DOE v. PORITZ: JUSTICE STEIN’S DISSENT

DOE v. PORITZ: JUSTICE STEIN’S DISSENT

Justice Stein filed the lone Dissent in Poritz (the Court split 6-1). In the linked text, the Dissent immediately follows the Decision.

He begins by noting, and it’s always good to get a clear picture of the times, that in 1994 “a federal statute, enacted as part of the Violent Crime Control and Law Enforcement Act of 1994, Public L. No. 103-322,encouraged states to adopt mandatory registration requirements for persons convicted of sexually violent offenses or certain prescribed offenses against minors”.

Again and again the date of 1994 comes up. It was indeed a watershed year for the expansion of the Continental ‘registration’ mentality and philosophy to be introduced into mainstream American legislation. And thus, of course, into American jurisprudence shortly thereafter. As I discussed in earlier Posts, while registering autos and drivers licenses and barbers and corporations were well established of course, and even the occasional card-file kept in a police station, this was the year that the genuinely alien concept of ‘tagging’ somebody became ‘cutting edge’.

And with that, the even more alien and genuinely hostile idea – so fundamentally antithetical to the Constitutional vision – that the Citizenry, comprised of individuals possessed of an inalienable dignity, were to be divided into the ‘good’ Citizens and then some other bunch of no-longer-citizens who had been targeted for – as the Nazis used to say – ‘special treatment’.

Nor was that dignity any longer to be considered “inalienable”: you could be blamed for losing it, or the government could take it away, or both.

Justice Stein is careful, almost too careful, in his next paragraph. “The relationship between the statutory provisions and the concerns that led to their adoption is self-evident.” Yes, although that’s not really the point. The concerns themselves are based on a grossly inaccurate web of ‘scientific’ assertions claiming to establish that the vast majority of sex offenders are repetitive and compulsive and constitute an ongoing threat to the public and to children. It is the concerns – not the relationship of the statutory provisions to the concerns – that constitute the glaring fundamental weakness in this entire matter.

So he gives a lot away here. And follows up by stating that “Obviously, the notification provisions of the statute and Guidelines are intended to protect the public by familiarizing those who receive notice with sufficient details about the offender’s appearance, prior conviction [notice that he uses the singular here], and other date to permit them to take appropriate precautions”.

Again I ask: what are “appropriate precautions”? Are people going to simply move their children out of the way if the tagged person walks by and then let them free again when the individual has moved on down the path or the street? It seems to me hardly likely that people would settle for this rather weak interpretation of the lethally vague “appropriate precautions” opportunity.

Rather, they will try to drive the tagged person away – not so much in an overt encounter ala pitchforks and torches, but rather by orchestrating a perfectly non-violent (in the physical sense) exclusion from and even ejection from the local community. Which is – when extended over an entire State (or the entire community of States) – effectively a death-sentence to any reasonable interpretation of conducting a life of Work and Love.

Nowhere that I have found does the Legislature or the Court try to explain just what are and what are not “appropriate precautions”. It is for that very reason that I doubt the honesty of the Legislature: I think that this phrase, unchallenged by the Court, is the classic wink-wink-nudge-nudge (to use Monty Python’s fine image and phrase) by which the Legislature lets the public know that the law is not going to stand in their way; indeed, that this Law and the Legislature are going to make things easier. If a Sheriff in the Deep South had told a local crowd that they would get no objection for taking “appropriate precautions” if a black person were coming into town … you could imagine what would happen.

But then he gets going.

He notes that the Court “properly concludes that the impact of the statutes on those subject to Tier Two and Tier Three notification sufficiently implicates liberty interests to mandate the availability of due-process safeguards”. And that in consequence the Court rightly requires judicial review of a prosecutor’s decision to impose Tier Two or Tier Three notification. As I’ve said, in times of mania law, the separation and independence of the Branches and their powers, and the assumption that they are working independently of each other’s influence, cannot at all be taken for granted.

