Sunday, August 7, 2011


On July 13th the Ohio Supreme Court declared in a 5-2 Opinion that Ohio’s legislative effort to comply with the Adam Walsh Act (AWA) violated the Ex Post Facto (EPF) requirement of the Ohio State Constitution and thus could not be applied retroactively and can only be applied to offenders who committed their crimes after the law became effective in 2007. (See the Constitutional Fights article here .

While not the end or even the beginning of the end, it is perhaps the end of the beginning, as Churchill said.

I am going to go through the relatively short but meaty Opinion and make some comments. You may read a brief official Summary of the Opinion here ; the text of the entire Opinion is here . The Opinion is only 23 pages long and not difficult; I recommend it for your reading if you are a little leery of court-documents.

I will refer not to pages but to Paragraphs when quoting from or referring to the Opinion, since as it proceeds each point is placed in a separate Paragraph (I will refer to the Paragraph as “Para.”)

The case is “State v. Williams”, Slip Opinion No. 2011 Ohio 3374. (If you use a search engine, remember that you want the Ohio Supreme Court stage of the case; it went through Trial and Appeals Court phases as well.)

The Opinion starts out with a short Syllabus, which clearly and concisely lets you know exactly what the Question to be resolved in this case: Whether S.B. 10 [the Ohio legislation to enact the AWA requirements, passed in 2007] as applied to defendants who committed offenses prior to its enactment, violates Section 28, Article II, of the Ohio State Constitution, which prohibits the General Assembly from passing retroactive laws.

As you can see, this Question limits the case: the Ohio Supreme Court (OSC) is not going to be looking at all sex offense laws or at the constitutionality of the entire AWA Sexual Offender and Registration Act (SORNA) programme. The OSC is looking at whether the AWA-SORNA, as embodied in Ohio’s S.B. 10, can be retroactively applied to persons whose conviction-offense took place before the law was enacted in 2007. Just so you don’t get your hopes too high up or place too many expectations on the case.

The Justice who wrote the Opinion for the Court – J. Pfeifer – sets out a concise history of this case in Paras. 1-5: George D. Williams was arrested in November 2007 for ‘unlawful sexual contact with a minor’ that took place before July 1, 2007. He was over 18, she was between 13 and 16. He pleaded guilty in open court and in the open ‘plea colloquy’ with the bench it was mentioned twice that he would not have sex-offender “reporting requirements”.

It was now 2008 and Williams moved the Trial Court to be sentenced under the version of the State Law that was in effect when he committed the crime in early 2007, rather than the version (based on S.B. 10, which was trying to implement the new AWA-SORNA regime) that took effect on January 1, 2008. The State opposed the motion, claiming that there was no reason for it and the Trial Court denied the Motion. Thus Williams was sentenced according to the AWA scheme, as a Tier II offender with a 25-year requirement to personally appear and report all his information every 180 days to any county in the State in which he either resided, was receiving an education or taking courses, or was employed.

Williams then appealed to the Appeals Court, claiming that the new regime scheme could not be applied to an offender who committed an offense before the scheme existed in law. The Appeals Court denied him, claiming that S.B. 10 did not violate the Retroactivity Clause in the State Constitution.

Williams appealed to the OSC, and here we are. It is impressive that the OSC accepted the case rather than simply let it slide into the general goo and multi-layered miasm of ‘justification’ which now envelops sex-offense law like toxic putrid gas over a lethal swamp. (More on that below.)

In Para. 6 the OSC characterizes S.B.10 as “one step in the evolution of the treatment of convicted sex-offenders in the State of Ohio”. This, I think, is already going off the rails: if the Court means ‘treatment’ in the therapeutic sense, there is almost no treatment to it, since either no treatment exists, perhaps because no scientifically-grounded diagnosis can be formulated, or because whatever treatment is to be provided is either ludicrously minimal in relation to the purported depth and intensity of the ‘perversion’ (a prison program may simply be some form of AA’s 12-step approach) or else it is held off until after the offender completes his sentence and is civilly confined (and a fine example of therapeutic treatment and medical ethics it is, to deny treatment to a purported sufferer for 5, 10, 20 years).

