Tuesday, October 6, 2009



The Kentucky Supreme Court released its Opinion in the case of “Commonwealth of Kentucky v. Baker”*.

It’s got some interesting stuff in it, and also in the Dissent.

The Court holds that a Kentucky sex-offender (SO) residency requirement may not “be applied to those who committed their offenses prior to July 12, 2006, the effective date of the statute. Because, the Court determines, that “even though the General Assembly did not intend the statute to be punitive, the residency restrictions are so punitive in effect as to negate any intention to deem them civil”. And “therefore, the retroactive application of [the SO residency restriction statute] is an ex post facto punishment, which violates Article I, Section 10 of the United States Constitution, and Section 19(1) of the Kentucky Constitution”.

So, some observations on the Opinion.

The Court notices that “the statute also places the burden on the registrant to determine whether he is in compliance”. It’s up to every SO to do the measuring and figure out if now suddenly (or at some time in the future if they build a school or playground nearby) s/he is not in compliance. This is odd: usually in civil regulations the State or municipality sends an inspector around: Building, Food, Fuel Storage, Fire Safety, or whatever the case about your compliance-with-Codes may be.

But of course, in these SO laws two things, I think, are at work. First, the legislators don’t want to admit just how hugely demanding their schemes actually are; this reminds me of the Pentagon hiding photos of the return of caskets of troops killed in action, or the (you name it) Office jiggling figures and stats to prevent folks seeing just how costly some program or policy really is.

Second, such a requirement gives the government one more hook to nail an SO on. And so you might well see such hapless folk appearing anonymously in statistics about SO ‘re-offenses’ of SO laws – although they have not sexually reoffended, but rather didn’t do the measuring properly (or a new school or playground went up recently and they can’t find a new place to live).

In trying to figure out if the State Legislature (General Assembly, actually, so call it GA) actually intended the law to be punitive (if they did so intend, then the law is immediately unconstitutional), the Court observes that it looked to the legislative history of the law (what the legislators were saying and thinking when they were deliberating and when they passed it); but that when the Court did, the record was “extremely sparse” – which is a nice genteel way of saying that there is almost nothing on the record or in the record.

Why not? Because legislators don’t really want to be caught on record about their ‘deliberations’ in these tortured matters. Nice sound-bites for ‘on the record’ and the evening news, but they don’t want anybody at all hearing what they were actually saying and what thoughts they were expressing. And this strikes me as both very unimpressive and very suspicious and really not a good precedent for a democracy. And you could be forgiven for thinking that the legislators were very bloody-minded and punitive indeed, and their ‘civil statute’ assertion – utterly indispensable in all SO laws – is merely a pose to avoid the essential unconstitutionality of the whole SO scheme from the get-go.

The Bill was entitled “An Act Related to Sex Offenders and the Punishment Thereof” – and they voted it into law. The Court – rather too generously, perhaps – does not believe that the title of the Law “should be determinative in this situation”. Well, there may be some deeper strategy in the Court’s approach to this particular point, but I think it speaks for itself. Also – allow me a nitpick here – “thereof” sounds like it would refer to a ‘thing’ and not to a ‘person’ or ‘persons’ – so maybe the legislators were thinking of SOs as ‘things’ or maybe the ‘thing’ which that “thereof” actually refers to in their minds is the sex-offense itself … which means they want to pass this Bill in order to “punish” SOs, which is on its face evidence of unconstitutionality. I’m jus’ sayin’.

Anyoo, the Court decides on this point that the GA did not actually intend this law to be “punitive”.

But now it has to examine the effects of the law, to see if those effects are punitive whether they were intended to be or not.

The Court uses the five factors of analysis from the Smith v Doe case to determine if this is merely a civil regulatory scheme or is actually a form of added-punishment.

