IMPORTANT NEW SHANLEY

I had concluded in my earlier Post on the Shanley case that the SJC could not have decided otherwise given the fact that the diagnosis of ‘Dissociative Amnesia’ had been included in the DSM (although it may be revised – perhaps ‘revised out of’ – forthcoming editions).

It is a week later and I have been able to do some further research*. As best I can make out, courts – including the US Supreme Court – have indeed declined to accept inclusion in the DSM as proof of ‘scientific acceptance of a theory’.

A Minnesota case (involving a Catholic priest accused of sexual abuse by a rememberer much later) offers some clear thought: the case is John Doe76C v. Archdiocese of St. Paul and Minneapolis, No. 62-C9-06-003962, Minn. 2nd Judicial District, dated Dec. 8, 2009.

The judge excluded expert testimony based on repressed and recovered memories. (One of the Experts appearing for repressed-memory was the very Dr. Chu whose testimony was accepted by the SJC and played a great role in the denial of the Shanley Appeal).

The Judge (George E. Johnson) decided that "Plaintiff failed to meet his burden of proof under the Frye-Mack standard of showing that the theory of repressed and recovered memory is reliable and trustworthy based on well-recognized scientific principles because of the significant methodological lflaws in the studies presented by plaintiff in support of that theory and the lack of any test to show reliability."

Further, he provides some impressive precedents for courts declaring that ‘repressed memory’ by any name is not scientifically accepted simply because it is included in the DSM: "However, the court does not agree that inclusion of dissociative amnesia in the DSM-IV establishes that the theory of repressed and recovered memories has attained general acceptance or has been scientifically proven. The United States Supreme Court has recognized that a diagnosis in the DSM-IV, 'may mask vigorous debate within the profession about the very contours of the mental disease itself.' Clark v. Arizona. 548 U.S. 735, 774, 126S. Ct 2709, 2734 (2006). The DSM-IV is not a 'scientific paper or a scientific reference or a scientific review article.' (Tr. 315). And it 'does not, by itself, establish the validity of a diagnostic entity.' (Tr. 431). In fact, as the United States Supreme Court recently acknowledged in Clark, the DSM-IV itself cautions against the use of psychiatric diagnoses in forensic settings due to the 'significant risks that diagnostic information will be misused or misunderstood. These dangers arise because of the imperfect fit between the questions of ultimate concern to law and the information contained in a clinical diagnosis.'"

This puts an entirely new complexion on what I had noted as a coincidence in the timing of the SJC Opinion and the election in which the Attorney General who supported this and other such cases, Martha Coakley**, was running as a Democrat for the Senate seat formerly held by Teddy Kennedy. You recall that she lost in an upset so stunning that even the UK major magazine of affairs, ‘The Economist’, refers to “the Massachusetts election” as a watershed development in the past several decades of American political history. (We can only hope that this development will have some sobering effect on the SO mania as well as American politics generally.)

It is now clear that the SJC had plenty of significant precedential support - including the US Supreme Court itself - if it had wished to accept the Appeal for a new trial.

Which increases exponentially the possibility that the denial of Shanley’s Appeal was politically motivated; Shanley’s cause was subordinated – it would seem to me – to the larger political concerns not to embarrass her just before the election and – indeed – to burnish her creds a bit.

And perhaps also to prevent even more public examination (in the new trial that had been requested by the Appeal) of the doings of the State’s legal system in Shanley’s – and perhaps others’ – sex offense cases that ended in conviction.

And to protect all the major 'liberal' players in a Massachusetts whose 'workers' have been eclipsed for decades by the Politically Correct elites of the Democratic Party and its media shills.

In which case the SJC literally sold its inheritance, and perhaps its dignity, integrity, and authority, for a mess of pottage – as the Good Book saith – and that on top of that, such a gambit failed politically.

Once again, you can see the ominous and lethal connection of politics and jurisprudence in this entire SO mania.

NOTE

*You can review the entire article with the quotations from the MN court here. You can review an excellent history of the original case here and if you have a few minutes I strongly urge that you do.

Frankly, recalling all the priests (and others, but this Catholic priest variant of this sub-set of the SO mania seems to have been the most 'popular') who have been dragged through the meat-grinder, noted on various groups' websites as having been convicted or having 'pleaded to' such offenses (hardly an unwise bit of advice on the part of any defense attorney realizing what it would mean to try to defend yourself in a time of mania) ... recalling all that after reading that history of the original case I certainly would advise the public to apply its own version of 'strict scrutiny' to any such accusations made.

This is not, in any way, to be construed as an 'approval' of actual and genuine sexual abuse of minors - or anybody else - especially by those in positions of professional authority, but it is to say that in a time of mania every accusation, especially the most shocking and sensational, must be most carefully examined and many tires - in the interests of Truth and Justice - must be firmly kicked.

God only knows how many priests and other professionals have had their ministries, careers, and lives ruined.

**One of Coakley’s more outré feministical buds, Wendy Murphy, a former ADA and adjunct professor of victim law at the not-quite-first-tier New England School of Law, had filed an Amicus Brief to support the Commonwealth, in which she perorated “that the inability of a child to remember will never be used as a reason to deny a victim access to justice.''

Well, I’m not in favor of child abuse; I am – however – in favor of the utterly indispensable principle that the government has to prove a case against an accused, because the only other alternative is a derangement of the hinges that hold that monstrous Kong behind the Constitutional gate.

If there is no way to obtain reliable and sufficient evidence, then no matter how awful the hypothesized or claimed crime, there can be no just and justifiable conviction.

And– as Joann Wypijewski, the author of the original trial’s history referenced above observes – it was in the ‘feminist psychology’ of the 1970s that this sly and clever – but Constitutionally lethal and treacherous – gambit was first ‘valorized’: in order to pry open some working space for a broad and sustained assault on ‘men’ as violent, chimpish lumps, ‘repressed memory’ was dug up from its late-Medieval grave and re-introduced as ‘cutting edge’ (and ‘sensitive’) science.

And ‘the children’ were put forth – as they were in Salem in 1692 – as the ‘victims’. But in 20th-century America, this gambit was launched not against a barely matured, colonial legal system, but against the very ethos and the very foundations of American Constitutional justice itself.

And it was spun as ‘liberal’.

ADDENDUM

JoAnn Wypijewski's assessment of the Opinion is here.

COMSTOCK: THE ORAL ARGUMENTS

I had Posted in November about the Amicus Brief by the Cato Institute et al in this important case.

Oral arguments in the case were held before the Supreme Court a couple of weeks ago. The transcript is here.

What I want to do here is to follow the actual course of the arguments (by the government and by the ‘defense’ attorney) and the various comments and questions put to each of them by the various Justices and the Chief Justice.

I’m doing this because it gives you not only the content of the discussions but a sense of the flow of arguments. And perhaps you might notice how even at this level the human players are not always able to keep their minds focused on the key matter or even formulate a coherent and relevant observation – but that’s human nature for you. Which was part of the reason why the Framers didn’t want to give a whole lot of power to government at any level, but especially at the Federal level: too much power to wield and not enough intensity and integrity of mature focus … But that was then. Let me not digress.

So a couple of housekeeping points before I begin. A) the numbering will be twofold: the page number and the line number (each line is numbered in the transcript) – thus 22/4 means Page 22, Line 4 or 22/4-10 means Page 22, Lines 4 through 10; and 3/22-4/12 means Page 3, Line 22 through Page 4, Line 12. . And B) so you don’t have to remember names, I’m going to put down the speaker as “Gov” for the Solicitor General (Elena Kagan) and “Def” for Attorney DuBois, speaking for the defendants/respondents; and for the Justice who is speaking I will put “J.” followed by the Justice’s last name: thus “J.Scalia” would be Justice Scalia. And C) when I quote the exact words I will use quotes; otherwise I will paraphrase what the speaker is saying so as to save time and not reproduce the whole document in the Post.

The case, as you may recall, revolves around the government’s assertion that under AWA Section 4248 it has a “responsibility” (even if not clearly the Constitutional authority, power, and right) to civilly confine after the completion of their Federal sentence sex-offenders who are (vaguely) considered by the Feds to be too ‘mentally ill’ to release into society, since so often the States don’t want to take up the burden and such a releasee will “slip through the cracks”.

You can see how much devilry has taken up residence in that web of assertions, implications and half-truths. And I think you will be impressed by the way that (alas, just a few of) the Justices refuse to be taken in.

3/11-4/2: Gov claims that government has this power through Article I (Congressional authority) as exemplified in a 1940s law Congress passed, enabling the Federal prisons to continue to incarcerate an inmate who had gone insane while in government custody, until such time as the inmate had recovered.

Note first that both Congress and the Executive have burned together now into a superfire of Federal Authority: this isn’t some President-vs-Congress type of struggle: this is both Branches seeking to assert increasing power over society and the Citizenry (even if, ostensibly, in order to ‘protect’ that Citizenry).

Second, keep an eye on that 1940s law (called here “Section 4246”) since much hinges on the difference between 1) going-insane while you are in custody and 2) proving you were already insane by virtue of the crime you committed in the first place (as the government asserts about sex-offenders).

Gov piously observes that “it would be dangerous to turn them loose upon society where no State will assume responsibility for their custody” (3/24-4/2). But a State may refuse to simply take a Federal releasee and confine him for the simple reason that, though a sex offender, he is not insane and it would be unconstitutional to simply scoop him up for ‘the public good and convenience’. The Feds’ solution is to claim that they have the right to keep sex-offender inmates even after the sentence is finished, as a public service, since the Feds have a ‘responsibility’ to ‘release inmates responsibly’ (about which more later).

Gov continues (4/5-12) that the Feds now face “a similar problem”: “The Federal Government has mentally ill, sexually dangerous persons in its custody. It knows that those persons, if released, will commit serious sexual offenses; and it knows too that States are often not in a position to deal with such dangers, not in a position to take custody and care and responsibility for those persons upon release from Federal prison”.

Well, there’s no obvious connection between mental-illness and sexual-dangerousness. And there is no way that anybody – including the government (can you say Iraq War and Deregulated Financial Sector?) can “know” the future, especially the actions of an individual person. And then you get this sly gambit where the Feds want to make it sound as if the poor States are just too busy, poor, or distracted to keep up with this oh-so-important problem … whereas it’s easily possible that a State – which under the Xth Amendment actually has the authority and power in this matter – simply doesn’t want to play this rather dirty and unconstitutional game that the Feds have set up – which appears fine with the Feds because what they really want is all on their own to confine sex-offenders indefinitely.