And it has always interested me – that for such a ballyhooed crime of awful and awesome intensity and proportions, yet it seems that neither treatment nor diagnosis can be reliably formulated for it and that a State can essentially address the issue for most offender-inmates with 12-step programs. Either most inmates are so amenable to intervention that a 12-step program will work for them (in which case, what’s the horrific brouhaha about in the first place?) or else nothing works with them very well (in which case there is nothing ‘therapeutic’ to be done and courts and legislatures should stop trying to smile their helpfully therapeutic crocodile smiles).

In fact this is the reason there is any need – such as it is – for a ‘national coordinating Registry’ to begin with: the ‘sex offense’ and the ‘sex offender’ are such amorphous and fuzzy concepts that any two States or therapeutic practitioners or observers will most likely come up with differing, perhaps mutually exclusive or incoherent, descriptions, definitions, diagnoses, prognoses or treatment. The AWA solution? The tee shirt/bumper sticker says it:  Call’em all incorrigible, recidivist, sex-offending Monsters and let God sort it out. Such Solomonic legislation. Oh, which also is not to be construed as the pols saying they actually or officially believe in God (in case they offend their secular ‘base’).

You might think that the most logical thing to do – demanded by the problem here – would be to back off and assemble professionals and scholars (in the genuine, not the advocacy, sense) and get the basics in order (shocking as it is to think that this wasn’t done at the beginning when all this was started). BUT that’s not what happened: AWA happened instead.

Why? Because this has never been about a disease or disorder and diagnosis and therapy to begin with. This whole thing has been a politically-constructed Monster and ditto a public stampede, with the ‘therapeutic’ dragged in only later after it was necessary to somehow avoid the Retroactivity-punitive problem and support the semi-permanent civil confinement of sex offenders after their sentences had been served. And given the rather reserved response of the genuine professional community from the get-go, a gaggle of ‘advocacy scholars’ had to be raised up overnight (see my recent Post “Junk Advocacy Science”); cottage-industry entrepreneurs whose bread would come from providing the benefit of their ‘expertise’ to bolster government and advocacy claims, and surfing the waves of federal cash (ahhhh – those were the days) pumped into the SO Mania industry.
Para. 7 notes that the classification scheme in effect at the time Williams committed his offense was based on Ohio’s version of the mid-1990s federal Megan’s Law schematic. Whereas Ohio’s current classification scheme, S.B.10, was enacted in later 2007 to comply with the federal 2006 AWA-SORNA.

(And  that case, Megan’s, as you may recall, was premised on the sudden switch in the parents’ story: after consultation with eager advanced-level  ‘advocates’ they suddenly claimed that they did not know that the guy across the street was a convicted sexual deviant, whereas the earliest local media reports had referenced many parents on the street for whom the man’s queasy oddness was the subject of much common discussion … such are the blessings of a too-organized advocacy looking for a reely reely good case as a ‘hook’ to hang their schemes on. On the basis of that sudden and hugely strategic change in their story, the entire justification for any sort of SO Registry was grounded: ‘if only the parents and neighbors had known’ … but they did; they did know enough to suspect him and – with one awful exception – keep their kids away from him).  

Justice Pfeifer writes here that “Because we conclude that S.B. 10 violates the Ohio Constitution, we need not discuss whether S.B. 10 violates the U.S. Constitution”. But since all the State Constitutions essentially reproduce the fundaments of the U.S. Constitution, and thus also in that sense resemble each other, then when one State finds some aspect or essential element of legislation unconstitutional it opens such legislation up to the possibility of being unconstitutional for all the other States and for the national Constitution.

