation because it is an affront to – or lethal to – Constitutional integrity. Legislators become trapped in a situation where to raise Constitutional objections before a proposed law is brought to a vote will simply get them labeled as being ‘soft on’ crime or even – in a remarkably dangerous indicator of decreasing public competence to think things through – a ‘supporter’ of this or that crime or group. This dynamic’s similarities to the decline in German society’s public competence and integrity in the 1930s is impossible to ignore.

And I can’t help noticing the resemblance to the idea of pre-emptive or preventive war, which got us into Iraq and which got all sorts of German officials hanged and imprisoned at Nuremberg. The ‘preventive’ approach, certainly useful in therapeutic arena and maybe in public-health, doesn’t work so well in military and foreign affairs, nor – as we know – in criminal justice affairs.

Are we now seeing an ‘echo migration’? The original SO prevention-intention of the mid-1990s migrated to military and foreign affairs, and now – with the help of the RAND corporation – is going to migrate back in an even more virulent form to SO matters?

And in light of the ‘advocacy groups’ that have by and large supported the SO mania – indeed have provided the ‘human face’ to mask the monstrous expansion of the government police power – then I wonder if the “policy makers and community activists” who would be ‘guided’ by all the stuff this group comes up with … are simply going to be getting the kind of ‘advocacy science’ that has fueled the SO mania all along?

Let’s be clear: in the Advocacy Era – as I would call the past few decades – too many journalists and scientists no longer consider themselves bound to find out ‘facts’ as best they can be discovered; the presumption is now that in a ‘good’ cause, then you can say whatever you can get away with, buttressed by your professional status, to sway public opinion and those ‘policy makers’ toward the programme you want to see enacted. In other words, there is now a far far greater danger of ‘professionals’ acting from the get-go as lobbyists. Or as used-car salesmen. (Or sales-people.)

And then you factor in all of the sort of cottage-industry ‘experts’ (the SO mania has certainly got its share) who keep pushing ‘science’ that just happens to keep them phat with government contracts and a long line of ‘patients’.

In the Comments to the immediately preceding Post (“Child Victims Act”) you will see this played out in the matter of ‘repressed memory’ or ‘recovered memory’. A burst of vivid ‘scientific research’ in the early-mid 1990s fueled a mania in matters of ‘abuse’ and sex-offenses’. The legislatures quickly seized on that ‘research’, as did the courts – even though there was significant and substantive professional disagreement at the time.

Then, as it happens in the scientific research arena, other researchers went to work either validating or calling into question the previous research. So that since 1998 or so, much of that earlier ‘research’ – so conveniently in favor of the agendas of certain groups that the legislators were eager to please – has been seriously discredited, or so definitively toned down that it seems only a shadow of its former self. As I said, that’s a significant dynamic at play up in Massachusetts, where the Supreme Judicial Court is now going to re-assess the evidentiary value of one of the major chunks of that mid-1990s ‘science’.

This is actually a hopeful sign: it is part of a natural self-correcting dynamic whereby science continuously improves the quality of its findings. And when science now seriously and with the weight of many well-conducted studies starts to correct the lurid, almost cartoon-like picture of ‘stranger sex-offenders’ who are ‘recidivating’ (to use the police lingo) all over the place, then one of the major conceptual underpinnings for the rationale of these SO mania laws is going to go by the board.

This is not going to be welcome in certain circles. Surely, the researchers who pushed all that ‘science’ back in the mid-1990s, many of whom are now making a living off what they helped to enable or at least want to keep their professional reputations and credibility intact, are not going to be happy.

Neither might legislators be happy. They, after all, saw some great political hay to be made, and were responsible for this unholy web of laws. We passed last month the 10th anniversary of that national dust-up whereby Congress actually – and for the first time in American history – passed a Resolution condemning a major and well-accredited scientific meta-study. Congress has never ever done that before. About the science of the A-bomb, about global warming even, Congress hasn’t seen fit to declare itself scientifically-skilled enough to start passing judgment on the theory of relativity or whether there is global warming.

But this particular scientific study was about sex-abuse. And that is – as Congress unwittingly revealed – very much a political issue, more than a scientific one. In fact, you might reasonably infer that it is more political than it is scientific … and see what dark paths that takes you down.

