Thursday, October 1, 2009



I have a few thoughts on this so emblematically-entitled case, recently decided by the Ninth Circuit. The text of the Decision is here.

The case concerns whether a person convicted of a sex offense in juvenile proceedings long ago now has to register under the Adam Walsh Act (formally known as the Sex Offender Registration and Notification Act, or SORNA). The Court decided that Registration and Notification would be punitive for a juvenile conviction and thus could not be applied retroactively, even if the juvenile is now well into adulthood.

Writing for the Court Judge Reinhart asserts at the outset that “the avowed priority of our juvenile justice system (in theory, if not always in practice) has, historically, been rehabilitation rather than retribution”.

I’m not sure that the distinction is that easy, between juvenile and adult justice systems. Adult prisons are not called “correctional” for nothing. Yes, juveniles might have more of a chunk of future ahead of them, but that’s not why they are more eligible for rehabilitation. Their brains – and precisely the most uniquely human parts, the prefrontal lobes and cortex – are not yet fully developed.

But that’s no guarantee – a bunch of other factors including what can still be called ‘character’ enter into it and nothing is certain. But it’s always worth the try and in most cases some lasting good will come of it.

But I don’t see how the Court can so easily assume that adult justice is only for retribution. Adults can also grow and develop – it’s part of what makes humans such remarkable beings. Yes, an adult may commit a crime that requires punishment, but there is utterly no certainty that s/he will not use that opportunity to catalyze some profound corrective growth, and – as I suggested in my previous Post – perhaps achieving a level of growth beyond what average life-experience would or could deliver. You can never tell in these things.

That, of course, is exactly what the sex-offender-as-incorrigible-monster-narrative is designed to eliminate: this irrepressible possibility that a human being can take a difficult situation – including his own guilt – and somehow metabolize it into growth, perhaps remarkable growth. If this element of human-ness were allowed to remain attached to sex-offenders in the public mind, then they could not be so easily dismissed (and vilified) as monsters.

So this sex-offender-as-incorrigible-monster-narrative plays a critical role: its job is to dehumanize or un-humanize the individual so as to make it easier to do what the scheme has in store for him.

That’s a deceitful and dangerous gambit for any society to run. You cannot deny another human being’s humanity – it violates the fundamental truth of the species. And when you do such a thing, then you not only violate the fundamental truth of being human, but you also endanger your own human-ness. The untruth weakens your grasp on your own humanity, even your own capacity to be human.

Worse, as an entire society starts this slide, then others all around you are doing the same – the young even more than the old – and so not only your own but your society’s grasp of its own most fundamental qualities starts to weaken.

And in the Framers’ vision, you can’t start letting the government decide who is and who isn’t ‘first class’ – everybody is possessed of those “inalienable rights” and that core dignity. A government that would try to remove those rights and that dignity is going to taste a ‘blood’ that will turn it feral – like the oppressive monarchies and tyrannies of the Old World. A government unanchored by Truth, presiding over a citizenry equally unable to understand the truth of its own heritage and its own unique nature as human beings, is going to start heading down dark paths in short order.

Interestingly as well, in a by the by, the Court notes that it makes its judgment “in light of the pervasive and severe new additional disadvantages” that “result” from the SORNA requirements. Why these only apply to juveniles and not to adults is a question that has to be asked.

The Court notes that “the regulation went into effect immediately as an interim rule, without providing for a notice and comment period in advance of SORNA’s retroactive application”. The “regulation” refers to the Attorney General Guidelines Congress ordered that Office to come up with. As with so many of these sex-offense laws, they bypass the usual legislative and even statutory practices calling for deliberation, public and professional input, overall kicking-the-tires examination. The usual reason given for this is that ‘it’s an emergency’ and ‘we can’t wait even one more day’; such government-by-emergency has a very ominous history in this world.

And there exists no small possibility that the Guidelines, which establish “retroactivity”, are probably going to be as “interim” or temporary as taxes – unless there is significant civic push-back.

Nicely, the Court acknowledges (in support of the juvenile) that “when an individual challenges a new law, such as SORNA was at the time this case began, it would appear to be impossible for him to develop a record which contains the “clearest proof” [the Supreme Court standard with which sex-offenders are burdened] of the punitive effects that the law will have upon him or indeed upon others”. Again, I can’t see why this isn’t also true for adults. Such experience of the law’s effects can’t be determined when the law is new. But then, the FAA doesn’t require a couple-three planes of a new type to crash before it refuses to issue an airworthiness certificate to the design – there are other avenues for ascertaining if their design and operating characteristics are going to result in the aircraft’s design not being flight-worthy.

