(My apologies: I put the Post dealing with "Section 5: Supervision" onto the site in 'draft' form and forgot to actually Post it. Here it is. I promise to keep better track of things!)
This continues my look at the California Sex Offender Management Board’s Report. The text is here.
Don’t forget the page-numbering system: the first number is the Adobe browser number and the second is the page number of the actual text.
Section 5 deals with Supervision.
In its Data points it gives a couple of interesting figures that you don’t often come across: “In 2006, 11,739 ‘tips’ were reported through the public reporting feature of the California Megan’s Law website” (19/13). You are welcome to do your own figuring as it might occur to you as to the proportional significance of this number of ‘tips’. For myself, I cannot forget the comments by former Gestapo and Stasi officers that they (especially the less-organized and less numerous Nazi Gestapo) could not keep up with all of the ‘tips’ they received from ‘concerned citizens’ who so very often were disgruntled neighbors, employment rivals, jealous or jilted lovers, or even relatives and family members – and I’m guessing verrrry few of those ‘tips’ were actually rooted in activities treasonous to the Nazi or East German state, but rather were the result of humans’ sad and lethal tendency to pick up whatever legal weapon the government might leave lying around in order to vent their various displeasures with others and with life.
And of course, in the sex-offense mania, the government has not inadvertently left such trip-wire, hair-trigger ‘weapons’ lying around, but rather has intentionally armed the public with them. It won’t end well.
Given the broad definitions of ‘suspicious’ or ‘indicator’ activity connected with ‘sex offenders’, then a review of the gist of these ‘tips’ would probably be most interesting.
Further, “In 2007 DOJ received 9,902 public referrals”. That’s the federal Department of Justice. And a surprisingly small number of referrals, when you think of it. Of course it’s possible most ‘tippers’ go to their State sites first.
As so often in this Report, refreshing comments are made, not the less impressive for the fact that in non-mania times they would merely seem to be common sense.
“Supervising sex offenders who have been released to the community is a task that must focus primarily on public safety. The main purposes of supervision include successful re-entry into the community, successful re-assimilation into the community, and helping in the groundwork and preparation for the parolee or probationer’s long term success as a viable and productive member of the community. All of these areas in combination reduce the likelihood of re-offense and help to alleviate public fear of sex offenders released back into the communities.” (19/13)
But as so often in this Report, its conflicted ‘constituencies’ result in disjointed or even incoherent commentary.
So for example here, the supervision of sex offenders should focus primarily on public safety: well sort of but no. The actual work – as the paragraph soon goes on to describe well enough – consists in a constructive supervision of the parolee or probationer in order to enhance every possibility that he can re-integrate into society (which, given the public’s hugely ill-informed presumptions about ‘sex offenders’ – courtesy of the legislatures themselves – is a whole lot harder than it would otherwise be).
So this ‘primary focus’ on public safety is, if it has any purpose at all, merely rhetorical and thus designed merely to ‘make the right noise’ for some unmentioned ‘constituency’. After all, the primary focus of a Fire Department is public safety, you could say – but that tells you nothing about how the Department works or should work.
But then, as noted above, the paragraph rehearses the assorted elements that any competent probation or parole officer must include in an effective re-integration plan. Well and good. But of course, we all know that the primary presumption of the mania from the get-go, and the presumption that purportedly grounds and justifies – so to speak – the entire mania scheme is that sex offenders are incorrigible and cannot ever control themselves or their ‘urges’. This, no doubt, was submerged beneath that “living as ‘free’ persons in the community” snark that the Report made in the previous Section.
If sex-offenders can be rehabilitated – and if every effort should be made to do so – then the whole justifying ground of the mania is undermined. (I can’t help recalling a remark by one Confederate general – Pat Cleburne, I think – later in the Civil War, when he heard that Richmond was going to permit the enlistment of blacks in its dwindling military forces; said the General: “If the Negro will make a good soldier, then our whole theory of slavery is wrong”. The General was far, far ahead of his time, yet his insight stands out for simple acuity and clarity.)
I am not nit-picking the Report here. I grasp the torturous situation this Board and the California legislators now find themselves in (not that it isn’t to great extent of their own making): you start a mania precisely by making the most outrageously extreme and inaccurate Findings, certifying them as true as best you in all your professional skill or august legislative authority can determine … and then when the money runs out (always so much more efficient a motivator than the more ‘abstract’ respect for Truth) you have to walk yourself and the whole herd that you’ve stampeded back from the cliff before everybody goes over the edge. John Wayne would never have let one of his herds get into such a frakkulous situation.
But the Report winds up the paragraph with a reaffirmation of the value of “reducing the likelihood of re-offense”, which is a good thing. Although it has to be noted that the Report has already admitted that sex-offenders almost universally have a lower rate of recidivism than any other crime-criminal group, so a great deal of the ‘work’ has already been done before the State even opens the office doors in the morning.
The Report goes on to note that 70-80% of the State’s sex offenders are not under parole or probationary supervision (in the actual text of the Report – rather than here in the Executive Summary – the Board makes that sound like a bad thing – as if hordes of unsupervised ‘sex offenders’ were out there roaming the State like the buffalo of yore).
Reference is made (20/16) to “the Containment Model” and I’d like to explain that. There is a diagram in the body of the Report at page 108/102. The Model envisions the Sex Offender as ‘contained’ through being surrounded by 4 containment-elements: law enforcement and supervision; the treatment provider; the polygraph examiner (more on that below, of course); and the victim advocate.
As I’ve been saying in this series of Posts, there is some very valid question as to what the victim advocate can do, except as a cats-paw for the prosecutory urge to make life as stringently difficult as possible for convicts and what used to be known quaintly as ‘ex cons’. (Although the financial crisis may open up some space between the dampdreams of prosecutors and the heretofore eager-to-please criminal-law productions of legislatures; in which case the ‘victim movement’ – a creature of the early-1980s government effort to have its own ‘human face’ in support of law-and-order – will become orphaned.)
And as is evident in this Report, there is a profound disconnect between ‘sex offenders’ as permanently dangerous and ‘ex-cons’; in the mania’s founding assumptive vision, there is no such thing as an ‘ex’ sex offender. If sex offenders can be rehabilitated (or all by themselves have a lower recidivism rate than just about every crime group but murderers) then the whole mania theory of sex offenders is wrong.
Further, there is this matter of the ‘polygraph examiner’: the Model calls for ‘evidence-based’ information as to the supervisee’s actual activities through the use of a polygraph to verify (or not) his required reports made to his therapist and/or parole officer.
There is a logic to this, human nature being what it is. But alas, what is sauce for the goose is sauce for the gander: human nature being what it is, humans with great amounts of authority are also not to be easily and wholly trusted. That was a constitutive element of the Constitutional vision of checks-and-balances and also the protection of the Citizens from any excessive pretensions by the police power of the government. For the Framers, there was no ‘good’ victim and prosecutor and some ‘evil’ perp. There were Citizens – at times accused of this or that – and the police power of the government.
And if that sounds odd to you, then take a moment and reflect on just how far this country has fallen away from the Framers’ and the Constitutional vision in the past 30 years or so. *
And naturally, there is a huge question as to how ‘therapeutic’ it can be if the therapist is now bound to be an agent of the State. The military has been seeing this problem in a hellish way, as its own psychologists took part in torture, deploying their skills to help manipulate and discombobulate captives who were reputed to have ‘ticking bomb’ information (as in Fox’s show “24”). Surely, in the confinement or supervision setting, the fact that any comments made might be turned over by the ‘therapist’ to enforcement agents for further investigation and possible prosecution greatly undermines the integrity and efficacy of the therapy (though neatly bolstering mania-supporters’ assertion that sex offenders wickedly refuse rehabilitation).
Before there were ‘terrorists’, let’s not forget, there were ‘sex offenders’ – in case you ever wonder just how important all this is to anybody beyond the immediate SO community.
NOTE
*For that matter, if I might inject here a personal political observation, I find it increasingly ludicrous that a government that insists it and its agents must never be lied-to by citizens, then goes and starts a monstrously destructive series of military misadventures on the basis of what only somebody who still believes in the Easter Bunny can deny were outright, deliberate lies to The People and to the rest of the world – at the cost of untold numbers of lives and irretrievable fortune.
And should you encounter the attitude that it was all OK because the government meant well, then you can remind yourself that before there was the invasion of Iraq and Afghanistan there was the sex offense mania.
Again, I mention this just in case you’re ever tempted to think that working to defuse the SO mania is sort of a far-from-the-mainstream little patch without any wider significance to the nation and to The People.
Wednesday, January 13, 2010
CASOMB 5
This continues my look at the California Sex Offender Management Board’s Report. The text is here.
Don’t forget the page-numbering system: the first number is the Adobe browser number and the second is the page number of the actual text.
Section 4 deals with Investigation and Prosecution. It mentions the Vertical Prosecution approach: that one prosecutor handles all phases and filings in a specific case, from beginning to end.
It recommends more funding for more thorough and intensive prosecutorial training throughout the state; this recommendation for more funding echoes throughout the Report (completed in January 2008). For any State in the Union the experiences of 2008 and the fiscal collapse would make the request for fine-tuning funding problematic now. And this problem is exacerbated by the unfunded mandates imposed by the Adam Walsh Act (should a State not be able to refuse the feds’ offer).
Respectably, it also recommends studies to determine if cases handled in the Vertical Prosecution mode are more effectively handled than those handled in the conventional way (assigning whichever ADA is available to whatever phase of whatever case is on the docket that day or that week). But again, these studies are going to cost money.
It also notes the need for “victim surveys of the impact of investigation techniques and/or prosecution management”. This – it is hoped – simply means that CASOMB wants to know what victims feel about their experiences as they follow their alleged assailant’s case through the legal system. I am hoping that it does not solicit the victims’ opinion of whether they think the court is being tough enough on the defendant.
But as in all of these Sections – and throughout the Report – you get the impression that there is much more concern for understanding or expressing the feelings of the victims rather than understanding very much concerning the accused or convicted sex offender.
“Management” in the sense it seems to be used here more closely resembles ‘animal husbandry’ or ‘wildlife management’ than it does even the modestly respectable sense of ‘clinical management’. And for the most part, the ‘management’ leans – in many places – towards keeping the offenders corralled in one form or another.
But not completely, and this is intriguing.
Immediately after the above recommendation, the Report says “We need to develop outcome studies on the effectiveness of various investigation and prosecution tools as well as methods of investigation and prosecution” (19/13). It’s always good to learn what works and what doesn’t. So long as you’ve got a sufficiently comprehensive understanding of what you mean by ‘works’: it’s not simply a matter of what ‘breaks down’ suspects more efficiently, nor simply what satisfies the murky desires and feelings of the victimized, but also a question of what respects the rights of the suspects/defendants.
And, for the assorted agency managers, it would also be important to fully understand the effect of ‘mania’-type enforcement practices on the enforcers themselves, especially over time.
And that would also go for the assorted therapeutic organizations – especially those involved from the first ‘report’ of the self-declared victim: it is a dangerous drug, a heady brew, that is released when a therapy ‘bond’ is instantaneously established between a too-often under-trained and inexperienced ‘service provider’ and an agitated client by simply agreeing ‘totally’ on the evil of the erstwhile perpetrator, known or unknown.
The old canard about the ‘prison doc’ who thought all cons were just misunderstood had some validity, but so does the less-Correct reality of agitated victim-patients and under-trained ‘therapists’ setting each other off like tuning forks, amplifying a reaction that needs to be much more carefully handled. There’s a lot more to therapeutic success than having the patient quickly declare that you’re wonderful for being in complete agreement.
But then the Report takes one much larger step in an impressive direction: “Research needs to be completed which will allow us to understand the newly created laws on sex offenders and/or the community, particularly to determine if new laws provide a deterrence for future criminal, sexual behavior” (19/13).
It’s not quibbling – I’m thinking – to point out that the grammar of that last sentence indicates that all sexual behavior is criminal. In conversation that might be considered a meaty Freudian slip, but since this is grammar – and they haven’t taught it for quite some time now – then perhaps this is just a grammatical mistake in trying to convey the idea that the Board is concerned only with that subset of sexual behavior that includes criminal elements.
More importantly, the Report is pointing out the need for more fact-based and evidence-based understanding of just what impact these laws do or do not have.
