CARR ORAL ARGUMENTS

I have read the Oral Arguments in Carr v. United States.

In fact, I read them a couple of days ago. But to tell the truth, I couldn’t get much useful out of them.

You can read some always worthwhile blog reports here and here (and also get a link to the transcript of the Arguments).

But really, I don’t see much in them.

So I’ll take a moment to go with that thought.

It’s a complicated case, revolving around just when a sex-offender who travels interstate becomes guilty of a Federal felony (through the operation of AWA) simply for travelling and not registering. So while this is a ‘sex offender’ case, it’s not a core-issues case.

As I said in my Posts on the New Jersey Poritz case and the US Supreme Court Doe v. Smith case, I’d like to see something strike right at the heart of these things: which might well be the gross inaccuracy of the Findings made by the State and Federal legislators that really provide the entire (and false) basis of the ‘emergency’ and ‘public threat’ which underlies the whole mess of SO legislation.

Otherwise, you’re always going to find yourself facing these court cases where the Court simply assumes the validity of the legislative Findings – and thus of the ‘public danger emergency’ – and once all THAT is granted, most of these cases can only become focused on technicalities and perhaps the specifics of injustice in one particular case.*

It would be nice if instead of attacking Vicksburg by climbing up the bluffs in the teeth of prepared fire we could simply blow the mountain bluff out from under the city and all the fortifications and solve the whole problem in one stroke. (Easier, I think for us today as a metaphor for how to proceed, than it would have been for Grant trying to actually reduce the city militarily in 1863).

But a couple of points stand out in the Oral Arguments.

First, the Justices demonstrated a disturbing amount of ignorance about basic facts, which makes me think that many of them weren’t prepared and – frankly – hadn’t done their homework.

And THAT makes me wonder if they really care about these SO cases. Is it possible that they figure that the case in front of them – since it deals with a convicted sex offender who isn’t trying to ‘get off’ but simply trying to avoid the Federal part of his post-conviction problems – doesn’t really excite Their Honors?

And since the Questions to be Resolved don’t go quickly and clearly to the very heart of the whole SO matter then they figure they’ll just listen, make some noise at Oral questioning, and quietly vote against the guy in the privacy of chambers.

Second, it came out through the government attorney that Congress had felt it necessary to pass AWA for a couple of reasons. First, that there are a lot of Federal sex-offenders (how can that be?) who are ‘escaping’ registration because they aren’t registering with their States, and the States don’t even know it. These offenders – post-release – manage to “fall through the cracks” and thus constitute a grave public danger (because of that frakkulously inaccurate estimation of SO recidivism rates in the early Findings) – a public danger sooooo great that Congress is deeply and urgently moved to take over from the States.

That ties in with another, less trumpeted reason: that the various States have differing approaches not only to classifying SO’s, but also to registering them: apparently Congress has been convinced by the usual suspects that there are hordes of post-release offenders loose in the country, whose State has decided that they don’t need to be registered.

In other words, there are allegedly many post-release offenders now LEGALLY not-registered because their State did not choose to consider them as needing to be on the SO registry. But since these guys too pose that grave public threat because of their ‘high recidivism’ then Congress has to pitch in and find a way to “catch” (that verb kept coming up in the discussions) them – thus by requiring an SO to register with SOME State every time he crossed a State line, the Feds are hoping to “catch” all these guys.

AND the magic number – which nobody seems to know where it came from but I’m guessing from a fax sent to a receptive Congressperson by the usual suspects – is 100,000. There are supposed to be 100,000 of these people roaming the country like un-belled feral cats, carrying their disease and danger with them and none of the poor States even know that they’re there (so the Feds will be glad to step in and help).

This comes from the 40-year-old general ‘advocacy’ strategy of side-stepping individual States, setting up shop in the Beltway, and complaining to or threatening Congress so that Federal authority could be made to give you what you want all in one fell swoop; this one-stop advocacy shopping is quicker and more efficient.

(And, I’m thinking, since the late Sixties gives Congress a chance to look like it’s doing something, despite the fact that it would no longer be able to do much constructively to carry out its own actual responsibilities – the national economy, the national military adventures, and such .)

(And, I’m also thinking, because with the ‘deconstruction’ of Family, Marriage, Adult Authority, Tradition, Culture, and even Reason then Congress – and the Regulatory-Preventive Nanny State – would be the only source of civic order. So even if the economy was allowed to go to hell, and the military was sent into unwinnable and maybe unjustifiable wars, Congress would still ‘deserve’ its paycheck because it had become, by operation of a default that Congress had greatly helped along, the sole source of civic order and the sole bestower of ‘rights’ [God and Human Nature having been deconstructed].)

You see where these things can go, and how indeed the toe bone winds up connected to the head-bone if you trace things out far enough.

I am going to bet that the number “100,000” is one of those numbers I’ve been seeing since runaway-kids in their ‘hundreds of thousands’ first began appearing on milk-cartons thirty-plus years ago.

So I don’t know how much can be expected from the Supreme Court in this type of case. I think it’s going to take a case that tackles the dark beating heart of the monster directly to capture the Supreme Court’s attention.

And I’d add that the SO’s attorney – perhaps a bit anxious because he was speaking to the Court on behalf of an actually convicted SO who could be construed as raising ‘only’ a ‘technical’ point - gave a lot away, probably to reduce the chance of pissing off one or several of the Justices. Which is a natural hazard in this type of case.

And again, my thought is that if somehow a case can be brought on the core issues, then the SO attorney would be on clear high ground and needn’t give so much away just to be allowed to stay on the field for the game.

In another matter, I read somewhere (the Justice Policy Institute, I think) that Congress has put 20 million in the budget to be distributed to States to help them defray the cost for implementing AWA. So if the stick doesn’t work, they’ll try the carrot. But 20mil ain’t nothin’ when there are 50 States and EACH one of them is going to have initial start-up costs of at least several million, AND then ongoing recurring costs of several million. But you get a sense of how nervous they are up in the Beltway.

You’d think that with the economy and the wars and the increasinly obvious American decline generally – so largely aided and abetted by the Beltway – they’d already be pretty nervous, if not humbled.

But no.

Even though, as I listen here to a CD of Johnny Mercer's 'The Days of Wine and Roses" played by Henry Mancini, the entire country - much like those two bright, young but binge-wrecked things in the film - now must pass "through a closing door, a door marked Nevermore, that wasn't there before".

I suppose, if we all just wait, the whole country will be sex-offenders before long. On soooo many levels.

NOTES

*I recall reading in the past couple of days a short piece on the Sex Offender Research site in which a State’s bill to ease the requirements on SOs has been stalled in committee: says one legislator “When it comes to sex offenders, you want to make sure you’ve got everything right”.

Which is refreshing, but then not.

Because while this gentleman seems verrrry concerned to make sure you are absolutely “right” when easing the SO laws, you don’t have to be “right” at all in the original frakkulously wrong assumptions that fueled the whole Mania in the first place – nor, apparently, do you even have to take the time and effort to inform yourself as a legislator about the numerous studies now extant that indicate that the entire SORNA scheme is conceptually incoherent, based on grossly inaccurate Findings, and probably not only doesn’t contribute to “public safety” but actually decreases “public safety” in several large ways.

SPANGLER V. OHIO

I’ve read over this Opinion.

It’s has one or two fresh points for the SO community, and a lot of the old stuff.

But the Dissent by Justice Cannon is refreshing and verrry significant.

The text of the Opinion and the Dissents is here. It is also linked at a short piece on the Constitutional Fights site under date of February 19, 2010.

Since the Opinion and Dissents are given paragraph numbers, then when I refer to the text I’ll only use the paragraph number – e.g. ‘Para. 34’.

Spangler was convicted, at age 73, in January of 2001, of exposing himself to and fondling several children. He was sentenced to 5 years of community service, required to register as a “sexually oriented offender” for 10 years, and to report to the Sheriff annually to verify his information. [Note: his classification as one of the lower-ranks of sex-offender was actually a part of the sentence passed by the trial court.]

But – ta-daaahhhh! – Ohio passed Senate Bill 10 (SB 10) in an effort to comply with the Adam Walsh Act (AWA). Consequently on November 26, 2007 Spangler got a Notice from the State Attorney General stating that he had been re-classified according to the AWA scheme as a Tier II offender, with concomitant increase in his registration requirements which, among other things, required a personal appearance before the Sheriff every 180 days for 25 years.

Spangler contested that reclassification, as is provided for in Ohio law. The judge in that March 2008 Hearing denied his Petition to Contest and re-classified him as a Tier II sex offender, conforming to the AWA-SB 10 scheme.

Spangler appealed to the State Appeals Court and this is the June, 2009 Opinion of that Court.
Spangler raises several issues (which the Court, for purposes of clarity, considers out of their original order).

In his first assignment of error (Para.16) Spangler raises the Ex Post Facto objection. Nope, the Court says (Para.19): The legislative intent of the Act is merely to inform the public “so that it can develop constructive plans” to prepare for the offender’s release because this is a “paramount government interest” and the Registration and Notification (and the Classification) will further that goal by facilitating the exchange of “relevant information” among law enforcement agencies and the public and as such “is not punitive” in its intent.

We’ve heard all this before. As I’ve said, it is hard to imagine what “constructive plans” any of the public would make, and every possibility that the public will wind up making ‘destructive plans’ (if I may) to simply get rid of him and his family (if any) by any means necessary.

And I can’t help but wonder if the Federal government’s “paramount interest” isn’t Constitutionally assigned to the State government (so that the Federal government can concentrate its efforts on more important stuff like – oh, say – the economy and the increasing number of foreign wars; this ‘government interest’ phrase seems to confuse the Constitutionally-assigned roles of State and Federal government … but then maybe the Feds got into this thing precisely to distract folks from the Beltway’s failures in matters of the economy and the wars).

And knowing what is now known about sex-offender ‘recidivism’ (it’s verrrrry low in just about every respect) then just how accurate and relevant is the “relevant information”?*

BUT the Court then comes up with this encouraging point: “However, to the extent the application of the Adam Walsh Act requires final sentencing orders to be vacated, modified or rewritten, such application to previously journalized orders, no matter how well-intended, violates the separation of powers doctrine and res judicata”. (‘Res judicata’ means: something already adjudged.)

This means that if your classification was made part of the original court sentence, then neither the Executive nor the Legislature can make the Judiciary (separation of powers) change a judicial decision that has already been formally made (res judicata).

This will be of great help if an SO was classified as part of the original sentence. Otherwise, not so much.

I note also that the Decision here clearly refuses to allow the ‘good intentions of the government’ argument to trump the clear Constitutional boundaries. I doubt the Court – given the rest of this Decision – is concerned for sex-offenders; but when it comes to a turf struggle over the Separation of Powers the Court stands tall quickly and decisively.

In Para.25 the Court makes reference to the Ohio legislature’s “Findings”. These are the same grossly flawed and inaccurate assertions that we have seen in SO laws since the beginning: “’that all sex offenders pose a risk of engaging in further sexually abusive behavior after being released from prison and that the protection of the public from those offenders is a paramount governmental interest.’ Id. Similarly, the current changes to the Act reflect the understanding that all sex offenders, by virtue of having committed ‘sexually oriented offenses’ pose a risk of committing further sexually oriented offenses”.

You have to ask yourself not just When legislatures are going to get around to catching up with the actual facts but Why they haven’t done so already. Lawmakers who seem to be spending a whole lotta time coming up with new SO restrictions don’t seem to be spending much time on keeping up with facts now discovered that are seriously relevant to the whole sex-offense situation.

