I have to add this quickly (less than a day after my previous Post) because it relates clearly to what I raised in that Post.
Following the President’s (alas, frak, and oy gevalt) appearance on his cable TV show, John Walsh, former hotel worker and now unofficial Sex Offense Czar, made a claim so patently clear in its frakkulous manipulation of truth and reality that it has to be widely disseminated to the SO community.
I had mentioned in a prior Post this oft-asserted number of “100,000” “missing” sex offenders allegedly patrolling the highways, byways, and residential streets of the country. It immediately brings back memories of the alleged hundreds of thousands of “missing, abused, kidnapped children” who back in the 1970s became the justification for all the “missing children” on milk cartons and so forth.
It turned out upon rational examination (that’s how long ago it was) that this number was derived by including children taken by a parent or grandparent, or older kids who hadn’t come home on time on a weekend night, or older teens who for whatever reason had simply left home.
AND THEN that number was ‘extrapolated’ on the assumption that only 10% of this sort of thing is ever reported, so the official – so to speak – numbers were then simply multiplied by 10.
It was also conceivable that every unsolved ‘missing child’ report going back decades was also tossed into the pot to ‘build up the numbers’.
Mr. Walsh has often used the number, though he is hardly the only one. It became a number quoted by legislators looking to show that there was indeed ‘an emergency’ and that anybody who wanted to stop and think in the middle of such ‘an emergency’ was either ‘insensitive’, ‘unresponsive’, or perhaps a child-napper himself.
THEN we saw in the Adam Walsh Act ‘justifications’ that there are also 100,000 ‘unregistered sex offenders’ roaming across state lines – thus of course the feds, through Congressional legislation, had to get involved since the ‘poor’ States just didn’t have the resources or authority to clean up Dodge.
The Megan’s Law advocacy group that was recently seen trying to get Sen. Schumer and Rep. King (both of NY) to get them millions in federal funds (and NCIC-access authorization) in order to do their own hunting also used the “100,000” number.
The line between ‘advocacy’ and ‘enforcement’ seems to be blurring substantially.
NOW, however, Mr. Walsh has taken the game to a new level. As demonstrated in an article (and video clip) on the Sex Offender Research site for Monday, March 29th, 2010 entitled “’100,000 Missing Sex Offenders’ has been the call to arms for years now”, Mr. Walsh – no doubt fortified by the President’s frakkulent pat on the head – is now claiming that there are “100,000 TIER III” (that AWA classification for the ‘worst of the worst’) sex offenders missing.
Apparently the President’s rah-rah push has emboldened the advocates-and-wanna-be –enforcers to ratchet up the ‘emergency’ – which may also be necessary as more and more police agencies realize that a) they don’t have the money and manpower to do all this hunting and/or b) the sex-offender laws don’t really work and aren’t worth the diversion of resources.
I want to build on a comment I made a couple of Posts ago: while a government at the height of its power retains by its very nature the tendency to intrude into the lives of its Citizens and into the vast realm of the national life in which the Framers precisely did not want such an untamed (and untamable) animal to roam free in – which is why they built the Constitutional cage for it – yet it is even more true that a failing government will resort to controlling its Citizens.
This is built-into the nature of the government dynamic and has been since the dawn of human civilization (as the Framers clearly realized). First, no government yields its powers (even illicit ones) willingly, and as its power weakens, it will lash out with what authority remains in order to preserve its turf (even from its own people or – in the American setting – The People who own it).
Second, as it becomes clear that the Emperor has no clothes, the government will have to resort to force and control in order to compensate for the now-dissolving ‘soft’ power of hiding behind the happy-face illusions by which tooooo many folks assure themselves that ‘the government’s OK and I can trust it’.
And since the government had to resort to ‘soft’ power of ‘illusion’ and the manipulation of ‘framing’ and ‘attitude’ in America’s long-established (but eroding) democracy, then it had to don the sheep’s clothing of Victim-Rescuer, Victim-Protector, and general Mommy-Nanny presiding over a table full of Citizen-Victims in order to mask the engorgement of its intrusive police power.
And this has led to the Regulatory-Preventive State, especially over the past 40 frakkulous years.
Add to this that – like their government enablers – ‘advocacies’ need to ‘keep up the numbers’ in order to maintain their operations (and get tax dollars as well as contributions, and even get access to assorted ‘police’ powers, like accessing the NCIC). So if a successful advocacy is going to trumpet its allegedly justifying ‘numbers’, a failing advocacy is going to have to do even more such trumpeting and manipulation.
But this does not mean to imply that their numbers – or their ‘emergencies’ – were ever honestly presented to begin with.
There are awful things done every day in any human grouping. And in a grouping of 300 million that has been cast loose from its moral and ethical moorings by 40 years of government-supported ‘deconstruction’ this risk is certainly intensified. (Although, actually, the violent crime rates are declining, as they have been since before the 1990s were underway.)*
But to exaggerate the numbers or effects of such sinful (to use the ‘old term’) actions is equally immoral. The actions, for example, instigated by such manipulative and frankly untruthful advocacy – actions taken by government and courts and police agencies at all levels – have hugely warped and weakened the Constitutional ethos of the country, unbalancing the careful calibration of the Framers’ construction.
Frankly, I tend to trust ‘advocacy’ numbers about as much as I used to trust the Five O’Clock Follies numbers released by Pentagon flacks in Saigon every weekday afternoon. Which is to say, Not Much.
The job of every good Citizen is to Kick Tire, especially government tire; not to be one of a huge herd of extras in some staged stampede. What are we – cattle? I wouldn’t even want to be a Texas Longhorn, if it meant relinquishing the dignity of discharging the duties of a Citizen.
This is a non-gender specific assertion. While there’s nothing wrong with attending a show or watching a sporting event, folks whose main sense of Meaning and Purpose and Consolation in life is to be a bobby-soxer (I’m dating myself) or a Sports-Fan (with capitals) need to wake up and smell the national coffee. The same goes for weed-whacked rock concert goers (dating myself again) and most surely goes for the current generations of youth for whom all sorts of hand-held electronic gadgets now provide not simply an escape from the real world’s challenges but an illusory ‘citizenship’ in a virtual world of profound illusion.
But to ‘advocates’ I will say this: it’s not enough to ‘advocate’, even in a good cause (and who – let’s face it – ever thinks they’re advocating in a baaaad cause?). Truth with a capital T has to ‘judge’ every advocacy action and every advocacy statement, and every advocate is responsible to provide his/her fellow/sister Citizens accurate information.
Otherwise, advocacies become just another huckster show along the honky-tonk midway at the national Fair, another sleazy carny act, and wind up causing as much damage as those crew-cut paragons who stood up in those air-conditioned tents in Saigon, with the flag behind them, and rattled off all the evidence and statistics that proved we were winning and it wouldn’t be long now if we just went a little bit further along the path.
This is, famously, what happens in 'war': Truth is always the first casualty. Fair enough - when you're in a declared and actual 'war'. But the great danger to American civizilization and culture and democracy has been to declare yourself (or your Identity or your sibling-sufferers) in a metaphorical 'war' while at the same time most really and actually damaging Truth.
And if the old wisdom be true, then to screw up Truth is to screw-up Reality, since the two are somehow connected.
Whether you might have a soft spot for Ike, JFK, LBJ, or Nixon – you can’t escape the humbling reality that Truth was taken to an undisclosed location and held in custody (even though no charges could be found to prefer against It) indefinitely.
Which, it turns out, means ‘even unto now’.
NOTES
*And I am leaving out those actions which are of questionable morality: into which category some might put abortion or starting and continuing several invasive and preventive wars and getting hundreds of thousands killed and millions maimed – among whom are lots of ‘children’, although maybe they don’t count because they’re not ‘ours’ and anyway, they’re dying in the cause of ‘liberation’ one way or another. Of course, in the matter of abortion, they are not – some would say – ‘children’ at all, so morality doesn’t enter into it. Interesting times indeed.
Showing posts with label AWA. Show all posts
Showing posts with label AWA. Show all posts
Friday, April 2, 2010
Wednesday, March 10, 2010
FUNDING FOR ADAM WALSH ACT
The excellent Sex Offender Research (SOR) site has a March, 8, 2010 report on how Congress is putting up money for the implementation of AWA, to be made available as part of the long-standing Byrne law enforcement grants to States.
It can be no coincidence that Obama recently appeared with John Walsh, the former hotel worker who has become the real-life national ‘Horatio Cane’ (the ‘CSI-Miami’ ubercop played by David Caruso) and promised the viewing audience that he – the President – will see to it that AWA is funded.
As I’ve mentioned in previous Posts, there is a verrrrry strong possibility that as assorted legislative and executive efforts to address the REAL major national problems (the economy and jobs, the increasing list of – unsuccessful – wars) fail, the pols will revert to their handy default mode and distract everybody with the gambit of going after ‘sex offenders’.
Of course, this will mean stoking up ‘fear’ (and where ‘facts don’t matter’ then ‘fear’ will flow in like a sludge-flood to fill up the vacuum). And stoking up fear (and hatred, rational or otherwise – mostly otherwise) has been the gambit-of-choice for pols at least since ‘hating men and patriarchy’ became the Correct national attitude decades ago.
I’m not going for the grandstand or the peanut-gallery here when I say that this is an old and hoary gambit: that German government of 1933-1945 was verrry big on stoking up fear and hatred against the national and cultural ‘others’ – the sub-humans and the lives unworthy-of-life. And that government didn’t invent this: there is a timeless downside to the human capacity to ‘judge’ and pre-judge: if emotions like fear and hate are not tempered by rational assessment, then terribly damaging public stampedes can (and probably will) result.
That 1933-1945 government’s contribution was simply to organize it on an industrial, nation-wide scale, placing behind it the full weight and power of a modern government’s ability to manipulate and control public information and consequently public opinion.
So, as I’ve said before, the US didn’t just take the rockets, the blitzkrieg strategy, and the shape of the military helmets as spoils of war in 1945. It took the propaganda playbook of the suddenly-late Dr. Goebbels as well. (But – of course – being the US, the plays would only be run in ‘good’ causes. Yah.)
So now Obama – finding himself in his present unenviable political position – has put himself behind the AWA and all its pomps and all its works. Facts may not matter, votes do. So a sound-bite session with Mr. Walsh might garner a few, and nowadays that’s pretty much all the game’s about.
Think of it, I guess, as a ‘surge’ that will bring ultimate victory.
Although how you will get to a ‘zero-risk’ situation where ‘sex offenders’ will never be able to commit another offense seems as difficult a question as how a few thousand more boots on the ground are going to turn Afghanistan into a model democracy reliably allied to the US.
But that’s the ‘dream’ (to borrow Teddy K’s favorite trope; which in matters of foreign policy he shared with the neocons). And nowadays, with reality becoming increasingly worrisome and unpleasant to contemplate, ‘dreaming’ seems like a lot more fun thing to do. Which, if memory serves, was the Flower Children’s favorite excuse for cutting classes, going to San Francisco, toking up a fogbank of dope, and making love in the park in the afternoon. What was not to like?
How you will stamp out the human weakness or malice (it used to be called 'Sin') that causes crime is anybody's guess. And for that matter, why only this kind of weakness-malice-Sin? Murderers, bank-robbers, financial whizzes with their Ponzi schemes for easy enrichment, even treacherous liars who wheedle the country into frakkulous wars ... can any government stamp any of that out? Would it even want to try?
But 'sex offenders' are ... well, 'sex offenders' - as if that bit of circular reasoning means anything.
The SOR site also provides the relevant snippets from the assorted general funding bills. Over 2 billion dollars (as that term may be defined these days) is going to the States in Byrne money.
