Friday, October 30, 2009


I’ve read the recently-released Megan’s Law Study funded by the DOJ.

It’s a 46-page document and its text is available here.

There are a lot of graphs and charts and you may look at those on your own. The Executive Summary (pages 1-2) is reproduced on Constitutional Fights here (the entry is dated for Tuesday, October 20, 2009) and clearly indicates that the approach enshrined in Megan’s Law (and all the similar laws throughout the country) is at its very best only dubiously and tenuously ‘successful’ and indeed in many ways demonstrates little promise of ever achieving success even on its own stated terms.

So no amount of ‘tweaking’ or ‘refining’ or ‘fine-tuning’ is going to turn it into a viable proposition as public law and policy.

And its financial costs are significant and can only rise, probably exponentially.

There are only a couple of points I want to mention in this Post.

On page 3 the Report notes that “The premise was, and still is, that with this knowledge [i.e. from Notification] citizens will take protective measures against these near-by sex offenders”.

But it sharpens that insight by quoting a 2004 Study: “Exactly what [action] is expected is not clear, but it is hoped that, armed with this critical information, citizens will work on their own or in concert with government to make their neighborhoods safer”.

As I have said in previous Posts, especially in the series on the Portiz decision of 1995 in which the New Jersey Supreme Court twisted itself into a pretzel to uphold the original Megan’s law, this is a truly awful vagueness, freighted with very dark possibilities (or probabilities) indeed.

The very ‘vision’ which is supposed to ground the law is vague – the legislators weren’t really sure what was supposed to happen (and can you say ‘Iraq War’?). They had a fond hope that folks would do some stuff to make their neighborhoods “safer”.

But as Justice Stein pointed out in his lonely but gleaming Dissent in Poritz, it betrays a stunning lack of awareness of human nature and group dynamics to imagine that any neighborhood or community confronted by such putative (and State-certified) ‘monsters’ would limit itself to a series of ‘harmless’ measures (e.g. holding your child close as a Registered Sex Offender (RSO) walks by). After all, it’s going to be a lot of trouble to continuously repeat such a process.

It would more probably appear to any group in such a situation that the ‘best’ or ‘only’ solution to their problem would be to get the RSO(s) out of the neighborhood permanently. And while the ‘vigilante violence’ solution might not occur on a massive scale* there are many other types of pressure – what can be called non-physical violence – that can be applied by a sufficiently determined group within the neighborhood.

Thus, pressure on landlords to revoke rental agreements, on employers, on the very families and even children of RSOs (whose offense, presuming an accurate conviction, may well have had nothing whatsoever to do with children). Local schools, bank branches … the list could go on. And of course, there is the ancient tactic of simply freezing-out not only the RSO but his family and children from any meaningful participation in community events or even in the small civilities that define the daily life of a community.

And all of this presumes a police force that is at least ‘neutral’ and does not try to contribute a few inventive gambits on its own.

And all of this presumes that there is no ‘volunteer civilian’ group empowered through government funds and even quasi-police authority to keep the ‘concern’ very much ‘alive’.

The Report enumerates (page 4) an earlier Study’s list of qualifiers for Tier III: “The factors necessary for the placement into a tier three category are a high probability of re-offending evidenced by a particularly heinous instant offense or a high-risk assessment score, repetitive and compulsive behavior, sexual preference for children, failure or refusal of treatment, denial of the offense and lack of remorse”.

But as the SO community realizes, such a scientific and objective-sounding list is riddled with problems of coherence and accuracy and context. If, say, the conviction-offense was heinous and thus proving a “high probability of re-offending” then what of murder – surely a heinous conviction offense, yet murderers as a crime-class have almost the lowest rate of recidivism among crime-classes, even lower than actual sex-offenders. And the definition of “heinous” is remarkably elastic.

And while this is not a trump point, I note that if you were convicted though you pled not-guilty, then once imprisoned you are in the impossible position of ‘denying your guilt’ and thus not cooperating with such therapy as the institution provides, or you ‘admit’ your guilt to prison staffers and leave yourself open to fresh charges (and perhaps undercut any appeals).

But on page 5, this Report raises a point that I have not noticed anywhere else and which, if true, would go a long way to explaining some stubborn oddities in this entire SO mania-law situation.

Quoting a 2004 Study the Report gently muses that perhaps “community notification laws were enacted more to change the behaviors of potential victims than the behaviors of potential sexual recidivists” and that “it is not the enactment of community notification laws themselves that influences protective behaviors, but the community members’ perceived risk of victimization” [italics mine].

In other words, some researchers have looked at things from the assumption that the whole point of these laws was to ‘send a message’, that new-fangled legal theory called “expressive law”.

And that the ‘message’ was primarily to the citizens (as opposed to the RSOs): you are in such great danger that you must take action.

And that whether the sex-offenders (already ‘Certified’ as monsters in the legislative Findings) did or did not ‘stop’ was not the main point of the laws. Or, perhaps, that it was actually useful if the sex-offenses did not stop – so as to keep up the apparent need for and urgency of ‘the message’.

This kind of stuns.

Has this entire mania been a government-initiated exercise in spooking the citizenry? Or ‘raising the consciousness’ of the citizenry? Or ‘raising the awareness’ of the citizenry? Has ‘expressive law’ raised the agitprop and street-political-theatre of the late Sixties and Seventies to the status of national law and policy?

That thought isn’t mean to ‘minimize’ the damage the laws and the mania have done: after all, in order to justify so ‘urgent’ a ‘message’, the government had to create the monster-stranger-sex-offender-against-children threat and inflate its size far beyond any actual facts.

But once having started down the dark path of stampeding the public into its white-hot but darker passions, the government has had to keep fueling the ‘threat-emergency’, both by manipulating ‘the numbers’ and by ignoring more recent scientific analysis. And by passing law after law, intensifying penalties or registry regulations until it almost seems that nobody dares now to stand up and say Wait a minute.

This whole dynamic debases the processes of responsible law-making, law enforcement, and jurisprudence. And after the public has noticed enough debasement, then the threat to the very legitimacy of those vital processes begins to erode. If that happens, then law will be given by a single Authority, and the country is on the road to the Man (or Woman) on a White Horse. Although given the trajectory of the political myths of the current era, perhaps Lord Protector will be the form it will take here.

Obama at some point, you recall, repeated the Bush-2 mantra that the President has a responsibility to protect the American people (rather than, as the Oath of Office insists, the Constitution). But perhaps it will all be kept nice and democratic by calling the occupant of the Oval Office ‘Mr. Protector’. You see where these things can go.

And of course, this would explain why putatively intelligent and competent legislators and jurists have steadfastly ignored the increasing amount of research that is now undermining what they claimed were the original justifications for this whole ‘emergency’ in the first place. What Wayne Logan tactfully noted was the whole sex-offense phenomenon’s lack of an “empirical” dimension, its resistance to any scientific evidence now refuting the ‘Findings’ that started the thing in the first place.

And as I said, would a notable ‘decline’ in sex-offenses really be something that the legislators would like to see at this point? Hell, sex-offenses, like all violent crimes, were declining before the mania started up, and that fact didn’t seem to stop it at all.

“Despite widespread community support for these laws, there is virtually no evidence to support their effectiveness” (page 7).

I sense that there isn’t such widespread public support, certainly not in the categories beneath (as most of them are) abduction-sexual violation-murder of small children. But as I have said, the vast majority of RSOs are on the registry because the membership in the pro-sex-offense laws alliance is so varied: the ‘protect the children’ subgroup supporting these laws is only one (although the chosen ‘front’) for a much larger and more tenuous collection of interests whose primary concern is not with ‘children’. And perhaps here too, neither the ‘decline’ of violent sex crimes nor the rehabilitation of sex-offenders would suit larger purposes.

Public opinion has been led for a walk on the dark side, indeed.

I wonder too, if on top of the spook-the-citizens angle, and the ‘send a message’ angle, there is also the following angle: that having for decades supported the anything-goes and do-what-you-want-because-nobody-can-tell-you-what-to-do ‘philosophy’ of human life and of child-rearing, and also the ‘deconstruction’ of the family as well as of parental authority, the Beltway now has to find some way to ‘control’ several decades’ worth of now-grown ‘youth’ who have grown up under-parented and under-Shaped into any sort of self-mastery or mature and socialized self-identity at all.

Having thus swept away the primary and indispensable formative structures that American (or any) society and culture require to impart some Shape to the young, the Beltway now has to insert the government and the law ever more intrusively into American life in order to keep any viable sense of order at all.**

This is a recipe for a police state – and that consequence was as conceptually clear a probability decades ago as it has proven to be an awful reality now.

Considered from this angle the SO mania is not only a repugnant and dangerous development in and of itself, but is also a harbinger of things to come (or even things-that-now-have-to-come).

But let’s not be deceived that a little bit of tweaking by the same Beltway will return things to ‘normal’ and will ‘re-balance’ things. American society and culture, and the processes of legislation, law enforcement, and jurisprudence have been seriously deformed. Like steel girders in the frame of a bridge or a large building, such deformity is not easily ‘fixed’, if ever.


*And yet another site lists the shockingly long list of RSOs who have been attacked, injured, and even killed by vigilante violence or by victims seeking ‘closure’.

**And again: this is eerily similar to the grave mistake made in Iraq: ‘deconstruct’ everything and – somehow – everything will get ‘better’. Alas no.

Tuesday, October 27, 2009


Just a point to fill out what I had mentioned in the immediately previous Post.

I think you can see – in a tactic that dates back almost 30 years and predates even the McMartin Pre-School cases of the early 1980s – what happens when a situation is ‘selectively’ presented to the public by an advocacy for the purposes of eliciting public support or approval (which almost always requires the pre-step of igniting public fear or public rage – never a thing to be undertaken lightly).

In both the MADD Brief (presumably ‘liberal’) and Chief Justice’s Dissent (avowedly ‘conservative’), we see a selective ignoring of any downside or negative consequences to their desired outcome. Thus MADD emphasizes (using inaccurate imagery as well as inflammatory vocabulary) the ‘violent crime’ without mentioning that the worst-case outcome is only potential; the Dissent – and from the most senior jurist in the nation – conducts an analysis that either fails to consider or willfully ignores the possibly (or probable) negative consequences to the Constitution and the Constitutional ethos.