In Para. 8 the Court applies the first prong of a two-prong test that the entire court system has developed to determine the whether a law is Ex Post Facto (EPF) and therefore violates the vital and utterly fundamental constitutional prohibition against Retroactivity. Did the Ohio General Assembly actually intend for S.B.10 to be applied retroactively? It did. (Neatly and slyly, in the Federal AWA it is left up to the Attorney-General to decide if the law should apply regardless of when the offense was committed – a sordid strategic shell game whereby Congress dodges the Retroactivity problem (and it’s conceptually a doozy) and leaves it up to an Executive Branch that stands a better chance of doing the dirty without a flag being thrown on the play.)

But then in Para. 9 to the second and more complex prong: “a statute is substantive if it impairs or takes away vested rights, affects an accrued substantive right, imposes new or additional burdens, duties, obligations, or liabilities as to past transaction, or creates a new right.” On the other hand, “remedial laws, however, are those affecting only the remedy provided, and include laws that merely substitute a new and more appropriate remedy for the enforcement of an existing right”.

And this is important because “the retroactive clause nullifies those new laws that ‘reach back and create new burdens, new duties, new obligations or new liabilities not existing at the time the statue becomes effective”. Does S.B. 10 (mimicking the AWA SORNA scheme) ‘reach back and create new burdens’? Or does it simply tweak existing ‘remedies’  (that, neatly, have already been determined by many court decisions in all jurisdictions and at all levels, to be constitutionally OK because they are merely ‘remedial’ and ‘not criminal’)?

You can see here where once the SO registration survived its first major court challenge as to its constitutionality (in the 1995 New Jersey Poritz case; see the series on this site in August-September 2009), then the burden of any further serious thinking on this highly-fraught and highly-dubious scheme was removed; subsequent courts, when faced with constitutional challenges to SO Registrations in their own jurisdictions, could simply cite Poritz and get themselves off the hook. And then, of course, the US Supreme Court slapped down the Alaska Supreme Court in the 2003 Smith v. Doe case (see case here and wiki here) when it reversed that Court’s courageous ruling that the whole thing was indeed in violation of retroactivity; no, said the Supremes, the SO Registration schemes are “non-punitive” – thus putting the vital Supreme Court seal of approval on the whole thing.

I feel that the whole idea of registering people for crimes is fundamentally and irredeemably antithetical to the American Vision and ethos: it deploys the ever-dangerous government authority to permanently label citizens, and in conjunction with a government-enabled smear campaign to terrify and enrage the pubic with egregiously false information and ‘Findings’ it amounts to outright manipulation of the Citizenry by the government and the advocates whom it has chosen to ‘valorize’; that it smacks of totalitarian police-state practices; and that in involving the federal government in areas where the States are constitutionally in authority it centralizes power (and in the SO case very sleazily and lethally wielded power) in the national government rather than allowing the individual States to handle matters as they see fit. (The excuse being that in a ‘mobile society’ the ‘sex offenders’ can easily go from State to State so the national government has to do something; but there are very few stranger-child molesters who kill children, and I think it lethally unwise to undermine the entire American Framing Ethos, especially as it is embodied in legislation and jurisprudence, simply to deal with such rare (though telegenic) instances of monstrosity.)

So I’d like to see this entire Thing struck at its roots – but both Congress and the Supreme Court have made that much much harder to do, since Congress embraced the highly-fraught conceptual gambit that ‘public safety’ outweighs any other consideration whatsoever (Hitler’s very first and most fundamental enabling legislation was entitled The Emergency Law for the Defense of the Government and of the People) and then embraced all sorts of whackulently inaccurate information in its Findings, which the Supreme Court then piously bleated that it had to accept as accurate as it cut-and-pasted its own freshman or sophomore distinctions between ‘punitive and non-punitive’. Once Congress and the Court had done the heavy (and dirty) lifting, all the smaller fry could – unless marvelously courageous – simply point to the big guys and piously bleat that they had no choice but to go along. Neato.

