Tuesday, September 1, 2009



This continues our look at this landmark 1995 New Jersey case declaring the Megan’s Law legislation to be Constitutional. As always, the text of the Decision is here.

Section IX is entitled “Procedural Due Process and Fairness”.

Recognizing the principle of the right to due process in the US Constitution, and noting that the New Jersey Constitution is equivalent in spirit in this regard, the Court proceeds to set itself the tasks for this Section: “In examining a procedural due process claim, we first assess whether a liberty or property interest has been interfered with by the State, and second, whether the procedures attendant upon that deprivation are constitutionally sufficient.” So that’s what the Court will be looking at.

It goes on immediately to say that since it has already found that the Megan’s Law legislation does not constitute any “constitutional deprivation”, then the only thing it’s going to look at in this Section is “whether in the implementation of notification, procedural protections are required beyond those found in the [Megan’s Law legislation] to assure fairness and accuracy in carrying them out.”

So, then, continuing the image I’ve used in previous Posts on this case, the Court is going to make sure here that your seat-belt is fastened just as securely as any other sex-offender’s; but over the cliff you will most surely be pushed by the State – nothing wrong with that.

It may seem strange, to use Lincoln’s phrase, that the Court would raise the concept of “accuracy”, given all that is now known and was knowable then about the gross inaccuracy of the Legislature’s Findings of Fact upon which it based this legislation and passed it with such great (Careless? Premeditated?) haste, but the Court is building a web of justifications in this case, not trying to come to grips with reality.

The Plaintiff has asserted that the Registration and Notifications Laws (RCNLs) “implicate liberty interests in privacy and reputation”. And specifically, that the dissemination of this information about him impinges on his “interest in” nondisclosure. More trenchantly, the Plaintiff asserts that “classification under the Notification Law, with its attendant disclosure, not only identifies him as a sex offender but effectively brands him as potentially currently dangerous, thereby infringing his interest in reputation.”

So here, already in 1995, the point is being raised: ‘sex offender’ is a brand – constructed by the State – and by being so branded it will become very difficult (just about impossible, we now know) to carry on life in a community. In previous Posts I have characterized the State’s constructing a horrific (and inaccurate) “repetitive and compulsive” brand and then inflicting it on everyone convicted of a sex-offense as tantamount to the State publicly issuing a Certificate of Dangerous Threat. It is, I have said, very much the same dynamic as the old Continental European tradition of ‘tagging’ convicts as members of ‘the criminal class’ permanently. The Nazis didn’t think this thing up out of thin air; though they did carry it to its logical extremes with typical Germanic thoroughness.

The Court says “We find that both interests constitute protectable liberty interests, and therefore that procedural protection is due. We hold that such additional procedures in the form of a hearing are due, that they must, on application, be provided before notification and that they are constitutionally required”.

So if you wish to apply for a Hearing, you have to be given one. But as we have seen it will only be to determine your classification and the notification-level that your classification will trigger. You’re going over the cliff, but you have a right to a Hearing to determine how tight the seatbelt is compared to everybody else going over.

And, of course, the Hearing will be conducted in a context of public mania, before a State-controlled bureaucracy or court whose principals are very very alert as to which way the wind is blowing at the very top – the Legislature and the State Supreme Court – of the system that employs them.

The Court goes as far as to quote Justice Louis Brandeis’s fine and acute phrase about “the right to be let alone”. Of course, this is an American concept – Continental European law, with its origins in the days of monarchy , doesn’t acknowledge any such thing. To that tradition of law, the people are essentially the property of the Throne, and what the monarch wants to do with them is not theirs to say. I mention this so that you can start to get a sense of exactly how unique a gift the American Constitutional vision really is – that Constitutional vision which far too many American elites now consider “quaint”.

The Court acknowledges (with many citations of case law) that “the question of one’s good name and standing, and the interest in protecting that reputation, constitutes a protectable liberty interest” is a valid question.

It goes on to quote a 1971 Wisconsin case that went to the US Supreme Court to the effect that :”It would be naïve not to recognize that such ‘posting’ or characterization of an individual will expose him to public embarrassment and ridicule” and goes on to complete that citation: “a protectable liberty interest is implicated where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him”.

But then it cites a 1972 case – also before the US Supreme Court – to the effect that had “the State made any charge against him that might seriously damage his standing and associations in the community” or “imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities” then it would have presented “a different case” altogether.

This latter case was an employment case where the State had refused employment and the Plaintiff was claiming that such a rejection was a slur on his reputation.

But of course in the RCNLs, we most certainly do have a situation where the State is “foreclosing” a “freedom”, not only to get employment but simply to continue to function in even a minimally acceptable sense within a civic community.

In a time of mania and mania law, “reputation” cannot be narrowly defined. It’s not simply a matter of the gossips and busybodies gossiping about your failures or weakness; it’s a matter of the State actually officially branding you and then putting that Notice ‘out there’ in the community where almost nobody can avoid the information, either because they are formally notified of it or because under the influence of the mania (and that includes the mania-feeding media) everybody is made aware of your situation (and, of course, the ‘threat’ and ‘danger’ that you most surely pose to them and their children).

