An article today reports on an interesting Opinion by the Massachusetts Supreme Judicial Court (SJC).
A homeless sex offender was found by a hearing judge to be in violation of his probation because he could not find a shelter that had the connections that would enable him to re-charge the GPS unit that he was required to wear as a condition of probation.
He appealed that violation-finding to the SJC. The case is Commonwealth vs. John. J. Canadyan, Jr., SJC-10669.*
As is my practice, I’ll just make comments on what I see as significant bits in the text.
Mr. Canadyan (DFDT) was sentenced to 18 months confinement and 5 years probation after pleading guilty to 2 counts of Indecent Assault and Battery on a Child Under 14. He was released from confinement in December 2008, and in March 2009 was declared to be in violation of his probation conditions as a result of not being able to secure housing that would permit re-charging of his GPS device.
(I note here that the offenses to which he pled guilty were sufficient to classify him as a Level 3 offender and trigger the statutory GPS requirement.)
He requested a Hearing, held on March 24, 2009, at which time the Probation Department advised the Hearing Judge that alternative arrangements for re-charging had been made in his case. Nonetheless, the Hearing Judge found him in willful violation, citing his failure to find employment. Although he had made efforts to find employment, and the Probation Department seemed sympathetic to his situation, the Hearing Judge declared that his efforts were insufficient for employment that was required in the context of probation conditions, and required him to make two certifiable efforts per day to do so.
DFDT appealed to the SJC for direct appellate review and it was granted. DFDT only appeals the finding of violation and not the other requirements.
Let me say here that the SJC in this State has not always impressed me. It’s most recent significant performance was last January’s highly dubious rejection of former-priest Paul Shanley’s request for a new trial, citing grounds of judicial deference to the established science of the Diagnostic and Statistical Manual in the matter of ‘recovered/repressed memory’ – although other Courts, including the US Supreme Court, had declared that judges need not consider themselves bound to consider that (hugely dubious) ‘diagnosis’ as solidly established scientific fact. (The gravamen of the Shanley case consists of pretty much nothing else but alleged recovered-repressed memories.)
Worse, the SJC released its rejection on the Friday afternoon before (the following Tuesday) special election to fill a vacant US Senate seat; the Democratic candidate was the State’s female Attorney-General, who had made quite a record in prosecuting sex-offenses and supporting various elements of ‘victimist law reforms’. In the event, the Republican candidate won, leaving the SJC with a palpable dent in its integrity.
But that was then.
Thus to this Opinion.
The Court notes that evidence has been introduced to the effect that it is extremely difficult for homeless sex-offenders under a GPS mandate to find shelters with the necessary phone-line or even electrical circuits to handle the GPS equipment. It also notes that DFDT had made sufficient effort – and the Probation Department did not disagree – to try to find appropriately equipped housing such that he could not be considered to be willfully homeless in order merely to avoid the GPS tracking.
It notes also that DFDT “had been given an extended deadline to work out this problem”. Which, with all due respect to the SJC, approaches the ludicrous, akin to saying that a defendant had been generously given extended time to figure how to walk on water or pass through solid walls: given the Mania and the numerous housing restrictions imposed on SOs (especially if classified, for whatever reason, as Level 3, the highest and putatively most dangerous Level), then no human being in such a situation is going to be able to find the housing.
In DFDT’s case, his daughter had offered her home but since she had children under 18 her home was legally disqualified, his sister lives in Europe, and his brother lives in another State (Michigan) which politely opined that he would not be acceptable as a resident – even under GPS monitoring – there.
With a refreshing candor the SJC notes that “The facts and circumstances of this case bring more fully into view a tension between mandatory GPS monitoring of sex offenders released on probation, see G.L. c. 265, § 47, and the practical reality of homelessness--a circumstance facing an increasing number of former sex offenders”.
This is a small but real bit of progress, especially when you consider the pie-in-the-sky Op-Ed dampdreams that were delivered from the Bench in the 1995 Poritz case in New Jersey, where that State’s high court sniffed that it would be ungenerous to imagine the probability that SOs would be placed under almost-impossible strains in trying to re-integrate into the community (that had already been whipped up by the assorted elements of the Mania). Surely, that Court bleated, the public could be trusted not to go overboard – although since the Sex Offender was painted as such a horrible and incorrigible monster, you had to think that Pollyanna and the Red Queen had both joined in the Opinion or at least filed Amicus Briefs for the State.
I also note that it is gratifying to see the SJC refer to “former sex offenders”, which is another small but substantive straw in the wind now. Previously the SO had been consider as unable to change his ‘nature’ as a vampire (Joss Whedon’s ‘Angelus’, the vampire-with-a-soul in the TV show ‘Buffy the Vampire Slayer’, had yet to make his screen debut, not that I think it would have made much difference back then).
In Footnote 7 the SJC observes that both employment and housing agencies (not particularly SO-friendly) “provided substantial evidence about the extraordinary obstacles facing sex offenders attempting to secure employment”.
While the SO laws, the SJC asserts, “plainly serve a public purpose, they also affect the ability of former sex offenders to reintegrate into the work force and into the community”. And who can deny it?
But, not without reason, the SJC notes that “This larger problem is not one that can be, or need be, solved in this case”. The SO Mania Regime laws are now so deeply and broadly enmeshed that no single Court can be expected to fix things, and – in this case – the SJC takes the careful road and doesn’t attempt to.
The Hearing Judge was declared to be in error by finding that DFDT had not made sufficient efforts to comply with the State-imposed conditions of probation.
The Hearing Judge further erred in finding “that the defendant had violated the GPS condition of his probation by not, in the judge's estimation, making sufficient efforts to find employment. Securing employment was not a condition of probation”. In other words, the State cannot make as a condition-of-probation an outcome over which the SO would have no control. Which is a refreshing bit of logic in a Mania Regime not known for its logic.
Thus, the SJC decides, “For the reasons stated, we set aside the finding that the defendant violated the GPS monitoring condition of his probation. So ordered.” I have to say, it’s nice to see that type of conclusion.
In the Footnotes (FN) the SJC also makes two other interesting points.
In FN 8 the SJC acknowledges and accepts that somewhere between 65-74 percent of Level 3 SOs are homeless. And who could be surprised?
But even more remarkably, in FN 10 the SJC states frankly and clearly that “Throughout the proceedings, the [Hearing] judge was both dismissive and condescending in her treatment of defense counsel, the evidence ably presented on the defendant's behalf, and the defendant's circumstances. Such demeanor creates an unacceptable appearance of bias and partiality.” [italics mine]
Now this is an impressively decent observation, and deserving of a bit of recognition, since you don’t often see this sort of thing coming from the Bench, especially from so high a court.
But so much remains to be done.
Let us continyuh!
NOTES
*To access the short text you can go to the Mass Reports site here; then under ‘Slip Opinions’ click on the ‘Opinions’ link; that will give you a current list and the text of this case is Number 2 on that list, and you click on it. BUT if you do this after a certain period of time, then the Opinion is no longer new; in that case, just go to the Mass Reports site home page and click on ‘Opinion Archive’.