As I have said before some time ago on this site, should the government run itself out of money (which it now appears it is close to doing*) then this monstrosity will wither on the vine because of insufficient cash to pay its enablers and administrators and advocates. But it would say more for the health of Our political system and the robustness of Our grasp on the Genius of the Framing American Ethos, and the political competence of the Citizenry, and the integrity of legislatures and courts, if this Thing could be acknowledged and declared to be the lethally and gravidly dangerous Monstrosity it truly is.

But here we are in Ohio and this case.

The key question here, as the OSC frames it, is: is S.B. 10 ‘substantive’ or ‘remedial’? (This is separate but not unrelated to the questions: is SO law ‘criminal’ or ‘civil’? and ‘punitive’ or ‘non-punitive’?)

In Para. 10 the Opinion states that the Court “has consistently held” that the applicable State SO Registration law “is a remedial statute”. But it then admits that “there is no absolute test to determine whether a retroactive statute is so punitive as to violate the constitutional prohibition against ex post facto laws; such a determination is a matter of degree”.

I’m not so sure of that myself. It seems to me that if you are going to exercise the sovereign legal authority and power in such a way as to deprive a person of a right (as opposed to a privilege), especially  in connection with a criminal conviction, then you are into Retroactivity no matter whether your intention is ‘remedial’ or ‘punitive’. This SO Registration and Notification isn’t at all just like a simple matter of ‘renewing your driver’s license’ or of having it taken away after a DUI/OUI conviction; it isn’t at all simply a matter of losing your medical license after a conviction for malpractice. SORNA wants to publish what you did (or at least were convicted of) AND to do that in the context of an already (and shrewdly) established terrified and enraged public misapprehension about what you ‘therefore are or at least probably are and what you always will be’. It has to demolish you in your fundamental dignity as a human being in order to justify twisting the Constitution into a pretzel to Register you as a sex offender. Such brilliance.

So the government FIRST creates an atmosphere of terror, horror and outrage among the public; THEN it convicts you (with whatever skullduggery might therein be involved); THEN it ‘tags’ you semi-permanently not only for what you (allegedly) did but for what sort of a monster you allegedly are; and THEN – to escape the constitutional consequences of such a treacherous gambit – it insists that it doesn’t mean to hurt you further by publishing all of the ‘information’, the publication of which in the already superheated public atmosphere that presumes that there are not only sex offenses but Sex Offenders, effectively quashes any possibility of housing, employment, education, or even the ability to live in peace after having paid your debt to society (which a whole lot of Americans have done over the centuries). BUT, it claims, it’s just a ‘remedy’ in the interests of public safety (since you are so irremediably and uncontrollably prone to do what you did again or even worse than what you did).

I’d say that there is an absolute test: if you are going back and by deployment of the Sovereign Authority are making a once-convicted Citizen’s life harder at all on the basis of a conviction for which the sentence has been served, then you are into Retroactivity whether you operate through the civil or criminal law. The whole idea behind the prohibition against Retroactivity was to prevent the Sovereign Authority from reaching back and considering itself empowered to permanently interfere in the lives of Citizens once convicted but who had cleared their debt to society, as the saying goes.

And that ancient prohibition was based both on the healthy doubt about the reliability of Sovereign Authority and on the hardly surprising wisdom that if the government keeps going back to re-open the wound of a particular crime (presuming it was an accurate conviction) then you were soon going to fracture the community and the common weal: because everybody commits a crime sooner or later.

But of course, the treacherous gambit in the SO Mania is to claim that this type of crime is soooooo bad … although a) the definition of it is hugely elastic and b) what’s to prevent a government so engorged with such precedent from going and declaring some other crime equally awful, and thus by degrees turning the entire Citizenry into some form of especially-awful criminals? And, of course, if this Monster is ‘evil’ and I am not that Monster, then (in the self-serving alchemy of human psychology and emotions) I am not a Monster, not ‘evil’, and instead am perfectly ‘good’… this is catnip to an immature and fragile psyche.