You begin to wonder if the pols have been telling themselves for wayyyy too long that “facts don’t matter”. And you wonder what could possibly be so important as to deform and derange so vital an element of legislative integrity as making sure that they laws you are passing are based in actual fact. At this stage it seems like the SO laws are based on the equivalent of ancient astrology rather than up-to-date astrophysics. This is not a good thing – for the legitimacy and credibility of the legislatures and legislators as well as for the general integrity of the legislative process.

In his second assignment of error, Spangler raises the Retroactive objection: that the government cannot punish persons retroactively by increasing punishments and applying them to crimes committed before the increases were legislated into effect. Nope, says the Court (Para.31): the Ohio Supreme Court has already held that increased “burdens” do not constitute increased punishment and don’t alter the essentially non-punitive nature of the [AWA-SB 10] scheme. It goes on to quote that Court that “with the exception of Ex Post Facto laws, felons have no right to expect that their conduct will never thereafter be made the subject of legislation”.

This is an insidious, indeed a treacherous, double-whammy. First you introduce the distinction between “punishment” and “burden” – which seems to me a distinction without a difference. Second, you say that felons can never be sure they won’t be further “burdened” even after they have paid their debt to society.

Spangler then raises the issue of double-jeopardy: that he is being punished again for something he has already been punished and paid his debt for. Nope, says the Court (Para. 34): since the “burden” is not a punishment, then he’s not being punished twice.

You see where these court pronouncements start to sound like the Red Queen lecturing Alice.

Spangler then raises the issue that residency restrictions violate his Constitutional rights to due process and his right to privacy. Nope, says the Court (Paras.38-40): since Spangler is not proven in the filings to be actually liable to residency restrictions, then he has no Standing to bring the objection.

It’s true, technically. Although the chances are better than good that he – like just about any SO – stands a good chance of getting slapped with such restrictions sooner or later.

Spangler then raises the objection that as a Tier II offender he will be subjected to more onerous Notification procedures than existed when he was originally sentenced. Nope, says the Court (Paras. 42-43): as a Tier II offender he is not subject to increased Notification requirements.

Spangler then raises the objection that the amended provisions of SB 10 violate the Separation of Powers doctrine since SB 10 authorizes the Attorney General, a member of the Executive Branch, to assign punishment. Nope, says the Court (Paras. 48-49): we already said that the enhanced “burdens” are not a punishment, and on top of that the new requirements come not from the Executive Branch but from a new law [i.e. SB 10] passed by the Legislature, which is what the Legislature is authorized to do (see also Para. 53).

BUT, adds the Court (Para.57), once a trial court issues its sentence, and neither side (defendant or State) appeals that judgement, then the judgement is finalized as an act of the Judicial Branch and under the doctrine of res judicata it cannot be changed by the acts of any other Branch. So, the Court says (Para.58): “Since Spangler’s classification as a sexually oriented offender with definite registration requirements constituted a final order of the lower court, Spangler cannot, under separation of powers and res judicata principles, now be reclassified under the provisions of the amended Act with differing registration requirements”.

Again, this is good news for any SO whose classification was included in part of the original trial court’s sentence and was not appealed within the time limits by either the defendant or the State.

Nicely, the Court (Para. 60) says it again: “It does not matter that the current Sex Offender Act formally amends the underlying law and does not order the courts to reopen final judgments. The fact remains that the General Assembly “cannot annul, reverse or modify a judgment of a court already rendered.” Bartlett, 73 Ohio St. at 58. Spangler’s reclassification, as a practical matter, nullifies that part of the court’s April 27, 2001 Judgment ordering him to register for a period of ten years as a sexually oriented offender. To assert that the General Assembly has created a new system of classification does not solve the problem that Spangler’s original classification constituted a final judgment. There is no exception to the rule that final judgments may not be legislatively annuled [sic] in situations where the Legislature has enacted new legislation”.

And it does it again in Para 63: “In the present case, Spangler had every reasonable expectation of finality in the trial court’s April 27, 2001 Judgment Entry, i.e. that he would have to comply with five years of community control sanctions, pay the fine of $350, and register for a period of ten years as a sexually oriented offender”.

And just to make sure that there is no misunderstanding in regard to AWA, the Court says so bluntly in Para. 67: “To the extent the Adam Walsh Act attempts to modify existing final sentencing judgments, such as Spangler’s sentence, it violates the doctrines of separation of powers and finality of judicial judgments, despite the good intentions of the Legislature. As such, that portion of the Act is invalid, unconstitutional, and unenforceable”. [italics mine]

And once again I note that the Court goes out of its way to point out that in this matter – at least – “the good intentions of the Legislature” are not enough to ignore a major Constitutional principle. Let’s hope this not-really-new principle catches on in other aspects of Court review of SO legislation.

There follow two Dissents. The second one (Paras. 110-113), by Justice Mary Jane Trapp, is a short one that thinks the added requirements do not constitute a violation of res judicata because of a technicality: the trial court’s sentencing order was only ‘final’ in the sense that it was ‘appealable’, not in any other sense. If it sounds a little odd, that’s because it is.

But the first Dissent, by Justice Timothy P. Cannon, starting at Para.69, is an impressive and encouraging goldmine. A law-student could do worse than to read it simply for its comprehensiveness, orderly progression, and incisive clarity. Oh, and for its common sense. A lot of sitting jurists could use their time well by reading it too.

Cannon writes that he agrees with the conclusion that Spangler’s sentence constitutes res judicata and no subsequent State or Federal legislation can change it, but he doesn’t agree with the analysis of the Ex Post Facto and Retroactivity arguments raised by Spangler (Para.69).

He does not think it proper for the State to adopt the (federal) AWA principle of classifying all SO’s merely on the blanket presumptions made in regard to their original crime-of-conviction, with no effort to examine each SO’s case individually: “This, I believe, would be a tremendous disservice to our Ohio and United States Constitutional protections. Certainly, to examine each case independently would require time and effort, but defense of the constitution against legislators who may be driven by public opinion and political security is the oath of every judge in this state” (Para.72).

Well said!

He tops that in Para.73: “In Ohio, as elected judges, we are forced to be a part of the political process. However, our oath directs that we protect, preserve, and defend the constitution. It does not allow us to wink at it when the political winds suggest it may be the popular thing to do”. You start to hear an acute intelligence and professional integrity that hasn’t been heard from much of the Bench or from the Legislative Branches (State or Federal) in quite a few years around here.

He disagrees with the Court’s analysis of ‘punitiveness’ because despite all the Ohio Supreme Court cases it cited in its majority Opinion “it is important to realize that while the Courts engaged in a weighing and balancing of interests as they related to the ex post facto clause, the Supreme Court of Ohio has yet to conduct an analysis weighing the impact of the additional burdens imposed by S.B. 10” (Para.74).

Here Justice Cannon is echoing the position of Ohio Supreme Court Justice Lanzinger (among others) who noted in her Dissent in another SO case that while originally – 15 or 20 years ago – the requirements on SOs may not have constituted so much of a burden as to be “in effect, if not in intent, punitive”, yet there has been such a pile-on since that time that it is now quite possible and maybe probable that the CUMULATIVE WEIGHT OF ALL THE BURDENS TAKEN TOGETHER now constitutes a tipping-point into ‘punitiveness’ (and that of course triggers the Ex Post Facto and Retroactivity principles of the Constitution).

Then, starting at Para. 76, Justice Cannon takes on the Court’s Ex Post Facto analysis: BUT, he says, when he examines the S.B. 10 Act it seems clear to him that the Legislature very much indeed intended it to be “punitive”. He thinks so because, despite the Legislature’s pious bleat that the law is not intended to be punitive, it is included in the Ohio Criminal Code and further that failure to comply will trigger criminal prosecution and penalties (Para.79).

Further, S.B. 10 requires classification within the criminal sentence of the trial court, and this is true even if the conviction is for a misdemeanor (Para. 80). As the Ohio laws state clearly, any “sanction” included in a sentence is thereby part of the punishment and sentence (Paras. 81-82).
Further, the much-increased amount of information required in the AWA-S.B. 10 scheme is to be placed on the internet for anybody – not just persons with a relevant need-to-know – to see (Para. 83).

Further, the Ohio Legislature provided for a Hearing before a court precisely to determine whether a person should be classified as a “sexual predator” and that was wise since otherwise Ohio would be flooded with numerous convictees who are not sexually dangerous and are mis-classified, which will not further the cause of community safety at all, and will actually degrade public safety (Paras. 85-86).

And then he makes the excellent point that: “Also of significance, the Eppinger Court noted that ‘[o]ne sexually oriented offense is not a clear predictor of whether that person is likely to engage in the future in one or more sexually oriented offenses, particularly if the offender is not a pedophile. Thus, we recognize that one sexually oriented conviction, without more, may not predict future behavior’” (Para. 87). [italics mine]

This observation goes to the heart of the numbers-scam in the SO laws, where the public is stampeded on the basis of alleged hordes of child-raping and murdering strangers while, in actuality, the vast majority of the many SOs are nothing of the sort: they either have committed far lesser offenses or have ‘re-offended’ only in the sense that they have technically fallen afoul of the byzantine reporting regulations. (Which sounds a lot like the Pentagon and Beltway habit of classifying any detainee as the ‘worst of the worst’, just to keep up the numbers. You can see the results of that scam at Gitmo. And you might wonder where the government in 2003 got that idea … perhaps from the great success it enjoyed in the SO mania.)

In a charming Colonial and Revolutionary usage, he notes that AWA demands a blanket crime-only assessment and classification, which amounts to a “ministerial rubber stamp on all offenders regardless of the mitigating facts in the individual case” (Para. 89). The term “ministerial” was used to describe the officials and troops of the British Crown back in the very early days of the Revolution when it was still thought here that it was the Prime Minister in London, and not the King, who was the source of all the American woes.

THEN, in that same paragraph, he puts his finger on another core AWA scam: “The legislative basis for this seems to be expert analysis that puts all offenders in one of two categories: those who have offended more than once, and those who have offended only once, but are going to offend again in the future”. This is a sleazy and treacherous Catch-22 that is not only insupportable as scientific method (it is not falsifiable) but is a cynical and corrosive imposition of the government police power upon Citizens who would – in the terms of the ‘expert analysis’ – have utterly no way of defending themselves.

Cannon continues on this marvelous roll: “While the legislature may be entitled to adopt this questionable approach to apply to offenders from the date of passing the legislation, I believe that neither the Ohio Constitution nor the United States Constitution permit the retroactive application of S.B. 10 in its current form to individuals such as appellant herein” (Para.90).

AND THEN he notes a most interesting and very relevant fact about the Ohio Court system: “Moreover, to date, the majority of the current justices on the Supreme Court of Ohio have objected to the characterization of Ohio’s sex offender classification system as a “civil” proceeding” (Para.91).

He goes on to explain in that paragraph that at one time or another, in SO cases, four of the Justices on the Ohio Supreme Court have put themselves on record as believing that either the SO laws are punitive to begin with, or have increased their ‘burdens’ on the SO to that tipping-point where the cumulative weight of their assorted restrictions renders them now “punitive”.

Which means that in one of the not-distant cases where an SO raises the ‘punitive’ objection before the Ohio Supreme Court, the majority of Justices will agree, thereby pulling the Constitutional rug out from under the whole scheme – or rather, pull from underneath the SO mania legislation the Constitution which too many pols have been using as a rug.

And then in Para. 92 he asserts that even if the Ohio General Assembly’s intent were truly non-punitive (a big If indeed) still in terms of this appellant (Spangler) S.B. 10 is unconstitutional because of its punitive effect.

He adds (Para. 95) that on top of all that, S.B. 10 cannot further the goals of retribution and deterrence when the classification of an offender is based solely on the crime committed, not on an individual’s recidivism potential. In saying this he again draws attention to the fact that there are substantive coherence-gaps not only between the alleged ‘civil’ intention of the legislatures but also between the stated goals of the SO laws and the actual requirements they impose on the purported authority to achieve those goals. If not actually dishonestly presented, they are conceptually incoherent even on their own terms.