Showing posts with label GPS tracking. Show all posts
Showing posts with label GPS tracking. Show all posts
Wednesday, December 22, 2010
Thursday, August 20, 2009
“COMMONWEALTH v. CORY”
“COMMONWEALTH v. CORY”
I covered a number of the points when discussing the news report in the Post prior to this.
Here I’ll just point out some of the highlights from the text of the Opinion itself.*
The Court concludes that the Massachusetts law requiring any sex-offender placed on probation to wear a GPS during that probation period “to be punitive in effect, and under the ex post facto provisions of the United States and Massachusetts Constitutions, may not be applied to persons who are placed on probation for qualifying sex offenses before the statute’s effective date”.
This is a heartening conclusion. The finding that it is “punitive” – even if only in effect and not on its face and by its very nature – goes to one of the core issues in SO legislation: it is indeed “punitive” and not simply “regulatory” (like being Registered for a barber’s or doctor’s or driver’s license).
The other core issue is whether sex-offenders as a general class are indeed so uncontrollably and almost universally prone to a compulsive recidivism that the State can claim any legitimate and rational ‘compelling interest’ in forcing them to be Registered at all. But that will have to wait for another day.
The Court recites the facts of the case. And let me say here that if a defendant has indeed committed a heinous assault on a child, then he has to deal with that, and be dealt with within the framework of law. But a couple of points here as well.
First, this was a charge of Indecent Assault and Battery on a child under fourteen. I don’t know the age, and the Indecent Assault and Battery charge conceptually covers a broad range of actions, from the plain-meaning of a sexual attack to something far less assaultive, that may not have even required a clear knowledge and criminal intent. I’m not trying to make excuses here, but one simply doesn’t know – and in matters sex-offensual, with those numerous fluid and generalized definitions of proscribed acts, it is wise to get the facts before forming a final impression.
Similarly, this defendant violated his parole by not attending counseling and treatment programs. Again, there are more possibilities than meet the eye. Of course, this fellow may simply have refused to ‘get better’. Then again, and especially in light of what may have been a conviction offense on the lower end of that Indecent Assault and Battery spectrum, he may have not seen the need. Or perhaps, if somewhat professionally informed, he may have judged that the programs on offer could do little (sex offense ‘therapy’ is only modestly more advanced than some of the original sex-offender ‘science’).
Whatever the case may be in this individual instance, I am not here trying to make excuses, but rather to point out how torturous the ground is in this entire area of SO legislation and sex-offenses; the wise field commander will not leap to conclusions that may yield a substantially inaccurate impression of the ground. (Such easy assuming was part of what led to the military situation in Iraq and – most likely – in Afghanistan.)
The Massachusetts law in question in this case requires that any person be fitted with GPS when on probation “for any offense listed within the definition of ‘sex offense’, ‘a sex offense involving a child’, or a ‘sexually violent offense’ as defined [by statute].”
First, this law requires that all sex offenders on probation be so fitted. Again, it is the grossly exaggerated ‘science’ that originally gave us those huge ‘recidivism’ figures which initially enabled the various legislatures to cast so broad a net in the first place: all sex offenders were believed to be highly likely to reoffend, and to be incurably compulsive and consequently unable to control themselves or their urges. And it was this same ‘science’, its figures luridly amplified in the media, which stampeded public opinion into imagining that the citizenry were, indeed, under permanent assault by sex-addled, zombie-like creatures (who, of course, might also appear as smooth and nice and well-adjusted, rather than leering, slavering, and gibbering with sexual anticipation).
Which as a schematic reminds me, by the way, of Anne Rice’s conception of the vampire community: there are the slavering, un-evolved primitives who lived like feral animals in cemeteries, feeding on any creature they could find, or on the bodies of the dead; but then there were the cultured and tasteful and – as it were – maturationally evolved vampires who were perfectly capable of ‘passing’ for human, went out into the world and even into high society, such as the vampire Lestat. This is disturbing: is it conceivable that the founding vision of the SO laws and the SO regime – which has wreaked so much havoc when adopted as the official policy of the national and State governments - took its shape from a pop-fiction (and film) fantasy about monsters?
Interestingly, the Court cites a 1981 Federal case (Weaver v. Graham, 450 U.S. 24, 31) wherein that Court states in definition that “a law is retrospective if it ‘changes the legal consequences of acts completed before its effective date’”. But of course, the SO laws – especially the Megan’s Law that was the initiating cause of Doe v. Poritz – were shrewdly drawn so as to appear non-punitive and ‘merely regulatory’. So that, they hoped folks would believe, increasing sex-offense consequences would be seen as nothing more than a State changing the minimum age to operate a motor vehicle, or even the amount of the renewal fees for licenses and registrations. It is a sad commentary on the media as well as the legislative and judicial elements, that such a phantasmagoric legal fiction could be accepted seriously for so long.
But then, in a time of public mania, if you point out anything that might cast doubt on the fact that the mania is indeed a mania – no matter how highly placed in societal authority – you could wind up tarred and feathered yourself. That’s how these mania dynamics work. Many good and intelligent people went to the guillotine in The Terror in France precisely because they were trying to call folks back to their senses. But the folks were stampeded. And the Jacobin revolutionaries themselves, now in power, very much wanted the stampede to continue.
In considering whether the GPS law is intended as a ‘civil’ or a ‘criminal’ statute, the Court winds up cataloguing a number of jurists in assorted cases over the years who have not considered the SO laws to be clearly and simply ‘civil’ (or ‘regulatory’): Justice Souter, in that key case of Smith v. Doe, who considered the nature of Alaska’s SO laws “to be in rough equipoise” (meaning it’s a 50-50 toss whether they are ‘criminal’ and ‘punitive’ or not); Justice Ginsburg, concurring with Justice Souter in the same case, that whether the Alaska law was regulatory or penal was “unclear”.
These sex-offender laws have never enjoyed enjoyed a total and inevitable and unassailable legal security; in many of the cases – alas – it is the Dissenting Justices who saw most clearly, but now that a period of years have accumulated (6 for Smith v. Doe, 15 for Doe v. Poritz, for example) it is possible to see how the several courts’ conclusions have held up, especially in the light of further research.
And if memory serves, it was Justice Thomas, Concurring in Kansas v. Hendricks which upheld the constitutionality of Kansas’s civil commitment for sex offender law in 1997, who said in effect that of course, if there really is no therapy available for these offenders, then the entire civil commitment scheme collapses constitutionally. And while there have been some glimmers of light in the therapeutic field, nothing like a reliable therapy exists.
Which, as I have always held, may stem not from the radical incorrigibility of the allegedly afflicted offenders, but rather from the fact that there actually is no full-blown and florid sex-offender ‘disease’ for which a therapy or a ‘cure’ could be devised. The assorted States’ legal solution has been to require a ‘mental abnormality’ or a ‘personality disorder’, but the former term is so vague as to be useless and the latter condition in some form and at some level of severity can be said to afflict a major fraction of the citizenry at any given time.
The Court goes on to assert that the GPS scheme most certainly does constitute a “limitation or burden on liberty”, and in two ways: “by its permanent physical attachment to the offender, and by its continuous surveillance of an offender’s activities”. I can only agree. But I repeat my belief that courts must allow themselves to examine the societal situation of a registered SO more broadly: it is not simply the GPS; it is the double whammy of being effectively told by your government that you are an eternal and incorrigible threat to your fellow citizens and then having your government broadcast that ‘fact’ to your fellow citizens.
