JUST WHAT ARE THEY DENYING?

The always-worthwhile Sex Offender Research site has an interesting piece entitled “Sex offenders share lack of empathy” dated 3/27/10.

The subtitle says “experts say refusal to acknowledge crime increases chance of new offense”.

The point that concerns me is that there seems to be no distinction between A) an accused (or convicted) SO who says “I didn’t commit the crime” and B) an SO who says “I did commit the act but I refuse to acknowledge that it is criminal or harmful to the person against whom I committed the act”.

SO (A) may well be a person who is maintaining his innocence in the face of an unjust conviction or – let’s admit it – a person who is maintaining that stance for the purposes of further court appeals. Every Citizen has that right. And heaven well knoweth that miscarriages of justice and wrong convictions happen with far more frequency than most folks would like to realize. Such as in times of Mania.

SO (B) is the therapeutically ‘remarkable’ person here. He refuses to admit that what he did was harmful. Or perhaps refuses to realize or acknowledge that – clearly harmful or not – his unwanted sexual activity violated the rights of another human being not to be used as an ‘object’ of his own sexual plans, needs, fantasies, or what-have-you.

Clearly, a person (SO B) who is not aware – or refuses to become aware – that his actions are illegal and harmful and in any case violative of the rights of another human being is not going to be reliably disposed toward not repeating such acts again.

Equally clearly, a person (SO A) who maintains that he did not commit the act is not denying the illegality or harmfulness of an act, nor is he necessarily denying the rights of other human beings not to be dragooned into satisfying one’s own sexual fantasies or needs.

It would take a substantial amount of further careful proving and thinking to assert that SO A is indisputably or even ‘probably’ predisposed to repeating his act (since he asserts that he did not commit the act in the first place).

I would make the further point that the ‘experts’ here are on very shaky factual ground when they assert that “when they commit their crime nearly all sex offenders are aware that what they are doing is illegal and harmful to their victim”.

This may well be true if you are talking about rapists and attempted rapists (since rape and the attempt at it has always been a crime). But once you get into the monstrously elastic ‘definitions’ such as ‘sexual assault’ and ‘molesting’, then you are in much more mushy terrain, swampy even.

And this problem is exponentially intensified when you realize that many ‘acts’ that are not overtly ‘sexual’ can now rather easily be imputed to have a ‘sexual motive’, such that an individual – perhaps even an observer – might not even consider them to be matter for ‘sex offense’ concern.

These are the swamps into which sweeping and ill-considered, ill-thought-out SO regimes can drag everybody, and the integrity and efficacy of the legal system and the legislative system as well.

And matters don’t get any better when ‘experts’ – who theoretically have the professional and scientific education and training to know better – allow themselves to make indiscriminate and overbroad assertions, either to ‘keep the numbers up’ or to avoid appearing ‘soft’ and thus losing governmental support and funding. This is also in its way a version of the old and somewhat unsavory union maxim: ‘don’t kill the job’ (i.e., don’t work so hard and fast that you finish the job too soon, which will end payments and raise other customers’ expectations).

Further, somebody in the position of SO A is not going to be accepted into any ‘therapy’ (assuming that his prison has any) until he final ‘admits and takes responsibility for his crime(s)’. Which is a neat little way of extending the confinement (or civil confinement after his court-sentence is completed) of any SO who maintains his innocence.

While I do not at all deny that there are individuals – the article refers to a particular sexual murderer at one point – whose ‘denial’ may indeed indicate ‘refusal to accept responsibility’ for a clearly heinous act, there are – I’m going to say – not very many of this type of subject in the general pool of SOs that a clinician would treat (unless, of course, that clinician was employed to work solely or exclusively with SOs convicted of the most heinous crimes).

And among such a type of offender, the refusal or the inability to voice remorse indicates a type well known to clinical work, the type that used to be called a “sociopath”. This term denoted a person who simply had no sense of – or concern for – the effects of his words or actions on other human beings with whom he came into contact.

But such “sociopathy” is present in many of the population – and not simply criminals (bank-robbers, identity-thieves, reckless drivers, say for example – or even politicians). Indeed in some careers, including ‘business’ and ‘entrepreneurial’ ventures, such an attitude (consciously intended or not) is considered a positive career advantage and an essential component of achieving ‘success’.

When such persons have committed a heinous act and refuse to accept (or are incapable of accepting) that what they have done is wrong and harmful, then such an individual may indeed be “beyond rehabilitation”. BUT EVEN THEN this clinical conclusion means only that ‘until this person is able or willing to accept responsibility there is nothing more that the present state of clinical practice can do toward rehabilitation’.

And who knows with any individual human being, how things may work out?

The ‘expert’ focus on ‘empathy’ is a particular reflection of feminist influence over the past few decades. And it’s not a bad one, in itself.

Myself, I lean first toward ‘respect for others’. Given that so many males are leery of ‘feelings’ at all, you may be creating an extra (and significant) level of difficulty for the therapeutic plan by getting a patient already unfamiliar with or averse to ‘feelings’ to not only ‘get into his feelings’ but then take on the already tough task of developing ‘empathy’.

Whereas, building on the much more ‘male’ appeal to ‘man up’ and ‘take responsibility’ – even to take responsibility for protecting society from one’s own disrespectful tendencies’ – you might get a lot further with a lot less complication.

This approach seems to have lost ground over the past decades as the more female-oriented ‘feelings’ approach dictated the push for ‘empathy’. It didn’t help that in a number of other ways the concept of ‘responsibility’ was repugnant to or at least incompatible with the general trajectory of feminist-oriented changes sought in the national culture.

I can’t help noting that the focus on ‘feelings’ rather than ‘responsibility’ immediately put males at a disadvantage from the get-go, which from a political point of view must have seemed one of its hidden advantages.

But patients/inmates who have committed such heinous acts as the sexual-murderer mentioned above are not so numerous as one might be led to believe.

And, of course, the numerous – verrrry numerous – population of ‘legal sociopaths’ may be equally deficient in empathy and a sense of responsibility to respect others.

I suppose that a criminalization of ‘lack of empathy’ (or ‘lack of respect’) to the point where approaches proper to the therapeutic forum are introduced into the criminal-law and forensic forum is going to fuel an ever-intensifying melding of the therapeutic and the forensic. And this will pave the way – as has already been seen in the SO Mania and its legislation – for grave Constitutional corrosion as the Regulatory-Preventive Nanny State continues to expand and intensify its intrusions.

Indeed, as the article to which this Post is linked reports, there is talk of “one-strike” SO laws – no doubt either as ‘the next logical step’ or as ‘required by the emergency’.

But even the State’s officials and other experts are leery of that – as well they should be.

Respect for the rights of other Citizens is something the whole country could use a lot more of.

I’ll go further and say that some decades ago the loud and almost arrogant disdain for Citizens who ‘just don’t get it’ started a stunning corrosion in common public respect – for other Citizens as well as for their rights and for the common national public heritage and tradition.

Perhaps there are now wayyyy too many ‘publiopaths’ loose on the streets, persons who have insufficient respect for the complexities and dignity of Our common weal. And many of them who not only deny their ‘publiopathy’ but also refuse to acknowledge the damage it – and they – have caused.

There’s a thought.

SEX OFFENDERS AND THE PRIUS

On March 12th I had Posted about the manic media reaction to the incidents of Toyotas malfunctioning. Since then one gentleman who led police on a high-speed odyssey over California highways after his Prius’s accelerator allegedly jammed (a Prius in a high-speed chase?) became the subject of an investigation (still on-going) as to whether he had made the whole thing up to make a few bucks.

Now comes an incident recently in New York state where a housekeeper ran head-on into a wall with her employers’ Prius and said the vehicle wouldn’t stop when she stomped on the brake pedal.

After investigation, including an examination of the vehicle’s ‘black box’, the local police are now convinced that the housekeeper caused the accident. The ‘box’ indicates that the brake pedal was never depressed and that at the time of the crash the accelerator was pushed to the floor.

To the inquiring mind the possibilities raised by the results raise far more interesting questions than have been answered.

Perhaps this is a case of an individual who made an error for which she would rather not take the consequences taking advantage of one of the country’s ever more frequent trip-wire mania waves created – I would say – by the market-driven exaggerations of 24/7 news and the Pain-tripwires originally laid down by the sob-story TV talk-shows of the 1980s and 1990s.

Or perhaps the hapless housekeeper was sent out by her employers to surf a wave on their behalf; perhaps with an eye to getting some cash to keep up the payments on their other car (a Mercedes or Bentley, perhaps?) and the McMansion.

At any rate, the story only gets more interesting.

The police are not going to charge the housekeeper. “She believes she depressed the brake but that just simply isn’t the case here”, says the local police captain. Ummmmm – so he’s going to go with the fact that since she says she ‘believed’ she depressed the brake, then it’s all OK.

Members of the SO community will feel their whiskers twitching at the mention of ‘belief’ and ‘memory’.

Apparently the police are now going to accept ‘memory’ and ‘belief’ even if the available physical evidence clearly and irrefutably indicates that your story and the provable facts utterly contradict each other.

So her ‘recovered memory’ (and thus her allegation) is proven to be false, but since she reely reely ‘believed’ it, then it’s all OK.

No doubt there has been a local police decision not to get themselves involved in going after a poor minority housekeeper in an upscale PC neighborhood, or going after her possibly ‘connected’ employers. After all, it’s a ‘nice’ town.

And this rather innovative deployment of the ‘recovered memory’ stuff is simply an opportunistic use of whatever ‘cover’ was handy and useful.

You can only wonder what would happen if the housekeeper – on her own or at the behest of her employers – had made a sex-offense allegation, and somehow the allegation had proven to be irrefutably not-so, what the police would do to the ‘believing’ false accuser.

Or you might wonder if this sort of thing has happened in SO cases, with the ‘believer’ either getting off without being held to account or the prosecution figuring they could still surf the SO wave and get the defendant convicted by presenting a lurid enough allegation.

Just another straw in the wind as to how the entire queasy weed-patch of the SO Mania is now wafting its seed to other ‘gardens’ in the great American park … spreading its greasy seedlings into the rich manure of Fear and Ignorance and the civic Immaturity that allows itself to be stampeded not just for a moment, but for 20 long years.