Worse, at 4/13-16, the Feds want to make this seem it ain’t but a thang: “This is essentially a transitional problem that the Court was -- that the Congress was dealing with, how to manage the transition from Federal custody to State superintendence and responsibility”. This is a sleazy bit of frakkery: this is not a ‘transition’ problem because the Feds precisely don’t intend for there to be any transition at all; just a room change from the ‘prison’ ward to the ‘incurably dangerous’ ward, where the sentence – you may rely on it – will be for all practical purposes Permanent.

And at 5/21, under questioning from J. Kennedy, Gov admits as much: it is “not the usual course of events” that when the government asks the State to put this guy into mental-custody that the State agrees. So the Feds know that if they get this power then the States will offer little interference, especially since the Feds have now frakked up the economy to the point where the States themselves are virtually bankrupt.

Then, marvelously, J.Scalia (of whom I am no great fan), asks the Huge Question: “What -- what -- what power conferred upon the Federal Government by the Constitution permits the Federal Government to assure that sexual predators are not at large?” (6/17-20) [italics mine]

HERE IT IS. The question that has been glaring in the lurid mania-light for 20 years, waiting to be noticed and answered – exactly what the Mania could never face up to and did not dare allow to come into public discussion: where does it say in the Constitution that the Feds have the power and responsibility to keep the world – or the country – safe from sex-offenders?*

Gov responds slyly: “I think the power, Justice Scalia, is the power to run a responsible criminal justice system, to run a criminal justice system that does not itself endanger the public”. (6/21-24) In other words, if a person is convicted, serves his sentence, and is ready for release, then the government would be “endangering the public” by doing what is Constitutionally required.


Or to put it more succinctly: the government is saying here that to act Constitutionally will endanger the public – and then, drawing itself up in the robes of Sensitive Righteousness, the government, with Eddy Haskell levels of smarm, asserts that it is not willing to endanger the public (Iraq War? Economic collapse?)

You can see here the clear outline of what I have often said: from the very outset and in the very foundations of the past decades’ Feminist-from-the-Left and Law-and-Order-from-the-Right stances has been the lethal wraith of anti-Constitutionality: that both the Left and the Right were demanding – knowingly or otherwise – that the government sidestep the Constitution (wasn’t it “quaint” anyway?) in order to meet their demands for Law and Order, Protection and Safety.

C.J.Roberts quickly inquires if Gov is saying that the government, including Congress, is saying that it does not have the power to simply pass a law saying that sex offenders are to be put into mental hospitals until they can be cured (6/25-7/7).

Slyly, Gov answers the particular situation without admitting that Congress (now and forever) doesn’t have the Constitutional power: all these cases involve incarcerated persons already convicted of a crime and in custody (7/14/24).

Roberts closes in: “Well, why doesn't the Federal Government's authority to have custody because of the criminal justice system end when the criminal justice system is exhausted? In other words, when the sentence is done?” (7/25-8/4) In other words, if the government’s only authority stems from the fact that the person is convicted and imprisoned until completion of sentence, then why doesn’t the government’s power end when the sentence ends – and that’s that?

(I hope you’re getting a sense of the real drama – even excitement – in the flow of these vital ideas.)

Gov has to fall back on the pious bit: “Because the Federal Government has a responsibility to ensure that release of the people it has in its custody is done responsibly” (8/5-8) But of course, ‘responsible release’ means NO-RELEASE AT ALL and possibly EVER (since A) there is no diagnosis for ‘sex offense’ and therefore no cure and B) the government shrinks get to say when you’re cured, and they work for … you see the problem here).

J.Scalia isn’t taking his teeth out of Gov’s leg: “But you said no. I mean, there is no constitutional power on the part of the Federal Government to protect society from sexual predators. And, you know, once the Federal custody is at an end, it seems to me that's the only power you could be relying upon.” (8/9-14) [italics mine] And I would urge you, for your own edification and peace of mind, to roll those words of Scalia around in your mind for a bit, like tasting a fine wine. Do you see now what is at stake for the entire country and for the Constitutional ethos itself in this sex-offense mania? Even Scalia admits it.

Gov again falls back on sleazy wording: “I think that the power to run a responsible criminal justice system extends to the way in which the Federal Government releases these prisoners.” (8/15-18) BUT OF COURSE the ‘responsible release’ – when you’re the government and dealing with insane sex offenders – is NOT TO RELEASE THEM AT ALL. And you think we are not all sitting at the Mad Hatter’s Tea Party between the Easter Bunny and a delegation of tooth fairies? This is what the country has come to, and in matters so vital that the future of the Constitutional ethos itself is in danger.

J.Kennedy moves in quickly: “Could the Federal Government order commitment of anyone who's been in Federal custody over the last 10 years?” (8/19-21). In other words, does Gov think that the government can now round up and lock up in a mental institution any current or former (at least for the last 10 years) Federal prisoner?

A neat question. And Kennedy doesn’t limit it to sex-offenders, either. This should be an open and shut answer.

But it isn’t.

Gov replies: “Justice Kennedy, I think that that would be a much harder case.” (8/22-23) In other words, as to whether the government – through Executive or Congressional authority – has the power to simply round up former convicts and put them in mental hospitals, the Solicitor General’s answer is: Gee, that’s a hard question. I’d sorta been expecting a ringing NO, NEVER, NO WAY, NOT ON MY WATCH kind of thing. But protecting the Constitution is precisely not what government attorneys – in either Democratic or Republican, Left or Right administrations – are hired to do in the Beltway. Do you see where things have gone in the past couple-three decades in the Beltway?

But then Gov seems to realize what she’s just said, and tries to recover: “And I would say that that would be a different case and that the Federal Government would not have the power to commit a person who is -- has been released from prison and whose period of supervised release is also completed. At that point the release has been -- the transfer to State responsibility and State control has occurred, and the Federal Government would have no appropriate role.” (9/4-12) In other words, well, if they’re already out then, OK, the Feds have “no appropriate role”. Nice.

J.Kennedy leads her gently along: “So that must be because there is a lack of Federal power.” (9/13-14).

She appreciates the help: “Yes, I think that that's correct, that at that point the State police power over a person has been fully reestablished.” (9/15-17).

But immediately, J.Scalia is back with his teeth hanging out: “But it's fully reestablished once he walks out of Federal prison, at least if he walks out of Federal prison into a State”. (9/18-20) In other words, then the Federal power ends with the sentence and the Feds then can’t simply scoop him up and put him in a nuthouse. From the moment of sentence-completion, it’s between the now ex-con and the State, not the Feds.

Gov sees the abyss opening before her eyes. “I think that that's not right, Justice Scalia. I think that there is a transition period, and what this statute is designed to do is to deal with that transition period and to make sure that sexually dangerous, mentally ill people don't fall through the cracks between Federal custody and the reestablishment of State control” (9/21-10/2). In other words, she has just invented a “transition” moment – which seems to me sort of like a quark or a muon or a lepton, something that’s ‘there in reality’ but too small for anybody to really see (like angels and demons?).

There is this new ‘transition’ moment when for a split fraction of Time you have finished your sentence and are Constitutionally free, but you haven’t actually gotten out of the government’s custody. Now in the old days, if the government kept you a moment longer than necessary to let you put your civilian clothes on and walk to the front gate, then it was kidnapping you.

But not in the Regulatory-Preventive, Safety and Protection Uber Alles America. Now there is this ‘moment’ – similar in Space and Time to that famous point where angels could dance on the head of a pin – when the government has no Constitutional authority or power over you, but still has (or needs to have) a ‘duty’ to make sure you are ‘responsibly’ released – which, of course, equals not-being-released-at-all.

And of course, Gov makes the mania-connection between ‘sexually dangerous’ and ‘mentally ill’ (more on that later). So if you’re both, then a little thing like pooh-poohing the Constitution isn’t so big a thing, is it, dearie? I mean – safety is soooo important in Our New Order, ja?

So government – with the help of the relevant advocacies, ideologues, and cottage industries battening on the SO mania – has invented a ‘moment’ in SpaceTime precisely to contain the site where and when the evil scam of “falling through the cracks” is perpetrated on the unsuspecting, helpless, terrified Citizenry by hordes of incorrigible, sex-crazed sex-offense monsters.

Ladies and Gentlemen, you are no longer in Constitutional Time; you are now in the Twilight Zone. But beware: once you are out of Constitutional Time you are more likely to run into Tyranny Time, which has a lot more razor-sharp teeth than the looney fauna at the Mad Hatter’s Tea Party.

Well, says J.Scalia, they aren’t falling through the cracks because before the Feds release such a person they can notify the State that “we are going to release a prisoner; we think he's sexually dangerous; you should take some action to be sure that he doesn't harm society. Because that's a State police function, it's none of our business”. (10/5-9)

Gov is ready for that: “I think Congress could reasonably find that that is insufficient. Congress could reasonably find that the State -- that the relationship between the State and the individual has been sufficiently disrupted as a result of what is in many of these cases an extended period of Federal custody, that it's not so easy to establish, reestablishment it all at once”. (10/10-17)

In other words, Congress doesn’t trust the States to do what the Beltway wants done with sex-offenders. But it doesn’t dare say that, so it throws up blah-blah-blah that sounds nice. Listen.

Gov is saying that somehow, mystically, the “relationship” between the State and the individual convict has been “sufficiently disrupted” by being in Federal prison that the State might not be able to quickly scoop this guy up (or may not want to). So the Feds will be glad to help and set up their own camps – errrr – hospitals. And someday if and when there’s a diagnosis, and then some further day if and when there’s a cure, and some further further day if and when this guy gets well, and some much further day if and when the Feds’ shrinks get around to saying that he’s well … on that fine day … the hearse will take the guy away with a Federal Certified Cured tag tied to the casket handles. This is treachery on a scale that will cry out to heaven.