Of course, as I have always been saying on this site, the roots of the SO Mania are multiple: a government that is looking to expand its power over Citizens while trying to get around a democratic ethos that still retains the formal limitations of the Framing Vision; a government looking to please its ‘bases’ in an age of polity-fracturing Identity-Politics; a government that is seeking to distract Citizens from consideration of more pressing and urgent national problems (20 years ago, thus, the problems of an increasingly shaky international and national economy); a government capitalizing on a Citizenry increasingly pushed by assorted cultural forces into a less-competent, less-rational, more emotional and more infantile mode of processing and even selecting vital news and information; a government whose functionaries had mindlessly lost or willfully abandoned any sharp vision of the American Constitutional Ethos; and ultimately a Citizenry that is indeed far less competent in the awesome responsibilities incumbent upon serious Citizens of a large democracy.

And this is precisely where the fraudulent and feculent claims and ‘Findings’ of sex-offense ‘science’ to the effect that SOs have hugely higher recidivism rates comes in: they are the pretextual excuse (and a repellently dishonest one) for the insistence that there is no such thing as a once-convicted and now former sex offender. Instead there is only the Sex Offender: either Not-Yet-Discovered or Already-Convicted or Waiting-to-Strike-Again … but in any case an ever-active evil and criminal force that justifies Registration and Notification because SOs are never really finished with their offenses. With very very few exceptions no such Monsters exist; and if one thinks that the government belongs in the Monster-destroying business one can simply look at Iraq and Afghanistan to see just how good it is at that. And it learned its baaad lessons about Making-and-then-Chasing Monsters from its experiences in the deliberate creation, tagging, and tracking of The Sex Offender while also deliberately whipping up a grossly misinformed public sense of terror and outrage.

The Court in Para. 10 says that it’s a matter of degree: that it’s just a matter of when the government reaches a tipping-point where something becomes (intended or not) punitive in its effects. That may work in cases with no criminal-conviction connections: how far can (a State, local or the federal) government go in protecting restaurant patrons from improperly prepared food? But even in this forum, once the Sovereign Authority at any level starts to deprive a Citizen – even for the sake of other Citizens – you have to be verrry careful: take Eminent Domain law, where your dear old home can be taken for public purposes … that power has been expanding in the past decades so that you can be evicted not for some pressing public need but simply because the municipality feels it can now make more money by using your property in other ways.  

But if that Eminent Domain development is unquieting, then the SO Mania gambit is profoundly disturbing. Having created a ‘market-against’ SO Monsters, the government and its chosen advocacies then expand convictions (by weakening due process, by deliberately poisoning public opinion – and any potential jury pool – with sensationalistic tidbits and grossly inaccurate facts, and by a dance of madness by which pols respond to increasingly whackulent claims by accepting them and erecting increasingly draconian laws). And THEN to keep up the press, declare not only the Act to be repugnant (what felony isn’t, if you think about it?) but the Perpetrator (a Citizen, let’s not forget) to be some sort of incorrigible Monster who will never and can never cease to be a Monster and so can never be allowed to ‘finish’ with the Sovereign Power.

Even if that means the wrecking of  reputation, possibility of employment, education, residence, raising a family, or simply conducting one’s life peaceably (the scam here: by definition as an incorrigible Monster, the SO can never ever live a peaceable civic life and probably never has – so the government isn’t taking anything he already had to begin with).

Well, grant the OSC its ‘tipping point’ approach: I suppose by this point things are soooo screwed up that there really is no rational way to back down without exposing the torturously frakkulent and jerrybuilt conceptual legal path by which legislatures and courts got things to this point. So they will have to back off along different paths, so as not to expose the dreck-strewn one they forged to get here.

Thus the ‘tipping-point’ rationale: the SO Mania Regime was OK constitutionally to begin with, but now it’s really gone too far. It’s not the heroic thrust to the heart of the Thing, it’s not Luke putting one right down the throat-vent of the Imperial Death-Star, but it’ll take a bite outta this Thing at least.