BARRY GOLDWATER AND SEX OFFENDER MANIA

In his campaign for President in 1964 Barry Goldwater asserted loudly and proudly that “extremism in the defense of liberty is no vice!”.

It wrecked his chances and LBJ gave him the soundest electoral trouncing anybody could remember.

Americans get nervous with the E-word. Back then, every adult recalled the world’s unhappy experiences with the Red Revolution that established the USSR and Hitler’s unhappy excitements. (Mao’s Cultural Revolution – in which that genius turned that country’s idealistic but excitable youth against anything old enough, mature enough, independently-minded enough or insightful enough to oppose him and hold him responsible for the mess he’d made with his policies – was still a couple of years in the future.)

Extremism, it seemed then, seemed to be a flash-in-the-pan sort of thing: it gave off a lot boredom-blasting noise, but after the initial flash not really much sustained or usable light. And there were a whole lotta downsides.

Sort of like the atomic bomb. With the radiation sickness and the indiscriminate flattening of everything in the blast-zone.

You didn’t want to be messing around with Extremism.

Nor was this simply a ‘modern’ insight, prompted by the Bomb and rockets and such.

The Framers were pretty much non-Extremists themselves. They had to build a complicated machine (Constitutionally-limited government) that would somehow have enough backbone to get its work done, but be circumscribed enough so that it wouldn’t decide – like the proverbial crazed horses – to run away with the wagon.

They were sooooo not-Extremist that they didn’t dare risk eliminating slavery right then and there in 1787, for fear of wrecking any chances of putting the new nation together at all. The Best, as they saw it, was truly the enemy of the Good-Enough. Which isn’t a catchy sort of slogan, and surely not of itself a ‘heroic’ stance to take, but they figured that when you looked at what they actually did manage to accomplish, then your assessment of their efforts would be tempered by the awareness of the frakkulous problems they faced.

And, they figured, sooner or later this thing – slavery – was going to wind up going away.

And as most folks realized about Goldwater’s comment: a) somebody who embraces Extremism probably has to be something of an Extremist type of person him/herself … and do you want that type of person with a finger on The Button? Or running things in general?

And b) Extremism seemed like the type of thing that could eat its way through whatever container you poured it in – sort of like the famous mythical acid that could eat its way through any substance: how do you store the stuff? How do you carry it around? How do you even come in contact with it to apply it to whatever you are going to apply it to? And did We really want to have that stuff loose in the country?

Now less than half-a-decade after Barry Goldwater’s comment the late Sixties became verrrry Extremist indeed. As the Dems desperately looked around for fresh demographics (LBJ’s noble completion – with Martin Luther King’s indispensable support and guidance – of the unfinished civil-rights promises of the Civil War had broken apart the Dems’ New Deal coalition and the Party needed big batches of fresh and reliable voters) they hit upon the Feminists, the Young, the second and urban phase of Black civil-rights agitation, and – hesitantly – Immigration.

And all of the representatives and advocates of those demographics had been watching Mao – whose Cultural Revolution and Red Guards had by 1968 captured the world’s attention.

If it works over there … ??? This was the question that started to form in wayyyy too many minds over here.

Some mighty extreme assertions of group ‘oppression’ and some mighty extreme demands to redress those vividly characterized oppressions and some mighty extreme ideas as to just how such demands and agendas might be most widely and immediately achieved … were made. Lots of them.

What was going on back then was – not to put too fine a point on it – kind of really Extreme. In content, or in method, or in cumulative effect, or in all three of those categories at once.

But the Beltway was aware of what had happened to Goldwater less than a decade before. And it would do the Party no good if in the process of forging some fresh and big new demographics for itself, it wound up getting classified in the public mind as Extremist.

So it had to make sure that the public didn’t make that connection.

One of the ways to solve that problem turned out to be Pain. If the government emphasized Pain, then it could claim that the large and hasty things it was doing – sort of overriding public deliberation or doing an end-run around it or otherwise short-circuiting or avoiding it – were simply the necessary things that a doctor – say – would do in an emergency room with a gravely ill or injured patient; or like when the Fire Department can axe down doors and walls in order to put out a fire. Nothing more.

But then the idea of Fear entered into things. The Latvian thinker Judith Shklar, who wound up in Harvard in the mid-1950s and had lived through Communism and Hitler, thought that “cruelty” was the greatest of life’s abuses, especially when governments exploited “inequalities of power”. So, she thought, there was an upside to what she called the “liberalism of fear”: by raising people’s level of fear, they will bond together and under the processes of constitutional democracy will assert themselves against government cruelty toward them and so limit government’s abusiveness.

You can see that she was making some complex sense here.

But, as so often happens when vote-desperate politicians and specific-agenda ‘revolutionaries’ read complex thoughts, they reduce them to snippets convenient to their purposes.

The use of ‘fear’ to mobilize folks sort of stuck in their minds.

Which wasn’t such a big leap: Joseph Goebbels had masterminded the manipulation of fear in public opinion in the 1930s.

Nor do vote-desperate politicians and specific-agenda ‘revolutionaries’ take the trouble to follow things through, conceptually or historically. As the history of World War 2 demonstrated rather clearly, Goebbels’s project did not work out so well in the long run; and conceptually you’d have to really wonder how a Nazi method of manipulating public opinion could ever be grafted onto America’s deliberative, democratic process.

But as I’ve said, these are the type of advanced-level deliberations that to vote-desperate politicians and specific-agenda ‘revolutionaries’ merely represent ‘thinking too much’.*

So Pain and Fear were blended together into a potion designed to manipulate public opinion and neutralize democratic process.

Along comes the Right – which by 1980 and the dawn of Reagan’s era had already started reaching out to America’s religious fundamentalists (as a counter-weight to the ‘secular liberalism’ of the Left).

And thus a third element was poured into the potion: Evil. The Left hadn’t used it because it really wasn’t interested in ‘god-talk’ at all, and indeed sought just the opposite.

But the Reagan-era alchemy was to unite both Left and Right: Evil caused Pain and people should be in Fear (because then the government could step in, like fearless vampire killers saving the hapless villagers or like the cavalry saving the settlers).

And as I’ve mentioned in previous Posts, the prosecutors saw a huge upside: a Victim would give the awful economics of prosecuting (SOMEbody has to get blamed for this and get put away) a sympathetic human face.

The result was an even more Extreme agenda, once again neatly masked as merely the good-Mommy government responding to the public's Fear and an ‘emergency of Pain and Evil'

First We saw the Satanic Ritual Abuse trials of the early-1980s. These represented a blend of the feminist focus on sexual matters (and its queasy antipathy to ‘men’) with the fundamentalists’ equally burning concern about ‘weird sex’ and satanic Evil, and found ready reception among the large numbers of American parents – single, married, or whatever – who were more and more leaving their kids in day-care.

The result – in this reputedly enlightened and modern America only 20 years ago – were cases of adults being convicted of sexually abusing day-school tykes according to Satanic rituals, or in ways that somehow involved dragons, aliens, and other unworldly beings.

Even as the vast majority of those cases were ultimately (years later) overturned upon review the Clintons arrived in the White House. This created an opportunity for not only Legislative but Executive support for radical 'deconstructive' and radical-feminist initiatives. Indeed, nowadays the feminist-friendly historians refer to the 1990s as the golden age of Governance Feminism, meaning that radical feminism’s favorite agendas were incorporated into law with Executive support by supporters of the feministical agenda within the government itself.

This was the era of the first Sex Offense Mania laws and their siblings, the equally Constitutionally dangerous Domestic Violence laws.

And as the SO community may well realize, these laws are Extreme from any serious Constitutional point of view.

In the Domestic Violence laws, a Citizen can now be deprived of liberty and property simply on the ex parte word of another person; is presumed to be guilty and must prove himself (so often a ‘him’) to be ‘not’ dangerous (which is a logical impossibility); in the matter of charges that are so elastically and vaguely defined that they are almost impossible to specifically rebut; and may well face a ‘special’ court specifically erected to make sure that persons like ‘him’ don’t hide behind ‘laws’ or ‘the Constitution’.

Equally insidious, these proceedings are classified as ‘civil’, not ‘criminal’ so the usual Constitutional Protections do not so robustly apply. Although if you violate the court’s Order against you, issued after these proceedings, then that is a crime, and by that time you are doubly whammed.

And I have rehearsed at great length on this site the Constitutional violations conceptually erected into law in the Sex Offense legislation. Which, neatly, sidestep not only public deliberation but legislative deliberation (a matter of public record) by the use of voice-votes to pass them.

Although, when the matter of public opinion arises at all, it is a public opinion shrewdly and largely stampeded by Fear of Evil. Although again, the Fear is based on grossly inaccurate Findings and assertions about ‘sex offenders’.

And the growing public awareness and unease about the laws was countered – again shrewdly – by an intensification of the focus on ‘children’, who would replace the more amorphous ‘victim’ as the government’s chosen ‘face’. Yet the laws remain aimed at ‘sex offenders’ generally regardless of whether ‘children’ enter into the case at all.

And as you saw in my recent Post on Wisconsin State Senator Lazich’s remarks, the whole stampede shrewdly avoids focusing on the populations that statistically (even by the Justice Department’s own findings) are the overwhelming source of child sex-abuse: the parents and families and friends-of-the-family whom the parents bring into the children’s life.**

Fear, of course, catalyzes folks into extreme behaviors. That’s part of the evolutionary purpose of Fear: it stimulates non-ordinary responses to what is perceived as an extraordinary threat.

These developments constitute an Extremism that is now not simply a matter – as in Goldwater’s formulation – of a Chief Executive’s predilections to use awesome power inappropriately. These developments constitute an Extremism that is corroding the fundamental conceptions and strictures built into the Constitution itself by the Framers.

And in saying all of this I no more ‘support sex offenses’ than John Adams or any of the New England or ‘Northern’ signers of the Constitutional instrument ‘supported’ slavery in 1787 (Adams was not an official delegate to the Constitutional Convention).

So I point out that Fear by its very nature breeds and requires Extremism.

And that Extremism is something that is antithetical not only to deliberative democratic process but is itself anti-Constitutional by its very nature.

And that consequently , We are in a heepa’ trubble.

So keep up the good work.