Worse, this is a Federal bribe to the States – a seduction as skillful and treacherous as any perpetrated by a monster-stranger-sex-offender on any child. In effect the Feds are offering the States this deal: you don’t want to get involved in this sex offender mess any longer and you’re broke anyway, but you have the Xth Amendment authority in the matter – so the deal we’re offering is that you let us usurp your Xth Amendment power in this matter and we take these bums off the street for good. And leave it to us: we’ll come up with some excuse why this is all Constitutional. Whaddaya say?

This is what’s going on here.

J.Sotomayor observes that what Gov seems to be saying is that the Feds are claiming that “merely because of their -- their time in control of the individual, has an unlimited constitutional power to then civilly commit this dangerous person”. (10/20-11/3)

It DOES seem to be what the government is saying, doesn’t it?

Gov is quick to pooh-pooh that stick of dynamite: “I think what would prevent that, Justice Sotomayor, is the Due Process Clause. It is obviously the case that there are other constraints on governmental action than Article I”. (11/4-7) Yah. In mania law, there’s no such thing as genuine Due Process when the government is not only running the system but holding you, and has tagged you not only as an incorrigible criminal but as dangerously “mentally ill”.

J.Sotomayor is not impressed: “Well, what constrains the government under the Due Process Clause from invoking a dangerousness merely because someone has a long history. We have many criminal defendants with long histories of violent behavior. Many of them continue that violent behavior in prison and some of them at the end of their term are let out, because their term has been completed” (11/8-15).

In other words, once you’ve equated a record of violent convictions with ‘mental illness’ [and perhaps simply one conviction; see below] then you can imprison anybody, even a first time offender, as dangerously mentally ill. The Constitutional problem – she implies – is that once your sentence is completed the government has no more authority or responsibility to hold you and you’re free again.

The government nowadays is trying to make the case that since it has now made lots of political points by promising to provide Total Safety (from sex offenders, anyway, whom it helped to create as Monsters), then it needs to find some ‘authority’ in the Constitution, some ‘power’, that will let it fulfill the ‘responsibility’ that it has designed for itself (automatically setting itself in opposition to its already-sworn responsibility and duty to uphold and protect the Constitution!).

This is where the Regulatory-Preventive Nanny State has led the country and the Citizenry; and it was doing so long before Bush and Co. a mere 9 years ago crafted the Military-Interventionist State to fit through those same holes in the Constitutional ethos, punched open by the burgeoning Nanny State.

Slyly, Gov says that if you don’t have a “mental illness” then you can’t be civilly committed. (11/17-20). But of course, this is the cynical treachery at the heart of the mania, and it would make Stalin himself approve (which he should, since the Feds got the idea from him): if it’s your own cadres who get to say what is and isn’t ‘mentally ill’, then you can make any public promises you have to, because in the end the sausage will come out of your procedural process just the way you want it to.**

J.Sotomayor isn’t buying it and tries to get a straight answer: “… the connection between the nature of the mental illness and the constitutional power that you are claiming. What -- what is it that gives you that power?” (11/21-25)

Gov tries to flatter the Court (and deflect Sotomayor) with the Court’s own holdings: the Court itself (in Kansas v. Hendricks, the 1997 civil commitment of sex-offenders case which ruled that it’s Constitutionally OK) said that you need to prove not only ‘sexual dangerousness’ but ‘mental illness’. (12/1-8) This is a good place to remind you that ‘mental illness’ could be something as garden-variety as ‘personality disorder’, which most of the population, the Citizenry, could be diagnosed with. And, by the way, there is no actual official diagnosis called ‘sex offense’.

Gov deploys the Stalin scam again: “The question presented here is only whether, assuming that the Federal Government is acting within other constitutional constraints in making this civil commitment, whether Article I enables it to do so because of the special custodial role in these cases” (12/21-25) In other words, the government piously claims to be bound by the procedural process (although its own shrinks will be doing the deciding and all they have to show is that you still have that ‘personality disorder’ so you are still ‘mentally ill’).

And of course, the kicker is that the split second your sentence is finished, the government’s “special custodial role” ends and the government is no longer rightfully involved in your life so as to keep you locked up anywhere.

J.Scalia isn’t buying a bit of a it: “ … you are relying on the Necessary and Proper Clause right? [So] you say. But necessary and proper doesn't mean it is necessary and proper for the good of society. It means it is necessary and proper for the execution of another power that the Federal Government is given by the Constitution. Now why is this necessary for the execution of any Federal power? The Federal criminal proceeding has terminated. The individual is released. You could say it's necessary for the good of society, but that's not what the Federal Government is charged with. Why is it necessary to any function that the Federal Government is performing? It has completed its performance of the function of incarcerating this individual until he's served his punishment” . (13/1-16)

In other words, you’re trying to use the Necessary and Proper Clause [the Constitutional principle that simply asserts that the government can pursue whatever is Necessary and Proper to achieve one of its clearly enumerated powers – which the government hasn’t demonstrated at all]. But the N&P Clause requires a power you already have, and you haven’t told anybody what that power is.

And moreover, he continues, since the criminal stuff is finished and he’s finished his sentence, what have you got? You can’t just say that it’s N&P for the good of society – because that’s not a responsibility that the Federal government is assigned in the Constitution. So just what power does the government have such that it claims this civil commitment is necessary and proper to carry it out?

Bingo.

Gov goes back to its old vaudeville routine: “The question is: is it necessary and proper to the beneficial exercise of Federal powers. And so this is, that it is necessary and proper to the beneficial or, what I said before, the responsible exercise of the Federal power to operate a criminal justice system, which includes the responsibility to ensure that those people who have been in custody in that Federal -- in that criminal justice system, are not released irresponsibly” (13/17-14/1).

In other words, the government has a responsibility to see that these types are not “released irresponsibly” (which means to say that they are not hardly ever released at all).

And she adds – shedding crocodile tears of sensitivity – that the government “knows that there is nobody else to take appropriate custody and care, and that the reason that there is nobody else to take appropriate custody and care has to do with the Federal action itself”. (14/24-15/4) In other words, since the Feds have gotten him convicted and imprisoned, then they have a responsibility to see the thing through – even though the Feds think he’s ‘mentally ill’ enough to need more locking-up, but only to care for him appropriately. Charming. Such care and concern.

And do you imagine that “custody” and “care” – two totally distinct things – are going to have equal priority in the Feds’ scheme? Recall that this was exactly the problem in government thinking that I pointed out in the CASOMB Report from California in my immediately preceding series of Posts. You are going to get a lot more ‘custody’ than ‘care’.

Gov is on a roll and lays it on more thickly: “And what the Federal Government is doing here is essentially to deal with this transition problem to make -- to make sure these people don't fall between the -- the cracks, and to ensure that where there is a sexually violent and mentally ill person who one has reason to believe will commit further offenses, that appropriate care and custody of those people is ensured”. (16/3-9) This is a ‘transition’, doncha know? Although a transition “to a responsible civil life” that will probably never see a completion because the guy is going to be locked up (for “custody and care”) for quite a long time.

And now the government doesn’t “know” that the guy is going to commit more crimes, but only “has reason to believe” that he will. But hey, these are only ‘words’ and ‘abstractions’ and the government really doesn’t have much time to quibble with such things because there’s an ‘emergency’ and the government has that ‘responsibility’ to protect everybody from everything. This is where the Regulatory and Preventive State is taking everybody.

Gov will go on to note helpfully that it costs more than $65,000 a year to do the right amount of “custody and care” and that most States – the poor things – don’t have that kind of cash just now. (18/9-12) But nowadays, will the Feds have that kind of cash?

J.Scalia returns to the core problems: “I mean, this -- this is a recipe for the Federal Government taking over everything” (20/4-6) [italics mine] Nor does he stop at that, after Gov mumbles a moment in surprise at such a bald observation.

“The States won't do it, therefore we have to do it. It has to be done and therefore the Federal Government steps in and does it”. (20/8-10) [italics mine] And Scalia is right: the dynamic here is that if the Feds see something that they want done, and yet the power to do it resides Constitutionally in the States, and yet the Feds want it done, then the Feds simply assume that they have the power to do it.

I want to say right here that this whole dynamic flows from Carol Gilligan’s psychological theory of 1982 that ‘women’ handle life the way a mother around a breakfast table handles a bunch of squalling kids: don’t ask questions (kids aren’t reasonable anyway) – instead just do what has to be done to calm them and nobody can say it’s a bad thing.

As I said before, you can run a breakfast table full of kids like this, but you can’t keep a Constitutional Republic like this. Citizens are – and must be – mature adults.

And the Constitution relies upon the assumption that a critical mass of voters will indeed have achieved a basic maturational competence in order to platform their civic competence to Ground the government. That’s why this government can be asserted to be “of the People, by the People, for the People”: it’s not a gift TO the People, it is grounded in the People’s authority and maturity. If anything – hear this, ye Beltway elites! – government is a gift FROM the People.

Gov has to work fast here. She asserts “that -- that Congress … has limited the civil commitment power only to people who have been -- who are in the custody of the Federal Government and over whom the Federal Government has a distinctive responsibility”. (20/12-16) Neat. Except that this can include an awful lot of people (and maybe not just sex-offenders). It means that just because you are in Federal custody, then because of the ‘principle’ the government is trying to put over on the Court here, you could be declared – as the Soviets did and the Chinese do – ‘mentally ill’. Perhaps, in the Chinese mode, because ‘you just don’t get it’ and oppose the regime. Do you see where these things are going?

And forgive me for declining the Feds’ offer of conscientious and responsible ‘help’. I recall Lincoln’s comparing slavery to being tarred, feathered, and ridden out of town on a rail; faced with that prospect a gentleman said to the sheriff that If it’s all the same to you, I’m inclined to decline the honor.

And while I’m at it, I will repeat here the Russian peasant’s prayer: May God bless and keep the Czar … far away from us! To which one might be inclined to intone a hearty and serious Amen.

But Gov won’t let it rest there: she compares what the government wants to do here to the government having the right to retain an inmate who contracted a highly contagious disease – tuberculosis, say – while in prison. Surely, she says, you wouldn’t deny the government the authority to keep him until he was no longer infected – think of it, she purrs, as a “quarantining authority”. (20/17-25)

Of course, the sex-offender didn’t ‘catch’ anything while he was in prison, and sex-offense is not even a psychologically diagnosable disease – so this example doesn’t really apply here at all.