In Para. 11 the Court admits that even when it did hold that the SORNA requirements were only ‘remedial’ and not ‘punitive’, there were still a couple of elements that suspiciously smelled of punitive-ness:  the SO laws were placed within the State’s criminal code and a violation of them resulted in a criminal offense**.

In Para. 12 the Court generously admits the role of Justice Lanzinger who had Dissented in prior cases upholding the constitutionality of the sex-offender laws: she had written that the rules had changed by becoming more onerous.

And in Para. 13 you are treated to a full broadside of her assessments: First, “the label ‘sexual predator’ is now permanent for adult offenders, whereas previously offenders had the opportunity of having it removed.
Second, “registration duties are now more onerous and are no longer comparable to the inconveniences of renewing a drivers license”.*** “Persons classified as sex-offenders must now register with the sheriffs of the counties where they reside, work and go to school. Sex predators must now register with potentially three different Sheriffs every 90 days, which is hardly comparable to the slight inconvenience of having one’s driver’s license renewed every four years.”
Third, “community notification has now expanded to the extent that any statements, information, photographs, or fingerprints that an offender is required to provide are public record and much of that material is now included in the sex-offender database maintained on the Internet by the attorney-general. In [an early sex-offense case] we considered it significant that the information provided by sex-offenders to sheriffs could only be made known to a restricted group of people”.****
Fourth, “new restrictions have been added … [a rule approved by the General Assembly in July 2003] prohibits all classified sex offenders, not just those convicted of sex offenses against children, from residing within 1,000 feet of any school premises”. *****

And fifth, “A sheriff is now permitted to request that the sex-offender’s landlord or the manager of the sex-offender’s residence verify that the sex-offender currently lives at that address”. Quoting applicable Ohio law, she notes that this task may be done by “any sheriff or designee of a sheriff” [italics mine]. I note here the huge and dangerous loophole this opens: for entrepreneurs or – which is worse? – ‘advocates’ or ‘watchdogs’ to get themselves designated by a sheriff and start fanning out to whatever purposes their particular plan drives them. Especially since the same law specifically and explicitly puts no limit whatsoever to the number of times such a visit by such an inquirer may be made; it is hardly impossible to imagine a landlord evicting a resident simply because there have been too many (deliberately so?) ‘visits’ and it’s easier for the landlord to be rid of the tenant and thus the ‘official’ inquirers. We approach in this some dark and queasy place that represents not ‘progress’ but ‘regress’ in American and Western law.

She continues in Para. 14: “While protection of the public is the avowed goal of [the Ohio sex offense law], we cannot deny that severe obligations are imposed on those classified as sex offenders. All sexual predators and habitual sex offenders are expected, for the remainder of their lives, to register their residence and their employment with local sheriffs. The stigma attached to sex offenders is significant, and the potential exists for ostracism and harassment, as the Cook court recognized.” I note that it was precisely this point that the Poritz court (New Jersey, 1995, upholding the original Megan’s law there) pooh-poohed as being a possibility unworthy of the citizenry – although it was clear even then that the citizenry had been whipped to a frenzy and deliberately (and somewhat untruthfully) so.

“Therefore”, she concludes, “I do not believe that we can continue to label these proceedings as ‘civil’ in nature”.

In Para. 15, Justice Pfeifer, writing for the Court, nails it: “Following the enactment of [the Ohio effort to conform to AWA-SORNA] all doubt has been removed: [the Ohio AWA-compliant sex offender law] is punitive.” [italics mine]

In several following Paragraphs the Opinion compares how Williams would be treated under the original Megan-type system (which I still consider to be constitutionally and conceptually and morally atrocious itself), under the post-Megan but pre-AWA modifications, and then under the full-blown AWA-compliant modifications enacted in S.B. 10.

