Wednesday, September 2, 2009



I seem to have gotten my several copies of the Opinion confused. Don’t ask me how, but there are only 10 Sections, and then Justice Stein’s fine Dissent.

So this will be a Post on Section 10; and then tomorrow I hope to have a Post up on Justice Stein’s Dissent (which is also on the Rutger’s Law Library site here, immediately following the text of the Decision).

Section 10 is entitled “Conclusion”. If only.

The Court seems to want to justify itself, without giving the whole thing away.

“We sail on truly uncharted waters”, it begins. You can only imagine what it would be like to have the most senior specialist at the State’s biggest hospital come out from the patient’s room, walk over to you in the family waiting area, look you in the eye, and start off like that – we sail on truly uncharted waters.

But the Court is right. And not only because, as it notes, “no other state has adopted such a far-reaching statute.” That was certainly a warning sign – but then again, in a mania or a manic attack, doing something nobody else would think of doing or allow themselves to do just shows how brilliant and extraordinary you are. How ‘cutting edge’ and ‘ahead of the crowd’.

They teach you how to deal with attitudes like this in psychiatry school.

And you have to ask yourself: if you are dealing with a law that you know has received no substantive or serious or even accepted legislative treatment (the Bill was not put through any Committee phase whatsoever) and that the law proposes a scheme that nobody has ever implemented in the country, and if you yourself are a Judge or a Supreme Court Justice and even you feel that you are in uncharted waters … wouldn’t you sort of feel like you should reeely reeely be careful and give this thing a careful and serious look? And kick some tire?

And of course, it’s uncharted not just because nobody has done it before. But because you are looking at the first serious insinuation of an alien legal philosophy into the process and body of American law and jurisprudence.

But you don’t want to admit that. So even if it’s true that these are uncharted waters – that doesn’t mean that the huge rocks whose tips are poking up above the surface aren’t visible to the naked judicial eye. No prudent mariner is going to try and certify this course and passage as OK; not only for his own vessel but for the entire convoy that relies on his judgment.

But, rather, like the captain of the Titanic, you figure that you’re one of the most senior captains and how could you go seriously wrong? And anyway, you’re on an unsinkable ship, so what’s the problem? Into the dark night, into a suspected berg-field, at high speed and not even any moonlight. What, you worry? It would be unprofessional to display any worry, and would betray an unbecoming lack of self-confidence.

And anyway, you don’t want to be embarrassed in front of everybody who’s expecting you to deliver the goods and come into port right on time. You don’t want to be late in front of everybody whose esteem you value.

Nah – this will be a world-class example of just how masterful you are. Maintain course and speed!

Anyway, it’s not your fault. It’s a worrisome scheme, but “the statute before us, however, mandates it”. So it’s the Legislature’s fault if anything goes wrong.

But then you still can’t let this thing go – a psychiatrist would have a field day with this Section. “Despite the unavoidable uncertainty of our conclusion, we remain convinced that the statute is constitutional.”

The Court’s own doubts are not alone; the Court is very much aware through those Amicus Curiae Briefs just how much professional – legal and psychological – objection exists to the entire scheme.

So it has to come up with some trump-play that will shore up its position and – ultimately – its own performance in this saga. “To rule otherwise [i.e. that the statute is not constitutional] is to find that society is unable to protect itself from sexual predators by adopting the simple remedy of informing the public of their presence.”

Shrewd. And sly. First of all, there’s that conflation of ‘sex offender’ with ‘sexual predator’, which is not only a more vivid and ominous term, but also describes very few actual sex-offenders.

Second, the Court is running the same game here that the US Supremem Court would later run in Bush v. Gore: having already decided what the outcome must be, it will do whatever it has to in order to justify that outcome.

In Poritz, the Court has decided that its alien legal philosophy (that government-weighted presumption that the government's right-to-protect (hiding here behind "the public") trumps any effective Constitutional protections. In Bush v. Gore the US Supreme Court justified its interference in a State recount by claiming the 'emergency' of the country being without a President for a period of time, although such an outcome was very highly improbable.