But he hasn’t finished yet. In Para. 96 he asserts that even if the SO laws will provide for public safety and that SOs actually do pose the risk they are claimed to pose, still “if the statistics and public opinion are as viable as those perceived by the legislature, the appropriate avenue for the legislature would have been to amend the constitution to allow for the retroactive, ex post facto application of S.B. 10”.

IN OTHER WORDS if the statistics and public opinion are as supportive as the legislators are always claiming, then the really best route for all this SO stuff is simply TO AMEND THE STATE CONSTITUTION TO PERMT FOR THE RETROACTIVE AND EX POST FACTO APPLICATION OF THE SO LAW.

Roll that one around in your mind for a bit.

He is the first jurist I have come across to actually call this scam’s bluff: if everyone is so sure that these SO laws work and that SOs are so very liable to pose an ongoing threat, then put your money where your mouth is and amend the Constitution of your State (or the US Constitution) by gutting it of two of its most profoundly fundamental protections – against Ex Post Facto laws and Retroactive punishments – and have done with it.

Of course, not even the vote-addled and less-than-purely-principled legislators of this age would really want to do that. First of all, a Constitutional amendment of such profound proportions would open the door for some serious scrutiny – and all the genuine facts that may come out would likely break the spell of the stampede.

Worse, it would expose all the legislators who have supported these things (the ones who merely voted for them did so through such non-public subterfuges as voice-votes) to public exposure (as it were).

Worse even than that, it would create a precedent whereby the most essential Constitutional firewalls are now breachable if the ‘emergency’ is perceived to be great enough – and who knows where that might lead in the future? Even to the legislators themselves? Or their friends and their relations? Or their well-paying supporters?

And on top of all that, such a Constitutional Amendment would clearly reveal the essential (and perhaps indispensable) ANTI-CONSTITUTIONALITY of the entire corpus of SO mania legislation. And I think that - like Hitler deciding to take dictatorial powers LEGALLY and not mount an outright coup d'etat - the Regulatory-Preventive Nanny State and its various supporters, enablers, and cadres would prefer (with great success so far) to smuggle their anti-constitutionality into the national forum under the sheep's clothing of 'constitutional reform' and 'legislative and judicial responsiveness' rather than come right out and show their true intentions. But that's also why the Courts can't seem to stamp out the numerous objections ... they have to keep coming up with tortured reasoning based on grossly untruthful 'facts' and Findings.

I recall a line from a recent episode of “The Tudors”, where Sir Thomas More, soon to be executed, says to Chancellor Thomas Cromwell (whose own end was still a little ways off): “The only difference between you and me, Mr. Cromwell, is that I shall die today and you shall die tomorrow”. These are the awful and awesome uncertainties that are unleashed EVEN AMONG THE ELITES when a government descends from a rule of law to a rule of personal whim.

Justice Cannon continues with a scathing but subtle indictment of the whole SO mania: “However, the constitutional amendment should not be circumvented with a clever legislative preamble based on questionable statistical data. If that were the case, virtually every constitutional protection is subject to selective legislative amendment”.

As the screen used to say in the old Batman TV show: Biff! Pow!

In Paras. 98-105 he rehearses perceptively the many cases in Ohio where Megan’s Law and its ilk have been increasingly scrutinized (but not yet condemned) for the expansions in “burdens” that have taken place over the past 15 years.

He THEN notes (Para. 106) that in Ohio law, the Retroactivity principle applies not only to criminal but to civil cases. In which case, if expanded registration requirements are seen not as ‘collateral consequences of a criminal act’ but rather as part of the adjudicated sentence, then later ‘administrative adjustments’ do indeed violate a convictee-Citizen’s proper “expectation of finality”.

And he goes further to imagine that this would apply to all SOs in Ohio “except the most heinous” (who would have every reason to expect lifetime registration and notification requirements). Which opens up huge possibilities there.

So kudos to Justice Cannon and here’s hoping a lot of jurists – in Ohio and beyond – read his Dissent.

NOTES

*To brighten your day, read the DOJ-commissioned Vera Reports, available in a link on the Constitutional Fights site under date of February 22, 2010, as well as here and here. This pair of major studies pretty much find that the whole SO gambit is overblown and mis-directed and that there is little evidence that the SORNA schemes actually protect anybody.

265A: THE NEXT LOGICAL STEP

An interesting new development in Massachusetts: they’ve finally (after 10 years of trying) passed a law permitting Restraining Orders (neatly re-named “Protection Orders” or “Abuse Prevention Orders”) to be issued against persons unknown.

These Orders are properly part of the Domestic Violence (DV) initiative, not so much the Sex Offense (SO) mania, but there are two reasons I’m discussing them here.

First, the DV stuff came along a little before Megan’s Law (but you can go around and around on specific dates in specific States or the Feds, and if you want you can consider them contemporaneous) and there are some interesting (alas) similarities.

Second, these new Orders were re-worked to include “sexual assault” so there is a clear connection to matters of concern to the SO community.

As you may recall, the DV initiative resulted in the legal erection of the Abuse Prevention Order. That name itself is of interest: rather than simply being an expansion of the conventionally titled Restraining Order, the Abuse Prevention Orders (known as a ‘209A’ in Massachusetts) were an essential instrument in the expansion of government police power into the very hearths (and bedrooms) of the Citizenry.

Essentially, on the mere word of a complaining party, the police are authorized – and in many cases mandated – to remove the defendant party (often but not always a male) from the home immediately. The defendant party may not even know an Order has been issued against him until the police arrive to remove him forthwith; there is – for a period of 10 days until the Hearing – no chance to return for necessaries, valuables, the car keys, clothes, or even to see the kids. It is a verrry significant deprivation of liberty and property.

And this type of Order is issued by a Court ex parte, meaning only on the word of one party (the complaining party, who automatically gets to perform the role of ‘victim’ or – as they like to say in DV circles – the ‘survivor’).

This may seem rather unfair – and even unconstitutional, since the government is depriving a Citizen of serious liberty and access to home and property (and family) without a Hearing beforehand.

But it’s defended – and the SO community will be verrry familiar with these ‘reasons’: First, because of the ‘emergency’ created by the defendant’s alleged ‘violence’ or ‘harm’ or potential for inflicting ‘harm’ (verrry widely defined and governed not necessarily by specific actions of the defendant but rather only by the ‘perceptions’ of the complainant).

But you can see here where the ancient Western tradition of 'the discipline of the evidence' has been undermined, and again 'because of the emergency'. If 'violence' by its very existence constituted an 'emergency' overriding law, there never would have been a Constitution in the first place. And at the rate things are now going, there may not be one - in the genuine American sense - much longer.

And second, because the Order itself is merely “civil” and therefore not a deployment of the criminal law. Although the police are empowered to enforce it with police authority, and a violation of the Order’s stringent and wide-reaching requirements does constitute a criminal offense (to wit: Contempt of the Court’s Order). But – ya see – the Order itself is merely ‘civil’; so it does not constitute a deployment of the criminal law against a Citizen.

Also, that clears the path in another ominous way: the ‘burden of proof’ – always on the State in a criminal proceeding – is actually on the defendant. He (so often) has to ‘prove’ that he hasn’t done anything (at the Hearing ten days later).

This is doubly impossible. First, the defendant has to defend himself not necessarily on the basis of his own actions (or spoken words) but quite possibly against the ‘perceptions’ of the complainant-victim-survivor. And that brings everything right back to ‘spectral evidence’ since only the complainant-victim-survivor can know and control her (so often) perceptions and feelings about the threat or potential threat that the defendant poses.

Second, the defendant is essentially faced with achieving what is philosophically and logically impossible: proving a negative. Western thought has always recognized the difficulty – if not downright impossibility – of achieving such a task: you can say that there are no forms of extraterrestrial life, but you can’t ever ‘prove’ it because to do so you would have to have examined all possible sites in the universe for forms of life and have demonstrably and conclusively found none.

Neat. And nearly impossible to defend against such an Order.

But at least you know an Order has been issued against you: the police have delivered a copy to you and have also forcibly removed you from your home and property and family. And given you a quick but comprehensive list of all the deprivations which you must accept – at least for the next 10 days until the Hearing (when you can then take your best shot at ‘proving a negative’ and disproving the factual validity and basis of the complainant-victim-survivor’s ‘perceptions’ and ‘feelings’).

Good luck with that. Your government at work.

But now comes this new twist, which will be known as a ‘265A’ Order (from its place in the State’s General Laws).

A complainant-victim-survivor – who need not be a member of your family or anyone you even know – can get one of these Orders (and will a Court say No very often?) against anybody whom she (most often) perceives or feels to be ‘stalking’ her (verrry widely defined; for example, if the complainant thinks someone is calling her (most often) and hanging up, then after 3 instances (her word for it) one of these Orders can be issued.

Nor does the complainant need to even say that she feels “in danger of great physical harm”. Now she need only say that she “feels harassed” (verrrry widely defined).

Consequently, a Citizen can be taken in by the police for criminal violation of an Order that he (most often) did not even know was issued against him.

You can see the problems that might arise. Victims, like financial markets, cannot be left to police themselves - human nature being what it is.

It is a credit to the Massachusetts Legislature that it has taken 10 years to get this thing passed.

But then again, on February 4th, 2010, it was passed. And unanimously (although I am going to bet that the ‘vote’ was not a roll-call (whereby each legislator has to put him/herself on record) but merely a voice-vote or some such nobody-can-be-held-responsible type of gambit that legislators almost always have preferred when passing SO mania laws.

Again, an ‘emergency’ and the ‘overriding good’ have been touted as the reasons justifying this thing – and the reason for trying to spin it as ‘reform’ and ‘progress’.

AND (getting to the reason for this Post’s title) you can see where once the DV Orders and Registries (yes, there are DV ‘registries’ and they were created before Megan’s Law) were seen as ‘merely’ the next logical step.

Which they were. IF you grant the profoundly dangerous assumptions of the entire initiative to begin with.

But as Dietrich Bonhoeffer said to many of his well-intentioned German friends who were hoping to ‘reform’ the Third Reich: “Once you have gotten on the wrong train, walking backwards through the cars won’t help”.

It’s interesting from the point of view of politics that the Dems in that State (Massachusetts), so rudely shocked by the trouncing received by Martha Coakley (their defeated candidate and now back to being Attorney General – and a supporter of the 265A law), have now gone and passed this thing – with great hoopla and self-congratulation. My take on it is that they are facing a gubernatorial elections and are pulling the old “doubling down” strategy to energize their base (shades of George W. Bush).

If these types of laws are now seen as ‘energizing the base’ for a Party that senses a deep and possibly wide public unease with their favored policies, then the SO mania too may get a new lease on life.

I had mentioned several times in this Post that the defendants are almost always male in these things. I don’t know if there are any actual published statistics as to how many of the DV Orders are given to a woman in a relationship with another woman. That would make an interesting bit of information. I say this now when the State has just convicted a woman of multiple child murders for setting a fatal fire at the apartment of her ex-lover, another woman.

Now as I also said, this 265A legislation was originally intended for DV situations. However the usual advocacies – as they gloat in the article linked above – worked hard to get it extended to ‘sexual assault’. Which means that a defendant may well be at serious risk of committing a criminal violation (of the Order) without even knowing that an Order has been issued against him (or her).

You can unknowingly violate one of these Orders, and thereby commit a felony without even knowing it (depending on the limits that the Order has placed upon you – even if you don’t know that it or they exist).

Another problem becomes evident when you imagine how one of these scenarios plays out: a complainant-victim-survivor calls the police, points you out, and says that you are the Unknown Party referred to in the Order and that you are in violation. How do the police know? How will a Court know when it conducts a Hearing? How many judges – especially if elected – will take the risk (alas) of trying to make a reasonable determination?

