Sunday, March 14, 2010


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.


*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.

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