Now whether the intent of the Board is as broadly open-minded as its language indicates is another question, so this is no time to be popping any corks, but it’s a well-stated thought, especially in an official public Report.
Don’t forget the page-numbering system: the first number is the Adobe browser number and the second is the page number of the actual text.
Section 4 deals with Investigation and Prosecution. It mentions the Vertical Prosecution approach: that one prosecutor handles all phases and filings in a specific case, from beginning to end.
It recommends more funding for more thorough and intensive prosecutorial training throughout the state; this recommendation for more funding echoes throughout the Report (completed in January 2008). For any State in the Union the experiences of 2008 and the fiscal collapse would make the request for fine-tuning funding problematic now. And this problem is exacerbated by the unfunded mandates imposed by the Adam Walsh Act (should a State not be able to refuse the feds’ offer).
Respectably, it also recommends studies to determine if cases handled in the Vertical Prosecution mode are more effectively handled than those handled in the conventional way (assigning whichever ADA is available to whatever phase of whatever case is on the docket that day or that week). But again, these studies are going to cost money.
It also notes the need for “victim surveys of the impact of investigation techniques and/or prosecution management”. This – it is hoped – simply means that CASOMB wants to know what victims feel about their experiences as they follow their alleged assailant’s case through the legal system. I am hoping that it does not solicit the victims’ opinion of whether they think the court is being tough enough on the defendant.
But as in all of these Sections – and throughout the Report – you get the impression that there is much more concern for understanding or expressing the feelings of the victims rather than understanding very much concerning the accused or convicted sex offender.
“Management” in the sense it seems to be used here more closely resembles ‘animal husbandry’ or ‘wildlife management’ than it does even the modestly respectable sense of ‘clinical management’. And for the most part, the ‘management’ leans – in many places – towards keeping the offenders corralled in one form or another.
But not completely, and this is intriguing.
Immediately after the above recommendation, the Report says “We need to develop outcome studies on the effectiveness of various investigation and prosecution tools as well as methods of investigation and prosecution” (19/13). It’s always good to learn what works and what doesn’t. So long as you’ve got a sufficiently comprehensive understanding of what you mean by ‘works’: it’s not simply a matter of what ‘breaks down’ suspects more efficiently, nor simply what satisfies the murky desires and feelings of the victimized, but also a question of what respects the rights of the suspects/defendants.
And, for the assorted agency managers, it would also be important to fully understand the effect of ‘mania’-type enforcement practices on the enforcers themselves, especially over time.
And that would also go for the assorted therapeutic organizations – especially those involved from the first ‘report’ of the self-declared victim: it is a dangerous drug, a heady brew, that is released when a therapy ‘bond’ is instantaneously established between a too-often under-trained and inexperienced ‘service provider’ and an agitated client by simply agreeing ‘totally’ on the evil of the erstwhile perpetrator, known or unknown.
The old canard about the ‘prison doc’ who thought all cons were just misunderstood had some validity, but so does the less-Correct reality of agitated victim-patients and under-trained ‘therapists’ setting each other off like tuning forks, amplifying a reaction that needs to be much more carefully handled. There’s a lot more to therapeutic success than having the patient quickly declare that you’re wonderful for being in complete agreement.
But then the Report takes one much larger step in an impressive direction: “Research needs to be completed which will allow us to understand the newly created laws on sex offenders and/or the community, particularly to determine if new laws provide a deterrence for future criminal, sexual behavior” (19/13).
It’s not quibbling – I’m thinking – to point out that the grammar of that last sentence indicates that all sexual behavior is criminal. In conversation that might be considered a meaty Freudian slip, but since this is grammar – and they haven’t taught it for quite some time now – then perhaps this is just a grammatical mistake in trying to convey the idea that the Board is concerned only with that subset of sexual behavior that includes criminal elements.
More importantly, the Report is pointing out the need for more fact-based and evidence-based understanding of just what impact these laws do or do not have.
Now whether the intent of the Board is as broadly open-minded as its language indicates is another question, so this is no time to be popping any corks, but it’s a well-stated thought, especially in an official public Report.
Thursday, January 7, 2010
CASOMB 4
This continues my look at the California Sex Offender Management Board’s Report. The text is here.
Don’t forget the page-numbering system: the first number is the Adobe browser number and the second is the page number of the actual text.
Section 3 deals with Sex Offender Recidivism and it is here that the Report, I would say, makes its most worthwhile contribution to accuracy and sanity.
This Section of the Executive Summary begins, as always, with “Data”, and they are striking (15/9). “3.55% of sex offenders on parole [in California] had committed new sex offenses by the time of the conclusion of their three-year parole period”. This is a thought-provoking number, and in light of what usually passes for recidivism figures it’s stunning. I could only wish that “committed” had been more precisely broken down into ‘charged with’ or ‘convicted of’, but that doesn’t detract substantially from the 3.55 figure.
Further, “A ten-year follow-up study of 879 sex offenders in the state of Ohio reported that when using sex offense conviction as the outcome measurement, of 34% of sex offenders who have re-offended, only 8% were re-committed for a new sex crime, plus 3% for a technical violation judged to be related to the new sex crime, while the other 22% re-offended for non-sexual offenses”. And this figure also stuns, in a good way.
It’s heartening to see that the Report penetrates to the factual-heart of the matter by focusing on ‘sex offense conviction’ as the standard of measurement, rather than on the less informative ‘arrest’ or ‘charged with’. And the figure is 8%: that’s a pretty decent re-offense rate compared to all other types of crime (and criminal offender).
Additionally, there was another 3% re-confined for “technical violation”: again, this is an excellent distinction to make, since “technical violations” are simply a violation of those myriad residence and other ‘regulatory’ and ‘non-punitive’ restrictions that have been larded on like frosting over the course of the years since the mid-1990s, and especially since the Supreme Court cleared the way for intensified mania with its Smith v. Doe decision in 2003. You may recall one fellow who was re-arrested because in moving from one house to another in order to comply with the latest residency restriction, he spent a night in a motel and was then arrested when he went to register his new address, because he hadn’t ‘registered’ the motel address (for the one night he spent there).
In order to ‘keep the numbers up’ the mania usually doesn’t make this distinction, which in this case would have yielded a ‘recidivism’ rate of 11% (and every little bit helps in a mania).
And you cannot help but imagine that even for former sex offenders who commit further non-sexual crimes, there is no small possibility that a former offender who is faced with the daunting challenge of trying to rebuild a life having been ‘tagged’ by the sex offense mania cannot manage to hold everything together. I’m going to think that a percentage of that 22% who committed further, non-sexual crimes were under the intense and continually intensifying pressures imposed by restrictions of all sorts, imposed now even by towns and municipalities.
And of course, the Adam Walsh Act is going to increase the ‘technical offenses’ exponentially since a long-ago convicted sex-offender may now be liable for registration under a direct Federal requirement, even though his State doesn’t require his registration. I recall a recent court decision (valid, if I recall correctly, only in that Federal District or Appellate region) that makes AWA registration mandatory even if the State in which the ‘eligible’ offender resides has not yet (and may never) adopt and accept AWA.
The Report states with laudable directness: “Solid information about the recidivism of sex offenders is one of the key building blocks for good policy and effective practice in sex offender management. If it were not for the concern that an identified sex offender may offend again in the future and create another victim, the questions about how to best manage sex offenders living in California communities would not be of such intense interest” (15/9).
Well yes, yes, and yes.
The lack of solid information – or even the desire for it – has done a great deal to impeach the credibility not only of sex offense legislation but even of the legislators (and jurists) who create and uphold the matrix of mania law. Yes, the AWA – after a decade or more of sex-offense law – finally calls for ‘study’, but only ‘study’ about the effects of the law, not about the validity of the Findings upon which AWA and the entire matrix of mania law rest.
And as even this Section has just revealed in its ‘Data’, recidivism is stunningly low, especially if that excellent distinction is made between a ‘new’ sex offense, a ‘technical’ violation, and conviction for unrelated and non-sexual offenses.
And of course, since almost 90% of reported sex offenses are committed by ‘first offenders’, who by definition are unknown to the system, then ‘management’ is only going to affect 10% of offenders. And while you can then say that over time more and more offenders will be ‘identified and tagged’, it’s clearly going to take a lot of time and a lot of money, and all of those resources poured into an almost chaotically mis-conceptualized and wrongly conceived quasi-phenomenon.
BUT THEN the Report goes on to assert, and rightly so, that if it weren’t for the danger of recidivism, then the post-confinement and supervision of sex-offenders would – nicely put – “not be of such intense interest”. And how! The entire public sex-offense anxiety that fuels the mania would lose its ‘grounding’, such as it is. (Of course that’s not to say that the sex offense mania would then disappear overnight; let’s face it: the effects of almost 2 decades of government-supported media sensationalism, even though based on shocking inaccuracies, are not going to go away overnight.)
Tactfully, the Report reasons rightly that if the citizens know the ‘likelihood’ of an offender re-offending then that ‘knowledge’ “can drive many decisions”. But of course, such knowledge really is ‘knowledge’: there’s no way of knowing because a) you can never really know the future with any human being, and b) because the ‘sex offense’ problem at its very core is such a primal hash of exaggeration, untruth, and anxiety-fueled imagination and speculation. (I wonder when somebody is going to get around to the very real problem of how to manage and rehabilitate ‘the public’ after all these years of being soused with all this mania madness.)
Especially since many of those “decisions” are not simply government or public policy and law decisions, but rather private citizens’ decisions made under the deforming pressure of the mania: to avoid ‘sex offenders’ and their families, to get ‘them’ out of the neighborhood, and so on.
The Report veers back a bit, though acceptably, by stating that “knowing what interventions might actually reduce the chances that a sex offender will re-offend is also extremely important”. Which is technically and procedurally true. But since the phenomenon of ‘sex offense’ is so conceptually confused, then it is going to be extremely difficult to come up with rational and effective responses, whether through public policy and law or through therapeutic treatment.
Indeed, reflecting that hash, most citizens simply take the low road and quietly decide to simply ‘avoid’ and ‘get rid of’ sex-offenders (and often their families) as decisively and simply as possible (which usually includes ‘as primitively as possible’, and that is one of the lethal consequences of this mania for public and civic and societal life in this country). Let’s not forget: the instances of violence against sex-offenders and even their families are grossly under-reported; and this is especially true if you include the emotional violence of rejection, obloquy, and verbal harassment, let alone more formal consequences such as being fired from a job or rejected by a potential employer.
The Report continues (15/9): “Existing data indicates that the majority of sex offenders do not re-offend sexually over time (Harris & Hanson, 2004)" [italics mine]. It goes on (16/10): “Additionally, research studies over the past two decades have consistently indicated that recidivism rates for sex offenders are, in reality, lower than the re-offense rates for most other types of offenders”[italics mine].
This, and several other studies quoted in this Section, clearly establish – in the Report’s estimation – that the already-acknowledged key factor of ‘recidivism’ is very low among ‘sex offenders’. This is remarkable because it would seem that the Report is clearly undermining the entire purpose of CASOMB’s existence. And you don’t often find that in public documents, especially government-established Boards created for the purpose of ‘dealing with’ this or that problem.
Of course, the SO community can only give thanks and take heart that this Report is willing to use its authority and status to stand up for some truth and accuracy in this entire mania area.
But what is going on here?
I think that – government being what it is – no Board would take such a position unless it had the quiet and prior approval of crucial elements within the government (in this case, of the State). And this is especially true when the Board is so clearly weighted in a certain direction by the appointment of prestigious victim-advocacy types as Chair and Co-Chair.
Which leads me to conclude that while making all the necessary noises to maintain its creds among the ‘victim community’, this Board, with the tacit approval of a grievously cash-strapped State government and many of the Agencies involved, is trying to dial back the mania to a level where there is at least some modest hope of sustaining a ‘management’ program at all.
In other words, I think that what you can see here is a real attempt to dial-back the mania, by embracing actual and factual and evidence-based knowledge and information (precisely the tack NOT taken for the past 20 or so years by governments, legislatures, too many courts, the media, and the panoply of ‘organizations’ – volunteer or for profit – that have grown up around this monstrous thing).