The first element concerns whether in US or Kentucky history and traditions have regarded this type of thing as punishment. As I have said before: this whole scheme is un-historical in US jurisprudence and legislation. It is an entirely new (to America) type of scheme and not-finding it in American history is irrelevant. In the general SO mania-law dynamic at work in all these laws, the Legislature ‘Finds’ that SOs are incorrigible and uncontrollable monsters who pose an ongoing threat to the very heart of communities and families and children and society itself – and that fact is amplified by the media uncritically (until recently, certainly). THEN when the ‘regulatory’ scheme is put into practice, the public has already been primed to think of anyone so ‘regulated’ as a monster.

Bingo. You have an endless feedback loop: the public has been primed by the government’s own official certification to see ‘registrants’ as monsters, and the genuinely awful punitive effects – the dirty work, as it were – are done by the public’s revulsion and fear. The government can sit there like Goldilocks and say that it didn’t eat the porridge (google it if you have to) and that it can’t be responsible for what the public decides to do.

This is new to America. But it is not in itself new. The Reich government did the same thing to the Jews and others in the early 1930s: first the Propaganda Ministry tricks public opinion into believing that a certain class are ‘dangerous to the Volk’, and then the Reichstag (or the Fuhrer by 'emergency' decree) passes a mere and harmless regulatory requirement that such folks have to wear a colored star – nothing so very bad. THEN, having already been programmed by the Propaganda Ministry, the German public recoils in perfectly predictable horror at everyone wearing a colored star – and takes its own unofficial measures.

This is the scam that’s going on here.

Do We really want to be starting down this path? (Cheney’s “walk on the dark side” hasn’t been enough for Us?)

The Court – not wanting to get quite that deeply into things – does indeed find a historical and traditional American precedent – banishment – and that most certainly was a punishment. In the early times when the country was still under the sway of things-Old World there was a legal option to ‘banish’ a convictee from a municipality or area or from the country itself. Then We grew up and got rid of it.

The second element concerns whether the Law promotes the traditional aims of punishment, retribution and deterrence. Here the Court notes that “there is no individualized determination of the dangerousness of any particular registrant” – it’s just the ‘conviction’ and not actually the ‘dangerousness’ of any particular individual that counts. Which is a significant thing in itself (and mimics the Adam Walsh SORNA scheme).

But then the Court raises a point which has received almost no attention over the years: “Even those registrants whose victims were adults are prohibited from living in an area where children gather”. Oh my yes. There are all sorts of SOs, and their ‘preferences’ (not intended to be snarky) mostly have nothing to do with children. And yet all this huge panoply of SO laws is loudly proclaimed to be ‘for the children’. What’s with that?

As I have said in recent Posts, all sorts of ‘alliances’ were made to create a large enough population of folks interested in seeing these laws passed so that sufficient political pressure (and threats) could be brought to the attention of legislators. But to help keep the public whipped up and so distracted that it would not think to look carefully at the overall schemes themselves, ‘the children’ were put out in front, like bank-robbers using kids as shields when trying to make their getaway with the loot. This is not good at all.

Thus, among other things, so many of these laws are entitled – and even their subsections are entitled – with a long string of names: so for example (and with respect to all the individuals those names represent) the “A-B-C-D-E-F-G Act to Protect Children” or some such; this is a subtle and I would say insidious ploy to keep the mania going. Please don’t tell me it’s just good ‘tactics’ or good PR; this is an attempt to conceal a baaaad bunch of laws by preying upon the public’s perfect human sympathy for innocents who have been awfully treated. This surely is an offense not only against democratic politics and Constitutional process but against human decency and morality and Truth itself.

What danger does an SO who offends toward adult women pose to children? To male children? Or what danger does an SO who offends towards adult males pose to children? Or, for that matter – to take a recent case in one of the southerly or westerly States – what danger does an adult who has sex with a Rottweiler pose to any human at all? Why does he or any of the foregoing examples wind up on a Registry to protect children?