Trying to allay the doubts of J.Sotomayor, Gov then comes up with the fact that in addition to that “special relationship” you have with the Feds once you are in custody, the sex offenders are also “the people most likely to violate the Commerce Clause [crossing State lines to do their evil things] in the future … most likely to violate the laws because they have done so in the past and because they have mental conditions that make it extremely difficult – “ (23/10-16)

So once again you see the government claiming to read the tea leaves – and not just with sex offenders, but on principle, which means with just about anybody (and this after it failed to read the tea leaves in the Iraq War, Af-Pak, and the economy).

And the equally frakkulous principle that since you have violated the laws once, then you are most likely to violate them again. This principle gives the government tyrannical power not only over sex offenders over any Citizen who has broken a law – and that would probably be, let’s admit it, just about everybody.

Plus: there’s that old falsehood that most sex-offenses are committed by repeat offenders, when it’s now clear that 90% are committed by first-time offenders and that sex-offenders have the lowest recidivism rate of just about any offense-group. You wonder if the government wants to tell the truth at all.

J.Stevens raises the uncomfortable point that this statute applies not only to sex-offenders but to anybody who has committed a crime. A person, he notes, could be a bank robber, and yet just before his release could be declared by the Feds to be a “potential sexual offender” - to which Gov replies that Yes, that’s sorta true. (24/3-11)

But, Gov slyly notes, only if a person had at some point engaged in “sexually violent behavior” (24/20) Now I hold no brief for sexual violence, but the entire SO community knows that “sexually violent behavior” – especially in the opinion of clinical providers of a government or vicitmist bent – could be defined as just about anything. Which means that if the offense could be anything, then anyone could be an offender. This is a government at war with its Citizenry.

Or more accurately: a government declaring war on its Citizenry.

Now this concludes the first half of the Oral Arguments – the Justices hearing from the Petitioner, the Government. In the next Post I’ll take up the Justices as they hear from counsel for the Respondents/Defendants.

I took this much time – and didn’t simply summarize the issues in an analysis approach – to give you a sense of the drama (and I don’t mean soap opera). And so that you can see how matters of huge portent to the future of the Republic and The People can hide in what might appear to be lots of words and subject not of general interest to folks.

And so that you can get a deeper sense of how important the work against the SO mania is: the mania itself is a symptom of things going grievously wrong in the country, and most surely in the government – Federal even more ominously than State.

Lots to do!

NOTES

*See my Post on an excellent Glenn Greenwald article about government and the Constitutional priority of Due Process over a purported right to Total Protection here. The Post contains a link to the article.

**It was this diabolically brilliant insight of Stalin’s that provided the US military the solution to the impossible demand Harry Truman, with Jimmy Doolittle’s recommendation, made upon it in 1946: make the military justice system conform to American law and the Constitutional ethos. It was impossible because the whole idea of a military is to take orders from the top down and guarantee a victorious outcome.

But with Stalin’s plan, you can set the stage to look just like a Perry Mason courtroom, except with nice uniforms and more flags, and still get exactly the outcome you want because everybody in the scene works for you: judge, prosecutor, cops (the sainted NCIS who got a TV show about them), the prosecutors (the sainted JAGs who got a TV show about them), the defense counsel, the witnesses, and the defendant. And the government that runs the show – through the General officer who convened the courtmartial in the first place – is also a Party to the case. Wheeeeeeee! If the conviction rate is only 97% it’s because 100% might look suspicious.

The military waited to see if Harry was dis-elected in 1948, and when he wasn’t they put Stalin’s idea into uniform and called it the Uniform Code of Military Justice, unveling it in 1950. Marvelous. Fifty years later, when it was reviewed from within the government itself, the UCMJ was assessed as still having “too much command influence” to really work as advertised. But of course, the advertising is the only ‘Constitutional’ part of the thing.

And the band plays on.

THE SHANLEY OPINION

I want to go over the January 15, 2010 Opinion of the Supreme Judicial Court of Massachusetts in the case of Paul Shanley, former priest accused of assorted sexual charges against male youngsters, in which recovered or repressed memories played a great part.

The text of the Opinion is here.

The first point to make is that the Supreme Judicial Court (SJC) is only dealing with the points raised by Shanley in his Appeal, and is not engaged in a wholesale review of ‘recovered memory’ (also known as ‘repressed memory’ and connected closely with the formal psychiatric diagnostic term “dissociative amnesia”).

That being said, there is a lot here and it offers significant instruction to the concerned reader.

The SJC rejected Shanley’s appeal of his conviction.

To recall the essentials of the original matter: in February of 2005, Shanley was convicted of two indictments charging rape of a child and two indictments charging indecent assault and battery on a person under the age of fourteen. These acts occurred between 1983 and 1989 when the victim, between the ages of about 5 and 11, was attending church education classes at the parish where Shanley was serving as a priest.

The accuser (call it a personal tic, but I prefer not to use “victim”), a former Air Force police officer and now a local fire fighter, testified that he did not remember being abused until more than twenty years later, sometime after January 2, 2002 when his girlfriend called him at his post in the Southwest to tell him that one or several school acquaintances of his had just remembered being raped by Shanley, following the first articles in the ‘Boston Globe’.

As the Opinion succinctly puts it: “The victim’s testimony about what he remembered of that abuse constituted the core of the evidence against the defendant at trial”.

Shanley’s Appeal raised four points, only two of which are of significant concern to the SO community, as far as I can make out: that the trial judge erred in allowing testimony related to “repressed memory” and that the prosecutor made improper arguments during her closing.

I’ll focus on those aspects of the Opinion, although I will also discuss some of the Footnotes to the Opinion, which hold a few nuggets themselves.

In recounting the evidence presented at the original trial, the SJC reveals the problems that often arise in this type of case: “the Commonwealth’s case included the testimony of the victim as to his memory of the abuse; the testimony of witnesses who observed the victim during the period of time when he claims he recovered the memory; the testimony of an expert witness on dissociative amnesia and recovered memory; and the testimony of individuals who could corroborate that the victim both attended classes during the period of time he said he was abused and occasionally left those classes for behavioral reasons”. [italics mine]

As you can see, there is precious little solid to go on, and much that is widely open to – ummm – alternative explanations. Thus, the testimony of repressed memory is about as close as the modern era can come to the old Medieval ‘spectral evidence’, visible only to the one who reports it and it must either be taken on faith or rejected, since nobody else can see or otherwise examine the evidence.

Ditto, friends and relatives who testify as to how the defendant behaved after suddenly remembering may simply be an innocent – or collusive – audience at a play put on by the sudden-rememberer: there’s really no way to know if their testimony is of much use, since the core non-provability of the ‘memory’ may also corrupt the witnesses to the effects of the reputed memory.

Those who testified that the accuser attended classes simply establish his presence at a certain time and place.

I’ll talk about the experts a little later on in this Post.

Again, nicely if inadvertently, the SJC states that “setting aside the victim’s testimony regarding the alleged sexual abuse, and the testimony of the Commonwealth’s expert, the jury could have found the following facts” … that the defendant was stationed at such and such a parish as a priest during the years the accuser was a student; that the defendant would often check on the students in their Sunday religion classes; and that the students in the classes ranged from age six to fourteen. And those are the facts. Beyond that … well, you’ll see.

Born in 1977, the accuser had what used to be called a ‘broken family’ (now more or less considered as just part of the new-normal adventure of growing up). He was notable as part of number of children who “became quite boisterous” in class; the accuser and two of his friends were particularly notable for this deficiency, which required their being sent out of class and disciplined “often”. Occasionally, such admonishment fell to the defendant, quite in keeping with his overall responsibilities.

It was on January 31, 2002 that the accuser – stationed in the Southwest – received a phone call from his girlfriend telling him about the accusations made against the defendant, to which, the Opinion notes, the accuser made the immediate response “That’s weird, everyone liked him”.

Following the conversation, the accuser got onto the internet and did some serious looking around, and began remembering that he was taken out of classes, but nothing else.

But on February 11, 2002, the girlfriend again called to report that one of his old pals had made an allegation of abuse against the defendant. With stunning straight-face dryness, the Opinion then states that “the victim had a strong emotional and physical reaction to this news” and that “shortly after this conversation, the victim contacted his flight chief and said that he was not coming to work”.

The Opinion then notes that on the same day the accuser did not go to his duty assignment, he also called the old pal who had made the allegations [whose case the Commonwealth, at the last minute, would decide not to bring to trial]. The Opinion continues drily: “Then early the next morning, the accuser contacted a personal injury attorney, with whom he later entered into a fee agreement” [this means that the attorney would take the case for a percentage – usually around a third – of any monies achieved]. And then the accuser went to see the base psychiatrist where – rather remarkably – “he stayed … for ten or twelve hours and felt awful, confused, and sick”. [italics mine]

This is all remarkable. The timing and the clearly rational eye to financial gain are glaring; and in the Diagnostic and Statistical Manual, Fourth Edition (DSM for short; a Fifth is in the works) it is specifically stated that “malingered [nice professional word for ‘faked’] amnesia is more common in individuals proceeding with acute, florid symptoms in a context where potential secondary gain is evident” – all of which would appear to apply here.

After a trip back home in the middle of February, the accuser went back and got himself an honorable discharge (not so hard to do nowadays) and never worked at his police job again, returning to Massachusetts to live with his girlfriend. He received a half-million dollar out-of-court settlement from the Archdiocese back in the days when they were settling in lieu of trying to defend their priests.

Things are not substantially improved as the Opinion gets to the actual sexual abuse allegations: the accuser testified based on memories he recovered after learning of the allegations made by others.

The Commonwealth’s main expert was a Dr. Chu, an expert in the recently-erected malady termed Dissociative Amnesia, who was not asked to diagnose the accuser (the accuser was never actually diagnosed by anybody as having it!) but rather “to assist the jury in determining the credibility of the victim’s testimony, that he had recovered memories nearly twenty years after the abuse, and their consequent reliability”.