And when I say that I am not belittling the Report. I think it represents a very significant development: government – surely under the unspinnable pressure of serious cash shortfalls – is starting to reach out for genuinely accurate information in order to get some control over the wildly unbalanced dynamics spiraling - expsensively - out of control.
Yes, genuinely accurate information will have that marvelous effect of keeping things from spinning wildly and madly off into crazy directions; that, I would say, is why such information was avoided by ‘advocates’ and enablers and instigators of this thing from the get-go.
And yes, it would be nice to think that ‘truth’ is so widely prized among Us that a simple desire for it would have kept things on the straight and narrow. But human nature is human nature and consequently life is what it is. It has taken a good rap on the snout from implacable fiscal realities to start the correction process. But so it was with the Salem Witch Trials, where the government in Boston – fearful for its reputation back in London – saw the medieval outbreak of judicial blood-shedding in Salem as being far too dangerous to be permitted to continue. And the mania subsided.
And I will also add that there had always been, even in Salem, a number of folks who had never accepted the validity of the witchcraft mania and its ‘trials’. And that very few citizens objected once they had calmed down – and began gingerly conducting public affairs in that ‘morning after’ mode so often seen on New Year’s day as last night’s party-goers start to sober up and try to make their way along snowy paths to carry on the normal affairs of life, studiously avoiding the mess and wreck that they had caused the night before when they were in 'party mode'.
Among “Gaps” requiring attention in the State, the Report (16/10) especially notes that “the operational definition of ‘sex offender recidivism’ used in any future California recidivism studies needs to be standardized to improve the accuracy and comparability of the data”. Well, yes indeed! And that would be a requirement in any Introductory course in Statistics and Research in any college in the country. But it’s a clear indication of just how far off balance this entire mania has been from the get-go that such a simple, almost elementary, requirement was ignored, and indeed purposely and repeatedly violated.
(Which I would say leads to a handy Rule of Thumb for Citizens: any ‘progress’ or ‘reform’ which requires the suspension or violation of elementary procedures for establishing truth must be considered with a verrrry skeptical and gimlet eye. Because such violations are the clear warning signs of developing public mania, not only among the Citizens but among the agencies and branches of government themselves.)
But just so you don’t go popping any corks, the Report then asserts that “Little is known about the extent to which recidivism rates climb after the period of formal supervision and control under the authority of the criminal justice system (parole and probation) ends …”(16/10). Well, it is already established that 90% of sex offenses are committed by first timers, so there may be that 10% - roughly – who re-offend.
Although you then have to consider just what ‘offense’ they commit, since as is well established, there are now a whole lotta things that are swept up into the definition of ‘sex offense’ and ‘sexual assault’ and ‘molestation’, far beyond what one might imagine in ‘rape’, ‘attempted rape’, and crimes against ‘children’. *
But then the Report sounds something of the old music: those sex offenders no longer under the authority of the criminal justice system are described in the text as “simply living in the community as “free” citizens” ... [air quotes in the text itself].
And this, I think, is revealing, and unhappily so. The Report indulges in the old but ominous implication that former sex-offenders are somehow still dangerous, that they are only diabolically and evilly mimicking the appearance of a decent citizen, and that they – though former offenders, and perhaps for decades – have no right to be or to be considered “free”. I don’t think it’s hard to see just what a grossly inaccurate but also Constitutionally lethal and toxic dynamic this represents, fracturing the civic polity and society, and creating the beginnings of what Giorgio Agamben calls homo sacer**, the individual who by government declaration is subject to the laws but no longer protected by them.
So this Section gives the SO community cause for substantive hope, although it also reminds everybody just what lethal stakes are still involved in this mania.
NOTES
*In the past two days I read a news story about a police officer who was arrested for burning the pelvic area of a female toddler, somehow related to him, with a hot iron. He was arrested for rape of a child, if I recall correctly. It seems to me that such a shocking and reprehensible act has little to do with ‘sex’ and much more to do with a violent and aggressive assaultiveness – whatever its causes – in the perpetrator. That such a crime is primarily considered as a ‘sex offense against a child’ strikes me as being conceptually a misclassification (although as a prosecutorial strategy, given the stringencies of child-sex-offense laws, a shrewder charging-decision).
**See my Post of 12/31/09, “Carl Schmitt and Sex Offenses” on this site.
Don’t forget the page-numbering system: the first number is the Adobe browser number and the second is the page number of the actual text.
Section 3 deals with Sex Offender Recidivism and it is here that the Report, I would say, makes its most worthwhile contribution to accuracy and sanity.
This Section of the Executive Summary begins, as always, with “Data”, and they are striking (15/9). “3.55% of sex offenders on parole [in California] had committed new sex offenses by the time of the conclusion of their three-year parole period”. This is a thought-provoking number, and in light of what usually passes for recidivism figures it’s stunning. I could only wish that “committed” had been more precisely broken down into ‘charged with’ or ‘convicted of’, but that doesn’t detract substantially from the 3.55 figure.
Further, “A ten-year follow-up study of 879 sex offenders in the state of Ohio reported that when using sex offense conviction as the outcome measurement, of 34% of sex offenders who have re-offended, only 8% were re-committed for a new sex crime, plus 3% for a technical violation judged to be related to the new sex crime, while the other 22% re-offended for non-sexual offenses”. And this figure also stuns, in a good way.
It’s heartening to see that the Report penetrates to the factual-heart of the matter by focusing on ‘sex offense conviction’ as the standard of measurement, rather than on the less informative ‘arrest’ or ‘charged with’. And the figure is 8%: that’s a pretty decent re-offense rate compared to all other types of crime (and criminal offender).
Additionally, there was another 3% re-confined for “technical violation”: again, this is an excellent distinction to make, since “technical violations” are simply a violation of those myriad residence and other ‘regulatory’ and ‘non-punitive’ restrictions that have been larded on like frosting over the course of the years since the mid-1990s, and especially since the Supreme Court cleared the way for intensified mania with its Smith v. Doe decision in 2003. You may recall one fellow who was re-arrested because in moving from one house to another in order to comply with the latest residency restriction, he spent a night in a motel and was then arrested when he went to register his new address, because he hadn’t ‘registered’ the motel address (for the one night he spent there).
In order to ‘keep the numbers up’ the mania usually doesn’t make this distinction, which in this case would have yielded a ‘recidivism’ rate of 11% (and every little bit helps in a mania).
And you cannot help but imagine that even for former sex offenders who commit further non-sexual crimes, there is no small possibility that a former offender who is faced with the daunting challenge of trying to rebuild a life having been ‘tagged’ by the sex offense mania cannot manage to hold everything together. I’m going to think that a percentage of that 22% who committed further, non-sexual crimes were under the intense and continually intensifying pressures imposed by restrictions of all sorts, imposed now even by towns and municipalities.
And of course, the Adam Walsh Act is going to increase the ‘technical offenses’ exponentially since a long-ago convicted sex-offender may now be liable for registration under a direct Federal requirement, even though his State doesn’t require his registration. I recall a recent court decision (valid, if I recall correctly, only in that Federal District or Appellate region) that makes AWA registration mandatory even if the State in which the ‘eligible’ offender resides has not yet (and may never) adopt and accept AWA.
The Report states with laudable directness: “Solid information about the recidivism of sex offenders is one of the key building blocks for good policy and effective practice in sex offender management. If it were not for the concern that an identified sex offender may offend again in the future and create another victim, the questions about how to best manage sex offenders living in California communities would not be of such intense interest” (15/9).
Well yes, yes, and yes.
The lack of solid information – or even the desire for it – has done a great deal to impeach the credibility not only of sex offense legislation but even of the legislators (and jurists) who create and uphold the matrix of mania law. Yes, the AWA – after a decade or more of sex-offense law – finally calls for ‘study’, but only ‘study’ about the effects of the law, not about the validity of the Findings upon which AWA and the entire matrix of mania law rest.
And as even this Section has just revealed in its ‘Data’, recidivism is stunningly low, especially if that excellent distinction is made between a ‘new’ sex offense, a ‘technical’ violation, and conviction for unrelated and non-sexual offenses.
And of course, since almost 90% of reported sex offenses are committed by ‘first offenders’, who by definition are unknown to the system, then ‘management’ is only going to affect 10% of offenders. And while you can then say that over time more and more offenders will be ‘identified and tagged’, it’s clearly going to take a lot of time and a lot of money, and all of those resources poured into an almost chaotically mis-conceptualized and wrongly conceived quasi-phenomenon.
BUT THEN the Report goes on to assert, and rightly so, that if it weren’t for the danger of recidivism, then the post-confinement and supervision of sex-offenders would – nicely put – “not be of such intense interest”. And how! The entire public sex-offense anxiety that fuels the mania would lose its ‘grounding’, such as it is. (Of course that’s not to say that the sex offense mania would then disappear overnight; let’s face it: the effects of almost 2 decades of government-supported media sensationalism, even though based on shocking inaccuracies, are not going to go away overnight.)
Tactfully, the Report reasons rightly that if the citizens know the ‘likelihood’ of an offender re-offending then that ‘knowledge’ “can drive many decisions”. But of course, such knowledge really is ‘knowledge’: there’s no way of knowing because a) you can never really know the future with any human being, and b) because the ‘sex offense’ problem at its very core is such a primal hash of exaggeration, untruth, and anxiety-fueled imagination and speculation. (I wonder when somebody is going to get around to the very real problem of how to manage and rehabilitate ‘the public’ after all these years of being soused with all this mania madness.)
Especially since many of those “decisions” are not simply government or public policy and law decisions, but rather private citizens’ decisions made under the deforming pressure of the mania: to avoid ‘sex offenders’ and their families, to get ‘them’ out of the neighborhood, and so on.
The Report veers back a bit, though acceptably, by stating that “knowing what interventions might actually reduce the chances that a sex offender will re-offend is also extremely important”. Which is technically and procedurally true. But since the phenomenon of ‘sex offense’ is so conceptually confused, then it is going to be extremely difficult to come up with rational and effective responses, whether through public policy and law or through therapeutic treatment.
Indeed, reflecting that hash, most citizens simply take the low road and quietly decide to simply ‘avoid’ and ‘get rid of’ sex-offenders (and often their families) as decisively and simply as possible (which usually includes ‘as primitively as possible’, and that is one of the lethal consequences of this mania for public and civic and societal life in this country). Let’s not forget: the instances of violence against sex-offenders and even their families are grossly under-reported; and this is especially true if you include the emotional violence of rejection, obloquy, and verbal harassment, let alone more formal consequences such as being fired from a job or rejected by a potential employer.
The Report continues (15/9): “Existing data indicates that the majority of sex offenders do not re-offend sexually over time (Harris & Hanson, 2004)" [italics mine]. It goes on (16/10): “Additionally, research studies over the past two decades have consistently indicated that recidivism rates for sex offenders are, in reality, lower than the re-offense rates for most other types of offenders”[italics mine].
This, and several other studies quoted in this Section, clearly establish – in the Report’s estimation – that the already-acknowledged key factor of ‘recidivism’ is very low among ‘sex offenders’. This is remarkable because it would seem that the Report is clearly undermining the entire purpose of CASOMB’s existence. And you don’t often find that in public documents, especially government-established Boards created for the purpose of ‘dealing with’ this or that problem.
Of course, the SO community can only give thanks and take heart that this Report is willing to use its authority and status to stand up for some truth and accuracy in this entire mania area.
But what is going on here?
I think that – government being what it is – no Board would take such a position unless it had the quiet and prior approval of crucial elements within the government (in this case, of the State). And this is especially true when the Board is so clearly weighted in a certain direction by the appointment of prestigious victim-advocacy types as Chair and Co-Chair.
Which leads me to conclude that while making all the necessary noises to maintain its creds among the ‘victim community’, this Board, with the tacit approval of a grievously cash-strapped State government and many of the Agencies involved, is trying to dial back the mania to a level where there is at least some modest hope of sustaining a ‘management’ program at all.
In other words, I think that what you can see here is a real attempt to dial-back the mania, by embracing actual and factual and evidence-based knowledge and information (precisely the tack NOT taken for the past 20 or so years by governments, legislatures, too many courts, the media, and the panoply of ‘organizations’ – volunteer or for profit – that have grown up around this monstrous thing).