However, there are a lot of other special interest kitties looking for that cream, as you can see in the text of the assorted Bills. And that’s before you get to the amounts of money necessary to pay police officers for getting extra education and departments buying equipment and so forth.
So just how much of all that money will wind up in the AWA bowl is another question.
But this is clearly a Beltway effort to blunt the greatest objection the States have raised to implementing AWA: it’s going to cost them a lot of money and constitutes – that dangerous term that warns the Beltway it’s gone too far – an “unfunded mandate”. So the Beltway will now add ‘funds’ to sweeten the pot and gild the philosophic pill, as it were.
Understandably, the States have not made quite so much of a point about the inefficiency and downright uselessness of the whole SORN concept. After all, who wants to come right out and say that the plan – and perhaps the Emperor – has no clothes?
The whole Beltway game-plan for decades has been an exercise in simply getting folks to either imagine that the Emperor-Beltway has lots of nice clothes on, or at least to keep their un-Correct and 'negative' thoughts to themselves.
Will it work?
Stay tuned, sportsfans.
It can be no coincidence that Obama recently appeared with John Walsh, the former hotel worker who has become the real-life national ‘Horatio Cane’ (the ‘CSI-Miami’ ubercop played by David Caruso) and promised the viewing audience that he – the President – will see to it that AWA is funded.
As I’ve mentioned in previous Posts, there is a verrrrry strong possibility that as assorted legislative and executive efforts to address the REAL major national problems (the economy and jobs, the increasing list of – unsuccessful – wars) fail, the pols will revert to their handy default mode and distract everybody with the gambit of going after ‘sex offenders’.
Of course, this will mean stoking up ‘fear’ (and where ‘facts don’t matter’ then ‘fear’ will flow in like a sludge-flood to fill up the vacuum). And stoking up fear (and hatred, rational or otherwise – mostly otherwise) has been the gambit-of-choice for pols at least since ‘hating men and patriarchy’ became the Correct national attitude decades ago.
I’m not going for the grandstand or the peanut-gallery here when I say that this is an old and hoary gambit: that German government of 1933-1945 was verrry big on stoking up fear and hatred against the national and cultural ‘others’ – the sub-humans and the lives unworthy-of-life. And that government didn’t invent this: there is a timeless downside to the human capacity to ‘judge’ and pre-judge: if emotions like fear and hate are not tempered by rational assessment, then terribly damaging public stampedes can (and probably will) result.
That 1933-1945 government’s contribution was simply to organize it on an industrial, nation-wide scale, placing behind it the full weight and power of a modern government’s ability to manipulate and control public information and consequently public opinion.
So, as I’ve said before, the US didn’t just take the rockets, the blitzkrieg strategy, and the shape of the military helmets as spoils of war in 1945. It took the propaganda playbook of the suddenly-late Dr. Goebbels as well. (But – of course – being the US, the plays would only be run in ‘good’ causes. Yah.)
So now Obama – finding himself in his present unenviable political position – has put himself behind the AWA and all its pomps and all its works. Facts may not matter, votes do. So a sound-bite session with Mr. Walsh might garner a few, and nowadays that’s pretty much all the game’s about.
Think of it, I guess, as a ‘surge’ that will bring ultimate victory.
Although how you will get to a ‘zero-risk’ situation where ‘sex offenders’ will never be able to commit another offense seems as difficult a question as how a few thousand more boots on the ground are going to turn Afghanistan into a model democracy reliably allied to the US.
But that’s the ‘dream’ (to borrow Teddy K’s favorite trope; which in matters of foreign policy he shared with the neocons). And nowadays, with reality becoming increasingly worrisome and unpleasant to contemplate, ‘dreaming’ seems like a lot more fun thing to do. Which, if memory serves, was the Flower Children’s favorite excuse for cutting classes, going to San Francisco, toking up a fogbank of dope, and making love in the park in the afternoon. What was not to like?
How you will stamp out the human weakness or malice (it used to be called 'Sin') that causes crime is anybody's guess. And for that matter, why only this kind of weakness-malice-Sin? Murderers, bank-robbers, financial whizzes with their Ponzi schemes for easy enrichment, even treacherous liars who wheedle the country into frakkulous wars ... can any government stamp any of that out? Would it even want to try?
But 'sex offenders' are ... well, 'sex offenders' - as if that bit of circular reasoning means anything.
The SOR site also provides the relevant snippets from the assorted general funding bills. Over 2 billion dollars (as that term may be defined these days) is going to the States in Byrne money.
However, there are a lot of other special interest kitties looking for that cream, as you can see in the text of the assorted Bills. And that’s before you get to the amounts of money necessary to pay police officers for getting extra education and departments buying equipment and so forth.
So just how much of all that money will wind up in the AWA bowl is another question.
But this is clearly a Beltway effort to blunt the greatest objection the States have raised to implementing AWA: it’s going to cost them a lot of money and constitutes – that dangerous term that warns the Beltway it’s gone too far – an “unfunded mandate”. So the Beltway will now add ‘funds’ to sweeten the pot and gild the philosophic pill, as it were.
Understandably, the States have not made quite so much of a point about the inefficiency and downright uselessness of the whole SORN concept. After all, who wants to come right out and say that the plan – and perhaps the Emperor – has no clothes?
The whole Beltway game-plan for decades has been an exercise in simply getting folks to either imagine that the Emperor-Beltway has lots of nice clothes on, or at least to keep their un-Correct and 'negative' thoughts to themselves.
Will it work?
Stay tuned, sportsfans.
Wednesday, February 24, 2010
SPANGLER V. OHIO
I’ve read over this Opinion.
It’s has one or two fresh points for the SO community, and a lot of the old stuff.
But the Dissent by Justice Cannon is refreshing and verrry significant.
The text of the Opinion and the Dissents is here. It is also linked at a short piece on the Constitutional Fights site under date of February 19, 2010.
Since the Opinion and Dissents are given paragraph numbers, then when I refer to the text I’ll only use the paragraph number – e.g. ‘Para. 34’.
Spangler was convicted, at age 73, in January of 2001, of exposing himself to and fondling several children. He was sentenced to 5 years of community service, required to register as a “sexually oriented offender” for 10 years, and to report to the Sheriff annually to verify his information. [Note: his classification as one of the lower-ranks of sex-offender was actually a part of the sentence passed by the trial court.]
But – ta-daaahhhh! – Ohio passed Senate Bill 10 (SB 10) in an effort to comply with the Adam Walsh Act (AWA). Consequently on November 26, 2007 Spangler got a Notice from the State Attorney General stating that he had been re-classified according to the AWA scheme as a Tier II offender, with concomitant increase in his registration requirements which, among other things, required a personal appearance before the Sheriff every 180 days for 25 years.
Spangler contested that reclassification, as is provided for in Ohio law. The judge in that March 2008 Hearing denied his Petition to Contest and re-classified him as a Tier II sex offender, conforming to the AWA-SB 10 scheme.
Spangler appealed to the State Appeals Court and this is the June, 2009 Opinion of that Court.
Spangler raises several issues (which the Court, for purposes of clarity, considers out of their original order).
In his first assignment of error (Para.16) Spangler raises the Ex Post Facto objection. Nope, the Court says (Para.19): The legislative intent of the Act is merely to inform the public “so that it can develop constructive plans” to prepare for the offender’s release because this is a “paramount government interest” and the Registration and Notification (and the Classification) will further that goal by facilitating the exchange of “relevant information” among law enforcement agencies and the public and as such “is not punitive” in its intent.
We’ve heard all this before. As I’ve said, it is hard to imagine what “constructive plans” any of the public would make, and every possibility that the public will wind up making ‘destructive plans’ (if I may) to simply get rid of him and his family (if any) by any means necessary.
And I can’t help but wonder if the Federal government’s “paramount interest” isn’t Constitutionally assigned to the State government (so that the Federal government can concentrate its efforts on more important stuff like – oh, say – the economy and the increasing number of foreign wars; this ‘government interest’ phrase seems to confuse the Constitutionally-assigned roles of State and Federal government … but then maybe the Feds got into this thing precisely to distract folks from the Beltway’s failures in matters of the economy and the wars).
And knowing what is now known about sex-offender ‘recidivism’ (it’s verrrrry low in just about every respect) then just how accurate and relevant is the “relevant information”?*
BUT the Court then comes up with this encouraging point: “However, to the extent the application of the Adam Walsh Act requires final sentencing orders to be vacated, modified or rewritten, such application to previously journalized orders, no matter how well-intended, violates the separation of powers doctrine and res judicata”. (‘Res judicata’ means: something already adjudged.)
This means that if your classification was made part of the original court sentence, then neither the Executive nor the Legislature can make the Judiciary (separation of powers) change a judicial decision that has already been formally made (res judicata).
This will be of great help if an SO was classified as part of the original sentence. Otherwise, not so much.
I note also that the Decision here clearly refuses to allow the ‘good intentions of the government’ argument to trump the clear Constitutional boundaries. I doubt the Court – given the rest of this Decision – is concerned for sex-offenders; but when it comes to a turf struggle over the Separation of Powers the Court stands tall quickly and decisively.
In Para.25 the Court makes reference to the Ohio legislature’s “Findings”. These are the same grossly flawed and inaccurate assertions that we have seen in SO laws since the beginning: “’that all sex offenders pose a risk of engaging in further sexually abusive behavior after being released from prison and that the protection of the public from those offenders is a paramount governmental interest.’ Id. Similarly, the current changes to the Act reflect the understanding that all sex offenders, by virtue of having committed ‘sexually oriented offenses’ pose a risk of committing further sexually oriented offenses”.
You have to ask yourself not just When legislatures are going to get around to catching up with the actual facts but Why they haven’t done so already. Lawmakers who seem to be spending a whole lotta time coming up with new SO restrictions don’t seem to be spending much time on keeping up with facts now discovered that are seriously relevant to the whole sex-offense situation.
You begin to wonder if the pols have been telling themselves for wayyyy too long that “facts don’t matter”. And you wonder what could possibly be so important as to deform and derange so vital an element of legislative integrity as making sure that they laws you are passing are based in actual fact. At this stage it seems like the SO laws are based on the equivalent of ancient astrology rather than up-to-date astrophysics. This is not a good thing – for the legitimacy and credibility of the legislatures and legislators as well as for the general integrity of the legislative process.
In his second assignment of error, Spangler raises the Retroactive objection: that the government cannot punish persons retroactively by increasing punishments and applying them to crimes committed before the increases were legislated into effect. Nope, says the Court (Para.31): the Ohio Supreme Court has already held that increased “burdens” do not constitute increased punishment and don’t alter the essentially non-punitive nature of the [AWA-SB 10] scheme. It goes on to quote that Court that “with the exception of Ex Post Facto laws, felons have no right to expect that their conduct will never thereafter be made the subject of legislation”.
This is an insidious, indeed a treacherous, double-whammy. First you introduce the distinction between “punishment” and “burden” – which seems to me a distinction without a difference. Second, you say that felons can never be sure they won’t be further “burdened” even after they have paid their debt to society.
Spangler then raises the issue of double-jeopardy: that he is being punished again for something he has already been punished and paid his debt for. Nope, says the Court (Para. 34): since the “burden” is not a punishment, then he’s not being punished twice.
You see where these court pronouncements start to sound like the Red Queen lecturing Alice.
Spangler then raises the issue that residency restrictions violate his Constitutional rights to due process and his right to privacy. Nope, says the Court (Paras.38-40): since Spangler is not proven in the filings to be actually liable to residency restrictions, then he has no Standing to bring the objection.
It’s true, technically. Although the chances are better than good that he – like just about any SO – stands a good chance of getting slapped with such restrictions sooner or later.
Spangler then raises the objection that as a Tier II offender he will be subjected to more onerous Notification procedures than existed when he was originally sentenced. Nope, says the Court (Paras. 42-43): as a Tier II offender he is not subject to increased Notification requirements.
