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.