Tuesday, January 19, 2010


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.


*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.

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