Spangler then raises the objection that the amended provisions of SB 10 violate the Separation of Powers doctrine since SB 10 authorizes the Attorney General, a member of the Executive Branch, to assign punishment. Nope, says the Court (Paras. 48-49): we already said that the enhanced “burdens” are not a punishment, and on top of that the new requirements come not from the Executive Branch but from a new law [i.e. SB 10] passed by the Legislature, which is what the Legislature is authorized to do (see also Para. 53).
BUT, adds the Court (Para.57), once a trial court issues its sentence, and neither side (defendant or State) appeals that judgement, then the judgement is finalized as an act of the Judicial Branch and under the doctrine of res judicata it cannot be changed by the acts of any other Branch. So, the Court says (Para.58): “Since Spangler’s classification as a sexually oriented offender with definite registration requirements constituted a final order of the lower court, Spangler cannot, under separation of powers and res judicata principles, now be reclassified under the provisions of the amended Act with differing registration requirements”.
Again, this is good news for any SO whose classification was included in part of the original trial court’s sentence and was not appealed within the time limits by either the defendant or the State.
Nicely, the Court (Para. 60) says it again: “It does not matter that the current Sex Offender Act formally amends the underlying law and does not order the courts to reopen final judgments. The fact remains that the General Assembly “cannot annul, reverse or modify a judgment of a court already rendered.” Bartlett, 73 Ohio St. at 58. Spangler’s reclassification, as a practical matter, nullifies that part of the court’s April 27, 2001 Judgment ordering him to register for a period of ten years as a sexually oriented offender. To assert that the General Assembly has created a new system of classification does not solve the problem that Spangler’s original classification constituted a final judgment. There is no exception to the rule that final judgments may not be legislatively annuled [sic] in situations where the Legislature has enacted new legislation”.
And it does it again in Para 63: “In the present case, Spangler had every reasonable expectation of finality in the trial court’s April 27, 2001 Judgment Entry, i.e. that he would have to comply with five years of community control sanctions, pay the fine of $350, and register for a period of ten years as a sexually oriented offender”.
And just to make sure that there is no misunderstanding in regard to AWA, the Court says so bluntly in Para. 67: “To the extent the Adam Walsh Act attempts to modify existing final sentencing judgments, such as Spangler’s sentence, it violates the doctrines of separation of powers and finality of judicial judgments, despite the good intentions of the Legislature. As such, that portion of the Act is invalid, unconstitutional, and unenforceable”. [italics mine]
And once again I note that the Court goes out of its way to point out that in this matter – at least – “the good intentions of the Legislature” are not enough to ignore a major Constitutional principle. Let’s hope this not-really-new principle catches on in other aspects of Court review of SO legislation.
There follow two Dissents. The second one (Paras. 110-113), by Justice Mary Jane Trapp, is a short one that thinks the added requirements do not constitute a violation of res judicata because of a technicality: the trial court’s sentencing order was only ‘final’ in the sense that it was ‘appealable’, not in any other sense. If it sounds a little odd, that’s because it is.
But the first Dissent, by Justice Timothy P. Cannon, starting at Para.69, is an impressive and encouraging goldmine. A law-student could do worse than to read it simply for its comprehensiveness, orderly progression, and incisive clarity. Oh, and for its common sense. A lot of sitting jurists could use their time well by reading it too.
Cannon writes that he agrees with the conclusion that Spangler’s sentence constitutes res judicata and no subsequent State or Federal legislation can change it, but he doesn’t agree with the analysis of the Ex Post Facto and Retroactivity arguments raised by Spangler (Para.69).
He does not think it proper for the State to adopt the (federal) AWA principle of classifying all SO’s merely on the blanket presumptions made in regard to their original crime-of-conviction, with no effort to examine each SO’s case individually: “This, I believe, would be a tremendous disservice to our Ohio and United States Constitutional protections. Certainly, to examine each case independently would require time and effort, but defense of the constitution against legislators who may be driven by public opinion and political security is the oath of every judge in this state” (Para.72).
Well said!
He tops that in Para.73: “In Ohio, as elected judges, we are forced to be a part of the political process. However, our oath directs that we protect, preserve, and defend the constitution. It does not allow us to wink at it when the political winds suggest it may be the popular thing to do”. You start to hear an acute intelligence and professional integrity that hasn’t been heard from much of the Bench or from the Legislative Branches (State or Federal) in quite a few years around here.
He disagrees with the Court’s analysis of ‘punitiveness’ because despite all the Ohio Supreme Court cases it cited in its majority Opinion “it is important to realize that while the Courts engaged in a weighing and balancing of interests as they related to the ex post facto clause, the Supreme Court of Ohio has yet to conduct an analysis weighing the impact of the additional burdens imposed by S.B. 10” (Para.74).
Here Justice Cannon is echoing the position of Ohio Supreme Court Justice Lanzinger (among others) who noted in her Dissent in another SO case that while originally – 15 or 20 years ago – the requirements on SOs may not have constituted so much of a burden as to be “in effect, if not in intent, punitive”, yet there has been such a pile-on since that time that it is now quite possible and maybe probable that the CUMULATIVE WEIGHT OF ALL THE BURDENS TAKEN TOGETHER now constitutes a tipping-point into ‘punitiveness’ (and that of course triggers the Ex Post Facto and Retroactivity principles of the Constitution).
Then, starting at Para. 76, Justice Cannon takes on the Court’s Ex Post Facto analysis: BUT, he says, when he examines the S.B. 10 Act it seems clear to him that the Legislature very much indeed intended it to be “punitive”. He thinks so because, despite the Legislature’s pious bleat that the law is not intended to be punitive, it is included in the Ohio Criminal Code and further that failure to comply will trigger criminal prosecution and penalties (Para.79).
Further, S.B. 10 requires classification within the criminal sentence of the trial court, and this is true even if the conviction is for a misdemeanor (Para. 80). As the Ohio laws state clearly, any “sanction” included in a sentence is thereby part of the punishment and sentence (Paras. 81-82).
Further, the much-increased amount of information required in the AWA-S.B. 10 scheme is to be placed on the internet for anybody – not just persons with a relevant need-to-know – to see (Para. 83).
Further, the Ohio Legislature provided for a Hearing before a court precisely to determine whether a person should be classified as a “sexual predator” and that was wise since otherwise Ohio would be flooded with numerous convictees who are not sexually dangerous and are mis-classified, which will not further the cause of community safety at all, and will actually degrade public safety (Paras. 85-86).
And then he makes the excellent point that: “Also of significance, the Eppinger Court noted that ‘[o]ne sexually oriented offense is not a clear predictor of whether that person is likely to engage in the future in one or more sexually oriented offenses, particularly if the offender is not a pedophile. Thus, we recognize that one sexually oriented conviction, without more, may not predict future behavior’” (Para. 87). [italics mine]
This observation goes to the heart of the numbers-scam in the SO laws, where the public is stampeded on the basis of alleged hordes of child-raping and murdering strangers while, in actuality, the vast majority of the many SOs are nothing of the sort: they either have committed far lesser offenses or have ‘re-offended’ only in the sense that they have technically fallen afoul of the byzantine reporting regulations. (Which sounds a lot like the Pentagon and Beltway habit of classifying any detainee as the ‘worst of the worst’, just to keep up the numbers. You can see the results of that scam at Gitmo. And you might wonder where the government in 2003 got that idea … perhaps from the great success it enjoyed in the SO mania.)
In a charming Colonial and Revolutionary usage, he notes that AWA demands a blanket crime-only assessment and classification, which amounts to a “ministerial rubber stamp on all offenders regardless of the mitigating facts in the individual case” (Para. 89). The term “ministerial” was used to describe the officials and troops of the British Crown back in the very early days of the Revolution when it was still thought here that it was the Prime Minister in London, and not the King, who was the source of all the American woes.
THEN, in that same paragraph, he puts his finger on another core AWA scam: “The legislative basis for this seems to be expert analysis that puts all offenders in one of two categories: those who have offended more than once, and those who have offended only once, but are going to offend again in the future”. This is a sleazy and treacherous Catch-22 that is not only insupportable as scientific method (it is not falsifiable) but is a cynical and corrosive imposition of the government police power upon Citizens who would – in the terms of the ‘expert analysis’ – have utterly no way of defending themselves.
Cannon continues on this marvelous roll: “While the legislature may be entitled to adopt this questionable approach to apply to offenders from the date of passing the legislation, I believe that neither the Ohio Constitution nor the United States Constitution permit the retroactive application of S.B. 10 in its current form to individuals such as appellant herein” (Para.90).
AND THEN he notes a most interesting and very relevant fact about the Ohio Court system: “Moreover, to date, the majority of the current justices on the Supreme Court of Ohio have objected to the characterization of Ohio’s sex offender classification system as a “civil” proceeding” (Para.91).
He goes on to explain in that paragraph that at one time or another, in SO cases, four of the Justices on the Ohio Supreme Court have put themselves on record as believing that either the SO laws are punitive to begin with, or have increased their ‘burdens’ on the SO to that tipping-point where the cumulative weight of their assorted restrictions renders them now “punitive”.
Which means that in one of the not-distant cases where an SO raises the ‘punitive’ objection before the Ohio Supreme Court, the majority of Justices will agree, thereby pulling the Constitutional rug out from under the whole scheme – or rather, pull from underneath the SO mania legislation the Constitution which too many pols have been using as a rug.
And then in Para. 92 he asserts that even if the Ohio General Assembly’s intent were truly non-punitive (a big If indeed) still in terms of this appellant (Spangler) S.B. 10 is unconstitutional because of its punitive effect.
He adds (Para. 95) that on top of all that, S.B. 10 cannot further the goals of retribution and deterrence when the classification of an offender is based solely on the crime committed, not on an individual’s recidivism potential. In saying this he again draws attention to the fact that there are substantive coherence-gaps not only between the alleged ‘civil’ intention of the legislatures but also between the stated goals of the SO laws and the actual requirements they impose on the purported authority to achieve those goals. If not actually dishonestly presented, they are conceptually incoherent even on their own terms.
But he hasn’t finished yet. In Para. 96 he asserts that even if the SO laws will provide for public safety and that SOs actually do pose the risk they are claimed to pose, still “if the statistics and public opinion are as viable as those perceived by the legislature, the appropriate avenue for the legislature would have been to amend the constitution to allow for the retroactive, ex post facto application of S.B. 10”.
IN OTHER WORDS if the statistics and public opinion are as supportive as the legislators are always claiming, then the really best route for all this SO stuff is simply TO AMEND THE STATE CONSTITUTION TO PERMT FOR THE RETROACTIVE AND EX POST FACTO APPLICATION OF THE SO LAW.
Roll that one around in your mind for a bit.
He is the first jurist I have come across to actually call this scam’s bluff: if everyone is so sure that these SO laws work and that SOs are so very liable to pose an ongoing threat, then put your money where your mouth is and amend the Constitution of your State (or the US Constitution) by gutting it of two of its most profoundly fundamental protections – against Ex Post Facto laws and Retroactive punishments – and have done with it.
Of course, not even the vote-addled and less-than-purely-principled legislators of this age would really want to do that. First of all, a Constitutional amendment of such profound proportions would open the door for some serious scrutiny – and all the genuine facts that may come out would likely break the spell of the stampede.
Worse, it would expose all the legislators who have supported these things (the ones who merely voted for them did so through such non-public subterfuges as voice-votes) to public exposure (as it were).
Worse even than that, it would create a precedent whereby the most essential Constitutional firewalls are now breachable if the ‘emergency’ is perceived to be great enough – and who knows where that might lead in the future? Even to the legislators themselves? Or their friends and their relations? Or their well-paying supporters?