The Court quotes Supreme Court Justice Souter in his (alas) Concurrence in Smith v. Doe: he was uneasy with “the absence of individualized risk assessment” – “When a legislature uses prior convictions to impose burdens that outpace the law’s stated civil aims, there is room for serious argument that the ulterior purpose is to revisit past crimes, not prevent future ones”.

Yes indeed. And worse – not that anybody in any of the Branches would like to think about it – that the ulterior “ulterior purpose” is to keep up the numbers of government-constructed ‘monsters’ and so keep the public mania whipped up to high pitch.

The third point asks whether these SO laws impose any affirmative disability or restraint. The Court does a nice – if not deep – job here: “We find it difficult to imagine that being prohibited from residing within certain areas does not qualify as an affirmative disability or restraint”. True enough.

But again, the actual core ‘disability or restraint’ results not so much from the direct requirements of the SO laws (not yet anyway) but from the scheme whereby the government through its legislative (and court-accepted) Findings has first publicly certified the SO as an incorrigible monster. And then the public – hugely predictably – imposes its own punishments on the ‘harmlessly’ tagged SOs.

The fourth point has to do with a rational connection of the law to a nonpunitive purpose: does this law “bear a rational connection to public safety” is the question here.

Again, the Court does a decent job, especially considering the general trend over the past 15 years. The law “prohibits registrants from residing (i.e. sleeping at night, when children are not present) within 1,000 feet of areas where children congregate, but it does not prohibit registrants from spending all day at a school or day-care center, or playground (when children are present)”.

Bingo again.

The fifth point has to do with excessiveness in regard to a nonpunitive purpose. Here the Court repeats that there is utterly no individualized risk assessment of any offender to determine if s/he actually does pose a credible threat. It rejects the Commonwealth which is repeating Smith v Doe, and instead the Court says that the refusal to actually determine (I would add, to the extent any ‘science’ of SOs would permit) if this individual – about to be the target of some very severe effects by government action – is actually a realistically probable danger actually constitutes a very excessive approach indeed.

The Court goes on to say that “We believe that the “magnitude of restraint” involved in residency restrictions is sufficient for a lack of individual assessment to render the statute punitive”. Good.

But let’s not forget that truly awesome and awful “restraint” imposed by that already-whipped up public, which as a direct result of government misinformation is treating SOs like monsters. This doesn’t figure into the analysis? If it doesn’t, then again I say that the overall judicial approach to the SO laws resembles nothing so much as judges ensuring that the SO's seatbelt is fastened before the mob pushes him and his car over the cliff, with the government and legislators standing by to piously assert that this was not any intended effect of the laws and Findings that they had previously published to the public.**

So much for the Court’s Opinion. And it’s a workmanlike, decent job indeed.

It split 4-2, with two Justices Dissenting. Only one wrote a Dissent, the other Joined with him.

The Dissent is a mother-lode itself.

The Dissenter first observes that “the General Assembly has engaged in an evolving effort to address the profoundly serious and vexing problems of sex offenders”.

Well, it’s nice that he says “evolving” – this lays the groundwork for claiming that even if the schemes so far have been a frak, they are “evolving” into something better. But if the scheme by its very nature is a replay of the Nazi colored-star-after-propaganda approach, then there is no way in God’s future that the plan can be ‘baptized’ into a good and Constitutionally useful plan. ‘Good intentions’ don’t enter into it.

Second, he presumes the validity of all those Findings which 15 years ago claimed to prove that sex offenders were indeed incorrigible, frequently recidivating monsters – and that ‘science’ has now got only modestly more credibility than the scientific theory of phlogiston (google it).

He then goes on to note that the law requires that “sex offenders and offenders against minors” register. There’s some interesting dark-space between these two terms. First, it hides the fact that the Registries are now being used against individuals who do something connected in some way to minors that is not sexual, and may not even require their physical presence or any contact with any actual minor at all (internet stuff).

Second, there’s that ‘space’ between ‘sex offenders’ and ‘offenders against children’. Some light needs to be shone into that space.

