Thursday, April 1, 2010


I have just a bit to say about this case, but it catches my attention because of what it demonstrates about courts in this time of Mania law.

This is a March 19, 2010 decision of the Wisconsin Supreme Court. It is referenced on the Constitutional Fights site in an entry for Sunday, March 21st, entitled “WI supreme court upholds sex-offender registration for non-sex crime”. It is referenced on the Sex Offender Research site in a March 19th article entitled “Wis. Supreme Court Says Kidnapper Must Register”.

I’m not going to re-hash what’s already done nicely on Constitutional Fights. And I’m not going to do a blow by blow of the Opinion (and – thank God – the acute and incisive Dissent, joined by the Chief Justice, nicely – and both Dissenters female).

In 2001 Smith was convicted of ‘kidnapping’ of a ‘child’. To wit: in order to collect on a drug deal, Smith – then 17 – took the ‘child – a peer also 17 – in Smith’s car while he went to try to collect the drug debt from his passenger’s friend. Yes, technically it’s kidnapping, although the Lindbergh Baby case this clearly is not.

Smith was convicted of ‘false imprisonment of a minor’ and fulfilled his sentence.

BUT THEN in 1996 the state law changed – and as always in SO matters, it expanded its definitions and ‘eligible’ crime categories. Specifically, kidnapping or false imprisonment of a child (as always, the distinction between an infant and someone old enough to be a military recruit is missing).

Smith was at some point arrested for Failing to Register as an SO.

He went to court, saying that there was no sexual element in his crime so why should he have to register as a sex offender?

The Court played some stunningly obvious games.

First, it ignored Smith’s Question. Smith challenged the constitutionality of the law as applied to him. There are two ways to challenge a law’s constitutionality: a ‘facial’ challenge and an ‘as-applied’ challenge.

The facial challenge means that you are saying the law – on its very face, in its very text and the requirements it establishes – is unconstitutional here, there and everywhere, at all times.

The as-applied challenge means that you are not challenging the constitutionality of the law itself, but only its application to you in your particular situation.

Smith’s as-applied challenge would require the Court to look at the text of the law, look at Smith’s particular situation, and then determine if the law is indeed constitutional as deployed in Smith’s case.

The Court did nothing of the sort – and indeed it did the opposite. It considered the general idea behind the law – that so often, experts surmise, child-kidnapping (when you are not the parent) is a precursor to sexual assault and the act of child-kidnapping may reliably be presumed to be an indicator of sexual motivation.

Although not even the State nor the lower courts implied, inferred, or insinuated any sexual motivation on Smith’s part whatsoever.

Resolutely ignoring this elephant in the middle of the room – and precisely the elephant the Court was called upon to resolve – the Court instead concerned itself with the irrelevant generalities with which the SO community is so familiar: the law, said the Court ,is ‘reasonably and rationally related’ to a legitimate state interest.

And on top of that, the Court said, it has to defer to the Legislature and presume constitutionality in a law, so the burden is on Smith and – clearly he hasn’t met it. BUT of course Smith did not meet the burden of justifying a facial challenge to the law because he was not making a facial challenge to the law. He was making an as-applied challenge.

Which the Court managed not to notice.

Equally bad (in the long run) is the Court’s acceptance of the frighteningly overbroad scope of the law as the legislature described it: “protecting the public, including children, and assisting law enforcement”. These ‘purposes’ and ‘legitimate interests of the state’ are far too broad to guarantee any efficacious “due process or equal protection review” (Dissent at Para. 47).

They are too broad to stand alone as justifications that can automatically establish and justify the legitimacy and constitutionality of a law vis-à-vis the Constitutional requirements and protections.

Under that phrase in the law, just about any crime can be ‘registerable’ , and the (verrrry dubious) presumption that just about all (non-parental) kidnapping of children implies sexual motivation simply intensifies the dangers in this regard. Even the case of young Adam Walsh himself has not been established to have any sexual element at all.*

The purpose of the statute is far too loosely defined (Dissent at Para. 13) – which of course enables a ‘wider net’ to be cast, subject to the opportunities created by enterprising prosecutors and subservient courts.