And on top of all that, such a Constitutional Amendment would clearly reveal the essential (and perhaps indispensable) ANTI-CONSTITUTIONALITY of the entire corpus of SO mania legislation. And I think that - like Hitler deciding to take dictatorial powers LEGALLY and not mount an outright coup d'etat - the Regulatory-Preventive Nanny State and its various supporters, enablers, and cadres would prefer (with great success so far) to smuggle their anti-constitutionality into the national forum under the sheep's clothing of 'constitutional reform' and 'legislative and judicial responsiveness' rather than come right out and show their true intentions. But that's also why the Courts can't seem to stamp out the numerous objections ... they have to keep coming up with tortured reasoning based on grossly untruthful 'facts' and Findings.
I recall a line from a recent episode of “The Tudors”, where Sir Thomas More, soon to be executed, says to Chancellor Thomas Cromwell (whose own end was still a little ways off): “The only difference between you and me, Mr. Cromwell, is that I shall die today and you shall die tomorrow”. These are the awful and awesome uncertainties that are unleashed EVEN AMONG THE ELITES when a government descends from a rule of law to a rule of personal whim.
Justice Cannon continues with a scathing but subtle indictment of the whole SO mania: “However, the constitutional amendment should not be circumvented with a clever legislative preamble based on questionable statistical data. If that were the case, virtually every constitutional protection is subject to selective legislative amendment”.
As the screen used to say in the old Batman TV show: Biff! Pow!
In Paras. 98-105 he rehearses perceptively the many cases in Ohio where Megan’s Law and its ilk have been increasingly scrutinized (but not yet condemned) for the expansions in “burdens” that have taken place over the past 15 years.
He THEN notes (Para. 106) that in Ohio law, the Retroactivity principle applies not only to criminal but to civil cases. In which case, if expanded registration requirements are seen not as ‘collateral consequences of a criminal act’ but rather as part of the adjudicated sentence, then later ‘administrative adjustments’ do indeed violate a convictee-Citizen’s proper “expectation of finality”.
And he goes further to imagine that this would apply to all SOs in Ohio “except the most heinous” (who would have every reason to expect lifetime registration and notification requirements). Which opens up huge possibilities there.
So kudos to Justice Cannon and here’s hoping a lot of jurists – in Ohio and beyond – read his Dissent.
NOTES
*To brighten your day, read the DOJ-commissioned Vera Reports, available in a link on the Constitutional Fights site under date of February 22, 2010, as well as here and here. This pair of major studies pretty much find that the whole SO gambit is overblown and mis-directed and that there is little evidence that the SORNA schemes actually protect anybody.
It’s has one or two fresh points for the SO community, and a lot of the old stuff.
But the Dissent by Justice Cannon is refreshing and verrry significant.
The text of the Opinion and the Dissents is here. It is also linked at a short piece on the Constitutional Fights site under date of February 19, 2010.
Since the Opinion and Dissents are given paragraph numbers, then when I refer to the text I’ll only use the paragraph number – e.g. ‘Para. 34’.
Spangler was convicted, at age 73, in January of 2001, of exposing himself to and fondling several children. He was sentenced to 5 years of community service, required to register as a “sexually oriented offender” for 10 years, and to report to the Sheriff annually to verify his information. [Note: his classification as one of the lower-ranks of sex-offender was actually a part of the sentence passed by the trial court.]
But – ta-daaahhhh! – Ohio passed Senate Bill 10 (SB 10) in an effort to comply with the Adam Walsh Act (AWA). Consequently on November 26, 2007 Spangler got a Notice from the State Attorney General stating that he had been re-classified according to the AWA scheme as a Tier II offender, with concomitant increase in his registration requirements which, among other things, required a personal appearance before the Sheriff every 180 days for 25 years.
Spangler contested that reclassification, as is provided for in Ohio law. The judge in that March 2008 Hearing denied his Petition to Contest and re-classified him as a Tier II sex offender, conforming to the AWA-SB 10 scheme.
Spangler appealed to the State Appeals Court and this is the June, 2009 Opinion of that Court.
Spangler raises several issues (which the Court, for purposes of clarity, considers out of their original order).
In his first assignment of error (Para.16) Spangler raises the Ex Post Facto objection. Nope, the Court says (Para.19): The legislative intent of the Act is merely to inform the public “so that it can develop constructive plans” to prepare for the offender’s release because this is a “paramount government interest” and the Registration and Notification (and the Classification) will further that goal by facilitating the exchange of “relevant information” among law enforcement agencies and the public and as such “is not punitive” in its intent.
We’ve heard all this before. As I’ve said, it is hard to imagine what “constructive plans” any of the public would make, and every possibility that the public will wind up making ‘destructive plans’ (if I may) to simply get rid of him and his family (if any) by any means necessary.
And I can’t help but wonder if the Federal government’s “paramount interest” isn’t Constitutionally assigned to the State government (so that the Federal government can concentrate its efforts on more important stuff like – oh, say – the economy and the increasing number of foreign wars; this ‘government interest’ phrase seems to confuse the Constitutionally-assigned roles of State and Federal government … but then maybe the Feds got into this thing precisely to distract folks from the Beltway’s failures in matters of the economy and the wars).
And knowing what is now known about sex-offender ‘recidivism’ (it’s verrrrry low in just about every respect) then just how accurate and relevant is the “relevant information”?*
BUT the Court then comes up with this encouraging point: “However, to the extent the application of the Adam Walsh Act requires final sentencing orders to be vacated, modified or rewritten, such application to previously journalized orders, no matter how well-intended, violates the separation of powers doctrine and res judicata”. (‘Res judicata’ means: something already adjudged.)
This means that if your classification was made part of the original court sentence, then neither the Executive nor the Legislature can make the Judiciary (separation of powers) change a judicial decision that has already been formally made (res judicata).
This will be of great help if an SO was classified as part of the original sentence. Otherwise, not so much.
I note also that the Decision here clearly refuses to allow the ‘good intentions of the government’ argument to trump the clear Constitutional boundaries. I doubt the Court – given the rest of this Decision – is concerned for sex-offenders; but when it comes to a turf struggle over the Separation of Powers the Court stands tall quickly and decisively.
In Para.25 the Court makes reference to the Ohio legislature’s “Findings”. These are the same grossly flawed and inaccurate assertions that we have seen in SO laws since the beginning: “’that all sex offenders pose a risk of engaging in further sexually abusive behavior after being released from prison and that the protection of the public from those offenders is a paramount governmental interest.’ Id. Similarly, the current changes to the Act reflect the understanding that all sex offenders, by virtue of having committed ‘sexually oriented offenses’ pose a risk of committing further sexually oriented offenses”.
You have to ask yourself not just When legislatures are going to get around to catching up with the actual facts but Why they haven’t done so already. Lawmakers who seem to be spending a whole lotta time coming up with new SO restrictions don’t seem to be spending much time on keeping up with facts now discovered that are seriously relevant to the whole sex-offense situation.
You begin to wonder if the pols have been telling themselves for wayyyy too long that “facts don’t matter”. And you wonder what could possibly be so important as to deform and derange so vital an element of legislative integrity as making sure that they laws you are passing are based in actual fact. At this stage it seems like the SO laws are based on the equivalent of ancient astrology rather than up-to-date astrophysics. This is not a good thing – for the legitimacy and credibility of the legislatures and legislators as well as for the general integrity of the legislative process.
In his second assignment of error, Spangler raises the Retroactive objection: that the government cannot punish persons retroactively by increasing punishments and applying them to crimes committed before the increases were legislated into effect. Nope, says the Court (Para.31): the Ohio Supreme Court has already held that increased “burdens” do not constitute increased punishment and don’t alter the essentially non-punitive nature of the [AWA-SB 10] scheme. It goes on to quote that Court that “with the exception of Ex Post Facto laws, felons have no right to expect that their conduct will never thereafter be made the subject of legislation”.
This is an insidious, indeed a treacherous, double-whammy. First you introduce the distinction between “punishment” and “burden” – which seems to me a distinction without a difference. Second, you say that felons can never be sure they won’t be further “burdened” even after they have paid their debt to society.
Spangler then raises the issue of double-jeopardy: that he is being punished again for something he has already been punished and paid his debt for. Nope, says the Court (Para. 34): since the “burden” is not a punishment, then he’s not being punished twice.
You see where these court pronouncements start to sound like the Red Queen lecturing Alice.
Spangler then raises the issue that residency restrictions violate his Constitutional rights to due process and his right to privacy. Nope, says the Court (Paras.38-40): since Spangler is not proven in the filings to be actually liable to residency restrictions, then he has no Standing to bring the objection.
It’s true, technically. Although the chances are better than good that he – like just about any SO – stands a good chance of getting slapped with such restrictions sooner or later.
Spangler then raises the objection that as a Tier II offender he will be subjected to more onerous Notification procedures than existed when he was originally sentenced. Nope, says the Court (Paras. 42-43): as a Tier II offender he is not subject to increased Notification requirements.
Spangler then raises the objection that the amended provisions of SB 10 violate the Separation of Powers doctrine since SB 10 authorizes the Attorney General, a member of the Executive Branch, to assign punishment. Nope, says the Court (Paras. 48-49): we already said that the enhanced “burdens” are not a punishment, and on top of that the new requirements come not from the Executive Branch but from a new law [i.e. SB 10] passed by the Legislature, which is what the Legislature is authorized to do (see also Para. 53).
BUT, adds the Court (Para.57), once a trial court issues its sentence, and neither side (defendant or State) appeals that judgement, then the judgement is finalized as an act of the Judicial Branch and under the doctrine of res judicata it cannot be changed by the acts of any other Branch. So, the Court says (Para.58): “Since Spangler’s classification as a sexually oriented offender with definite registration requirements constituted a final order of the lower court, Spangler cannot, under separation of powers and res judicata principles, now be reclassified under the provisions of the amended Act with differing registration requirements”.
Again, this is good news for any SO whose classification was included in part of the original trial court’s sentence and was not appealed within the time limits by either the defendant or the State.
Nicely, the Court (Para. 60) says it again: “It does not matter that the current Sex Offender Act formally amends the underlying law and does not order the courts to reopen final judgments. The fact remains that the General Assembly “cannot annul, reverse or modify a judgment of a court already rendered.” Bartlett, 73 Ohio St. at 58. Spangler’s reclassification, as a practical matter, nullifies that part of the court’s April 27, 2001 Judgment ordering him to register for a period of ten years as a sexually oriented offender. To assert that the General Assembly has created a new system of classification does not solve the problem that Spangler’s original classification constituted a final judgment. There is no exception to the rule that final judgments may not be legislatively annuled [sic] in situations where the Legislature has enacted new legislation”.
And it does it again in Para 63: “In the present case, Spangler had every reasonable expectation of finality in the trial court’s April 27, 2001 Judgment Entry, i.e. that he would have to comply with five years of community control sanctions, pay the fine of $350, and register for a period of ten years as a sexually oriented offender”.
And just to make sure that there is no misunderstanding in regard to AWA, the Court says so bluntly in Para. 67: “To the extent the Adam Walsh Act attempts to modify existing final sentencing judgments, such as Spangler’s sentence, it violates the doctrines of separation of powers and finality of judicial judgments, despite the good intentions of the Legislature. As such, that portion of the Act is invalid, unconstitutional, and unenforceable”. [italics mine]
And once again I note that the Court goes out of its way to point out that in this matter – at least – “the good intentions of the Legislature” are not enough to ignore a major Constitutional principle. Let’s hope this not-really-new principle catches on in other aspects of Court review of SO legislation.
There follow two Dissents. The second one (Paras. 110-113), by Justice Mary Jane Trapp, is a short one that thinks the added requirements do not constitute a violation of res judicata because of a technicality: the trial court’s sentencing order was only ‘final’ in the sense that it was ‘appealable’, not in any other sense. If it sounds a little odd, that’s because it is.