And when I say that I am not belittling the Report. I think it represents a very significant development: government – surely under the unspinnable pressure of serious cash shortfalls – is starting to reach out for genuinely accurate information in order to get some control over the wildly unbalanced dynamics spiraling - expsensively - out of control.
Yes, genuinely accurate information will have that marvelous effect of keeping things from spinning wildly and madly off into crazy directions; that, I would say, is why such information was avoided by ‘advocates’ and enablers and instigators of this thing from the get-go.
And yes, it would be nice to think that ‘truth’ is so widely prized among Us that a simple desire for it would have kept things on the straight and narrow. But human nature is human nature and consequently life is what it is. It has taken a good rap on the snout from implacable fiscal realities to start the correction process. But so it was with the Salem Witch Trials, where the government in Boston – fearful for its reputation back in London – saw the medieval outbreak of judicial blood-shedding in Salem as being far too dangerous to be permitted to continue. And the mania subsided.
And I will also add that there had always been, even in Salem, a number of folks who had never accepted the validity of the witchcraft mania and its ‘trials’. And that very few citizens objected once they had calmed down – and began gingerly conducting public affairs in that ‘morning after’ mode so often seen on New Year’s day as last night’s party-goers start to sober up and try to make their way along snowy paths to carry on the normal affairs of life, studiously avoiding the mess and wreck that they had caused the night before when they were in 'party mode'.
Among “Gaps” requiring attention in the State, the Report (16/10) especially notes that “the operational definition of ‘sex offender recidivism’ used in any future California recidivism studies needs to be standardized to improve the accuracy and comparability of the data”. Well, yes indeed! And that would be a requirement in any Introductory course in Statistics and Research in any college in the country. But it’s a clear indication of just how far off balance this entire mania has been from the get-go that such a simple, almost elementary, requirement was ignored, and indeed purposely and repeatedly violated.
(Which I would say leads to a handy Rule of Thumb for Citizens: any ‘progress’ or ‘reform’ which requires the suspension or violation of elementary procedures for establishing truth must be considered with a verrrry skeptical and gimlet eye. Because such violations are the clear warning signs of developing public mania, not only among the Citizens but among the agencies and branches of government themselves.)
But just so you don’t go popping any corks, the Report then asserts that “Little is known about the extent to which recidivism rates climb after the period of formal supervision and control under the authority of the criminal justice system (parole and probation) ends …”(16/10). Well, it is already established that 90% of sex offenses are committed by first timers, so there may be that 10% - roughly – who re-offend.
Although you then have to consider just what ‘offense’ they commit, since as is well established, there are now a whole lotta things that are swept up into the definition of ‘sex offense’ and ‘sexual assault’ and ‘molestation’, far beyond what one might imagine in ‘rape’, ‘attempted rape’, and crimes against ‘children’. *
But then the Report sounds something of the old music: those sex offenders no longer under the authority of the criminal justice system are described in the text as “simply living in the community as “free” citizens” ... [air quotes in the text itself].
And this, I think, is revealing, and unhappily so. The Report indulges in the old but ominous implication that former sex-offenders are somehow still dangerous, that they are only diabolically and evilly mimicking the appearance of a decent citizen, and that they – though former offenders, and perhaps for decades – have no right to be or to be considered “free”. I don’t think it’s hard to see just what a grossly inaccurate but also Constitutionally lethal and toxic dynamic this represents, fracturing the civic polity and society, and creating the beginnings of what Giorgio Agamben calls homo sacer**, the individual who by government declaration is subject to the laws but no longer protected by them.
So this Section gives the SO community cause for substantive hope, although it also reminds everybody just what lethal stakes are still involved in this mania.
NOTES
*In the past two days I read a news story about a police officer who was arrested for burning the pelvic area of a female toddler, somehow related to him, with a hot iron. He was arrested for rape of a child, if I recall correctly. It seems to me that such a shocking and reprehensible act has little to do with ‘sex’ and much more to do with a violent and aggressive assaultiveness – whatever its causes – in the perpetrator. That such a crime is primarily considered as a ‘sex offense against a child’ strikes me as being conceptually a misclassification (although as a prosecutorial strategy, given the stringencies of child-sex-offense laws, a shrewder charging-decision).
**See my Post of 12/31/09, “Carl Schmitt and Sex Offenses” on this site.
CASOMB 3
This continues my look at the California Sex Offender Management Board’s Report. The text is here.
Don’t forget the page-numbering system: the first number is the Adobe browser number and the second is the page number of the actual text.
Section 2 (12/6) deals with the Numbers and Distribution of Offenders. It begins with some numbers. There are 61,710 registered sex offenders (RSOs) in California; and another 23,469 who have been convicted in California but reside elsewhere. There are 22,474 sex-offenders in custody within the State prison system. There are about 725 civil committeds, although only 20-30% of those are taking specific sex-offender therapy, the remainder perhaps taking general rehabilitation and vocational courses.
That’s a lot of sex-offender prosecutions. It occurs to me that if sex offenses are under-reported by at least a factor of 10, then there are half-a-million to three-quarters of a million actual sex-offenders loose in the State – surely enough to keep any advocacy in business for quite a long time, by the way.
I’m not sure but I would say that of that 70% of civil-committeds, a notable fraction don’t take the sex-offender therapy classes and programs for a variety of reasons besides the rote pop-psychological accusation that they are ‘in denial’ about their crimes and actions: if you have maintained your innocence in court filings, then you probably aren’t allowed into the programs, and you couldn’t very well volunteer for a program that required you to ‘come out of denial’ and admit to everything. Further, the stigma of sex-offending in the carceral setting (and I would surely include a State hospital for the criminally insane – as they used to call them – a carceral setting) is such, especially for one convicted of offenses against a ‘child’*, that many incarcerated convictees may well judge discretion to be the better part of valor.
But this Report keeps popping up with interesting and useful stuff – which you don’t often see. In its Recommendations it notes (14/8) that “the ‘metrics’ used to classify sex offenders, sex offenses, recidivism, and similar important dimensions are not consistent across systems making it hard to reach and state clear conclusions”.
And how! One of the very significant enablers of this entire mania has been the sloppy (if not also treacherous) misuse of terminology and definitions – e.g. ‘sex offenders’ and ‘sex offenders against children’, the very definitions of ‘child’ and ‘juvenile , and the impossibly overbroad definitions of ‘sexual assault’ and the impossibly vague definition of ‘molesting’).
You wonder though, if that’s the way the Regulatory and Preventive state wants it.
In that regard, I want to share here a thought that has come to me recently. I wonder if assorted ‘thinkers’ with Beltway connections have reasoned (as it were) thusly: since the Family and Parenthood and Maturity have all been greatly weakened as a result of certain widespread ‘liberations’ in the past few decades, then a whole lotta kids are going to wind up growing up without much parental (especially paternal and ‘male’) influence to help Shape them and prepare them for maturity and a life in society. And therefore, the State will have to Regulate these kids and Prevent them from committing crimes; the State will have to step in and step up to replace the formative influences formerly imbued by parents who could impart a culture-wide tradition of personal and social maturity.
If that thought is even partly true, then we are all in a heepa trubble. First of all, there are visions of acres of infant boy-children in diapers laid out on long tables in Mussolini’s State-run facilities, where the State could ensure that Italian boy-children grew up to be good Fascists and soldiers. Although I not only disagree with Musso’s plans to turn them into soldiers, but I really don’t want the government taking infants even if it only wants to turn them into computer programmers or ‘knowledge workers’ or for that matter Latin and Philosophy professors.
Governments aren’t good at this sort of stuff, a perennial truth ignored by decades of eager ‘revolutionaries’ who figured that in the wake of assorted ‘liberations’ and ‘empowerments’ the State could take the kids.
But it’s also essential to realize that there is a ‘window’ in which the young human is open to – and desperately in need of – the type of sustained care and growth-nurture that only parents can give. And unless the government is going to take over raising kids when they’re infants, then by the time Regulation and Prevention kicks in it will be wayyyyyyy too late. You kind of want to build the aircraft properly while it’s in the factory, because once it’s at 35,000 feet and has ‘souls’ aboard, you really can’t be pulling up the floorboards or ripping the wings off to angle them differently, no matter how much the aircraft may need such rework.
This would also add a new context for the sex-offense mania: it is only the first phase of a move toward a Regulatory and Preventive state made necessary by the abandonment of long-established (and – it has to be said – rather successful) traditional means of imparting to children necessary emotional, psychological, and moral competences essential to social and individual maturity. This will become even more necessary as cohorts of children grow into child-making adulthood having been themselves deprived of such formative essentials in their own childhood.
Like the various ‘wars’ in which this country is now engaged, many of these ‘liberations’ have proven to have hugely negative – though hardly unforeseeable – downsides.
In my next Post I will deal with Section 3 – Sex Offender Recidivism, where things get really interesting.
NOTES
*You might profitably spend a few moments wondering if your fellow inmates and incarcerees will adhere to a ‘broad’ or ‘narrow’ definition of ‘child’, since that would surely govern their general assessment of your suitability for their companionship, and perhaps for recognizing any extended lease you might have on life.
Don’t forget the page-numbering system: the first number is the Adobe browser number and the second is the page number of the actual text.
Section 2 (12/6) deals with the Numbers and Distribution of Offenders. It begins with some numbers. There are 61,710 registered sex offenders (RSOs) in California; and another 23,469 who have been convicted in California but reside elsewhere. There are 22,474 sex-offenders in custody within the State prison system. There are about 725 civil committeds, although only 20-30% of those are taking specific sex-offender therapy, the remainder perhaps taking general rehabilitation and vocational courses.
That’s a lot of sex-offender prosecutions. It occurs to me that if sex offenses are under-reported by at least a factor of 10, then there are half-a-million to three-quarters of a million actual sex-offenders loose in the State – surely enough to keep any advocacy in business for quite a long time, by the way.
I’m not sure but I would say that of that 70% of civil-committeds, a notable fraction don’t take the sex-offender therapy classes and programs for a variety of reasons besides the rote pop-psychological accusation that they are ‘in denial’ about their crimes and actions: if you have maintained your innocence in court filings, then you probably aren’t allowed into the programs, and you couldn’t very well volunteer for a program that required you to ‘come out of denial’ and admit to everything. Further, the stigma of sex-offending in the carceral setting (and I would surely include a State hospital for the criminally insane – as they used to call them – a carceral setting) is such, especially for one convicted of offenses against a ‘child’*, that many incarcerated convictees may well judge discretion to be the better part of valor.
But this Report keeps popping up with interesting and useful stuff – which you don’t often see. In its Recommendations it notes (14/8) that “the ‘metrics’ used to classify sex offenders, sex offenses, recidivism, and similar important dimensions are not consistent across systems making it hard to reach and state clear conclusions”.
And how! One of the very significant enablers of this entire mania has been the sloppy (if not also treacherous) misuse of terminology and definitions – e.g. ‘sex offenders’ and ‘sex offenders against children’, the very definitions of ‘child’ and ‘juvenile , and the impossibly overbroad definitions of ‘sexual assault’ and the impossibly vague definition of ‘molesting’).
You wonder though, if that’s the way the Regulatory and Preventive state wants it.
In that regard, I want to share here a thought that has come to me recently. I wonder if assorted ‘thinkers’ with Beltway connections have reasoned (as it were) thusly: since the Family and Parenthood and Maturity have all been greatly weakened as a result of certain widespread ‘liberations’ in the past few decades, then a whole lotta kids are going to wind up growing up without much parental (especially paternal and ‘male’) influence to help Shape them and prepare them for maturity and a life in society. And therefore, the State will have to Regulate these kids and Prevent them from committing crimes; the State will have to step in and step up to replace the formative influences formerly imbued by parents who could impart a culture-wide tradition of personal and social maturity.
If that thought is even partly true, then we are all in a heepa trubble. First of all, there are visions of acres of infant boy-children in diapers laid out on long tables in Mussolini’s State-run facilities, where the State could ensure that Italian boy-children grew up to be good Fascists and soldiers. Although I not only disagree with Musso’s plans to turn them into soldiers, but I really don’t want the government taking infants even if it only wants to turn them into computer programmers or ‘knowledge workers’ or for that matter Latin and Philosophy professors.