Your own sense of self is lethally injured, and there is every likelihood that your own sense of self-confidence is profoundly damaged. Which in turn weakens you as you must face the monstrous array of mania-driven legal restrictions and public opprobrium that will most likely include any chance to conduct a life of Work and Relationship within the civic community.
As I have said, any outside observer would have to wonder just when the legitimate terms of the social contract can be said to have been abrogated, by the government. Rome and the old South, to take two examples, were profoundly weakened by their ongoing fears of those in their midst whom they had effectively and legally disenfranchised. Those same dynamics must be considered at least a possibility here. Although one can only hope that the nation and the Citizenry will recover their sense of balance, either following or leading their governmental authorities back to a saner course of policy. The vast majority of those convicted of a sexual offense are not ‘sex offenders’ in the sense of the mania imagery, and have never ceased to be members of the American civic community.
The Dissent, joined by two other Justices, gives some indication of the state of things.
First, it disagrees that the “statute is penal”. It considers that even though the legislature did not say clearly in the law that it intended the statute to be ‘civil’, yet “I do not agree that the legislative intent was so unclear that we cannot conclude that the intent was regulatory and remedial”. This is very much the approach of precedent, that a court will base its decisions in great part on prior decisions of other courts in similar matters. In that sense, Doe v. Poritz in 1995 set in train a lethal course of events, since other courts also faced with the novel SO legislation almost immediately took to repeating the justifications that the New Jersey Opinion so helpfully provided.
The Dissent bases itself in the possibility that these laws can result in rehabilitation – theoretically, at least – as well as the protection of the public [from the compulsive sex-offender monster]. While the hypothesis is legitimate as a pure exercise in logic, yet it bears little relationship to the actual state of affairs in matters of sex-offense diagnosis and therapy, nor – as we know are seeing – to the actual nature of the sex-offender class, such as it is.
Further, the Dissent falls back on this Court’s own Opinions in prior cases: “Both the Legislature and this Court have recognized that sex offenders represent a serious threat to the public and have a high rate of recidivism”. Here you see the problem that the earliest laws and cases created: those Legislatures and Courts accepted the hugely-flawed ‘Facts’ presented to them by advocacy ‘research’, which precedents were then followed by other Legislatures and Courts, which as the mania spread came to include all the Legislatures and Supreme Courts of the States, as well as the national Legislature and the Supreme Court, so that now any Court (or Legislature, if any of them have the political courage) that tries to make a course correction has to confront its own previous acceptance of the flawed ‘research’ and ‘science’.
Yet, clearly, Massachusetts’ Supreme Judicial Court was willing (by a 4-3 vote) to do so.
And clearly, the reconsideration of all of the original ‘high recidivism’ and ‘incorrigible compulsion’ Findings of Fact can only lead to substantial change. The Massachusetts Court itself is soon to hold a Hearing as to a prior conviction based largely on ‘recovered memory’.
The Dissent asserts that “protecting the public from sex offenders is a nonpunitive objective”. Which might be true as stated, but implies a plan that can only wind up being punitive. After all, how go about protecting the public? By effectively ‘tagging’ or ‘yellow-starring’ everyone convicted (in a time of deliberately concocted national public mania) of a sex offense, with the result that such persons are deprived of the liberty to conduct any significant sort of employment or family life, or participate in the civic life of the community. And even more lethally, are tarred by their government as ‘incorrigible and permanent threats’ to their neighbors. Which information is amplified not only through the news media, but through the Internet and even commercial applications. How in all get-out is any of this genuinely characterizable as ‘nonpunitive’?
What more profound liberty is there than to be able to carry on a life – work and relationships – in a community of one’s peers?
And if the commission of – or at least conviction for – a crime is going to ‘justify’ the destruction of such liberty, then – as St. Peter asked – “who then can stand?”
The Dissent’s foregoing reasoning is the equivalent of saying that the Third Reich’s search for Lebensraum for its beleaguered Volk was a ‘nonmilitary objective’. Which might be true as stated, but which was an objective that required for successful achievement a most hugely military campaign. I can imagine such a defense being made at Nuremberg: we only sought to do good for our people. But alas for the Nazis, Hitler knew from the get-go that such an ‘objective’ would require aggressive war and never flinched from it, and built the German armed forces up to it, and left an irrefutable and inescapable written and filmed record of it.
Shrewdly, in the sex-offense legislation, the government Branches all avoid his mistake: from the outset they have claimed only the most benevolent objective, while studiously understating any overt discussion of what actual actions and policies would be required to achieve the objective. Which is a shrewd lesson learned from History. Here’s hoping that History keeps teaching. Which it no doubt will.
Thus the Dissent greatly undermines itself when it asserts that “the ‘most significant’ factor in determining that Alaska’s sex offender registration statute was not an ex post facto law, was its rational connection to the nonpunitive purpose of protecting the public from sex offenders.” Because if all the science of ‘high recidivism’ and ‘incorrigibility’ is and always has been mostly wrong, then there is no “rational connection”. And the “nonpunitive objective”, as I just noted above, is hardly anything less than lethally punitive in effect and inescapably entails a broad government assault of the most profound sort on individual liberty.
Thus the Dissent’s assertion that “the urgency of the regulatory concern of protecting the public from sex offenders” is sufficient justification for not condemning the SO laws as punitive does not correspond to any actual state of affairs. This entire line of justification, as it was set forth early on in Doe v. Poritz by a Chief Justice well-known for his partiality to such schemes and ‘objectives’, is a web of exaggerated facts, half-truths, and ungrounded assertions, all in the service of a novel (to America) legal philosophy that is itself, at the very least, hostile to the Constitutional vision and lethal to the continued existence of a genuinely democratic Republic.
Let’s not be deceived any further. Or any longer.
NOTES
*To get to the text of the Opinion follow these instructions: a) go to www.massreports.com/; b) that screen will give you click-options on your left-hand side of the screen – click ‘slip opinions’, which will immediately prompt you to choose ‘Supreme Judicial Court’ or ‘Appeals Court’ – click ‘Supreme Judicial Court’; c) that will lead to a screen containing the 9 or 10 documents from August 18, 2009 – you want Number 2 (the text of the Decision) and Number 3 (the Order).
The title of the case is COMMONWEALTH vs. Russell M. CORY. SJC-10314 August 18, 2009.
I covered a number of the points when discussing the news report in the Post prior to this.
Here I’ll just point out some of the highlights from the text of the Opinion itself.*
The Court concludes that the Massachusetts law requiring any sex-offender placed on probation to wear a GPS during that probation period “to be punitive in effect, and under the ex post facto provisions of the United States and Massachusetts Constitutions, may not be applied to persons who are placed on probation for qualifying sex offenses before the statute’s effective date”.
This is a heartening conclusion. The finding that it is “punitive” – even if only in effect and not on its face and by its very nature – goes to one of the core issues in SO legislation: it is indeed “punitive” and not simply “regulatory” (like being Registered for a barber’s or doctor’s or driver’s license).
The other core issue is whether sex-offenders as a general class are indeed so uncontrollably and almost universally prone to a compulsive recidivism that the State can claim any legitimate and rational ‘compelling interest’ in forcing them to be Registered at all. But that will have to wait for another day.
