Monday, August 8, 2011


[PLEASE NOTE: I am putting this Post up as a follow-on to the immediately preceding Post, and I am doing it within 24 hours of putting up the preceding Post. This Post is best understood in the context of the discussion in the preceding Post – both of which are on the same subject and deal with the same text: the Ohio Supreme Court Opinion of last month that found Ohio’s AWA-compliant laws to violate that State’s Constitutional prohibition against Retroactive punishments.]

I did not pay much attention to the Dissent (one written, a second Justice merely concurring) in the State v. Williams case in my immediately prior Post and I’d like to remedy that here.

There actually are some points I want to make in regard to the Dissent. So once again, the link to the case is here ; the Dissent takes up Paras. 23-60 of the Opinion.

What I will do is simply proceed through the Paragraphs and comment on what seems useful. In the process I may repeat points, but I am confident that they bear repeating.

One other point:  I have often used the word ‘ethos’ in my Posts, which is actually a Greek word that more or less means a surrounding atmosphere or matrix of beliefs, assumptions, values, principles and practices. Thus the American ethos or the Soviet ethos, for example. But I will also use the word ‘Universe’ now; not in the cosmological or astronomical sense but as perhaps a more readily-understandable word to convey what I’m trying to say with the word ‘ethos’.

In Para. 23 the Dissenter, Justice O’Donnell, states the grounds for his Dissent: 1) the SORNA schemes, old and new, are “civil in nature” so they don’t violate the Retroactivity Clause of the Ohio Constitution and 2) “every federal circuit court” that has considered challenges to these schemes has also “held that they may be retroactively applied”.

But in regard to (2), when it comes to constitutional issues the standard jurisprudential principle of stare decisis (tr: since these things have already been decided, let them stand) does not apply; this principle respects the vital importance of every court being able to flag what strikes it as a constitutional issue or problem.

In regard to (1), I continue to mistrust this ‘civil/criminal’ distinction (related to the ‘regulatory/punitive’ and ‘punitive/non-punitive’ and ‘burden/punishment’ distinctions). Once the Sovereign Authority is being deployed against a citizen who has completed a sentence for a crime committed, and that Authority is increasing burdens on that Citizen for reasons stemming out of the crime (let alone psychological inferences made about the individual from the crime), then you are into an Ex Post Facto deployment of the Sovereign Authority, no matter how you care to characterize or color it.

In Para. 24 the Dissent states that “Our long-standing precedent recognizes the legislature’s authority to make policy decisions for reasons of public safety and public welfare” and that consequently these SORNA laws “constitute a civil regulatory scheme designed to protect the public from known sex offenders and that the statutes may be retroactively applied to individuals who have committed sexually oriented offenses in the past”.

Which is all well and good.

Except that the SO Mania confronts us with a frakkulent problem whereby the legislatures – State and national – have adopted grossly inaccurate scientific Findings to the effect that any and all sex offenders pose a very high risk of recidivism. And that even though nobody informed in these matters really believes that any longer, YET THIS UTTERLY VITAL FOUNDATIONAL ELEMENT OF THE MANIA REGIME AND LAWS remains in place and unchallenged.

Which results far far too often in what you see in this Dissent: a jurist can simply slide over the Findings-problem, claim that ‘we’ and a whole bunch of other courts have always found this thing ‘civil’, so there’s no reason to change now.

Nor is this simply a matter of the Judicial not wanting to trespass on the Legislative turf. The US Supreme Court (as will be seen below) used such recidivism probabilities to help justify its 2003 Smith v. Doe Opinion (where, you recall, it had to slap down the doughty Alaska Supreme Court, that had found the SORNA scheme of the day to be indeed ineligible for retroactive application).

As this Dissent exemplifies, the judicial bit nowadays is that since the Legislature made the Findings, then no Court has the right to question them (so take your troubles to your legislators). But if those inaccurate Findings are vitally complicit in creating a system that is indeed unconstitutional, then no court can lightly brush matters away; and certainly, courts can make reference to the (highly) dubious validity of the Findings.