Especially since, as I have also mentioned, while a government that is ‘succeeding’ is – as the Framers saw – still capable of turning on its own people, a government that is ‘failing’ is even more liable to do so: a government’s own citizens – or some subset of them – are always ‘easier’ targets than foreigners (for whom you have to call out the military and drag the valuable cannon all over the shop).

And if there’s any characterization that may rightly describe the government these days, it’s ‘failing’ – in soooooo many ways.

Let Us therefore brace Ourselves to Our duties and so bear Ourselves that if this country lasts a thousand years, history will still say “This was their finest hour”. (With thanks to Winston Churchill; capitals mine.)

Take heart in your efforts and keep up the good work.

NOTES

*The noted commentator Leon Wieseltier, a senior Editor at ‘The New Republic’ magazine, shares his thoughts about Washington and the Beltway in the March 25th issue (p.40): “These are shabby days in the capital … for there are no heroes here now … there is almost no courage in the political class any right now … everybody is transfixed only by their numbers … the instinct for self-preservation has routed all the finer instincts … there is no longer any dignity in in loss, if you lose a fight for a just cause; if you lose a fight you are merely a loser …”

**Once the illusion of this emperor having any clothes on is dispelled, it becomes immediately clear that according to the Sex Offense Against Children’s own conceptual logic and according to demonstrated facts, the vast majority of the ‘voters’ (whom the pols are trying to pander to and stoke up with Fear) are the real threat-population to ‘the children’.

But to admit that and act upon it would wreck the entire political purpose of the SO Mania. If you’re trying to manipulate ‘voters’ into supporting you out of a knee-jerk reaction to Fear that you have purposely stoked, then you don’t want to go and label those exact same ‘voters’ as dangerous threats against whom the entire frakkulous weight of your (anti-Constitutional) legislative agenda will be aimed.

No. Easier to blame ‘strangers’ – even if you have to infer a totally incredible picture of regiments of slavering feral ‘sex offenders’ loose in the land, in broad daylight.

And on a deeper level, the pols are playing not only on Fear, but Guilt. Because a lot of parents (married, unmarried, single, or what-have-you) don’t or can’t make the time to get deeply involved in their kids’ lives. (Which is an unintended consequence and result of both ‘cultural’ and economic factors that the pols have themselves introduced: ‘family’ and ‘marriage’ and indeed ‘adulthood’ have been ‘deconstructed’ and there are now far too many people needing jobs for the amount and quality (barristas, temps) of jobs now remaining.)

So, in a classic example of the abnormal psychology of mass societies, the guilt that many child-raising voters feel is ‘displaced’ onto the Evil Monstrous Sex Offender. And by supporting the Sex Offender Mania, a child-raising voter can feel that s/he is ‘taking care of the children’.

Future historians are going to shake their heads in disbelief. Just, I would say, as Americans after World War 2 used to shake their heads and wonder how the German people bought into all that Nazi baloney. But they did.

IN THE COMICS

Two quick points here.

First: if you haven’t seen the season opener of the animated cartoon show “South Park” I can recommend it to you. “South Park” is an irreverent but insightful cartoon look at the adventures of a bunch of 4th graders in the fictional Colorado town of South Park. In this new episode, a couple of them are suddenly ‘proven’ to be ‘sex addicts’ – and the Feds and even the President and a lot of those super-Swat armed Federal police get in on the act. Members of the SO community will recognize a great deal as this show’s cheeky creators go after the madness in matters sex-offensual.

In today’s cartoon strip “Prickly City” the precocious little child who is one of the main characters continues to cope with Homeland Security’s Janet Napolitiano, who is apparently able to reach out of the girl’s computer screen and do some serious Nanny stuff.

In each of the four frames today, the computer-Napolitano proposes an excuse as to just why the little girl must obey: 1) “it’s for your own good”; 2) “we will make you safe”; 3) “resistance is futile”; 4) “ignore that last one if you know what’s good for you!”.

Of course, “resistance if futile” was the soul-chilling admonition of the unstoppable Borg in the TV show “Star Trek: Next Generation”; these robotified former-humans had been ‘assimilated’ into the Borg Collective and were going around the universe seeking more species of life to ‘assimilate’.

It’s nice to see how the Regulatory-Preventive State’s genuine operations, shorn of the blunting effect of ‘real’ and ‘serious’ reporting, leap out at you from a comic strip. And of course, before there was 9-11 and Homeland Security there was the Sex-Offense Mania.

Well, just a couple of thoughts to keep you cheered up.

As I said in Addendum 3 of my previous Post, my next Post will follow out the thought of applying Barry Goldwater’s 1964 campaign slogan – “extremism in the defense of liberty is no vice!” – to the Regulatory-Preventive State: something like “extremism in the defense of protection is no vice!”.

You may want to get a head-start and roll that around in your mind.

SEN. LAZICH’S GAMBIT

[I don't usually like to put up two longish Posts on consecutive days and I put one up yesterday; but this seems an important subject so I'm putting this Post up right away.]

The always-useful Sex Offender Research site has an interesting item – and makes a good suggestion – in a 3-12-2010 article.

The site reproduces the comments of a Wisconsin state senator who testified at a state house Hearing against repealing sex-offender residency requirements in force in a coalition of towns in her district. She is against repeal and for the retention of these residency laws.

The site recommends that members of the SO community read her remarks in order to understand how such ‘support’ is structured and presented, and then get the hang of how to refute these types of things.

That’s what I’m doing here. The text of her comments is here on a local site, and Comments from locals follow below her own remarks. I will proceed through them from beginning to end.

She spins the repeal bills as guaranteed to “impose the greatest risk to children and families in the State of Wisconsin”. I note here the ‘emergency’ and ‘urgency’ gambits, whereby the ‘danger!’ note is struck at the outset, in order to help start the emotional stampede and, neatly, distract from a careful analysis of what she is actually saying and proposing.

Naturally, ‘children and families’ – in best Lifetime Channel mode – are ‘at risk’. This is meant as a shock tactic; the fact that life is an inherently risky proposition (including putting the tykes into the family car and going out onto the highways) is not what she wants you to be thinking.

And “risk” brings up the entire Regulatory-Preventive State gambit: if a government authority is going to set itself up to eliminate all risk, then it is going to require the authority, power, and wisdom of God. Which, among other things, will utterly derange the Constitutional vision of the Framers. And if THAT derangement happens, then the people of the Great State of Wisconsin are going to have a lot more trouble on their hands than whether a sex-offender (statistically not interested in ‘children’) lives or walks in the neighborhood.

And of course, as is now known, about 90% of sex offenses against children are committed by members of the family or family friends of the children – since she wants to bring “families” into the matter.

So the greatest demonstrated source of danger to children are their own families and their circle of family acquaintances.

She goes for the ‘local’ vs. ‘state’ angle: repealing these local ordinances at the State level would result in ignorant State pols depriving local authorities of the chance to do what’s best for the communities about which they know more than the State pols. Readers of a historical bent might realize that this is, in substance, the states-rights argument of the old Confederacy against the Federal government in Washington City: the locals knew better than distant and ignorant pols how to manage their local affairs (which meant the maintenance of slavery).

And of course she brings in the automatic ‘heroes’ of the Regulatory-Preventive State script, the local police. Eliminating these laws would deprive them of their ability “to do their jobs”.

Although on the local website where her testimony is posted, a local police officer Comments that the good Senator “is missing the point” and the Comment goes on to tick off the facts about families and family friends – and not strangers walking around – being by far the greatest source of sex offense danger to children.

She also strikes the Regulatory-Preventive State’s trope that the job of the police is to “protect society”. Actually, the police investigate and provide evidence for the prosecution of crimes that have been committed. Once the government police power gets into “protecting”, especially in the form of “preventing”, you are getting into verrry dangerous territory: the Constitutional vision and balance becomes skewed by making the police power of the government (with all due respect to individual dedicated and hard-working police officers) the ‘good guy’, always to be trusted … sort of like Mommy.

And that of course triggers the classic threat lurking in Carol Gilligan’s 1982 image of Mommy presiding over a breakfast table of squalling, irrational, needy tykes: the Mommy has complete authority to do whatever she feels is necessary to soothe the tykes; it’s a matter of intuition and her word is law. Which is perfectly true.

BUT Gilligan’s image can absolutely NOT be translated or transferred to the national political forum: if the Government and its police power is ‘Mommy’, then the entire Constitutional approach to government envisioned by the Framers is destroyed. And The People, in this Gilligan script, become the irrational, needy, squalling ‘children’ who need a Mommy to order their lives. Which is the motivating ‘vision’ of the Regulatory-Preventive Nanny State.

Nor can it be ignored that just as ‘mommies’ started to get interested in other things besides spending a lot of time with their own children in the late 1970s, the Government, and especially its police power, began to move into the vacuum created.

So when the Senator sounds the old alarm that “the children” are “in danger”, she only wants you to be thinking of ravenous stranger sex offenders, whereas the greatest dangers come from the family circle itself: family members and the relations and acquaintances they let into that circle and – it has to be said – parents who are too busy or too interested in other things to become integrally involved in their children’s daily life.

The Senator then lards on the usual ‘our great police’ boilerplate, but with a ‘local’ twist: while the State has great police protection, the ‘local’ police just know the town better (which is the argument any Southern pol would have made to Lincoln about slavery: we know our local area better than you do, so butt out). The Senator seems to forget that police officers in any State take an oath to enforce the State’s laws and Constitution, not to the particular local town or city or county within that State that hires them.

But she’s trying to somehow run the conceptual play that the State government (like Lincoln’s government in Washington City) is ignorant of – and perhaps hostile to – the interests of the ‘local’ situation.

But that can hardly be true. First of all, the State pols know the culture of their State – unless she wants to imply that some Wisconsin towns have a culture and folkways different from most of Wisconsin.

Further, if the Senator is actually operating on a theory – and not simply making an opportunistic ploy in this particular instance – then she is undercutting the entire purpose of a state legislature at all: if ‘the State’ pols up in the state capitol don’t (and can’t?) know enough about “local” affairs and communities, then what’s the purpose of the state legislature at all?