The Court recites the facts of the case. And let me say here that if a defendant has indeed committed a heinous assault on a child, then he has to deal with that, and be dealt with within the framework of law. But a couple of points here as well.
First, this was a charge of Indecent Assault and Battery on a child under fourteen. I don’t know the age, and the Indecent Assault and Battery charge conceptually covers a broad range of actions, from the plain-meaning of a sexual attack to something far less assaultive, that may not have even required a clear knowledge and criminal intent. I’m not trying to make excuses here, but one simply doesn’t know – and in matters sex-offensual, with those numerous fluid and generalized definitions of proscribed acts, it is wise to get the facts before forming a final impression.
Similarly, this defendant violated his parole by not attending counseling and treatment programs. Again, there are more possibilities than meet the eye. Of course, this fellow may simply have refused to ‘get better’. Then again, and especially in light of what may have been a conviction offense on the lower end of that Indecent Assault and Battery spectrum, he may have not seen the need. Or perhaps, if somewhat professionally informed, he may have judged that the programs on offer could do little (sex offense ‘therapy’ is only modestly more advanced than some of the original sex-offender ‘science’).
Whatever the case may be in this individual instance, I am not here trying to make excuses, but rather to point out how torturous the ground is in this entire area of SO legislation and sex-offenses; the wise field commander will not leap to conclusions that may yield a substantially inaccurate impression of the ground. (Such easy assuming was part of what led to the military situation in Iraq and – most likely – in Afghanistan.)
The Massachusetts law in question in this case requires that any person be fitted with GPS when on probation “for any offense listed within the definition of ‘sex offense’, ‘a sex offense involving a child’, or a ‘sexually violent offense’ as defined [by statute].”
First, this law requires that all sex offenders on probation be so fitted. Again, it is the grossly exaggerated ‘science’ that originally gave us those huge ‘recidivism’ figures which initially enabled the various legislatures to cast so broad a net in the first place: all sex offenders were believed to be highly likely to reoffend, and to be incurably compulsive and consequently unable to control themselves or their urges. And it was this same ‘science’, its figures luridly amplified in the media, which stampeded public opinion into imagining that the citizenry were, indeed, under permanent assault by sex-addled, zombie-like creatures (who, of course, might also appear as smooth and nice and well-adjusted, rather than leering, slavering, and gibbering with sexual anticipation).
Which as a schematic reminds me, by the way, of Anne Rice’s conception of the vampire community: there are the slavering, un-evolved primitives who lived like feral animals in cemeteries, feeding on any creature they could find, or on the bodies of the dead; but then there were the cultured and tasteful and – as it were – maturationally evolved vampires who were perfectly capable of ‘passing’ for human, went out into the world and even into high society, such as the vampire Lestat. This is disturbing: is it conceivable that the founding vision of the SO laws and the SO regime – which has wreaked so much havoc when adopted as the official policy of the national and State governments - took its shape from a pop-fiction (and film) fantasy about monsters?
Interestingly, the Court cites a 1981 Federal case (Weaver v. Graham, 450 U.S. 24, 31) wherein that Court states in definition that “a law is retrospective if it ‘changes the legal consequences of acts completed before its effective date’”. But of course, the SO laws – especially the Megan’s Law that was the initiating cause of Doe v. Poritz – were shrewdly drawn so as to appear non-punitive and ‘merely regulatory’. So that, they hoped folks would believe, increasing sex-offense consequences would be seen as nothing more than a State changing the minimum age to operate a motor vehicle, or even the amount of the renewal fees for licenses and registrations. It is a sad commentary on the media as well as the legislative and judicial elements, that such a phantasmagoric legal fiction could be accepted seriously for so long.
But then, in a time of public mania, if you point out anything that might cast doubt on the fact that the mania is indeed a mania – no matter how highly placed in societal authority – you could wind up tarred and feathered yourself. That’s how these mania dynamics work. Many good and intelligent people went to the guillotine in The Terror in France precisely because they were trying to call folks back to their senses. But the folks were stampeded. And the Jacobin revolutionaries themselves, now in power, very much wanted the stampede to continue.
In considering whether the GPS law is intended as a ‘civil’ or a ‘criminal’ statute, the Court winds up cataloguing a number of jurists in assorted cases over the years who have not considered the SO laws to be clearly and simply ‘civil’ (or ‘regulatory’): Justice Souter, in that key case of Smith v. Doe, who considered the nature of Alaska’s SO laws “to be in rough equipoise” (meaning it’s a 50-50 toss whether they are ‘criminal’ and ‘punitive’ or not); Justice Ginsburg, concurring with Justice Souter in the same case, that whether the Alaska law was regulatory or penal was “unclear”.
These sex-offender laws have never enjoyed enjoyed a total and inevitable and unassailable legal security; in many of the cases – alas – it is the Dissenting Justices who saw most clearly, but now that a period of years have accumulated (6 for Smith v. Doe, 15 for Doe v. Poritz, for example) it is possible to see how the several courts’ conclusions have held up, especially in the light of further research.
And if memory serves, it was Justice Thomas, Concurring in Kansas v. Hendricks which upheld the constitutionality of Kansas’s civil commitment for sex offender law in 1997, who said in effect that of course, if there really is no therapy available for these offenders, then the entire civil commitment scheme collapses constitutionally. And while there have been some glimmers of light in the therapeutic field, nothing like a reliable therapy exists.
Which, as I have always held, may stem not from the radical incorrigibility of the allegedly afflicted offenders, but rather from the fact that there actually is no full-blown and florid sex-offender ‘disease’ for which a therapy or a ‘cure’ could be devised. The assorted States’ legal solution has been to require a ‘mental abnormality’ or a ‘personality disorder’, but the former term is so vague as to be useless and the latter condition in some form and at some level of severity can be said to afflict a major fraction of the citizenry at any given time.
The Court goes on to assert that the GPS scheme most certainly does constitute a “limitation or burden on liberty”, and in two ways: “by its permanent physical attachment to the offender, and by its continuous surveillance of an offender’s activities”. I can only agree. But I repeat my belief that courts must allow themselves to examine the societal situation of a registered SO more broadly: it is not simply the GPS; it is the double whammy of being effectively told by your government that you are an eternal and incorrigible threat to your fellow citizens and then having your government broadcast that ‘fact’ to your fellow citizens.
Your own sense of self is lethally injured, and there is every likelihood that your own sense of self-confidence is profoundly damaged. Which in turn weakens you as you must face the monstrous array of mania-driven legal restrictions and public opprobrium that will most likely include any chance to conduct a life of Work and Relationship within the civic community.
As I have said, any outside observer would have to wonder just when the legitimate terms of the social contract can be said to have been abrogated, by the government. Rome and the old South, to take two examples, were profoundly weakened by their ongoing fears of those in their midst whom they had effectively and legally disenfranchised. Those same dynamics must be considered at least a possibility here. Although one can only hope that the nation and the Citizenry will recover their sense of balance, either following or leading their governmental authorities back to a saner course of policy. The vast majority of those convicted of a sexual offense are not ‘sex offenders’ in the sense of the mania imagery, and have never ceased to be members of the American civic community.