Governments aren’t good at this sort of stuff, a perennial truth ignored by decades of eager ‘revolutionaries’ who figured that in the wake of assorted ‘liberations’ and ‘empowerments’ the State could take the kids.
But it’s also essential to realize that there is a ‘window’ in which the young human is open to – and desperately in need of – the type of sustained care and growth-nurture that only parents can give. And unless the government is going to take over raising kids when they’re infants, then by the time Regulation and Prevention kicks in it will be wayyyyyyy too late. You kind of want to build the aircraft properly while it’s in the factory, because once it’s at 35,000 feet and has ‘souls’ aboard, you really can’t be pulling up the floorboards or ripping the wings off to angle them differently, no matter how much the aircraft may need such rework.
This would also add a new context for the sex-offense mania: it is only the first phase of a move toward a Regulatory and Preventive state made necessary by the abandonment of long-established (and – it has to be said – rather successful) traditional means of imparting to children necessary emotional, psychological, and moral competences essential to social and individual maturity. This will become even more necessary as cohorts of children grow into child-making adulthood having been themselves deprived of such formative essentials in their own childhood.
Like the various ‘wars’ in which this country is now engaged, many of these ‘liberations’ have proven to have hugely negative – though hardly unforeseeable – downsides.
In my next Post I will deal with Section 3 – Sex Offender Recidivism, where things get really interesting.
NOTES
*You might profitably spend a few moments wondering if your fellow inmates and incarcerees will adhere to a ‘broad’ or ‘narrow’ definition of ‘child’, since that would surely govern their general assessment of your suitability for their companionship, and perhaps for recognizing any extended lease you might have on life.
Tuesday, January 5, 2010
CASOMB 2
This continues my look at the California Sex Offender Management Board’s Report. The text is here.
Don’t forget the page-numbering system: the first number is the Adobe browser number and the second is the page number of the actual text.
Section 1 deals with the Prevalence of Sexual Assault and Services for Victims. The Executive Summary bullets several statistics. The first stat is that 1 out of every 6 US women and 1 out of every 33 US males have been the victims of completed or attempted sexual assault.
That’s a little fresh. Naturally, in this type of thing you always have to keep a wary eye on definitions: what is defined as ‘sexual assault’ for the purposes of compiling this statistic? This is especially true when you are reading stats that have strong ‘advocacy’ connections (and this Report is from a Board whose Chair and Vice-Chair are from victim-type volunteer advocacy organizations).
When you think of the term ‘sexual assault’ in terms of males … this assertion makes you wonder: are there actually that many males being raped or attempted to be raped in this country? Almost one out of every thirty-three? But of course, this simply makes more clear the too-little appreciated fact that ‘sexual assault’ is defined verrrry broadly; we’ve sort of gotten used to this when thinking of female victims and accept it now as part of the wallpaper of our modern American reality, but as soon as you imagine it applying to males in such huge proportions, it parts the ‘fog of advocacy stats’ (if I may).
And of course, this has implications for the consequences of such acts. If sexual assault is very broadly defined – to include one’s ‘package’ (or some female private part) being grabbed or touched, say for example, then just how disastrous are the consequences for a life over the long term? I am not saying that there are no consequences whatsoever; I am simply following up this statistic for its implications. Every human act that involves another human being has consequences, when you get right down to it. So too every criminal act; but perspective is necessary or else an exaggerated view of consequences will provide the ongoing emergency that justifies a police state (as I said in my recent Post on Carl Schmitt).
And 9 of every 10 sexual assaults are committed by persons known to the victim – which undermines the clearly misguided (but tactically useful) focus on ‘stranger-danger’ in the sex-offender mania.
And 67% of sexual assaults are against “juveniles” – and again definitions are vital here: the term is extensive enough to cover infants and graduating high-school football players and even military enlistees.
The Report continues on 11/5: “In studies of the victims of sexual assaults to date, the effects of victims have been described as profound”. As I said in the previous Post, this is a very elastic and complex area. Far too often, those ‘effects’ are primarily comprised of anecdotal victim self-reports; while they may be valid, they are hardly sufficient for diagnostic conclusions, and – human nature being what it is – their accuracy is highly open to further investigation (which so often is not done for fear of ‘re-victimizing’ the victim. You can’t get serious objective scientific research done this way.
Now it is certainly true that the younger or more fragile the victim, the more intense and extensive the possibility of damage, emotionally and psychologically. But we have to recall that scientific meta-study of a decade ago, that merely reported that in its comprehensive view of already-published research, nobody had been able to actually establish long-lasting harmful effects on the scale that the sex-offense movement presumes – and that for the first time in US history Congress responded directly and immediately by passing a Resolution condemning the Report and implying verrrrry clearly that any scientist who wanted to keep getting government funding for research had better not come up with any more such ‘results’. This disturbing event assumes an even more vivid hue when we recall the stunningly inaccurate quality of Congressional ‘Findings’ that have provided the pretext (not to say justification) for the entire matrix of sex-offender mania laws.
Further, the damaging consequences that the Report names – an increased likelihood for Major Depressive Episodes and attempts at suicide – are notoriously difficult to isolate as being caused by any single incident (although it is not impossible that such might happen). Large numbers of Americans are technically suffering from depression and undergo a Major Depressive Episode (although ‘Episode’ itself indicates a temporary condition).
And thus the Report’s immediate conclusion – that “The significance and scope of sexual assault is a major criminal justice issue with an impact on wider society” (11/5) – is demonstrably based on some sketchy ‘science’ indeed, and yet the conclusion is so sweeping and ominous in its scope, extending to a Public Health as well as Criminal Justice ‘emergency’.
Further, the Report quickly adds that “in light of the potentially deep and lasting impacts of a sexual assault, supportive services and resources for victims are essential”. So this bit of mushy science grounds not only the sex-offender mania but also the victim movement.
Further, the Report immediately adds that “victim service providers can assist with the development of offender supervision practices, community education plans, and other victim-responsive practices that can improve the effectiveness of public safety and management practices”. Again I note that this seems to be a victim-oriented approach, and not an offender-rehabilitation approach; which is what it is, surely, but is it really going to help get offenders rehabilitated.
And beyond that there is the queasy reality that – human nature being what it is – most victims and perhaps most of their victim-service providers (VSPs) are going to be more interested in punishment – revenge, even – than in offender rehabilitation and re-introduction into society. Surely this Report thus far seems to lean in that direction. Its concern, in its own words, is to valorize “victim-responsive practices”. So you wind up with a Regulatory-Preventive dynamic that bonds with a revenge dynamic, on top of the usual prosecutorial 'war' dynamic ... you see what sort of Storm is going to brew.
And just what useful input can VSPs have in the formulation of policies to manage – let alone rehabilitate – offenders? VSPs are not competent in the psychology of rehabilitation and therapy, not in the administrative complexities of public policy management. What do they bring to the table here? As I said, the likelihood is strong that their input will be in their own condition as victims and in ensuring that the offender is not treated ‘too gently’ or ‘let off too easily’, and they will set that bar very low, I imagine.
But again, this is a public Board and the politics of the whole thing have to be taken into consideration. Since the victim ‘constituency’ wants a place at the table, then the pols will provide it, if only to look good and – if I may – shut them up.
But I am hoping that the Board will still find its way – intentionally or otherwise – to some actually efficacious insights.
In its overview of the Pluses and Minuses of the current situation in California, the Board notes as a Minus “the lack of a statewide strategic plan for victim assistance resulting in inadequate planning for victim services and fragmented funding” and “a lack of funding for a victim advocate as part of the Vertical Prosecution team”. (Vertical Prosecution refers to the practice of assigning one prosecutor to handle a sex-offense case from beginning to end, rather than a bunch of different prosecutors taking bits and pieces of the case depending on who’s got a free slot in his/her court schedule.)
Again, this starts to sound like the Report is being used to make a case for more victim-advocacy funding rather than conducting a full and in-depth study of sex-offender treatment and post-release planning. Which from a bureaucratic point of view is a very common gambit, but it’s important to bring that little bit of reality to the surface.
In my next Post I’ll continue through the Sections of the Executive Summary.
Sunday, January 3, 2010
CALIFORNIA SEX OFFENDER MANGAGEMENT BOARD REPORT
Under the heading of the short Post “Report on Low Sex Offender Recidivism”, dated Monday, December 14, 2009, on the always-informative Constitutional Fights site, a link is provided to the 225 page Report of the above-named Board.
The pdf text of this Report is here (you need Adobe to open it).
I’ve read it and it is worth the look. What I’d like to do in a series of Posts is to give you what strike me as the interesting elements and points contained in it, along with (as always) my thoughts.
In this and follow-on Posts I’m going to tackle the 25-page Executive Summary, and then each of the 8 Sections.
Please note: As always with this type of formatted document, there are two systems of pagination: the page number according to the Adobe program and the page number in the actual text of the document. In this document, there is a difference of 6 in the numbering. Thus, for example, page 15 in the Adobe system is actually page 9 of the actual document’s numbering. So I will give two page numbers: 15/9, for example. I hope this doesn’t put you off; it’s easy to get used to and the document, as always, is an interesting read.
The Executive Summary begins on page 8/2.
It opens with “Sexual assault continues to bring tremendous and long-lasting suffering into the lives of its victims, and the communities in which they live.” Again, as so often, we see here the emphasis on the consequences of sexual assault. I do not and do not intend to minimize or deny or – certainly – make light of any suffering that any victim of any crime suffers (I once was held at shotgun point in an armed robbery, lying on the floor and wondering …).
But there is a great deal of difficulty in determining just what the long-lasting consequences of any particular crime (let alone type of crime) are, since the information is largely based on the victim’s own self-reports, which are technically termed ‘anecdotal’ and cannot form the basis for a competent diagnostic conclusion as to the assertion: Symptom B was directly caused by Crime A and would never have come into existence without the perpetration of Crime A.
Of course, a very broad view would be that any perpetrator is responsible for any unhappy developments in the life of a victim, but on that broad assertion then nobody convicted of any crime would ever be ‘safe’ to release back into the community. So there is a lot of ‘open water’, a lot of uncharted conceptual space, in this type of assertion.
The Report continues immediately: “The mandate of the California Sex Offender Management Board (CASOMB) is to play a key role in reducing sexual victimization in our state, particularly that perpetrated by individuals who have already been identified as sexual offenders. Consequently, every effort of CASOMB must be informed by a clear perspective on the experiences of victims – viewed individually as well as collectively.” (This entire sentence is printed in Bold in the text.)
This is a thought-provoking, not to say odd, statement. You would think that the prime task of a ‘sex offender management board’ would be to somehow help the sex-offender get better and get re-adjusted. But instead, here the angle of approach is through ‘victimization’. We recall Aya Gruber’s point, echoed by Wayne A. Logan, that the ‘victim’ movement was from its inception in the first Reagan administration a stalking-horse or cat’s-paw for prosecutorial and government efforts to recapture ‘sympathy’ which in the Sixties had gravitated to the ‘defendant’.
Against this burden of sympathy for the ‘defendant’ – long established in American culture (the Constitution itself was one long exercise in curbing and fencing-in government police power) – the ‘victim’ would be ‘the human face’ behind which and on whose behalf the government police power would capture the weight of public sympathy and approval. As we now see, there are no ‘defendants’ any longer; there are ‘perpetrators’ and – even more ominously – ‘offenders’, up to and including that most ‘evil’ type, the ‘sex offender’.
Further, the Report clearly limits itself for all practical purposes to those who have already committed or have been convicted of sex-offenses. And yet I clearly recall recent studies indicating that up to 90% of sex-offenses are committed by ‘first-time’ offenders, so at the very outset the Board limits itself to only 10% of sex-offenders.
Finally, and without any logical connection to the foregoing sentences, the Report inserts the victims as the essential and primary focus from which ‘management’ must take its cue. But this seems to be a curious and glaring disconnect: if you want to manage sex-offenders, then their treatment and post-release future lives must be the key focus; the emphasis on the ‘past’ act, and on the feelings of a person whose only competence is in having been the object of the act, don’t logically bear much relevant weight. (And again, I am not attempting to minimize or deny genuine painful consequences here.)
The Report then acknowledges its mandate bestowed by a recently-passed California law, noting that “it was necessary to understand the current state of practice. The safety of the public, victims and those who could be potentially victimized depends on the deployment of public safety strategies that are effective and achievable”.