The answer, in part, would be that the state-level lawmakers constitute a higher-level filter that can provide another layer of review, to prevent local ordinance-making that might compromise the State’s overall policies and the fabric of its laws. This, of course, is what the purpose that the Federal government provided so vividly in the first Civil Rights era, when it required the Southern States to abandon the Jim Crow laws.*

Second, and going back to the Lincoln image, what these ‘local’ laws would like to do is essentially useless and, worse, violates the rights of Citizens who are former offenders (and THEIR families and children), and ultimately deranges the fundamental Constitutional vision and balance. For as the long long list of court cases arising from sex-offender laws indicates, these laws require the derangement of the classic Constitutional protections and safeguards in order to stand (which is not to say that they ‘work’).

And from the sounds of it, the legislature of Wisconsin is beginning to realize that. As well as realize that these ineffective laws are also becoming verrry expensive. And the Senator – for whatever reasons – has decided to try to stop all that.

Then the Senator puts it out there that what the state legislators are really doing is to interfere with the local police forces’ “incredible responsibility” and “by eliminating their ability to do their job , and transferring that responsibility to the state” … Willy Tango Foxtrot? Skip over the self-serving hyperbole of “incredible”: if it really were, then every small locality wouldn’t have its own functioning police force.

But she radically exaggerates the effect of the state pols’ efforts, claiming that they serve to “eliminate” the ability of local police to perform their tasks .,. which is either deliberate and swinish untruth or hysterical ranting on her part.

She then further deceives or rants in the remainder of that same sentence, switching to the lapel-grabbing second-person “you” as she addresses the legislators: “ … you, your family, and your constituents are not safe visiting or traveling through communities in the State of Wisconsin”. This can only be taken to mean that she envisions – or at least wants her audience to envision – the entire State of Wisconsin as being unsafe, due – apparently – to the sex offenders who are living and walking around like feral beasts, hunting for ‘children’ or ‘families’.

Although almost 97% of sex crimes are committed by ‘new’ (and therefore unregistered) sex offenders and - as noted previously – 90% of crimes against children are committed by adults who know them. (Which means that the most probable sex-offenders-against-children in Wisconsin are the Senator’s adult constituents, her legislative colleagues, and – looking over reports of police personnel charged with sex crimes – possibly some of the police themselves.)

Further, she is breaking new ground in political and Constitutional theory by spinning the problem as the legislative authority of the local townships being “transferred” (forcibly, as if by theft or robbery) to the state legislature. The smallest Constitutional polity for sovereignty purposes is the State; the townships or entities within a State are wholly creatures of that State’s sovereignty, chartered by it.

And again, if “the state does not have the full and adequate understanding of the community” then she undermines the entire reason for having a state legislature at all.

And what, really, is there to “understand”? Local ordinance-makers have chosen to implement certain regulations for which they will deploy their police forces (which are sworn to authority possessed by the State as sovereign). The state legislature has every right to review the ordinances (as will, no doubt, the state-level judiciary), since the sovereign police power of the State will be involved.

And in what way are these residency-restrictions and similar requirements representative of the unique and otherwise-unknowable “needs” of the towns involved? The whole State – and it’s not the only State – is rife with small, dependent political entities trying to wage their own campaigns against ‘sex offenders’ (and you can see above just how misguided, ineffective, and Constitutionally dubious these campaigns and their presumptions are).

But then the Senator’s remarks descend into downright deceptiveness. She cites the 2007 case of Florida v Schmidt, in which, she says, “two expert witnesses, Dr. Jill Levenson and Dr. Chris Robinson, agreed with research concluding that in the 15 years following release of sex offenders, about 24% will re-offend, and that offenders with a prior sex offense conviction have even higher recidivism rates”.

I have not been able yet to locate the actual court papers for this case. Consequently, I can’t at this point confirm the Senator’s assertions as to what Levenson and Robinson agreed to. I do know that current studies, and this was not news even in 2007, confirm the low recidivism rates of sex-offenders almost across the board, compared to all other offense-types except murderers.
The “24%” re-offense rate does not distinguish between the commission of another sex-offense, another type of criminal offense (stealing a loaf of bread for your kids because you can’t get a job?), or simply falling afoul of the “technical” requirements of byzantine reporting, registering, and residency restrictions.

Equally odd is her assertion about offenders with a prior conviction: what other type of officially designated ‘sex offender’ is there? You can’t ‘recidivate’ until you have already been convicted at least once. So as best I can see her statement is conceptually incoherent on its face.

She then says that “although Dr. Levenson and another expert witness, Dr. Luis Rosell, both testified against sex offender residency restrictions, they both find that reducing access to children can reduce the likelihood of a sex offense”.

From a purely therapeutic and theoretical point of view, that could indeed be true. But there’s only so much a limited government can do; thus, the government police power cannot be deployed to force alcoholics to live a certain distance from bars and liquor stores on the basis of the therapeutically valid observation that reducing access to liquor will reduce the incidences of inebriation. In a therapy setting, the therapist may strongly suggest that the alcoholic not keep liquor around the home, or in the workplace, or some such – but it would be up to the patient-alcoholic to make that happen in his life.

Further, Dr. Levenson is well known for her extensive public and professionally grounded opposition to residency restrictions, as exemplified here and here and here. She well understands the problem of translating therapeutic insights into the forensic and public policy forum (where the coercive power of the government legislative and police power runs up against formidable Constitutional as well as practical difficulties).

Indeed, the phrasing of the Senator’s remarks indicate strongly a certain selectivity and slyness: “Dr. Levenson testified that she once wrote : ‘It makes sense that risk might be managed by reducing some of the exposure to children and prohibiting them [presumably ‘sex offenders] from living near places where children congregate’”. I suspect – and again I haven’t seen the transcripts of the testimony in the court papers – that Levenson made this admission under cross or hostile examination. But what the Senator fails to focus on is that Levenson opposes the policy of legislating such residency restrictions.

This is a highly selective citation of an expert, and leads to precisely the opposite inference from what the expert ultimately recommends and doesn’t recommend.

Doe v Miller is a 2005 Iowa case. It was decided on issues of law and the 8th Circuit Court of Appeals reversed the lower court and supported the restrictions imposed by the city of Iowa City. You can get the gist of the case here.

The problem in the case – as in all residency restriction cases – is first, one of balancing the rights of the community as against the rights of former sex-offense convictees. But even more deeply, it has to do with the Constitutional balance: American government is limited government, and just how far can a limited government go in satisfying the majority by depriving a minority of rights? And once you get into the tricky business of diluting those limits, then what damage do you do – most profoundly – to the entire Constitutional ethos and balance?

The Senator asserts that Dr. Rosell had testified in the case that “reducing a specific sex offender’s access to children was a good idea, and that if you remove the opportunity then the likelihood of reoffense is decreased”. But again, there is no indication – and without the transcript it is impossible here to determine – if Rosell also distinguished between a therapeutic desiderandum and a public-policy regulation or law.

In any case, both experts the Senator cites opposed the restrictions. And, for the record, Dr. Rosell is actually a ‘local’ expert, residing in the Iowa City area.

The Senator then characterizes what she has so selectively gleaned from the experts’ comments as “this critical information” and says that it was on the basis of this “information” - “armed with it” is her phrase – her subject jurisdiction enacted the ordinances and that they have withstood “nine constitutional challenges”, although she cites only a County Circuit Court.

She neglects to mention that these types of ordinances are coming under continuous challenge, both in higher-level courts and in various state legislatures.

She characterizes state-legislature efforts to ban these ordinances as “direct attacks on the communities that have enacted the ordinances and a direct attack on children and their parents” – which if taken seriously is a charge that the state-legislatures have declared war on their dependent municipalities and citizens.

She refers to these types of ordinances as a “weapon” in the hands of the local communities, continuing her trope of ‘war’. It is highly inadvisable, in a Constitutional Republic, to be tossing the ‘war’ imagery around. But this is a classic trope in sex-offense matters, and a constitutive element in the national mania that has resulted: sex-offenders are not cast as Citizens in the very real setting of the affairs of America as a Constitutional Republic, but rather are cast (and with gross inaccuracy) as the ‘evil other’ ‘enemy’ in a melodramatic soap-opera that resembles nothing so much as the old Western movie scripts where ‘the settlers’ were under attack by ‘the Injuns’ and the police are the trusty ‘cavalry’.

She then goes on to ask rhetorically the stunning question: “Can the state be trusted with the responsibility of ensuring families and their children are safe from sex offenders?” If she is serious, then she issues again a profound challenge to the very concept of state legislatures’ purpose and authority.

She then asserts that the answer is “emphatically no”. And she supports that ‘answer’ by the old ‘scary-story’ tactic: a single case in which a person ruled to be an SVP – after a decade of civil confinement in a State facility – was released by a County Circuit Judge (the same level of court that she cited to justify the constitutionality of residency ordinances). This individual, half a year later, beat, raped and robbed an elderly woman.

She claims that this proves that “state bureaucrats” cannot be trusted with local safety. But the man (and I know nothing about the details of his case or the accuracy of the Senator’s characterizations) was released by a ‘local’ judge and court.

She concludes in her peroration by claiming that the state legislators are “gambling” with the lives and safety of children and families. Although, given what is known of the extremely high incidence of family-circle sexual violence against children, she should logically be urging her colleagues to take rather drastic preventive measures against any and all parents, relatives and family acquaintances of children in the State. But somehow she doesn’t go there.

And she concludes with her ‘localism’ trope: “My bet and my gamble are with local law enforcement, local citizens, and local elected officials, not with the state”. Which, again, is the old Confederacy’s argument in defense of its ‘local’ institution of slavery.

A couple of things strike me.

First, it’s hard to imagine that one State Senator could put together such a clever hodge-podge of mutually contradictory or conceptually incoherent assertions. She had to have ‘help’, and I would imagine that there are organizations who are glad to fax ‘talking points’ and perhaps even help with the final polishing of a public figure’s remarks.

Second, the overall tactic seems to be to merely selectively collect any snippets that support – or at least can be made to appear to support – an immediate objective (local restrictive ordinances, in this case).

Third, in the service of that immediate objective, highly manipulative methods – appeal to emotion, exaggeration, hyperbole, inappropriate imagery and metaphors , selectivity, deceptiveness – are deployed freely.

Fourth, no larger vision informs the effort, neither concern for the integrity of the legislative process or for the overall legitimacy and accuracy of the legislative product, which are the State’s laws themselves.

Frankly, it’s hard to realize that such a mishmash – and a lethal mishmash – could be formally espoused by a sitting legislator.