The Dissent, joined by two other Justices, gives some indication of the state of things.
First, it disagrees that the “statute is penal”. It considers that even though the legislature did not say clearly in the law that it intended the statute to be ‘civil’, yet “I do not agree that the legislative intent was so unclear that we cannot conclude that the intent was regulatory and remedial”. This is very much the approach of precedent, that a court will base its decisions in great part on prior decisions of other courts in similar matters. In that sense, Doe v. Poritz in 1995 set in train a lethal course of events, since other courts also faced with the novel SO legislation almost immediately took to repeating the justifications that the New Jersey Opinion so helpfully provided.
The Dissent bases itself in the possibility that these laws can result in rehabilitation – theoretically, at least – as well as the protection of the public [from the compulsive sex-offender monster]. While the hypothesis is legitimate as a pure exercise in logic, yet it bears little relationship to the actual state of affairs in matters of sex-offense diagnosis and therapy, nor – as we know are seeing – to the actual nature of the sex-offender class, such as it is.
Further, the Dissent falls back on this Court’s own Opinions in prior cases: “Both the Legislature and this Court have recognized that sex offenders represent a serious threat to the public and have a high rate of recidivism”. Here you see the problem that the earliest laws and cases created: those Legislatures and Courts accepted the hugely-flawed ‘Facts’ presented to them by advocacy ‘research’, which precedents were then followed by other Legislatures and Courts, which as the mania spread came to include all the Legislatures and Supreme Courts of the States, as well as the national Legislature and the Supreme Court, so that now any Court (or Legislature, if any of them have the political courage) that tries to make a course correction has to confront its own previous acceptance of the flawed ‘research’ and ‘science’.
Yet, clearly, Massachusetts’ Supreme Judicial Court was willing (by a 4-3 vote) to do so.
And clearly, the reconsideration of all of the original ‘high recidivism’ and ‘incorrigible compulsion’ Findings of Fact can only lead to substantial change. The Massachusetts Court itself is soon to hold a Hearing as to a prior conviction based largely on ‘recovered memory’.
The Dissent asserts that “protecting the public from sex offenders is a nonpunitive objective”. Which might be true as stated, but implies a plan that can only wind up being punitive. After all, how go about protecting the public? By effectively ‘tagging’ or ‘yellow-starring’ everyone convicted (in a time of deliberately concocted national public mania) of a sex offense, with the result that such persons are deprived of the liberty to conduct any significant sort of employment or family life, or participate in the civic life of the community. And even more lethally, are tarred by their government as ‘incorrigible and permanent threats’ to their neighbors. Which information is amplified not only through the news media, but through the Internet and even commercial applications. How in all get-out is any of this genuinely characterizable as ‘nonpunitive’?
What more profound liberty is there than to be able to carry on a life – work and relationships – in a community of one’s peers?
And if the commission of – or at least conviction for – a crime is going to ‘justify’ the destruction of such liberty, then – as St. Peter asked – “who then can stand?”
The Dissent’s foregoing reasoning is the equivalent of saying that the Third Reich’s search for Lebensraum for its beleaguered Volk was a ‘nonmilitary objective’. Which might be true as stated, but which was an objective that required for successful achievement a most hugely military campaign. I can imagine such a defense being made at Nuremberg: we only sought to do good for our people. But alas for the Nazis, Hitler knew from the get-go that such an ‘objective’ would require aggressive war and never flinched from it, and built the German armed forces up to it, and left an irrefutable and inescapable written and filmed record of it.
Shrewdly, in the sex-offense legislation, the government Branches all avoid his mistake: from the outset they have claimed only the most benevolent objective, while studiously understating any overt discussion of what actual actions and policies would be required to achieve the objective. Which is a shrewd lesson learned from History. Here’s hoping that History keeps teaching. Which it no doubt will.
Thus the Dissent greatly undermines itself when it asserts that “the ‘most significant’ factor in determining that Alaska’s sex offender registration statute was not an ex post facto law, was its rational connection to the nonpunitive purpose of protecting the public from sex offenders.” Because if all the science of ‘high recidivism’ and ‘incorrigibility’ is and always has been mostly wrong, then there is no “rational connection”. And the “nonpunitive objective”, as I just noted above, is hardly anything less than lethally punitive in effect and inescapably entails a broad government assault of the most profound sort on individual liberty.
Thus the Dissent’s assertion that “the urgency of the regulatory concern of protecting the public from sex offenders” is sufficient justification for not condemning the SO laws as punitive does not correspond to any actual state of affairs. This entire line of justification, as it was set forth early on in Doe v. Poritz by a Chief Justice well-known for his partiality to such schemes and ‘objectives’, is a web of exaggerated facts, half-truths, and ungrounded assertions, all in the service of a novel (to America) legal philosophy that is itself, at the very least, hostile to the Constitutional vision and lethal to the continued existence of a genuinely democratic Republic.
Let’s not be deceived any further. Or any longer.
NOTES
*To get to the text of the Opinion follow these instructions: a) go to www.massreports.com/; b) that screen will give you click-options on your left-hand side of the screen – click ‘slip opinions’, which will immediately prompt you to choose ‘Supreme Judicial Court’ or ‘Appeals Court’ – click ‘Supreme Judicial Court’; c) that will lead to a screen containing the 9 or 10 documents from August 18, 2009 – you want Number 2 (the text of the Decision) and Number 3 (the Order).
The title of the case is COMMONWEALTH vs. Russell M. CORY. SJC-10314 August 18, 2009.
Wednesday, August 19, 2009
CURBING GPS IN MASSACHUSETTS
MORE STRAWS IN THE WIND
(Once again, a fresh development leads me to interrupt my Poritz series, but the series will continue.)
On August 18, it is reported, the Supreme Judicial Court of Massachusetts decided 4-3 that a 2006 law mandating GPS monitoring of all sex-offense probationers cannot be applied retroactively.
I have the newspaper report and I also now have the text of the Decision. In this Post I am going to comment on the newspaper article making the report . Later today or early tomorrow I will Post on the text of the Decision (and Dissent); I will of course provide hyperlinks to the Decision.*
So to the news report, which is not a bad one at all, considering what you usually encounter in matters sex-offensual.
The case concerns a man convicted of a sex-offense in 1997 (the MA GPS law took effect 12/21/06). So there arises immediately the issue of ‘retroactive’ or ‘retrospective’ application of the law, especially since if the law is criminal in legislative intent or in effect, then it cannot be applied to persons convicted before the law went into effect without violating the Ex Post Facto Clause of the US Constitution (and the Massachusetts Constitution). That EPF Clause prohibits the increasing of a penalty for a crime after the crime was committed; it does not apply to ‘civil’ or ‘regulatory’ law.
As we know, the classification of any sex-offender laws as ‘punitive’ or ‘regulatory’ is a crucial key to their permissible scope. If punitive in intent or effect, then they cannot be retroactively applied to persons convicted before the law came into effect. You will recall from Poritz that the NJ Supreme Court had to go to great lengths to explain away the fact that in 1995 it was seeking to cast a net back in time to Register persons convicted of sex-offenses decades before that date.
The first solution was to declare the sex-offender scheme ‘regulatory’ rather than ‘punitive’; hence it could be retroactively applied.