Though Justice Sandra Day O'Connor, after her retirement, revealed in a chatty talk with a 'reliable' audience that she "didn't want a Democrat appointing my successor". In case you were thinking that the Court in that case was thinking primarily of the Constitution.

So you can see many things at work here. A) The increasing tendency for Court's to impose what it thinks is the desirable way to proceed (precisely as John Rawls had urged 'enlightened' and 'elite' jurists to do; B) The increasing use of "the public" or "the public as victim" as a cover for what is in effect a monstrous and alien expansion of the government police power; C) The increasing use of "emergency" - however a court chooses to define it - as a reason for doing an end-run around traditional and vital deliberation, not only among the public but even among legislators; and this is on top of what we have seen in Poritz and all the sex-offense legislation, D) the blatant selection of highly dubious 'science' and 'research' to the equally blatant exclusion of any opposition knowledge, no matter how significant.

At the risk of repeating myself, please let me point out here that this bundle of elements comes to these shores trailing clouds of an ominous and foreboding history.

Third, the Court is here admitting that it is not judging the scheme itself, but rather it is primarily trying to go along with what it hopes are the successful effects of the scheme once the Court approves it and turns it loose. To find the scheme unconstitutional is not to ‘say’ that society can’t ‘protect itself’. It’s simply to say that the scheme is unconstitutional and society – and the Legislature – will have to spend a little more time and effort addressing the problem in order to deal with matters Constitutionally – which is what America, and the Court, are all about. Or they are about nothing.

Instead, accepting that almost no time and effort went into legislative and public deliberation, the Court yet will tell the public and the Legislature that it’s OK to do this sort of thing if you’re reeely reeely worked up about it. This is precisely the type of situation where the Framers expected the Judicial Branch to stand up for the Constitution. Let the Constitution be upheld, though the heavens may fall – that sort of thing.

But not for this Court. Rather than try to stop the stampede, rather than try to demonstrate to the agitated public and Legislature what genuine mature Constitutional analysis deliberation really is – rather than that the Court will go along, carefully covering its tracks by expressing a tasteful bit of doubt and blaming the Legislature for whatever might go wrong, and tinkering just enough to be able to say that it did its bit of Constitutional gate-keeping.

But it hasn’t. It tinkered with the seatbelts, while accepting meekly that the mob and the officials were going to send the car over the cliff. Such judicial cowardice has been seen many times in recent history – and it hasn’t ended well.

And of course there will be no such thing as "simply informing the public" because once the State has tagged them, with Court approval, as "repetitive and compulsive" monsters who are a permanent threat to themselves and their children, then the public will take things rather seriously indeed.

I can’t help thinking of the film “Judgment at Nuremberg” from 1961.The now-condemned Nazi judge (played by Burt Lancaster) says to the American Chief Justice of the Nuremberg tribunal (played by Spencer Tracy): “It wasn’t supposed to turn out like this; we meant well”. To which Tracy replies simply and immediately: “It had to turn out like this, from the very first moment …” In this case, from the very first moment that the Court determined to approve this Law about which so many competent professionals, and even the Court itself deep down, harbored serious doubts.

And of course, as is now a cutesy insider-joke among law enforcement and prosecutors: “Megan’s Law would not have saved Megan”*. The Law itself bears no effective relationship in its effects to the goals so piously announced by the Legislature and accepted at face value by the Court. In fact, it is quite possible that the original circumstances of the crime were not relevant to the Law’s schematic at all; in which case you have to imagine that a whole bunch of interested folks had already put the scheme together and were simply waiting for a ‘match’ to light the fuse. And if that’s so, then we can’t credit Bush and Cheney with coming up all on their own with the idea of starting the Iraq War on the basis of grossly inaccurate assertions.

Wheels within wheels. This is not how things are supposed to be done. And the violation of Truth, let alone of the Constitution itself, cannot end well for anybody involved. Which, actually, is all of us.