But apparently that’s par for the course nowadays. And that may be the hardest realization of all.

NOTES

*Of course, this can work in reverse if not carefully and properly deployed. The Federal government then tried to run the same play in the service of far-less clear-cut objectives in the ensuing decades, trying to spin all of the various ‘revolutions’ of the 1970s as basically ‘nothing but further civil rights movements’. From the Constitutional and moral high-ground of the first Civil Rights era – culminating in mid-1965 – the Federal Government descended into the morass of the ‘culture wars’, largely causing them, and dragging the whole country down with it. And then, in the 1990s, came the full-blown SO mania and its ancillary and related gambits, whereby the Federal government declined to temper the assorted agitations of various States but instead sought to ‘take the lead’ and ‘nationalize’ the fear and ignorance, regardless of the Constitutional and moral consequences.

ADDENDUM 1

The National Association of Criminal Defense Lawyers has published its 12-page Report of the Sex Offender Policy Task Force. It gives a concise presentation as to just what the NACDL sees are the most glaring faults of the sex-offense legislation that needs to be changed. The text is available here.

ADDENDUM 2

It seems to me that this ‘localism’ gambit is familiar. The more I think about it, the more it seems to be to be a variation of the old Victim play. As I have said in previous Posts, the sudden concern for the ‘victim’ – which originally in the early 1980s seemed to be a ‘victory’ for ‘sensitivity’ and the sign that even Reagan’s Administration was ‘sensitive’ – actually turned out to be a shrewd ploy by the prosecutorial elements of the government (with, I also think, the acquiescence and even enthusiastic support of the Left).

And the manner of it was on this wise: whereas in the Sixties – especially after what had been seen of Southern police forces whaling upon blacks and freedom-riders – the public still possessed the traditional American concern for the underdog-defendant against whom the police would deploy their government authority, in the 1980s the government figured out how to have a ‘sympathetic face’ of its own … it would hide its growing power behind the public face and story of the Victim, and thus – like the cavalry of yore – would suddenly become the ‘good guys’ riding to the rescue of the helpless ‘settlers’, the Victims.

This is sort of like bank-robbers using civilians as shields to make their get-away with the loot.
But it solved what I call the government’s Lincoln-in-Illinois problem. You may recall John Ford’s late-1930s movie starring Henry Fonda as Abe Lincoln in his Illinois lawyering days. Defending two sons of a widowed mother in a murder case, Lincoln is faced with a prosecutor who offers the mother an awful choice: if she will turn in at least one of her sons, the other will not be hanged and will be released to return to her. Clearly, the government came off as ‘the heavy’ if not actually the ‘bad guys’ in the script. Such are the brutal economics of the prosecutor-business.

But with the raising up of the Victim, the government would gain its own ‘innocent and helpless’ face, to mask the nature of its business. (And it was the nature of that business that precisely moved the Framers to so carefully cage the government – especially the Federal government – police power.)

In the Senator’s case here, the ‘local folks’, families and children and parents, are made out to be the Victims … this time of an uncaring and distant State legislature and of the “faceless bureaucrats” employed by the State. (The police themselves, still iconic after all these years, are shrewdly and carefully left in full possession of their ‘goodness’.)

I would go further and connect again a further set of dots: Jack Bauer’s agent in the TV show “24”, who can do no wrong, even when torturing the suspected (but not charged or convicted) ‘bad and evil guys’.

And in another eerie similarity to the stampede-mentality that is essential to the sex-offense Mania (and is clearly demonstrated here in the Senator’s inflammatory and hyperbolic exaggerations): this is so ‘outrageous’ and such an ‘emergency’ and there is so much ‘danger’ (the recidivating sex-offender monster as the ‘ticking time bomb’) that there is no time for deliberation or careful consideration. Indeed, such caution, or prudence, or even concern for the coherence and integrity of the laws to be passed, can only be a ‘treason’ to the plight of the Victims and – an awesome and awful extension – the ‘potential’ Victims.

I’d also point out that this entire dynamic translated into real life at Abu Ghraib, Guantanamo, and the still-increasing efforts to circumvent Constitutionality in the service of the government police-powers agenda. (After all, can ‘the cavalry’ do wrong when protecting the settlers?).

For that matter, the 'humanitarian intervention' - to include invading and overthrowing sovereign governments in faraway places - was a development from the Left, which gained traction in the Clinton years (Bosnia and the Balkans in the mid and later 1990s) just as the sex-offense Mania was bursting the Constitutional dams over here.

(And can anyone think that the combat that results from such 'humanitarian' war is any less damaging to the troops that have to conduct it than any 'imperialist' misadventures for oil or international status and position such as the Right (and the neocons and jingoists) espouses?)

And as always, let me say again and again that I am not here 'minimizing' or 'denying' or otherwise 'disrespecting' the genuine pain of true victims. But I am saying that there are and always have been lethal if unintended consequences lurking in this entire Victimist agenda, and they have spread now from domestic life into foreign affairs.

ADDENDUM 3

It also occurs to me: do you recall Barry Goldwater’s assertion in his 1964 campaign that “extremism in the defense of liberty is no vice”? Without getting into the pros and cons of that, let me propose an unstated maxim of the SO mania: Extremism in the defense of victims is no vice – and when you roll that around in your mind for a minute, all sorts of connections and ideas present themselves. I’ll do a Post about this shortly.

SVPs AND LEGAL THOUGHT

I’ve just finished the book “In the Name of Justice”, a collection of essays around the theme of The Aims of the Criminal Law, which also happens to be the name of a 1958 essay by the noted legal scholar Henry Hart, Jr. Now the Cato Institute (noted conservative think tank) has published a book of essays by contemporary legal thinkers on various problematic aspects in criminal law as currently conceived and practiced.

[Since the ’58 Ford appears in my mind as fresh as a daisy, I admit that it’s a bit of a jolt to write about a ‘1958’ article and a ‘contemporary’ article. Time, oh Time … as the songster saith.]

I’m focusing in this Post only on the article “If the Criminal Law Don’t Fit, Civilly Commit”, which comprises Chapter 8 (pp.131-149). It’s authored by Richard B. Sanders, a Justice of the (State of) Washington Supreme Court, and two of his former law clerks. The Justice takes Sexually Violent Person (SVP) laws as his topic.

He refers to “ ‘noncriminal’, ‘civil’, or other forms of executive imprisonment” (p.131) – which I think strikes a nice note.

He observes that SVPs “are not ‘convicted’, ‘sentenced’ or ‘punished’. Instead they are confined for ‘treatment’. Nor are they imprisoned. Instead, they are ‘detained’, perhaps as the new ‘residents’ of an exclusive gated community. Nevertheless, the actuality of this ‘detention’ for ‘treatment’ is as restrictive as any imprisonment”. What he’s going for here is that if the government police power (State or Federal) is going to deprive a citizen of liberty – then it had better make sure that it conforms to the “first principles of our criminal justice system” (p.131).

This is good stuff, especially coming from Washington State, which passed one of the first of the odious ‘sex offender’ laws of this current Mania back in 1990.

If you’ve gotten the hang of my thought on this site, then you won’t be surprised when I point out that “first principles” are one of the first things that were ‘deconstructed’ several decades ago as being “quaint” and “patriarchal” and “oppressive” by the cutting-edge axe-wielding ‘reforms’ of ‘so-called ‘feminist law’ and the now-fading Critical Legal Studies. And that such an approach to law, making its way into law schools in the 1980s, saw its greatest ‘success’ – alas – in the 1990s when, realizing that the Clintons’ Administration would be happy to oblige, this approach to law was aimed point-blank at American jurisprudence and the bombardment by ‘governance feminism’ carried on with a vengeance.

Justice Sanders notes that criminal law “not only engenders social order by setting forth minimum obligations of social conduct “but also protects us from a government that would destroy our liberties” (p.132). Notice that he effortlessly presumes the “quaint” view of the Framers, that any government’s power is – like a stove or lantern fire on a wooden sailing ship – ever to be treated as potentially verrrry dangerous. It also reminds you that the Framers were most proud of the Constitution they created, not of ‘the government’ that was built upon it (or within its limits).

Then he gets right to cases. How is the criminal law doing in its dual purposes, he asks. “Since the early 1990s the aims of the criminal law have been co-opted in the pursuit of a goal never imagined by Hart or the Framers: TO MAKE THE COMMUNITY FEEL SAFE” (p.132) [capitals mine].

And he isn’t finished yet: “We say ‘feel’ safe because the criminal law does not actually make the community safe; for as long as there has been a criminal law there have been criminals” (p.132). And, I would add, for as long as there have been criminals there has been a criminal law.

But then he gets a bit more adventuresome and quotes Hart: “The practical fact must be faced that many crimes … are undeterrable”. This is, to certain modern sensibilities, something between heresy and blasphemy … a profoundly mis-taken reaction that the government has done nothing to prevent. Indeed, precisely the opposite.

To say that crimes are conceptually and practically undeterrable has somehow become outrageous, whereas in Hart’s time (when the ’58 Ford was shiny new) it was an ‘obvious’ statement. After all, to deter crime would conceptually require a government taking the place of God and Divine Providence (from which not even the awesome monstrousness of the Civil War shook Lincoln’s soul).* And not only taking over from God, but improving upon His Plan – darkly mysterious as it is.

The American soul is much more easily shaken today, is it not? Victimism and emotivism have played their noxious role in this, as has ‘deconstruction’ (there is no God, certainly no Virtue) and the overextension of secularism (even if there were a God and Virtues, such ‘things’ would have to be kept ‘private’).

It might be a worthwhile mind-game to take Lincoln’s Second Inaugural Address, read it over slowly, and imagine the type of Citizens to whom Lincoln clearly realized his words and ideas would make a great deal of sense. Then compare those Citizens of 1865 with – ummmmmmm – a ‘contemporary’ audience. And see what comes to mind.

And don’t forget: there were offenses of rape on the books back then and no decent person condoned such crimes. But Lincoln wasn’t going to burn down the Constitutional house to get at the rats. (He should clearly be advised not to run for office today.)