It is far far too easy to imagine, without any exaggeration, local judges and prosecutors working pretty much in concert. And especially after they have all seen the Legislature’s wink-wink-nudge-nudge and the State Supreme Court’s convoluted effort to justify everything.

“The broader the scope of community notification, the greater the punitive impact that notification will impose on the offender.” It’s not quite getting to the heart of the matter, but it’s a lot better than what we’ve been seeing in the text of the Decision.

And he continues: “The limitations imposed by the Court [on the notification process] are salutary, but are insufficient to address the constitutional infirmities in the Community Notification Law”.

Again, this is focused on the Notification Law, not the Registration law or the egregious ‘science’ that claims to have proven how much of a threat and an ‘emergency’ the sex offender poses.

He then goes on to make the most curiously-balanced statement: “The Legislature’s rationale for enacting these statutes obviates any inquiry about the purpose of their retroactive application to those sex offenders whose offenses had been committed before the statutes were enacted, as well as to those prior offenders who had fully served sentences imposed on them for their offenses and had returned to their communities. If the Registration and Notification Laws did not apply to those offenders, their effectiveness would be severely limited and as a practical matter, delayed for many years.”

I say again what I said in prior Posts about the Decision itself: First, the Legislature’s “rationale” is utterly debased both by its egregiously inaccurate Findings of Fact about the repetitive and compulsive nature of sex offenders and by its utter lack of serious deliberation before passing this Law.

Second, there’s something eerie and alien about a Court justifying a highly dubious new scheme by saying in effect that if the scheme had to be fenced-in by the Constitution then the scheme wouldn’t work very well. That, it strikes me, is a huge warning flag that the scheme is lethally flawed and dangerously toxic to a Constitutionally-healthy American society. And this point is not lost on Justice Stein.

Because he immediately gets to the sharp end of his thought: “Nevertheless, despite its obvious importance to the statutory scheme, the retroactive application of the notification statute to prior offenders poses, in my view, a fundamental constitutional impediment to its validity”.

He’s saying that if you have concocted a scheme that will only work if you violate the Constitution and apply the scheme’s admittedly severe consequences upon prior offenders, then with all due respect to your problem, your scheme is unconstitutional and that’s that.

Whereas the Court’s whole game has been that a) the scheme’s retroactive application isn’t really punishment if you look at it at just the right angle – and so b) if it isn’t punishment, then it can be retroactive and you can get on with enforcing the scheme. I can’t help but thinking of Gilbert & Sullivan’s Rich Attorney’s “elderly, ugly daughter” as he describes her to an unsuspecting beau: “She may very well pass for forty-three, in the dusk, with the light behind her!” And this is precisely what the Court is trying to do to us here. Our ‘marriage’ to this alien and ominous scheme won’t be so bad, the Court inveigles, if we just look at it the right way.

Justice Stein stands like a Stone-Wall: “The Constitution’s prohibition of bills of attainder and Ex Post Facto laws is not to be taken lightly”. But of course, the Court is operating – though it prefers not to mention the fact – on an alien legal philosophy in which the American Constitution is seen as ‘weak’ (which is precisely how it appeared to monarchists on the Continent). And, nowadays, as “quaint” on top of that.

Mr. Justice Stein digs even deeper, quoting James Madison on their indispensable role in the Constitutional vision: “bills of attainder, ex post facto laws impairing the obligation of contracts, are contrary to the first principles of the social compact [italics mine; see below] and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the State Constitutions, and all of them are prohibited by the spirit and scope of those fundamental charters [italics mine; see below]. Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted”.

What the Justice is getting at, and what Madison so profoundly hit upon, is that this entire Continental approach is a violation of the basic American “social compact”. When the government sets forth criminal laws, it is clearly contracting with the citizens: if you do such-and-such, then such-and-such will follow.

And this is based on the quintessential American presumption that each Citizen is to be treated as a rational being possessed of an inalienable dignity and concomitant rights. Whereas the Continental view sees the citizens as peasants, which is to say ‘dumb animals’ that cannot control themselves. Accordingly, and also as a result of the Throne’s right to make law on a whim, then punishments can be increased even after the commission of a crime, and thus they can apply retroactively.