Again this victims and victimization emphasis. And there is no ‘therapeutic’ element here at all; it’s all about “public safety strategies”. But I chose to accentuate the positive, that heartening last phrase about needing to figure out just what “strategies” are “effective and achievable” – which inserts a note of objective and evidence-based thinking that you don’t often see in public sex-offense documents.
The Report immediately proceeds (8/2) to assert that “[T]he reality of having so many jurisdictions, laws, systems, agencies and perspectives directly involved in the management of California’s sex offenders results in a very complex web of policies and practices that defy ready simplification. It is precisely this complexity – at least in part – that has created the need for instituting a Sex Offender Management Board as a locus of cohesive information and integrated expertise”.
It is heartening to see that the ‘complexity’ is acknowledged. I myself would want to say that the ‘complexity’ is the result of a horrible hash of grossly inaccurate if not malevolently wrong assumptions about sex-offenders and offenses, hasty and ill-considered legislation that seems to receive little mature deliberation and analysis or any concern as to consequences (intended, unintended, constructive or destructive), and an overall stampede effect among far too many legislators, jurists, the media, and the public. There is – not to make light – a Keystone Kops aspect to all of this mania, with much running around, lots of vivid smashing and crashing, and little effective achievement.
But this is a State Board erected for the purposes of working within the general parameters of an existing legislative vision, so how much can you reasonably expect?
But again, the Report immediately repeats – is this becoming a mantra? – that ‘This report represents the CASOMB’s first step towards the board’s vision to decrease sexual
victimization and increase community safety”. [Bold is in the text itself.] I begin to wonder if the Board might be making the necessary kow-tows to the relevant gods before striking out in some fresh direction.
The Report (9/3) then discusses briefly the composition of its membership, 17 members: “Each member represents a constituency with a central role in the promotion of public safety
and the management of California’s sex offenders”. Among these, the Chair and Vice-Chair are both from what appear to be volunteer against-sexual-assault types of coalitions, a judge and several prosecutorial reps from DA offices and the Attorney General’s office, State Department of Mental Health, a public defender, and State Corrections, Parole and police officers. Those ‘coalition’ types – the Chair and Vice-Chair – may be the ‘victim’ connection, and it clearly is significant.
The Report also notes the passage of the State’s Jessica’s Law in late 2006 (which among other things reduced to one from two the number of victims required before a person could be declared a Sexually Violent Predator, thereby greatly increasing the scope of civil-commitment and other burdens). The Report makes no mention of the Adam Walsh Act, which will certainly increase the number of potential Registrants and turn a number of otherwise well-returned former offenders into non-compliant Registry status.
With page 10/4 the Report proceeds to its Overview of its 8 Sections.
I’ll deal with them in follow-on Posts shortly.
The pdf text of this Report is here (you need Adobe to open it).
I’ve read it and it is worth the look. What I’d like to do in a series of Posts is to give you what strike me as the interesting elements and points contained in it, along with (as always) my thoughts.
In this and follow-on Posts I’m going to tackle the 25-page Executive Summary, and then each of the 8 Sections.
Please note: As always with this type of formatted document, there are two systems of pagination: the page number according to the Adobe program and the page number in the actual text of the document. In this document, there is a difference of 6 in the numbering. Thus, for example, page 15 in the Adobe system is actually page 9 of the actual document’s numbering. So I will give two page numbers: 15/9, for example. I hope this doesn’t put you off; it’s easy to get used to and the document, as always, is an interesting read.
The Executive Summary begins on page 8/2.
It opens with “Sexual assault continues to bring tremendous and long-lasting suffering into the lives of its victims, and the communities in which they live.” Again, as so often, we see here the emphasis on the consequences of sexual assault. I do not and do not intend to minimize or deny or – certainly – make light of any suffering that any victim of any crime suffers (I once was held at shotgun point in an armed robbery, lying on the floor and wondering …).
But there is a great deal of difficulty in determining just what the long-lasting consequences of any particular crime (let alone type of crime) are, since the information is largely based on the victim’s own self-reports, which are technically termed ‘anecdotal’ and cannot form the basis for a competent diagnostic conclusion as to the assertion: Symptom B was directly caused by Crime A and would never have come into existence without the perpetration of Crime A.
Of course, a very broad view would be that any perpetrator is responsible for any unhappy developments in the life of a victim, but on that broad assertion then nobody convicted of any crime would ever be ‘safe’ to release back into the community. So there is a lot of ‘open water’, a lot of uncharted conceptual space, in this type of assertion.
The Report continues immediately: “The mandate of the California Sex Offender Management Board (CASOMB) is to play a key role in reducing sexual victimization in our state, particularly that perpetrated by individuals who have already been identified as sexual offenders. Consequently, every effort of CASOMB must be informed by a clear perspective on the experiences of victims – viewed individually as well as collectively.” (This entire sentence is printed in Bold in the text.)
This is a thought-provoking, not to say odd, statement. You would think that the prime task of a ‘sex offender management board’ would be to somehow help the sex-offender get better and get re-adjusted. But instead, here the angle of approach is through ‘victimization’. We recall Aya Gruber’s point, echoed by Wayne A. Logan, that the ‘victim’ movement was from its inception in the first Reagan administration a stalking-horse or cat’s-paw for prosecutorial and government efforts to recapture ‘sympathy’ which in the Sixties had gravitated to the ‘defendant’.
Against this burden of sympathy for the ‘defendant’ – long established in American culture (the Constitution itself was one long exercise in curbing and fencing-in government police power) – the ‘victim’ would be ‘the human face’ behind which and on whose behalf the government police power would capture the weight of public sympathy and approval. As we now see, there are no ‘defendants’ any longer; there are ‘perpetrators’ and – even more ominously – ‘offenders’, up to and including that most ‘evil’ type, the ‘sex offender’.
Further, the Report clearly limits itself for all practical purposes to those who have already committed or have been convicted of sex-offenses. And yet I clearly recall recent studies indicating that up to 90% of sex-offenses are committed by ‘first-time’ offenders, so at the very outset the Board limits itself to only 10% of sex-offenders.
Finally, and without any logical connection to the foregoing sentences, the Report inserts the victims as the essential and primary focus from which ‘management’ must take its cue. But this seems to be a curious and glaring disconnect: if you want to manage sex-offenders, then their treatment and post-release future lives must be the key focus; the emphasis on the ‘past’ act, and on the feelings of a person whose only competence is in having been the object of the act, don’t logically bear much relevant weight. (And again, I am not attempting to minimize or deny genuine painful consequences here.)
The Report then acknowledges its mandate bestowed by a recently-passed California law, noting that “it was necessary to understand the current state of practice. The safety of the public, victims and those who could be potentially victimized depends on the deployment of public safety strategies that are effective and achievable”.
Again this victims and victimization emphasis. And there is no ‘therapeutic’ element here at all; it’s all about “public safety strategies”. But I chose to accentuate the positive, that heartening last phrase about needing to figure out just what “strategies” are “effective and achievable” – which inserts a note of objective and evidence-based thinking that you don’t often see in public sex-offense documents.
The Report immediately proceeds (8/2) to assert that “[T]he reality of having so many jurisdictions, laws, systems, agencies and perspectives directly involved in the management of California’s sex offenders results in a very complex web of policies and practices that defy ready simplification. It is precisely this complexity – at least in part – that has created the need for instituting a Sex Offender Management Board as a locus of cohesive information and integrated expertise”.
It is heartening to see that the ‘complexity’ is acknowledged. I myself would want to say that the ‘complexity’ is the result of a horrible hash of grossly inaccurate if not malevolently wrong assumptions about sex-offenders and offenses, hasty and ill-considered legislation that seems to receive little mature deliberation and analysis or any concern as to consequences (intended, unintended, constructive or destructive), and an overall stampede effect among far too many legislators, jurists, the media, and the public. There is – not to make light – a Keystone Kops aspect to all of this mania, with much running around, lots of vivid smashing and crashing, and little effective achievement.
But this is a State Board erected for the purposes of working within the general parameters of an existing legislative vision, so how much can you reasonably expect?
But again, the Report immediately repeats – is this becoming a mantra? – that ‘This report represents the CASOMB’s first step towards the board’s vision to decrease sexual
victimization and increase community safety”. [Bold is in the text itself.] I begin to wonder if the Board might be making the necessary kow-tows to the relevant gods before striking out in some fresh direction.
The Report (9/3) then discusses briefly the composition of its membership, 17 members: “Each member represents a constituency with a central role in the promotion of public safety
and the management of California’s sex offenders”. Among these, the Chair and Vice-Chair are both from what appear to be volunteer against-sexual-assault types of coalitions, a judge and several prosecutorial reps from DA offices and the Attorney General’s office, State Department of Mental Health, a public defender, and State Corrections, Parole and police officers. Those ‘coalition’ types – the Chair and Vice-Chair – may be the ‘victim’ connection, and it clearly is significant.
The Report also notes the passage of the State’s Jessica’s Law in late 2006 (which among other things reduced to one from two the number of victims required before a person could be declared a Sexually Violent Predator, thereby greatly increasing the scope of civil-commitment and other burdens). The Report makes no mention of the Adam Walsh Act, which will certainly increase the number of potential Registrants and turn a number of otherwise well-returned former offenders into non-compliant Registry status.
With page 10/4 the Report proceeds to its Overview of its 8 Sections.
I’ll deal with them in follow-on Posts shortly.
Wednesday, December 30, 2009
CARL SCHMITT AND SEX OFFENSE MANIA
MORE AND DEEPER
(I’ll start this Post by reprinting what I had put up as Addendum 2 to my previous Post, “The Death of Common Sense”. Then I’ll develop a bit more of some trends in political philosophy that deepen the understanding of the roots of not only the Regulatory and Preventive approach to statecraft but also to the matrix of SO laws, so often touted defensively by politicians and jurists as “merely regulatory”.)
I also point out the connection between all this Regulatory/Preventive theory and the dynamics underlying the Bill entitled the International Violence Against Women and Girls Act, about which I Posted earlier this month on both this and my other site.
If ‘more government means more liberation’, then naturally – in Lenin’s sense: we have the absolute Truth, so naturally we want to see the whole world accept it – the Identity advocacies want to see that other peoples and cultures ‘get it’ just the way they do and just the way they have (however imperfectly) gotten the government to impose it here.
As always, I point out one of the politically most lethal ramifications of Identity Politics, and especially of the subset called Gender Politics: one’s selected ‘identity’ – in this case ‘gender’ – overrides all other roles and identities that an individual might have. This includes being ‘human’ – which fractures the sense of common humanity, and being a Citizen of one’s country – which fractures the sense of the polity.
You can see how quickly lethal trouble would arise for any society whose government for whatever reasons embraced full-blown Identity and Gender Politics.
I also mentioned that the ‘progressive’ and Left desire to impose the ‘liberation’ of Gender Politics upon developing nations by piggy-backing the plan on the authority of the US government would dovetail with the intensifying US tendency to expand its control over as much of the under-developed world as possible in order to maintain a place at the Great Table and remain a player in the Great Game. And that in this regard, the quite possibly destabilizing effects upon any under-developed government that tried to comply with the US vision (as the Bill would have it): a revolt by its own people who would see, far more clearly than Americans have, just how much of an assault on the warp and woof of their culture such a vision constitutes.
You know, in a way we’re back to the late 1800s: this is Great Power politics and Great Power imperialism all over again. Except that where in the 19th century such imperialistic impositions were done under the auspices of a superior Truth as embodied in religion (Christianity, most often), now in the early 21st the superior Truth is purportedly embodied in the theories of Identity and Gender Politics and those adherents and cadres who ‘get it’.
But also as in the 19th century, there are more material and murkier objectives: back then it was ‘resources and markets’, and now it’s ‘resources’ more than markets. Because America is running out of resources and also out of the productive capabilities and even the productive ethos that forms the work force that can sustain the massive efforts necessary to utilize those resources.
The imposition of Superior Truth works for the purposes of state whether it fails or succeeds. Even if it fails and is rejected by the target culture and population, and even if the target government is destabilized or even delegitimized, it works because then the US can step in with its increasingly imperial-gendarme military – which affords secure access to whatever resources (oil and natural gas especially, but also something as simple as geographic location on the Board of the Great Game) that ‘country’ controlled.