As I said in my immediately preceding Post (“Doe v. Poritz 4”) this requires courts to focus – almost to the point of absurdity – on legislative intent as stated and on the narrowest framing of the sex-offender’s situation under the scheme. But a legislature can (disturbing and ominous as it is to contemplate) claim officially to seek only ‘regulatory’ goals with a law, while its ulterior motive is to punish or to control the liberty of citizens.
And ‘regulation’ is hardly adequate to describe what the sex-offender laws do to an individual. It is not the same as an individual wanting to cut hair being ‘registered’ as a barber or stylist, or a doctor wishing to practice medicine being ‘registered’ as a doctor: in these instances, the individual actually benefits from having publicly-accessible approval from the State to practice that craft. Similarly, a motor-vehicle operator does not suffer any loss of liberty or reputation or standing in the community from being publicly identified as a licensed (or ‘registered’) driver.
But of course, such is totally inapplicable to designated sex-offenders, since the SO Registry is precisely for the purpose of ‘tagging’ or identifying individual citizens to the community as unpredictable, dangerous, threatening, and – according to the judicially and legislatively recognized ‘scientific facts’ – compulsive and incurable.
Even if the essential underlying ‘science’ were accurate, an SO Registry would constitute a punishment and trigger the Ex Post Facto Clause (among others).
But given that after over 15 years of these things we are now finding out just how flawed the initial underlying ‘scientific’ research and assertions and claims and predictions were back then, then these SO laws are even more fundamentally unjustifiable. SO ‘recidivism’ and ‘dangerousness’ – in its width and depth and temporal duration – is now clearly characterizable as minimal compared to other crime-groups (that have not been so ‘tagged’ and ‘stigmatized’), and such spikes in recidivism as there are appear only in very limited sub-categories of sex-offenses.
So if the entire matrix of SO laws is characterizable as ‘punitive’ and ‘scientifically ungrounded’, then the two great pillars identified by the laws’ supporters themselves thus collapse. And if the courts and legislatures don’t recognize that, and continue to maintain and expand the schemes, they risk the very legitimacy of American Law itself. And their own legitimacy as Legislators and Jurists.
The article reports that “the decision, which forced judges to weigh child protection against constitutional rights, outraged enforcement officials and [State] lawmakers”.
Well, a couple of things.
First, we note once again the sly conflation of ‘sex offenders’ and ‘sex-offenders against children’. There is no rational basis for presuming that ‘all’ SOs or ‘any’ SO will constitute a threat to ‘children’. Yet when defending these laws, supporters (and too many journalists, whether they have thought it through or not) instantly mention ‘children’ as the reason why ‘sex offenders’ must be tagged and stigmatized. The vast majority of currently-defined sex-offending does not take place against children.
This, of course, recalls the unpleasant possibility that ‘children’ are being deliberately used as a ‘human face’ to ensure a stampede of public opinion in support of sex-offense laws that are in essence profoundly anti-Constitutional in spirit and concept and effect.
I can’t imagine any public servant at this stage who wouldn’t be risking his or her career by expressing any opinion except ‘outrage’ at any curbing of the SO laws. It has taken a particularly courageous group of senior State jurists to do it.
Further, we then see another old demon invoked: “If there is even one individual that is not required to be monitored, and that individual reoffends, then that is one too many”. This from a State lawmaker, she who sponsored the GPS bill to begin with.
Nothing more clearly indicates how far away from the American Constitutional vision this citizenry, this country , and clearly many of its legislators, have fallen.
The Founders’ vision was that individual citizens are equally capable of moral failure and moral greatness, and hence all other citizens are continually exposed to each others’ possibilities for harm or – let’s not forget – advantage. Hence, the Founders’ vision encompassed setting up a government criminal justice and police power that would be carefully constrained in its ability to interfere with the lives of its citizens. The danger was, as I have said in prior Posts, the ‘ravenous lion’ of government power coming to control the lives of the citizenry.
But with the ‘mother hen’ vision of American law, which has quietly insinuated itself into American law and politics in the past three or four decades, the government police power is a benevolent mother hen, which will respond with its full force to any distress – real or perceived – on the part of its chicks. This, as I have said, is the recipe for a police state, and surely not the grounds for a Constitutional democracy and Republic, comprised of equal and mature citizens who all share the status of Citizen and who together then constitute The People.
And rather than a democratic government we get what Eric Janus calls "the preventive state", a government demanding enough police power to 'prevent' whatever happens to be the threat-du-jour, and a serfdom happy and eager to give that power to it. The country was not founded by people looking to be 'safe' - let alone totally safe - but by people looking to exercise liberty. Not the same thing at all. If you get my drift.
And thus it can hardly be surprising when the old Goebbels-ian tactics of manipulating public opinion in order to stampede it in favor of the government’s all-encompassing control are the tactics which have recently come to control American law and legislation. False ‘science’ brazenly asserted and accurate science deliberately ignored or suppressed, emotionally gripping (if rare) cases luridly amplified as if they were usual occurrences, ‘reason’ denigrated in favor of ‘feeling’.
Thus this ‘if only just one’ (a spinoff from the old ‘zero tolerance’ of the War on Drugs era) is actually – whether its speakers realize it or not – profoundly anti-Constitutional. The Founders were willing to accept that some crime would be committed, even heinous crime, as happens in any human community; but they were not willing to permit the engorgement of a police-state on the pretext of utterly stamping out ‘crime’. To have said to the Framers in Philadelphia in that hot summer, that ‘even if only one’ crime were to be committed, then they must engorge the police-power … would not have been met with an enthusiastic and supportive response.**
And of course, this legislator also goes on to add “There are too many instances where a child is harmed that shouldn’t be”. There are too many instances of all sorts of humans being harmed who shouldn’t be. If we are going to engorge the police power to stamp out all ‘crime’ or all ‘sin’ then we have indeed turned the Constitution into a suicide pact – as a democracy and a Republic. Because this country cannot exist under a government that has taken upon itself the task and authority and mission that not even God has chosen to assume and deploy: the immediate and utter abolition of human moral weakness.
The (female) Justice who wrote the Opinion defended the ruling, calling the statue “punitive in effect”. As did the Alaska Supreme Court, until the US Supreme Court beat it down in 2003 in Smith v. Doe. (See my Post of June 29, 2009 on this site.) And we see here once again some respectable judicial effort to gauge the actual situation into which SO law casts the tagged ‘offender’: when government can destroy reputation in the community with such immediacy, on the basis of grossly inaccurate science to the effect that the offender – or his ‘class’ – is reliably beyond effective rehabilitation and constitutes a compulsive and violent and unending danger, then that government has on false grounds effectively ‘yellow-starred’ an entire constructed ‘class’ of its own Citizens. Governments have gone down this dark path before in recent history.