And so you can see where it was so important – and so easy – theoretically for the Legislature and the Court to switch to the Continental philosophy of law, wherein ‘sex offenders’ are seen as a species of animal, completely unguided by rationality and at the mercy of ‘repetitive and compulsive urges’ that will most likely drive them to ‘recidivate’ and ‘reoffend’. And thus, of course, they may be considered not as full Citizens but rather as a species of monster threatening, as it were, the villagers.

But in the Constitutional vision, each individual is a rational being and thus capable of entering into the ‘social contract’ or ‘social compact’, and that ‘contract’ – being the fundamental source of the government’s legitimacy - cannot be broken. Indeed, in breaking it, the government sets in train its own undoing, because eventually the consequences of breaking the ‘social contract’ will be the de-legitimizing of the government itself.

The Constitution is not a ‘game’, but it is certainly based on a ‘contract’ or a ‘compact’. And on that ‘compact’ the government’s own legitimacy rides. The Continental approach, of course, with its roots in monarchy, assumes that the government is the government (eerily similar to the Fundamentalist “powers that be”) and thus cannot be opposed by the citizenry (who in the Continental system are merely the modern-day equivalent of the peasants of olden times who were owned by the Crown).

Additionally, a government embarking on this noxious course will eventually create a significant group of ‘second class’ citizens within the American polity, which will be as dangerous in potential problems as it is repugnant in theory.

This is a huge and I agree a fatal difficulty at the heart of the entire scheme and of this Law itself, which is practically the forerunner of the entire matrix of sex offense laws.

The Court pays little attention to Madison, but then Madison makes no sense to the Continental philosophy of law, or to its latter-day proponents.

Interestingly, the 1994 federal statute does not require the retroactive application of sex-offenders. However, after this 1995 New Jersey Decision, the federal legislation has also moved ominously in that direction. Watching both a State Supreme Court, and then other States’ Legislatures and then the US Supreme Court itself expand or uphold this alien matrix, the Congress has been emboldened to the point of the jaw-dropping strictures written into the Adam Walsh Act of 2006. This is not at all a healthy course of American law or American society – it’s not far from a hasty heart-transplant with no thought as to whether the patient’s ‘constitution’ can stand the invasive and alien presence of the different organ.

You can see here, as well, how the Court’s “hopes” in 1995 were proven almost totally unfounded; these laws and public opinion and media treatment got worse, reflecting the intensified debauchery of legislatures, courts, media and citizenry. This cannot end well and must be stopped.

Justice Stein notes that “at this time [1995] the future effects of “Meagan’s Law” on those subject to community and individual notification are not possible to discern”. He does, however, mention what I think is a very revealing comment by one Curtis Sliwa, who in those days was head of the Guardian Angels group: “Let the criminal have a taste of being the victim”.

This comment clearly indicates that the public, and certainly this well-known (at the time) public service volunteer organization, most certainly did intend their “appropriate measures” to have a punitive effect. And I am going to imagine that 15 years later, current volunteer organizations – at least among themselves – are operating on the same principle. Nor have I heard of any Attorney General rebuking such an approach.

Once again, the Court’s queasily pious hope that folks wouldn’t go overboard with this thing is proven to be hugely mistaken.

Justice Stein quotes John Marshall from 1810: “Whatever respect might have been felt for the state sovereignties, it is not to be disguised that the framers of the constitution viewed with some apprehension the violent acts [that] might grow out of the feelings of the moment, and that the people of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed”. [italics mine].

The phenomenon of mania-law is grounded precisely in those “feelings of the moment” that the Framers feared. Their fears have been amplified in several ways in modern times. First, in mass societies that are too complex for any individual citizen to comprehend, then in the absence of rational knowledge of facts, citizens will tend to rely on feelings, and especially feeling-together – thus the diabolic enchantment of Hitler’s governing style and his huge public gatherings.