The Court continues immediately: “Certainly, we would not require [the juvenile] to suffer and then document the ill effects … before permitting challenges to its retroactive application”. Wisely said. And why that doesn’t apply to adults is again the question.

The Court considers whether the retroactive application of SORNA “imposes an affirmative disability or restraint”. It concludes that “given the degree of damage former juvenile offenders may suffer in their adult lives by the retroactive application of the statutory requirement, we conclude that this factor is by far the most compelling in our analysis”. I can see that. But that must also be true for adult offenders.

It quotes the Supreme Court in Smith v Doe that “although the public availability of information may have a lasting and painful impact on the convicted sex offender, these consequences flow not from the Act’s registration and dissemination provisions, but from the fact of conviction, already a matter of public record”. And I’d like to say something about that.

First, “the public record” means something verrry different when all a person has to do is click onto a site and move a mouse in the convenient comfort of his/her own home, rather than taking the time to go down to the courthouse and checking the files. Yes, in the barest technical sense a public record is a public record. But going down to the courthouse means that a person has to at least decide that the trip is worth it and make the time and expend the effort; that makes for a degree of seriousness in the searcher.

Clicking onto a site when you’re at home (or, who knows, have taken your portable computer down to the local bar) invites a much different situation: a person may well have a far less serious purpose and approach the record with an attitude well-short of maturity and gravitas. But all that information is right there literally at one’s fingertips. There’s a good reason why Congressfolk don’t like to be ‘too available’, as it were: they don’t want just anybody walking up and venting on them.

But also, the folks who are looking up the info aren’t just looking up a public record. They have already been primed – by the government itself – to see ‘sex offenders’ as monsters. As I’ve said in previous Posts, the ‘Findings’ that legislatures have made (and courts have far too easily accepted) to the effect that sex-offenders constitute an immediate and permanent and incorrigible threat to individuals and their children … these Findings mean that when somebody is convicted of a sex offense he is automatically perceived in the public eye as having been certified by the government as a monstrous and permanent threat. The government, as I’ve said, has effectively educated the citizenry into the (grossly inaccurate) belief that sex offenders are incorrigible monstrous threats.

So when a person goes onto the internet and looks up a ‘sex offense’ record, s/he is not simply looking up the public record of a criminal conviction; s/he is looking up the information on a government-certified monster.

And this is not true for any other crime.

So to say that it’s just a “public record” really doesn’t reach the core reality at work here: the citizenry are primed by the government (with the assistance of sensationalist media) and so they are already in a quite abnormal state of agitation when they approach the “public record”.

So it cannot be said – as too many courts are saying, following the Supreme Court’s lead – that such troubles as the registered sex offender will encounter stem not from anything the government has done (merely publishing an already public record of conviction), but rather stem simply from the conviction itself (which is the offender’s own fault). Lots of folks are convicted of this or that; but only sex offenders are officially and with great fanfare ‘certified’ as permanent and monstrous threats even after they’ve done their time. And it is precisely that ‘certification’ by the government that makes a sex offender’s record far more than just your average “public record” of conviction.

And, as I’ve said, that ‘certification’ is grossly inaccurate.

And it is precisely that ‘certification’ that imposes a stunning and life-wrecking burden on the sex offender. It’s insufficient for a court to opine that registration is not “historically” a cruel and unusual punishment. It’s not the registration. It’s the double whammy of ‘certifying’ the offender as a permanent and monstrous threat to a public that the government itself has already primed, and then tossing the offender’s identity and information out onto the internet like chum in a shark tank.

No, this isn’t a “historical” form of punishment. Precisely so. This is a whole new thing in American law and society – and it ain’t good. But anyone who can claim with any pretensions to maturity and intelligence that this doesn’t constitute a cruel and unusual punishment should take a few days off for some really deep thought – and maybe some prayer as well.

And again, that’s why a sex offender’s ‘information’ is not simply ‘information’ – it is actually a colored flag (and maybe a green light): ya know all those monsters we’ve been telling you about? Well this guy’s one of them – here he is.

All law – especially in a democracy – is in some way ‘political’; it has to interact with the citizenry and thus with the emotions and conceptions of public opinion. That’s always been true.