But the first Dissent, by Justice Timothy P. Cannon, starting at Para.69, is an impressive and encouraging goldmine. A law-student could do worse than to read it simply for its comprehensiveness, orderly progression, and incisive clarity. Oh, and for its common sense. A lot of sitting jurists could use their time well by reading it too.
Cannon writes that he agrees with the conclusion that Spangler’s sentence constitutes res judicata and no subsequent State or Federal legislation can change it, but he doesn’t agree with the analysis of the Ex Post Facto and Retroactivity arguments raised by Spangler (Para.69).
He does not think it proper for the State to adopt the (federal) AWA principle of classifying all SO’s merely on the blanket presumptions made in regard to their original crime-of-conviction, with no effort to examine each SO’s case individually: “This, I believe, would be a tremendous disservice to our Ohio and United States Constitutional protections. Certainly, to examine each case independently would require time and effort, but defense of the constitution against legislators who may be driven by public opinion and political security is the oath of every judge in this state” (Para.72).
Well said!
He tops that in Para.73: “In Ohio, as elected judges, we are forced to be a part of the political process. However, our oath directs that we protect, preserve, and defend the constitution. It does not allow us to wink at it when the political winds suggest it may be the popular thing to do”. You start to hear an acute intelligence and professional integrity that hasn’t been heard from much of the Bench or from the Legislative Branches (State or Federal) in quite a few years around here.
He disagrees with the Court’s analysis of ‘punitiveness’ because despite all the Ohio Supreme Court cases it cited in its majority Opinion “it is important to realize that while the Courts engaged in a weighing and balancing of interests as they related to the ex post facto clause, the Supreme Court of Ohio has yet to conduct an analysis weighing the impact of the additional burdens imposed by S.B. 10” (Para.74).
Here Justice Cannon is echoing the position of Ohio Supreme Court Justice Lanzinger (among others) who noted in her Dissent in another SO case that while originally – 15 or 20 years ago – the requirements on SOs may not have constituted so much of a burden as to be “in effect, if not in intent, punitive”, yet there has been such a pile-on since that time that it is now quite possible and maybe probable that the CUMULATIVE WEIGHT OF ALL THE BURDENS TAKEN TOGETHER now constitutes a tipping-point into ‘punitiveness’ (and that of course triggers the Ex Post Facto and Retroactivity principles of the Constitution).
Then, starting at Para. 76, Justice Cannon takes on the Court’s Ex Post Facto analysis: BUT, he says, when he examines the S.B. 10 Act it seems clear to him that the Legislature very much indeed intended it to be “punitive”. He thinks so because, despite the Legislature’s pious bleat that the law is not intended to be punitive, it is included in the Ohio Criminal Code and further that failure to comply will trigger criminal prosecution and penalties (Para.79).
Further, S.B. 10 requires classification within the criminal sentence of the trial court, and this is true even if the conviction is for a misdemeanor (Para. 80). As the Ohio laws state clearly, any “sanction” included in a sentence is thereby part of the punishment and sentence (Paras. 81-82).
Further, the much-increased amount of information required in the AWA-S.B. 10 scheme is to be placed on the internet for anybody – not just persons with a relevant need-to-know – to see (Para. 83).
Further, the Ohio Legislature provided for a Hearing before a court precisely to determine whether a person should be classified as a “sexual predator” and that was wise since otherwise Ohio would be flooded with numerous convictees who are not sexually dangerous and are mis-classified, which will not further the cause of community safety at all, and will actually degrade public safety (Paras. 85-86).
And then he makes the excellent point that: “Also of significance, the Eppinger Court noted that ‘[o]ne sexually oriented offense is not a clear predictor of whether that person is likely to engage in the future in one or more sexually oriented offenses, particularly if the offender is not a pedophile. Thus, we recognize that one sexually oriented conviction, without more, may not predict future behavior’” (Para. 87). [italics mine]
This observation goes to the heart of the numbers-scam in the SO laws, where the public is stampeded on the basis of alleged hordes of child-raping and murdering strangers while, in actuality, the vast majority of the many SOs are nothing of the sort: they either have committed far lesser offenses or have ‘re-offended’ only in the sense that they have technically fallen afoul of the byzantine reporting regulations. (Which sounds a lot like the Pentagon and Beltway habit of classifying any detainee as the ‘worst of the worst’, just to keep up the numbers. You can see the results of that scam at Gitmo. And you might wonder where the government in 2003 got that idea … perhaps from the great success it enjoyed in the SO mania.)
In a charming Colonial and Revolutionary usage, he notes that AWA demands a blanket crime-only assessment and classification, which amounts to a “ministerial rubber stamp on all offenders regardless of the mitigating facts in the individual case” (Para. 89). The term “ministerial” was used to describe the officials and troops of the British Crown back in the very early days of the Revolution when it was still thought here that it was the Prime Minister in London, and not the King, who was the source of all the American woes.
THEN, in that same paragraph, he puts his finger on another core AWA scam: “The legislative basis for this seems to be expert analysis that puts all offenders in one of two categories: those who have offended more than once, and those who have offended only once, but are going to offend again in the future”. This is a sleazy and treacherous Catch-22 that is not only insupportable as scientific method (it is not falsifiable) but is a cynical and corrosive imposition of the government police power upon Citizens who would – in the terms of the ‘expert analysis’ – have utterly no way of defending themselves.
Cannon continues on this marvelous roll: “While the legislature may be entitled to adopt this questionable approach to apply to offenders from the date of passing the legislation, I believe that neither the Ohio Constitution nor the United States Constitution permit the retroactive application of S.B. 10 in its current form to individuals such as appellant herein” (Para.90).
AND THEN he notes a most interesting and very relevant fact about the Ohio Court system: “Moreover, to date, the majority of the current justices on the Supreme Court of Ohio have objected to the characterization of Ohio’s sex offender classification system as a “civil” proceeding” (Para.91).
He goes on to explain in that paragraph that at one time or another, in SO cases, four of the Justices on the Ohio Supreme Court have put themselves on record as believing that either the SO laws are punitive to begin with, or have increased their ‘burdens’ on the SO to that tipping-point where the cumulative weight of their assorted restrictions renders them now “punitive”.
Which means that in one of the not-distant cases where an SO raises the ‘punitive’ objection before the Ohio Supreme Court, the majority of Justices will agree, thereby pulling the Constitutional rug out from under the whole scheme – or rather, pull from underneath the SO mania legislation the Constitution which too many pols have been using as a rug.
And then in Para. 92 he asserts that even if the Ohio General Assembly’s intent were truly non-punitive (a big If indeed) still in terms of this appellant (Spangler) S.B. 10 is unconstitutional because of its punitive effect.
He adds (Para. 95) that on top of all that, S.B. 10 cannot further the goals of retribution and deterrence when the classification of an offender is based solely on the crime committed, not on an individual’s recidivism potential. In saying this he again draws attention to the fact that there are substantive coherence-gaps not only between the alleged ‘civil’ intention of the legislatures but also between the stated goals of the SO laws and the actual requirements they impose on the purported authority to achieve those goals. If not actually dishonestly presented, they are conceptually incoherent even on their own terms.
But he hasn’t finished yet. In Para. 96 he asserts that even if the SO laws will provide for public safety and that SOs actually do pose the risk they are claimed to pose, still “if the statistics and public opinion are as viable as those perceived by the legislature, the appropriate avenue for the legislature would have been to amend the constitution to allow for the retroactive, ex post facto application of S.B. 10”.
IN OTHER WORDS if the statistics and public opinion are as supportive as the legislators are always claiming, then the really best route for all this SO stuff is simply TO AMEND THE STATE CONSTITUTION TO PERMT FOR THE RETROACTIVE AND EX POST FACTO APPLICATION OF THE SO LAW.
Roll that one around in your mind for a bit.
He is the first jurist I have come across to actually call this scam’s bluff: if everyone is so sure that these SO laws work and that SOs are so very liable to pose an ongoing threat, then put your money where your mouth is and amend the Constitution of your State (or the US Constitution) by gutting it of two of its most profoundly fundamental protections – against Ex Post Facto laws and Retroactive punishments – and have done with it.
Of course, not even the vote-addled and less-than-purely-principled legislators of this age would really want to do that. First of all, a Constitutional amendment of such profound proportions would open the door for some serious scrutiny – and all the genuine facts that may come out would likely break the spell of the stampede.
Worse, it would expose all the legislators who have supported these things (the ones who merely voted for them did so through such non-public subterfuges as voice-votes) to public exposure (as it were).
Worse even than that, it would create a precedent whereby the most essential Constitutional firewalls are now breachable if the ‘emergency’ is perceived to be great enough – and who knows where that might lead in the future? Even to the legislators themselves? Or their friends and their relations? Or their well-paying supporters?
And on top of all that, such a Constitutional Amendment would clearly reveal the essential (and perhaps indispensable) ANTI-CONSTITUTIONALITY of the entire corpus of SO mania legislation. And I think that - like Hitler deciding to take dictatorial powers LEGALLY and not mount an outright coup d'etat - the Regulatory-Preventive Nanny State and its various supporters, enablers, and cadres would prefer (with great success so far) to smuggle their anti-constitutionality into the national forum under the sheep's clothing of 'constitutional reform' and 'legislative and judicial responsiveness' rather than come right out and show their true intentions. But that's also why the Courts can't seem to stamp out the numerous objections ... they have to keep coming up with tortured reasoning based on grossly untruthful 'facts' and Findings.
I recall a line from a recent episode of “The Tudors”, where Sir Thomas More, soon to be executed, says to Chancellor Thomas Cromwell (whose own end was still a little ways off): “The only difference between you and me, Mr. Cromwell, is that I shall die today and you shall die tomorrow”. These are the awful and awesome uncertainties that are unleashed EVEN AMONG THE ELITES when a government descends from a rule of law to a rule of personal whim.
Justice Cannon continues with a scathing but subtle indictment of the whole SO mania: “However, the constitutional amendment should not be circumvented with a clever legislative preamble based on questionable statistical data. If that were the case, virtually every constitutional protection is subject to selective legislative amendment”.
As the screen used to say in the old Batman TV show: Biff! Pow!
In Paras. 98-105 he rehearses perceptively the many cases in Ohio where Megan’s Law and its ilk have been increasingly scrutinized (but not yet condemned) for the expansions in “burdens” that have taken place over the past 15 years.
He THEN notes (Para. 106) that in Ohio law, the Retroactivity principle applies not only to criminal but to civil cases. In which case, if expanded registration requirements are seen not as ‘collateral consequences of a criminal act’ but rather as part of the adjudicated sentence, then later ‘administrative adjustments’ do indeed violate a convictee-Citizen’s proper “expectation of finality”.
And he goes further to imagine that this would apply to all SOs in Ohio “except the most heinous” (who would have every reason to expect lifetime registration and notification requirements). Which opens up huge possibilities there.
So kudos to Justice Cannon and here’s hoping a lot of jurists – in Ohio and beyond – read his Dissent.
NOTES
*To brighten your day, read the DOJ-commissioned Vera Reports, available in a link on the Constitutional Fights site under date of February 22, 2010, as well as here and here. This pair of major studies pretty much find that the whole SO gambit is overblown and mis-directed and that there is little evidence that the SORNA schemes actually protect anybody.
Saturday, October 17, 2009
MORE FROM WAYNE LOGAN
I’m getting around to those articles I mentioned last month when I went on vacation.
In this Post I’m working with his article “Sex Offender Registration and Community Notification: Past, Present, and Future”, which was adapted from a talk he gave in the Spring of 2007 to a New England law enforcement-corrections conference.