Second – as Noam Chomsky has recently noted – in the age of democracies, governments have realized that they cannot physically coerce their huge citizenries. And so the manipulation and control of public opinion has become indispensable and through the contributions of Edward Bernays and the odious genius Josef Goebbels such PR manipulation has been honed to a fine (so to speak) art.

We have been – especially since the end of World War Two – continuously assaulted by the government with efforts to manipulate public opinion. Truman was told by his advisers after the war that if he was going to have the US assume leadership of the West in the Cold War, then he was “going to have to scare hell out of the American people” since, presumably, they would be expecting a certain amount of ‘peace’ with the end of that monstrous war.

But even before that, the Progressives of the Wilsonian era – and Wilson himself – saw themselves as ‘experts’ who would need to guide “the blundering herd” as Walter Lippmann referred to the American citizenry. That was also when Wilson and Congress signed over their responsibility for the money supply and the economy to the Federal Reserve (1913) and gave the military the power to prosecute the entire Federal criminal code through courts-martial (1916). Whether either of those ‘delegations’ was actually Constitutional is a question that hasn’t really been settled.

The Vietnam War would not have gone where it did if it weren’t for the exaggeration of the Tonkin Gulf incident – to the extent it actually happened – that was blared out to the citizenry as another Pearl Harbor. Which, given the losses at Pearl Harbor, was just short of obscene.

But since the late Sixties, it was the Left and the ‘liberals’ who embraced such ‘scare and stampede’ tactics, inundating the country with sad stories and horror stories designed to overwhelm public deliberation and throw the public into a civic regression whereby The People could no longer deliberate, but could only react.

And it is exactly in this long line of events that the sex-offense mania and all the mania law and the insinuation of alien Continental legal philosophy come to us. And come at us.

So at this point, precisely such “feelings of the moment” as the Framers and the Constitutional vision sought so urgently to avoid, have become now the ‘normal’ mode of political discourse and of individual citizens’ conceptions about government and their role in it: they are here to ‘feel’ the appropriate feelings and – from time to time – vote in accordance with those ‘feelings’.

Thoughts not only don’t enter into it; thoughts may well be ‘insensitive’ (in matters domestic) or ‘unpatriotic’ (in matters foreign).

And if ever there has been a law that is enmeshed in ‘feelings’ it is this Law and all the spawn and spume of sex-offense laws that followed it. The public, the media, the Legislature, the Courts … they are all drenched in feeling, soused in them. And we are slowly drowning in them as a society, as a culture, as the stewards of the unique Constitutional vision bequeathed to us.

Justice Stein also refuses to allow the Court to absolve itself of any responsibility by claiming that “legislative intent” trumps all other considerations. “The Court’s exclusive reliance on legislative intent as the test of punishment [i.e., whether a law is punitive or only regulatory and administrative] is misplaced”. You have to judge the purposes to which the Law is being put, he says; you can’t simply rely on what the legislature says or implies about what sort of a law it has passed. Legislatures, Justice Stein is thinking, can say one thing for public consumption but intend something else; or maybe they just don’t think things through. Or – I would say – both.

Nor is it sufficient for the Court merely to play word-games with “dialectical subtleties”; not when “the problem is one of safeguarding the humane interests for the protection of which the double jeopardy clause was written into the Fifth Amendment”. This is wayyyy too important an issue, he says, for the Court to ignore its responsibility to enforce the Constitution’s vision of protecting all the citizens (including those accused of or even guilty of a crime) from the arbitrary or emotion-driven impositions of the government police power.

Interestingly, he quotes a 1965 US Supreme Court case (United States v. Brown, which is not the famous Brown v. Board of Education school desegregation case). In that case a 1959 federal law had required that simple membership in the Communist Party was sufficient to bar a person from serving as an officer of a labor union. No, said the Court, even though Congress claimed that it was not trying to “punish” American Communists “for what they have done in the past” but merely “regulate” them so as “to keep them from positions where they will in the future be able to bring about undesirable events”.