Then he gets on to the fact that courts should “defer” to legislatures in matters of making policy. True enough. In 1971 the Supreme Court took it upon itself precisely to declare that school-busing – which was expressly prohibited by Congress in the Civil Rights Act of 1964 – was actually a good thing AND THEN went on to demand that municipalities and school districts devise and implement such plans. This was clearly a case of the Judicial Branch not only imposing their own ideas which were expressly rejected and prohibited by the Legislative Branch, but then actually forcing public entities to obey the Court’s own plans.

But the Dissenter (slyly?) claims that the Kentucky Surpeme Court here is trying to do the same thing. That for the Kentucky Supreme Court to find that the Kentucky GA is actually trying to do something unconstitutional would be a violation of the Separation of Powers and the sign of an “activist judiciary”. But if that’s true, then there’s no reason for a Judicial Branch at all. What is being asked of the Court here, and what the Court is doing, is the genuine task of assessing whether or not an act of the Legislative Branch is Constitutional or not. This is precisely what the Judicial Branch is for in the Constitutional plan and vision.

Further, the Dissenter brings up the old “clearest proof” standard of Smith v Doe: that an SO would have to demonstrate “only the clearest proof”, because “only the clearest proof will suffice to override a legislative intent and transform what has been deemed a civil penalty into a criminal penalty”. But of course the Kentucky GA – like so many legislatures – shrewdly didn’t say anything about its intent, leaving – I imagine they hope – a court or the public to presume civil intent … while the awful punitive consequences of these SO laws grind merrily along.

To listen to these arguments is like listening to the Germans complain that their military operations were purely military and that they didn’t intend for a lot of civilians to get killed. What else can you possibly expect when you drop plane-fulls of high-explosive and incendiary bombs on a bustling city at lunch hour on a weekday? And much later, of course, it was discovered that such indiscriminate killings were actually part of a plan of Terror to frighten the population into submission and do what the frak it was told.

And as the court in US v Juvenile noted***, you can’t expect somebody to suffer a law’s bad consequences for an extended period before he can provide “the clearest proof” that the law is punitive. This is a Catch-22 from hell: you can't say you're going to be hurt by this law until it happens. You can't, therefore, tell the jurists checking your seatbelt that in a couple of minutes you're going to be severely injured indeed (once the mob pushes you over the cliff); the jurists will require that you not pre-judge and just what to see what happens when you and your car get to the bottom of the gorge.

The Dissenter notes with annoyance that “This ruling obviously deals a severe blow to the statute’s effectiveness and reflects, in my view, this Court’s failure to give due deference to the General Assembly’s [nonpunitive] intent”. I’ve already dealt with the ‘deference’ angle above. Here let me just repeat what I wrote about the Poritz case in that series of Posts: if a statute won’t work unless the Constitution is politely ignored, than the thing shouldn’t be on the books in the first place and the legislature made a hash of its job by passing it in the first place.

He goes on a bit later: “residence restrictions are not a traditional form of punishment and their punitive effects are not undue in the light of their important public safety objective”. As I’ve said, these things are not “traditional” because they were denied entrance into the American way of law and justice by the Framers specifically because they were toxic to the ethos of a Constitutional Republic and a free People.

And the only basis for “the importance of the public safety objective” in these things is the now “quaint” and discredited sex-offender ‘science’ and recidivism statistics from the bad old days of the 1990s.

So We keep getting this echo-effect where the original baaad justifications continue to be repeated (in good faith or in bad) by persons who want to see these things continue regardless of the Constitutional and human consequences.

And do they think that just because a consequence is “unintended”, that it is therefore somehow less damaging? Can you say “Iraq War”?

And again, the Dissenter writes that the law “leaves registered sex and child offenders completely free to live, work, and participate in the community”. But this, of course, is baloney because the community has already been primed by the government to see them as incorrigible monsters.

But then he offers a justification of the purpose of these things that I haven’t often seen: The law “seeks only to lessen the contact, and hence the opportunity for tragedy, between sex offenders and some of the community’s most vulnerable members”. Rather nicely said.