And in Para. 20 Justice Pfeifer observes that “no one change compels our conclusion that S.B. 10 is punitive. It is a matter of degree whether a statute is so punitive that its retroactive application is unconstitutional”. But again, nice as it is to hear that they don’t approve of the Ohio AWA legislation, I am not comfortable with this idea that a statute can be punitive but still that’s OK so long as you don’t make it retroactive. Isn’t it punitive – and excessively so – for all those who get caught up in its toils now (i.e. there is no ‘retroactive’ dimension)? Isn’t this entire approach and scheme and Regime lethally anti-constitutional to begin with? (I mean … if you take the American Ethos, and not the French Revolutionary or Soviet Revolutionary visions, as your basic starting point. Which is probably another Post all its own.)

In Para. 21 he asserts in his Conclusion that “The General Assembly has the authority, indeed the obligation, to protect the public from sex offenders”. Yes-but. Depending on whether you’re starting from the American, the French, or the Soviet Vision and Ethos, you get verrrrrrrry different values and operational definitions for the terms ‘authority’, ‘obligation’, and ‘protect’.

And THIS is THE vital and huge Question that lies at the base of not only the SO Mania Law and Regime, but also the Victimist ‘reforms’: granted that such and such a problem exists, but can it be addressed by the American Ethos and yet still have that Ethos and that government remain genuinely American? (This is a variant of Hannah Arendt’s observation in regard to the Eichmann trial that was discussed in the immediately prior Post: how far can a Western government go in addressing Nazi crimes without descending into Nazi-like actions itself?)

I think Justice Pfeifer is giving too much away here in Para. 21, but I don’t blame him for starting the problem. Since the inception of the SO Mania two-plus decades ago, this Question is the elephant in the middle of the room that nobody has talked about – and that the ‘reformers’ and ‘supporters of the SO Mania’ wanted to stampede everybody by before anyone had a chance to think about it: How and how far can the American government go in ‘protecting’ and ‘preventing’ and still remain the American government (rather than simply behaving for all practical purposes like the French Revolutionary or Soviet government, but under the disguise of the familiar old Constitutional pieties)?

Now this is a political hot-potato. Because this Protection-and-Prevention trope is the centerpiece and efflorescence of Victimist law and the more radical or core versions of Law as it serves the Feminist Agenda. And nobody has wanted to suggest that those still politically-connected advocacies are actually introducing as ‘progress’ and ‘reform’ legal changes which are compatible only with the French-Revolutionary or the Soviet legal universes and not with the fundamentally and genuinely American legal universe and its ethos and Vision.

But I am suggesting that this Question must be posed. And I would also point out in support of my thought that in this nation’s foreign policy in the past two decades We have seen essentially French Revolutionary or Soviet principles and practices declared to be as American as apple pie: Preventive war? Torture? Abduction without warrant and across international borders? Invasion and occupation for the purpose of Liberation or simply regime-change? Imprisonment upon the mere declaration of government executive authority? And such imprisonment to be of unlimited duration? Arrest or abduction merely on the say-so of a party who may well have an interest in eliminating the accused? No possibility of habeas corpus or judicial review of one’s imprisonment? (Somewhere in here I think a line was crossed into Nazi vision and ethos.)

Yet I would say that We have seen all of these repellent and genuinely anti-American principles and practices presaged in the SO Mania Regime and its older twin the Domestic Violence Regime, and in the fundamental principles, visions, objectives, and universes of Victimist law.

So I am very pleased with the courage shown by the Ohio Supreme Court (it had two Dissenters who basically say that There isn’t any real change to stuff we’ve already said was OK). But there is a long long way to go. Because whether the government cash runs out or not, the most profound damage has been done to the genuinely American universe of legal and political values, and it has all been done ‘in secret’, under the cover and pretext of ‘reform’ and ‘change’ when really it has been a steady flow of corruption and decay in the vital Ideals of the American Experiment.

We can’t hide from that awful reality forever. Or for much longer.