Neat.
And all under the guise of bringing to those who ‘just don’t get it’ the light of Progress and Truth. Just as imperial gambits of earlier centuries were secure in their good-intention of bringing the benefits of ‘civilization’ to the ‘benighted natives’.
You can see how these Perfect Storms and monster wildfires form.
In the SO mania, the imposition of such ‘superior Truth’ (about sex offenses and the incorrigible sexual violence of ‘men’) and the permanent emergency - that ominous term, that ominous claim – that such ‘superior Truth’ creates, have resulted in the government’s attempts to control a huge segment of the population* retroactively and preventively.
But while I have often been trying to raise the clear role of the pressure toward Regulation and Prevention, and the consequent dangers to the Constitutional ethos, from the Left over the past 45 years, I want to point out here the ominous developments from the Right, especially in the era of the so-called neocon Ascendancy, building up during the Reagan years but really bursting into florid power during the two Administrations of George W. Bush.
There were ideas fuelling it; it was not a mere ‘power grab’ by uneducated and ruthless characters.
And one of the most significant streams of ideas stemmed from a German political thinker who first made his mark coming up with justifications for Hitler’s governance (you can’t make this stuff up).
Carl Schmitt (who lived a long life, from 1888 to 1985) had made his mark as a Nazi Party member and enjoyed the special favor of Herman Goring in the 1930s, when Goring functioned as second only to Hitler in the governance of Germany.
It was Schmitt’s self-appointed task to justify the “Fuhrer” state and the “Fuhrerprinzip”, the principle that the sovereign power of the government, and of its Leader**, must not be allowed to be obstructed in its vital work by the slow, obstructive processes of participatory and parliamentary democracy. (While this impatience with the slow and obstructive aspects of democratic governance was also a hallmark of the more ‘revolutionary’ approach – Leninist, Stalinist and Maoist – that so soused the Sixties’ Left in this country, Schmitt was much more directly concerned not with widespread societal and cultural change but rather with the highly focused dynamics of actual governance at the highest levels.)
Schmitt’s claim to notoriety and ‘cutting edge’ thought was that his theories overturned Hegel’s late 18th-century espousal of the Beamtenstaat, the enlightened State administered by a corps of long-serving and dedicated civil servants. In Hegel’s view, the basing of the State only on the person of an “enlightened and benevolent despot” such as Frederick the Great was not reliable; you couldn’t always be sure that the monarchical despot would be a wise man (or, in such as Maria-Theresa of Austria and Catherine the Great of Russia, a woman), and in any case no single human being, no matter how enlightened and competent, could see to the thorough administration of policies, no matter how enlightened those policies might be.
So, thought Hegel, the enlightened State would need a dense layer of competent administrators dedicated, through generations, to the implementation of the State’s policies and laws. Hegel provided the philosophical underpinning for a realm of civil servants and for a Civil Service.
To Schmitt, by the early 1920s, this resulted in a layer of ‘obstruction’ that prevented The Leader from doing whatever it took to shape and rule (and ‘save’) the country. His thought clearly supported Hitler’s visions, as Hitler began his rise in the 1920s, making mockery of the Weimar Republic and the Weimar Constitution that grounded it.
The obstructive capacity of the German civil servants became ever clearer as Hitler’s views became more widely publicized in Germany and the brutality and barbarity of those views caused the civil servants to object to what was looming up in the midst of Germany’s efforts to make its nascent democracy work in the post-World War 1 era.
Schmitt tried to be the new Hegel who would sweep away Hegel’s outmoded theories and replace them with the Leadership Principle that would provide Germany with the force, drive, and focus by which the Leader would pull it together and take it forward. Hegel, it might be said in today’s terms, ‘just didn’t get it’ and Schmitt was going to provide the intellectual and ideological thinking that should be entertained by all those who ‘did get it’. Ach.
In 1934 he went so far as to start up his own newspaper, ominously entitled ‘The German Jurists’ Newspaper”, in which he opined for the nation’s legal classes and professionals that Hitler’s Night of the Long Knives, that bloody June night in 1934 when Nazi killing squads fanned out all over Germany to kill known opponents and ‘obstructors’ against the regime. Hitler had become Chancellor in January 1933 so this was an ‘act of state’.
This act, said Schmitt, was really “the highest form of administrative law”, because in the end law is the power of the State, and the most powerful expression of the State’s power is the power to kill in order to protect the State (and, of course, the Volk, the People).
This was not against the law because the Leader himself embodies the law and is ultimately responsible for saying what the law was; his mantra was “Der Fuhrer schutzt das Recht”, the Leader (and only the Leader) defends the law.
Schmitt was captured by the Allies after the war, but refused de-nazification. Consequently, he was ineligible for academic positions but kept writing (and he would live another 40 years).
He kept hammering at the ideas he had published as early as 1921 (even before Hitler had begun his rise): the only good thing about the Weimar Republic, Schmitt opined, was that it gave the President the power to declare a state of emergency. Because, he continued, this was the very core and essence of sovereign power: the authority to say when the law was in effect and when to declare “an exception”, some period of time or area of public life where the law, by order of the sovereign power, was no longer in effect. (And you might start to see where Bush-Cheney got the idea that ultimately it is the President who says what’s right and what’s wrong, and when a law applies and when it doesn’t.)
You can see here a seed of the idea underlying the sex-offense mania: that there are times of such ‘emergency’ that the government (still the Congress here, but this was in the 1990s before Bush-Cheney) could declare ‘exceptions’ due to the ‘emergency’.
But of course, Schmitt insisted, whenever the Leader stepped outside the law, he did it for the sake of the nation – and anyway, the Leader was the law. Whatever the Leader said, was technically Law whether written down or not.
In such a situation, the sovereign authority could declare not only a state of emergency, but also what is in effect a ‘state of exception’: declaring that in this area of public affairs, the law does not apply in its usual way.
And against certain persons or groups of persons among the Citizenry. And history records what use Hitler’s Reich made of this idea.
As a current Italian political thinker, Giorgio Agamben, has noted, this leads not only to a throwback and a regression to the dynamics of ‘divine right monarchy’ and despotism, but also creates a stunning regression back to one of the more primitive elements of ancient Roman law: the homo sacer (pronounced satch-air).
In Latin the term translates simply into ‘sacred man’ (or person), but in Roman law it had a very specific meaning. A person could be declared sacer and this meant that he was no longer protected by the law, although he was still subject to obeying it. Such a person could not make sacrifices, was indeed a form of scapegoat or black-sheep within the general flock of the Roman citizenry; he could be killed, but killing him would not be ‘murder’ because he no longer enjoyed the status of Citizen or even of human. He would live (for however long he could manage it) as a sublime and solemn living example of the power of the State to withdraw its protection while retaining its authority over any individual.
It was a truly awesome display of State power, to a people who had become used to the protections of law as they had evolved in the Roman ethos.
You can see where such ideas, imported into the Beltway by neo-conservatives as they made their own climb throughout the 1980s and 1990s, could easily start to infect not only legislators (who might imagine that Congress would be ‘the sovereign power’ that could ‘declare exceptions’) but also the Executive Branch (where, in the person of the President, Schmitt would have imagined it to be).
You can see how this idea of ‘exception’ would appeal to a get-tough-on-crime mentality, giving prosecutors as well as legislators the idea that some persons and groups could be, in effect if not formally, declared to be ‘exceptions’, to be in effect if not formally, sacer.
And of course, all this bubbling brew could also be attractive to elements on the Left who were already convinced that ‘men’ were primarily nothing more than incorrigible sexual victimizers. In a sense, radical feminist thought had already declared ‘men’ to be sacer, incorrigible exceptions to the common humanity.
And the rise of ‘victimology’ and ‘victimism’, stemming from as far back as Reagan’s first administration, combined both Right and Left in those heady 1990s when the Left’s President and the Right’s Congress both eagerly sought to be-tough-on-crime.
And we all know where that went.
And Schmitt gets even worse. The sovereign authority to declare exception must be permitted to the government because it must be able to deal with ‘enemies’. The ‘enemy’, said Schmitt, is determined “existentially”; whoever is “in a specially intense way, existentially something different and alien”. Surely, the ‘sex offender’ is only a pen-stroke away from such a vision: ‘man’ and ‘incorrigibly sexually violent predator’ and insidious hunter of ‘the children’, an existential enemy of women, children, families, and public order and decency.
Government exists to wage war on such ‘enemies’. No wonder Congress is so ‘immune’ to genuine truth and facts about ‘sex offenders’; they are not a problem perhaps mistakenly construed by an overzealous legislative authority. They are, I think, creatures created by that legislative authority precisely to function as ‘existential enemies’. Sometimes I wonder: when we present legislators with truth about sex offender recidivism, are we really trying to suggest that a monster is loose to Dr. Frankenstein himself? Are we saying that the monster of Untruth is loose, and telling it to the very power that stayed up late in its mountaintop castle, stitched the thing together and turned it loose?
In his essay “The Concept of the Political”, Schmitt declares that it is primarily in its opposition to the “existential enemy” that the state and citizenry bond and remain united.
Worse, that “politics” itself is a matter of identifying your “enemy” as whoever disagrees with what you want to have or to see happen, and doing what you have to in order to reduce or eliminate the threat that such an ‘enemy’ poses to you.
An ‘enemy’ politics is death to the Constitutional vision of politics, and indeed is lethal to the Constitutional vision of the government’s relation to its Citizens.
The entire concept of homo sacer, of course, is equally lethal to the Constitutional vision of the Citizens as human beings with “inalienable rights” granted not by the government but by their very status as having been born as human beings.
But it plays right into the hands of Identity Politics and police-state government by ‘emergency’ and ‘exception’.
You don’t see much political philosophy mentioned in the media, but ideas do get around and when espoused by this or that group, whether a pressure group outside of government or a political group within government, they can wield awesome power. Especially if they are not fully understood by the Citizens.
Just so we understand.
NOTES
*I speak here not only of the 600,000-plus already on SO registries nor only of the untold hundreds of thousands who are now theoretically ‘eligible’ under the Adam Walsh Act. I also speak of the shadow group of 9 times that number that are inferred to exist since – as the mantra goes – only 1 out of 10 sex crimes are reported and so there are huge numbers of un-caught ‘sex offenders’ roaming the plains and streets like the fabled buffalo. And I speak also of the entire half of the Citizenry of the male gender, since the SO mania is clearly aimed at maleness, and presumes that male sexual violence is the most significant characteristic of the entire bunch (which is a hell of a way to try to run a democracy … which may be part of the reason why the country no longer really is one in the strict and ideal sense).
**As you may well know, the German word Fuhrer translates into the English ‘Leader’. It should have been a stark warning to all Americans when after 9-11 Beltway and White House staffers began to refer to Bush as “the Leader” informally but publicly. The mainstream media, alas, chose not to notice.
(I’ll start this Post by reprinting what I had put up as Addendum 2 to my previous Post, “The Death of Common Sense”. Then I’ll develop a bit more of some trends in political philosophy that deepen the understanding of the roots of not only the Regulatory and Preventive approach to statecraft but also to the matrix of SO laws, so often touted defensively by politicians and jurists as “merely regulatory”.)
I also point out the connection between all this Regulatory/Preventive theory and the dynamics underlying the Bill entitled the International Violence Against Women and Girls Act, about which I Posted earlier this month on both this and my other site.
If ‘more government means more liberation’, then naturally – in Lenin’s sense: we have the absolute Truth, so naturally we want to see the whole world accept it – the Identity advocacies want to see that other peoples and cultures ‘get it’ just the way they do and just the way they have (however imperfectly) gotten the government to impose it here.
As always, I point out one of the politically most lethal ramifications of Identity Politics, and especially of the subset called Gender Politics: one’s selected ‘identity’ – in this case ‘gender’ – overrides all other roles and identities that an individual might have. This includes being ‘human’ – which fractures the sense of common humanity, and being a Citizen of one’s country – which fractures the sense of the polity.
You can see how quickly lethal trouble would arise for any society whose government for whatever reasons embraced full-blown Identity and Gender Politics.