Chu first pointed out that Dissociative Amnesia (popularly known as recovered or repressed memory) is in the DSM itself – and this I think is the key to the Court’s rejection of Shanley’s ‘recovered memory’ point: no Court – no matter how hard it had to work at keeping a straight face – could reject the legitimacy of a malady that the professional psychiatric-psychological community had placed in its official diagnostic manual. And this, I think is the heart of the problem with the use of ‘recovered memory’ in the courtroom context: the medical community has already undermined any rational objections to this hugely contested and on-its-very-face dubious theory by trying to keep the peace in its own house by letting the thing into its master diagnostic manual in the first place.

Yes, the 1994 edition of the Manual itself (pp.478-481) goes to credible length to note that the recent “increase has been subject to very different interpretations [italics mine] : some believe that the greater awareness of the diagnosis among mental health professionals [a very large and uneven group, covering a range from psychiatrists to assorted ‘therapists’] has resulted in the identification of cases that were previously undiagnosed” but that “in contrast, others believe that the syndrome has been over-diagnosed” [ it had originally been associated with combat experience and natural disasters and only as the sexual-abuse mania started was it suddenly applied to those “survivors”]. Individuals might well, the Manual notes, be “highly suggestible”, a polite way of saying that assorted unhappy folks could be convinced by therapists that they were suffering from it.

Later on in the Section (p.480) , the Manual warns about Malingering, that nice term for faking it; with spectral evidence, and symptoms that can only be accepted but cannot be directly examined – thus increasing the possibility that they can be faked, such a gambit is a very significant possibility.

The Manual also takes pains to note directly that this diagnosis is “especially difficult to assess in preadolescent children” because it may be confused with a host of other possible problems.

In discussing the Course of the malady, the Manual uses examples of soldiers in combat. In all cases, “care must be exercised in evaluating the accuracy of retrieved memories, because the informants are often highly suggestible”.

Then the Manual gets a little more specific about sexual abuse memories (p.480): “There has been considerable controversy [italics mine] related to reported physical or sexual abuse, particularly when abuse is alleged to have occurred during early childhood. Some clinicians believe that there has been an underreporting of such events … however other clinicians are concerned that there may be overreporting, particularly given the unreliability of childhood memories”. And then the Manual says outright that “there is currently no method for establishing with certainty the accuracy of such retrieved memories in the absence of corroborative evidence” (pp.480-1)[italics mine].

Which is not a problem that is ever going to be solved, because there is no way to ‘see’ a memory inside another person’s head, except in Star Fleet medical scenarios, or the Vulcan mind-meld. (Although I seem to recall that Dumbledore recently displayed some technology that enables a memory to be encapsulated in a liquid, then made visible if the vial is emptied into a certain type of bowl – but I’m no expert on things Hogwart.)

As you can see, while the clinical community covered its own bases by acknowledging that there is significant controversy among the professionals themselves, the very fact that this thing was allowed into the Manual creates a massive difficulty when attempting to raise rational objections in court.

Worse, then, has been the extension of this combat-and-natural-disaster malady to sexual abuse, where you get scenarios so obviously similar to the ‘spectral evidence’ of the Witchcraft Trial era that you ask yourself if the country’s jurisprudence hasn’t taken a huge step backwards to the 17th century. I think it has. Nor do I think it can reasonably be characterized as either ‘progress’ or ‘reform’.

And one criminal defense website makes note that ‘recovered memory’ is now not only a ‘diagnosis’ but a ‘prosecutorial strategy’: it constitutes what is politely called the prosecution’s ‘theory of the case’, meaning that this is how the prosecution thinks that their charges are reasonably possible. So whereas 20 or more years ago the prosecution could never come into court with a sex case and claim that their main or only proof is a ‘memory’ that the accuser suddenly discovered s/he had after a period of umpty years, now it is possible to do it with a straight face and courts will – thanks to the DSM inclusion – have to accept that the theory is at least possible. Such are the dangerous consequences generated by mania science upon mania law.

Further “Dr. Chu identified the ways in which a clinician would go about testing the validity of a memory recovered many years later, including determining whether a person's life changed abruptly at a certain time, whether the person has had the ability to begin and maintain interpersonal relationships, and whether the narrative of the person's life is believable and reasonable”. But as even the Court’s straight-faced recounting of the accuser’s personal history indicates, he had quite a few issues and difficulties very early on and it would be a verrrry difficult thing to figure what was caused by alleged abuse and what was already there.

And then “Dr. Chu acknowledged that it was possible for a new memory to be created in some people that has no basis in reality. He gave common examples of this phenomenon on a minor scale, but explained that there was "probably only a very small minority of people who are vulnerable to that kind of suggestion." As the Court here notes, the examples were “minor”, and thus didn’t reach the intensity of something like rape.

And while he’s legally accepted here as an ‘expert’, I’m not inclined to accept at face value his “probably” guesstimate as to how many folks have actually had new memories created by suggestion.

And I note that nobody – as far as the Opinion indicates – asked him for his opinion as to how many patients-accusers do that “malingering” thing; inquiring minds would like to know.

And then in conclusion “Dr. Chu concluded by estimating that dissociative amnesia occurs in approximately twenty per cent of the seriously traumatized population”. Now is this population comprised of soldiers and natural-disaster survivors, or only sexual abuse rememberers, or both?

The defense expert, Dr. Judith Loftus, explained how humans ‘remember’: we are not tape recorders or movie cameras; rather, we “construct” memories, and in that construction, mistakes are often made. There are many things that could affect the accuracy of a memory at all phases of the process: how you perceived the event as it occurred; deeply held assumptions that shape the ‘picture’ you have in your head; “the exposure to post-event information” – meaning that you may automatically adjust a memory upon hearing or reading certain information later; being confronted with leading questions … any or all of these may “distort or supplement” a memory.

She also noted that time’s passage made memories weaker and more vulnerable to “post-event contamination”. And that’s before you even get into the contamination caused by willful “malingering”.

Then she zeroed in: it’s “virtually impossible without independent corroboration” to distinguish between an accurate memory and a false one, either from inside your head or by somebody outside your head. And, as noted above, I would add that it’s never going to be possible to ‘see’ a memory from outside an individual’s head – except in Star Fleet and Hogwarts medicine.

She asserted that from all her work and research and understanding of the literature, there is “no credible scientific evidence for the idea that years of brutalization can be massively repressed”. And I’d have to agree. With the exception of those who were infants or the very elderly – whose capacity for memories is not robust in the first place, nobody in the Nazi camps seems to have forgotten that they were there. Certainly, Evolution would want to arrange it so that humans precisely DO recall the bad stuff, so they know enough to avoid it next time. (You may forget where you left your 25-foot ladder, but you never forget what happens if you fall off the top of it.)

(Think about that for a minute: a person claims in a court-case that over a period of 5 or 6 years he continually got up onto the top of a 25-foot ladder, forgot about gravity, fell off, and in each subsequent episode he had 'repressed' the memory of his prior fall ... until now, 20 years later, he wants to be reimbursed for the pain and suffering from the falls which he didn't recall until he read in a newspaper that another such person was collecting lots of money. Do We really think that there is such a mechanism for 'repressing the memory of the trauma' such that somebody could claim he had 'dissociative amnesia' and prestigious psychiatric professionals would back him up?)

So, she says, nobody in the field has come up with any mechanism that puts a traumatizing (however that is defined) memory into the unconscious, where it then resides, pristine and accurate and in one piece (as it were) until it suddenly pops back to the surface like Titanic, ready to continue on her journey to New York with the champagne still iced and the tables and chairs upright.

And she observed that there is an “inherent limitation” to any memory research and study, past, present, or future: all of it relies for its basic input information on “self reporting by patients”.

The sex-offender community will recall that it is precisely this problem that the so-called Containment Model of sex-offender management seeks to solve by using a lie-detector as part of the post-release ‘management’ regimen: a ‘managed’ sex-offender will have his reports to the parole officer and therapist (and victim advocate) subjected to a lie-detector. Alas, it’s considered bad clinical form to use a lie-detector on those asserting ‘repressed memories’, and courts don’t even trust the things enough to allow their results into evidence. But it’s the very thing to use on sex-offenders.

The Commonwealth also called a Dr. Brown as an expert. He is an assistant professor of clinical psychology at Harvard and an adjunct professor at Simmons School of Social Work, a School within the predominantly female Simmons College, who “specializes in treating patients who have been victims of trauma” – any sort of trauma, but I’m going to bet he doesn’t get as many natural-disaster survivors as he does sexual ‘survivors’. [The Opinion lists a book he has written – “Memory, Trauma Treatment and the Law” – but I haven’t had a chance to look at it].

I will say that in a nutshell my take on a lot of these studies in support of ‘repressed memory’ is that they merely support the possibility of it; it’s theoretically possible, they say, although in science you then have to see if reality actually supports your theory – and few if any have been able to comprehensively ground the entire theoretical ‘memory repression and recovery’ process in actual proven facts. One study notices something in rats, another in how a person remembers or forgets under certain types of pressure, and so forth. But there is – and probably never will be because there cannot be – any study that puts it all together into a coherent, factually conformable theory.

And yet lives are being wrecked quite actually in civil and criminal litigation and sensationalist media stories, on the basis of a theory that nobody can actually prove exists. So you have a spectral theory, using spectral evidence, that has been embraced as a theoretical possibility by researchers and clinicians, but – given that very spectral-ness – has been deployed by prosecutors as a weapon against which there is almost no defense. Good grief.

Shrewdly, Dr. Brown asserts that in six surveys of “psychology professionals, including psychiatrists, psychologists, social workers, and clinicians working with war veterans” 89% “of those surveyed accepted the validity or the possible validity of dissociative amnesia”. This says a lot less than it looks like it says. I accept the possibility that there is extra-terrestrial life in the universe, but that doesn’t mean I spend my money on home-defense and alarm systems designed to detect and fight off Martians. And all of these folks work with war veterans, whereas the CORE QUESTION in this case is whether ‘repressed memory’ and such applies to sexual abuse memories.

He acknowledges “that there is controversy surrounding the existence of dissociative amnesia and the difficulty of determining its existence in a particular individual”. How do you corroborate somebody else’s memory? How do you make a precise diagnosis in accordance with the DSM-IV (for all its description, it’s short on actual factual stuff)? How do you get around the fact that there are no known neurological or biological processes or entities in the body that could lead to dissociative amnesia? How do you tell the difference between a false memory and a lie masqueraded as a memory?