*Current US House Bill H.R. 2596, in Title II,  proposes a budget for the Justice Department. (See here for link to Bill’s linked subheadings; scroll down to ‘state and local enforcement assistance’ and you will see in subheading “(25)” that out of 437 billion dollars or so allotted to the Justice Department, 9 million is allotted to “assist State and local law enforcement to locate, arrest, and prosecute child sexual predators and exploiters, and to enforce sex offender registration laws”. Whether this represents all of the monies ‘available’ (whatever that means in terms of today’s government budget realities) to keep this Thing going, or whether there are other pots and crannies where monies can be hidden for it, or whether this is just a desperate government’s last Grand Deception to keep it’s ‘bases’ happy … is anybody’s guess. You can look at the entire Bill here .

**This is similar to the Domestic Violence Regime’s sly conceit: to be deprived of property or relationships or assets merely on the say-so of another person is only ‘civil’, although the Court Order so depriving you carries a criminal penalty if you disobey it. This is the type of slyly lunatic Red-Queen legal ‘reasoning’ that virtually screams ‘Going through the looking-glass!’ like a warning buoy’s whistle near the rocks on a dark and stormy night.

***This particular ‘drivers license’ excuse always struck me as repellent: nobody could mind being publicized as the practicing holder of a drivers license. But to be publicized as a ‘sex offender’, given the huge elasticity of the definition and the potent poisoning of the public’s mind by government and determined advocacies alike and abetted by sensationalist and cash-hungry media … THAT wasn’t at all the same thing as renewing a drivers license. I would also say that while a drivers license is a privilege, a good name and reputation are a right that, if not enshrined in the Constitution was omitted merely because it was beyond the imagination of any Framer that any US government or official would ever imagine that the government had any right to fatally and deliberately damage it.

Nor can you make a case that SORNA was the equivalent of a doctor convicted of malpractice having his license to practice revoked and having that information put up on the special state website for Doctors’ Information. While malpractice is narrowly and specifically defined, and the registration would only prevent an un-credentialed doctor from practicing illegally in the State, the SO Registry effectively wrecks residence, employment and educational opportunities, and prevents any significant or substantial amount of social interaction at all. And while a malpractice finding does not impugn a doctor’s essential personhood or cast into doubt his/her inclusion among the ranks of human beings and Citizens, naming anybody officially with the ‘Sex Offender’ or ‘Sex Predator’ label constitutes nothing less than a government-approved (and, treacherously, abetted) denial of that person’s essential humanity and the ability and right to further conduct a human life. And a national registry (or linked-registries) simply amplifies any State’s labeling across the entire nation.

****I would add here that there is a lethal and large probability that in an age of interlinked government databases all sorts of nasty mischief could arise, especially since information is now exchanged almost automatically between ostensibly unrelated systems with no notification to the individual concerned (consider, for example, the whole Homeland Security network and its tentacles). And this doesn’t include the myriad possibilities of internet entrepreneurs who either buy or hack information (accurate or not) and then deploy large search-engine programs to ‘track’ a targeted name or social security number or what-have-you.

*****And again, you see here the nonsensical paths that these malevolent Mania energies will take when un-boundaried by rationality or actuality: a non-child-oriented sex-offender is not going to have any SO-relevant interest in ‘children’. Yet in the public mind and in public Law there is nothing but a vast fused, molten mass of un-truth, anti-truth, half-truth, and fear-driven phantasmagoria, all shrewdly abetted and endorsed by government and amplified by media.


I want to invite your attention to an Amicus Brief filed on behalf of George Williams by the Texas Association Against Sexual Assault; the text is here (L8). Although I haven’t had enough chance to read all the supporting Filings in this case – and there are several Amicus Briefs for George Williams – this one caught my eye for obvious reasons: if even the advocacy groups are sensing that the Mania has gone too far for too long and is achieving nothing, then that is certainly a development to be carefully considered.
The point that immediately strikes me is this: if this Filing represents even a significant fraction of the advocacy assessment and opinion of sex-offense laws, then what pressures existing in the overall Mania mix resulted in the mess that is AWA?

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