MASSACHUSETTS AND ADAM WALSH ACT

In a clear example of electoral politics and the SO Mania, there is a push on now in the last week of that State’s legislative session to bring Massachusetts into AWA compliance.

Yesterday, the Boston Herald, sort of the tabloid-y alternative to the clearly liberal Boston Globe, ran a highly and selectively slanted piece announcing that a “silly policy shelters offenders” in big bold type. The 'offenders', as the story itself goes on to demonstrate, are sex-offenders.

As you might already have imagined, the fact that the Herald strikes an anti-‘liberal’ pose doesn’t prevent it from playing the Sex-Offender card; since the paper affects a populist or ‘blue collar’ pose, then it can play to law-and-order and ‘family concerns’ and can do so in an assertively red-blooded way, and not in any whiney ‘liberal’ way.

Not that it makes much of a difference.

Possessed of a strong State Constitution that dates back to 1780 (and thus can be considered the oldest written constitution still in force on the planet), Massachusetts (henceforth: ‘MA’) was able to retain at least some significant procedural protections during the formative years of the SO Registration Mania, even though the state was home to major contingents of both blue-collar ‘family’ folk and a formidable array of ‘liberal elites’ resident in its many universities as well as significant Knowledge-&-Service economic new-rich elites.

Thus any Citizen of the Commonwealth convicted of any sex-crime (that elastic and ever-expanding category) had the right to appeal his classification as a Level 1, 2, or 3 offender (3 being the most dangerous) at a Hearing conducted on the authority of the state’s Sex Offender Registration Board (SORB). And further appeal of classification was possible to the state courts.

Given the political demographics, it has probably been the State Constitution more than anything else that has kept some of the more advanced Mania whackery at bay – including the presumptions and regulations of the Adam Walsh Act (AWA) of 2006.

But there are several levels of politics at work at this point. First, the state’s governor is a Democrat and all Democratic governors are no doubt being pressured into helping make the White House look good and play to certain ‘bases’ in a difficult election year by trying to bring their states into compliance with AWA (a dubious dignity for which most States have declined to apply). This is especially true since one of Congress’s most rabid SO Mania legislation supporters is now chairperson of the Democratic National Committee (Rep. Debbie Wasserman Schultz, of FL).

Second, the state’s governor is himself black, and has evinced an interest – as have other recent governors of the Commonwealth - in spring-boarding from the drudgery (and increasingly onerous responsibility) of elective office to some nice appointment in the upper echelons of the government.

So bringing MA into AWA compliance would be a nifty two-fer.

The Herald’s take on AWA is that hundreds of thousands of dollars in federal law-enforcement monies are being lost because the state is not AWA-compliant. It has lost $322,000 this past year and stands to lose more. But the paper says nothing about the huge amounts of tax-money that it will cost the state to administer a vastly expanded, AWA-compliant regime in perpetuity.

The co-chairman of the state’s legislature’s Joint Judiciary Committee, however, has been holding up the Bill submitted by the governor in June of 2011, because “as submitted [it] is blatantly unconstitutional” and its “crimes and penalties don’t match Massachusetts law”.  No rationally-grounded lawmaker or attorney could disagree. The chairman (Eugene O’Flaherty, a Democrat) worries about “privacy protections”, among other things. He wants to do some “tweaking” because he isn’t sure that Level-2 SOs should have their information posted online. *

But “that’s just a silly argument” and “it’s nonsense” says local SO Mania child-protection advocate, the former Assistant DA and now law-professor (at an – ummm – non-first-tier local law school), Wendy Murphy. Murphy – it may be recalled – has crowed loudly over various victim-friendly reforms, asserting cheeribly at one point that she was pleased as punch that “lack of evidence” no longer stood in the way of getting “justice” for children. How any legitimate Western and Constitutional form of “justice” can be achieved without solid evidence is a Question that does not concern her.

The state only posts its most-dangerous, Level-3 SOs online (assuming that the Level-3 classification accurately described that individual); AWA would have all SOs posted online, with a hugely expanded panoply of personal information.

The article mentions none of this.