In a lengthy Dissent, another Justice rightly falls back on the precedents of State, Federal, and Supreme Court Opinions of the past 15 years: “This court has stated that recidivism among sex-offenders is high and protection of the public a compelling state interest”. The interest, of course, is only compelling if the recidivism is indeed high – precisely what we know are seeing is inaccurate in the extreme. If it’s not true about the ‘recidivism’, then there is no compelling justification for the State to so monstrously destroy the lives of a designated class of Citizens. ***
And this Dissenting Justice continues that “this statute establishes a nonpunitive regime to protect the public”. Again, we are faced with the courts standing next to the car with the sex-offender in it, about to be pushed over the cliff by the government police power, and focusing with ludicrous narrowness on whether the seat-belt is fastened (it’s all ‘legal’ if the seat-belt is fastened before car and occupant are pushed over the edge). If having yourself publicly and officially branded as a permanent and eternal threat to the community – and on the basis of hugely inaccurate ‘science’ – is not punitive, then nothing is punitive.
Admittedly, the Court takes no position on the validity of the law as it applies to sex-offenders convicted after the law took effect on December 21, 2006.
The article refers to this Opinion as an example of the Court’s “new thinking”. I think not. The ‘new thinking’ was the insidious ‘mother hen’ approach to law (more formally known as ‘an ethic of care’) that insinuated itself into law schools and legislative philosophy several decades ago. The Court here is returning to some sense of an ‘ethic of justice’: that there are rules, that the government police power must respect them, and that individual cases or periods of high public emotion do not and cannot override those rules and the principles that ground them.
Indeed, I think it can be said that the ‘ethic of care’ has the effect – intended or not – of creating in a very real sense an ‘unprincipled’ vision of American legislation and jurisprudence.
And since the early 1990s, we have seen increasingly vivid and Constitutionally violent deformations of American principles, not only in sex-offense laws and domestic violence laws, but also in the behavior of the government in the conduct of foreign military adventures and of the business and financial elites in the pursuit of personal profit.
I don’t think that’s a coincidence. Not hardly.
NOTES
*If you want to get a head-start on the Decision today, follow these instructions: a) go to www.massreports.com/slipops; b) that screen will give you click-options on your left-hand side of the screen – click ‘slip opinions’, which will immediately prompt you to choose ‘Supreme Judicial Court’ or ‘Appeals Court’ – click ‘Supreme Judicial Court’; c) that will lead to a screen containing the 9 or 10 documents from August 18, 2009 – you want Number 3 (the Order) and Number 2 (the text of the Decision). The title of the case is COMMONWEALTH vs. Russell M. CORY. SJC-10314 August 18, 2009.
**This point is covered in radical feminist legal and philosophical thinking by simply dismissing the Founders (although not for wide and sustained public consumption) as ‘quaint’, ‘patriarchal’ and ‘oppressive’. Alberto Gonzales was not smart enough to think up the Constitution’s ‘quaintness’ on his own; he got it from other Beltway sources.
***And in this regard, the sudden appearance of the RAND Corporation as a supporter of these types of laws very probably constitutes an effort to ‘shore up’ the failing ‘science’ without which these laws cannot survive stand Constitutional scrutiny. (See my Post on ‘Violent Offender Laws’ on this site, August 13, 2009.)
(Once again, a fresh development leads me to interrupt my Poritz series, but the series will continue.)
On August 18, it is reported, the Supreme Judicial Court of Massachusetts decided 4-3 that a 2006 law mandating GPS monitoring of all sex-offense probationers cannot be applied retroactively.
I have the newspaper report and I also now have the text of the Decision. In this Post I am going to comment on the newspaper article making the report . Later today or early tomorrow I will Post on the text of the Decision (and Dissent); I will of course provide hyperlinks to the Decision.*
So to the news report, which is not a bad one at all, considering what you usually encounter in matters sex-offensual.
The case concerns a man convicted of a sex-offense in 1997 (the MA GPS law took effect 12/21/06). So there arises immediately the issue of ‘retroactive’ or ‘retrospective’ application of the law, especially since if the law is criminal in legislative intent or in effect, then it cannot be applied to persons convicted before the law went into effect without violating the Ex Post Facto Clause of the US Constitution (and the Massachusetts Constitution). That EPF Clause prohibits the increasing of a penalty for a crime after the crime was committed; it does not apply to ‘civil’ or ‘regulatory’ law.
As we know, the classification of any sex-offender laws as ‘punitive’ or ‘regulatory’ is a crucial key to their permissible scope. If punitive in intent or effect, then they cannot be retroactively applied to persons convicted before the law came into effect. You will recall from Poritz that the NJ Supreme Court had to go to great lengths to explain away the fact that in 1995 it was seeking to cast a net back in time to Register persons convicted of sex-offenses decades before that date.
The first solution was to declare the sex-offender scheme ‘regulatory’ rather than ‘punitive’; hence it could be retroactively applied.
As I said in my immediately preceding Post (“Doe v. Poritz 4”) this requires courts to focus – almost to the point of absurdity – on legislative intent as stated and on the narrowest framing of the sex-offender’s situation under the scheme. But a legislature can (disturbing and ominous as it is to contemplate) claim officially to seek only ‘regulatory’ goals with a law, while its ulterior motive is to punish or to control the liberty of citizens.
And ‘regulation’ is hardly adequate to describe what the sex-offender laws do to an individual. It is not the same as an individual wanting to cut hair being ‘registered’ as a barber or stylist, or a doctor wishing to practice medicine being ‘registered’ as a doctor: in these instances, the individual actually benefits from having publicly-accessible approval from the State to practice that craft. Similarly, a motor-vehicle operator does not suffer any loss of liberty or reputation or standing in the community from being publicly identified as a licensed (or ‘registered’) driver.
But of course, such is totally inapplicable to designated sex-offenders, since the SO Registry is precisely for the purpose of ‘tagging’ or identifying individual citizens to the community as unpredictable, dangerous, threatening, and – according to the judicially and legislatively recognized ‘scientific facts’ – compulsive and incurable.
Even if the essential underlying ‘science’ were accurate, an SO Registry would constitute a punishment and trigger the Ex Post Facto Clause (among others).
But given that after over 15 years of these things we are now finding out just how flawed the initial underlying ‘scientific’ research and assertions and claims and predictions were back then, then these SO laws are even more fundamentally unjustifiable. SO ‘recidivism’ and ‘dangerousness’ – in its width and depth and temporal duration – is now clearly characterizable as minimal compared to other crime-groups (that have not been so ‘tagged’ and ‘stigmatized’), and such spikes in recidivism as there are appear only in very limited sub-categories of sex-offenses.
So if the entire matrix of SO laws is characterizable as ‘punitive’ and ‘scientifically ungrounded’, then the two great pillars identified by the laws’ supporters themselves thus collapse. And if the courts and legislatures don’t recognize that, and continue to maintain and expand the schemes, they risk the very legitimacy of American Law itself. And their own legitimacy as Legislators and Jurists.
The article reports that “the decision, which forced judges to weigh child protection against constitutional rights, outraged enforcement officials and [State] lawmakers”.
Well, a couple of things.
First, we note once again the sly conflation of ‘sex offenders’ and ‘sex-offenders against children’. There is no rational basis for presuming that ‘all’ SOs or ‘any’ SO will constitute a threat to ‘children’. Yet when defending these laws, supporters (and too many journalists, whether they have thought it through or not) instantly mention ‘children’ as the reason why ‘sex offenders’ must be tagged and stigmatized. The vast majority of currently-defined sex-offending does not take place against children.
