Monday, September 7, 2009



These are my wrap-up thoughts on this case.

As I have said, my purpose is to offer an opportunity for the SO community to look more widely and deeply at the entire sex-offense law phenomenon. While there is every reason to become enmeshed in the close-in and close-up world of dealing with individual cases and individual laws, my concern is that to do only that is to lose sight of what a profound and dangerous dynamic now loose in American society and government has been enabled by this, the first major effort by a court to justify the whole thing.

I want to accentuate the genuine strangeness of this whole sex-offense thing: the Constitutional and legal philosophy underlying it, the highly dubious nature of the scheme itself and the ‘science’ allegedly supporting it, the actual political and legal tactics and strategy that seem to hover around it, and the larger consequences – not simply for SOs and their loved ones but also for America as a society and as a Constitutional Republic.

The Megan’s Law itself was enacted in an era when the intrusiveness of government police-authority was expanding, both in foreign affairs and in domestic affairs. The curious although not illegitimate concern for the ‘victim’ – presumably always genuine – was not the cause of all this, but I think was rather the ‘cover’ for this expansion (which is not at all to say that ‘victims’ are willingly and knowingly in cahoots with some government conspiracy to undermine the Constitutional ethos).

But I do say that there is a ‘synergy’ here – dynamics not knowingly connected yet have started ‘vibrating together’; in certain types of large bridges the initiation and amplification of such forces acting synergistically can create ‘waves’ of energy that literally tear the structure apart and it collapses. And this is what I see as taking place in this sex-offense mania.

The Law itself offers an alien and strange system, not really well-grounded in science but also alien to American tradition, which is itself based in a certain philosophy of citizenship and the role of the government and its police powers that was integral to the system that the Framers devised.

The legislative history of the Law gives deep cause for concern. It received no serious phase of legislative deliberation; it is not unreasonable to think that most of the legislators did not read the Law before voting for it. And in this I see an ominous ‘trend’ that was later seen in the Patriot Act legislation of half-a decade later.

Additionally, the production of such a scheme on such short notice suggests to me that there was a blueprint for this thing already devised by interested parties, simply waiting for a ‘match’, simply waiting for some ‘outrage’ that would create the wave of ‘emergency’ upon which the scheme could be floated and surfed into enactment. Again, this is what we already know underlay the huge and complex Patriot Act; that Bill suddenly appeared, literally overnight, and was voted for by national legislators who have since acknowledged that they hadn’t read it. Worse, that they were given no time to read it by the legislative leadership – and it was a Bill whose text ran over a thousand pages.

Which hints so very strongly that either the legislative leadership did not want the Members to read it, or else that the Members were willing to be side-tracked if it meant that they could not be accused either of passing-it (if it failed) or of not-passing it (if public opinion was persuaded that they were dragging their feet in such an emergency).

The New Jersey Supreme Court, presided over by a Chief Justice praised by certain ‘advocacies’ for his ‘reliability’ and ‘friendliness’ to their agendas, took a decidedly ‘narrow’ view of its own responsibilities, focusing on several smaller issues but accepting – rather inappropriately – that the Law itself was ‘good’ because it was ‘necessary’ and therefore had to be given the Court’s approval due to the ‘emergency’.

We can look on this case now from a vantage point of fifteen years of national sex-offense experience: few of the Court’s hopes for success have been realized; many of the negative consequences considered clearly probable by the Amicus Briefs of that day and by Justice Stein in his Dissent have now come to pass; the entire sex-offense law matrix, given this major initial approval in 1995, has now not only continued but has actually expanded hugely and dangerously, as we can see in the Adam Walsh Act of 2006.

That sustained expansion indicates, I would say, two grave dynamics working beneath the surfaces and appearances of media ‘reports’ and ‘stories’. First, that the legislatures and law-makers and courts are now trapped in a dynamic that they cannot easily stop without being tarred as ‘insensitive’; nobody wants to be seen as the first to put the brakes on this thing.

Second, both the public and the legislators may well now be sinking into an acceptance of this entire mania and the mania-law as ‘normal’, merely because it has been around ‘for so long’. And I think that is hugely dangerous: when the ship is taking on water, the last thing anybody aboard should be doing is simply assuming that the deck always tilts, and at an increasing angle.