Otherwise we wind up with interlocking shell-games: from an initial Legislature’s whackulent Findings, a law is passed (so often in haste, in contravention of that Legislature’s own rules of procedure, and most often by types of vote that do not record which pols actually voted for the monstrous Thing – which is shell-game to avoid responsibility); other Legislatures now pass copy-cat laws, piously pointing to the original (and whackulent) Findings and merely reproducing them in their own laws (another such shell-game); courts are called upon to adjudge the laws and merely accept that what the Legislature chooses to accept as fact in justification of its laws is not any of the court’s business (ditto, to some extent); and once those court-cases finding the laws permissible start to pile up, then any judge or court can point to the now-hefty pile and trail of other courts’ approvals and either claim stare decisis or simply bleat that there is therefore no reason to give any more thought to the matter.*

Who’s got the ball in this shell-game? Where’s the peanut hidden? Under which Branch’s turf?

So in this case, if we read the Dissent’s comments in the sure and certain knowledge that the Findings were frakked from the get-go and that  the scheme thus does very little to ensure public safety or welfare, then you can get a more visceral sense of the Alice-and-the-Red-Queen fractured fairy-tale that the whole Mania Regime has become.

And once again, on top of that, I am not confident that the Sovereign Authority can erect a “civil regulatory scheme” on the basis of a past criminal act for which sentence has been served, and yet somehow sidestep Ex Post Facto and Retroactivity. If X committed a crime and served the sentence, and is placed on one of these Registries for no other reason than that crime, then in what legal universe can you think to deploy the government’s Sovereign Authority to further burden X without violating Ex Post Facto and Retroactivity? [Hint: the answer is Not In The American Legal Universe … but that is no longer the Universe in which law schools, courts, and legislatures are operating. Which is to say: the entire SO Mania Regime of Laws and justifications for those laws comes from … another Universe not Our own.]

So in Para. 32 the Dissent can breezily dismiss challenges to SORNA schemes “because the registration requirements provided in the act were necessary to achieve the legislature’s remedial purpose of protecting the public from sexual offenders”. But the remedial purpose is based on remedying a problem (high recidivism) that doesn’t exist … so what happens now? The legislatures have erected hugely dubious laws (and not of the American legal Universe) in order to protect the public from a threat which doesn’t exist, and the courts in large part have twisted their thoughts into pretzels to justify the whole thing. Is ANYBODY in a position of authority on the good ship United States who can fix this?**

And as I said in the immediately prior Post, just how far can the American legal Universe go in ‘protecting’ and ‘preventing’ before it is no longer the American legal Universe but rather has mutated into some other Universe. Look, for example, where Bush-Cheney got Us with ‘preventive war’ (another concept that never had a place in the American Universe).

And all this on top of the fact that you are trying to ‘protect and prevent’ in regard to a problem (high recidivism) that is now known not to exist.

In Para.38 the Dissent recalls another formulation made by a court in defense of the legislature’s jerrybuilt constructions: “Further, we acknowledged the General Assembly’s clear reaffirmation of an intent to protect the public from sex offenders and concluded that the more burdensome registration requirements … were not born of a desire to punish”. But it seems to me that even at this late date, 15 to 20 years after the initial court challenges and certainly almost a decade since it became obvious to informed parties that there existed no such high sex offender recidivism as legislatures had originally claimed to have found, how can legislatures still be churning out laws on the basis of what they must now surely acknowledge was grossly inaccurate information? Why, given the utter and now demonstrable inaccuracy of their foundational presumptions, have legislatures not disassembled this entire Regime? Why have courts not made some larger efforts toward that end within their own spheres of authority and competence? Does anybody among them recall the Vietnam War?

And it stretches credulity to Alice-in-Wonderland levels to imagine that any legislative body – in the American universe, certainly – could heap so intensifying and lethal and profound a set of ‘burdens’ on any group of citizens (felony convictions notwithstanding) and claim that they had no intention to punish or harm them, but merely to bell them like the brave mouse belled the cat for the protection of and prevention of harm to all the other mice. But then the American population, and not by accident, has been so addled and agitated that it can no longer so easily distinguish what is reality and what is fantasy. (Leading to the thought that just as the legislative and legal systems are no longer operating from and within the parameters of the American ethos/Universe, perhaps the Citizenry aren’t either – take that to prayer.)