The Court tries one last time to put out a fire that it knows it has helped to set, but looks to place the blame elsewhere: “That the remedy has a potentially severe effect arises from no fault of the government, or of society, but rather from the nature of the remedy and the problem; it is an unavoidable consequence of the compelling necessity to design a remedy.”

It again minimized the damage to those convicted of sex-offenses: The “severe” effect is only “potential”. I expect that to be tagged as monstrously as those convicted are going to be tagged, and have that trumpeted all around by government or media (and the internet, which was soon included as a weapon or ‘tool’ for this scheme) … would make it hard to live even in a community of mendicant monks or nuns. But in the average – ‘normal’, if you prefer – American neighborhood or city or town, this was going to be more than a Scarlet Letter – it was going to be a colored star. And then, before long, it would be put in government electronic databases, ones that were interlinked.

And the Opinion now would have everyone believe that it’s not the government’s fault (Legislature or Court) or society (whom the Court is buttering up to accept this scheme and use it) but simply the inevitable consequence of “the compelling necessity to design a remedy”. But how much ‘design’ could go into a plan that was so hastily and (deliberately?) without serious legislative consideration enacted?

It is inconceivable to accept with a straight face that this scheme is reliably grounded and suitable for implementation in the American setting, given the legislative history. And the Court must have known the legislative history.

In the alternative, perhaps the scheme had been already put together and its advocates were simply waiting for the right ‘match’ to light the fuse.

If so, where did they get the scheme in the first place? And can it be reasonably assumed that the recent, unhappy Continental European models discussed in earlier Posts were not consulted?
And if the “necessity” was so “compelling” – presumably because the matter was so important, then shouldn’t the Legislature have spent a great deal of time and energy to get the thing right?
But of course, if the “necessity” and the “compelling” nature of it were due rather to political considerations, then things start to make more sense. But it’s a dark vision then: the Legislature was primarily politically motivated, and this whole scheme was ‘politics’ more than anything else. Oy.

In that regard, the article that I’ve linked to in the Notes below offers an ominous bit of information: Megan Kanka’s killer had been paroled by the State and had completed some sort of sex-offender therapy regimen. And the State had actually been paroling a very large percentage of inmates of all sorts. So it becomes much more possible that the Legislature was motivated not only by ‘politics’, but by its own desperate need to avoid being held responsible.

The solution? Call all sex-offenders “repetitive and compulsive” and insinuate that even after they have served their time – even for a first offense – and have re-integrated back into community for years, they are still ‘sex offenders’, monstrous and compelled to repeat their actions and therefore a secret and hidden threat to the citizens and ‘the children’.

Which is a neat two-fer because it also gets the Legislature off the hook: we were bamboozled by shrewd vampire-like monsters that can pretend to be ‘normal’ and ‘decent’.

And the solution? We, the Legislature, will now take sweeping action and do whatever it takes. And you should admire us for that and also realize how mad we are that these sly monsters tricked us.

The Court again goes back to the tea-leaves: “There is no point in predicting the extent of the potential ostracism, in avoiding the conclusion that some ostracism will result …”. Of course what the Court has slyly avoided all along here is not that there will be some ostracism, but rather it has continually and blatantly minimized the consequences to targeted offenders: what they will experience, and what the past 15 years have clearly demonstrated although it was perfectly predictable back in 1995, is that this is not mere ‘ostracism’ but rather a civic death-sentence, of the type that the Framers would never have countenanced.

It continues immediately: “… or in calming concerns by observing that the offenders themselves are responsible for their plight for having committed their crimes in the first place …”. This is beyond ‘sly’, this is an almost treacherous ‘blaming’. First, nobody convicted of any crime can be held responsible if a Legislature under the influence of an induced public mania (and seeking to avoid blame itself) suddenly turns a ‘crime’ into a ‘monstrous and permanent threat’. And then on the basis of that assertion, undermines the entire traditional approach to American law by introducing an alien ‘permanent convict class’ into both American law and society.