This, I say again, is not a ‘reform’ of the law and can only be considered ‘progress’ by wearing a huge set of blinders.

And if making law more ‘responsive’ means cutting away the protections enshrined in the Constitution and evident in the simple concept of the necessary ‘fairness’ of criminal law, then I think there is wayyy too much lipstick being put on a creature that in reality is by its very nature feral and dangerous.

I’m wondering just when folks are going to start wondering how legitimate these types of things can really be, and consequently wonder about the legitimacy of a legislative system that keeps imposing them. And just when legislators are going to start doing some serious wondering about what happens when folks start wondering that.

JUST TODAY

I had a larger concept Post in mind but I have to mention a couple of items that I saw in the news this morning.

There’s an interesting article about “Sex addicts getting help, understanding”, sub-headed “Medical specialists recognize disorder”.

It describes a meeting of a self-help group of “sex addicts” meeting in a basement room furnished with an ad-hoc collection of this and that to sit on. It sort of seems like a ‘sex’ version of AA. Nothing wrong with that: the AA approach is a proven helper, although when it comes to a genuine addiction nothing is guaranteed.

Of course, alcohol-addiction, like drug addiction, is tied into the introduction of some sort of foreign substance into your system; and putting that stuff into your system adds a profoundly complex layer to the rooting of the addiction. And as is so often seen, it has what used to be called “characterological” consequences (“sequelae”, if you like the technical term): the entire personality and ‘character’ of the individual starts to deform itself in order to protect the addiction, both from others' notice and even from one’s own awareness.

The usage of term ‘addiction’ has been expanded in recent decades to include compulsions that are not tied to that complex ‘ingestion’ dynamic.

So you now have all sorts of ‘addicts’ – although as always it’s hard to know in an individual person where will-power ends and overwhelming forces beyond the human will take control.

Still, almost any help is better than no help and the AA-approach to any sort of compulsion is a big improvement over nothing at all, or over sitting down – say – with a fellow alcoholic at a bar lamenting the general cruelness and injustice of a heartless world over a beer or six.

The same is certainly true of ‘sex addiction’. Surely any derangement in so powerful a natural human drive needs to be worked on as soon as possible. The compulsive need – or ‘desire’, they use the words almost interchangeably nowadays – for some preferred form(s) of sexual stimulation can not only cost a lot of money, but can throw off the whole balance of your life’s activities (family, friends, job, and such) as well as more profoundly throw off your entire internal ‘balance’, your internal ‘economy’ as it were.

Your ‘mastery’ of your own self (although it’s not PC to use the term, from what I gather), your ability not only to conduct a life but to sustain and command (as in Master and Commander) your own self as if it were a ship with which you were entrusted … all of that is undermined. And that’s never a good thing for a human being; and if a lot of Citizens are suffering from such a problem of lack of Mastery, then it’s lethal for the Constitutional vision of The People who Ground the government.

So those are the stakes.

And with Tiger Woods and his issues all over the news, it’s not a bad time for advocates of more ‘sex addiction’ awareness to do a bit of arm-waving. And given that the new proposed DSM revisions (as the article states) are published, then so much the more reason to put the whole idea of ‘sex addiction’ back out there.

But there are problems – now – that are specific to the ‘sex addiction’ efforts in our modern American reality.

The largest is that the sex-offense mania (SO mania) has now metastasized into criminal legislation as well as profoundly inaccurate public misinformation that has been – courtesy not only of a sensationalist media and of certain advocacies with their own agendas but of a government with its own games to play – widely dispersed over a period of decades.

The end-result of which is a trip-wire danger of suddenly becoming the object of prosecutorial interest, on a lethally skewed field of action where once accused, especially if the ‘evidence’ is your ‘confession’ in a self-help group, you are pretty much done for.

It isn’t going to help if the proposed DSM ‘sex’ diagnoses – a good idea in some ways from a purely clinical point of view – are going to be used (as they most surely will be) in the criminal-justice and prosecutorial arena, either to convict or ‘merely’ civilly commit anyone so diagnosed (especially if he has already admitted it ‘in public’, in that self-help group).

It’s clinically and therapeutically accurate to say that somebody with obsessive sexual tendencies may need a range of therapeutic interventions, ranging from medication to “residential treatment” (which means you sign yourself ‘in’ somewhere, or – as I have noted – you are signed in by the State). And I wouldn’t rule out the option of some ‘talk therapy’ – maybe Cognitive-Behaviorally oriented – in order to help not simply suppress the symptoms but enhance the individual’s effective Mastery over himself.

After all, if the obsessive sexual investment is the result of some faulty channeling of one’s life energies, then those large amounts of internal energy and those personal potentials – as well as one’s personal resources out there in the world – are being taken from the self’s other and far more mature needs; a little re-directing of personal energies has to be effected, some repair to the ship’s power-paths, as it were, so that the vessel will become more capable of its missions.

The danger in the SO mania, of course, is that – let’s be honest – verrrry few of the official players (legislators, prosecutors, victim advocates, and ‘therapy providers’ however defined) are really interested primarily in the repair or enhancement of the individual’s self and life. This whole mania is based primarily on Fear, and Fear requires a Monster, and a Monster means that everybody needs ‘protection’ and that the Monster himself needs to be put away (which is really what everybody else ‘needs’ in regard to the Monster). That explains the ominous preponderance of the criminal-justice and the prosecutorial elements in sustaining the whole SO mania and conducting its daily operations.

So I support the ideas of those mentioned in the article who are trying to work with ‘sex addicts’ (although I am not sure that a purely or primarily drug-based therapy is going to lead to any sustained capability for self-Mastery). But given the legal and societal contexts created now by the decades of the SO mania, I’m not sure how these proposals can work without exposing the individuals to substantial prosecutorial vulnerability.

After all, the prosecutors can kill the two birds with the one stone and simply say that ‘he’ll get help when he’s confined’ – which is not really very true whatsoever at all. Confinement and ‘therapy’ – everybody wins. Yah.

Further, as a thought-provokingly named Dr. Kafka says, “the number of men coming for help now who have serious trouble with porn has increased greatly”. Well, if it’s child-porn then – as much as I want them to get help – they are in great danger of prosecutorial activity. And if it’s ‘regular’ porn – well, I’m glad that they’re getting some informed help in reviewing their ‘internal economy’.

But then I don’t understand Kafka’s comment that “I think this whole thing is very scary for women”. Is he saying that women find porn “scary”? I can see distasteful and even repugnant – but “scary”? And is he then talking about purely sex-porn or some form of abuse-porn and debasement-porn?

But again, this “women” element – with all due respect – strikes a certain note in the Doctor’s presentation. I am very much concerned that an obsessive reliance on porn indicates a lack of Mastery over one’s internal economy, and that if you’re losing so much energy to the ‘porn activity’ then you are b) depriving your life of a lot of its potential for wholeness and fulfillment and a) clearly not the competent Master and Commander of your own self.

That’s a big – pretty much ‘existential’ – risk. And with all respect to the ‘harm’ caused to anybody else, a person who needs help with this is a person facing the existential abyss. I'd like to think that anybody 'concerned' - especially professionally - would see that risk for the urgent and great challenge that it is. Even though such a focus upsets the 'primacy the victim' approach so favored (and with good reason) by prosecutors for the past few decades.

And after the past decades of societal ‘deconstruction’ in the service of this or that ‘revolutionary agenda’, then I’m not surprised if a lot of ‘ships’ are coming from the yards, and a lot of commanders coming from the ‘academy’ of the family – both profoundly incapable of handling the stresses and strains of open-ocean operations.

Boys and males have had a baaaad time of it the past few decades (which is odd when you figure that they, much more than females, are likely to be the victims of violent crimes – go figure).
As I’ve said in a prior DSM Post, there’s a difference between someone who has a sex fantasy and seeks to impose it upon an other and someone who – in the Doc’s term – is “totally harmless” and “simply obsessed with sex”.

The Doc here is nicely sliding around the question of the ‘imposers’ and trying to keep the focus on the “harmless” guys who are simply obsessed inside their own mind. In that vision, they just need some help with their ‘internal economy’ (to use my term).

And that’s not a bad way to look at it.

Although the way the new DSM proposals are worded, if your internal economy in any way creates any sort of ‘harm’ for ‘others’, then you may well be liable for the great SO mania adventure. Don’t forget, thanks to the ‘reforms’ in civil and criminal law in the past few decades, it’s up to the self-declared ‘victim’ to say if ‘harm’ has been done (and your lack of intention to inflict harm may not count for much at all); and the entire concept of ‘harm’ has now been hugely expanded (recall that you can “batter” somebody now simply by not saying anything in the middle of a phone call from a dozen or a thousand miles away).

As you can see, in the current legal context, even the accurate and not sensational clinical use of the term “harm” in the DSM can create typhoons of possibilities for enterprising prosecutorial minds. Or civil-damage attorneys who work for a percentage of the ‘award’. And in any case, all of the foregoing can provide sensational melodrama for news media that don’t see their job as being to deeply inform the Citizenry about the vital issues of the economy and the endless wars.

There is some accurate comment to the effect that there is a major difference between a genuine sex-obsessed sufferer and somebody who is just faking it (“malingering” in the technical term). Which is true. But it is a hard thing in therapy to make an accurate distinction between truth and falsehood, just as it is in the ‘repressed memory’ stuff.

Which creates a vacant space into which the prosecutorial enterprise is now authorized (and encouraged, and in some cases required) to flow like a Biblical flood.

And again I note that the entire conceptualization has been skewed in the SO mania: the one who ‘suffers’ is primarily the one who claims ‘victim’ status, not the person afflicted with the actual imbalance (and it may be profound) in his ‘internal economy’.

The story is told of one sufferer who was obsessed with porn and “in a dream-like state sexually-assaulted his sleeping wife”. Given the huge elastic expansion of the term ‘sexual assault’ (not to include rape and attempted rape) then I’m not sure what we’re dealing with in the story, and I’m not sure what a ‘sleeping’ person can accurately recall. Or did this gentleman ‘sexually assault’ his sleeping wife, she never woke up, and he simply reported it with admirable honesty to his therapist? If that’s the case this is an impressive patient (and there are some like that); but his very report can constitute a “confession” in the present legal context. And did the clinician-therapist report it to the authorities?

So while you as the sufferer are surely ‘self-destructive’, the SO mania skews the conception of the situation to make you out as a ‘victimizer’ and then the hounds are turned loose. Your honesty in reporting about yourself will, in that case, count for little.

(Let me say this again and again and again: I am not ‘denying’ or ‘minimizing’ genuine sexual assault. I am trying here to sketch out the pathing of perception and authority in this legal-therapeutic jungle created by the SO mania.)

So there’s a lot going on in all of these developments. If my thoughts are a bit edgy, it’s not because I am being callow or insensitive; it’s because it takes a sharp-edged tool to cut a path through the now-dense jungle growths here.

In a second ominous tidbit in the news today, it is reported that Connecticut now wants to establish an officially-authorized link between child-abuse and animal-control authorities: if the animal-control officers find an abused pet in the house, they are to report same to the child-abuse authorities; apparently on the presumption that if the pets are abused, then the children and wife (or whatever humans aside from the pet-abuser are in the house) may also be abused.

It’s not at all an impossible connection to infer. But you can see where, in the context of the SO mania, and its Registries and all the rest, this thing can quickly turn into a monster.

So there are, I think, two major problems that should receive serious public attention here. First, the expansion of government interference into the home (and let the late President Reagan’s pithy comment not be forgotten: ‘Hi, I’m from the government and I’m here to help’). Second, in the dense context of a Mania, there is every possibility that things can quickly turn from a ‘fire in a trash can’ to a full-blown, five-alarm conflagration response – to use a Fire Department image.