I also mentioned that the ‘progressive’ and Left desire to impose the ‘liberation’ of Gender Politics upon developing nations by piggy-backing the plan on the authority of the US government would dovetail with the intensifying US tendency to expand its control over as much of the under-developed world as possible in order to maintain a place at the Great Table and remain a player in the Great Game. And that in this regard, the quite possibly destabilizing effects upon any under-developed government that tried to comply with the US vision (as the Bill would have it): a revolt by its own people who would see, far more clearly than Americans have, just how much of an assault on the warp and woof of their culture such a vision constitutes.
You know, in a way we’re back to the late 1800s: this is Great Power politics and Great Power imperialism all over again. Except that where in the 19th century such imperialistic impositions were done under the auspices of a superior Truth as embodied in religion (Christianity, most often), now in the early 21st the superior Truth is purportedly embodied in the theories of Identity and Gender Politics and those adherents and cadres who ‘get it’.
But also as in the 19th century, there are more material and murkier objectives: back then it was ‘resources and markets’, and now it’s ‘resources’ more than markets. Because America is running out of resources and also out of the productive capabilities and even the productive ethos that forms the work force that can sustain the massive efforts necessary to utilize those resources.
The imposition of Superior Truth works for the purposes of state whether it fails or succeeds. Even if it fails and is rejected by the target culture and population, and even if the target government is destabilized or even delegitimized, it works because then the US can step in with its increasingly imperial-gendarme military – which affords secure access to whatever resources (oil and natural gas especially, but also something as simple as geographic location on the Board of the Great Game) that ‘country’ controlled.
Neat.
And all under the guise of bringing to those who ‘just don’t get it’ the light of Progress and Truth. Just as imperial gambits of earlier centuries were secure in their good-intention of bringing the benefits of ‘civilization’ to the ‘benighted natives’.
You can see how these Perfect Storms and monster wildfires form.
In the SO mania, the imposition of such ‘superior Truth’ (about sex offenses and the incorrigible sexual violence of ‘men’) and the permanent emergency - that ominous term, that ominous claim – that such ‘superior Truth’ creates, have resulted in the government’s attempts to control a huge segment of the population* retroactively and preventively.
But while I have often been trying to raise the clear role of the pressure toward Regulation and Prevention, and the consequent dangers to the Constitutional ethos, from the Left over the past 45 years, I want to point out here the ominous developments from the Right, especially in the era of the so-called neocon Ascendancy, building up during the Reagan years but really bursting into florid power during the two Administrations of George W. Bush.
There were ideas fuelling it; it was not a mere ‘power grab’ by uneducated and ruthless characters.
And one of the most significant streams of ideas stemmed from a German political thinker who first made his mark coming up with justifications for Hitler’s governance (you can’t make this stuff up).
Carl Schmitt (who lived a long life, from 1888 to 1985) had made his mark as a Nazi Party member and enjoyed the special favor of Herman Goring in the 1930s, when Goring functioned as second only to Hitler in the governance of Germany.
It was Schmitt’s self-appointed task to justify the “Fuhrer” state and the “Fuhrerprinzip”, the principle that the sovereign power of the government, and of its Leader**, must not be allowed to be obstructed in its vital work by the slow, obstructive processes of participatory and parliamentary democracy. (While this impatience with the slow and obstructive aspects of democratic governance was also a hallmark of the more ‘revolutionary’ approach – Leninist, Stalinist and Maoist – that so soused the Sixties’ Left in this country, Schmitt was much more directly concerned not with widespread societal and cultural change but rather with the highly focused dynamics of actual governance at the highest levels.)
Schmitt’s claim to notoriety and ‘cutting edge’ thought was that his theories overturned Hegel’s late 18th-century espousal of the Beamtenstaat, the enlightened State administered by a corps of long-serving and dedicated civil servants. In Hegel’s view, the basing of the State only on the person of an “enlightened and benevolent despot” such as Frederick the Great was not reliable; you couldn’t always be sure that the monarchical despot would be a wise man (or, in such as Maria-Theresa of Austria and Catherine the Great of Russia, a woman), and in any case no single human being, no matter how enlightened and competent, could see to the thorough administration of policies, no matter how enlightened those policies might be.
So, thought Hegel, the enlightened State would need a dense layer of competent administrators dedicated, through generations, to the implementation of the State’s policies and laws. Hegel provided the philosophical underpinning for a realm of civil servants and for a Civil Service.
To Schmitt, by the early 1920s, this resulted in a layer of ‘obstruction’ that prevented The Leader from doing whatever it took to shape and rule (and ‘save’) the country. His thought clearly supported Hitler’s visions, as Hitler began his rise in the 1920s, making mockery of the Weimar Republic and the Weimar Constitution that grounded it.
The obstructive capacity of the German civil servants became ever clearer as Hitler’s views became more widely publicized in Germany and the brutality and barbarity of those views caused the civil servants to object to what was looming up in the midst of Germany’s efforts to make its nascent democracy work in the post-World War 1 era.
Schmitt tried to be the new Hegel who would sweep away Hegel’s outmoded theories and replace them with the Leadership Principle that would provide Germany with the force, drive, and focus by which the Leader would pull it together and take it forward. Hegel, it might be said in today’s terms, ‘just didn’t get it’ and Schmitt was going to provide the intellectual and ideological thinking that should be entertained by all those who ‘did get it’. Ach.
In 1934 he went so far as to start up his own newspaper, ominously entitled ‘The German Jurists’ Newspaper”, in which he opined for the nation’s legal classes and professionals that Hitler’s Night of the Long Knives, that bloody June night in 1934 when Nazi killing squads fanned out all over Germany to kill known opponents and ‘obstructors’ against the regime. Hitler had become Chancellor in January 1933 so this was an ‘act of state’.
This act, said Schmitt, was really “the highest form of administrative law”, because in the end law is the power of the State, and the most powerful expression of the State’s power is the power to kill in order to protect the State (and, of course, the Volk, the People).
This was not against the law because the Leader himself embodies the law and is ultimately responsible for saying what the law was; his mantra was “Der Fuhrer schutzt das Recht”, the Leader (and only the Leader) defends the law.
Schmitt was captured by the Allies after the war, but refused de-nazification. Consequently, he was ineligible for academic positions but kept writing (and he would live another 40 years).
He kept hammering at the ideas he had published as early as 1921 (even before Hitler had begun his rise): the only good thing about the Weimar Republic, Schmitt opined, was that it gave the President the power to declare a state of emergency. Because, he continued, this was the very core and essence of sovereign power: the authority to say when the law was in effect and when to declare “an exception”, some period of time or area of public life where the law, by order of the sovereign power, was no longer in effect. (And you might start to see where Bush-Cheney got the idea that ultimately it is the President who says what’s right and what’s wrong, and when a law applies and when it doesn’t.)
You can see here a seed of the idea underlying the sex-offense mania: that there are times of such ‘emergency’ that the government (still the Congress here, but this was in the 1990s before Bush-Cheney) could declare ‘exceptions’ due to the ‘emergency’.
But of course, Schmitt insisted, whenever the Leader stepped outside the law, he did it for the sake of the nation – and anyway, the Leader was the law. Whatever the Leader said, was technically Law whether written down or not.
In such a situation, the sovereign authority could declare not only a state of emergency, but also what is in effect a ‘state of exception’: declaring that in this area of public affairs, the law does not apply in its usual way.
And against certain persons or groups of persons among the Citizenry. And history records what use Hitler’s Reich made of this idea.
As a current Italian political thinker, Giorgio Agamben, has noted, this leads not only to a throwback and a regression to the dynamics of ‘divine right monarchy’ and despotism, but also creates a stunning regression back to one of the more primitive elements of ancient Roman law: the homo sacer (pronounced satch-air).
In Latin the term translates simply into ‘sacred man’ (or person), but in Roman law it had a very specific meaning. A person could be declared sacer and this meant that he was no longer protected by the law, although he was still subject to obeying it. Such a person could not make sacrifices, was indeed a form of scapegoat or black-sheep within the general flock of the Roman citizenry; he could be killed, but killing him would not be ‘murder’ because he no longer enjoyed the status of Citizen or even of human. He would live (for however long he could manage it) as a sublime and solemn living example of the power of the State to withdraw its protection while retaining its authority over any individual.
It was a truly awesome display of State power, to a people who had become used to the protections of law as they had evolved in the Roman ethos.
You can see where such ideas, imported into the Beltway by neo-conservatives as they made their own climb throughout the 1980s and 1990s, could easily start to infect not only legislators (who might imagine that Congress would be ‘the sovereign power’ that could ‘declare exceptions’) but also the Executive Branch (where, in the person of the President, Schmitt would have imagined it to be).
You can see how this idea of ‘exception’ would appeal to a get-tough-on-crime mentality, giving prosecutors as well as legislators the idea that some persons and groups could be, in effect if not formally, declared to be ‘exceptions’, to be in effect if not formally, sacer.
And of course, all this bubbling brew could also be attractive to elements on the Left who were already convinced that ‘men’ were primarily nothing more than incorrigible sexual victimizers. In a sense, radical feminist thought had already declared ‘men’ to be sacer, incorrigible exceptions to the common humanity.
And the rise of ‘victimology’ and ‘victimism’, stemming from as far back as Reagan’s first administration, combined both Right and Left in those heady 1990s when the Left’s President and the Right’s Congress both eagerly sought to be-tough-on-crime.
And we all know where that went.
And Schmitt gets even worse. The sovereign authority to declare exception must be permitted to the government because it must be able to deal with ‘enemies’. The ‘enemy’, said Schmitt, is determined “existentially”; whoever is “in a specially intense way, existentially something different and alien”. Surely, the ‘sex offender’ is only a pen-stroke away from such a vision: ‘man’ and ‘incorrigibly sexually violent predator’ and insidious hunter of ‘the children’, an existential enemy of women, children, families, and public order and decency.
Government exists to wage war on such ‘enemies’. No wonder Congress is so ‘immune’ to genuine truth and facts about ‘sex offenders’; they are not a problem perhaps mistakenly construed by an overzealous legislative authority. They are, I think, creatures created by that legislative authority precisely to function as ‘existential enemies’. Sometimes I wonder: when we present legislators with truth about sex offender recidivism, are we really trying to suggest that a monster is loose to Dr. Frankenstein himself? Are we saying that the monster of Untruth is loose, and telling it to the very power that stayed up late in its mountaintop castle, stitched the thing together and turned it loose?
In his essay “The Concept of the Political”, Schmitt declares that it is primarily in its opposition to the “existential enemy” that the state and citizenry bond and remain united.
Worse, that “politics” itself is a matter of identifying your “enemy” as whoever disagrees with what you want to have or to see happen, and doing what you have to in order to reduce or eliminate the threat that such an ‘enemy’ poses to you.
An ‘enemy’ politics is death to the Constitutional vision of politics, and indeed is lethal to the Constitutional vision of the government’s relation to its Citizens.
The entire concept of homo sacer, of course, is equally lethal to the Constitutional vision of the Citizens as human beings with “inalienable rights” granted not by the government but by their very status as having been born as human beings.
But it plays right into the hands of Identity Politics and police-state government by ‘emergency’ and ‘exception’.
You don’t see much political philosophy mentioned in the media, but ideas do get around and when espoused by this or that group, whether a pressure group outside of government or a political group within government, they can wield awesome power. Especially if they are not fully understood by the Citizens.
Just so we understand.
NOTES
*I speak here not only of the 600,000-plus already on SO registries nor only of the untold hundreds of thousands who are now theoretically ‘eligible’ under the Adam Walsh Act. I also speak of the shadow group of 9 times that number that are inferred to exist since – as the mantra goes – only 1 out of 10 sex crimes are reported and so there are huge numbers of un-caught ‘sex offenders’ roaming the plains and streets like the fabled buffalo. And I speak also of the entire half of the Citizenry of the male gender, since the SO mania is clearly aimed at maleness, and presumes that male sexual violence is the most significant characteristic of the entire bunch (which is a hell of a way to try to run a democracy … which may be part of the reason why the country no longer really is one in the strict and ideal sense).
**As you may well know, the German word Fuhrer translates into the English ‘Leader’. It should have been a stark warning to all Americans when after 9-11 Beltway and White House staffers began to refer to Bush as “the Leader” informally but publicly. The mainstream media, alas, chose not to notice.
Subscribe to:
Posts (Atom)
Posts