This type of ‘presentation’ mimics, as I have mentioned in other Posts, the corporate and certainly military-industrial practices of ‘selling’: give an exaggerated view of the problem that your product or service is designed to ‘solve’; then give a worst-case scenario of what happens if the problem continues at this level of threat or damage; then give a best-case scenario of what will happen if your product or service is purchased.

This is selling, and this is how it’s done. Let the buyer beware and these are the hazards of a commercially-oriented culture and civilization.

BUT: this approach to things has migrated to law and policy, to legislation and to law enforcement. And this unleashes a legion of new troubles.

Legislators and public opinion are stampeded into a highly emotional state; so much so that they overlook the un-mentioned ‘downside’ to the pitch: negative consequences, intended or unintended, and their degree of possibility or probability.

Given vivid ‘stories’ and easily digestible (though wayyyyy too simplified, good-vs-evil) plotlines, the media fall into the lazy habits of turning their analysis and objective reporting into merely play-by-play description, sort of like the old sports-announcers used to deliver over the radio.

Worse, the public is now – and without being warned and probably without realizing it – put in the position where the advocacies and the government itself are functioning as the used-car salesmen who will sell this thing to the ‘rube’ standing out on the lot.

And if some members of the public do realize what has subtly but seriously happened, then they now must assume the stance of being openly and clearly skeptical of claims being pressed upon them, and rightly so – you can’t say that the Framers were all that ‘optimistic’ about ‘government’ … after all, they caged it pretty carefully with their Constitution.

Yet this ‘merchandising and packaging’ and ‘pitching’ approach to public policy profoundly destabilizes the relationship between the Citizenry and the government. Rather than being the ultimate judges of the government, the Citizenry become the ‘marks’, the ‘rubes’, the ‘consumers’, the herd – and this cannot sustain a Constitutional polity. Not hardly.

And the selective skewing of a proposal to make it look like it will have no downside (except – yuck yuck! – to the ‘perps’) puts a necessarily false choice before the public: thus, in the Roberts Dissent, the choice is to either A) allow the police to be freed from the fundamental Constitutional restraint of having actually observed criminal behavior in exercising their official coercive power or B) allow a terrible event to happen.

When actually, the choice is much more complicated – if it is viewed without the selective filters and thus if it is viewed more accurately: Should the precedent of police deployment of their coercive authority – without the justification of observed criminal behavior – be permitted when A) it is at best possible that they might stop some terrible events from happening but B) at the certain cost of significantly weakening a classic Constitutional protection from the arbitrary deployment of the government police authority?

As in a sales pitch strategy, the precise objective of the supporters is to prevent any but ‘positive’ thinking about what they wish to ‘sell’. Thus their plan must be seen only in a best-case light and without negative consequences; the victims must be seen as pure and outrageously wronged; and conversely – and with equally stern strategic necessity – the designated ‘perp’ must be seen only in the most vividly worst-case light.

And – worse – any hesitation or desire to examine any of the foregoing in the pitch must be instantly discredited as ‘insensitive’ or some such. This is simply the adaptation of the used-car sales handbook about how to deal with the family member or family friend who stands there wanting to have the hood opened and to look at some key indicators of the vehicle’s serviceability. (Example: “I suppose we could open the hood, if we really didn’t care whether you had the means to go and get your baby the fresh milk she so deeply needs, folks – since that’s what your brother-in-law is pretty much saying he doesn’t care about ….” That sort of thing.)

You can see how any effort at mature and rational assessment of the vehicle and any deliberation about purchasing it is going to be derailed and indeed snuffed out.

And the same thing is true in matters of grave and large national import, where public opinion is similarly manipulated.

Worse, while a family only buys a used car once in great while, such ‘sales techniques’ have been deployed against the American Citizenry almost continuously for the past several decades.
Which means that a lot of folks have either gotten used to this sort of thing (normalizing the abnormal, you might say) or else now have grown up with this type of thing and assume that it’s just the normal way ‘democratic politics’ works. And may well have lost, or never have learned, how to analyze carefully and maturely deliberate about a proposal which requires them to make some sort of choice or decision.

Which is a hugely dangerous state of civic affairs. If an increasing percentage of the Citizenry can neither analyze nor assess nor deliberate, then they will rely on the more primitive human capacities to choose by ‘feeling’ alone – and sustaining a Constitutional Republic requires a mature and competent Citizenry. Otherwise the liberty of The People will be undermined by the forces of authoritarianism, who may very well justify their actions by saying that since there is no competent People, there is no need for a genuine Constitutional Republic.

In these matters, ‘good intentions’ are not enough. A baaad plan or a baaad way of getting it accepted (of making the sale, as it were) cannot be made ‘good’ simply by the fact that those who ‘sold’ it really meant well and were trying to address a real problem.

The iron rule of selling is to make the sale – everything else can be ‘worked out’ later.
But this cannot be the underlying principle in the conduct of public business and in the formulation of public policy and in the passing of legislation and the making of laws.

The People has every right to expect – and would fail in its duty if it did not expect – that every law, like the projected flight of an airliner, is carefully considered beforehand, and not approved until the concept, the plan, and the execution were considered thoroughly.

The concept, therefore, of ‘expressive law’ – that it’s OK to pass a bad law if it’s going to ‘send a great message’ and that once the law is passed then ‘it’s the courts’ problem’ (and the defendants caught up in it?) … this concept must be expunged from the law schools and from standard-operating procedure on Capitol Hill and in legislatures around the country.

Somehow the Constitution – its spirit and ethos even more than its letter – has become a neglected Party in legislation and (too often, alas) in jurisprudence. I am almost tempted to suggest that like a minor child in a custody dispute between two adults, the Constitution should have a special representative appointed to protect its interests in any official proceedings.

But it goes deeper than that. The Constitutional vision itself is based upon the idea that The People will be largely comprised of mature, serious, sober individuals who have handled responsibility in their lives and are willing and able to take on the added responsibility of preserving a democracy and a Republic.

A culture in which a) ‘responsibility’ and b) the willingness to achieve the competence necessary to discharge a responsibility are considered ‘quaint’ or even ‘oppressive’, or any other of half a hundred other epithets … such a culture is not going to shape individuals competent to be Citizens in the sense that that capital letter requires.

No Citizens, no need for a Constitution and a Republic.

And an increasingly incompetent public, no longer effectively able to be a Citizenry, will require more and more assistance, and be willing to tolerate any amount of governmental authority’s expansion and control over every aspect of life.

You see where things can go.

And why there is a fierce urgency to now.

And why these SO laws must command our concern: they are the products of some hugely and deeply baaad trends in American policy and polity and in the very ability of Americans to exercise ultimate authority over their government and the legislation it churns out.

Saturday, October 24, 2009


This Supreme Court case has made some headlines since Chief Justice Roberts, joined by Justice Scalia, Dissented from the Decision of the Court not to review the case and to let it stand as decided by the Supreme Court of Virginia.

It’s not an SO case, but it struck me as a similar dynamic.

The individual was the subject of an anonymous phone tip to the police (not on a 911 line apparently, and there are no tapes of it) about a man in a “striped shirt” and a certain type of car with a certain partial plate driving down a certain street and that he was intoxicated.

A police car happened to be nearby and responded to the radio call that went out. That officer saw such a car on that street, turned around and quietly followed it. The car braked before arriving at an “uncontrolled intersection” (no lights or signs in any direction) and a bit further on braked when approaching a red light – which the officer decided was “erratic”.

Apparently having noticed the police car behind him the driver pulled over to let it pass, whereupon the officer put on his warning lights, sounded his siren, and made a traffic stop. The driver appeared intoxicated to the officer when forced to step out of the car.

The defendant/driver moved to have the evidence of his intoxication suppressed since the stop itself was a violation of Fourth Amendment rights against unreasonable search and seizure. The trial court refused and he was convicted. He appealed to the State Appeals Court, and that Court upheld the trial court. He appealed to the Virginia Supreme Court and that Court reversed the conviction.

At which point the Commonwealth of Virginia appealed to the US Supreme Court.

The US Supreme Court refused to review, basically leaving the case as the Virginia Supreme Court had handled it.

Since CJ Roberts appears in his Dissent to echo much of what was proposed in the Amicus Curiae Brief from Mothers Against Drunk Driving, I’ll reference a few points made in the MADD Amicus Brief, and then the Roberts Dissent.

The question is whether police can make traffic stops on the basis of anonymous tips, even when they themselves have not observed any offending behavior.

The MADD position is that such ‘anonymous tips’ are a vital tool in their thirty-year struggle against drunk-driving (DD). Their mission is “to stop drunk driving, support the victims of this violent crime, and prevent underage drinking”. All worthy objectives, even that interesting twist that drunk-driving is a violent crime.

They classify DD as “a serious national public health hazard”, in addition to it being a violent crime.

Further, they assert that “by requiring law enforcement officials to personally observe erratic driving before acting on an anonymous tip, the decision of the Virginia Supreme Court dangerously limits law enforcement officials’ ability to intervene and stop drunk driving before an accident occurs, and undermines government efforts to deter drunk driving”.

This, I think, illustrates the nub of the problem: is there a crime (or health hazard) so urgent and violently dangerous that the police power may act without any observed evidence in order to prevent it? And more ominously to the point: is there any crime or health hazard so urgent and violently dangerous that the police power can be trusted with “flexibility” in the matter?

Because let’s not be deceived by what’s at stake here: the Constitutional integrity and viability of the Framers vision and the United States as a Constitutional Republic. Yes, the scenes of a particular crime are grisly and enraging, but no analysis can stop there. To rework the old Chinese proverb: it is easy to perceive a great tree falling, harder to perceive the forest growing. The ‘forest’ is the Constitutional integrity of the Republic.

You can quickly see where things can go in a Constitutional Republic when the police are allowed to deploy their authority without any evidence.

We arrive here at ‘preventive law’, the theory that if a type of crime is bad, then it’s better to prevent it than to clean up after it.