As the Dissent (Para.48) notes, with a statute this vaguely worded any number of crimes might be eligible for inclusion on the registries, “even offenses that have no nexus to a sexual crime or even to the risk of such a crime”. The Dissenters imagine that a conviction for violating almost any part of the state criminal code could trigger a sex-offense registration.

And as I’ve been saying, this right here is a tell-tale warning. Not only must we be concerned with the miscarriage of justice (and misapplication of poorly-crafted legislation) in this particular case, but we must be concerned for how this entire Mania is now moving beyond ‘sex’ towards the registration of any and all crimes. We are moving toward the Regulatory-Preventive Nanny Police State.

And that bears within itself the profoundly and utterly anti-Constitutional vision whereby almost all Citizens are liable to be ‘registered’ if the government, using vaguely-worded laws, chooses to so indenture and ‘tag’ them. We are heading toward the Yellow Star – for everybody.

And if this sounds ‘shrill’ or ‘alarmist’, consider whether 15 years ago (Megan’s Law) or even at the outset of this century and decade you would have imagined such an expansion to be possible.
And yet it is here, the seed firmly planted in both the text of the legislation and a State Supreme Court’s Opinion.

The Dissent also references (Para. 51) the fact that sex offense registration requirements and their consequences have now grown to such a proportion as to constitute the law as ‘punitive’ rather than ‘non-punitive’.

The Dissent pulls no punches: the majority’s Opinion “makes a mockery of the rational basis test” and “evinces the majority’s unwillingness to conduct any sort of meaningful judicial review” (Para. 53). And you can see what happens when courts refuse to actually referee the game when ‘sex offense’ is playing for the government side.

The Dissenters conclude (Para. 54) that “the actual government purpose involved in (this Wisconsin statute) is easily identified … protecting people, especially children, from sexual crimes”.

What I am seeing in this is that this type of legislation is doing an end-run around Constitutionality, but not by taking the most direct route. The most direct (and more alarmingly obvious) route would be to simply claim that government’s “legitimate interest” in “protecting” people means that all crimes will be registered, because all crimes “harm”.

But that would be so shriekingly obvious that it could snap the illusion and not only stop the stampede but actually trigger a public outcry against the legislators, jurists, and prosecutors.

So instead, the ‘limited’ class of sexual crimes are being used as the camel’s nose under the tent: EVERY crime is now liable to be characterized as having some mythical ‘sexual motivation’ – and THEREFORE every crime can result in sex-offense registration.

Do you see what’s going on here? What’s happening here?

And, as I mentioned in prior Posts and as was then (alas) demonstrated by the President’s fawning appearance on the Walsh cable TV show, the Administration is now so frightened that it will lose its electoral viability that it is playing to any ‘base’ demographic that looks like it is organized enough and cheeky enough to ‘play to’ some chunk of voters.

It is this political dynamic – the political advantage dynamic – that has always been at the bottom of the frighteningly weird reality about the SO Mania: that not even the most responsible legislative and juridical authorities will accept valid scientific discovery about the inaptness and overall uselessness of these laws (let alone be deterred by the entire and utterly dangerous dynamic of sustaining a government-sponsored Mania).

But in light of the economic catastrophe, fearful for their electoral viability (even if not yet for their core legitimacy), the highest levels of State and national government are now inexorably being welded to the ‘base politics’ that in the beginning were merely one unsavory element of the whole thing but that now have become the primary driving force.

Against this stampede, now sadly embraced by the President himself, rationality and constitutionality are going to have an uphill battle.

But if the struggle against this Mania is lost, then much much more is also lost; not to put too fine a point on it: the Constitutional Republic.

I think – especially after the Obama stint on Walsh’s show – we are going to see a lot more darkness, if indeed we do not end up seeing only “the night at the end of the tunnel”.

This is, I think, a watershed moment in American history.


*The entire matter of the manipulation of this child’s (and upon him be peace) case – especially by his father – as somehow a landmark justification for sex offender registries is becoming increasingly queasy. It is to be much regretted that the President himself recently opted to appear on Walsh’s cable show to promise to that audience that he would see the Adam Walsh Act (so widely objected-to by State authorities) would be funded by the Federal government (neatly undermining the States’ objections that the law creates an unfunded mandate at a time when money is verrrrry tight).

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