Nor in a time of mania, can the State or the Court claim that it’s simply helping make more public what is already public record to begin with. Having already branded an individual (luridly and as we now know probably inaccurately), the State is now blaring out that ‘branding’ with all the resources that a State has at its official or unofficial disposal in this media-saturated age. This is not your Framers’ America that we’re talking about here; this is some new beast that has been infected by dark forces that the Framers most deliberately sought to exclude from the American shores.

The Court cites another case: “reputation alone, apart from some more tangible interests such as employment, is not either liberty or property by itself sufficient to invoke the procedural protection of the Due Process Clause”.

But of course, in a time of mania “reputation” most surely does not exist “by itself”, apart from the very possibility of civic life and the ability to carry on a life in community. In a time of mania, indeed, you can no more separate “reputation” from the very ability to live in community than Shylock could separate that ‘pound of flesh’ from the blood and attached viscera.

And this is especially so when the State has publicly ‘branded you’ as an incorrigibly dangerous monstrosity and then ensured that everybody will ‘know’ that.

And when the State has acted hugely and forcefully to feed and nurture that mania both by passing legislation and then by having that legislation declared ‘good’ by the highest Court in the State.

And for the same reasons, it is insufficient to assert that “harm to reputation must be accompanied by the alteration of a ‘right or status previously recognized by state law”. The right to carry on a life, and to get on with one’s life – even after a conviction and even though one is an ‘ex-con’ – is implicitly foundational in both the US and New Jersey Constitutions; such ‘status’ is not “afforded by the State” (an echo of that Continental, monarchy-friendly legal thinking) but rather is – as the Framers clearly realized – a ‘status’ inherent in the natural dignity of the individual which no earthly government has the right to abrogate.

To the Continental system, since the Crown ruled by God’s Will or by the brute reality of power, there is no natural and inviolable dignity or right which the Throne – acting either as God’s agent or as its own source of Meaning and Power – cannot give or take away as it wishes. This is precisely what Jefferson took such pains in the Declaration of Independence to refute: “these truths” are “self-evident” and no power on earth can change that.

And surely now in 2009 we can see just what additional damage and debility is inflicted by the actions of the State, even if the Court in 1995 could smooth its way by claiming that it could not be expected to read the tea leaves and predict the future (except, of course, the future dangerousness of sex offenders, which the Court was perfectly willing to predict, in conjunction with the Legislature).

It has been quite a few years since “public embarrassment” was the ‘only’ harm that would accrue. And that was back in the days when private citizens merely distributed home-made ‘flyers’ around town or the neighborhood.

The Court compliments itself on going even further than the US Constitution: “Where a person’s good name or reputation are at stake because of what the government is doing to that person, we conclude, sufficient constitutional interests are at stake”. And it immediately goes on to amplify that: “That conclusion is particularly strengthened in this case by the nature of the stigmatization involved”, that “classification as a ‘repetitive and compulsive sex offender’ inflicts a greater stigma that that resulting from the conviction for a sex offense”.

(And we recall just how far in the past 15 years – especially with AWASORNA – State and Federal legislation has worked to erase the distinction between ‘sex offender’ and ‘repetitive and compulsive sex offender’.)

So in this matter, the Court will insist on due process.

“Due process is not a fixed concept, however, but a flexible one that depends on the particular circumstances.”

To which I say OK, but the circumstances here include a Time of Mania, and a Mania that the State itself is helping to feed. You can’t as a Court simply close your eyes to what is happening that changes the presumption that everybody – citizens, media, Legislature, law enforcement, bureaucrats and public employees – are simply chugging along ‘normally’, rationally and deliberately and in a normal frame of mind. Just as American courts have always held that in time of war ‘things aren’t quite the same’, so too it should be when the State (or the country!) is in a Time of Mania: to presume that everybody is acting ‘normally’ is to fatally flaw your analysis.

So the Court will require a Notification hearing for Tier Two and Tier Three candidates.

But Registration for anybody convicted. Although even by 1995 - and certainly within a short time thereafter - the public mania has progressed to the point where no distinction is made in the public mind between 'sex offender' and 'repetitive and compulsive sex offender'.

And of course, the AWASORNA of 2006 tries to get around all of that by triggering Registration (in national electronic databases easily accessible and interlocked with all sorts of State and Federal databases) merely on the fact of conviction – or merely having pled to a sex-offense, no matter what a court or a hearing determined.

So, not only in its own reasoning, but as this thing has evolved in the ensuing decade and a half, the Court’s own justifications have been overtaken by subsequent State and Federal legislation that does indeed take RCNLs to ‘their next logical step’, step after step, until we are at the place we are today, with AWASORNA.

I note again that this constant and rapid metastasis of sex-offense law ‘refinements’ – mostly expansions – is itself a vivid warning of mania-law. And this is a mania that has run loose now for 15 years.

And I note again that the Continental legal assumptions upon which this type of preventive-mother-hen law is based are alien to the Framers’ own legal assumptions, and indeed that the Framers specifically constructed the Constitution to prevent such Continental, monarchy-friendly law from taking root in the United States.

And that the dynamics of these laws mimic with alarming precision the dynamics that the thoroughly logical Nazis deployed when they started ‘tagging’ targeted groups in order to make the Reich community more safe and more pure.

So, I think it is reasonable to say that the sex-offense laws, and this preventive law approach itself, are a baaaad idea. And we need to back away from the cliff to which they have brought us. Otherwise the whole country and the whole People are going over a cliff just as surely as the sex-offenders they are trying to push over.

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