This opens all sorts of watertight doors deep within the hull of Our great Ship of Liberty. First, you have the police able to inject their authority without any observable proof of criminal behavior. Second, you get a ‘type of crime’ that can quickly start to expand: MADD began its work in 1980 and since then the country has seen drugs, domestic violence, and sex-offenses added to the list of crimes that for one reason or another are ‘too bad’ not to try to prevent. (You may come up with some others.)

Thus it is considered somehow negligent for the government and the courts to force an officer to wait until he witnesses a crime in one of these categories.

I have always felt that this position doesn’t really understand what is at stake in all of this. Nobody can doubt the awfulness of certain crimes, and frankly the inherent riskiness of living on this planet. The sensible person takes measures to protect him/herself and prays to God, which is not a bad way to go through life.

But to expand the government police authority to fill in for a God who apparently doesn’t care to ‘prevent’ or ‘stop’ such crimes – now that does not strike me as good Constitutional thought. Crime has always been with us – it was there in the Founders’ era as much as it is with us now. Yet their concern was that the Citizenry be protected as much as possible from the invasive, coercive, and omnivorous tendency of governments in their police power.

(Of course, the Founders presumed that the Citizenry, as mature or maturing individuals, would be continually striving to improve their competence as decent human beings. But if you want to make the case that that is no longer what Americans see themselves as doing, then the solution must be to recover a nation-wide sense of maturity, because otherwise we are going to have a country where the Citizens become increasingly less morally and ethically competent and the government police power expands to fill the gap by forcing them to do under penalty of law what they no longer know how to do as an expression of personal moral and ethical maturing.)

The police are characterized in their role of “protecting the public” – but this is a hugely fraught comment. EVERYbody is a member of ‘the public’, are they not? Unless you are presuming that there is ‘the public’ and then there are ‘criminals’ – but that is an insidious separation of ‘sheep’ and ‘goats’ that undermines the Constitution and the national community. We are all, after all, members of the ‘public’, whether at some point we are on the committing or the receiving end of a crime (see the immediately previous Post about every American probably committing 3 Federal felonies a day).

And from May of 1980 when MADD first characterized only drunk-drivers as such non-members (or enemies) of ‘the public’, the list has now grown to include assorted drug-users or providers (a rather large fraction of the population), ‘batterers’ (as that term has been hugely expanded in domestic violence usage*), and ‘sex offenders’ (now about 1 in every 200 males).

Second, if the public are now to be empowered to get people stopped by police who themselves have observed no criminal behavior, then you are on the road to something that the SO community is now seeing: ‘volunteer’ organizations (and some for-profit businesses) who are seeking government funding and authorization to do their own ‘sex offender policing’. Which takes matters in a direction that, admittedly, MADD probably never imagined. But that’s how it is sometimes: a potentially dangerous idea gets traction because its deepr and darker implications are ignored because of the 'emergency' and the 'good intentions', and then other folks or groups come along and ‘improve’ upon it.

The police, MADD notes, “have sought the greatest flexibility to deter and intercept drunk drivers before they cause accidents”. And I can understand that. But we cannot forget the other side of the equation: flexibility in going after ‘certain crimes’ is always a dynamic thrust that seeks ever to expand itself; and a free People cannot remain free if they are living in a police state, no matter how benevolent. And in the American vision, there is no such thing as a ‘benevolent’ police state.

Of course, as I’ve said, the first foundation of the freedom of the Citizens is their own individual commitment to living their lives responsibly and maturely. THAT, naturally, is precisely not what the message has been for the past 40 years or so. Instead the message has been: do what you want because it’s your life and nobody can tell you how to live it.

Perhaps then all of this ‘preventive’ policing stuff – seen, as here with CJ Roberts, at the highest levels – was sparked by the everything-is-equal and I-can-do-whatever-I-want strains in much popular philosophy.

But as I’ve said, if you’re going to have the police-power increasingly substitute for the moral and ethical maturity of the Citizens, then you’re on the road to a police state.

And in that regard, the comment in the Brief that “the decision below undermines such programs by mandating that law enforcement officials personally observe narrowly-defined evidence of drunk-driving before they can act on an anonymous tip” must command attention. The programs referred to are those whereby drivers or ‘the public’ can call in what they think is a drunk driver and the police, merely on the basis of that ‘report’ can make a stop.

I don’t think it’s ever a good idea to get the government police power out of the habit of hewing to personally observing narrowly-defined evidence – and a) I think I am in agreement with the Framers on this point and b) the SO community knows full well what happens when narrow and careful defining goes out the window for the sake of ‘the emergency’.

Which is not to say that MADD is up to bad things here – I concur fully with their concerns. But it’s a dangerous thing – no matter how good your intentions – to loosen up the procedures and the laws and the principles that boundary the government authority so that it does not engorge and invade the civil space.

Finally, the Brief urges that “the harm inherent in drunk or erratic [notice the expansion here] driving can best be prevented” if the police are allowed to follow up on an anonymous tip. But again, if you are going to set up a government whose primary responsibility is to “prevent harm”, then it will need the powers formerly ascribed to God and it will of necessity have to be even more intrusive than the Deity on all but His worst days.

The purpose of the government is to “preserve, protect, and defend” the Constitution – not to protect every citizen from every harm. And while I am not as certain about the oath taken by police personnel, I am going to imagine it’s about protecting the State’s constitution.

And if you say that it is only the uniquely dangerous ‘harm’ posed by the drunk-driver, I would respond that while that may have been so in 1980, yet now the list of such “uniquely” dangerous harms justifying the punching of a hole in the Constitutional firewall has now expanded exponentially. (And as I tried to demonstrate in my mini-series on the New Jersey Poritz case, with very little clear thinking.) And it’s still expanding; so much so that I think we’d have to consider it a trend.

Chief Justice Roberts had wanted the Court to review the Virginia Supreme Court’s overturn of the conviction. Although he couldn’t convince enough of the other Justices, he made his preferences clear in his 5-page Dissent.

He quotes the figures and statistics conveniently rendered simple but vivid (1 fatality every 40 minutes in the US) and that DD is a serious and potentially deadly crime; then he moves right in and says that the Court’s refusal to consider the case “will undermine such efforts to get drunk drivers off the road”.

He goes further: “The imminence of the dangers posed by drunk-drivers exceeds that at issue in other types of cases”. Perhaps it escaped his mind that there are all those SO laws that the Court has had to deal with. Once again, the ‘emergency’ that ‘justifies’ the expansion of government power – although I would like to know what he thinks constitutes the greater threat.

He concludes that “the conflict is clear and the stakes are high” – with which I am in complete agreement. But I don’t think he quite grasps the “stakes” the way I’ve discussed them above: the integrity of the Constitutional structure and the robustness of the Constitutional vision.

He grudgingly allows that “maybe the decision of the Virginia Supreme Court was correct” and “if so, then the dangerous consequences of this rule are unavoidable”. Again, he’s only talking about the consequences on one side of the equation, not on both: the health and vitality of the Constitution itself will apparently suffer no ill or dangerous consequences from having well-intentioned holes chopped here and there; he seems to imagine that there will be no damage to the Constitutional ethos. Does he think it is permanently invulnerable?

I wonder sometimes if these 'law and order' types aren't even more dangerous to the Constitution than the stereotypical liberal-elites who want what is basically a benevolent dictatorship run by themselves, the elites who 'get it'. The National Security State or the National Nanny State ... or the two of them fused together into some monstrous hydra-headed feedback-loop.

And then he finishes up his document with a blatantly rhetorical call to the gallery: “It will be difficult for an officer to explain to a family that the police had had a tip that the driver of the other car was drunk, but they were powerless to pull him over.”

Rather, he accuses the Court, every drunk driver will be allowed “one free swerve”. This is one of those cutesy PR-soundbites that smells strongly of the glue hastily lathered on to hold it together. Some drunk drivers will get many free swerves (can you say ‘Chappaquiddick’?) Some will kill others, some only themselves. And many will go through life driving drunk and never coming to the law’s attention (this is not a minimization or any sort of approval on my part that DD is somehow ‘OK’).

What’s amazing here is that this jurist – and Justice Scalia who concurs with him – are putatively ‘conservatives’. And yet they are willing to knock down the Constitution to get at ‘crime’ (although only that one reely reely uniquely baaaad crime; or those two; or those three; or those four; or …).**

Who can forget Robert Bolt’s character of Thomas More in “A Man for All Seasons”, saying that if we knocked down all the laws in England to get at the devil, and then the devil turned on us, what would protect us then – the laws being all flat?

This is a problem that the SO community knows from first-hand.


*In this regard, let's also recall that in current domestic-violence law one person, with no corroborating evidence, can have the police remove a person from house, home, access to children and other property. While a mandatory Hearing is usually scheduled within a period of a week or ten days (!) there exists no guarantee that the individual will be restored.

In both Soviet and Nazi law enforcement, the practice of 'delation' was considered perfectly valid: one citizen could turn in another citizen to the security police with no evidence. As ex-Gestapo and ex-Stasi officers later admitted, they could not keep up with the number of citizens eagerly turning in their neighbors, friends, rivals, community oddlings, and even in-laws and family members. Did you think it can't happen ... ummm ... anywhere else?

**But when you get right down to it, it has to be admitted that both of MADD’s and thus the Chief Justice’s main images are inapposite, and in a way so favorable to their cause that both images become highly suspect.

The idea that DD is a “violent crime” is not really accurate. It may indeed be a potentially violent crime, and in and of itself driving while intoxicated is a crime. But the damage that it can cause and upon which the ‘emergency’ is based is only a possible outcome, not a guaranteed outcome (say, for example, like firing an automatic weapon at pointblank range into a crowd in a full move theatre).

This of course brings matters to the stage of reasonable difference among prudent and reasonable persons as to just how much of the Constitution should be jeopardized in a tradeoff enlargement of police power in order to arrest the perpetrator. And let’s not be deceived: the intent in all this is not to prevent the crime (DD) but to prevent the possible consequence of the drunk-driver killing somebody else (causing his/ her own death solely … that doesn’t appear to be of such concern).

So you are into the matter of preventative policing (sort of similar to preventative war, when you come to think of it) as well as police-arresting without have observed any criminal behavior.
Just where there should be a whole lotta discussion, there was very little: ‘emergencies’ make great politics and great ‘stories’ for the media … and that’s pretty much what it’s all about now.