I would say that the convicted offenders (to the extent that they are genuinely so) cannot be blamed because nobody in their right mind could ever have imagined that an American Legislature and an American Court would ever have introduced such a scheme, trailing such anti-Constitutional and un-American clouds of conceptual and historical frakkery, into this country.

I am not trying here to minimize actual sexual abuse (and worse) of children or of anybody else. Nor am I endorsing the ‘game’ approach to criminal law (engaged in by prosecutors and police as well as perpetrators): that the whole thing is a game of ‘tag’ and you do what you have to do to ‘tag’ somebody or to avoid being ‘tagged’.

I am speaking about a much deeper level here: that no citizens can be expected to imagine, in their overall understanding of their lives within a long-established national community, that suddenly that community’s guiding philosophy would morph overnight into something that its Founders precisely sought to prevent it from ever becoming.

Which is precisely what the Legislature and the Court are about here.

“Here government has done all it can to confine that impact [to the targeted offenders], allowing it only where clearly necessary, to effect public safety …”

Yet the government has done no such thing. “All it can” cannot in any sense be construed as an accurate description of the utterly hasty nature of the legislative process in the matter of this Law. Nor can the requirements of this Law be truthfully construed as “clearly necessary” when so much clear and urgent and serious professional concern was there to be considered, but was instead deliberately avoided or minimized or otherwise pooh-poohed. And it is clear now, and was most reasonably forseeable then, that this scheme has done verrrry little to foster public safety and indeed is increasingly weakening public safety.

“We must not prejudge society”, the Court preaches, “with the ogre of vigilantism or harassment …”. And yet no student of history or social science can conceivably ignore the demonstrated potential for publics to become most ugly indeed – after they are subjected to a deliberate and sustained policy of ‘threat-amplification’ and assured by their government and their apparent elites that they are the targets of a monstrous and secret threat to themselves and to their children.

The Court proceeds immediately: “… although its [vigilantism’s] potential obviously calls for the vigorous steps suggested by the Attorney General …”. I ask any reader just how much any State or Federal agency has done in 15 years to minimize the negative potentials of a highly and deliberately inflamed public? Surely the incessant and frequent intensification of these laws – and this mania – over the past decade and a half itself constitutes an ongoing and deliberate inflammatory effort on the part of State and national legislatures, and now even municipal and county governments as well.

Worse, as I’ve noted in earlier Posts, the greatest danger to the targeted offenders is not posed by outright “vigilantism” and “ostracism”. This isn’t so much a matter of pitchforks and torches (although there have been more violent episodes than the Courts acknowledge) or even of folks not greeting you on the street when you’re walking down the sidewalk. This is a matter of a profound fearful and judgmental revulsion against ‘repetitive and compulsive and monstrous threats’ that chokes out any possibility of employment or conducting a life with any reasonable opportunities for Work and Love, job and relationships.

And in that regard I warn that once a populace and its government have tasted such ‘blood’ – the weirdly satisfying ‘rush’ of freely and openly reviling a designated group of ‘others’ (and American Citizens at that!) … once they have tasted that ‘blood’, then it will not only be hard to wean them off it, but the process will not pass – as a mania does – but rather will intensify, as a profound regression and degradation does.

Look what happened to the German people: first it was the ‘lives unworthy of life’ that threatened the communal ‘purity’ and were done away with; then designated classes of persons – group after suddenly ‘identified’ group; then an entire religion … all the targets of an increasingly debauched populace, led by its government and its elites.

You can see where this sort of thing can go.

“We must not assume that those in responsible positions will violate the intent of this law by giving notification far beyond that which is authorized, and we must not assume that the press, for whatever reason, will disregard the notification confinement which this law requires.”

But “those in responsible positions” – the Legislature most vividly of all – have already ensured with their erroneous and deliberately hasty Findings that the entire civil population and the State’s police and prosecutorial bureaucracies understand the targeted offenders to be “repetitive and compulsive” monsters who constitute an ongoing and hidden threat to the citizens and their children. How in any rational universe of possibility can that Legislature or the Court then seriously plan to maintain any control whatsoever over public reactions?