The text is available by following the instructions below*; it’s only 16 pages long and easy to read.
As I go through these articles, I might wind up coming back to some of the same thoughts and themes I’ve mentioned in prior Posts, but it seems to me that what we’re looking for here is a comprehensive grasp of the major issues and themes, not an unending sequence of ‘new’ ideas.
So let’s get to it.
He mentions that State and local law enforcement has traditionally handled criminal justice matters because it is into those State and local communities that former offenders (or ‘ex-cons’ as the movies used to call them) must be re-accomodated upon return ‘to society’ (as they used to say).
This is a much larger point than it may look on first glance. There is a very practical and yet substantive reason why the Framers left criminal matters mostly to the States: those were the actual living communities in which ex-cons would have to re-integrate into society once they finished up in prison.
And back then, nobody imagined that any level of government in this country would try for all practical purposes to create a class of criminals who would never really be reintegrated into society, who would be unsuitable for reincorporation into society, because they were so genuinely and compulsively monstrous that their very existence would presume the probability of a crime, and an awful crime (the abduction, rape, and murder of children) as well.
This is a truly monstrous gambit on the part of the legislatures and it’s not so hard now to see just why the legislatures so quickly adopted the tactic of passing these things without significant public hearings or deliberation and passed them as ‘emergency laws’ so as to get around various public notice-and-debate statutes that required such deliberation.
And of course, the rationale for federal involvement is verrrry sketchy. But if there is one, I think its roots are in the old civil-rights era of the 1950s and early-1960s, when the States of the South could not be relied upon to eliminate the odious Jim Crow laws (which, in effect, arose in the later 1800s to re-institute some level of the racial subjugation that the Civil War had presumably eliminated by the Union victory in 1865. Thus the Federal government had to step in, as Ike did when he sent the 101st (or the 82nd, I don’t recall) Airborne and US Marshals to enforce desegregation.
But as I’ve said, there are today no other social realities that even begin to approach the profound odiousness of the rampant and entrenched Jim Crow ethos or the widespread public acceptance (outside the South) of its elimination. Certain advocacies, having adopted a ‘civil rights strategy’ for their own agendas, have tried to paint their own concerns as being equal to or even greater than the publicly accepted revulsion against Jim Crow laws in any form, but it’s quite a conceptual and imaginative stretch to do that, and again, that may well be why the legislatures have (Slyly? Conveniently?) have adopted the tactic of side-stepping public deliberation in sex-offense matters: for all the assertions of monstrousness and the ‘Findings’ to that effect, legislatures really didn’t want such assertions and Findings to be widely discussed and deliberated.
Instead – in these sex-offense matters – you get what in effect is the running of the old ‘revolutionary’ play instituted by the Russian Reds in 1917: first you take over the government, then you force the people to accept it as a good idea – by propaganda if possible, by terror and legal chicanery if necessary. And in that game plan, the national government must be ready with a powerful propaganda mechanism and some sort of national police power.
Using New York State as an example, Logan then notes that of the State’s 24,300 sex-offense registrants (in 2007), fully 19,000 were what I would call ‘nominal’ registrants, meaning that they were on the SO Registry simply because of the fact that they had been convicted of a sex-offense, not because (like the remaining 4,300) they gave substantive cause for their individual potential for probable recidivism.
Thus Logan is first concerned with the nature and origin of the federal ‘interest’ in this particular type of crime, which leads to the federal insistence on a “parallel involvement” in dealing with it.
He quotes the majority in the 1957 US Supreme Court case Lambert v. California (which invalidated a Los Angeles ‘gangster registration’ ordinance on substantive due process/notice grounds): registration itself was only “a law enforcement technique designed for the convenience of law enforcement agencies through which a list of names and addresses of felons then residing in a given community is compiled”.
But there was a limit, the Court felt, to just how much police power can be enhanced for its own convenience, at the expense of citizens.
And, yes, the citizens in the case were persons known to have been convicted of a crime, but citizens nonetheless. And while some of those seeking anonymity might have been still-active felons looking for ‘cover’, there were also many – perhaps most – who were seeking to rebuild their lives, having served their time.
So if the Court was concerned about the effect of what was only a police-knowledge-only type of registration, then the registration-and-notification scheme of the 1990s sex-offense mania era should have been given even more cause for concern.
And let’s not forget that beneath the simple ‘notification about information that is already a public record’, there lies a sinister dynamic, an insidious feedback loop: in order to justify these dubious laws, the legislature selects certain ‘facts’ which it publishes in the law as Findings – these ‘facts’ establish the incorrigible monstrousness of the general ‘sex offender’; in order to ‘keep up the numbers’ and thus reinforce the legislative claim of ‘emergency’ any and all sex-offenders are lumped together as a monolithic group or class; so before ever seeing any particular names, the public has already been primed by the legislative Findings which therefore come to function as an official Certification of Monstrousness of any and all sex-offenders; sensationalist media accounts which selectively ‘report’ what may (or may not be**) horrific sex-offenses against children work in conjunction with the Findings.
So, as I have said in previous Posts, this entire insidious feedback loop, which is itself caused by the government in the form of widely disseminated formal legislative Findings (and subsequent court acquiescence or acceptance), constitutes a truly unique element in the handling of sex-offense crimes and operates to render the ‘nothing but public information’ assertion of legislatures and courts as utterly inadequate to describe what the government has set in motion against those – and only against those – convicted of a sex-offense.
And of course, the fact that those Findings are now demonstrably inaccurate – and that legislatures are still carrying on as if they were true – is a lethal warning sign as to what is actually going on here.
And this also means that while Logan is correct in noting that the mere act of registering with the police such individuals as may have been convicted of a crime is not “in principle” unconstitutional, yet what is going on with registration-and-notification, especially when prior to any specific notification the general public has been primed by that Certification of Monstrousness, is indeed something new and ominous in American law and law-making.
Giving the talk on which this article is based in Massachusetts, Logan notes – relevantly – that Massachusetts was the last State (in late 1996) to pass the federally-mandated registration system that was mandated by the Wetterling Act in 1994. That State realized that there were significant difficulties in reconciling the federal Act with its own Constitution and Declaration of Rights.
And by 1996 only 17 States had seen their way clear to adopt ‘notification’ of some sort.
But then in 1996 Congress ‘helpfully’ passed a federal version of New Jersey’s Megan’s Law and mandated notification.
And in the same year passed the Lychner Act which started up a federal database to collect and disseminate the names on all the States’ registries. And Congress improved upon itself by coming back with more impositions in 1997, 1998, and 2000. And in 2003 passed the PROTECT Act which mandated States to put their registries on the internet.
And then (will future historians ever be able to discuss this era with a straight face?) the Adam Walsh Act (AWA) came along for consideration in 2005, under the aegis of Congressman Foley (R-Fl) who was himself just about to be exposed for his carryings-on with underage male Congressional pages and forced to resign in disgrace.
But the AWA raised matters to a new level.
It makes it a federal crime for anyone who has to register to knowingly refuse to register.
The registration requirement is triggered by moving to another State (or – accounts differ here – merely traveling across State lines).
Further, the Congress invoked its Commerce Clause authority (its clear Constitutional authority to regulate interstate commerce) although it made no Findings that justified its assertions that such moving (or mere travel?) had any effect on interstate commerce at all. I suspect that to try to justify this gambit with such Findings was too much of a stretch even for Congress (which, considering its record of Findings in prior sex-offense legislation, is saying quite a bit indeed).
And, Logan reports, not even the Hearings leading up to the AWA’s passage offered any sort of information that would justify the ‘commerce’ angle or any “need for federal entry into the field”.
There were, however, “vague claims about ‘state loopholes’”, which gives the impression of a Congress trying very hard to nail down (let’s not say ‘screwing’) anybody convicted of a sex-offense whom any State had discovered or determined to be ineligible for registration or for serious classification. In light of the Certification of Monstrousness point I made above, this starts to look like an intensifying persecution, reaching out now even to those whom States had perhaps determined to be non-threatening.
And after all, a mania, once ignited, is indeed verrry hard to stop: Congress has now inflamed public opinion nationally with its original sex-offense Findings, and it will be hard to say No or explain why – suddenly – what you previously had billed as a major national emergency is now not really that at all. Additionally, to make such an admission – even if only implicitly – leaves the authority and perhaps even legitimacy of current legislative processes vulnerable to serious doubt. And that also might implicate the legislators themselves.
And this impression is strengthened when it is recalled that the AWA classification requirements are based not upon any individual assessment of dangerousness, but merely on the fact of a conviction for any of the listed sex-offenses.
Which, of course, also wrecks the procedures of those States that had chosen years ago to conduct individual assessments before registering and classifying any sex offender. Which includes any States which adopted such procedures in order to satisfy the demands of their own State Constitutions.
Logan notes that in prior ‘interstate commerce’ legislation in regard to criminal activity, courts – including the US Supreme Court – had required that the crime actually required some type of ‘interstate commerce’ involvement as part of the actual intent to commit the crime. But AWA requires no such intent, nor the involvement of any crime at all – the mere fact that one had been at one time convicted of a sex-offense is sufficient, the legislation insists, to trigger the ‘commerce’ authority. “An individual need only travel to another state and knowingly fail to register.”
Some lower courts have tried to help Congress out by asserting the rationale that the Commerce Clause authorizes the federal government to regulate “persons or things in interstate commerce” generally. But this opens the door to the old Soviet practice of requiring everybody to have police permission before traveling outside of their area of residence – and carrying ‘papers’ to prove that they have such authority.
And surely the Framers, intent as they were on confining the governmental authority precisely so that it would not stifle the vital interactions upon which civil society and American (as opposed to European and monarchical) traditions of wide liberty possessed by the citizenry. It’s one thing – and both practical and necessary – to give the federal government authority over disputes among States regarding interstate commerce (if you were running a canal or a railroad or an interstate highway through several States, for example, or to ensure uniformity in rates, tolls and taxes on goods thereby carried).
But it’s something else altogether to claim that the federal government can say who can travel freely, and who cannot. And when I say this, I most surely disagree with any assertion that the ‘mere’ fact of registration-and-notification can’t be construed as an affirmative disability on somebody so convicted. Given the now ubiquitous public priming through the nationally publicized and federally proclaimed Certification of Monstrousness, no sex-offender is going to be genuinely and actually ‘free’ to conduct interstate travel.
And what about vacation that crosses State lines? Is that in any Constitutional sense “traveling in interstate commerce”? You might want to rent the video of Clint Eastwood’s “Firefox” to see what it’s like to try to travel in a country where “travel” is considered to be primarily a suspect-activity which the government polices through check-points and special ‘internal border police’ (and, always in the background, the KGB). AWA starts America in this direction – and from the trajectory and increasing intensity of this type of laws – it’s not at all ‘alarmist’ to think that such restrictions are closer than anybody would care to think.
Logan goes on to note the danger of ‘over-inclusiveness’: that there are now so many persons registered (and thereby Certified as Monstrous) that the public will not be able to distinguish the ‘nominal’ sex-offenders from those who might reasonably be assumed to constitute an on-going risk.
He ventures that “Congress presumably felt that the seriousness of the prior offense, in itself, is predictive of recidivism, a probabilistic inference plainly subject to dispute” [italics mine]. Which is a nice way of saying that Congress has chosen to continue to believe its own propaganda, those original Findings about the astronomical rates of general sex-offender recidivism and monstrous and incorrigible compulsion that are now demonstrably inaccurate, either by being grossly exaggerated or outright wrong.
But he notes, on the positive side, that “Congress has recognized the need to study the question of how best to effectuate registration and notification, requiring, inter alia, that in the coming months the U.S. Attorney General produce a study of the effectiveness of risk versus offense-based regimes”.