Second, a drunk driver in a vehicle is not like a ‘ticking bomb’ (the old horror image from the age of anarchist agitation in the late 1800s). A bomb is a thing which, once activated, is made to and guaranteed to explode – presumably with great loss of life. And yet again, a drunk behind the wheel is not made to nor guaranteed to cause a lethal or fatal MVA.

(Please let there be no doubts here: drunken driving is, in my view, a monstrous legal and moral failing and persons prone to doing it must be shown the error of their ways – but we can’t be shunting all this off on the police just because we’re a culture that doesn’t want to think of itself as ‘directive’ or ‘setting boundaries’; at the rate we don’t want to be ‘directive’ or ‘set boundaries’ but still want at least some amount of ‘law and order’, then we are riding right into the Valley of the Police State, which is a process that the government of itself will probably do nothing to prevent. Indeed, to look at the Roberts-Scalia Dissent, and a whole lotta judicial ‘reasoning’ in SO matters, it looks like the government will be happy to grade and pave that particular road to hell. )


I recently watched a dvd of John Ford's 1930s classic "Abe Lincoln in Illinois" with Henry Fonda.
You may recall the story: Lincoln the youngish small-town lawyer defends two brothers who are accused of killing a local - but popular - roughneck; the witness against them is another local -but popular - roughneck. Eager to get a conviction while minimizing costs and time, the State's Attorney urges the mother of the two to name one of her sons the murderer and then the other will be set free. It was a stunningly awful choice to impose upon any mother and you can feel Ford's own outrage at his accumulated knowledge and experience of prosecutorial ways.

Lincoln, famously, saves the day when he gets both brothers off by pulling out an almanac that proves there was no moonlight the night that the accusant roughneck claimed to see the brothers kill the first roughneck; and, indeed, the accuser was the killer after all.

Prosecutors have always had this hydra-headed problem: they need to get convictions quickly and efficiently, they don't get a lot of money for investigations, and since there's such a caseload then a certain amount of 'business haggling' has to be deployed in the game just in order to keep the system's head above water.

Which is cold but clear.

But it doesn't get them off a second hook: folks like to think that when it comes to 'crime', the 'law' is on the level and the 'perp' is the only bad guy onstage - and when folks start realizing just how dark a path a prosecutor might be willing to travel (you don't think Cheney thought that idea up himself, do you?) then they remember that traditionally in American law and politics, the heart of the public mostly went out to the underdog, which was whomever the government was trying to put in the can.

But then came 'the victim' - and while this was a movement and concept emanating from the ostensibly liberal Left, it quickly became clear to the government itself just how useful 'a victim' could be: 'the victim' could solve the government's Abe-Lincoln-in-Illinois problem: now the government would have a heart-rending face to put up against the defendant's 'Ma'.

I don't think this was the original intent of the early victim-advocacy folks. But the government, I think, made an offer they couldn't refuse: go in front of the cameras for us, and we will give you role and stature and clout, and even funding.

And then came 'the children'.

Monday, October 19, 2009


A short article at the “Reason” site this past week makes some interesting points.

“Violent crime is down in America, across the board, spanning two decades.” Thus the Justice Department earlier this month reporting “that the incidence of rape had hit a 20-year low”.

Ditto that “homicides are down, as are juvenile violence and crimes committed against children”.

And that “crime rates have been plummeting since the early 1990s to such an extent that explaining the drop has become something of an obsession among criminologists and sociologists”.

That much I think the SO community has already come to suspect.

Certainly the drop predates all the SO laws in the current mania and indeed the mania itself.

A skeptical turn of mind might be forgiven for imagining that 20 years ago, at the first sign of a decline in crime, the government eagerly jumped on any bandwagon that claimed it was outraged by this or that crime, simply to keep up the level of public fear. It’s a tactic that has worked well, after all, since at least 1948 and the Cold War: you can never go wrong politically by scaring the hell out of the American people and then promising to save and protect them.

And it used ‘the children’ somewhat as a front, as a guaranteed and instantaneous objection-suppressor; a gambit that has recently been deployed far less skillfully by some poor backwoods parents with a balloon and their darling boy. But they had picked up the idea, I would say, from some verrry high-level sources indeed.

But what is really news is that “since 2002 the percentage of the American public who think violent crime is on the rise has been increasing, even as the violent crime rates continue to fall”. (Until 2002 when terrorism – a form of crime – suddenly got the public worried and has continued to do so.)

Even more: “there was actually a drop in public worry about crime that began in 1992 and continued until 2002”. This was the period when the SO mania was brought to the boil by the Findings in the various State and Federal laws screaming concern over the emergency created by hordes of incorrigible monster stranger sex-offenders roaming the land, and upheld by far far too many courts. And yet the public was actually becoming less worried by crime during that period.

Now this is interesting indeed. And not at all consoling, from a Citizen’s point of view. Clearly the legislatures were not responding to “public outcry”, at least not as the term is normally construed. But again, perhaps the legislators were simply making common cause with any bandwagon that might help keep public fear whipped up – not that that thought is very consoling either.

So maybe the legislatures – State and Federal – were engaging in the practice of creating “expressive law”: make a law that will send a certain ‘message’, one that a particular pressure-group wants passed; whether the law itself is workable or Constitutional or even just or wise doesn’t matter; once it’s passed it’s the courts’ problem, although you can always tell the cameras that if there’s any ‘tweaking’ and ‘fine-tuning’ to be done, you’ll do it if the need arises. And then ‘move on’.

That sounds more probable, but insufficient somehow. I think it makes the legislators out to be the ‘victims’ (!) in the matter – the victims of the pressure groups.

And I don’t think that can be right. Governments by their nature tend to like public ‘fear’ – it keeps people in line and out of the way. Especially for a government that can’t really solve the huge and real problems facing its citizens, then a handy ‘war’ against some fearsome monster (created for the purpose by the PR folks) will serve as well in this era as “a short little war in the Far East” served the purposes of an earlier era.

“Fear makes easy politics” the article notes. And that’s too too true. And doesn’t the SO community know it from first-hand?

And if there’s a high crime rate or at least the perception that there is, then it’s easy for legislators to score points by sending more money to law enforcement.

But in an era of shrinking funds there’s another option that doesn’t require so much cash: create so many laws and water down Constitutional protections so much, that prosecutors have a much simpler time of it when it comes to wringing a plea out of a defendant.

In this regard, the article mentions a new book by veteran Boston attorney Harvey Silverglate, who opines that there are now so many Federal crimes that the average Citizen commits at least 3 Federal felonies per day.

And yet, as the article notes, “we aren’t a nation of degenerates”.

But I wonder if it wouldn’t be a good idea for ‘decent’ folks to start wondering just how many times over they are already Federal felons. That would give them a little broader perspective when it comes to thinking about ‘sex offenders’, and about what is happening not only in this country, but to it.

And if this article is on the right track, then the perps are indeed among us and known to us: we voted them into office.


It is probably more than coincidence, the era of the 1990s. In domestic politics the eager-to-please re-election concerns of the Bush 1 Administration, followed immediately by the arrival of the Clinton Administration, triggered a massive surge in pressure from major Advocacy groups whose primary chosen bugbear was the ‘male’ and ‘male violence’ and – inevitably – matters of ‘sex’ and intimate relationships.

Additionally, the continuing dissolution of family and parental ties – a direct result and even objective of certain Advocacies for their own purposes – triggered a deep national need to somehow express ‘concern’ for ‘children’ and the deep public psychological need to feel that something was being done for ‘children’.

On the international scene, the peaceful dissolution of the Soviet Union had the perverse effect of dissolving the world-community’s need for the US to protect them from the Soviet threat.

And this thump landed on a Beltway already sensing its inability to meet the economic challenges of the now-gone post-1945 American industrial and economic primacy.

Clearly, I think these realities served as pressure for legislators to both satisfy the demands of certain pressure-groups domestically, while also raising up new ‘monsters’ and ‘threats’ to distract the public from what was sure to soon reveal itself as a long period of legislative mishandling of major national and international challenges facing the nation and the fact that so many of the grave problems had now gone beyond the point of any simple solution.

And here We are.

Saturday, October 17, 2009


I’m getting around to those articles I mentioned last month when I went on vacation.

In this Post I’m working with his article “Sex Offender Registration and Community Notification: Past, Present, and Future”, which was adapted from a talk he gave in the Spring of 2007 to a New England law enforcement-corrections conference.

The text is available by following the instructions below*; it’s only 16 pages long and easy to read.

As I go through these articles, I might wind up coming back to some of the same thoughts and themes I’ve mentioned in prior Posts, but it seems to me that what we’re looking for here is a comprehensive grasp of the major issues and themes, not an unending sequence of ‘new’ ideas.

So let’s get to it.

He mentions that State and local law enforcement has traditionally handled criminal justice matters because it is into those State and local communities that former offenders (or ‘ex-cons’ as the movies used to call them) must be re-accomodated upon return ‘to society’ (as they used to say).

This is a much larger point than it may look on first glance. There is a very practical and yet substantive reason why the Framers left criminal matters mostly to the States: those were the actual living communities in which ex-cons would have to re-integrate into society once they finished up in prison.

And back then, nobody imagined that any level of government in this country would try for all practical purposes to create a class of criminals who would never really be reintegrated into society, who would be unsuitable for reincorporation into society, because they were so genuinely and compulsively monstrous that their very existence would presume the probability of a crime, and an awful crime (the abduction, rape, and murder of children) as well.

This is a truly monstrous gambit on the part of the legislatures and it’s not so hard now to see just why the legislatures so quickly adopted the tactic of passing these things without significant public hearings or deliberation and passed them as ‘emergency laws’ so as to get around various public notice-and-debate statutes that required such deliberation.

And of course, the rationale for federal involvement is verrrry sketchy. But if there is one, I think its roots are in the old civil-rights era of the 1950s and early-1960s, when the States of the South could not be relied upon to eliminate the odious Jim Crow laws (which, in effect, arose in the later 1800s to re-institute some level of the racial subjugation that the Civil War had presumably eliminated by the Union victory in 1865. Thus the Federal government had to step in, as Ike did when he sent the 101st (or the 82nd, I don’t recall) Airborne and US Marshals to enforce desegregation.