The huge problem of helping the sex-obsessed without the very helping exposing them to the lethal possibility of criminal action by the State has been part of the SO Mania since its inception. And even as now the clinical community is trying to sharpen its knowledge of sex-obsession in order to better help, the context of the Mania threatens to undermine their efforts.

Which may well result in there being a lot more untreated sex-obsessives in our already Maturity-undermined society, and thus a lot more substantive victimizing.

But I wonder if to certain influential elements supporting the Mania, this wouldn’t be not only an ‘acceptable consequence’ but actually also a ‘useful’ one – to keep the numbers up. It’s a dark thought, but these are times of Mania and darkness goes with the territory in such a situation.

And even so apparently minor, simple, and seemingly ‘harmless’ gambit as connecting pet-abuse and child-abuse authorities (and databases?), similar to what the government has been trying – rather clearly with largely imperfect success – to do with terrorists, and long before them, with ‘sex offenders’.

There’s a job of work here – assessing the trajectory and consequences of it all.

ADDENDUM

A larger ‘concept’ beneath all of this is: the consequences of genuinely concerned ‘victim advocacy’ casting its lot with a primarily prosecutorial, governmental control approach to helping victims and preventing victimization.

And surely, had the clearly probable consequences of ‘deconstructing’ parental authority and the family and even the very concepts of Maturity and Self-Mastery been soberly deliberated, then much of the ‘social history’ of the past three or four decades might have turned out much differently, and Constitutionally much less lethal.

I would add that the ‘governance feminism’ that saw its heyday in the 1990s made the same lethal error: the almost total submerging of genuinely feminist contributions into a collusion with ‘big government’ (especially the ominous police authority) under the aegis of some of the most radical of radical-feminist ‘theory’ has created profoundly dangerous circumstances now, for this country as a society and a culture as well as a Constitutional polity.

And as I’ve said before on this site and my other site, such ‘deconstruction’ has created levels of personal, societal, and political immaturity and incompetence so great as to almost require the government to step in as the first and almost only enforcer of ‘order’ and even ‘Shape’ among the citizenry. Thus the Regulatory-Preventive and prosecutorial police-state toward which the country is now sliding at an increasingly steep angle of descent. And it is all ‘spun’ as ‘liberal’ and as ‘reform’ and as a matter of merely expanding ‘rights’.

An ounce of prevention – by competent parents in the early years of childhood – is worth a ton of government police-authority ‘cure’ later on.

Is all of that gone forever? If so, it is not gone for good. If you get my drift.

When The People now must look to the government as not only the 'protector' but even as the first source of character and Shape - when individuals are allowed to pass through the hugely important and formative years of childhood without a sustained and competent parental authority exercised in a stable family setting - then there can be no People in the Framers' vision of the concept.

And that concept is not "quaint" - neither in terms of developmental psychology nor in terms of utterly indispensable Civic Competence.

And discarding all the elements of that concept has not been 'reform' nor has it been 'progress'. It has constituted a huge 'regression' - to use the technical term - both psychologically and politically-Constitutionally.

This cannot end well.

MORE ON DSM REVISIONS

I had mentioned in my previous Post that revisions are now being considered for the 5th edition of the Diagnostic and Statistical Manual (DSM V).

I have gone to the site where the proposals are put forth and discussed. You can access the general list here and the specific list of sexually-oriented diagnoses here.

I’d like to talk about a couple of these new proposed diagnoses, and then give some larger opinions as to the significance of all this for the SO community. It’s good to know this stuff, and there is room for ‘public comment’, they promise.

(Please note: When you go to this site, and you click on a particular proposed diagnosis, you will have a chance to click on several further bars: Proposed Revision, Rationale, Severity, and DSM-IV. Each of these bars will lead you to interesting material. It is readable and relatively forthright, and – just like in getting used to reading court filings and Opinions and Decisions – you get to see how professional folk think and work their way through a question. Always good to be able to look at this sort of thing yourself, especially since genuinely useful and accurate news reports are few and far between nowadays.)

It’s already interesting to note that the publication of DSM V has already been put off until May, 2013 – which gives you an idea that it’s already running into complications.

So, first to some of the new proposals.

A ‘hypersexual disorder’ is proposed. This will deal with adults who have constant sexual fantasies and cannot get rid of them; they may engage in masturbation, pornography, phone sex, cyber sex, strip club attendance, sex with consenting adults, or (ominously in a way) “other” manifestations. Further, such persons will engage in this constant sexual fantasy while disregarding the possibility of “physical or emotional harm” to themselves or others. There would be significant impairment to personal functioning in important areas like social or occupational activity. But none of this can be the result of the use of drugs (licit or illicit) or other factors outside the mental functioning and desire of the person.

You can see where “emotional harm” is hugely elastic. That’s good for a purely therapeutic concept – you want your therapist to be able to have as much space as possible to deal with (and help you deal with) such a problem. But – and I get to this in my own opinions later on in this Post – there is a whole world of trouble if an elastic term like this is taken over for court and prosecutorial purposes.

These out-of-control thoughts would however be ‘normal’ and not ‘odd’ or what they call “paraphilic” in the profession. There will be a specific section on paraphilia later on.

I also note that in the ‘Discussion’ of this proposed diagnosis, it is referred to as a “public health” concern since such sufferers are “risk takers” and can cause all sorts of pain and unhappiness all around them. Which is true enough, and a good clinical move in its way – but I have already noted in earlier Posts what happens if this sort of thing migrates into criminal justice and prosecutorial and court usage; and I have also discussed in earlier Posts what happens when the expansion of government police or coercive power is expanded under the rubric of “public health emergency” without serious thought as to the huge Constitutional implications.

There is also a proposed “paraphilic coercive disorder”. This refers to persons who have recurrent and very strong sexual fantasies involving sexual coercion – forcing somebody else to live out a role in their fantasy.

Nicely, the Rationale section notes that there is a difference between a paraphilia (where you might have the fantasies but they are not ‘out of control’ and they cause neither you nor anybody else any serious problems) and a paraphilic disorder (where the fantasies most certainly do cause you or others difficulty or cause physical or emotional harm). Whether this useful therapeutic distinction would survive prosecutorial usage is another question altogether.

The Rationale also notes that the more ‘normal’ the content of the fantasy is, then the more additional evidence would be required. Thus if you fantasized seeing adults you know naked you would be in less complication than if you fantasized and were aroused by the recurrent fantasy of hunting or killing strangers. Again, just how long this nuance would survive in prosecutorial usage is a big question.

There is a sizable section on paraphilias. I won’t go into all of them, but I will note the following.

Pedophilia is proposed as having recurrent fantasies of sex with prepubescent or pubescent children and those fantasies bring more sexual arousal or satisfaction than a fantasy of such sexual activity with an adult. Additionally, you would have to be at least 18 years old and at least five years older than the children you fantasize about.

Further, there is another axis of distinguishing the symptoms: attraction to males or to females or to both.

And another axis: attraction to prepubescent or pubescent children or both.

The age-parameters proposed are that “generally” a child is prepubescent if under 11 (in which case the diagnosis is for” pedophilic” attraction), and pubescent if between the ages of 11 and 14 (in which case the diagnosis is for “hebephilic” attraction). This distinction rescues the genuine meaning of “pedophile” from the inaccurate, though more sensational and expansive, meaning given in most news media. Whether that would actually do much to help slow down the mania is another question; careful thinking is not typical of a public mania, especially when the public is worked up and – as too often been the case – the government in its various branches and agencies is deliberately helping to keep the mania going.

Further, the Rationale takes a closer look at the involvement of “non-consenting persons”. A minimum number of separate victims would have to be identified in order to determine if the person is suffering from a psychologically genuine paraphilia or simply got caught once for doing it once. Again, a good clinical thought, but whether it would survive the blunt instrument of prosecutorial deployment is another question altogether.

And further, the Rationale acknowledges the difficulty for the clinician, especially if the patient is already charged with a sexual offense against a child, of determining the true depth and intensity of the patient’s attraction to children. The Rationale notes that persons so attracted – and now accused or charged – are not usually liable to give anybody an accurate picture of the scope, nature, and intensity of their sexual fantasies or desires. Which is largely true. But while this constitutes a genuine treatment challenge in the clinical forum, it may well create a ‘scientific’ inference for State action that will justify confinement (with or without conviction, perhaps) until things can be solidly established.

And there is a proposal for a “paraphilia not otherwise specified” which could include making obscene phone calls or necrophilia (having to do with corpses) or zoophilia (having to do with animals), and others having to do with excrement of one sort or the other.

In regard to these, I note that from a public-safety point of view such persons would not seem to constitute the threat usually claimed to justify inclusion in the various Registries. But two points can be made about that. First, the mania presumes that if somebody is attracted in that way, then he (yes, or she) may eventually ‘graduate’ to persons – which is not clinically or scientifically established.

Second, from a public-health point of view (and that is starting to pop up more often, especially as the public-safety view is discredited because the assumptions of its underlying Findings are being increasingly discredited) such persons may be considered ‘mentally ill’ in such a way as to justify State coercion (confinement not through criminal process but through ‘civil commitment’ procedures). And this starts to shade into a society that simply gets rid of and punishes its ‘weirdlings’ by – sensitively – confining them until they change, or are ‘cured’, or die off. Not so pretty a picture and an ominous straw in the wind.

But from a purely therapeutic point of view, some interesting distinctions indeed.

Lastly, there is a “sexual disorder not otherwise specified”. I’ve mentioned this ‘not otherwise specified’ (NOS) category in other recent Posting. From a clinical point of view, it leaves room for a provider to describe (and maybe get insurance coverage for) a problem afflicting a patient that does not fit into any of the standard DSM categories. And that’s useful and beneficial – if properly implemented.

But of course, in the hands of a prosecutorial intent, or a therapist with some sort of prosecutorial agenda, it can simply become a catch-all to label somebody with an ‘official’ diagnosis in order to secure conviction and/or confinement. Such is our modern American reality.

Well, just a few of my observations there and you are welcome to browse the DSM site yourself.
Now a couple of my own reflections.

First, there is a lot of professional controversy over the “secrecy” in the entire DSM V review process. See here and here.

But they’re most concerned with the Confidentiality Agreement that reviewers have to sign – ostensibly to protect intellectual property rights. Many worry about the researchers and clinicians (researchers don’t see patients – but rather conduct experimental research; the clinicians see patients – although this could be a full-scale psychiatrist or Ph. D. psychologist, or some cottage-industry ‘concerned helper’). A number of them have ties to drug companies and may have an interest in expanding official ‘diagnoses’ so as to make more possible profit for the drug companies.

Coming from an SO community angle, my concern is more that some researchers or clinicians may be ‘government’ or ‘prosecutor’ friendly, perhaps have a financial or status-interest in being quiet agents for a prosecutorial agenda that would also want to see the ‘sex’ diagnoses expanded to increase the number of possible ways to ‘get’ somebody charged with a sexual offense. The boundaries are blurring in these things now, and for quite some time the ‘sanctity of the therapy office’ has been legislatively dissolved, certainly when it comes to those accused of certain sexual offenses or simply those who discuss their sexual-attraction issues with a therapist.

Secondly, there are arguments that the researchers make up too many of the reviewers, and there aren’t enough clinicians among the reviewers. This would be a legitimate concern on its face, if clinicians only consisted of serious, well-trained professionals. But that is not necessarily the case. And even the American Psychological Association itself includes plenty of room on its roster of members for persons of far less competence and training. What I would not want to see is an influx of the type of ‘clinician’ whose basic stock-in-trade is something like the old 1980-1990s self-diagnosis paperbacks: If you are nervous around hot coffee then you were probably raped by your daddy because daddies drink hot coffee – see, it’s science! That sort of thing.