But throughout the 20th century there has been – as Gustav Le Bon noted* at the very end of the 19th – an increasing science – and by no means a purely bright one – dedicated to manipulating public opinion.

What has happened in this country, embraced by the Left** a few decades ago, is that this manipulation has been deployed by the Left – especially the ‘New Left’ of the post-1965 era – for its purposes. Which are often considered ‘revolutionary’ but in a good sense; that is to say, with the intentions of introducing new ‘reforms’ and changes. Very large changes introduced very quickly (hence the ‘revolutionary’ aspect). I don’t agree that such a simple baptism of ‘good intentions’ suffices to make a ‘change’ or a ‘reform’ a worthwhile and workable plan when it comes to actually passing sweeping legislation.

In this sex-offense mania it has worked out this way: the public opinion is whipped up by stories that are reputedly backed by ‘science’. Then under a purposeful regime of ‘advocacy’ organized elements of lobbyists and ‘scientists’ or ‘experts’ step up to put the pressure on Congress, making for a dramatic if too-simple story-line that the media often eat up like catnip. The politicians can then ‘respond’ with quick laws. And in this case, the unsleeping urge – natural to all governments as the Framers knew – to increase government power and control over their citizenries comes into play. Though in a democracy, especially after the overt tyrannies of Fascism and Communism, this has to be done somewhat covertly, using some form of ‘sheep’s clothing’ to disguise itself.

This is the pernicious and rather new dynamic that is now operating in the sex-offense mania. It is a vigorous if subtle feedback loop.

Thus, the ‘sex-offender-as-incorrigible-stranger-monster’ is literally created. And public opinion ‘demands’ and legislators ‘respond’ with all their authority and courts often – alas – go along, since the Supreme Court too “reads the election returns”.

So that’s what’s going on beneath the surfaces of the sex-offense mania.

No other crime is or has ever been treated like this. Yes, outrage against gangsters and even liquor (Prohibition) have taken place – but everybody knew that ‘gangsters’ were bad and needed to be reined in. But nobody assumed that gangsters were as profoundly and thoroughly and uniquely ‘evil’ the way sex-offenders have been painted. Folks knew that there were ‘gangsters’ and that they needed to be reined in, but nobody lived in the perpetually anxious agitation that they were ‘everywhere’, seeking to involve themselves in you and your family and your children and could strike – even in the disguise of a ‘decent’ citizen – at any moment, right in the heart of your world and your town and your neighborhood and your home and your life. And that there were innumerable legions of them, hiding throughout the length and breadth of the land (like ‘Communists’ were supposed to have been in the early Cold War era).

No other convicts or class of criminal offender get this sort of treatment – except maybe those individuals, whatever they’ve done, who get up on the most-wanted posters at the post office (if they still have them).

So I think the courts have to accept that sex offenders are not at all ‘just convicts’ and they don’t simply have ‘public records’. No. Sex offenders, through the deliberate action of the government, are publicly and officially claimed to be ‘monsters’ and are in a situation no other convict or class of convicts are in, and on top of that this is a brand-new type of thing in American society so the courts cannot simply look in the past for precedents.

Unless they go back to Nazi Germany, Soviet Russia, Mao’s China, or France during the Terror, all of whom raised up their own versions of 'enemies of the people', class enemies', or 'enemies of the revolution' - or all four together at the same time.


*See my Post “Citizen Skills and Sex Offense Mania” of September 25th on this site.

**When I say this I am not covertly declaring myself a person of the Right. The significance of “the Left” as I use the term here is that most folks almost automatically presume that the Left only does ‘good’ things – certainly only has the best interests of The People at heart; and I hope I don’t sound like a reactionary when I say that all things considered it ain’t necessarily so and surely doesn’t always work out that way. My intention here is to illuminate, not to take sides in any merely party-politics sort of mud-fight.


  1. ...short point-

    Gangsters were tolerated and even celebrated by a large part of society (from rum-running grew NASCAR, etc.), while vilified by law and some of the public- bringing to mind this contradiction; sex between young people is a crime, no matter what,sex is bad, evil, even, but this product here? Every product everywhere? As I write this I hear an ad for Erectile Dysfunction...sexual tension is force-fed through no choice of anyone's, apparently...meanwhile, where abstinence-only education is rampant, so is teen-pregnancy? Juvenile sex offense rates? run with that...Soup out....

  2. It’s a curious thing: as the Sixties pretty much opened the floodgates on sex, the Nineties created ‘sex offenders’ and the whole mania.