And the media? Of course they won’t simply be publishing the actual text of the Registry lists … They don’t have to. They merely have to ‘report’ the cases – from arrest and any attendant speculation through trial and any ‘reliable’ science that is brought in by the State – and if there will be many cases, then there’s going to be a lot of public inflammation. And this is a hugely predictable dynamic, especially when one considers that even in the early 1990s there was concern that the media were becoming too sensationalist, dependent upon good-vs-evil and victimization scripts around which to organize their ‘stories’.

The Legislature and now the Court have loosed awefull public and societal dynamics, historically demonstrated to burn beyond any control, and now content themselves with staring at the text of the Law (which is bad enough as it is) and claim that they can’t ‘see’ anything that might go seriously wrong. They are all staring at the seatbelt as the car and offender teeter over the cliff, and carefully examine – and even adjust – the belt as the crowds deliberately inflamed hover nearby to do the heavy-lifting (or pushing).

And on the basis of their official examination of belt and buckle, they not only proclaim that everything appears to be in order, but then feel pretty good about themselves and their analysis. And figure they’ve done a good day’s work.

“We are satisfied that this statute, rationally and carefully addressed to a pressing societal problem, is not what those who drafted the Constitution had in mind as an abuse of government’s power to punish.”

If the Framers did not consider this sort of thing as an abuse of the government’s power to punish (and that’s a highly debatable proposition itself) then it’s only because the Framers would no more have imagined this sort of thing being perpetrated by an American government than they would have imagined Martians landing and setting up shop.

But I myself think that the Framers most certainly would have imagined this sort of thing as happening. It is precisely the Continental monarchical approach to law. As the Court – amazingly – goes right on to demonstrate: “What government faced here was a difficult problem, a question of policy, and it understandably decided that public safety was more important than the potential for unfair, and even severe, impact on those who had previously committed sex offenses”.

What indeed are they teaching in law schools these days? I’ll get around to a Post on this but I’ll just note this here. With the fall of the Soviet Union in 1991 – and it had pretty much become a dead letter by 1989 – and certainly the accession of the Clinton Administration (not a ‘political position’ statement, just locating this era in historical time) some of this country’s own domestic developments that had been building for a couple of decades were given a much freer rein.

Most relevant to our considerations here was the embrace by legal elites of the Continental approach to law, in the form of what was called ‘responsibility to protect’. This led to the ‘preventive’ approach to law and even more ominously to the ‘preventive state’. We saw it develop in foreign affairs with what the international diplomats call “R2P”, responsibility to protect. It holds that nations may intervene in another nation’s sovereignty when they feel that bad things are being done to people in that nation. Yes, you saw it in the Balkans in the mid-1990s and in the run-up to the Iraq War.

Domestically, we saw its emergence in the sex-offense ‘science’ that underlies the sex-offense laws. And, as you have seen in this Opinion and the Law that it is defending, there was a notable readiness on the part of public officials and judicial elites to embrace it.

You’ll also note its presence in the comments of both Presidents Bush and Obama when they say that the responsibility of the President is to “protect the American people” (and the implication is that they’ll do whatever it takes …). The actual Oath of Office is that the President will “preserve, protect and defend the Constitution” … and you can see in recent national and foreign affairs the way in which somehow hugely un-Constitutional things have been done in the name of “protection”.

Where the military was sent in on the foreign stage, the ‘police power’ of the government was sent in on the domestic stage.

Things haven’t turned out so well. Not hardly.


This completes my Posts on the text of the Poritz Opinion. I will get a Post up on the remarkable Dissent by Justice Stein – tomorrow, I hope.

Meanwhile, I would like to urge every reader to give careful thought to what is being discussed here. I firmly believe that the sex-offense laws are not only grievously and most improperly punitive to targeted offenders (whether genuinely guilty or otherwise), but also most lethally dangerous to the entire American polity and the civil community of the American people.


*This article is brief and well worth a read in its entirety.

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