But as I’ve said, there are today no other social realities that even begin to approach the profound odiousness of the rampant and entrenched Jim Crow ethos or the widespread public acceptance (outside the South) of its elimination. Certain advocacies, having adopted a ‘civil rights strategy’ for their own agendas, have tried to paint their own concerns as being equal to or even greater than the publicly accepted revulsion against Jim Crow laws in any form, but it’s quite a conceptual and imaginative stretch to do that, and again, that may well be why the legislatures have (Slyly? Conveniently?) have adopted the tactic of side-stepping public deliberation in sex-offense matters: for all the assertions of monstrousness and the ‘Findings’ to that effect, legislatures really didn’t want such assertions and Findings to be widely discussed and deliberated.

Instead – in these sex-offense matters – you get what in effect is the running of the old ‘revolutionary’ play instituted by the Russian Reds in 1917: first you take over the government, then you force the people to accept it as a good idea – by propaganda if possible, by terror and legal chicanery if necessary. And in that game plan, the national government must be ready with a powerful propaganda mechanism and some sort of national police power.

Using New York State as an example, Logan then notes that of the State’s 24,300 sex-offense registrants (in 2007), fully 19,000 were what I would call ‘nominal’ registrants, meaning that they were on the SO Registry simply because of the fact that they had been convicted of a sex-offense, not because (like the remaining 4,300) they gave substantive cause for their individual potential for probable recidivism.

Thus Logan is first concerned with the nature and origin of the federal ‘interest’ in this particular type of crime, which leads to the federal insistence on a “parallel involvement” in dealing with it.

He quotes the majority in the 1957 US Supreme Court case Lambert v. California (which invalidated a Los Angeles ‘gangster registration’ ordinance on substantive due process/notice grounds): registration itself was only “a law enforcement technique designed for the convenience of law enforcement agencies through which a list of names and addresses of felons then residing in a given community is compiled”.

But there was a limit, the Court felt, to just how much police power can be enhanced for its own convenience, at the expense of citizens.

And, yes, the citizens in the case were persons known to have been convicted of a crime, but citizens nonetheless. And while some of those seeking anonymity might have been still-active felons looking for ‘cover’, there were also many – perhaps most – who were seeking to rebuild their lives, having served their time.

So if the Court was concerned about the effect of what was only a police-knowledge-only type of registration, then the registration-and-notification scheme of the 1990s sex-offense mania era should have been given even more cause for concern.

And let’s not forget that beneath the simple ‘notification about information that is already a public record’, there lies a sinister dynamic, an insidious feedback loop: in order to justify these dubious laws, the legislature selects certain ‘facts’ which it publishes in the law as Findings – these ‘facts’ establish the incorrigible monstrousness of the general ‘sex offender’; in order to ‘keep up the numbers’ and thus reinforce the legislative claim of ‘emergency’ any and all sex-offenders are lumped together as a monolithic group or class; so before ever seeing any particular names, the public has already been primed by the legislative Findings which therefore come to function as an official Certification of Monstrousness of any and all sex-offenders; sensationalist media accounts which selectively ‘report’ what may (or may not be**) horrific sex-offenses against children work in conjunction with the Findings.

So, as I have said in previous Posts, this entire insidious feedback loop, which is itself caused by the government in the form of widely disseminated formal legislative Findings (and subsequent court acquiescence or acceptance), constitutes a truly unique element in the handling of sex-offense crimes and operates to render the ‘nothing but public information’ assertion of legislatures and courts as utterly inadequate to describe what the government has set in motion against those – and only against those – convicted of a sex-offense.

And of course, the fact that those Findings are now demonstrably inaccurate – and that legislatures are still carrying on as if they were true – is a lethal warning sign as to what is actually going on here.

And this also means that while Logan is correct in noting that the mere act of registering with the police such individuals as may have been convicted of a crime is not “in principle” unconstitutional, yet what is going on with registration-and-notification, especially when prior to any specific notification the general public has been primed by that Certification of Monstrousness, is indeed something new and ominous in American law and law-making.

Giving the talk on which this article is based in Massachusetts, Logan notes – relevantly – that Massachusetts was the last State (in late 1996) to pass the federally-mandated registration system that was mandated by the Wetterling Act in 1994. That State realized that there were significant difficulties in reconciling the federal Act with its own Constitution and Declaration of Rights.

And by 1996 only 17 States had seen their way clear to adopt ‘notification’ of some sort.
But then in 1996 Congress ‘helpfully’ passed a federal version of New Jersey’s Megan’s Law and mandated notification.

And in the same year passed the Lychner Act which started up a federal database to collect and disseminate the names on all the States’ registries. And Congress improved upon itself by coming back with more impositions in 1997, 1998, and 2000. And in 2003 passed the PROTECT Act which mandated States to put their registries on the internet.

And then (will future historians ever be able to discuss this era with a straight face?) the Adam Walsh Act (AWA) came along for consideration in 2005, under the aegis of Congressman Foley (R-Fl) who was himself just about to be exposed for his carryings-on with underage male Congressional pages and forced to resign in disgrace.

But the AWA raised matters to a new level.

It makes it a federal crime for anyone who has to register to knowingly refuse to register.
The registration requirement is triggered by moving to another State (or – accounts differ here – merely traveling across State lines).

Further, the Congress invoked its Commerce Clause authority (its clear Constitutional authority to regulate interstate commerce) although it made no Findings that justified its assertions that such moving (or mere travel?) had any effect on interstate commerce at all. I suspect that to try to justify this gambit with such Findings was too much of a stretch even for Congress (which, considering its record of Findings in prior sex-offense legislation, is saying quite a bit indeed).

And, Logan reports, not even the Hearings leading up to the AWA’s passage offered any sort of information that would justify the ‘commerce’ angle or any “need for federal entry into the field”.

There were, however, “vague claims about ‘state loopholes’”, which gives the impression of a Congress trying very hard to nail down (let’s not say ‘screwing’) anybody convicted of a sex-offense whom any State had discovered or determined to be ineligible for registration or for serious classification. In light of the Certification of Monstrousness point I made above, this starts to look like an intensifying persecution, reaching out now even to those whom States had perhaps determined to be non-threatening.

And after all, a mania, once ignited, is indeed verrry hard to stop: Congress has now inflamed public opinion nationally with its original sex-offense Findings, and it will be hard to say No or explain why – suddenly – what you previously had billed as a major national emergency is now not really that at all. Additionally, to make such an admission – even if only implicitly – leaves the authority and perhaps even legitimacy of current legislative processes vulnerable to serious doubt. And that also might implicate the legislators themselves.

And this impression is strengthened when it is recalled that the AWA classification requirements are based not upon any individual assessment of dangerousness, but merely on the fact of a conviction for any of the listed sex-offenses.

Which, of course, also wrecks the procedures of those States that had chosen years ago to conduct individual assessments before registering and classifying any sex offender. Which includes any States which adopted such procedures in order to satisfy the demands of their own State Constitutions.

Logan notes that in prior ‘interstate commerce’ legislation in regard to criminal activity, courts – including the US Supreme Court – had required that the crime actually required some type of ‘interstate commerce’ involvement as part of the actual intent to commit the crime. But AWA requires no such intent, nor the involvement of any crime at all – the mere fact that one had been at one time convicted of a sex-offense is sufficient, the legislation insists, to trigger the ‘commerce’ authority. “An individual need only travel to another state and knowingly fail to register.”

Some lower courts have tried to help Congress out by asserting the rationale that the Commerce Clause authorizes the federal government to regulate “persons or things in interstate commerce” generally. But this opens the door to the old Soviet practice of requiring everybody to have police permission before traveling outside of their area of residence – and carrying ‘papers’ to prove that they have such authority.

And surely the Framers, intent as they were on confining the governmental authority precisely so that it would not stifle the vital interactions upon which civil society and American (as opposed to European and monarchical) traditions of wide liberty possessed by the citizenry. It’s one thing – and both practical and necessary – to give the federal government authority over disputes among States regarding interstate commerce (if you were running a canal or a railroad or an interstate highway through several States, for example, or to ensure uniformity in rates, tolls and taxes on goods thereby carried).

But it’s something else altogether to claim that the federal government can say who can travel freely, and who cannot. And when I say this, I most surely disagree with any assertion that the ‘mere’ fact of registration-and-notification can’t be construed as an affirmative disability on somebody so convicted. Given the now ubiquitous public priming through the nationally publicized and federally proclaimed Certification of Monstrousness, no sex-offender is going to be genuinely and actually ‘free’ to conduct interstate travel.

And what about vacation that crosses State lines? Is that in any Constitutional sense “traveling in interstate commerce”? You might want to rent the video of Clint Eastwood’s “Firefox” to see what it’s like to try to travel in a country where “travel” is considered to be primarily a suspect-activity which the government polices through check-points and special ‘internal border police’ (and, always in the background, the KGB). AWA starts America in this direction – and from the trajectory and increasing intensity of this type of laws – it’s not at all ‘alarmist’ to think that such restrictions are closer than anybody would care to think.

Logan goes on to note the danger of ‘over-inclusiveness’: that there are now so many persons registered (and thereby Certified as Monstrous) that the public will not be able to distinguish the ‘nominal’ sex-offenders from those who might reasonably be assumed to constitute an on-going risk.

He ventures that “Congress presumably felt that the seriousness of the prior offense, in itself, is predictive of recidivism, a probabilistic inference plainly subject to dispute” [italics mine]. Which is a nice way of saying that Congress has chosen to continue to believe its own propaganda, those original Findings about the astronomical rates of general sex-offender recidivism and monstrous and incorrigible compulsion that are now demonstrably inaccurate, either by being grossly exaggerated or outright wrong.

But he notes, on the positive side, that “Congress has recognized the need to study the question of how best to effectuate registration and notification, requiring, inter alia, that in the coming months the U.S. Attorney General produce a study of the effectiveness of risk versus offense-based regimes”.