Nope, said the Supreme Court. “A number of English bills of attainder were passed for preventive purposes [back in the days of the divine-right monarchy], that is, the legislature made a judgment, undoubtedly based on past acts and associations that a given person or group was likely to cause trouble (usually, overthrow the government) and therefore inflicted deprivations upon that person or group in order to keep it from bringing about the feared event.”

The Supreme Court struck down the 1959 Act, based – Stein notes – in part on an 1867 Missouri case where that era’s Supreme Court “struck down amendments to the Missouri Constitution requiring members of various professions to take an oath swearing that they had not participated in the rebellion against the Union as a condition of practicing their professions”.

In other words, the Supreme Court in 1867 told Missouri that it could not claim it was merely a ‘regulatory’ act to require that ex-Confederates could not practice as professionals in the State.

Now if the US Supreme Court in 1965 refused to allow Congress to issue a blanket ban on Communists as labor leaders, and was willing to run the risk of Communists being in positions of influence in American society; and if the Supreme Court in 1867 was willing to run the risk of ex-Confederates practicing as professionals in post-Civil War America … then you can start to see how much things have changed recently.

In precisely the same way, Justice Stein notes, the Congress and the State of New Jersey are now [1995] in effect passing bills of attainder on ‘sex offenders’, as if the risk they pose is greater than that posed in the 1950s by Communists and in the late 1860s by ex-Confederates.

I would add: are ‘sex offenders’ really more of a threat than Communists in the 1950s or ex-Confederates in the border states of the 1860s? Surely the ‘science’ that claimed to prove that assertion in the affirmative has now in 2009 been demonstrated to be gravely and lethally inaccurate.

But what Justice Stein is driving at is that Constitutionally you can’t be imposing such bills of attainder even with the ‘good’ intention of ‘preventing’ what might happen. The ‘preventive state’ is in many ways not compatible with the Constitution. And, I would add, the same goes for the ‘mother-hen’ school of law that is merely the old Continental, monarchy-heavy approach in a different suit of clothes.

‘Preventive’ intent does not automatically rule out ‘punitive’ effects. Nor can you say breezily that ‘prevention’ trumps the Constitutional safeguards.

Continuing to quote Brown, Justice Stein establishes that anything required by a law might constitute ‘punishment’ and it is the responsibility of the Judicial Branch to look at the whole context. This of course is precisely what the Poritz Court has resolutely avoided doing, focusing on the seat-belt and not on the effects of being strapped into your car at the edge of the cliff with the government having incited a surrounding mob with solemn warnings as to your treacherous and compulsive and uncontrollably threatening nature.

As Justice Stein insists, when it comes to impositions required by a law “we must follow the notion where it leads” and judge it there. The Poritz Court, of course, refused to do that, taking an extremely narrow approach to its task and claiming that it could not see into the future (except that it was satisfied that sex-offenders were always a threat in any future).

Justice Stein then goes on to follow the Law’s plan for, say, a Tier Two offender, as it would work out in a small community of 10,000 citizens. “Hundreds of persons would be entitled to receive the Tier Two notice and, although instructed to inform no one else about its contents, no enforcement mechanism conceivably can prevent word of mouth dissemination of the information contained in the notice”.

Exactly. There is no way that the State can control conversation among folks. And what if the local paper or radio stations decides to do a report not on the individual’s Tier Two status (which would be illegal under the Law) but ‘merely’ on what he had been convicted of (which is perfectly legal) … ? What then?

And all of this takes place, of course, in an atmosphere where the Law’s assumptions about the uncontrollable threat that sex-offenders are officially considered to be have been well-publicized and everybody has been exposed to that (mis)information.

This is a State-constructed tinder-dry wilderness simply waiting for a match. Which the State is also going to provide. (But it doesn't expect any fires.)

Add to this that a Tier Three offender’s presence will be announced to anybody “likely to encounter him”, which in all but the largest cities could include everyone in the community.