No answers to any of these. Yet the Manual has the Diagnosis in there, no judge is going to say he knows more about psychology than the psychologists and psychiatrists, and most juries (up until very recently, maybe) have been thoroughly soused by the sex-offense mania, and more particularly by the priest-sex-offense sub-variant of the mania. And the prosecutors love it, and you can see why.

So the Court has not actually validated ‘recovered memory’ – it has simply said that there are enough licensed professionals out there – and that Manual itself – that say it might exist, so that’s enough to present to a jury (thoroughly soused) and let the jury decide. This is the difficulty not only with jurisprudence in a time of mania, but also with a diagnosis with such huge theoretical and practical problems that is suddenly transferred from the academic and therapeutic forum to the legal and prosecutorial arena.

And this, the SJC Opinion asserts, even though “defense counsel utilized the DSM-IV in questioning Dr. Chu, focusing the testimony on the DSM-IV's cautionary language regarding the use of DSM-IV in forensic settings where the patient has been referred by an attorney, and in making a diagnosis of dissociative amnesia where there is ‘currently no method for establishing with certainty the accuracy of such retrieved memories in the absence of corroborative evidence’." [italics mine]

This is not a ringing judicial endorsement of the diagnosis or the theory.

And as to the prosecutor’s closing statement, this is what she said:

"[The victim] is a twenty-seven year old man. He's recently married. He has a job that he loves.... He has half a million dollars in his pocket. So why, ladies and gentlemen, did he come in here and tell you what happened to him? Why? What does your common sense tell you?

"You saw him on that stand for almost 14 hours day after day, hour after hour, he willed himself through that testimony. You saw it. What does your common sense tell you?

"He came in here and he told you what happened because that man, that defendant, that priest, raped him and molested him when he was a little boy over and over again. The defendant would have you believe it is all a lie. It's for the money; that people don't forget about things that happen to them and then later remember them....

"Was it all a lie? Was it made up? Did [the victim] come in here and just lie about it? Was it for the money? He has the money. He got the money over nine months ago. No strings attached. What did he get from coming in here? The opportunity to be on the stand? He sustained long, painful questioning, and what did he get from it? It's not about the money. Put that aside. Is it all a lie? ...

"And [an attorney] filed a civil lawsuit on behalf of [the victim], and [the victim] got a half a million dollars. True. But so what? It's all done, signed, sealed, delivered to the bank. And it's done. No more words need to be said. That's over. And it has been over for over eight months. That's what you know. That's what you know about what happened."

You can look here to get an idea of the entire gist of the accuser’s story as to how it all happened. And also on my Post on this site here.

The jury was asked to accept that a boy with some notable behavioral issues was abused, forgot it immediately, and underwent that same trauma or worse, repeatedly over the course of five years, forgetting that it happened each time and not remembering that it had ever happened to him previously, and then forgot the whole thing until he found out two decades and more later that other people were making accusations, whereupon he got a personal injury lawyer, spent a lot of time in a psychiatrist’s office, kept a journal of his feelings, got himself out of a military commitment, went home to live with his girlfriend who then became a witness to the ‘effects’ of his memories, and collected half-a-million in cash.

I’m not saying it didn’t happen, but there it is.

The prosecutor’s appeal to “common sense” is kind of remarkable. I think it is based on the shrewd perception that by that time (very early 2005, the date of the original trial) the jury was soused with the sex-offense mania and so its “common sense” would be shaped according to the tenets of the sex and priest-sex offense mania. Folks like to be flattered that they have “common sense” and the prosecutor clearly laid that flattery on with a trowel.

And part of the “common sense” of the mania is that it is insensitive to question the victim; “believe the children” was the mantra in the now thoroughly-discredited 1980s pre-school satanic-abuse ritual trials, if you recall.

What benefit would the victim derive from coming in here and lying, the prosecutor asks. After all, he already had a lot of money from his civil settlement – so what else could he be after? Well, one answer might be that he didn’t expect to be in there in a court of criminal law since he had only the money in mind when he started out – but now that the Commonwealth decided to bring the case what could he do? Say he didn’t want to testify? Say he couldn’t remember again? He was, perhaps, ‘stuck’, as they say.

And perhaps there was a psychological “secondary benefit”, as the DSM puts it: his whole messed up life and self is now explained by the fact that somebody else did it to him. The father of this accuser's friend - the one who first made an accusation but whose hugely problematic background precluded confidently putting him forth as a victim in the trial - said that precisely: “As soon as I heard about the memories, I knew it would explain everything and I was going to have all the answers”. That “everything”, Dad didn’t mean to reveal, meant his kid’s whole messed up life (and perhaps his own role as a father in causing it). That’s a pretty big benny – a sudden and complete excuse for everything you’ve ever made a mess of.

That’s my take on the text of the Opinion.

There are a some meaty points in the Footnotes (FN).

FN9 states that Dr. Chu assured everyone that a diagnosis gets into the DSM only after a "fairly rigorous process by which interested groups of people" may convene a task force or engage in field trials to test a new diagnosis of a specific syndrome. The diagnoses in the manual are subject to revision and evolve over time. The dissociative amnesia diagnosis first appeared as such in the third edition of the DSM, DSM-III”. Well, you can see something here: the process can’t be rigorously tested, clearly, since nobody except Spock and Dumbledore can ‘see’ other peoples’ memories and that’s not changing any time soon. Instead, different groups push or oppose a suggested Diagnosis, and then after a while they take a vote on it – and if there enough votes, the Diagnosis gets into the Manual. But again, after it got in through such a ‘rigorous’ process, it was applied not just to the original combat and natural-disaster sufferers, but also to those who had been sexually abused (however that is defined) back in those early 1990s when the abuse mania had reached white heat. It’s not impossible that the Diagnosis may be ‘revised out’ of the DSM – although where that would then leave persons convicted under it is one of those unlovely questions that always seep out of the underside of mania law.

FN21 states that “taken collectively, the articles further illustrated the controversy over repressed memory, that the theory was questionable because it could not be tested with scientific methods; that there was the possibility of false memories; that clinical techniques could lead to the formation of false memories; and that there was uncertainty about the neurological mechanism which caused repression”. The SJC is saying here that it acknowledges all the controversy, but that in law the only question is whether enough professionals go along with it so that a court would be imprudent not to accept their professional evaluation or opinion.

FN26 is verrrry interesting: “The defendant does not challenge on appeal the sufficiency of the evidence. We do not consider whether there could be circumstances where testimony based on the repressed or recovered memory of a victim, standing alone, would not be sufficient as a matter of law to support a conviction”. [italics mine] The SJC is saying here that it did not need to consider in this particular case the question of whether a conviction could legitimately be made only on the basis of ‘recovered memory’ testimony (although it had stated earlier in the Opinion that the accuser’s recovered memories were pretty much the whole case). But Shanley’s Appeal did not raise the point so the Court did not have to consider it. I get the impression that the SJC would not be too happy with a repressed-memory-only conviction. Although in this case, from what I can make of it, I can’t see what other evidence persuaded the jury to convict – but that’s law in a time of mania for you.

FN30 gives you a fine glimpse into prosecutorial rhetoric: in one of her arguments the prosecutor said "But, ladies and gentlemen, think about it for a minute. Hasn't it all happened to one of us: the walking down the street and you bump into someone, or you are at a high school reunion, just like Dr. Loftus said, and you see someone who you haven't seen in a long time and you start talking. And all of a sudden you remember the time that the two of you were out together and you ran out of gas and you got stranded by the side of the road, and then you got into trouble because you missed your curfew. Now, you hadn't thought about that 10, 12 years, but now you remember. Does it make it any less real that you hadn't thought about it? Does it mean that it never happened? No. Use your common sense."

So back to the “common sense” thing.

But look at her example: she compares a high-school reunion where in idle conversation with an old classmate you suddenly recall a minor point about an insignificant event that you hadn’t thought about in years. This, somehow, is supposed to be the same as remembering as if by inadvertence that you had been raped and abused serially over the course of years – years when any kid could be remembering a favorite athlete’s ‘stats’ down to the third decimal place . And the jury apparently bought it.

Well, there’s my take on the Opinion in the Shanley case.

I’d have to mention one other point. This Opinion was issued on the Friday before the Tuesday of a Special Election in Massachusetts, in which the Attorney General (a Democrat) who had brought this case was running in a hugely contested race for a US Senate seat (the President, if I am rightly informed, flew into Boston on Sunday the 17th to lend his support). Politics being what they are, I can’t help but notice the coincidence in timing.

But really, I don’t know if the Court could have decided differently. The problem is that the professional therapeutic community, through its premier national organization, had put its seal of approval on the ‘science’, and it was that placement of the Diagnosis – as grievously flawed as its theory is – into the DSM that undermined things. Perhaps one might have argued more cogently not as to the validity of ‘repressed memory’ in general but rather its validity as applied to sexual-abuse cases; but there are a lot of ‘professionals’ – especially in the lower ranges of that definition – who are happily conducting business under the aegis of this Diagnosis and its underlying theory, and I don’t know how much success you could achieve.

That’s law and science in a time of mania.

RECIDIVISM

This is a just a brief Post (I’ll be putting up some Shanley and Comstock material shortly).

Andy Worthington is a UK writer who has been following the Guantanamo situation. In this piece he dissects the government’s recent attempt to claim a high rate of recidivism among released Gitmo inmates as justification for everything it has done there.

As you can see if you follow the hyperlink to Worthington’s article, the government has inflated and mis-represented the ‘recidivism’ among the released inmates – claiming that a large proportion of them have returned to ‘terrorism’ once they got out. And, of course, that such a recidivism rate both justifies what the government has done to them and would somehow like to continue doing to them.

But the numbers were false – not to put too fine a point on it.

And there remains the monstrous conceptual question of categorization: how do you distinguish a ‘genuine’ terrorist from somebody who simply takes up resistance against what he sees (hardly irrationally) as the invasion of his country? Or how do you distinguish a ‘genuine’ terrorist from somebody who was literally ‘sold’ to Western forces by a rival or somebody with a grudge, in exchange for hefty cash rewards?

It struck me that these issues are all familiar to the SO community.

Further, that these types of gambits were first developed in the sex-offender mania years. And with almost total legislative and judicial backing.