The Dissent continues in that same Paragraph that having already recognized that "consequences as drastic as deportation, deprivation of one’s livelihood, and termination of financial support have not been considered sufficient to transform an avowedly regulatory measure into a punitive one" And again, you have to ask yourself: just how intense does a deprivation or ‘burden’ have to be to qualify as ‘punitive’ in this weird, non-American and probably anti-American universe of SO Mania law?

The need for this question is reinforced in Para. 45: “Nonetheless, we clarified in Ferguson that ‘Ohio retroactivity analysis does not prohibit all increased burdens; it prohibits only increased punishment”.

Sooo – let’s get this clear here – your State Legislature can claim you are or most probably are an incorrigible and uncontrollable and monstrous sexual predator; and that you will almost invariably commit more sex crimes; and then keep that claim going even after serious professional research has established the gross inaccuracy of those claims; and then publish your name, photo, address and a whole bunch of other information it has demanded from you; and souse the public and your neighbors with lurid tales of what you will probably do sooner or later once you are back among them; and thereby pretty much blast to smithereens any possibility for residence, employment, education, perhaps family, and for normal social interactions and the simple enjoyment of a name and reputation; and make you present yourself to a sheriff several times a year for decades to confirm you whereabouts; and allow a sheriff or anybody who can wangle a sheriff’s ‘authorization’ to pester your landlord until you get tossed just to stop the ‘official visits’ … and almost no court in the land will label it ‘punitive’ because the pols who passed the law promised Scout’s Honor that they didn’t want to ruin your life with their legislative power. Oh, and anyway it’s all your own fault for having committed the crime in the first place.

Because none of this rises to “the infliction of punishment and therefore” the whole scheme is merely “remedial”.  (Para.46)

And who can wonder then that the boundaries between phantasm and reality seem to be blurring into non-existence around here nowadays?

Then in Para.48 the Dissent asserts that “Contrary to the majority’s position [in this case of State v. Williams], the fact that sex offender registration provisions appear in the criminal code and that the classification categories are directly linked to convictions for specific offenses does not make S.B. 10 punitive in nature. Rather, the General Assembly found that a past conviction for a sex offense is an indication of the present threat that a sex offender poses to the public, and we have previously recognized that the legislature may ‘use past events to establish current status’”.

Again here you see the combination of tag-team and shell-game being carried on between the legislative and the judicial Branches. Nor is there even a glimmer of awareness – or perhaps he just doesn’t care – that what “the General Assembly found” turns out to have been almost completely wrong and that consequently “the present threat” doesn’t exist as claimed.

And when it comes to criminal law, whatever legal Universe allows a Sovereign Authority to infer present status of a former-convict from a past act is not the American Universe. One thinks of the differently colored internal passport (itself an anti-American concept) that French Revolutionary law assigned to ‘former convicts’ simply because they were ‘former convicts’; it was called the Yellow Passport and simply to have to produce the glaring little booklet in public upon a policeman’s or soldier’s demand labeled you (it was from this Revolutionary practice that a later European boss would come up with a Yellow Star, although he intensified the frakkulence exponentially).

In Para.50 the Dissent asserts that the Congress passed the AWA “specifically to solve ‘deficiencies in prior law that had enabled sex offenders to slip through the cracks’”. Now there are indeed many ‘cracks’ in the whole thing, and eligible offenders may indeed be slipping through them – but far more often because the cracks are so wide as to swallow them up.

The primary ‘cracks’ in this system are based on its conceptual incoherencies as a stable and reliably  recognizable psychological or even criminological entity: nor is there a large reliability in any descriptive and diagnostic and therapeutic assessments. The next set of ‘cracks’ is that in consequence of the foregoing, different legislatures have enacted different definitions of key elements and characteristics and weight their significance differently. The next set of cracks is that given the ludicrously but hardly surprising variability in who is and who isn’t a sex offender and what is and what isn’t a sex offense and what level of future threat any offender poses … given all that, it is not infrequently the case that even the offender doesn’t know if any one of a dozen new rulings and rules applies to him. And lastly, given the slap-dash and weirdly incoherent nature of these laws themselves (try reading, for example, the text of the Adam Walsh Act and see how long it is before you can’t make heads or tails or any sense of it) an offender may very easily fall ‘technically afoul’ of the applicable registration requirements: i.e. , he is arrestable or arrested not for committing a new sex crime but for thinking, say, that he had to perform actions A, B, and C to remain ‘in compliance’ and not realizing that there were now requirements X, Y and Z as well.