Third, there are reviewers who are supporting a very wide expansion of diagnoses because the ‘emergency’ of unmasking ‘true positives’ (those who are really afflicted with these sexual problems) outweighs the danger of creating many ‘false positives’ (those who are incorrectly labeled with the diagnosis). We’ve seen this emergency-outweighs-all-other-concerns approach in the SO mania from its very beginning. It’s bad in the genuine science and therapy forum, and it’s frighteningly bad (and Constitutionally lethal) in the legal and prosecutorial arena.

This expand-for-safety’s-sake approach is being touted as a new, major “paradigm shift” in the DSM philosophy of its purpose: expand the diagnoses to increase the possibility of identifying persons who will be cause “harm” to themselves or others (and “harm” is verrrry broadly defined).

As I’ve noted on both my sites, this is a lethal consequence of the development of the Regulatory-Preventive State. And it is not ‘new’: it is the old French Revolution concept (what we’re doing is sooo good that it cannot accept any limits on its power) against which the Framers carefully put together the American Revolution concept (government has so often proven dangerous that the People have to make sure they keep it under control at all times).

So all this ‘new paradigm’ stuff – in law and in therapeutic treatment – strikes me as simply a slide down into a very dark and dangerous civic abyss from which this country has already been saved once – by the Framers, whose insights are hardly “quaint”, as far too many government lawyers are saying nowadays (can you say John Yoo and Iraq War?) But – as I’ve also said – the radical feminist lawyers and law profs have been saying the same thing for a lot longer than G.W. Bush has been in politics.

Lastly, all the DSM proposals I’ve discussed have to be considered not simply in the isolated context of therapeutic knowledge, but also in the context of the increasing tendency in this country for the government conviction-confinement power to expand itself under the guise of ‘public safety’ or ‘public health’. You saw in the Comstock Posts what is going on.

It’s just too easy for an expanded number of sexual-disorder diagnoses (possibly good from a purely therapeutic context) to become that ‘sex offender mental illness’ diagnosis that for so long has eluded legislators and prosecutors.

And while even the best-intentioned and most competent DSM reviewers may simply want to expand the diagnostic categories so that therapists will have more insight into patients’ problems, there is every probability that such diagnostic categories will quickly wind up as arrows in the quiver of far too many eager prosecutors and (God knoweth full well) sex-offense-happy legislators.

Worse, it can’t be forgotten that the DSM is the most widely-known diagnostic manual in the world. The assumptions and science underlying its official diagnoses – whether strong or weak – will rapidly have an impact on researchers and clinicians around the world.

And so this mania may – to the extent that a mania would rely on ‘science’ – spread much more widely, piggy-backing itself on the good intentions of at least some of the DSM reviewing staffs.

But I don’t want to get too far ahead of events here. There is much that can happen.

I urge you to visit the site and see what you think.

ADDENDUM

If you go to the main site you will see on the master list of diagnostic categories a listing for 'Dissociative Disorders'. If you click on that you will get a list that includes 'Dissociative Amnesia', which is the professional term for those old deceivers 'repressed memory' and 'recovered memory'. At this point, there is almost no change considered for them, although as you saw in the recent Shanley Posts, even the US Supreme Court acknowledges that the current DSM reflects nothing so much as a huge amount of professional uncertainty as to whether such 'memories' exist at all, or even whether they can exist.

CHANGES TO DSM

I note in the papers that they are getting ready to start the ‘review’ process for the “Diagnostic and Statistical Manual” (DSM), that handbook used by the mental health professional community (actually a broad spectrum of practitioners extending from major world-class researchers through clinical providers such as psychiatrists and Ph. D. level psychologists, and on down into a rather broad array of less-trained ‘providers’ and ‘advocates’).

A couple of points are in order for the SO community to keep an eye on.

First, as was noted in my most recent Shanley Post (“Important New Shanley”, January 30th), it is by no means established that merely by being included in an edition of the DSM a diagnosis is professionally endorsed at the highest levels to be a valid entity. And as you can see in that Post, courts – including the US Supreme Court – have said so.

The ‘process’ is not so much one of rigorous scientific testing of a proposed ‘diagnosis’ and ‘disease’ as it is political wrangling between those who advocate and those who doubt its usefulness and validity.

It’s not as if you have a damaged bone or organ that can be clearly demonstrated to examiners, such as is the case with purely medical or surgical cases. You are dealing with a range of ‘mental’ diseases and problems that on their most biologically-evident end include biologically-involved symptoms that can be seen on various scans or include symptoms and behavioral patterns that cannot be faked (not to put too fine a point on it) and whose connection to a causal organic dysfunction can be established for all competent observers to confirm.

But on the lower end, as I have often said, you start getting into the “spectral evidence” realm with a lot of these less empirically grounded diagnoses and maladies: You get problems that only the sufferer can ‘know’ and ‘feel’. The ‘repressed memory’ and ‘dissociative amnesia’ diagnoses go in this direction, as does the extension of Post-Traumatic Stress Disorder symptoms from combat troops and survivors of natural disasters to persons claiming sexual abuse at some point in their past.

You also wind up with a lot of maladies and diagnoses that seem curiously topical when looked at in the context of trends and events in the wider culture”. A classic example is ADHD, which was discovered – curiously enough – just about the time parents in this country were spending less time with their children. It is not at all beyond the realm of reasonable explanation that children’s lack of attention has somewhat to do with the absence of sufficient parental attention and the structuring – providing a Trellis, as it were – for the child’s attention and energies.

And of course, the drug-business that has grown up around such drugs as Ritalin and Adderall adds another curious variable. It is becoming increasingly evident that long-term use of these powerful psychoactive drugs – whether by indulgent prescribers or through improper acquisition or use by the patient – creates serious secondary problems of its own.

Among the ‘new’ diagnoses that this or that coalition wants to see included as an official malady are the following, as the article notes: those kids who throw a few too many tantrums will suffer from “temper dysregulation with dysphoria”. And I bet there are a lot of such kids out there at this point, although they may just be really unhappy that their parents aren’t around enough. Or they’re fed up with brilliant-baby videos.

Much more ominously, teenagers who don’t seem to fit into the conventional mold could wind up stuck with the label of “psychosis risk syndrome”. You can see right off – and the SO community will be especially alert to this usage – the inclusion of the term “risk”: once again, in a therapeutic setting such a term rightly indicates to the staff and therapeutic team that they keep a sharp eye out so as to make timely and appropriate treatment interventions.

But when you start throwing this around, deploying it, in non-therapeutic settings then we get closer and closer to the Communist praxis of declaring ‘non-conformist’ individuals, whose nonconformity becomes inconvenient to the Correct visions of the regime, to be ‘mentally ill’ and locked away for re-education or ‘therapy’. The Boomers and the children (now adults) that they have raised are turning against the Sixties!

BUT it has become all too typical that the still-engorging Regulatory-Preventive and Prosecutory State has – under the guise of ‘sensitivity’ – begun applying this medical-psychological therapy term in the realms of civil and criminal law. The result is that you can find yourself labeled as a ‘risk’ or a ‘potential risk’ in the matter of some particularly ‘popular’ or trendy concern, and on the basis of little more than a therapist’s spectral opinion could wind up in the clutches of a police-power that claims a ‘responsibility’ to keep the public ‘safe’ by simply grabbing you, declaring you unwell, and locking you away. This is precisely the government gambit in the Comstock case, whose Oral Arguments I have recently examined on this site.

More specifically of concern to the SO community is this proposed ‘diagnosis’, and I quote the article directly: “Men who are too interested in sex face being labeled as suffering from ‘hypersexual disorder’”.

This is not the camel’s nose under the tent; this is the whole business end of a very large and omnivorous constrictor snake.

Note that the article doesn’t even bother with the fig-leaf of the gender-nonspecific “persons”: this is going to be a disease that “men” have. And, if it gets voted in at the official horse-trading session, then you won’t have long to wait before it will be decried as a “public health emergency”, so that the government can “quarantine” you, as if you had TB or the plague. Again, this is precisely what the government is trying to do in the Comstock case.

Note also that ‘hypersexual’ is a rather substantially subjective call – the ‘hyper’ is in the eye of the beholder. And if that beholder is paid by the government, or is a disciple of a particular movement or philosophy (anti-male, anti-violence, pro-victim, or a host of other possibilities – and no disrespect intended here) then you can find yourself in deep and troubled waters verrrry quickly.

I recall encountering one gentleman in his later 40s some years ago whom they wanted to ‘confine’ in a ‘facility’ merely because he had mentioned – to a therapist – that he masturbated once a day. They said he had a “Personality Disorder – Not Otherwise Specified’ – meaning that it wasn’t even in the DSM list; but the DSM had helpfully – and shrewdly – included the ‘NOS’ category for anyone a therapist had bad feelings about (or against) but couldn’t find a ‘diagnosis’ for. That sort of thing.

And note finally that this rather quiet little diagnosis could be precisely the thing to fill that conceptual and legal hole that legislators and prosecutors have been dancing around for decades now: there is no ‘sex offense’ diagnosis.

And I can guarantee you that even if this thing gets voted in as an ‘official’ diagnosis, there still won’t be an equally official ‘cure’ for it, hence no real ‘therapy’, hence you will wind up being ‘confined’ with a ‘disease’ for which there exists no treatment, no therapy, no cure – but you won’t be able to gain release until you are cured. Do you see where this sort of thing can go, quickly and quietly but lethally?

Oy.

You can be tempted to think that the only thing that could save the country is that the currency does collapse or the government goes broke so that the money for all these schemes and gambits will disappear, and all their pomps and works and ‘advocates’ with them. But that’s not constructive and I don’t recommend it.

The article says, honestly enough, that the outcome of this horse-trading "will help shape which emotions, behaviors, thoughts and personality traits society considers part of the natural spectrum of the human persona and which are considered pathological, requiring treatment and possibly criminal punishment".

There are worlds contained in that statement. And dark ones.

Clearly, a lot of 'maleness' is included (and I most certainly do not support the unripe functioning of the stereotypical 'Animal House' male).

And clearly, the government - especially in that 'criminal punishment' aspect but even in the 'public health emergency' aspect as well - is now going to have even more 'official therapeutic' support for sitting in judgment on the very personalities of the Citizens. Which, by the by, it used to be the job of parents in the family setting to establish - without inviting in through the front door the police (or 'therapeutic') authority of the government.

This is the Regulatory-Preventive Nanny State taken to yet another ominous level. Not that this wasn't all a very real possibility when the country - and the government - first started down this dark road. (Which may yet prove, for a Constitutional Republic and certainly for the Framers' vision of the Constitutional Republic and its Citizenry, the road to the Little Big Horn.)

The article says that these proposed diagnoses will be put up on the internet for public comment, so I’ll do some looking around. But I know that many of you are far more net-savvy than I am so have a field day with this.

You won’t be wasting your time.

ARENDT AND THE REGULATORY-PREVENTIVE STATE

As I mentioned in a Note two Posts ago, I have done a Post on my other site about Hannah Arendt's ideas on the differences between the French and the American approaches to revolution and then I have connected them to the rise of the Regulatory-Preventive or Nanny State.

The SO mania is part of this slide into that Regulatory-Preventive State, which is - I am saying - not some 'fresh', 'creative' new reform but rather a slide into exactly the opposite of what the American Constitutional vision was seeking to achieve. And that the 'vision' behind the Regulatory-Preventive State has migrated into foreign affairs in several ways.

So this all has a lot to do with the SO mania and I think that going over it would give you a deeper and wider picture of what's at stake in working against the SO mania.

But it goes more into the political and the historical than into SO matters specifically, so I put it up on my other site.

Please feel free to take a look.