    And – this being a commercial Republic – businesses have grown around sex-products, since sex is now so ‘acceptable’ and almost universal.

    Like Odysseus navigating by the Sirens, or like a space ship trying to navigate through a wide meteor-field, or a quarterback trying to run the ball through a crowded opposing field with almost no blockers of his own to help, the average person today has to learn to navigate through all the distractions in order to conduct a productive and useful life. And for kids it’s even worse, as it always is when the prefrontal cortex isn’t yet formed yet the biological urges to reproduce are at their strongest.

    I can fully agree that kids are under great threat. But monstrous sex-murderers materializing out of thin air are not the most probable threat: being largely unassisted in the huge tasks of mastering sexual-urges that are biologically at their strongest with mental-equipment that hasn’t yet fully matured … now THAT is the threat that will effectively wreck untold numbers of youths’ futures – and, eventually, the culture and society itself.

  3. I agree with practically everything the blog author has said up to the point of "left". As we can see today and as we knew in 2006 the primary supporters of the Adam Walsh Child Protection Act were and are of the "right", but both the right and left are involved in this madness, and during the election of a Black man as President we have, and can clearly see how bad practically all of these legislators can be and are.

    In a post I wrote at a different site I too put the yoke squarly on the necks of political and legislative figures and how the courts, most have given themselves over to the sentiment of these lawmakers rather than protecting the constitutional rights and liberties of the citizenry.

  4. It's hard to know what your implication is politically but it does sound in some way that you may be at least inferring that the Left has something to do with the laws, or more to do with the laws escalating the way they have.
    Yet, my understanding is that they really took off under the Bush administration. That fits the modus operandi of the political right and the Republicans who have now become something of a caricature of a party and philosophy.
    And I'm not suggesting the left and Dems are innocent here. But,from what I can see, this anti-sex, get-out-the-pitchforks mania comes from the right and unthinking mushy middle much more than the left. It really fits the religious zealots, the suppressed seeing sin everywhere fanatics. suetiggers

  5. We can’t forget that the sex-offense mania had its predecessors in the Reagan-era preschool cases, but also that its conceptual older siblings are certain elements of the Domestic Violence policies and some of the elements of the Violence Against Women Act. (And I fully support the reduction of all violence.)

    The sex-offense mania got its real start under the Clinton Administration. It picked up a lot more steam when the Right – always interested in law and order – got control of Congress in 1994 (that year again) and realized that the whole movement could serve the purposes of expanding the government police authority. With that ‘bipartisan’ interest, Matter and Anti-matter were mixed and the thing went into Warp drive, as it were.

    William Stuntz, noted legal writer, has an excellent 100-page article on how such expansion of laws serves the purposes of an interesting natural alliance between legislators and prosecutors: the legislators can pass ‘tough’ laws with no regard for consequences, relying on the prosecutors to deploy them more or less wisely; the prosecutors use the laws to ‘get more on’ defendants, thus intimidating them into plea-bargaining, thereby sparing prosecutors and their budgets and their reputations the cost of a trial and possible loss of the case at the hands of a jury. The vast majority of defendants plea-bargain nowadays, many of them fearful of the hugely increased liability for punishment if they are found guilty. Stuntz doesn’t go into sex-offense cases specifically, but adds an aspect of organizational and institutional dynamics that is very illuminating. I plan to Post on it in the near future. [The article is entitled “The Pathological Politics of Criminal Law”; the author is William J. Stuntz; and it appeared in the Michigan Law Review, Vol. 100, No. 3 (Dec., 2001), pp. 505-600]

    I do not think of Mr. Obama as black. He is the President, and unless he were some sort of ideological ‘Black Power’ advocate along the lines of the 1960s his race doesn’t concern me much – but I am not worried about race as much as I am worried about ideologues in high office. And I am very much aware that both Mr. Clinton and Mr. Bush (W.) played very significant roles in the history I sketched above.

  6. But let me also add that at this point I sense that a number of folks - legislators, police, and even noted victim advocates - are concerned that things - especially with the Adam Walsh Act - are going too far. The courts at all levels are also finding assorted problems, although they still generally accept the positions taken by the "Poritz" case and the US Supreme Court's "Smith v Doe" Opinion.

    But it will take political courage on everybody's part to start to put the brakes on this mania. At this point it has outlasted the "Red Scare" of the early Cold War years - and that is, I would say, ominous.