In 1989, the Justice notes, his own State of Washington had to release one Earl Shriner, who had served the maximum sentence for abducting two 16 year-old girls; the State considered him still dangerous and wanted to commit him civilly, but a court found that Shriner did not meet the criteria for the existing civil commitment statutes. On the evening of May 20th of that year, Shriner came upon a young boy riding a bike, orally and anally raped him, stabbed him in the back, strangled him, and cut off his penis, abandoning the boy in the woods.

The boy survived and was found by a family member.

The Justice notes that almost immediately the media began playing this story as if it represented “a failure of the criminal justice system”. And I agree with him that this is the key point: the system did not fail; the only way it could have prevented this crime was to fail, to fail its own Constitutional responsibilities.

Think of it: this individual had served his time and the police-power had no more power over him and it released him. Its only other options would have been to betray and debase itself by – oh say – arranging for his assassination in prison, simply ‘disappearing’ him into some secret black-site, or perhaps torturing him until he was willing to ‘confess’ to something substantial enough to justify his continued detention, perhaps indefinitely. That sort of thing (sound familiar?).

Somehow – perhaps in part because of shows like Geraldo and Jerry Springer and Sally Jesse and the like – the public expectation was NOT that the police-power would stick within its limits and thus ‘work’, BUT RATHER that the police-power would MAKE CRIME GO AWAY, MAKE IT STOP, MAKE EVERYTHING OK.

And this is the point of derailment, I would say. What has happened since then has been the long, slow-motion slide of engine and cars off the rails and over the cliff and down the slope into the abyss.

Echoes are here of Carol Gilligan’s Mommy-Nanny at the breakfast table, confronted with irrational children’s squalling pain and doing whatever is necessary to soothe them. But the government in the Constitutional vision is not here – especially the Federal government – to ‘soothe’ anybody. Citizens are adults and must take life as it comes in this uncertain world. Of course, since the citizenry (or at least the elites) are no longer fortified by God or by the maturing effects of a sustained belief in and relationship with God, then the Government becomes ‘God’ by default. Which, frankly, really does approach blasphemy.

There’s only so much a limited government can do. And if the Nanny State wants to do more, then let it put up a proposed Amendment to the Constitution saying that henceforth ‘government’ shall not be limited and see what folks have to say about that.

And as far as ‘the children’ go – in the Framing vision, it is the parents who have the responsibility, not the government. But of course, with the government-sponsored ‘deconstruction’ of the Family and Parental Authority in the name of the Total Autonomy of Everybody, then the government has created a self-licking ice-cream cone: since there are no Families and Parents any longer, and Maturity is ‘oppressive’ and ‘judgmental’, then the government becomes in fact the parent of the young … it’s less obvious but far more shrewd than Mussolini’s ham-handed State child-rearing facilities where all boy-babies were sent to be raised from the get-go as ‘soldiers’.

And when the unripe ‘children’ are unable to master their behavior, they will provide the Regulatory-Preventive State with reason for deploying its police power: a perfect self-sustaining feedback loop, a perfect self-licking ice cream cone.

The Government as Gilligan’s ‘sensitive despot of the breakfast table’, deploying the never-to-be-domesticated police power to ‘soothe’ and ‘make everything OK’ …though ironically failing to ‘keep OK’ such things as the economy and the industrial base for income and jobs, the infrastructure, and the effective and judicious use of the military. We are indeed Through the Looking Glass and seated at The Mad Hatter’s Tea Party. And do you want fries with that?

And the media began to talk about the police needing “to be on the side of the innocent”. This created a classic (and classically dangerous) equation: criminal = evil and police-help-innocent-citizen=good … a great plot for a soap opera but hell and gone from the Constitutional vision.

Once upon a time, few decent human beings would ever publicly assert that they were ‘totally innocent’ – not when everyone knew God was right there, with the actual Record Book.

Nowadays, ‘innocent’ is not a moral quality (however unachievable) but is rather a role in the Script: OK, in this scene so-and-so is the guilty one and such-and-such is the innocent one, so everybody play your part and … Action! Maybe then it’s not so hard to understand how a government so clearly guilty of such monstrous frakkery can claim with a straight face to be ‘innocent’ and ‘good’: it’s not making a claim about its actions – it’s telling you what PART it sees itself playing in the show.

Which is all life is now – a ‘show’. And everybody is looking for at least a bit part, a coupla minutes of ‘celebrity’.

But trying to live ‘innocently’? Nah – there’s nothing in that. Or admitting with Will Munny that ‘we all got it coming, kid’? Nah – that makes me seem baaaad and that won’t be good for my self-esteem.

True enough. And if maturity is stressful, then where do you put humility and self-knowledge?

So we get the sex-offense soap-opera. And everybody wants to be ‘innocent’. And the government will be ‘Mommy’. And everything will be OK because Mommy’s here now.

As long as they don’t have to wear a dress or a pant-suit, I guess most of the pols will jump at a chance to be Mommy in this episode.

Civil commitment, the Justice notes, tries to imitate but actually winds up undermining, the criminal law (p.133). Once you statutorily require ‘proof’ of some ‘mental condition’ that ‘makes’ somebody ‘likely to re-offend’ (although none of these terms actually has any concrete, verifiable meaning); once you require that somebody be represented by counsel (as in a criminal case) but not be protected by the right to remain silent at the proceedings (which contradicts criminal procedure) … once you’ve imitated ‘criminal process’ (in order to clothe your civil commitment proceedings with the authority and stature of criminal procedure) while actually making a hash of it (because you’ve had to twist it all around in order to make sure you get the outcome you want), then you’ve gone and debased everything.

Worse, once you’ve placed on the defendant the burden of proving that he is not or is no longer ‘dangerous’, then you’ve placed him in a logically impossible (and eternal) bind: you can’t prove a negative.

The US Supreme Court tried to ‘balance’ the competing elements of the public demand to ‘be protected’ and the individual’s right to liberty. But it did so in a way conceptually guaranteed to disadvantage the defendant. If you use a utilitarian moral calculus – the greatest good for the greatest number – then in any case where the State (representing the public) goes after an individual, the single individual is ALWAYS going to lose; it’s ALWAYS going to be the case that the good of the greatest number (the public) will outweigh the rights of the single individual (the defendant) (p. 136).

And, after all, what’s the deprivation of liberty of one man? And (in Shriner’s case) a seriously violently deranged man? But of course, not all SOs are so profoundly deranged, and surely most of them are not. And given the amplifying effects of the SO mania and mania law, then there are now 700,000 SOs (before you start multiplying by the AWA factor).

The Justice recalls Hart’s own concern: “The danger to the individual is that he will be punished, or treated, for what he is or believed to be, rather than for what he has done” (p.136). But not even Hart imagined that things would progress (or regress, actually) to the point where persons would be deprived for what they ‘might possibly’ do.

The US Supreme Court itself has fallen into this ditch. While trying to keep up appearances by demanding that in a civil commitment case the State prove a “mental illness”, yet the term itself is so vaporous and insubstantial that it can mean almost anything. In some States ‘personality disorders’ (for which about half the country could be diagnosed) are sufficient as ‘mental illness’, although in some cases there is no ‘cure’ for them (and thus no release if you’re civilly committed with such a ‘diagnosis’).

In the 1975 case O’Connor v. Donaldson ‘dangerousness’ and ‘mental illness’ were linked for the first time. Donaldson had been held in involuntary civil commitment for 15 years and had received no treatment at all for his diagnosed mental illness of paranoid schizophrenia, nor had the State claimed that he was a danger to society. The Supreme Court found his confinement unconstitutional, since, the Court said, “there is no constitutional basis for confining such persons involuntarily if they are dangerous to no one and can live safely in freedom” (p.137).

But, as Justice Sanders notes, the Court did not choose to define exactly how one goes about determining ‘dangerousness’ and how it could be proven. Which left, as he observes, more questions unanswered than resolved.

In the 1987 case United States v Salerno a challenge was made to the 1984 Bail Reform Act of that year** which permitted preventive pretrial detention without bail merely on the State’s prediction of ‘dangerousness’.

Sanders quotes the Court (p.137): “While the Government’s general interest in preventing crime is compelling, even this interest is heightened where the Government musters convincing proof that the arrestee, already indicted or held to answer for a serious crime, presents a demonstrable danger to the community. Under these narrow circumstances, society’s interest in crime prevention is at its greatest.”

I note with Sanders that these circumstances are not at all ‘narrow’: ‘serious’ crime is not defined, and the ‘danger’ cannot credibly be described as ‘demonstrable’ – it is a reading-the-tea-leaves prediction.

I also note with him that pretrial detention – the issue in Salerno – is hardly the same thing as semipermanent involuntary confinement, and on the basis of a ‘mental illness’ that is itself a profoundly vague and tenuous concept.

But I note as well that while the Government may well have an ‘interest’ in preventing crime, there’s only so much a Constitutionally limited government can do – AND one thing that the Government cannot do is to bend and distort and debase the criminal law and its police power in order to effect such desirable ‘prevention’.

The SO community is very well acquainted with the Red-Queen type reasoning that courts have had to come up with in order to put a fig-leaf of Constitutionality over the glaring derangements in SO mania laws, based on the grossly inaccurate Findings that legislators claim to have found rationally persuasive (though they may well have found them politically persuasive, but that’s an entirely different matter, and authors in the Federalist Papers series precisely noted that such irrational but politically advantageous derangements are not to be allowed for fear of un-caging the government police power).

And so it can come as no surprise that what We are confronted with nowadays is the ‘Minority Report’ phenomenon of the government exercising the police power – and deranging the criminal law – on the basis of prediction of ‘dangerousness’ rather than on proven criminal acts.

The only thing missing from the film’s scenario are the mystical magical beings working for the police who can see into the future – but the pols neatly set themselves up in that position by endorsing the radically flawed Findings as a substitute for the magical beings.

I also note that a person charged with a crime is not yet proven to have committed it, not convicted of it, and thus is not yet – if at all – the ‘perpetrator’ of the crime.

But you can see here already in 1984 the groundwork being laid for Victimism’s subversion of the core Constitutional vision as to the place and role of the criminal law and the government police power.

Sanders identifies the 1992 case Foucha v Louisiana (already into the era of the SO mania) as being the most significant case. Here the Supreme Court considered the Louisiana law which permitted the indefinite involuntary commitment of a person found not-guilty by reason of insanity when the person was considered ‘dangerous’ but was not demonstrably ‘mentally ill’. “The issue before the Court was whether an individual with an ‘antisocial personality disorder’, which is not a mental disease or illness, may be civilly committed” (p.138).