Anyhoo, in 1998, several reputable scientists did a meta-study*. That means that they did a study of all the studies that were already out there. They noted that none of the studies actually found the deep and lurid levels of harm in sex-abuse that ‘advocates’ had been describing. They even went so far as to point out that this fact did not in any way constitute their moral approval of sex-abuse, just to make sure that nobody thought that the facts they had discovered constituted some implicit moral approval of sex-abuse.

And that study went into the great scientific web-net, where only other scientists interested in the matter took note.

Until, several months later, Congress was told about it – no doubt by ‘advocates’.

Ignoring the careful numbers and reasoning of the researchers, and even their careful disclaimer about their moral disapproval of sex-abuse, the legislators swung into immediate action and passed a Resolution** that “condemns and denounces all suggestions” in the study and demanding that they start seeing some “competent” science, right quick.

The legislators saw, and revealed by their actions, that the whole subject was primarily political, and that the actual science stuff was merely window-dressing. The ‘truth’ could only be what Congress wanted it to be – a concept expressed clearly by both Goering and Goebbels in their day.

I think that on top of the all the other indicators I’ve talked about on this site, that 1999 Resolution was an unmistakable warning flag that the entire SO arena is indeed a mania, and a mania that is being enabled and maintained by government action for political purposes.

And I have to say that it was precisely such a dynamic by which the Nazis went about ‘purifying’ Germany and the German Volk in the early-mid 1930s. Propaganda stirred up a public outcry against this or that group; then the government could move in claiming that it was merely bowing to the public will; then the group was somehow ‘tagged’ so that its presence was constantly in the public eye; then things went along from one step to ‘the next logical step’ – until all the groups were in concentration camps or worse. After all, the Germans would say after the war, when you saw what a danger they posed, it was only logical to decide that the best thing would be to identify them and get them out of the country. ***

In regard to the role of ‘science’ and propaganda in all of that, I merely note here the number of times that Allied examiners after the war heard German citizens finish up a justification for Nazi social and criminal laws with the statement “Everybody knew that”. So, for example, it was good to get this or that group out because the members of that group were dangerous and “everybody knew that”.

It hits home when you read a lot of the SO ‘news’ and the various documents and realize how many people think that they ‘know’ something because ‘everybody knows it’. Another fuel line for the mania now dragging this country into dark paths indeed.

I’d also note that the report indicates that the parents are concerned about “violent perpetrators”. This is in one way an expansion of the SO mania; anybody who commits a “violent crime” – however that is defined (and you can never be sure anymore; some 'experts' opine that any sexual assault, even a non-physical one, should be considered as 'violent') – is included. Or this might be simply a conceptual cover for “sex offenders”. But my own guess is that it is an expansion.

And if it is an expansion, then there is this game-plan to consider: 'sex offenders' are becoming harder to find, in addition to the 'science' about them becoming increasingly dubious. It's important to keep up numbers in order to keep up appearances, so perhaps what we are seeing is the begining of an effort to 'blend' 'sex offenders' with 'violent predators' to increase the potential for lurid stories and so forth. That way, a 'good' horror story about one group can serve to inflame the public about both groups. Very economical.

In that regard, I can't help but recall that when they found themselves losing the war they had started with the Russians, the Nazis suddenly declared themselves 'Germans' and 'Europeans' and called upon the Americans and French and British to join them in their fight against the invasion of Europe by 'Asiatic Bolshevisim'. Perhaps, at levels beyond this mom-and-pop team, certain 'players' are preparing a fall-back position in case they need it: we weren't trying to yellow-star sex-offenders, we were really just against 'violence' all along. Ja. Yah.

Or: is it possible that it is now becoming too obvious that the ‘front’ organizations really aren’t up to speed on matters about which they claim to be outraged and concerned, which is creating a danger for the mania-laws’ future (and thus the funding and perhaps the future of those officials who supported it), and so the government has decided that it’s time to spackle up the volunteer fronts with some serious but ‘reliable’ government-friendly research? If this is part of what’s going on here, then we are passing from the realm of any putative concern for people or the public safety into good, old-fashioned governmental bureaucratic survival tactics.

Interestingly, the news report notes on its own that “the partnership [between Ally Foundation and RAND] comes as several laws and measures that target released sexual and violent offenders are facing criticism”. Which cannot be a coincidence.

Further, that “advocates say such laws … help residents stay on guard for convicted predators whose behavior is difficult to predict once they are freed”. First, the concept of “predator” is too easily conflated with “sexual offenders” and even “violent offenders”.