Which is a good thing. But can it be honest? Because if the word comes back from the AG that risk-based is really the only accurate way to go, then the entire law is undermined and the States have to go to risk-based assessments. Or else the feds have to set up their own ‘assessment organization’ – which is going to be an ‘insult’ to the States’ prerogatives under the Constitution. Is Congress really going to leave itself open to that?
Or does Congress (slyly?) figure that the AG will helpfully and conveniently ‘report’ that offense-based is either the best way or else a ‘reasonable’ way considering just how much time, effort, cash and Constitutional complications will figure into switching to some risk-based scheme?
And in any case, shouldn’t this type of study to ascertain the answer to this clearly huge and fundamental question be completed BEFORE the AWA law is passed? Or – now at this point – shouldn’t it have been completed before the AWA law was passed? Just how much serious deliberation (and honest adherence to rational procedure) has Congress really put into this AWA thing?
It just doesn’t add up. It doesn’t make sense. Unless there are ulterior agendas that Congress doesn’t care to bring out into the open.
So when Logan expresses some polite hope that in requiring some study – any study at all – then at least Congress is starting to make some effort to be “empirical” about sex-offense laws, I can’t take too much comfort. Because if the true facts are ‘accepted’ by Congress, then it is going to have to a) explain to the public how it ever came to accept the grossly exaggerated untruths that it accepted in the first place, and b) expose itself and its assorted pressure-group constituencies to the bright light of day. And that’s probably a little more adventure than a sitting politician likes to undertake.
And Logan notes incisively that if ‘seriousness of offense’ is a useful predictor of recidivism, then murderers should be the most recidivistic of all. And yet they are the least – as a class, if I recall, they recidivate (sorry) at a rate even lower than almost all the subsets of sex-offenders, which is a low rate of recidivism indeed.
Congress does, Logan sees, put on a decent show of respect for State Constitutions: a State does not need to adopt any of AWA’s requirements if to do so would conflict with its own Constitution.
But again, then, Congress will require that the State’s own Supreme Court make that judgment formally; Congress will not accept even an Act of the State’s legislature as sufficient guarantee. So much for ‘partnership’.
And if a State’s highest court does so adjudge, then that doesn’t settle anything after all because then the U.S. Attorney General and State will have to make “good faith efforts to accomplish substantial implementation” of the AWA and to “reconcile any conflicts” between AWA and the State’s Constitution.
But how can you implement AWA substantially if the very substance of AWA violates your State’s Constitution? And how can you reconcile such a “conflict” when it is clearly an either-or proposition: offense-based or risk-based? How on earth can you do that? How on earth does all this nice language really make any practical sense at all?
You know what I think? I think that this is another example of “expressive law”: Congress has gone and made an impossible law, just to ‘send a message’, and to keep certain vocal and volatile groups happy, and it really doesn’t give a hoot about whether it’s a ‘good’ law or even a workable law, or about any awful precedents it may be setting, or about any truly awful doors it may be opening, or about any wrack and ruin it's causing to anybody its carpet-bomb law happens to hit.
And as far as all that is concerned, I think that the legislators’ approach is something akin to: we did our job and passed it, and now it’s the courts’ problem or somebody else’s problem, but it’s not our problem.
Well, I’ve always worked on the assumption from civics class that the job of the Legislative Branch was to craft well-made, effective, Constitutionally acceptable laws, even ‘wise’ laws.
And that’s their job. And if they see it as a ‘problem’ and don’t see it as their job, then they need to tell Us that so that We The People can thank them politely and proceed forthwith to make other arrangements. Arrangements more in line with the American tradition and American ideals. And with the Constitutional vision itself. For which We The People are ultimately responsible, since in a democratic Republic the buck stops with The People.
Since he’s speaking in Massachusetts (a risk-based State, one of about 15), Logan predicts “some interesting times” for Massachusetts, since AWA is going to require that the State “consult” with the feds about the meaning of its own Constitution. Which is, Constitutionally speaking, just short of blasphemous – this is not at all the way the Constitution arranged the relationship between the several States and the Federal government.
The Framers would be outraged. Although, since in 2002 New Jersey dropped the teaching about the Founders and their vision from its history requirements for students, maybe a whole generation of Americans in that State won’t even realize it.
Bah. Phooey.
But New Jersey, notorious home of Megan’s Law and the Poritz case, recently (2007) ordered a study to see if these things even work at all. And that, surely, is something to pin some hope on.
But one robin does not a Spring make. And they say there aren’t as many birds as there used to be.
In any case, We had best plan to do some serious work as Citizens if We have any hope of retaining the Republic that was handed down to Us, and that We are supposed to preserve and hand on to future generations (untutored in the vision of the Founders, alas, as they may be).
NOTES
*First, go to http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1089204 and then on that screen click on the 'Download' link. That will offer then offer you any of several links you can click to get to the actual pdf of the article; I usually click on the first link on the left as you look at the screen. Or you can google the title of the article and click on the SSRN link there.
**So, for example, it is to this day unknown who kidnapped Jacob Wetterling or why in 1989; as is also the case with Adam Walsh in 1991. There is substantial ground to doubt that the truly deformed murderer of Megan Kanka was indeed ‘unknown’ to the parents in her neighborhood.
ADDENDUM
If there are about 650,000 registered male sex-offenders now (let’s not try to imagine how many dozens of thousands have, as some say, evaded registration), and if there are 150 million (or less) males in the country, then by my count 1 out of every 230 males in the country is on a sex-offense registry. If, as some assert, there are another 100,000 who have evaded registration, then that makes it 1 out of every 200. If AWA now goes into effect, it’s going to go down to 1 out of every – what? – 175 males?
There’s something verrrrry odd – and verrrry not-quite-right about this.
ADDENDUM 2
For another examination of how Congress can write a nice-sounding, well-intentioned Law that undermines all sorts of important Constitutional things, see my immediately previous Post on the Matthew Shepard Act.
In this Post I’m working with his article “Sex Offender Registration and Community Notification: Past, Present, and Future”, which was adapted from a talk he gave in the Spring of 2007 to a New England law enforcement-corrections conference.
The text is available by following the instructions below*; it’s only 16 pages long and easy to read.
As I go through these articles, I might wind up coming back to some of the same thoughts and themes I’ve mentioned in prior Posts, but it seems to me that what we’re looking for here is a comprehensive grasp of the major issues and themes, not an unending sequence of ‘new’ ideas.
So let’s get to it.
He mentions that State and local law enforcement has traditionally handled criminal justice matters because it is into those State and local communities that former offenders (or ‘ex-cons’ as the movies used to call them) must be re-accomodated upon return ‘to society’ (as they used to say).
This is a much larger point than it may look on first glance. There is a very practical and yet substantive reason why the Framers left criminal matters mostly to the States: those were the actual living communities in which ex-cons would have to re-integrate into society once they finished up in prison.
And back then, nobody imagined that any level of government in this country would try for all practical purposes to create a class of criminals who would never really be reintegrated into society, who would be unsuitable for reincorporation into society, because they were so genuinely and compulsively monstrous that their very existence would presume the probability of a crime, and an awful crime (the abduction, rape, and murder of children) as well.
This is a truly monstrous gambit on the part of the legislatures and it’s not so hard now to see just why the legislatures so quickly adopted the tactic of passing these things without significant public hearings or deliberation and passed them as ‘emergency laws’ so as to get around various public notice-and-debate statutes that required such deliberation.
And of course, the rationale for federal involvement is verrrry sketchy. But if there is one, I think its roots are in the old civil-rights era of the 1950s and early-1960s, when the States of the South could not be relied upon to eliminate the odious Jim Crow laws (which, in effect, arose in the later 1800s to re-institute some level of the racial subjugation that the Civil War had presumably eliminated by the Union victory in 1865. Thus the Federal government had to step in, as Ike did when he sent the 101st (or the 82nd, I don’t recall) Airborne and US Marshals to enforce desegregation.
But as I’ve said, there are today no other social realities that even begin to approach the profound odiousness of the rampant and entrenched Jim Crow ethos or the widespread public acceptance (outside the South) of its elimination. Certain advocacies, having adopted a ‘civil rights strategy’ for their own agendas, have tried to paint their own concerns as being equal to or even greater than the publicly accepted revulsion against Jim Crow laws in any form, but it’s quite a conceptual and imaginative stretch to do that, and again, that may well be why the legislatures have (Slyly? Conveniently?) have adopted the tactic of side-stepping public deliberation in sex-offense matters: for all the assertions of monstrousness and the ‘Findings’ to that effect, legislatures really didn’t want such assertions and Findings to be widely discussed and deliberated.
Instead – in these sex-offense matters – you get what in effect is the running of the old ‘revolutionary’ play instituted by the Russian Reds in 1917: first you take over the government, then you force the people to accept it as a good idea – by propaganda if possible, by terror and legal chicanery if necessary. And in that game plan, the national government must be ready with a powerful propaganda mechanism and some sort of national police power.
Using New York State as an example, Logan then notes that of the State’s 24,300 sex-offense registrants (in 2007), fully 19,000 were what I would call ‘nominal’ registrants, meaning that they were on the SO Registry simply because of the fact that they had been convicted of a sex-offense, not because (like the remaining 4,300) they gave substantive cause for their individual potential for probable recidivism.
Thus Logan is first concerned with the nature and origin of the federal ‘interest’ in this particular type of crime, which leads to the federal insistence on a “parallel involvement” in dealing with it.
He quotes the majority in the 1957 US Supreme Court case Lambert v. California (which invalidated a Los Angeles ‘gangster registration’ ordinance on substantive due process/notice grounds): registration itself was only “a law enforcement technique designed for the convenience of law enforcement agencies through which a list of names and addresses of felons then residing in a given community is compiled”.
But there was a limit, the Court felt, to just how much police power can be enhanced for its own convenience, at the expense of citizens.
And, yes, the citizens in the case were persons known to have been convicted of a crime, but citizens nonetheless. And while some of those seeking anonymity might have been still-active felons looking for ‘cover’, there were also many – perhaps most – who were seeking to rebuild their lives, having served their time.
So if the Court was concerned about the effect of what was only a police-knowledge-only type of registration, then the registration-and-notification scheme of the 1990s sex-offense mania era should have been given even more cause for concern.
And let’s not forget that beneath the simple ‘notification about information that is already a public record’, there lies a sinister dynamic, an insidious feedback loop: in order to justify these dubious laws, the legislature selects certain ‘facts’ which it publishes in the law as Findings – these ‘facts’ establish the incorrigible monstrousness of the general ‘sex offender’; in order to ‘keep up the numbers’ and thus reinforce the legislative claim of ‘emergency’ any and all sex-offenders are lumped together as a monolithic group or class; so before ever seeing any particular names, the public has already been primed by the legislative Findings which therefore come to function as an official Certification of Monstrousness of any and all sex-offenders; sensationalist media accounts which selectively ‘report’ what may (or may not be**) horrific sex-offenses against children work in conjunction with the Findings.
So, as I have said in previous Posts, this entire insidious feedback loop, which is itself caused by the government in the form of widely disseminated formal legislative Findings (and subsequent court acquiescence or acceptance), constitutes a truly unique element in the handling of sex-offense crimes and operates to render the ‘nothing but public information’ assertion of legislatures and courts as utterly inadequate to describe what the government has set in motion against those – and only against those – convicted of a sex-offense.
And of course, the fact that those Findings are now demonstrably inaccurate – and that legislatures are still carrying on as if they were true – is a lethal warning sign as to what is actually going on here.
And this also means that while Logan is correct in noting that the mere act of registering with the police such individuals as may have been convicted of a crime is not “in principle” unconstitutional, yet what is going on with registration-and-notification, especially when prior to any specific notification the general public has been primed by that Certification of Monstrousness, is indeed something new and ominous in American law and law-making.