Which is a good thing. But can it be honest? Because if the word comes back from the AG that risk-based is really the only accurate way to go, then the entire law is undermined and the States have to go to risk-based assessments. Or else the feds have to set up their own ‘assessment organization’ – which is going to be an ‘insult’ to the States’ prerogatives under the Constitution. Is Congress really going to leave itself open to that?

Or does Congress (slyly?) figure that the AG will helpfully and conveniently ‘report’ that offense-based is either the best way or else a ‘reasonable’ way considering just how much time, effort, cash and Constitutional complications will figure into switching to some risk-based scheme?

And in any case, shouldn’t this type of study to ascertain the answer to this clearly huge and fundamental question be completed BEFORE the AWA law is passed? Or – now at this point – shouldn’t it have been completed before the AWA law was passed? Just how much serious deliberation (and honest adherence to rational procedure) has Congress really put into this AWA thing?

It just doesn’t add up. It doesn’t make sense. Unless there are ulterior agendas that Congress doesn’t care to bring out into the open.

So when Logan expresses some polite hope that in requiring some study – any study at all – then at least Congress is starting to make some effort to be “empirical” about sex-offense laws, I can’t take too much comfort. Because if the true facts are ‘accepted’ by Congress, then it is going to have to a) explain to the public how it ever came to accept the grossly exaggerated untruths that it accepted in the first place, and b) expose itself and its assorted pressure-group constituencies to the bright light of day. And that’s probably a little more adventure than a sitting politician likes to undertake.

And Logan notes incisively that if ‘seriousness of offense’ is a useful predictor of recidivism, then murderers should be the most recidivistic of all. And yet they are the least – as a class, if I recall, they recidivate (sorry) at a rate even lower than almost all the subsets of sex-offenders, which is a low rate of recidivism indeed.

Congress does, Logan sees, put on a decent show of respect for State Constitutions: a State does not need to adopt any of AWA’s requirements if to do so would conflict with its own Constitution.

But again, then, Congress will require that the State’s own Supreme Court make that judgment formally; Congress will not accept even an Act of the State’s legislature as sufficient guarantee. So much for ‘partnership’.

And if a State’s highest court does so adjudge, then that doesn’t settle anything after all because then the U.S. Attorney General and State will have to make “good faith efforts to accomplish substantial implementation” of the AWA and to “reconcile any conflicts” between AWA and the State’s Constitution.

But how can you implement AWA substantially if the very substance of AWA violates your State’s Constitution? And how can you reconcile such a “conflict” when it is clearly an either-or proposition: offense-based or risk-based? How on earth can you do that? How on earth does all this nice language really make any practical sense at all?

You know what I think? I think that this is another example of “expressive law”: Congress has gone and made an impossible law, just to ‘send a message’, and to keep certain vocal and volatile groups happy, and it really doesn’t give a hoot about whether it’s a ‘good’ law or even a workable law, or about any awful precedents it may be setting, or about any truly awful doors it may be opening, or about any wrack and ruin it's causing to anybody its carpet-bomb law happens to hit.

And as far as all that is concerned, I think that the legislators’ approach is something akin to: we did our job and passed it, and now it’s the courts’ problem or somebody else’s problem, but it’s not our problem.

Well, I’ve always worked on the assumption from civics class that the job of the Legislative Branch was to craft well-made, effective, Constitutionally acceptable laws, even ‘wise’ laws.

And that’s their job. And if they see it as a ‘problem’ and don’t see it as their job, then they need to tell Us that so that We The People can thank them politely and proceed forthwith to make other arrangements. Arrangements more in line with the American tradition and American ideals. And with the Constitutional vision itself. For which We The People are ultimately responsible, since in a democratic Republic the buck stops with The People.

Since he’s speaking in Massachusetts (a risk-based State, one of about 15), Logan predicts “some interesting times” for Massachusetts, since AWA is going to require that the State “consult” with the feds about the meaning of its own Constitution. Which is, Constitutionally speaking, just short of blasphemous – this is not at all the way the Constitution arranged the relationship between the several States and the Federal government.

The Framers would be outraged. Although, since in 2002 New Jersey dropped the teaching about the Founders and their vision from its history requirements for students, maybe a whole generation of Americans in that State won’t even realize it.

Bah. Phooey.

But New Jersey, notorious home of Megan’s Law and the Poritz case, recently (2007) ordered a study to see if these things even work at all. And that, surely, is something to pin some hope on.

But one robin does not a Spring make. And they say there aren’t as many birds as there used to be.

In any case, We had best plan to do some serious work as Citizens if We have any hope of retaining the Republic that was handed down to Us, and that We are supposed to preserve and hand on to future generations (untutored in the vision of the Founders, alas, as they may be).


*First, go to and then on that screen click on the 'Download' link. That will offer then offer you any of several links you can click to get to the actual pdf of the article; I usually click on the first link on the left as you look at the screen. Or you can google the title of the article and click on the SSRN link there.

**So, for example, it is to this day unknown who kidnapped Jacob Wetterling or why in 1989; as is also the case with Adam Walsh in 1991. There is substantial ground to doubt that the truly deformed murderer of Megan Kanka was indeed ‘unknown’ to the parents in her neighborhood.


If there are about 650,000 registered male sex-offenders now (let’s not try to imagine how many dozens of thousands have, as some say, evaded registration), and if there are 150 million (or less) males in the country, then by my count 1 out of every 230 males in the country is on a sex-offense registry. If, as some assert, there are another 100,000 who have evaded registration, then that makes it 1 out of every 200. If AWA now goes into effect, it’s going to go down to 1 out of every – what? – 175 males?

There’s something verrrrry odd – and verrrry not-quite-right about this.


For another examination of how Congress can write a nice-sounding, well-intentioned Law that undermines all sorts of important Constitutional things, see my immediately previous Post on the Matthew Shepard Act.

Monday, October 12, 2009


(I put this Post up on my other site a few days ago. It is not directly an SO matter, but I think that in reading it you can see just how laws are being made, and especially in regard to the role of the Federal government in the expansion of laws and the police power. And this is true especially in light of the second Note I just added to the immediately preceding Post looking at Wayne Logan's new book.)

I’ve just had a chance to review the text of the Amendment attached to the current Defense Authorization Act; the Amendment is fully entitled “The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act”.*

This is not intended as an exhaustive review and I am not a lawyer. But these are my impressions, and I will only deal with the parts of the thing that strike me as significant.

First, it’s always important to look at the legislative “Findings”: these are the ‘facts’ – as the legislators have chosen to see them – upon which the Act will be justified. These Findings constitute Sec. 4702.

Finding 1 asserts that “The incidence of violence motivated by the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of the victim poses a serious national problem”. Well, I am no supporter of violence, but that includes the violence latent but potential in poorly thought-out laws that can have hugely unintended but perfectly forseeable consequences to a democratic politics and a Constitutional Republic. So I’m still looking at the tires on this thing.

Second, it’s clear that Congress is trying to cut itself in to a place at the table by claiming it’s a “national problem” – which is true if you mean that this stuff goes on in every State, but every State has laws against ‘violence’ and an assault or an assault-and-battery or anything worse along that spectrum is already illegal in all the States and has been all along. Curiously, this getting-a-place-at-the-table is the same type of objective that got Us into Iraq and so on throughout what is becoming the Beltway attempt at creating a Greater Southwest Asia Co-prosperity Sphere; methods of operating migrate in the hothouse of the Beltway, don’t they?

Ditto that it’s a “serious” national problem, as so many things are. But again, this starts Us towards the ‘emergency’ element that has already been seen in a lot of prior laws of this nature (I’ll discuss my thoughts on that ‘nature’ below.)

And of course, if it’s an ‘emergency’ then a) We shouldn’t waste precious time deliberating or even understanding the Act, and b) if it’s an ‘emergency’ than Congress needn’t be held to the high standard of actually coming up with a completely thought-through piece of legislation. We’ve been seeing a whole lot of this in the past 15 or 20 years.

Finding 2 observes that “Such violence disrupts the tranquility and safety of communities and is deeply divisive”. Yes it would tend to do that, although there are a lot of divisive things that really need to be looked at, not simply accepted as the latest Congressional whizz-bang. And the deepest “divisiveness” in the national community these days is not caused by the “violence” – which is still rather rare (though awful when individual acts are perpetrated) and is always under the judgment of State criminal laws.

Rather, it is Congress’s decades-long baaad habit of trying to score points with this or that lobby or advocacy by trying to play Big Mama or Big Daddy; no wonder it seems at times that Our national community has become as divided and bickering as a dysfunctional family in a Tennessee Williams play.

Finding 3 assures everyone – including increasingly restive State officials who are still trying to get their minds around – say – the Adam Walsh Act of 2006 – that “State and local authorities are now and will continue to be responsible for prosecuting the overwhelming majority of violent crimes in the United States, including violent crimes motivated by bias”. Gee, that’s nice but the Constitution already has given the States that authority and they don’t need Congressional ‘permission’ or ‘approval’ to do their jobs.

But the Finding then goes on: “These authorities can carry out their responsibilities more effectively with greater Federal assistance”. Well, while I hold no brief for the gentleman, Ronald Reagan got a lot of mileage out of the ambiguity of that old exclamation ‘I’m from the Federal government and I’m here to help’. Looking at the economy, the war(s), and a whole lotta other ‘great’ Federal ideas, I am not reassured.

Finding 4 then exclaims that “Existing Federal law is inadequate to address this problem”. Well, first, which problem? About the violence or about the Federal intrusiveness or about the Federal intrusiveness with ill-considered or genuinely baaad ideas?

And second, Federal law is “inadequate” because it’s not supposed to be here, not to put too fine a point on it.

Finding 5 says that “A prominent characteristic of a violent crime motivated by bias is that it devastates not just the actual victim and the family and friends of the victim, but frequently savages the community sharing the traits that caused the victim to be selected”.

First, I am really put on guard when they start using vivid, emotionally extreme language: this strikes me as the old Goebbels trick of whipping up the public opinion into a frenzy, and while the now-agitated herd is thus kicking up dust then Berlin can quickly issue a new Decree or ‘Emergency Law’ that nobody looks at carefully. We are Citizens, not the herd in the background of a Wild West movie. “Devastates”, and “savages” are too much of too much, and it betrays a certain insidious manipulation that I will not simply accept as a ‘good PR ploy’.