Second, to say ‘formerly convicted’ would be – in the American tradition – more accurate; but of course what we are seeing introduced into American society through these types of schemes is an older, anti-American sense and spirit whereby once-convicted-always-a-criminal is the governing philosophical presumption.

Third, if all that is required is to “help residents stay on guard”, then is this entire web of laws necessary? Shouldn’t people always be on their guard? And yet too, if the “behavior” is “unpredictable”, then of what use is the law that theoretically keeps you on your guard?

What you would need – as the Nazis quickly grasped – would be to ‘tag’ these people (with a colored star or some such) or else get rid of them altogether. Or both.

And lastly, if you require “prediction” in order to free a criminal who has served his sentence, then who is ever going to be freed? And if they keep expanding the categories of ‘dangerousness’, then almost nobody is going to be getting out of prison (and if they do, they may well wind up wearing a colored star).

The partnership wants to function as a “clearinghouse” that will “disseminate reliable research” [italics mine]. Which brings us right back to what Congress was up to with its Resolution. The only ‘reliable’ research, I worry, will be that which goes in the direction that the group wants.

I'm also wondering if this isnt' a straw in the wind for another development. If - at lonnnng last - the weight of genuine research is finally becoming so substantial that all the 'advocacy science' of the past few of decades is gong to be appear rather largely incredible, then there will be a great need for 'serious' reinforcement. And if what I see as the subsurface synergy continues, whereby the government uses 'advocates' as 'humanizing fronts' for its gambit into police-state levels of control, then a home-grown -literally mom & pop - advocacy group, backded by all the status and weight of a major government think-tank, would be the very thing. From the government point-of-view.

Now, of course, I am not implying that everybody in 'government' - law enforcement, criminal justice, even legislators and courts - is all gung-ho for continuing the SO mania. Many of those folks are concerned, either for fiscal or operational implementation reasons, that this whole thing has gotten out of hand - and perhaps was never wise to begin with.

But just so, there's all the more reason to reinforce the stampede by any means possible.

And what the group wants is to “close loopholes” by setting up “something broader, that has an impact”. I can’t help but thinking that some of those loopholes will include the entire philosophy of American law and society – which now, like the German society of the 1930s – sees itself as being embattled, surrounded by enemies and riddled with impure traitors. The past decades with their sustained and lurid emphasis on ‘fear’ mimic exactly the Nazi blueprint for destroying the ‘obstructions’ of the democratic republic that preceded the Third Reich, and all the ‘obstructions’ that a democratic sensibility posed.

I’m not saying that any of the people in this group know that or intend to do that. But it’s what they’re doing anyway, joining a vast wave of folks in this country – egged on by far too many legislators, courts, media, and researchers.

It is no great consolation that the group has received support and advice from Ernie Allen, “president for the National Center for Missing and Exploited Children” who “supports the Adam Walsh Child Protection and Safety Act”.

But again, interestingly, Ms. Casanova says that “such laws are flawed because they are not based on research into successful programs or on scientific evidence”. And who can argue with that?

Indeed, Mr. Allen himself is then quoted as saying that “The more we can understand about why people offend … and the more we can predict the behavior, the better we’re going to function as a society. The problem is [that] the success of attempting to do that has been mixed at best”.

Well, yes. But if he is right, and sincere, then supporting an intensification of such scientifically-ungrounded laws as AWASORNA is hardly the way to go.

All in all, I’m a little gunshy of this start-up. So much of the attractive stuff they say could simply be for PR purposes. Or they could be – knowingly or unknowingly – fronts for a new government gambit to expand its failing programme.

But accuracy and well-grounded laws and wider genuine public knowledge … I support those goals fully.

NOTES

*The study was entitled “A meta-analysis examination of assumed properties of child sexual abuse using college samples”. It was authored by Rind, Tromovitch, and Bauserman, and published in the prestigious ‘Psychological Bulletin’, 124(1), pp.22-53. A good review article of the whole affair is Hollida Wakefield’s ‘The Effects of Child Sexual Abuse: Truth versus Political Correctness’, here. (All of the articles on this website are worth looking at.)

**106th Congress, 1st Session, H.Con. Res. 107 Concurrent Resolution.

***See Peter Fritzsche, “Life and Death in the Third Reich”: Cambridge (MA), The Belknap Press of Harvard University; 2008.