What are the prospects for this mania-law? I don’t at all want to see accepted the approach that noted law commentator Cass Sunstein recently proposed about Roe v. Wade: it was probably wrongly decided, he says, but now it’s so much part of the ‘tradition’ of American law that it’s not a good idea to change it. I’m taking no position on Roe here, but I surely do not want such an ‘acceptance’ accorded to sex offense mania-law.

The laws may be countered by the courts acknowledging, as some lower courts now do, that the laws have “evolved” to the point where they are no longer Constitutionally acceptable.

Or the entire matrix of laws may be declared fundamentally un-Constitutional, as Justice Stein drives at in his Dissent.

After all, this entire matrix is built like an upside-down pyramid: wide at the top, but tapering down to a very tiny set of assumptions. If those key assumptions are shown to be inaccurate – grossly inaccurate – then the entire matrix will collapse.

So as I see it, these core (and incorrect) assumptions are as follows. First, that the ‘sex offender’ is indeed scientifically proven to be a repulsive and compulsive and incorrigible threat to the public, with an extremely high recidivism rate and a very low rehabilitation rate. I say that if this assumption is incorrect, then there is no ‘emergency’ for which such an alien and extraordinary matrix of laws is justified on the basis of an alleged threat to public safety so great as to override traditional Constitutional protections.

Second, that the registration and classification schemes are not “punitive”, but are merely “regulatory” in such a way that any ‘inconvenience’ that they bring upon targeted individuals does not constitute an un-Constitutional violation of their rights. Instead, I say – with Justice Stein – that they do indeed constitute “punishment” in their effects, and that moreover they constitute a profound and fundamental violation of both the Framers’ vision and the ‘social compact’ upon which the Constitution and the legitimacy of the government itself rely.
If these assumptions can be brought to re-examination, I believe that this entire alien matrix can be neutralized in its very core.

Because – and again this is the significance of Poritz – all subsequent legislation and the sustaining court decisions basically do nothing but repeat Portiz’s justifications. If Poritz is demonstrated to be wrong, then for all practical purposes the whole fifteen years worth of this matrix is wrong.

There is reason for hope. There has been a sustained series of court challenges, and while most courts take refuge in simply turning them back by repeating some variation on Poritz, increasing numbers of courts and jurists have been deciding against those Poritz-based justifications that government agencies press upon them.

We must support such a trend. The consequences to the integrity not only of the ‘social compact’ and the Constitution, and not only to the civic maturity and competence of The People, but also to the integrity of the legislative and judicial and law enforcement and criminal justice systems, are grave and dark. I will merely note here what the former Auschwitz Commandant, Rudolf Hoess, said in his own defense after the war: He told his guards that they were professionals, and that they were not there to torment people but merely to exterminate them and that therefore he would tolerate no gratuitous violence or cruelty. But when asked by the Allied prosecutor if he ever tried to think more deeply, about whether his entire plan and mission were wrong, he replied: “I never gave much thought to whether it was wrong … it just seemed a necessity”.

“Necessity”, I would say, can be the mother of a lot more than invention; it can be the seedbed of great wrong.

And let me say a final word about ‘victims’ here. As I said in the very opening Post of this site, it is built into the very nature of examining a still-rampant mania that you are going to look like you are ‘going after’ certain ‘valued’ realities. Genuine victims, I believe, are being used for the advantage of other entities in this entire mania: those entities that profit financially or otherwise from the mania are using them; and the much more diffuse but even more powerful synergy that is continually seeking in many ways, large and small, to expand the government’s intrusion-authority, especially by weakening The People’s ability to deliberate and decide matters of large and grave public import.

This is ‘classic’ and ‘old’ mania material. Hitler’s genius was to declare the entire German Volk a victim, and then – as always must happen – he identified the ‘enemies’ who were victimizing the German Volk. And once he had established that claim as so true that ‘everybody knew that’, then the path to the destruction of democracy in that country was made clear.

And of course, in any instance where a person finds himself (or herself) with a tendency toward sex-offending, then s/he has a responsibility – civic as well as moral – to change that personal predisposition, and to cease immediately such acts, if s/he has committed any acts.

I think we are now able to say that the questionable and primary use of the government police-power in these sex-offense matters has proven to be as bad an idea as the idea of the questionable and primary reliance on government military power has proven itself to be in Southwest Asia.

Let it not be allowed to get any worse. Lest the country – as a Constitutional Republic as well as a civic polity – reach a ‘tipping point’ from which it will be impossible to recover.

As Americans and as citizens and as Citizens and as The People, we do live in vital times, and we face great challenges. About that let there be no doubt whatsoever.

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