It does, however, assert that “the record is deep with previously convicted Level 2 sex offenders, accused of committing later sex crimes”. And – in a now-classic move – the paper gives three particularly vivid examples (and – slyly – no overall numbers or stats).

Additionally, the first example is for a Level-2 convictee now (merely) indicted for multiple counts of child-rape of a 13-year old daughter of a friend. Another received two years in 2007 for “multiple counts of indecent A&B on a person 14 or older” – which seems a remarkably light sentence, although the definition of “indecent A&B” and the age (somewhere over 14) might hold more information than the paper finds it convenient to report. A third was sentenced to 10 years for a parole violation: found guilty of child-porn offenses, “he asked an elderly neighbor to hold onto DVDs, tapes and a computer with depictions of adults raping children”.

Curiously, the paper reports that the state missed “last year’s deadline” to comply with AWA. Yet the 2006 AWA allowed a three-year window for states to conform and, subsequent to that July 2009 deadline, for only two extensions, each of one-year, the last of which expired in July of 2011. Last year’s was the ultimate final deadline – and most states chose to give it a miss. You can review an extensive list of difficulties and objections  in regard to AWA here . You can review the Massachusetts Committee for Public Counsel Services 2008 letter to the governor listing the difficulties with conforming MA to AWA here .

But it’s a tough election year and the governor would no doubt prefer to be a little further from the front-lines as the economy threatens to put all public officials at state levels on a very uncomfortable hot-seat. And the White House needs all the ‘bases’ it can attract, inveigle, or seduce.

The Governor tried to float this Bill in 2008 (see that Letter to him explaining the problems with it just linked-to above). The legislature did not go along with it.

Now he’s trying it again, claiming that the AWA deadline is July 27, 2012 – whereas the last AWA deadline expired in 2011. (Although at this point the feds may be willing to cut any deals that any State can come up with.)

But the new version of the Bill (see here for text ) is – the Governor claims – adjusted to be AWA-compliant while also not violating the State Constitution.**

But that’s not possible. A major problem with the basic AWA scheme is that there is no leeway for any state’s sex-offender review board or agency to make an independent assessment of an individual’s eligibility for Registration (or not) nor is there much leeway for assignment of a Level-status. The Governor’s Bill will simply pay lip-service to that vital step in the MA process while removing all of its actual authority to make an independent determination.  The whole ‘justification’ for the AWA scheme is precisely that it will ‘correct all the discrepancies’ among the states as to how they classify SOs by imposing a one-size-fits-all approach from the top-down.

And – as the legislators now realize (although the Herald prefers not to talk about it) – the law-enforcement monies the State is losing are nothing compared to the financial burden that the State will saddle-itself-with in the long run. (The feds may try to neutralize this huge problem by promising more money to States to administer compliance, but I doubt that the feds can cover the whole expense for all States and – alas – if the feds run out of real money then that deal will be off and the States will be left holding the bag. And state legislators, I think, now realize all that.)

So we’ll see how this plays out. Here’s hoping the legislature sticks to its guns. AWA is one giant step toward the precedent of a police-state – and nobody wins if that happens.

NOTES

*Even the Massachusetts 3-tier system is a blunt analytical instrument, when you get right down to it. Level-1 is pretty much reserved for those caught urinating in the woods at night and such; Level-3 is for the most heinous and/or dangerous and the most probably recidivist SOs. Which leaves Level-2 for everybody else – and that’s a sizable and widely-varying bunch of registrants, with not a few of them shading much closer to Level-1 than to Level-3’s classic Monster Sex Offender.

**I can’t help but recall an exclamation that LBJ once made about one of his Great Society laws that got the Beltway into verrrry bad habits and has now become a standard political axiom: “Hell, just pass the damn thing and we can go back and amend it later”. If AWA is any example, passing a badly-conceived law on the pious hopes of ‘fixing it’ later on down the road is not the way forward for any intelligent and sober legislature to go. And that has only become more true as the national political discourse has passed out of the control of the legislators and all sorts of ‘special interests’ now deploy their selective ‘narratives’ far and wide, manipulating and even stampeding public opinion in bursts of carefully-calculated irrationality.