First, though, I have to throw the flag for his manipulative use of the emotional imagery: once again, We see the insidious attempt to distract Us from the law by appealing to the emotions: “tragedy” and “most vulnerable members” are hugely freighted with a train of imagery that no uncareful reader or listener could avoid. This is the work of Goebbels.

Second, he infers that all SOs are reasonably presumable to be sources of tragedy – and yet many of them, most, are not oriented toward ‘children’ at all.

Third, the actual dynamic of the scheme is that the government now seeks to get into the business of regulating societal interactions and on a profoundly intrusive and comprehensive basis.

This alone poses a huge public question. The free interaction of citizens – the ‘social’ activity of the nation - is the very font of civic activity, creativity, and cohesion. This is precisely what the Framers wanted to protect by placing so many boundaries on government to begin with.

And especially since this whole scheme is based on grossly (one almost has to say willfully and deliberately) inaccurate government ‘Findings’ about the nature of sex-offenders, then there is huge ground for questioning whether there is any justification for such a comprehensive government policy at all in the first place.

THIS is the huge civic challenge posed by these laws and the carefully-stoked mania that enshrouds them.

And then, finally, the Dissenter makes the defense that the government “is not obligated to fashion perfect statutes”.

Well, nothing is perfect in this world. That’s why there are sex-offenses in the first place, along with war, famine, pestilence, poverty, rampant disease, and un-serious legislators and judges.
But when you look at the utter lack of any proof that legislatures gave any serious thought to these laws at all (at least none that they’ll admit to); when you look at the stunningly inaccurate ‘facts’ that legislatures (and courts) have accepted in support of these hugely-fraught plans; when you look at the alarming tunnel-vision by which legislators and courts can stare at their paperwork and not see what is going on ‘outside the window’ as a direct result of their actions … when you look at all of this, can you then imagine that government has given adequate deliberation to the laws they passed in these SO matters? As the sage once said: Geez, nobody’s perfect – but don’t abuse the privilege!

Anyhoo, the Court did a good thing here, and Imean that not as a factional supporter of SOs. As an American I feel better reading the Opinion.

But reading the Dissent, I get to see how bunches of other folks – many of them in official and elected positions – are still thinking.

To which I can only say: they may be landing in Normandy, mes amis, but we are still in Paris.


*You can read it by going to http://www.constitutionalfights.blogspot.com/, and looking under date of October 1, 2009 for the article entitled “KY Supreme Court Strikes Down Sex Offender Law”. Also, this Opinion cites the prior district court Opinion as being very “thorough”, although I haven’t been able to access that prior Opinion as of yet.

**Here let me also note that it seems as if several – at least – volunteer sex-offender watching organizations have actually gotten official authority to do their own patrolling of sex-offenders. New York State actually has a contract with one such group. And it’s the same group that had its US Senator and Representative sponsor a recent Bill to get them a million-a-year grant to keep it up AND to have access to the FBI’s NCIC database (the one police can access from their patrol car computers).

***See my Post “US v Juvenile” of October 1, 2009 on this site.

****So what I’m saying here is that We are not dealing with some sort of ‘originalism’ argument here, where much hemming and hawing is done over whether a current plan or law is justified in the original text of the Constitution. We are dealing with a plan that the Framers omitted because it was unworkable in a practical sense (fracturing the Citizenry and American society into first-and-second class citizens) and because it is conceptually repugnant to the entire American proposition and would prove lethal to the American vision if it were tried: fracturing the Citizenry, undermining the basis of individual dignity and of mutual respect and common purpose among the Citizenry, and dangerously increasing the intrusive scope of government authority.

Nor is it in any way sufficient to say that such awesome frakkery was not the intention of those who first invited this vampire-plan in through the national front-door. The thing is in here now and that ain't just a 'perception' that needs to be 'adjusted'.