I have discussed Personality Disorders (PDOs) in prior Posts. They are not considered a ‘mental disease’; a ‘mental disease’ is actually capable of showing up on various brain-scans, where abnormalities in the brain itself can be demonstrably shown as the probable causes of aberrant behaviors. PDOs , furthermore, are considered to afflict a majority of the population (so you can see that if a PDO becomes justifiable grounds for ‘predictable dangerousness’ then the criminal law and involuntary confinement can be imposed on most of the Citizenry – which is Constitutionally lethal to any form of limited government … but of course it is and has always been conceptually clear that the Regulatory-Preventive Nanny State will accept no prior limits whatsoever in its erstwhile ‘mission’ and ‘responsibility’ to keep the public ‘totally safe’).

I also noted in one of the recent DSM-V Posts that the proposed new diagnoses of Hypersexual Disorder and Coercive Paraphilic Disorder, among others – whatever their clinical value (and there is much professional dissent about that) – will certainly serve to provide a ‘mental illness’ pretext to be used against SOs.

The Supreme Court found the law unconstitutional. Since Foucha was not demonstrably ‘mentally ill’ then he could not be held indefinitely merely on the assertion of ‘dangerousness’.
Justice Sanders makes three acute observations (pp.138-9). First, the Court was dealing with the possibility of indefinite detention as opposed to the pretrial detention of Salerno.

Second, for indefinite detention, ‘dangerousness’ is insufficient as a justification. “Something must separate the dangerous, but ordinary, criminal recidivist from the dangerous and extraordinary, mentally ill person”, as the Court put it. But this still leaves hanging the matter of just what ‘mental illness’ is.

And that’s the third point. The Court failed to define ‘mental illness’. BUT it did reject explicitly the notion that “mere recognition of a disorder by the psychiatric community as a mental illness is sufficient to justify civil commitment”. ***

I would also note that the Supreme Court also stated in this case that there is no treatment for Foucha’s purported Antisocial PDO – which supports the conclusion that if a person is diagnosed with a ‘mental illness’ for which there is no known cure, then there is some serious Constitutional question as to whether he can be committed to what will be in effect sempiternal confinement.

Thus Sanders gets to the 1997 case of Kansas v Hendricks (p.139). For taking ‘indecent liberties’ with two teenage boys Hendricks was sentenced in 1984 to 5-to-20 years in prison. Just before his release date the State sought to confine him as an SVP on the basis of a newly-enacted Kansas SVP statute. He was found by a jury to be a pedophilic and thus probably unable to control his urges to molest children (teens, actually). He appealed and the Kansas Supreme Court found that the SVP statute did indeed violate the Constitution, since the statute’s coy and shrewd ‘mental abnormality’ classification fell short of genuine ‘mental illness’.

The State appealed to the US Supreme Court and they reversed the Kansas Supreme Court.

The Court decided that ‘mental abnormality’ is pretty much the same as ‘mental illness’; the key – said the Court – was that the Kansas SVP statute “narrows the class of persons eligible for confinement to those who are unable to control their dangerousness”.

Sanders notes quickly that it is not a person’s ‘dangerousness’ which must be controlled, but his ‘conduct’ (p.140). To my mind this is very important, since a government police power not tethered to and limited to deploying its force only against the alleged historical acts of an accused Citizen, but instead can deploy itself against the fuzzy ‘dangerousness’ of possible or potential ‘future acts’ of a Citizen, is very much a Ferris wheel that has ripped loose from its struts. It is a Kong behind the wall, but with the Gate unlocked and opened. Not even primitive island natives would be witless enough to look at the unlocked and open Gate with equanimity and figure Kong would still respect the Wall.

Sanders is more concerned to note that the Supreme Court effectively collapsed the ‘mental illness’ requirement into the ‘dangerousness’ requirement – as if some ‘mental illness’ is automatically a proof of ‘dangerousness’ (which by definition in this context must mean ‘potential and future’ dangerousness).

And then, to top it off, the Court characterized Hendricks’s confinement as ‘civil’ not ‘criminal’. And the SO community is verrrry familiar with that scam. Although I can’t see how the Court can say with a straight face or a clear conscience that sending someone into ‘civil’ confinement on the basis of his ‘dangerousness’ is not going to have the effect of ‘deterrence’ – and ‘deterrence’ is one of the Court’s own criteria for criminal process, and so is a glaring giveaway that the whole thing is indeed part of a ‘criminal’ and not a ‘civil’ proceeding.

Sanders – quoting recent legal thinkers – reasons that since involuntary confinement is as ‘complete’ a confinement as a prison sentence, then the Constitutional protections afforded to any Citizen made the subject of a government attempt to commit him must be as ‘complete’ for ‘civil’ commitment as they would be for ‘criminal’ imprisonment (p.142). But they precisely are not; by focusing on the red-herring of ‘civil’ rather than ‘criminal’ nature of the proceedings, the courts have sidestepped the huge, glaring, and profound reality that CONFINEMENT IS CONFINEMENT, no matter what suit (civil or criminal) you attempt to dress it with.

And for that matter, he will add, since Hart’s original 1958 article made much of the fact that criminal law is fundamentally engaged in expressing the hatred and contempt of the community (for the crime and the criminal) then if such public opprobrium is heaped on SVPs they are, willy nilly, on the receiving end of the dynamics of the community’s enraged sense that a crime has been committed and/or may be committed.

Sanders concludes with a summary of the ‘practical realities’ of SVP commitment (pp.142-150).

First, communal condemnation and dehumanization – public naming as a ‘predator’ – creates an opprobrium based on ‘status’ (as an ‘other’, an ‘evil other’ – similar to the Soviets condemning the kulaks simply because of their status as kulaks) rather than on ‘act’, and this “is an unacceptable affront to the conception of liberty upon which the country was founded”.

Further, labeling a person with such a permanent ‘status’ (and the SO laws make no allowance for ‘rehabilitation’ in an SO’s future living) deprives the so-labelled Citizen as incapable of acting as a human being in control of his acts or capable of gaining control of his acts – which, I note, creates a sub-class of Citizens who cannot ‘control themselves ever’ … which is a guarantee of further deprivation of civil and Constitutional rights guaranteed to ‘normal’ Citizens. I am not going for the peanut gallery here when I recall to your attention that in the beginning Hitler did not send the Jews to camps; he simply declared them second-class citizens, with many rights removed from them.

Sanders quotes Hart from half a century ago: “Man is a social animal, and the function of law is to enable him to realize his potentialities as a human being through the forms and modes of social organization”.

I would add that this whole mania process degrades not only the Constitutional vision but also the Constitutional competence of all the Citizens and of American society and culture. When the country and the public start down the same roads that Germany started in 1933, then it is witless – perhaps criminally witless – to presume that the same societal political and moral debauchery and debasement will not result here and now as it did then and there.

Second, the lack of substantive clinical criteria degrades the robustness of the law’s rationality and its ability to deploy coherent reasoning in the service of its authority – and ultimately its legitimacy. When not even the psychiatric community accepts the assertion that inclusion in the DSM is conclusive proof of a diagnosis’ accuracy – or a disorder’s existence – then the courts do themselves and the Law and the People a deep disservice by pretending that the DSM criteria constitute a solid grounding for such invasive impositions as the SVP laws (and I would say all SO laws) create.

And not only do clinicians differ widely among themselves as to the therapeutic value of this or that DSM diagnosis, but they and the DSM itself warns that the information in the DSM is not to be easily transferred to the forensic forum. In other words, what may ‘work’ in the hands of a skillful clinician in trying to help a patient in therapy is in no way assured of providing legally reliable and stable evidence in the courtroom, where the standards are (or should be) much more stringent.

Further, Sanders notes, “Arguably every criminal manifests some antisocial personality, as evidenced by his willingness to break society’s stated rules”. And thus consequently the State could no doubt hire an ‘expert’ to diagnose any criminal whatsoever as having an Antisocial Personality Disorder, and consequently evade the high-bar of criminal law protections by having him ‘civilly’ committed. This is a recipe for catastrophe to the Constitutional ethos of American government and society and culture.

As Sanders follows out the thought: “If a lack of volitional control is satisfied simply by having a history of sex offending, such reason is tautological: one is a sex predator because one has a prior sex offense”. This was a screaming illogicality evident at least as early as Megan’s Law legislation if not before: you are reliably guaranteed to commit more sex crimes because you have already committed one. But, of course, if you have no control, then why are you even eligible for criminal prosecution?

And is it possible that the million or so SOs (depending on how many AWA technically includes in its net) are all ‘out of control’? If so, then shouldn’t they all be involuntarily committed? And what about the 10-times more that the usual suspects like to infer exist out there in the male population? If they are out of control, then shouldn’t they all be preventively committed? Maybe all men should simply be tagged, or preventively committed. Which, eerily, sounds like some of the dampdreams emitted by the early radical feminists with their corrosive hostility to the male of the species.

Third, Sanders notes the “lack of predictive ability”. How do you rationally and reliably predict ‘dangerousness’? At a level sufficient to respect the Constitutional safeguards against abusive and engorged deployment of the government police power?

If you rely mostly on the judgment of a professional (and State-hired) clinical evaluator, then you run the risk that the evaluator’s subjective judgment – coupled with who’s paying his/her fee – will result in over-prediction. If you rely on ‘objective’ actuarial tables and check-lists, then you don’t take into account the individual circumstances and capacities for growth and rehabilitation. In any case, the best you can come up with is only “propensity testimony” and that’s really not good enough.

Because if the criminal law is held to the high Constitutional standard of proving that you committed an alleged criminal act, and on that basis and nothing less the government is permitted to deprive you of your liberty, then the same has to be true if the government is going to equally deprive you of your liberty (and your reputation) by declaring you ‘civilly’ to be an SVP (or, I would say, an SO) and lock you away for what may be forever.

AND THEN Sanders (p.147) drops a doozy of a nugget: “In a survey of the seven most commonly cited studies on the ability of mental health professionals to predict dangerousness, between 54 and 92 percent of individuals predicted to act violently failed to act violently over a three-to-five year follow-up period. This means at best the so-called science of prediction is wrong half the time.” [Italics mine]

AND THIS, he continues, leads to the following consequence: “The validity of prediction testimony becomes so attenuated that it is ineffective to establish the requisite certainty of harm to make the state’s interest in preventing that harm ‘compelling’ (thus resulting in a violation of the due process clause).”