This, of course, recalls the unpleasant possibility that ‘children’ are being deliberately used as a ‘human face’ to ensure a stampede of public opinion in support of sex-offense laws that are in essence profoundly anti-Constitutional in spirit and concept and effect.
I can’t imagine any public servant at this stage who wouldn’t be risking his or her career by expressing any opinion except ‘outrage’ at any curbing of the SO laws. It has taken a particularly courageous group of senior State jurists to do it.
Further, we then see another old demon invoked: “If there is even one individual that is not required to be monitored, and that individual reoffends, then that is one too many”. This from a State lawmaker, she who sponsored the GPS bill to begin with.
Nothing more clearly indicates how far away from the American Constitutional vision this citizenry, this country , and clearly many of its legislators, have fallen.
The Founders’ vision was that individual citizens are equally capable of moral failure and moral greatness, and hence all other citizens are continually exposed to each others’ possibilities for harm or – let’s not forget – advantage. Hence, the Founders’ vision encompassed setting up a government criminal justice and police power that would be carefully constrained in its ability to interfere with the lives of its citizens. The danger was, as I have said in prior Posts, the ‘ravenous lion’ of government power coming to control the lives of the citizenry.
But with the ‘mother hen’ vision of American law, which has quietly insinuated itself into American law and politics in the past three or four decades, the government police power is a benevolent mother hen, which will respond with its full force to any distress – real or perceived – on the part of its chicks. This, as I have said, is the recipe for a police state, and surely not the grounds for a Constitutional democracy and Republic, comprised of equal and mature citizens who all share the status of Citizen and who together then constitute The People.
And rather than a democratic government we get what Eric Janus calls "the preventive state", a government demanding enough police power to 'prevent' whatever happens to be the threat-du-jour, and a serfdom happy and eager to give that power to it. The country was not founded by people looking to be 'safe' - let alone totally safe - but by people looking to exercise liberty. Not the same thing at all. If you get my drift.
And thus it can hardly be surprising when the old Goebbels-ian tactics of manipulating public opinion in order to stampede it in favor of the government’s all-encompassing control are the tactics which have recently come to control American law and legislation. False ‘science’ brazenly asserted and accurate science deliberately ignored or suppressed, emotionally gripping (if rare) cases luridly amplified as if they were usual occurrences, ‘reason’ denigrated in favor of ‘feeling’.
Thus this ‘if only just one’ (a spinoff from the old ‘zero tolerance’ of the War on Drugs era) is actually – whether its speakers realize it or not – profoundly anti-Constitutional. The Founders were willing to accept that some crime would be committed, even heinous crime, as happens in any human community; but they were not willing to permit the engorgement of a police-state on the pretext of utterly stamping out ‘crime’. To have said to the Framers in Philadelphia in that hot summer, that ‘even if only one’ crime were to be committed, then they must engorge the police-power … would not have been met with an enthusiastic and supportive response.**
And of course, this legislator also goes on to add “There are too many instances where a child is harmed that shouldn’t be”. There are too many instances of all sorts of humans being harmed who shouldn’t be. If we are going to engorge the police power to stamp out all ‘crime’ or all ‘sin’ then we have indeed turned the Constitution into a suicide pact – as a democracy and a Republic. Because this country cannot exist under a government that has taken upon itself the task and authority and mission that not even God has chosen to assume and deploy: the immediate and utter abolition of human moral weakness.
The (female) Justice who wrote the Opinion defended the ruling, calling the statue “punitive in effect”. As did the Alaska Supreme Court, until the US Supreme Court beat it down in 2003 in Smith v. Doe. (See my Post of June 29, 2009 on this site.) And we see here once again some respectable judicial effort to gauge the actual situation into which SO law casts the tagged ‘offender’: when government can destroy reputation in the community with such immediacy, on the basis of grossly inaccurate science to the effect that the offender – or his ‘class’ – is reliably beyond effective rehabilitation and constitutes a compulsive and violent and unending danger, then that government has on false grounds effectively ‘yellow-starred’ an entire constructed ‘class’ of its own Citizens. Governments have gone down this dark path before in recent history.
In a lengthy Dissent, another Justice rightly falls back on the precedents of State, Federal, and Supreme Court Opinions of the past 15 years: “This court has stated that recidivism among sex-offenders is high and protection of the public a compelling state interest”. The interest, of course, is only compelling if the recidivism is indeed high – precisely what we know are seeing is inaccurate in the extreme. If it’s not true about the ‘recidivism’, then there is no compelling justification for the State to so monstrously destroy the lives of a designated class of Citizens. ***
And this Dissenting Justice continues that “this statute establishes a nonpunitive regime to protect the public”. Again, we are faced with the courts standing next to the car with the sex-offender in it, about to be pushed over the cliff by the government police power, and focusing with ludicrous narrowness on whether the seat-belt is fastened (it’s all ‘legal’ if the seat-belt is fastened before car and occupant are pushed over the edge). If having yourself publicly and officially branded as a permanent and eternal threat to the community – and on the basis of hugely inaccurate ‘science’ – is not punitive, then nothing is punitive.
Admittedly, the Court takes no position on the validity of the law as it applies to sex-offenders convicted after the law took effect on December 21, 2006.
The article refers to this Opinion as an example of the Court’s “new thinking”. I think not. The ‘new thinking’ was the insidious ‘mother hen’ approach to law (more formally known as ‘an ethic of care’) that insinuated itself into law schools and legislative philosophy several decades ago. The Court here is returning to some sense of an ‘ethic of justice’: that there are rules, that the government police power must respect them, and that individual cases or periods of high public emotion do not and cannot override those rules and the principles that ground them.
Indeed, I think it can be said that the ‘ethic of care’ has the effect – intended or not – of creating in a very real sense an ‘unprincipled’ vision of American legislation and jurisprudence.
And since the early 1990s, we have seen increasingly vivid and Constitutionally violent deformations of American principles, not only in sex-offense laws and domestic violence laws, but also in the behavior of the government in the conduct of foreign military adventures and of the business and financial elites in the pursuit of personal profit.
I don’t think that’s a coincidence. Not hardly.
NOTES
*If you want to get a head-start on the Decision today, follow these instructions: a) go to www.massreports.com/slipops; b) that screen will give you click-options on your left-hand side of the screen – click ‘slip opinions’, which will immediately prompt you to choose ‘Supreme Judicial Court’ or ‘Appeals Court’ – click ‘Supreme Judicial Court’; c) that will lead to a screen containing the 9 or 10 documents from August 18, 2009 – you want Number 3 (the Order) and Number 2 (the text of the Decision). The title of the case is COMMONWEALTH vs. Russell M. CORY. SJC-10314 August 18, 2009.
**This point is covered in radical feminist legal and philosophical thinking by simply dismissing the Founders (although not for wide and sustained public consumption) as ‘quaint’, ‘patriarchal’ and ‘oppressive’. Alberto Gonzales was not smart enough to think up the Constitution’s ‘quaintness’ on his own; he got it from other Beltway sources.
***And in this regard, the sudden appearance of the RAND Corporation as a supporter of these types of laws very probably constitutes an effort to ‘shore up’ the failing ‘science’ without which these laws cannot survive stand Constitutional scrutiny. (See my Post on ‘Violent Offender Laws’ on this site, August 13, 2009.)
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