MORE FROM WAYNE LOGAN

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).

NOTES

*First, go to http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1089204 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.

ADDENDUM

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.

ADDENDUM 2

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.