Now it might seem a good thing that the national government is involving itself in trying to bring some order to the mess. EXCEPT THAT a) the national government created the mess with its incoherent conception of the problem and grossly inaccurate ‘science’ supporting it; b) crime is constitutionally the business of the State governments;  c) the national government’s irresponsibly (if not treacherously) slap-dash approach to a non-existent problem that it itself raised to national prominence cannot be improved or justified by bringing order to the attempted solutions for what is not verifiably an actual problem in the first place.

Which makes the Dissent’s ‘therefore’ in Para. 51 clearly risible: “Thus, the purpose of classifying all sex offenders into tiers based on the offense of conviction is not to punish an offender. Rather the General Assembly sought to establish a system that provides for the efficient sharing of information about sex offenders necessary to safeguard the public from potentially dangerous individuals.”

First, it is beyond fantasy to imagine that any government (State, local, or federal) can subscribe to the panoply of anti-sex offender laws now on the books , with AWA being only the tip of the iceberg, and claim – either honestly or cynically – that it doesn’t intend to punish. No government of whatever level in the American legal Universe could ever expect to get away with it, and no government of whatever level in the American legal Universe would ever be expected to try.

Second, the Question has to be asked: Why, in the decade or so since the vital issue of High-Recidivism has been demonstrated to be non-existent, has no government at any level – and most certainly the federal – announced that and backed away from further extension of this Thing or at least started drawing-down the elements comprising the SO Mania Regime? Do Congress Members NOT know of these solid research discoveries? How ignorant do they have to be to honestly not-know at this point? Do Congress Members know?  But if so, then why not back away or even shut down the whole thing for lack of a actual-justification?

Clearly, it appears highly probable that the High-Recidivism of sex offenders is no longer and perhaps never was the driving element in this Mania. And if that’s true, then what were/are the driving elements of the Mania, and certainly of government’s participation in it? Would some Member care to make effective answer?

Third, and I repeat myself, the entire SORNA concept is not native to the American legal Universe (although it has enjoyed quite a secure status in the French Revolutionary and post-Revolutionary, the Soviet, and the Nazi legal Universes).  Did this not catch the attention of legislators, jurists, and law school elites in the past 20 years? Or was there something of a Mania among them: a stunningly witless rush to be on the ‘cutting-edge’ of what was billed by its backers as a major ‘reform’ and spun at urgent, vital and necessary ‘progress’ when actually this amazing new discovery (to use the language of infomercials) was new to the American legal Universe only because it was so profoundly and lethally ALIEN to it and up until a few decades ago many generations of sober professionals and public officials in this country had realized that?

But the Dissent is nothing if not thorough and it won’t quit. In Para. 52 it recalls to the Court the Court’s own prior Holding: “Except with regard to constitutional protections against ex post facto laws, felons have no reasonable right to expect that their conduct will never thereafter be made the subject of legislation”.

To which there might be a couple (at least) of responses.  First, WHY NOT? You commit (presumably, and in the Mania this is not a small presumption) a crime, serve the sentence, and that’s that unless you commit further crimes; you proceed chastened to re-establish your personal, familial, and civic life on a more genuine basis (and perhaps even begin living your life on a higher plane of personal and social and civic maturity). Why shouldn’t you have an expectation of finality so that you and the civic community can get back now to restoring its wholeness through your new quality of participation.

Second, WHAT ELSE is ‘retrospective legislation’ EXCEPT ex post facto? And certainly at the level of and of the nature contained in the Mania Regime legislation. Nor can this immutable reality be hidden by any such treacherous wordplay as ‘regulatory’ or ‘non-punitive’ or ‘necessary for protection of the public’. All of those phrases have to be defined and construed according to what is possible in the AMERICAN legal Universe and not any of the fundamentally different other legal Universes that are out there and that have always, in terms of core dynamics and philosophy, been out there.