And this is all part of the now way-over-the-top ‘victimism’ philosophy that all people are essentially helpless and psychologically fragile and need Big Mama/Big Daddy to make life bearable for them.

Finding 6 says “Such violence affects interstate commerce in many ways” and it goes on for a bit in that mode. This is the new ploy: to base Congressional and Federal intrusions on ‘the Commerce Clause’ – that section of the Constitution which gives the national government authority over “interstate commerce”. Apparently that “commerce” is defined now to include any travel for any purpose, or any communication for any purpose, that crosses – actually or virtually – a State line.

This is a profoundly dangerous expansion of the definition of “interstate commerce” and “commerce” in general. A crucial insight of the Framers was that the free exchange of persons and ideas and their efforts constitutes the lifeblood of a society, especially the vigorous and vital society that ‘Americans’ were expected to create through their now-freed-up energies, unhindered by monarchical restrictions to keep the peasants and subjects in their place and in one place.

This whole trend in Congressional expansion reely reely needs to be looked at.

Yes, persons are sometimes given pause when going into particular situations or places – but that goes with the territory in a free and – may I? – diverse polity. Bad things may happen here and there, but the Federal government is far too blunt an instrument to be used in threading the needle to stitch the fabric in the marvelous web of society’s interactions.

Finding 7 then goes on to talk about “slavery” and how it was “defined by race, color or ancestry” of those held in bondage”. First, again, this is an excessive historical reference, and smacks of the Goebbels play again. Are We back to ‘slavery’ now? And do these incidents – awful and violent as they are – constitute a national emergency on the level of ‘slavery’?

Thus when the Finding goes on to teach Us that “eliminating racially motivated violence is an important means of eliminating, to the extent possible, the badges, incidents, and relics of slavery and involuntary servitude” I start to wonder if this is an attempt to replay the strategy of the Civil Rights Act of 1964 (a much more judicious and well-grounded Act) and hope that the strategy here will have that same level success, 45 years later in a verrrry different matter.

But of course, the plan here is precisely that: to re-ignite the old ‘flame’ of 1964 and use its bright and urgent aura to slide yet another ‘emergency’ into the national stew, already bubbling with a number of already-stoked ‘emergencies’ in the past few decades.

Finding 9 then leaps into the dust-shrouded space that the foregoing Findings create: “Federal jurisdiction over certain violent crimes motivated by bias enables Federal, State, and local authorities to work together as partners in the investigation and prosecution of such crimes”.

Well, that’s really nice. But the FBI is already around to be called in when needed by those State and local authorities. (The government’s hidden kicker in all this apparent bonhomie will appear later in the text and I’ll get to it when it comes up here.)

And Finding 10 caps it all by deciding that “The problem of crimes motivated by bias is sufficiently serious, widespread, and interstate in nature as to warrant Federal assistance to States, local jurisdictions, and Indian tribes”. Uh-huh. Once again, the kicker will come a bit later on in the text.

And there’s that “interstate” angle again.

And – permit me a moment of historical awareness – let Us recall that the experience of the “Indian tribes” with the Federal government has been decidedly mixed in the past three centuries, not to exclude the “Indian Wars” where the tribes were pretty much exterminated. And that just goes to show that the Feds’ arrival on the scene bears more than a little resemblance to a knock on a Transylvanian cottage door in the middle of a dark and stormy night: garlic and a cross are recommended to the wise householder.

Section 4703 – “Definitions” – adds “gender identity” after the already-established “gender” in the list of covered crimes from that far too un-studied Violent Crime Control and Law Enforcement Act of 1994 (which year, I still say, ranks as one of the more ominous in the history of American law, which says a lot in such a crowded field).

Section 4704 authorizes the Attorney General to “provide technical, forensic, prosecutorial, or any other form of assistance to criminal investigation of any crime” covered by the Act. But doesn’t the FBI do that now? But of course, the “prosecutorial” is not part of the FBI menu of available services, and that’s a slip-in that can open up huge new vistas for the national government in these matters.

Of those covered crimes, sub-section C lists any crime of violence, already a felony under State, local, or tribal laws, that “is motivated by prejudice based on actual or perceived … gender identity”. And my concern is just how they go about determining the “perception” or “motivation”? This is where the “thought crimes” opposition, I imagine, comes in currently among dissenting legislators and others. Perhaps you have to yell out some epithet that reveals your opinion of the person you’re about to wale on? Although it’s not hard to imagine that a fistfight started over a motor vehicle accident, say, can suddenly become a classic ‘Federal case’ if you happen to bolster your position by yelling some epithet while delivering a left-hook or a hay-maker.

We are, I imagine, meant to trust the local US Attorney to use his/her discretion in whether to make a Federal case out of it – that doesn’t really reassure.

Then they sweeten the pot with “Grants”: The Attorney General can award grants to State, local, and tribal law enforcement for investigation and prosecution of these crimes. Well, this gambit has worked well enough before and for quite a while now. The local police get the promise of money if they go after these crimes (nor perhaps will the actual use of those funds be strictly audited) – verrrry neat.

But it’s 2009 and there isn’t that much money going around anywhere, including the Feds who have simply been printing the stuff for quite a while, though there is nothing being produced to actually ‘back up’ the paper money any longer.

And I think, if State reservations about the Adam Walsh Act requirements among others is any indication, that a lot of States are now realizing that ‘Federal grants and monies’ cost a lot more than they’re worth.

But Congress is, here, running the plays that worked so well in the whoopee days of the 1990s, and those days are gone, baby, gone.

But not to worry. Congress, this time around anyway, wants to see some Reports, and “not later than December 31, 2011”. But not about whether any of this plan is working; just about how the monies, in general, have been distributed – which is not so much a Report with any analysis of the real important questions, but rather an accounting sheet with Who applied and For how much and What amount was granted.

Section 4705 gets a little meatier, by which I mean ominous. Sums will be appropriated “as are necessary to increase the number of personnel to prevent and respond to” these types of crime.

First, the actual types of these ‘personnel’ is left unsaid: clerks and typists and data-entry folks? Sworn police personnel in some new police agency?

Second, you have to note that “prevent” … are We taking yet another foray into “preventive” policing? This is the ‘Minority Report’ gambit of going after folks before they have committed a crime – which is to say before they have committed any crime and therefore when they have actually done nothing against the law. And this is sooooo not-good from the perspective of any traditionally American vision of how law works in Our free society.

Section 4707 – thankfully – defines “Hate crime acts” as requiring the infliction of willful bodily injury or death or the attempt to cause same on the basis of a target’s “actual or perceived race, color, religion, or national origin”. Although it goes on to add ‘especially if’ “the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill”.

But then there’s nothing about “gender identity” or even “gender”.

And while I hold no brief for genuine sexual abuse (let alone aggravated), that definition has proven to be hugely vague and elastic in prior legislative efforts, and while such vagueness gives prosecutors all sorts of nice leeway to achieve their purposes, it isn’t a really wise path for any justice system to take.

And it goes on about if a perpetrator uses “a channel, facility, or instrumentality of interstate or foreign commerce in connection with” the commission of the crime or “interferes with commercial or other activity in which the victim is engaged at the time of the conduct” or “otherwise affects interstate or foreign commerce”, then the sentences or fines are a lot stiffer.

This could mean a telephone conversation to somebody in another State – although you might make a case that simply because a telephone can be used in interstate commerce then any phone call will do. That’s what vague laws can result in.

And again, this trend toward using ‘interstate commerce’ as a legal hook for Congress to break open space at the table is starting to grow and expand. And ‘breaking open’ means breaking down the walls that the Framers built to protect local and State society from national decrees, even if they are ‘well intentioned’ and ‘in a good cause’.

And of course that “otherwise interferes in interstate or foreign commerce” pretty much removes the wall altogether.

But 4707(b)(1) then reassures that “No prosecution of any offense described in this subsection may be undertaken by the United States, except under the certification in wiring of the Attorney General or a designee”. Well, OK, but that’s like saying that no Soviet military operations may be undertaken without the written approval of the USSR Minister of Defense. Just how hard is it going to be to get that “certification”?

And that “or a designee” – which could, according to this law, be just about anybody.

BUT THEN – and here’s the kicker – Section 4707(b)(1)(C) includes among the justifications for such “certification” that “the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence”.

So indeed then. If a State doesn’t produce a verdict that Washington likes, then the Feds can take over and do the job themselves.

I don’t like this at all – because the whole idea of States taking care of their own criminal justice is a key element in the entire federal arrangement set up by the Framers and their Constitution. So here, again, Congress’s “partnership” and “assistance” turns out to be window-dressing for something else altogether.

And it means that once Congress has decided to give something to one of its seemingly endless list of Identities, then the overall herd of the citizenry – the members of State juries – can be told to go take a hike if they don’t come up with the verdicts Congressional legislators want their favored Identities to get. And with all due respect to anybody’s suffering and outrage, this is really not a wise move on soooo many levels.

Further, immediately thereafter, Section 4707(b)(1)(D) adds that the Feds will take over if “a prosecution by the United States is in the public interest and necessary to secure substantial justice”. How can it possibly be in the public interest for the Feds to override State criminal juries?

And just what is “substantial justice”? I think – and I’m no lawyer – that this has something to do with a distinction between what law schools have taken to calling “procedural justice” and what they have taken to calling “substantial justice”. We really have to pay more attention to what they’re teaching in the law schools now – and have been, I think, for some decades now.

“Procedural justice” is what the average Citizen would consider to be the way things go in the American tradition as set up by the Constitution: you are charged, indicted, tried before a jury while represented by counsel, and the jury makes its decision and that’s that.

“Substantial justice” is hell and gone from that: if the alleged victim doesn’t like the jury’s decision, or if the Feds find the jury’s decision politically inconvenient, then clearly the victim has not received “substantial justice” and thus the Feds have to step in to try the case over again and get the Correct verdict. And this is not good at all. It undermines all sorts of very profound and deep public things that I’ve mentioned so far.