Giving the talk on which this article is based in Massachusetts, Logan notes – relevantly – that Massachusetts was the last State (in late 1996) to pass the federally-mandated registration system that was mandated by the Wetterling Act in 1994. That State realized that there were significant difficulties in reconciling the federal Act with its own Constitution and Declaration of Rights.
And by 1996 only 17 States had seen their way clear to adopt ‘notification’ of some sort.
But then in 1996 Congress ‘helpfully’ passed a federal version of New Jersey’s Megan’s Law and mandated notification.
And in the same year passed the Lychner Act which started up a federal database to collect and disseminate the names on all the States’ registries. And Congress improved upon itself by coming back with more impositions in 1997, 1998, and 2000. And in 2003 passed the PROTECT Act which mandated States to put their registries on the internet.
And then (will future historians ever be able to discuss this era with a straight face?) the Adam Walsh Act (AWA) came along for consideration in 2005, under the aegis of Congressman Foley (R-Fl) who was himself just about to be exposed for his carryings-on with underage male Congressional pages and forced to resign in disgrace.
But the AWA raised matters to a new level.
It makes it a federal crime for anyone who has to register to knowingly refuse to register.
The registration requirement is triggered by moving to another State (or – accounts differ here – merely traveling across State lines).
Further, the Congress invoked its Commerce Clause authority (its clear Constitutional authority to regulate interstate commerce) although it made no Findings that justified its assertions that such moving (or mere travel?) had any effect on interstate commerce at all. I suspect that to try to justify this gambit with such Findings was too much of a stretch even for Congress (which, considering its record of Findings in prior sex-offense legislation, is saying quite a bit indeed).
And, Logan reports, not even the Hearings leading up to the AWA’s passage offered any sort of information that would justify the ‘commerce’ angle or any “need for federal entry into the field”.
There were, however, “vague claims about ‘state loopholes’”, which gives the impression of a Congress trying very hard to nail down (let’s not say ‘screwing’) anybody convicted of a sex-offense whom any State had discovered or determined to be ineligible for registration or for serious classification. In light of the Certification of Monstrousness point I made above, this starts to look like an intensifying persecution, reaching out now even to those whom States had perhaps determined to be non-threatening.
And after all, a mania, once ignited, is indeed verrry hard to stop: Congress has now inflamed public opinion nationally with its original sex-offense Findings, and it will be hard to say No or explain why – suddenly – what you previously had billed as a major national emergency is now not really that at all. Additionally, to make such an admission – even if only implicitly – leaves the authority and perhaps even legitimacy of current legislative processes vulnerable to serious doubt. And that also might implicate the legislators themselves.
And this impression is strengthened when it is recalled that the AWA classification requirements are based not upon any individual assessment of dangerousness, but merely on the fact of a conviction for any of the listed sex-offenses.
Which, of course, also wrecks the procedures of those States that had chosen years ago to conduct individual assessments before registering and classifying any sex offender. Which includes any States which adopted such procedures in order to satisfy the demands of their own State Constitutions.
Logan notes that in prior ‘interstate commerce’ legislation in regard to criminal activity, courts – including the US Supreme Court – had required that the crime actually required some type of ‘interstate commerce’ involvement as part of the actual intent to commit the crime. But AWA requires no such intent, nor the involvement of any crime at all – the mere fact that one had been at one time convicted of a sex-offense is sufficient, the legislation insists, to trigger the ‘commerce’ authority. “An individual need only travel to another state and knowingly fail to register.”
Some lower courts have tried to help Congress out by asserting the rationale that the Commerce Clause authorizes the federal government to regulate “persons or things in interstate commerce” generally. But this opens the door to the old Soviet practice of requiring everybody to have police permission before traveling outside of their area of residence – and carrying ‘papers’ to prove that they have such authority.
And surely the Framers, intent as they were on confining the governmental authority precisely so that it would not stifle the vital interactions upon which civil society and American (as opposed to European and monarchical) traditions of wide liberty possessed by the citizenry. It’s one thing – and both practical and necessary – to give the federal government authority over disputes among States regarding interstate commerce (if you were running a canal or a railroad or an interstate highway through several States, for example, or to ensure uniformity in rates, tolls and taxes on goods thereby carried).
But it’s something else altogether to claim that the federal government can say who can travel freely, and who cannot. And when I say this, I most surely disagree with any assertion that the ‘mere’ fact of registration-and-notification can’t be construed as an affirmative disability on somebody so convicted. Given the now ubiquitous public priming through the nationally publicized and federally proclaimed Certification of Monstrousness, no sex-offender is going to be genuinely and actually ‘free’ to conduct interstate travel.
And what about vacation that crosses State lines? Is that in any Constitutional sense “traveling in interstate commerce”? You might want to rent the video of Clint Eastwood’s “Firefox” to see what it’s like to try to travel in a country where “travel” is considered to be primarily a suspect-activity which the government polices through check-points and special ‘internal border police’ (and, always in the background, the KGB). AWA starts America in this direction – and from the trajectory and increasing intensity of this type of laws – it’s not at all ‘alarmist’ to think that such restrictions are closer than anybody would care to think.
Logan goes on to note the danger of ‘over-inclusiveness’: that there are now so many persons registered (and thereby Certified as Monstrous) that the public will not be able to distinguish the ‘nominal’ sex-offenders from those who might reasonably be assumed to constitute an on-going risk.
He ventures that “Congress presumably felt that the seriousness of the prior offense, in itself, is predictive of recidivism, a probabilistic inference plainly subject to dispute” [italics mine]. Which is a nice way of saying that Congress has chosen to continue to believe its own propaganda, those original Findings about the astronomical rates of general sex-offender recidivism and monstrous and incorrigible compulsion that are now demonstrably inaccurate, either by being grossly exaggerated or outright wrong.
But he notes, on the positive side, that “Congress has recognized the need to study the question of how best to effectuate registration and notification, requiring, inter alia, that in the coming months the U.S. Attorney General produce a study of the effectiveness of risk versus offense-based regimes”.
Which is a good thing. But can it be honest? Because if the word comes back from the AG that risk-based is really the only accurate way to go, then the entire law is undermined and the States have to go to risk-based assessments. Or else the feds have to set up their own ‘assessment organization’ – which is going to be an ‘insult’ to the States’ prerogatives under the Constitution. Is Congress really going to leave itself open to that?
Or does Congress (slyly?) figure that the AG will helpfully and conveniently ‘report’ that offense-based is either the best way or else a ‘reasonable’ way considering just how much time, effort, cash and Constitutional complications will figure into switching to some risk-based scheme?
And in any case, shouldn’t this type of study to ascertain the answer to this clearly huge and fundamental question be completed BEFORE the AWA law is passed? Or – now at this point – shouldn’t it have been completed before the AWA law was passed? Just how much serious deliberation (and honest adherence to rational procedure) has Congress really put into this AWA thing?
It just doesn’t add up. It doesn’t make sense. Unless there are ulterior agendas that Congress doesn’t care to bring out into the open.
So when Logan expresses some polite hope that in requiring some study – any study at all – then at least Congress is starting to make some effort to be “empirical” about sex-offense laws, I can’t take too much comfort. Because if the true facts are ‘accepted’ by Congress, then it is going to have to a) explain to the public how it ever came to accept the grossly exaggerated untruths that it accepted in the first place, and b) expose itself and its assorted pressure-group constituencies to the bright light of day. And that’s probably a little more adventure than a sitting politician likes to undertake.
And Logan notes incisively that if ‘seriousness of offense’ is a useful predictor of recidivism, then murderers should be the most recidivistic of all. And yet they are the least – as a class, if I recall, they recidivate (sorry) at a rate even lower than almost all the subsets of sex-offenders, which is a low rate of recidivism indeed.
Congress does, Logan sees, put on a decent show of respect for State Constitutions: a State does not need to adopt any of AWA’s requirements if to do so would conflict with its own Constitution.
But again, then, Congress will require that the State’s own Supreme Court make that judgment formally; Congress will not accept even an Act of the State’s legislature as sufficient guarantee. So much for ‘partnership’.
And if a State’s highest court does so adjudge, then that doesn’t settle anything after all because then the U.S. Attorney General and State will have to make “good faith efforts to accomplish substantial implementation” of the AWA and to “reconcile any conflicts” between AWA and the State’s Constitution.
But how can you implement AWA substantially if the very substance of AWA violates your State’s Constitution? And how can you reconcile such a “conflict” when it is clearly an either-or proposition: offense-based or risk-based? How on earth can you do that? How on earth does all this nice language really make any practical sense at all?
You know what I think? I think that this is another example of “expressive law”: Congress has gone and made an impossible law, just to ‘send a message’, and to keep certain vocal and volatile groups happy, and it really doesn’t give a hoot about whether it’s a ‘good’ law or even a workable law, or about any awful precedents it may be setting, or about any truly awful doors it may be opening, or about any wrack and ruin it's causing to anybody its carpet-bomb law happens to hit.
And as far as all that is concerned, I think that the legislators’ approach is something akin to: we did our job and passed it, and now it’s the courts’ problem or somebody else’s problem, but it’s not our problem.
Well, I’ve always worked on the assumption from civics class that the job of the Legislative Branch was to craft well-made, effective, Constitutionally acceptable laws, even ‘wise’ laws.
And that’s their job. And if they see it as a ‘problem’ and don’t see it as their job, then they need to tell Us that so that We The People can thank them politely and proceed forthwith to make other arrangements. Arrangements more in line with the American tradition and American ideals. And with the Constitutional vision itself. For which We The People are ultimately responsible, since in a democratic Republic the buck stops with The People.
Since he’s speaking in Massachusetts (a risk-based State, one of about 15), Logan predicts “some interesting times” for Massachusetts, since AWA is going to require that the State “consult” with the feds about the meaning of its own Constitution. Which is, Constitutionally speaking, just short of blasphemous – this is not at all the way the Constitution arranged the relationship between the several States and the Federal government.
The Framers would be outraged. Although, since in 2002 New Jersey dropped the teaching about the Founders and their vision from its history requirements for students, maybe a whole generation of Americans in that State won’t even realize it.
Bah. Phooey.
But New Jersey, notorious home of Megan’s Law and the Poritz case, recently (2007) ordered a study to see if these things even work at all. And that, surely, is something to pin some hope on.
But one robin does not a Spring make. And they say there aren’t as many birds as there used to be.
In any case, We had best plan to do some serious work as Citizens if We have any hope of retaining the Republic that was handed down to Us, and that We are supposed to preserve and hand on to future generations (untutored in the vision of the Founders, alas, as they may be).
NOTES
*First, go to http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1089204 and then on that screen click on the 'Download' link. That will offer then offer you any of several links you can click to get to the actual pdf of the article; I usually click on the first link on the left as you look at the screen. Or you can google the title of the article and click on the SSRN link there.
**So, for example, it is to this day unknown who kidnapped Jacob Wetterling or why in 1989; as is also the case with Adam Walsh in 1991. There is substantial ground to doubt that the truly deformed murderer of Megan Kanka was indeed ‘unknown’ to the parents in her neighborhood.
ADDENDUM
If there are about 650,000 registered male sex-offenders now (let’s not try to imagine how many dozens of thousands have, as some say, evaded registration), and if there are 150 million (or less) males in the country, then by my count 1 out of every 230 males in the country is on a sex-offense registry. If, as some assert, there are another 100,000 who have evaded registration, then that makes it 1 out of every 200. If AWA now goes into effect, it’s going to go down to 1 out of every – what? – 175 males?
There’s something verrrrry odd – and verrrry not-quite-right about this.
ADDENDUM 2
For another examination of how Congress can write a nice-sounding, well-intentioned Law that undermines all sorts of important Constitutional things, see my immediately previous Post on the Matthew Shepard Act.
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