How can any court or any jurist worthy of the title presume otherwise? ‘Hi, we know you’ve done your time and haven’t been convicted of anything since then, but we have lately come to believe - although apparently it’s mostly inaccurate - that we need to impose a whole mess of burdens on you simply because we believe – mistakenly but what the hey? – that you yourself will continue to commit these crimes. So we are going to ruin your reputation very publicly by tarring you with this label of Sex Offender that we have created, wreck your chances for any rehabilitation, or the decent conduct of any further life in terms of residence, employment, family and civic participation. But we really don’t mean to punish you and it would be largely small-spirited on your part to consider what we’re doing as anything but Good (and utterly constitutional).’ This is a script of stark, raving civic insanity, and not the sex offender’s.

Third, this is actually something worse than ex post facto: the government is not so much going back to rummage in your past ‘act’, but rather it is in reality now labeling and categorizing you – demonizing you officially;  and all of its actions to be piled on top of you - ‘retrospective’ or otherwise – constitute a government-abetted assault on you as a person (i.e. you are presumed to be some sort of incorrigible Monster). This in its essence comes from the Universe of peasants with pitchforks chasing and burning the latest object of their fears, frustrations, and secret guilts. This entire gambit constitutes in its very essence a sustained assault by the government on a segment of Citizens whom it has demonized. This comes from a dark Universe most deliberately and purposefully rejected by the framers of the American vision. (Yes, I have just opened myself to charges of ‘framerism’, I know.)

Fourth, these individuals are NOT “potentially dangerous” in the sense of High-Recidivism. They ARE potentially dangerous in the sense that we are ALL potentially dangerous. But this is part of the American Vision: can a bunch of human beings – all of them subject to the moral insanity of original sinfulness and all of them liable to violate somebody else’s rights at some point – manage to sustain a society in which they can deal with that reality without demonizing each other and chasing each other with pitchforks or tagging some scapegoat category with burdens and tokens of public opprobrium suitable to darker eras in Western history? The Framers answered Yes to that Question. There is apparently a very politically-connected or politically-favored cabal in this country that wants to answer No. AND legislatures and the courts have largely gone along with this cabal.

And then, to trump everything, the Dissent insists in Para. 53 that “Because S.B. 10 does not inflict punishment on sex offenders for past crimes, applying its provisions to defendants who committed sex offenses prior to the date of its enactment does not violate the Retroactivity Clause”.

And then in Para. 54 rehearses the US Supreme Court’s now cheesy-looking assertions in 2003 in Smith v. Doe.

One, that the SORNA schemes “did not resemble traditional means of punishment in that they did not place offenders on public display for ridicule, but instead disseminated accurate information”. But if they did not represent ‘traditional’ means of punishment it’s only because this sort of thing comes from an alien legal Universe that heretofore had been excluded from American life as coming from a darker and more regressive era of Western history.

And further, to assert that the SORNA schemes were OK because they weren’t intended to shame and ridicule is grossly and disturbingly insufficient: it’s like saying I threw a lighted stick of dynamite into the building but I did not intend to cause any damage. What else could have resulted? You use the Sovereign Authority to ratify the demonization of a scapegoat class of Citizens; you whip up the darkest and most volatile public emotions deliberately; you put the scape-goated group onto an Internet that was never a ‘traditional’ form of shaming because it never existed prior to recent decades, you then claim that you are merely publishing ‘accurate information’ as if you were Goody-Two-Shoes and beyond reproach … you do ALL that and THEN you cawn’t think why or how you can be considered profoundly deranged?

Two, that the SORNA schemes “imposed no physical restraint, leaving offenders free to live and work without direct supervision”. But if they have completed their sentences then they are immune from ‘direct supervision’ by the Sovereign Authority so you are claiming to give them what is already owed to them in the American civic compact anyway. And isn’t there something simultaneously Nanny-State and ‘1984’ in that queasy presumption that an entire class of Citizens should live under some form of permanent supervision? And in what way is The Sex Offender “free to live and work”? Into what sort of public did those jurists think they were introducing this lighted stick of SORNA dynamite? Clearly not the humans of any Universe known to human history – but, of course, this whole Thing has reeked of some whackulent Revolutionary-Utopian scheme-on-paper from Day One.