The Court’s happy-face assumption that folks won’t go off half-cocked is “contrary to human nature”, he says. And, he adds, even if the media were to follow the Law, its reporting would “as a practical matter” result in a community-wide commotion.

And he goes on: “The community’s reaction to such notice is impossible to predict, but given the normal range of human emotion one reasonably could anticipate that notice of the presence of a sex offender will trigger fear, suspicion, hostility, anger, evasive behavior, ostracism, and in some cases derision, epithets, and violence. To be sure, the sex offender’s quality of life will be adversely affected”.

So, he concludes, “to anticipate that the Community Notification Law, even as limited by the Court’s interpretation, will not visit severe, disruptive, and perhaps intolerable consequences on offenders subject to Tier Two and Tier Three notification is simply unrealistic”. Good for him – it’s about time somebody started getting close to the idea that this Law pulls everybody wayyyy too close to the Mad Hatter’s Tea Party. And in a forum of lethally serious consequences for the entire basis of American society and culture.

He doesn’t stop.

“The Court appears to conclude, however, despite any deficiencies in the classification and notification process adopted by the Legislature, that its rationality establishes its constitutionality. That is, because the Court concludes that the Legislature reasonably could determine that these statutes prevent harm to the public by mandating notice to the community of the whereabouts of previously convicted sex offenders, the Constitution does not prohibit their enactment.”

He disagrees. “The Legislature’s value judgment about these laws [based, as you recall, on no Committee work or deliberation whatsoever] is entitled to great respect, but that judgment comprises only one part of the constitutional equation.” It’s refreshing to hear somebody in authority who doesn’t simply try to hide behind the Legislature.

Indeed, he says, “the judiciary’s task is to complete the equation by evaluating the legislative determination in the context of settled constitutional principles”. Precisely what the Poritz Court has been mostly avoiding all along.

“The constitutional prohibitions against the enactment of ex post facto laws and bills of attainder reflect a valid concern about the use of the political process to punish or characterize past conduct of private citizens.”

But of course the sex-offense laws’ approach has been to characterize the sex-offender not as a private citizen (with inalienable rights and dignity) but rather to characterize him as as incorrigible monstrous threat who implicitly has indeed been ‘alienated’ from his rights and dignity as a citizen.

And the use of the phrase “political process” is telling, in light of what we know about the Legislature’s own desire to escape public censure for its generous parole policies and to pander to certain voter groups. As well as the Court’s own predisposition (especially on the part of the Chief Justice) toward this alien Continental legal philosophy and its schemes.

And he reminds us that “retroactive statutes raise particular concerns”, because “the Legislature’s unmatched powers allow it to sweep away settled expectations suddenly”. Because “its responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals”. Which speaks directly to the reality of the government actually sponsoring this entire mania. And, over the course now of 15 years, we can see that the government – the national Legislature as well as the State Legislatures, and now even city and town and county governments – has continued to sustain and indeed expand this whole thing.

And, facing up squarely to the entire matrix of mania law and ‘emergency’ law, he clearly states that “the Constitution’s prohibition against ex post facto laws reflects an enduring value that transcends the most pressing concerns of this or any day and age”.

In the 1950s it was Communists (as in the late 1860s it was ex-Confederates) and “future legislatures will doubtlessly find reasons to deal harshly with other groups that pose an apparent threat to public safety”. Yes, it is a dark road that we have been started on here.

ADDENDUM

This concludes my thoughts about Justice Stein’s Dissent. I plan one more Post on this case simply to sum up – briefly, yes – what I see as the significance of this case.

But I’ll say here that I think it’s essential that the SO community makes itself aware of the large and deep picture that transcends the equally legitimate but more narrow concerns that occupy the community.

By doing so, I think that the various members of the SO community can fortify themselves as to the genuinely crucial and vital role that their efforts play in correcting what has been and still is a significant deformity to the American Constitutional system and a threat to the continued health and integrity of the unique gift that is the Constitutional and the American vision.