Which means that their presence here in the foreign-policy (and foreign war) arena indicates that they have ‘migrated’, as the Beltway might put it. The Beltway folks saw how ‘successful’ the sex-offense mania has been and decided to use some of the same tricks in other areas of activity.

In case you ever have any doubts about the overall value – and downright urgency – of working to dissolve this mania.

CASOMB 7

This continues my look at the California Sex Offender Management Board’s Report. The text is here.

Don’t forget the page-numbering system: the first number is the Adobe browser number and the second is the page number of the actual text.

I’m going to deal with the remaining 3 Sections of the Executive Summary – 6, 7, and 8 – and conclude my CASOMB thoughts in this Post since there is now much to note in the recent oral arguments to the Supreme Court in the Comstock case and also a development in the Shanley ‘recovered memory’ case up in Massachusetts.

Section 6 deals with Housing. The Report (issued in January 2008, you will recall) reports in its Data review that as of December 9, 2007 there were 3,884 sex-offender parolees who fall under the Jessica’s Law strictures, and about 3,150 were in ‘compliant’ housing. The Jessica’s Law, as with so many of these SO-mania laws, has come under increasing challenge in the courts and if you keep up with such sites as Constitutionalfights on blogspot or any of its data and newsbrief oriented sister-sites there are now increasing numbers of comments from officials as to how much trouble this ill-considered law has created for the State agencies.

There has been (in January 2008, now 2 years ago) a quadrupling of the number of SOs who have declared themselves to be ‘transient’. The ‘easy’ and quite useful pro-mania response to that is that many SOs are trying to ‘slip through the cracks’ by claiming they can’t find housing. It is to the Report’s credit that it agrees as to the importance of housing since “supportive housing which has been developed in other states has shown a decrease in re-incarceration by as much as 50%” (21/15). And you can imagine that since SO’s are almost uniformly less likely to ‘recidivate’ than any other crime group, then that’s even better news.

The Report notes that there is no statewide organization assigned to oversee the whole matter (21/15). That’s a clear indicator that these mania-laws create not only a devil’s web of strictures and requirements for SOs and their families, but also that the laws almost automatically guarantee the necessity for either an exponential increase in administrative and enforcement work for existing state agencies (and bureaucracies) or for the creation of an entirely separate (think TSA-type entity) oversight and enforcement entity simply for sex-offenders (past, present, future, present but hiding among the ‘law-abiding’, past but hiding among the ‘rehabilitated’, future but hiding behind the annoying fact that they haven’t been caught at it yet).

Such a vision of agency (and bureaucracy) creation might have been sweet mother’s milk to any State in the happy times before the economy crashed.* But the lack of dollars (to say nothing of the implications that huge and unregulated entities - think of the ‘financial industry’ successfully managing or sustaining the economy, or TSA still unable to prevent whackery on aircraft) means that these ‘visions’ are about as actually workable as Hitler’s imagined ‘armies’ that would come to rescue him in Berlin as the whole thing caved in and the distance between the Western and Eastern fronts could be covered by a kid on a messenger bicycle within the course of a single day’s pedaling.

And as I’ve suggested in earlier CASOMB Posts, I think the State of California is starting to realize that.

As so often with this Report, it then goes on to point out a numbing and stunning reality that would undermine its can-do and ‘optimistic’ mindset: “Identifying safe and appropriate housing for convicted sex offenders has been a longstanding community challenge. Community members are generally reluctant to live next door to an offender or, often even in the same neighborhood. As a result, housing options are usually more limited for sex offenders than any other type of offender. Recent changes in state and federal statutes have rendered housing options even more limited. Many sex offenders have traditionally utilized the home of their families as transitional housing until they were able to secure a more independent living option” (21/15).

None of these facts should come as a surprise.

We knew as early as the New Jersey Megan’s Law, and the fatuous maunderings of the Poritz Decision in 1995, that the public was not simply going to accept philosophically and maturely the (alleged) presence in their midst of hordes of incorrigible stranger-sex offenders hunting their children in their very school-yards, back-yards and homes.

Rather, folks were going to quite rationally – presuming that they trusted and believed the Findings that legislators and courts and assorted garden-industry ‘experts’ assured them were true – imagine that the most effective solution for so awful a threat was to get rid of such persons – or suspected persons – without further ado.

So ‘housing’ was clearly going to be a problem, especially once the mania proceeded to its more advanced stages and began to impose residence restrictions on top of the lethal implications carried within the original Findings themselves.

I disagree with the cheerible if perhaps brave characterization of this housing problem as “a long-standing community challenge”. This is the equivalent of suggesting that fateful night that Titanic’s gaping hole in her hull merely presented an opportunity for new achievements in command excellence and ‘creativity’. Phooey. She was doomed the minute she finished running alongside the berg and the only thing left was to figure out how to reduce the casualty rate when she went down.

This “challenge” is insoluble, given the terms of the original Findings, and that reality should have been clear to any sober assessment as soon as these mania laws started coming out 20 years ago. And I am talking right here simply of the mechanical and tactical problems. The Constitutional problems and the general ‘polity’ problems (declaring any group of Citizens – even convicts or ex-cons – to be an eternal threat) were fatal from the get-go.

The Board – bless their good and competent intentions – is facing levels of difficulty far beyond the tactical administrative and bureaucratic and ‘public education’ issues. You cannot tell the public these ‘monsters’ are real and then say that there are ‘creative’ ways to educate yourself into not-fearing their very existence in your community. Yes, you can try to dial-back the mania, but a mania by its very nature exists in the realm of exaggeration – so to try to reduce the exaggeration threatens the very existence of the mania itself.

And in this situation, after all these years, you now have vested interests who want to see the mania continue, because they are making money or gaining ‘expert’ status from declaiming upon it.

And you also have the even more ominous death-grip on the mania exerted by all of those who have exposed themselves to embarrassment, opprobrium, or legal action (criminal as well as civil) for their role in foisting this mania on the public and against so many Citizens in the first place. We recall the original judges in the Salem Witch Trials who quietly destroyed the actual official court records and transcripts of the proceedings over which they themselves presided, in order to prevent their own embarrassment and prosecution once the madness began to subside. And all the Italian bureaucrats of the Mussolini era who in 1946 wanted pensions for their years of service although, come to think of it, they couldn’t quite recall what they were doing during the Mussolini years except ‘just following orders’ and ‘just doing their job’.

This is now the mess on top of the original mess that the country now faces.

So, yes, “housing options are limited”. Worse, the solution – working within the current and probably indispensable framework of the mania – seems to be ‘sex offender settlements’ of some sort, like leper colonies or ghettos. This is ‘progress’? This is ‘liberal’? Such are the dark alleys down which the Regulatory-Preventive state lead you.

It’s simply too too nice to observe that “recent changes in state and federal statutes have rendered housing options even more limited”.

It’s also something bordering on the lethally cynical to assuage concern by saying that “sex offenders have traditionally utilized the home of their families as transitional housing until they were able to secure a more independent living option”. There is no transition: given the framework of the mania, a ‘sex offender’ designation is going to guarantee a lifetime of unemployment or at best underemployment, and a disbarment from almost all useful civic participation. This is what you get when you try to ‘brand’ Citizens as incorrigible monsters and pretend that doing so won’t significantly derange the Constitutional vision and ethos of the country. Phooey.

Worse, among the ‘strengths’ in this Section the Board includes the assertion that “public support for housing restrictions is strong” (22/16). If it is “strong” then it is so because the public has been stampeded by the original Findings and framework of the mania itself: those official assertions that sex-offenders are incorrigible and monstrous recidivists. And the Report has already made mention of those (grossly inaccurate) public misconceptions – so the Report here undermines itself and approaches, alas, conceptual incoherence.

And this Section concludes with the observation that Jessica’s Law “does not identify who is responsible for enforcing residency restrictions after the sex offender is released from probation or parole, and provides no funding for it” (22/16). Which is another glaring example of the whacked-out legislative productions that result from mania-legislating: legislators simply keep piling on ‘popular’ restrictions with no thought as to how the laws are to be enforced (or how enforcement is going to be paid for) and often legislators will do all this law-making in secret, in closed session and backroom arrangements, so that there is almost no chance of any intelligent objection gaining any traction. This cannot end well.

Section 7 deals with Treatment. It notes that as of 2000, 39 of 50 states provided treatment within their prisons and that as of January 2008 California did not.

And now with the economic crisis, you can imagine that little money will be freed up by cash-strapped California for such ‘treatment’, even though it has those thousands of SOs incarcerated.

It is axiomatic in clinical treatment that you want to get at the problem as soon as possible, even in the carceral setting. A shrewd tactic of the mania is that ‘treatment’ is withheld until after the sentence is over (and for the most seriously in need, this means that civil commitment post-sentence is going to be the norm).

Worse is implied in the Report’s assertion that “sex offender treatment … [is carried out] with victim safety and reduction of recidivism being the main treatment goals” (23/17). The proper goal of all “treatment” is the improvement in the self and life-competence and functioning of the patient; in the carceral setting – and especially in these mania times when ‘sex offenders’ have become the ‘demon of choice’ for various politically popular groups – the treatment canons have been deranged in favor of ‘victims’. And of preventing ‘recidivism’ (which has always been low, regardless of ‘therapy’).

So the whole ‘treatment’ process is profoundly skewed, and ethically deranged, from the get-go.

Add to that the fact that in consequence of the mania, those incarcerated for a sex offense must ‘admit’ to their offenses and not be ‘in denial’ must ‘admit’ for the record, even if they are maintaining their not-guilty status (for purposes of appeal and so forth, if not also perhaps because they were innocent in the first place).

And that anything you say in a prison therapy session will be taken down and reviewed by prison legal staff (perhaps even referred to legal staff by the ‘therapist’) for possible further legal action.

Will this discourage ‘participation’ by SO inmates? All the more grist for the mania mill: SOs will be accused of refusing to be ‘rehabilitated’.

And on top of all that, there exist profound confusion and ignorance as to the dynamics of sex offenses (before you even get to the very real probability that there is no specific ‘sex offense’ diagnosis nor any specific ‘sex offense syndrome’ that can be identified and studied in order to formulate an effective therapeutic strategy).