Three, that the SORNA schemes “did not promote the traditional aims of punishment so as to overcome the legislature’s regulatory objective”. But they do promote – seem luridly and deliberately designed to appeal to – the darker and regressive human urges that have never been ‘traditional’ in the American civic Universe only because this type of demonizing and scapegoating of classes by formal government action and legislation was rejected. And the ‘regulation’ of Citizens, combined with the criminal law in such a way as to enable semi-permanent official government involvement in the lives of Citizens who were convicted and served their sentence was also never considered as being within the American civic Universe.  

Fourth, that the SORNA schemes were not retributive because the categories of those who had to report and the corresponding reporting requirement were reasonably related to the danger of recidivism” – which we know now is clearly not the case. So that if the fundamental obnoxiousness of the whole SORNA scheme to the American legal and civic Universe did not give the justices pause, at least the bald reality of the enabling Findings’ gross inaccuracy should now catch somebody’s official attention.

Fifth, the SORNA schemes “were rationally related to the regulatory purpose, despite the lack of an individualized assessment of the risk of recidivism”. Amazingly on the strength of the demonization of all sex offenders as The Sex Offender, the government THEN sought to sidestep the expensive and potentially embarrassing complications of individualized ‘assessment’ (the whole conceptual category of sex offenses and sex offenders being so mushy, vague, and subjective that you always had to worry about a wide and deep and persistent discrepancy among official ‘assessors’ that could never be hidden for long). This entire treachery – perhaps treason – to the American civic and political Universe or Ethos was verrrry deliberate; they knew what they were doing and what they wanted to do … they simply didn’t want the public to know.

Sixth, the SORNA schemes “were not excessive in relation to the stated regulatory purpose given to the high risk of recidivism posed by sex offenders”. But we all know that the high-risk was grossly inaccurate and - not to put too fine a point on it - doesn't exist and never has.

And finally, in Para. 57 the Dissent gives a crystal-clear example of the whacky echo-chamber of judicial precedent that sustains this Thing: the Dissent quotes a 7th Circuit Opinion of 2011 that confidently trumpets that “whether a comprehensive registration regime targeting only sex offenders is penal … is not an open question” since – wait for it! – the US Supreme Court decided the whole thing in Smith v. Doe in 2003. This requires the sublimely satiric comedy-stylings of the Marx Brothers.

As the British commentator Theodore Dalrymple says somewhere: It’s easy to hate Evil – but it’s another thing altogether to love Justice. And what’s happened in this Mania has been a politically-convenient stoking of the fires of fear and hatred which not only sought to avoid the harder work of loving Justice (upon which the Republic is built, when you think about it) but also sought to subvert Justice in the American legal Universe. But it was all in a ‘good’ cause, and those who are trying to do ‘good’  – as is well known in some Universe not Our own – cannot do Evil. Which should tell Us here and now that you can’t go mixing Universes.


*An excellent example of this sort of thing is AWA itself. It was passed under suspension of the rules and by voice-vote, with the result that there is no record of who voted for it in either Chamber of Congress (or, for that matter, how many Members were actually present and voted).
**This reminds me of another exemplification of this same dynamic: this country entered the Iraq War on the belief (mistakenly or deliberately held) that Iraq possessed weapons of mass destruction. Yet even when – as is now known – the belief was demonstrated to be false (and high-level documents and comments from UK government players indicated that it was deliberate), the Iraq War-Occupation rolled along. It’s as if the government, for some time now, has been sufficiently convinced that the Citizenry is now so thoroughly and helplessly manipulable (so long as you don’t actually say that in public to its face, as it were) that you can stampede the public into accepting just about anything, set up the thing you want set up, and carry on regardless of whether, at some not too distant date, the original pretexts you used to start the stampede are demonstrated to have been false.

This makes me wonder if  this country any longer has a government – and  a Citizenry – from the genuine American civic and political Universe. Or have they both been mutated into entities from an alien one? 

No comments:

Post a Comment