Again, thankfully, the law includes a “Rule of Construction” in Section 4707(b)(1)(D)92): that “the term ‘bodily injury’ … does not include solely emotional or psychological harm to the victim”. So at least We are spared a torrent of virtually unprovable claims of ‘stress’ or such internal conditions (not to say phantasmagoria) for which, really, only “spectral evidence” such as was presented to and accepted by the Salem Witch Trial court provides any ‘evidence’ at all.

‘Spectral evidence’ is evidence that only the alleged victim can ‘see’ and nobody else can so you have to take the alleged victim’s word for it. People have died from such ‘evidence’.

And there is a statute of limitations, nicely – 7 years.

Sec. 4710(1) adds another Rule of Construction: “Noting in this division shall be construed to allow a court, in any criminal trial for an offense described under this division or an amendment made by this division, in the absence of a stipulation by the parties, to admit evidence of speech, beliefs, association, group membership, or expressive conduct unless that evidence is relevant and admissible under the Federal Rules of Evidence”.

This seems to me to be a nice way of saying Yes but No. Your religious beliefs or group membership cannot be considered evidence against you, UNLESS the evidence is relevant – but of course, ‘relevance’ is in the eye of the beholder; the beholder being, of course, the very Feds who will be taking over the case.

And the Federal Rules of Evidence have been rather significantly skewed in the past 15-20 years, in favor of making things easier for Congress’s favorites to get the outcomes they want, so this is a classic protective wall with so many holes in it that it can’t support or protect any defendant as well We would like to assume. But the law goes on to make all the right noises.

Sec. 4710(3) piously insists that “Nothing in this division, or an amendment made by this division, shall be construed or applied in a manner that infringes any rights under the first amendment to the Constitution of the United States”.

Bravely spoken.

But immediately the kicker: “unless the Government demonstrates that application of the burden to the person [the accused, I imagine] is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling government interest”. So your First Amendment rights (noticeably un-capitalized in the text of the law) are not to be infringed, unless “in the furtherance of a compelling governmental interest” … which is no guarantee at all.

The government, of course, gets to define what its “compelling interest” is, and We have seen in the Findings at the beginning of this thing that the government considers the whole thing to be a national emergency of the first priority. So do the math.

Sec. 4711(4) directs that “All prosecutions conducted by the United States under this section shall be undertaken pursuant to guidelines issued by the Attorney General, or the designee of the Attorney General … that shall establish neutral and objective criteria for determining whether a crime was committed because of the actual or perceived status of any person”.

First, you note that Congress fully expects that it’s going to be ‘taking over’ cases for Federal prosecution, whenever it doesn’t like the State jury’s verdict.

Second, the “neutral and objective criteria” mean that Congress and the Feds will presume that if they don’t like the State jury’s verdict, than that means that the State jury was not “neutral and objective” and so the Feds will have to come in to right the wrong. The ‘wrong’ being, again, that “substantive justice” was clearly not done since the alleged victim (or a Beltway lobby advocating for the victim’s Identity) is still displeased with the outcome.

One cannot ignore the similarity of this gambit to the legal strategy of that government which for twelve years following the fall of the Weimar Republic operated on the principle enunciated in the so-called Nacht-und-Nebel law (tr. Night and Fog): if Berlin doesn’t like the outcome of the trial, the procedurally acquitted former defendant may be taken directly away by the Gestapo for further and more ‘substantial’ ‘justice’ in a black SS van parked, conveniently, at the foot of the court-house steps. And it was all legal.

The purpose of this law was to remind the courts, the jurors, the counsel, and all the on-lookers that you’d better do things Berlin’s way because no court and no law and no jury of your peers can save you.

I don’t think this is really the path We want to be taking in a free Constitutional Republic where the federation of States in their federal commonwealth retain serious authority to manage their affairs, responsive to their local Citizen and where the integrity of the justice system and of the government itself rely on the confidence of the Citizens.

Sec.4712, shrewdly, goes into something else altogether: making it a Federal crime to assault or batter a United States serviceman or an immediate family member “on account of the military service of that serviceman or status of that individual as a United States serviceman”.

This may well be an added strategic legislative ploy and cover for tacking this entirely dubious law onto a Defense Authorization bill.

And it looks like Congress is looking to protect troops from public opprobrium ala the Vietnam era as the nation – thanks to the Congress – descends into the quagmire of yet another, even more frakked up, foreign military misadventure and promises to enter into even more in the future.

But “simple assault” is verbal, so it’s a Federal case to repeat those Vietnam-era harangues of servicemen that used to make the nightly news.

And if you haven’t been keeping up with the definition of “battering” on the Domestic Violence scene, that needn’t involve physical contact or even any physical presence at all – it can be done over the phone, or – I suppose nowadays – by Tweet, Twitter, or email.

And – who can overlook it? – despite all the brouhaha about Congressional support for feminism and women in the military, the text of the law refers to “serviceman”. In case you thought the authors of this thing had really read it after they’d stitched it together.

Well, that’s my review of this law. I’d add a couple more thoughts of my own.

First, I think that after almost half a century We have to consider whether the so-called ‘civil rights strategy’ is really the right way to proceed.

In the Fifties and early Sixties just about the entire country (with the exception of numerous Southerners) could and did agree that ‘slavery’ and ‘discrimination’ – especially the still on-going practices of Jim Crow – were wrong, bad, and needed to be finished off once and for all so that the country could get on with things with a clear conscience. (And there were sooo many things that the country needed to be dealing with – including how it was going to pay its way in a world rapidly building and re-building after the wrack of 1914-1945.)

But having observed the effectiveness of the Civil Rights Movement in its halcyon phase up to mid-1965, many other groups in those days of revolutionary excitements decided to adopt a ‘civil rights strategy’ for their own desired agendas.

And thus for decades now We have been confronted with the same play: sensationalist stories of this and that ‘outrage’ and the pointing-out of those who are deemed ‘guilty’, then vocal demands issued by ‘advocates’, then much Congressional harrumphing and stentorian brays, then this or that new law – with all its attendant regulations and implementing bureaucracies – is suddenly produced, nor is anyone supposed to kick any tires, since ‘it’s an emergency’ and to do so would be ‘insensitive’ and even more ‘oppressive’.

But the strong national consensus that existed over the rightness of eliminating ‘slavery’ and Jim Crow’s type of racism did not exist and does not exist for the imitator-emergencies that have followed 1965. Thus We have been seeing ever-intensifying ‘rushes’ of the game-plan, to side-step, rather than face and overcome, public doubts and the need for a genuine deliberation. All with the help of a Congress that seeks only to garner the votes assumed to be the reward for its cooperative legislations, and a Supreme Court that kinda likes the excitements of making stuff happen. Any stuff, even.

And now this – where Congressional backers of a dubious initiative literally Trojan-horse their plan, even in the sure and certain awareness that many will find out about it and it ain’t gonna look good, into a major Bill (the military budget) where it certainly doesn’t belong, just to make sure that the appropriate pressure-groups are satisfied. And – I think – like slightly shaky Mob bosses, to show that they can still ‘deliver’.

This wouldn’t be a good thing in the best of times. Let alone now, when We are no longer in the best of times.

And whereas you could understand how Southerners of the era were indeed 'responsible' for Jim Crow and all its frakkery, and endure a certain amount of national civic upset while showing them the error of their ways and making things right, it's hardly wise for any government to continually bethump its own Citizenry with wave after wave of accusations of this or that type of suddenly-discovered 'oppression'; waves sustained over decades and - as We see - clearly not over yet.

Nor is it then so surprising that even after the stunning frakkery of Bush 2, and the alternative of Palin and the man who selected her as his running mate, and an economy gone into a terrifying nosedive, the Democrats barely squeaked by in the last Presidential election. All those decades of scoring points by waling on the general citizenry to the delight and satisfaction of their favored Identities bore their predicatably bad fruit in 2008.

And second, I think this law is another in a disturbing and increasing line of “expressive laws”.

This is another of those things they’ve started teaching in law schools. The theory of “expressive law” roughly holds that legislators, especially on the Federal level, can and should make laws whose primary objective is to ‘change the mood’ or ‘change the tenor’ of public attitudes. Whether the law is actually a coherent and workable law, whether it sets wise legal and even Constitutional precedents … are secondary if not indeed irrelevant concerns.

Thus, for example, 15 long years ago, defending his “Violence Against Women Act” in 1994, one then-Senator could blurt out happily that “it may be a bad law but it sends a great message!”. I recall thinking at the time that this seemed a particularly not-good thing for a Senator to be thinking, and one who is – I think – a lawyer to boot. (Parts of the law were soon declared to be unconstitutional by the Supreme Court, not that it seemed to bother the then-Senator.)

And - knowing as We do now how concepts tend to 'migrate' in the busy hothouse of the Beltway - imagine that concept migrating: It may be a bad economic policy but it sends a great message! It may be a bad war but it sends a great message! Torture may be a bad thing to do but it sends a great message! Or, more to the point in this forum: Sex-offense legislation may be bad law, but it sends a great message! ... You see where this sort of thing can go - and clearly already has gone.

I think what they’re trying to do is to get folks to change their opinions and deep-seated attitudes, and using the threat of the law to do it. It has served Identity Politics and Multiculturalism well, but then there’s the still-open question as to whether those concepts – in their full and not just their smiley-face form – are really wise or workable at all. I can see why this law’s supporters and advocates are wiling to risk so much to sneak it in on the back of an indispensable military-budget bill.


*It’s a little bit of a job to get to the text but it can be done. Go to ; don’t be impatient, this is a 1500 page document. In the text as it should appear, the Shepard Act takes up pp. 1471-1493, which are Sections 4701-4713 of the entire 1500-page text of the Defense Authorization Act. As you can imagine, all of this is down towards the very end of the document.


Let me say here that I hold no brief for any violence exerted by one person upon another and that what happened to Matthew Shephard and James Byrd, Jr. were outrages and vicious crimes.

But I say as an American that We can't be using the Federal law as the national 'fire truck' in these matters. The States have the power they need to prosecute such crimes. And if juries of citizens can't be relied upon to do justice than the whole idea of the Constitutional vision might as well get tossed overboard. Which, it seems, is what Congress is trying to do, bit by bit. Whether it intends such a consequence or not ... is another question for another day (but We'd best not put that 'day' off for too long).