“Nevertheless, courts regularly rely on these unproven measures of predicting dangerousness to justify civil detention”, he says. And I would add, to justify the whole matrix of SO mania law.
He puts his finger on the problem (p.147): “Ultimately, courts appear reluctant to be the first to say that ‘the emperor wears no clothes’. Well, I couldn’t have said it better myself.

And he goes on to add that the Salem Witch Trials would also have served that purpose in their day: demonstrating to all the citizens that the Law – as it operated in this type of case – was hugely mistaken. And its judgments not to be respected or trusted.

And I wonder if that is where the whole SO mania is headed, regardless of the pols’ increasingly agitated efforts to milk the SO mania as a distraction from their vast failures in matters economic.

He concludes by repeating a good one from President Lincoln: How many legs does a dog have, Lincoln asked, if you count the tail as a leg? Lincoln’s answer: Four – calling a tail a leg doesn’t make it one.

And so may it be true – and I believe it is – about just about every SO.

NOTES

*I am not here suggesting that Lincoln was ‘religious’, let alone that he subscribed to any of the religious denominations that nowadays have anointed themselves as chaplains to a God-Will-It American jingoism.

**Historically minded readers will see that the Act was passed in Reagan’s first Administration, which coincided in time with the rise of the ‘victim rights’ movement. While feminism had opted to cast ‘women’ as the victims of male aggression whenever it was advantageous (while at other times claiming that ‘women’ were in all ways the total equals of ‘men’ and that the human personality was apparently gender-less, some merely deposited in a female body and some in a male body), yet it was the Republicans (erstwhile ‘conservatives’) who actually embraced ‘victim rights’ and did for the Identity (if I may) of Victim what the Dems had done for their various Identities) … they raised it up with the full power of the government. In so doing, the ‘defendant’ – charged by the full force and power of the government police power – suddenly became ‘the perp’ and, in due course, the Evil Other (and then as the streams blended into a flood from Left and Right, so often a Male Evil Other).

***We saw recently, in the Shanley case, that the Massachusetts Supreme Judicial Court chose to ignore this point and accepted as professionally and scientifically credible the purported existence of ‘recovered memory’. I can’t help but hope that this fact will support further legal process in the matter.

SEX OFFENDERS AND THE PRIUS

This is a short Post, but I just can’t help mentioning this.

You may recall this week’s runaway Toyota Prius in San Diego County.

It now appears that the driver in that case may have been surfing the Toyota wave in order to make a claim.

I have mentioned this sort of thing before. Conceptually, the trouble with a ‘panic’ (although the sustained stampede of the SO matter raises the SO panic – in my terminology – to a ‘mania’) is that folks are all too jittery and are ready to believe anything, and to err on the side of caution. If you live or work in a larger city perhaps you recall, in the weeks after the post- 9-11 anthrax letters started appearing in the mail, the endless wail of sirens on long gaggles of Special Response emergency units being called to office building after office building because somebody suspected that there was ‘white powder’ in or on an envelope (the other, dethroned ‘white powder’, far more popular at the time, was not as a rule delivered to eager customers through the mail – and the last thing you’d want to do if it was indeed delivered that way was to dial 911).

Ryder rental trucks are now white, possibly since the company’s signature yellow trucks gave rise to connections with the Oklahoma City bombing in 1995.

I also gave the examples raised up by ‘recovered memory’ – using the Shanley case in several Posts as a clear example.

Certainly there are those desperate or shrewd enough to take advantage of the Toyota panic to surf the wave and see what might be turned up to their advantage.

But you won’t see the same sort of ‘mania’ develop as you did in the SO matter. No influences beyond the individual surfers (with all respect to the board-in-water kind) and their schemes are involved here.

Hence none of the laws and usual investigatory and skeptical investigation habits have been suspended, nor are the media hell-bent on surfing the wave themselves.

You may even recall the Audi panic of about 30 years ago. American cars were starting to look a little too big and shoddy compared to the taut, more fuel-efficient European racing-sedans popular on the autobahns ‘over there’. So Audi made a play for the American market, bringing its autos over here and putting them up for sale as the new standard of luxury car for those Americans who had ‘arrived’ and wanted to drive the right kind of prestige car.

As I recall one auto commenter mentioning, the trouble was that the high-performance sedans sort of required ‘high performance’ drivers, at least to the point where a person who drove one could handle the car. The brake and accelerator pedals were smallish and close together, saving space in the driver-area of the cabin and presuming that the operators were folks with the presence of mind to acclimate themselves to the design of the pedals.

The commenter used the image of Long Island dentists' wives (with all respect to dentists, wives, and the great almost-state of Long Island) who were a tad too hefty in the hoof to hit the one pedal instead of the other – or else they hit both pedals simultaneously, creating some odd behaviors in the auto.

Thus there were cases of ‘sudden acceleration’ not unlike what you see in a number of elderly-driver incidents nowadays. It took Audi a long time to live it down and its ‘American’ pedals had to be redesigned.

So as I say you probably won’t be seeing much of that in the Toyota panic. There does seem to be a problem with the cars, and yet beyond the alarums for the next few weeks – and God forbid there are any more genuine incidents – you won’t be seeing this become a 20-year ‘mania’.

But if enough politically- connected interests take an interest, and if the pols were to sense a cheap but vivid distraction, then you would see a ‘mania’ constructed, step by step, as you have seen in the SO mania since 1990 or so.

That’s how it is with this sort of thing. As the SO community well knows.

FUNDING FOR ADAM WALSH ACT

The excellent Sex Offender Research (SOR) site has a March, 8, 2010 report on how Congress is putting up money for the implementation of AWA, to be made available as part of the long-standing Byrne law enforcement grants to States.

It can be no coincidence that Obama recently appeared with John Walsh, the former hotel worker who has become the real-life national ‘Horatio Cane’ (the ‘CSI-Miami’ ubercop played by David Caruso) and promised the viewing audience that he – the President – will see to it that AWA is funded.

As I’ve mentioned in previous Posts, there is a verrrrry strong possibility that as assorted legislative and executive efforts to address the REAL major national problems (the economy and jobs, the increasing list of – unsuccessful – wars) fail, the pols will revert to their handy default mode and distract everybody with the gambit of going after ‘sex offenders’.

Of course, this will mean stoking up ‘fear’ (and where ‘facts don’t matter’ then ‘fear’ will flow in like a sludge-flood to fill up the vacuum). And stoking up fear (and hatred, rational or otherwise – mostly otherwise) has been the gambit-of-choice for pols at least since ‘hating men and patriarchy’ became the Correct national attitude decades ago.

I’m not going for the grandstand or the peanut-gallery here when I say that this is an old and hoary gambit: that German government of 1933-1945 was verrry big on stoking up fear and hatred against the national and cultural ‘others’ – the sub-humans and the lives unworthy-of-life. And that government didn’t invent this: there is a timeless downside to the human capacity to ‘judge’ and pre-judge: if emotions like fear and hate are not tempered by rational assessment, then terribly damaging public stampedes can (and probably will) result.

That 1933-1945 government’s contribution was simply to organize it on an industrial, nation-wide scale, placing behind it the full weight and power of a modern government’s ability to manipulate and control public information and consequently public opinion.

So, as I’ve said before, the US didn’t just take the rockets, the blitzkrieg strategy, and the shape of the military helmets as spoils of war in 1945. It took the propaganda playbook of the suddenly-late Dr. Goebbels as well. (But – of course – being the US, the plays would only be run in ‘good’ causes. Yah.)

So now Obama – finding himself in his present unenviable political position – has put himself behind the AWA and all its pomps and all its works. Facts may not matter, votes do. So a sound-bite session with Mr. Walsh might garner a few, and nowadays that’s pretty much all the game’s about.

Think of it, I guess, as a ‘surge’ that will bring ultimate victory.

Although how you will get to a ‘zero-risk’ situation where ‘sex offenders’ will never be able to commit another offense seems as difficult a question as how a few thousand more boots on the ground are going to turn Afghanistan into a model democracy reliably allied to the US.

But that’s the ‘dream’ (to borrow Teddy K’s favorite trope; which in matters of foreign policy he shared with the neocons). And nowadays, with reality becoming increasingly worrisome and unpleasant to contemplate, ‘dreaming’ seems like a lot more fun thing to do. Which, if memory serves, was the Flower Children’s favorite excuse for cutting classes, going to San Francisco, toking up a fogbank of dope, and making love in the park in the afternoon. What was not to like?

How you will stamp out the human weakness or malice (it used to be called 'Sin') that causes crime is anybody's guess. And for that matter, why only this kind of weakness-malice-Sin? Murderers, bank-robbers, financial whizzes with their Ponzi schemes for easy enrichment, even treacherous liars who wheedle the country into frakkulous wars ... can any government stamp any of that out? Would it even want to try?

But 'sex offenders' are ... well, 'sex offenders' - as if that bit of circular reasoning means anything.

The SOR site also provides the relevant snippets from the assorted general funding bills. Over 2 billion dollars (as that term may be defined these days) is going to the States in Byrne money.

However, there are a lot of other special interest kitties looking for that cream, as you can see in the text of the assorted Bills. And that’s before you get to the amounts of money necessary to pay police officers for getting extra education and departments buying equipment and so forth.

So just how much of all that money will wind up in the AWA bowl is another question.

But this is clearly a Beltway effort to blunt the greatest objection the States have raised to implementing AWA: it’s going to cost them a lot of money and constitutes – that dangerous term that warns the Beltway it’s gone too far – an “unfunded mandate”. So the Beltway will now add ‘funds’ to sweeten the pot and gild the philosophic pill, as it were.

Understandably, the States have not made quite so much of a point about the inefficiency and downright uselessness of the whole SORN concept. After all, who wants to come right out and say that the plan – and perhaps the Emperor – has no clothes?

The whole Beltway game-plan for decades has been an exercise in simply getting folks to either imagine that the Emperor-Beltway has lots of nice clothes on, or at least to keep their un-Correct and 'negative' thoughts to themselves.

Will it work?

Stay tuned, sportsfans.