ON A LIGHTER NOTE

Well, there are really no ‘light notes’ in matters relating to the SO mania.

But I just had to pass this on. In today’s (February 8th) newspaper cartoon “Pooch Café”* there is a marvelous send-up of the dynamics underlying ‘recovered memory’.

The ‘hero’ of the strip, a talking dog, has just returned from a week-long series of re-visitation of past lives.

He had just revealed to a neighborhood dog that in one of his re-visitations he had seen his caveman master in a past life being eaten by a dinosaur.

The neighborhood dog interjects that such a thing is impossible since humans and dinosaurs existed eons apart from each other and were never on earth at the same time.

The ‘hero’ is dumbfounded – what did he see then? It seemed so real.

In the final box of today’s strip the neighborhood dog provides the answer: the hero’s former master must have been the guy on the toilet eaten by a dinosaur in “Jurassic Park”.

The hero dog simply goes “Gasp!”.

Well, now.

Having been on the planet for more than a couple of decades now, and not maintaining video files of my ‘significant experiences’ on Facebook or a cell-phone or anywhere else, I can vouch for the experience of not quite recalling which ‘memories’ that I can see in my mind’s eye as clear as day are intact and which are actually composites of a whole bunch of things I’d experienced – or just ‘seen somewhere’.

And did I see both friends A and B that night at the baseball game in ’65, or am I blending two memories – and maybe it was a football game, and maybe ’64. And maybe it was C and D, not A and B.

Cute and mostly insignificant problems that just everybody is prone to. But not so if somehow I am claiming to give absolutely accurate evidence in a court case – civil or criminal.

And of course I am not even going near the far-too-underrated possibility that one could simply make up a ‘memory’ perfectly suited to a situation that’s going to get me some nice cash or other benny (as I’ve said in other Posts, perhaps the psychological benny of getting to have somebody else officially declared as the cause of all my failures in life).

The preconscious mind – not under our conscious control – is recognized as an active ‘film-maker’ in the memory process, and as a result courts should be very careful in considering even memories that are assumed to be valid and honestly related.

But the human self – especially for the purpose of acquiring some ‘gain’ – is quite capable of being a very conscious and purposeful film-maker. And that’s a whole other situation.
The deliberate manipulation of memory – and of a judge and/or jury – is a form of predation that cannot be lightly or too-quickly dismissed, especially in cases where little other evidence supports the charge.

Yes, as one legal wag once put it (I’m quoting this from memory here, so make allowances): there are times when circumstantial evidence can be very persuasive, as when one finds a trout in the milk. But you don’t often find a fully-grown fish in a milk carton in this type of case.

As we saw in the Shanley case, lacking a trout in the milk, an enterprising attorney has other options. As Cicero once said (again, from memory here): When you don’t have enough evidence, you can always abuse the defendant. If Cicero only knew …

One of the great enablers of the SO mania in regard to court cases has been the shrewd tainting of the jury pool before the fact – indeed so far before the fact, before the jurors even get into the court room, or before they even know they might be a juror.

I refer of course to the miasmic skein of untruths pushed as ‘Findings’ by legislators**, trumpeted by a sensationalist media with an eye to laying the groundwork for future civic melodramas where ‘good’ triumphs over ‘evil’, and thus saturating the public in a slimy fog of inaccuracy before anybody is actually called for jury duty. Throw in a couple of made-for-TV movies or TV series episodes and you’ve tainted the pool without anybody being indictable.

Just some thoughts from looking at the comics this morning.

NOTE

*Sorry, but I have no way of figuring out how to display it to you or even link to it.

**I note again how curious – and suspect – it is that so many of these SO laws are passed by voice-vote, so that nobody except the actual official sponsor of the Bill is vulnerable to public opprobrium if things should go wrong with the law. This is on top of such often illicit schemes as sidestepping Committee consideration and placing the Bill directly on the Floor, which of course chills any dissent from legislators who suddenly don’t want to be publicly seen trying to stop the ‘good and sensitive stampede’.

COMSTOCK: THE ORAL ARGUMENTS 2

I am completing here my consideration of the Oral Arguments in the Comstock case.

Let me quote a couple of paragraphs with which I introduced the first Comstock Post.

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”.

I now take up with the presentation of Mr. Dubois (“Def”) and the remarks and questions posed by the several Justices or the Chief Justice.

Def opens up with his primary point: “The power to enforce the law which brought the defendants into Federal custody in the first place has been exhausted. The defendant has been tried and convicted and he's sentenced and he's served his sentence. That law has been fully vindicated. At that point, any further detention must stand on an independent constitutional footing”. (26/2-0-27/1)

In other words, once the government has charged and convicted you, and you’ve served your sentence, that’s it as far as government power goes. Any attempt by the government to claim that it ‘must’ continue to hold you because it has some further ‘responsibility’ has to be grounded in some other Power besides the Power that originally convicted and imprisoned you in the first place – now that your sentence is completed, that Power is “exhausted”.

In response to J.Ginsburg’s question as to whether the government can continue to hold you because of your (alleged) “insanity” as a sex-offender, Def points out acutely that the plea of Not Guilty By Reason of Insanity is a Plea that has to be entered by the defendant at the original trial – so if you did not Plead that you were Insane, then the government can’t come along at the end of your sentence and simply declare you to be Insane. (27/20-25) You didn’t enter a Plea of Insanity, you were convicted (rightly or wrongly) and the sentence flowing from that conviction has now been served. Case, literally, is closed.

J.Stevens asks: Well, say you were convicted of “gun possession” and were sentenced to 30 days and on the 20th day you contracted a highly communicable disease – tuberculosis, say – then doesn’t the government have the power, and even the responsibility, to hold you and treat you until you were no longer contagious? (28/14-21)

No, says Def; public health is a State responsibility, not a Federal one. (29/11-15)

J.Scalia jumps in: Well. Communicable disease relates to interstate commerce, doesn’t it? (29/16-22)

No, answers Def. (Scalia was exploring here the government’s claim that it had the enumerated Power under the Constitution to hold you because of its Commerce Clause Power.)

Communicable diseases are not the same thing as interstate commerce (so the Commerce Clause Power doesn’t apply here). (29/23-30/3)

J.Breyer asks Why not? Surely it’s within the government’s interest and duty to “prevent mental illness” and sometimes the States don’t do such a great job and so what if the government wants to set up a bunch of mental hospitals and treatment centers “of the most modern kind” (as if there is a “most modern” treatment for the non-existent mental illness of ‘sex offending’) “and in these circumstances there will be a handful of people who will pose a threat to themselves or others, in which case they must be restrained”. (30/4-13)

I note the sly “handful” as if there are only a few – when the government’s case in this matter asserts a principle that could continue to confine not only anybody convicted of any kind of sex-offense at all (and they are legion) or even anybody held in Federal custody for any crime but whom the Feds think may be a ‘potential’ sex offender. One out of every 200 males in this country are now ‘sex offenders’, technically – and this is before you actually start applying the AWA parameters. Let alone anybody convicted of anything whom the Feds decide is ‘potentially sexually dangerous’.

Much more importantly, I note this clear example of a verrrrry disturbing, dangerous, and anti-Constitutional tendency at the heart of the Regulatory-Preventive project: the (sleazy) maneuver in which the highly volatile police power of the government – the power to deprive Citizens of liberty – is being snuck out of its cage dressed in the costume of a ‘public health issue’ in which the government wants to both ‘help’ and to ‘prevent harm’ as if you merely had a case of something other people could ‘catch’; and that you sometimes need to be ‘confined’ because you don’t know what’s good for you.

It works with a clearly-established physical communicable disease like TB; it works with solidly-established and physiologically verifiable ‘mental’ diseases such as florid schizophrenia, especially of the paranoid variant. But once you get into more hypothetical and clearly unproven ‘mental illness’ such as whatever they claim is the ‘sex offense mental illness’, then you are into very dangerous territory Constitutionally: such vaporous and unprovable grounds for confinement engorge the Confinement possibility exponentially.

Think of the vaporous concept of ‘repressed memory’ as I have demonstrated in the recent Posts on the Shanley case.

Recall also that in China and Quaddaffi’s still-Stalinist Libya you can be convicted of the crime of ‘wrong ideas’. And that ‘speech codes’ were first introduced in order to ‘prevent harm’ to others (meaning: others might not like what you are thinking and saying, and such dislike is now defined as ‘harm’).

Recall also that the ‘free speech zones’ established on campuses back a few decades ago saw ominous new life in the Presidential elections of 2004 when both Parties established them at their Conventions – as if, to paraphrase Abe Lincoln – the whole country weren’t a ‘free speech zone’ in a darkling world of government oppression.

Add that to all the dynamics of outright public mania – nurtured by the government itself – in this Sex Offense Mania and you can see how lethally the Founders’ cage can be rendered powerless to contain government intrusion into the lives of individual Citizens with its police and confinement authority.

J.Breyer asks: Doesn’t the government have the Power to confine and treat such mentally ill persons if it wants to spend its money that way? (30/16-20)

Def comes right back at him: No – it doesn’t have the power to detain individuals as a consequence of claiming that they are mentally ill based on the fear that they are going to go out and commit a crime. (30/25-31/3)

J.Breyer sticks with it: Are you saying then that even if there are all these people who may because of mental illness go out and commit a crime – maybe your own daughter or mine – and the States don’t have “adequate facilities” then the Constitution doesn’t give the government the power to go in and “help”? (31/4-13)

I note once again this encroachment on the power of the States by the government insisting that it only wants to “help”. (And who, I ask, can forget Ronald Reagan’s great quip that the most frightening statement in the American language is “Hi, I’m from the government and I’m here to help” … ?)

Def, a little befuddled, says No.

J.Scalia immediately steps in to buck up Def’s position: “Try the Tenth Amendment”. (31/18)

(The Xth Amendment, you recall, reserves to the States all Powers not specifically assigned by the Constitution to the Federal government.)

J.Alito sneaks in: Do you think that the government doesn’t have the power to remedy illness caused by its own incarceration of a person?

This is a trick question, of course. At the outset of the session everyone was reminded by the government that under “4246”, the law from the 1940s, the Feds have the authority to retain in confinement any inmate who got sick while in the Feds’ custody.

Def jumps right back: “That would certainly not be the case here”; all these sex offenders are claimed to have an ‘illness’ that predated their confinement. (31-25-32/5) And as a matter of fact, the whole idea the government has been trying to push from the get-go is that a sex offender is by definition “mentally ill” and not simply guilty of a specific criminal act.

In fact, Def continues, Section 4245 allows the Feds to transfer an inmate to a psychiatric facility if he goes crazy while in confinement, but that Section also requires that the confinement end when the sentence ends. (32/17-25) In other words, you can’t transfer an inmate to a mental facility and keep him there beyond the end of his sentence; and on top of that, the inmate has to have gone crazy while he was in confinement, which – again – is not the case with the government’s claims about sex offenders here.

What we’re dealing with here, Def continues after some meandering by several Justices, is the threat of “indefinite potential lifetime detention”; it’s not at all the same thing as a doctor saying to a hospitalized inmate at the end of his sentence Look, you could use a couple of more days or weeks here just to clear this infection up. (34/15-17)

There’s more meandering about whether Def is trying to say that the government doesn’t have the power to set up hospitals for communicable diseases under its Commerce Clause Power and then J.Scalia cuts in: “The government can spend money on whatever it wants … the issue here is whether they can force somebody into a hospital, not whether they can set up hospitals”. (35/23/-36/2) [italics mine]

J.Scalia goes on to say that he assumes Def would not have a problem with the government offering to pay the expenses (to a State) for any ill inmate it releases from Federal custody, and Def says that’s well within the Feds’ Spending Power. (36/3-10)

So, J.Scalia, continues helpfully, that money plus a letter from the Feds to the State saying that they are going to release so-and-so and they think he is ‘mentally ill’ and the State might want to do something with him … that would be OK? (36/11-16)

Def says Yes. And it would be up to the State at that point, what it did or did not decide to do with the information and the inmate himself.