And in this regard, I recall Joseph Bottum’s remark about the writings of Rene Girard in regard to the mythological uses of the “scapegoat”. Bottum says “Girard is surely right that modern political theory has systematically underestimated the social power of revenge” [italics mine].
In these SO laws, it is already quite probable that the legislators themselves are vengeful and therefore very much “punitive”-minded when they make these things.

But worse, by playing with fire, they have ignited the never-absent, primal vengeance and revenge capacities of the population. These primitive but very human emotions have now been added to the “fear” generated by the ‘monster’ image certified by the official legislative “Findings” and amplified by a sensationalist and simplistic media reporting.

At this point, it may well be that there are not only many legislators who are indeed very bloody-minded, but also that almost every legislator is now placed in the unenviable and dangerous political position of saying No to a public mania for fear-driven revenge upon these ‘monsters’ that the legislatures themselves provoked.

And in this regard, I can’t help but thinking of the German Reichstag in the later years of World War 1: having gone along with the desperate PR effort to demonize the English and French as ‘monsters’ in order to keep a discouraged German public whipped-up to support the failing war effort, they then literally believed their own propaganda and pressured the Kaiser’s government to intensify the military efforts in order to prevent the Allied ‘monsters’ from entering Germany and wreaking havoc upon the civil population. Which, of course, was precisely what the Kaiser’s troops had done – intentional terror tactics – to the captive populations of the countries that the German military had invaded and occupied. Funny how the night moves, as the songster saith.


Sorry, but I have to add this – and trust me, it’s relevant.

On a totally different task, I read today the July 2007 issue of the religion-philosophy-literature monthly “First Things”. I had not read it when it was fresh.

On pages 6-7 there is a Letter to the Editor by a Mr. J. Tonning of Michigan. He is apparently defending then-President Bush from an article in the March 2007 issue.

And this is where it gets relevant to SO concerns here and now.

Let me quote at some length Mr. Tonning in all the certainty and self-assurance and outraged sense of propriety that he displayed in 2007: “The assertions that Bush is hapless and incompetent simply don’t hold up to scrutiny ... In response to the attacks and large-scale slaughter of innocent people on American soil, Bush single handedly cnaged the paradigm of the West versus terror. The Bush doctrine needs to be carefully studied by every American, for it contains the structure we will use to fight terror for the next fifty years … Has Bush made mistakes? What a pointless question! It is not just that avoiding mistakes during the paradigm shifts is an impossibility; the bigger issue is that mistakes are a crucial part of the exploration and discovery process that establishes a path within the context of the new framework. Failure is a necessity. Have we forgotten that? The critical element in the process of failure is to avoid catastrophic failure and to manage the exploration and discovery period such that we fail within our means. This Bush has done. This is not a manifestation of haplessness but of resoluteness.”

I read this over dinner tonight. As soon as I read it, I thought of the Dissenter in this Kentucky case. In a few years, or less, is THIS what supporters of the sex-offense laws are going to be saying? That it’s OK if you went into a huge and widely life-frakking undertaking without sufficient thought, and perhaps even with willful duplicity – certainly negligent deliberation … that it’s OK because ‘stuff happens’ and the important thing is that you frakked up “within your means”? That ‘legislating’ – as Rumsfeld said of the ‘democracy’ reportedly being birthed in the flaming wreck of Iraq – is ‘messy’ sometimes?

And whose “means” are We talking about? All the defendants wrongly convicted because of the mania that government actions instigated and keep instigating? All the convictees who have had their lives utterly frakked by the clearly Nazi-derived schemes that have been accepted and imposed? To the great and lasting detriment of the Constitutional ethos and any genuine democratic and humane politics?

Is THIS what they will all be trying to say? Some version of ‘Oops, my bad’ – only it means nothing because it’s not your life and your family’s that was wrecked by a public hysteria that in all but the most outrageous genuine cases has no doubt inflicted more wrack and ruin than any other ‘pain’ and ‘trauma’ connected to the case?

As the children would say: “OMG”.

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