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.

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