The Report accurately goes on to note that certain methods – such as the cognitive-behavioral method – have proven to be of use in “reducing recidivism by as much as 40%” (23/17). First, I’m not sure this figure refers to SO recidivism or to general recidivism. Second, the Cognitive-Behavioral approach (“critically examining deviant thoughts and behaviors”) would be a sound approach when helping any offense-group, including bank-robbers and (excuse the snark) impetuous financial manipulators with high-paying Wall Street jobs.

And given the low recidivism among SOs generally, independent of whether ‘therapy’ was received or not, then who can tell just how much of the ‘recidivism’ has been reduced by the therapy and how much was reduced by the fact that the only common characteristic of ‘sex offenders’ appears to be that with a very few exceptions their ‘class’ of crime seems to have almost the lowest recidivism rate of any offense-group?

The Report goes on, striking a familiar note: “Collaboration between treatment providers, parole agents / probation officers, clinical polygraph examiners, and victim advocates are key elements necessary for the successful re-entry and continued supervision of sex offenders” (23/17).

Clearly, as I have said, this is not ‘therapy’ in quite the way the average person would understand it: the special space provided by therapist and patient in which a safe and private space is created in order to handle the most intimate and difficult and complex thoughts is not there. So you are essentially trying to fly at Warp Speed without creating the pre-requisite Warp Field. And any first-year cadet at Star-Fleet Academy can tell you what’s going to happen if you try it.

And once again, the role of ‘victim advocates’ in the therapeutic process: what competence or constructive input does a victim advocate (not even the actual specific victim of the individual undergoing therapy) bring to the process?

This skewing is continued: “In many cases, community safety and/or the safety of potential victims, as opposed to offender comfort, is the focus of sex offender treatment” (23/17). What is the actual meaning of this statement? First of all, there is that weasel-like “comfort” of the “offender”: so he doesn’t get a television or a nice chair to sit in during therapy sessions? That seems ridiculous, so let’s give the Board the benefit of the doubt that they don’t mean ‘comfort’ in any such obvious sense.

But then: what other sense is there? Unless ‘comfort’ is a code word, and the denial of it a code word for some other process that those who use it would rather not discuss (in public, at least). Does this statement mean that the best-benefit of the offender-as-patient is not the priority of the therapy, but rather “community safety” is the goal? But if the offender-patient is treated successfully, and thus his life is straightened out, then ‘community safety’ is automatically enhanced anyway, so this ‘priority’ of ‘community safety’ makes no sense and is not conceptually coherent here.

Unless the priority of ‘community safety’ means that the offender-as-patient is really and genuinely disregarded, in favor of the offender-as-demon, such that the nice thought of ‘therapy’ is mostly undermined to serve the wishes of the Regulatory and Preventive and mania objectives of the State, bolstered as it has been these past 30 years by the magical mantra of ‘victim safety’.

And ‘potential’ victim safety. Which means that the very real offender-as-patient takes a back seat to persons who do not exist and may never exist (given the commonly low recidivism rate of almost all types of sex-offenders). Which means he gets ‘supervision’ masquerading as ‘therapy’ so that some other influences may be placated and ulterior motives advanced. I will say this: when you’re trying to do therapy, and you run such a crooked regimen, and your ‘patient’ is smart enough to figure that out, then the chances of conducting a successful therapy are profoundly undermined. Your ethics – the professional and ethical integrity of your treatment regimen – and the chances of a successful therapeutic outcome are deeply intertwined.

Yes, I strongly support the outcome that the offender will be able to “monitor his own behavior” (23/17). But as you can see above, a treatment regimen so skewed as this stuff is will have a very poor chance of achieving such an objective. (In which case everybody can give thanks that SOs have such low recidivism rates as a matter of course in the first place – despite the crooked treatment regimens, SOs still don’t reoffend in great numbers.)

And lastly, I’d imagine that if you were going to try to impose your eternal-supervision model on all former offenders – including those who have long been out of ‘the system’ and are conducting offense-free lives – then you are not only taking on a huge additional State burden, but you are asking genuinely ‘free’ Citizens (I don’t use these as ‘scare quotes’ as the Report did snarkily in an earlier Section) to submit to all manner of possible situations in ‘therapy’ where almost anything can be interpreted as ‘fresh evidence’ and referred to the prosecutorial authorities. Give that scenario some thought.

Section 8, the final Section of this Executive Summary of the CASOMB Report, deals with Registration, Notification, and Post-Supervision Management of Sex Offenders.

The text helpfully explains the differences: “Although they are often confused, sex offender registration and community notification are two very distinct concepts.

Registration is the process by which a sex offender provides specified information about him or herself to a local law enforcement agency. The purpose of registration is to give law enforcement agencies a means to track sex offenders’ whereabouts when pertinent to an investigation of a new sex offense.

Community notification, sometimes called “Megan’s Law” because of the law that mandates this notification, is the process by which law enforcement agencies provide information to the public about specified sex offenders. The purpose of community notification is to give the public information about sex offenders so that they may protect themselves and their families.” (25/19).

Of course, it is now well-known that 90% of sex offenses are perpetrated by first-time offenders (yes, granted that the ‘theory’ would claim that they probably were doing it for quite some time and this is merely their ‘first time’ getting caught). So Registration only works for 10% of the SO ‘population’ even according to the official figures.

Secondly, the text repeats the old Megan’s Law justifications erected into public wisdom in the Poritz decision: the State (and now Feds) give the public information so that they can “protect themselves” – which, by the way, is what the State in its police authority is supposed to do, not the public; to give that power back to the public is a huge civic regression to the days before there was a State monopoly on ‘justice’ through its organized police forces. You head back into the dark swamps of vigilantism.

That’s why the Nazis wanted the Yellow Star for Jews (and other colored stars for other targeted groups): the authorities already had them ‘registered’; the Star was to invite the public to take action on its own. This is progress? This is ‘liberal’?

In its Summary of Strengths the text includes that “Public and law enforcement support for sex offender registration and notification is strong" (26/20). I don’t think this is accurate – certainly not now, if it ever was. A simple review of the news briefs on the Constitutionalfights site indicates that newsmedia (local, more than national) and law enforcement and prosecutorial agencies themselves are now raising an alarm.

And again, such a “strong” support is based on Findings and mania inaccuracies that even this Report admits are substantial and widespread.

And given the Adam Walsh Act mess – which I’m not sure the Board took into consideration when writing the Report – the number of ‘out of compliance’ offenders is automatically increased exponentially, but merely because of the technicalities of the AWA scheme.

And once again, the Report strikes that note: “The impact on victims of sex crimes from community notification efforts (passive and active) is unknown. To develop recommendations for ways in which the needs of sex crimes victims can be balanced with the public’s right to know about dangerous offenders in their communities, a study of sex crime victims is necessary” (26/20).

You will notice that in this statement the Report is still working on the old mania assumption that there are hordes of incorrigible recidivist sex offenders roaming loose, such that (equally questionable) “the public has a right to know”. As I’ve often said, it’s Constitutionally questionable whether the public has such a right, and it’s clearly untrue that such hordes are loose, and the offenders the public gets to ‘know’ are 9 times out of 10 not the ones who are going to offend.

You can see here, I think, just why the mania legislators have most often put these laws together in secret, or bypassed standard legislative procedures and standards: they can’t afford to have the conceptual incoherences at the base of this whole thing widely known or examined. If they had followed legislative public procedure, they could never have gotten the mania off the ground in the first place, or at least not so easily and with such wide-ranging results. Stampedes, famously, don’t work if you set up a lectern in front of the herd and explain why you need it to gallop off madly; you just get behind the critters and suddenly start screaming and shooting into the air.

And that doesn’t say much for official respect for the Citizenry.

There is an interesting twist: Notification means that folks so inclined might be able to put 2 and 2 together and figure out a particular web-sited offender’s victim. Also possible is that if that offender is somehow involved as a vigilante victim himself, or otherwise comes into the public eye, then information about the victim would be drawn up into the public eye. There’s no easy way around this – unless you pass laws to the effect that victims should never be mentioned, but that runs contrary to the whole dynamic of openness in public affairs, and once you start down that road …

The Section and the Summary concludes with an interesting observation: “The effectiveness of efforts to educate the community regarding the realities versus the myths about sex offenders and sex crimes is unknown. How informed is the community about sex offenders and sex crimes? Have they utilized the community efforts of the state and local agencies? Are local citizen groups involved in educating the community?” (27/21).

No, nobody does know about ‘educating the community’ efforts. The mania works best if the public simply gets the selected sensational bits released in the service of keeping the stampede going. And this would be most certainly true if, as the Report (to its great credit) wants to dispel the “myths” about sex offenders.

But of course, dispel the myths and dissolve the stampede and the mania. But then, maybe the Board and the State of California are trying to lay some groundwork for dialing-back the mania. But without upsetting those forces, groups, and interests who would themselves react in a stampede-like way if the mania were now called off. This is going to be hugely difficult to do: you can’t have it both ways: a mania and an accurately-informed public.

And, finally and in conclusion, given the Board’s ‘victim’ orientation in this whole thing, I’m a little nervous about “local citizen groups” who are going to “educate” the community. This might well turn out to be simply ‘victim groups’ putting forth a public version of the old Jerry Springer or Oprah shows, with lurid tales and tearful demands for vengeance – and that’s just going to be more of the same old mania manipulation.

So that’s my take on the CASOMB Report.

Overall, I’d say it’s a very worthwhile and interesting development, and remarkably revealing. But it has set itself – for whatever political considerations – an almost impossible task.

And it demonstrates to everybody willing to see, that there is no easy way to call off a huge public stampede once you’ve started one, and once the highest public authorities in the land have spent the best part of 20 years trying to keep it going and intensify it.

Such are the dangers of public manipulation and demagoguery on a massive, sustained, government-sponsored scale.

But the Germans of 1946 could have taught that lesson – and did.

But like Dick Cheney (pardon the political reference) when he was eligible for drafting into the Vietnam War, the government and certain political influence groups “had another agenda”.

And the band plays on.

NOTE

*Sad, I think, that while this country can no longer conceive of an agency for space exploration such as NASA was when it successfully carried through the moon landings, and while there are few industrial competences left, yet the ‘knowledge society’ could employ its resources in imagining a huge Sex Offender Management bureaucracy at State and Federal levels.