BUT, says J.Stevens, hasn’t Congress acted precisely because it feels that there are cases “out there” where the States will decline to take any action?

Well, says Def, even if there are such cases, the government doesn’t have the Power to go and continue to confine these inmates who have now completed their sentences just because the State – completely within its Xth Amendment authority – declines to take any action. (37/4-9)

J.Stevens continues to work the angle that if there is a problem then the government has to – and somehow does – have the authority to fix it. (37/10-16) And this is, I would say, the huge assumption that the government is trying to get accepted as ‘the new normal’: that if the government ‘discovers’ (or defines) a new problem, and the States don’t want to do what the government thinks ought to be done, then the government just has to have the authority (somehow) to do what it thinks has to be done.

Def politely says No: “ … the question is: What is the constitutional response to the problem? We can imagine plenty of unconstitutional responses …” (37/19-21) And here he is politely trying to warn the Court that if you want to toss the Constitution overboard then, sure, there are scads of things the Feds could do about a lot of stuff … but is that where the Court wants to go?

J.Stevens is set on the idea that having a sex-offender type of ‘mental illness’ is just the same as having a ‘communicable disease’ so why is this case here a different constitutional question? (37/22-38/2)

There are times when you wonder if some of these remarks could even make it past a weekend paper in Freshman Philosophy (if they still have such classes in college). You aren’t ‘giving’ anybody a communicable disease when (and if) you commit a crime: you are inflicting the consequences of your actions (we aren’t even sure you can call your actions the result of a disease) on somebody. And inflicting your actions and their consequences on somebody is what human beings do all the time – and sometimes in a criminal manner.

AND YOU MOST CERTAINLY CANNOT try to sneak the dangerous unpredictability of the government police power (so carefully caged by the Framers) into a wider public role by claiming that it’s only in the service of a ‘public health’ issue. Consequences of any act that may elicit the operations of the government police and criminal-justice capability cannot wisely be viewed as merely an adjunct and secondary element of some purported public health issue; the engorgement of the government police power – especially of the Federal government against the States’ proper authority – is an absolutely fundamental issue that must be looked at long and hard and in the light of full and fully informed public deliberation on its own merits.

Yes, citizens were doing that - inflicting the consequences of their actions upon other citizens - in the time of the Founding, and long long before, and yet the Framers did not therefore see fit to create a Benevolent Despotism that could do whatever it saw fit to ‘help’ whomever it wanted to. The key term in Benevolent Despotism is ‘Despotism’, not ‘Benevolent’.

And THIS is the difficulty with the so-called ‘liberal’, victimist, Regulatory-Preventive State: it wants to erect for all practical purposes a Despotism because (it is claimed) it will be more Benevolent than the (allegedly) 'insensitive' Constitutional Republic that the country has now.

But once a Despotism is in power then there is no guarantee that it will keep its Benevolent promises, and there is every historical precedent to presume that it will not.

You see what’s at stake here.

After more of the same from J.Stevens, Def says outright: “It seems to me that the government’s argument essentially collapses into the notion [that] Well, if it’s a good idea, [then] it must be necessary and proper to do it. I think that is just simply not correct”. (38/20-25)

Def is being toooo nice here. It is not only “not correct”; it is hell and gone from the Constitutional vision and ethos and to accept it is to knock out a foundational wall upholding the entire Founding construction.

J.Ginsburg now weighs in to help the Stevens argument: “It’s more than the question of a good idea. You are talking about endangering the health and safety of people, so it’s – the government has some responsibility, doesn’t it?” (38/25-39/3)

I’d like to take a moment here to look at Ginsburg’s statement. What you see here is the culmination of decades’ worth of supporting assorted ‘reforms’ that, in method if not also in content, have required for all practical purposes a ‘revolution’ against democratic process, a ‘revolution’ purportedly required by the ‘emergency’ of this or that claimed ‘outrage’ and ‘injustice’, and a revolution justified as being more ‘sensitive’ and more (in my terms here) Benevolent than the Constitutional framework of the Founding.

Thus she gives herself away when she refers to Def’s point as merely being about “a good idea”. What’s at stake here isn’t a “good idea” – what’s at stake here is the very foundation of Constitutional government and the Constitutional ethos as the Framers envisioned and constructed it. But she has spent her professional legal career among those circles who saw the Constitution as some hoary, macho, insensitive and quaint contraption, tainted to its very core by the patriarchal oppressors who devised it and consequently deserving of little respect.

And she therefore just cannot imagine anyone denying that if the government (in her mind, I would say, a Sensitive Despotism) wants to do something nice to ‘protect’ some folks, then it simply has to have that responsibility. (And who cares how it justifies the Power? After all, facts don’t matter; only pain does. This is how the ancient Vampire of Tyranny will be invited in, and by the so-called ‘liberals’.)

Def counters that Yes, certainly the government can have a responsibility, but that “there are constitutional limits” (39/4-7)

But that’s just the point that Ginsburg – true to her own ideological and professional history – is perfectly willing to pooh-pooh: Yes, but you’re saying that all the government can do if the State is unwilling or unable to “take” this person is to pass a spending measure and that beyond such legislation the government is “helpless”.*

She wants her Sensitive Despotism to have all the Power it may ever need and she doesn’t like it to have any bounds – and would you care to imagine her at the Constitutional Convention in Philadelphia back in 1787? But of course, she would say, they were ‘men’ and the Convention was nothing more than a conventicle of patriarchy.

The entire Constitutional idea was that the Federal government would indeed – in matters reserved to the States – be “helpless”, at least in the sense of having a direct Power to override or compel or “help out” whether the States wanted it to or not.

C.J.Roberts clarifies that Def wants the government to acknowledge that once the sentence is completed its power is exhausted and that it can only urge the States to take action, perhaps offering money to help them do so. And Def agrees: once the sentence is completed, then the government has no “decision” to make: the inmate must be released from Federal custody and from then on it’s up to the State involved what action, if any, to take.

J.Breyer can’t understand how Def can claim that what the government wants to do is any different from a university running an infirmary for sick students, some of whom might have to be restrained for a bit. (41/4-17)

Which really makes you wonder … that’s precisely Red China’s approach: that the entire country is a school run by the government and the government will educate or re-educate the citizens, and they will go where they are told when the government decides they need ‘healing’ or ‘re-education’. Or else.

You see where decades of trying to make space for the Regulatory-Preventive State has led to. After several decades – and perhaps entire professional careers – trying to put a ‘constitutional’ face on profoundly anti-constitutional ‘reforms’, even the most senior judges in the country can no longer sense the abyss to which they have helped draw Us all.

And in fact J.Breyer goes on to say that what the government wants is merely to “take care of people in a certain way” – the Nanny State, the Caring State, freed from all bounds because it has such good intentions (and can you say Iraq War?). (42/17-18)

In what has to be one of the most polite understatements in American Constitutional and jurisprudential history, Def remarks “I think it would be quite a step for the federal government to embark on an enterprise of that nature”. (43/12-13) And he ain’t just whistlin’ Dixie.

J.Scalia proposes that since each State has an Involuntary Commitment statute, then the Feds could, if they felt it necessary, be empowered to bring such an inmate before a State court for such a Hearing. And Def, rightly, agrees that there would be no problem with that. (43/17-25)

But this is not, I think, what the Feds want at all. Rather, this case is one more instance of the Nanny State, of the Regulatory-Preventive State, amassing power – and if the Feds don’t come out with ‘the power’ to do what they want their own way then they will consider the case a loss; J.Scalia’s alternative solution respects State power and does not engorge the Feds’ power ... so the Feds aren’t going to want to go that route at all. They are after power here, not solutions.

And thus the entire Sex Offender mania in all its layers and phases and aspects seems to me not simply an aberration but rather a Phase in a larger Trajectory: to replace the Constitutional Republic with the Regulatory-Preventive State. There are many – to all appearances ‘liberal’ – who earnestly hope for such a Thing, whether they know it or call it by that name or not.

J.Stevens seems to recover some sense of what’s facing them, saying “We have to decide whether this [statute] is constitutional”. (44/12-13)

J.Scalia adds “But most of the argument for why this is constitutional is simply: it’s necessary, therefore it’s constitutional. But I’m not even sure it’s necessary”. (44/16-19) In other words, the government has other legitimate options as to how to see these inmates handled, without having to break through this Constitutional wall (which I would consider a ‘carrying wall’ and not a decorative one, a firewall, and a watertight bulkhead – and you don’t go punching through any of those things).

J.Ginsburg is concerned that in all this process, anyone who posed “sexual dangerousness” would be loose all the while. J.Sotomayor starts leaning into that: “But that doesn’t take care of the fact that the prisoner would be released before there was a cure found for the alleged mental illness, meaning supervised release generally has a term limit”. (46/3-7)

There are a couple of problems here. First, the government is claiming there is no cure, when there isn’t even a diagnosed (diagnosable?) disease. There is the fact that some persons – mostly males, as it has shaken out thus far – commit some form of sex crime (although hardly all rise to the level of rape or its attempt). And that of those ‘some’, a percentage will do so whenever they get the chance; this is especially true, as best I can make out, of those attracted to prepubescents, to children strictly speaking.

Such persons are clearly and profoundly unwell. But the Constitution cannot be disassembled or deconstructed in order to ‘prevent’ them. You no more punch holes in the Constitution to get at criminals than the police can fire at a fleeing suspect into a theater full of moviegoers or use firearms to subdue a felon on an aircraft in flight (if you depressurize the cabin with a shot through the fuselage, you create catastrophic decompression ... no matter how benevolent your intentions when you pull the trigger).

But the children and the victims are not really at the heart of the issue here: they are being used as pawns, as pretexts in an increasingly steepening slide down from the Constitutional heights and into a despotic (however ‘benevolent’ it may be imagined) form of government which is precisely what the Founding generation fought the Revolutionary War to escape.

We are not heading here into a brave new future but into a tired and discredited but lethally dangerous and truly 'oppressive' old past.

NOTES

*Hannah Arendt, in her 1962 book “On Revolution”, notes that the goal of the American Revolution – “limited government” – was akin to the British concept of “limited monarchy”: that the monarch-government is limited precisely in order to provide the ground of political liberty.

And that therefore limited-monarchy is precisely the opposite of that other, Continental Enlightenment concept of Benevolent Despotism, where the monarch-government is precisely NOT limited in its powers because it is presumed to be ‘benevolent’ and needs all the power it can be given in order to do ‘good’ things to alleviate human suffering.

Arendt notes – in 1962, before the later-1960s advent in the US of the various ‘revolutions’ in favor of ‘sensitive’ government – that a government allowed to pursue the (probably impossible) goal of alleviating human suffering is going to require and assume limitless power (such as happened with the French Revolution, which started off trying to alleviate the sufferings of les malheureux (the unfortunates) and wound up resulting in The Terror and then Napoleon’s empire and its imperial wars).

I’ll be Posting on this on my other site shortly.

Needless to say, I am not in favor of ‘human suffering’. But to entrust its eradication to government in any form is to remove any concept of ‘limits’ from government power, which is precisely antithetical to and contrary to the Founding vision of this country as a Constitutional Republic. This is a profound reality with huge consequences for this country, and those consequences are unavoidable and yet haven’t received careful attention, either by legislators or most courts or the media or the Citizenry at large.

The Politically Correct development of the Regulatory-Preventive State, then, is not some cutting-edge new ‘reform’ or ‘progress’. Rather, it is the embrace of the Continental concept of Benevolent Despotism which is precisely what this country was founded to avoid.

You see what’s at stake in all of this.