DOE v. PORITZ: FINAL THOUGHTS
These are my wrap-up thoughts on this case.
As I have said, my purpose is to offer an opportunity for the SO community to look more widely and deeply at the entire sex-offense law phenomenon. While there is every reason to become enmeshed in the close-in and close-up world of dealing with individual cases and individual laws, my concern is that to do only that is to lose sight of what a profound and dangerous dynamic now loose in American society and government has been enabled by this, the first major effort by a court to justify the whole thing.
I want to accentuate the genuine strangeness of this whole sex-offense thing: the Constitutional and legal philosophy underlying it, the highly dubious nature of the scheme itself and the ‘science’ allegedly supporting it, the actual political and legal tactics and strategy that seem to hover around it, and the larger consequences – not simply for SOs and their loved ones but also for America as a society and as a Constitutional Republic.
The Megan’s Law itself was enacted in an era when the intrusiveness of government police-authority was expanding, both in foreign affairs and in domestic affairs. The curious although not illegitimate concern for the ‘victim’ – presumably always genuine – was not the cause of all this, but I think was rather the ‘cover’ for this expansion (which is not at all to say that ‘victims’ are willingly and knowingly in cahoots with some government conspiracy to undermine the Constitutional ethos).
But I do say that there is a ‘synergy’ here – dynamics not knowingly connected yet have started ‘vibrating together’; in certain types of large bridges the initiation and amplification of such forces acting synergistically can create ‘waves’ of energy that literally tear the structure apart and it collapses. And this is what I see as taking place in this sex-offense mania.
The Law itself offers an alien and strange system, not really well-grounded in science but also alien to American tradition, which is itself based in a certain philosophy of citizenship and the role of the government and its police powers that was integral to the system that the Framers devised.
The legislative history of the Law gives deep cause for concern. It received no serious phase of legislative deliberation; it is not unreasonable to think that most of the legislators did not read the Law before voting for it. And in this I see an ominous ‘trend’ that was later seen in the Patriot Act legislation of half-a decade later.
Additionally, the production of such a scheme on such short notice suggests to me that there was a blueprint for this thing already devised by interested parties, simply waiting for a ‘match’, simply waiting for some ‘outrage’ that would create the wave of ‘emergency’ upon which the scheme could be floated and surfed into enactment. Again, this is what we already know underlay the huge and complex Patriot Act; that Bill suddenly appeared, literally overnight, and was voted for by national legislators who have since acknowledged that they hadn’t read it. Worse, that they were given no time to read it by the legislative leadership – and it was a Bill whose text ran over a thousand pages.
Which hints so very strongly that either the legislative leadership did not want the Members to read it, or else that the Members were willing to be side-tracked if it meant that they could not be accused either of passing-it (if it failed) or of not-passing it (if public opinion was persuaded that they were dragging their feet in such an emergency).
The New Jersey Supreme Court, presided over by a Chief Justice praised by certain ‘advocacies’ for his ‘reliability’ and ‘friendliness’ to their agendas, took a decidedly ‘narrow’ view of its own responsibilities, focusing on several smaller issues but accepting – rather inappropriately – that the Law itself was ‘good’ because it was ‘necessary’ and therefore had to be given the Court’s approval due to the ‘emergency’.
We can look on this case now from a vantage point of fifteen years of national sex-offense experience: few of the Court’s hopes for success have been realized; many of the negative consequences considered clearly probable by the Amicus Briefs of that day and by Justice Stein in his Dissent have now come to pass; the entire sex-offense law matrix, given this major initial approval in 1995, has now not only continued but has actually expanded hugely and dangerously, as we can see in the Adam Walsh Act of 2006.
That sustained expansion indicates, I would say, two grave dynamics working beneath the surfaces and appearances of media ‘reports’ and ‘stories’. First, that the legislatures and law-makers and courts are now trapped in a dynamic that they cannot easily stop without being tarred as ‘insensitive’; nobody wants to be seen as the first to put the brakes on this thing.
Second, both the public and the legislators may well now be sinking into an acceptance of this entire mania and the mania-law as ‘normal’, merely because it has been around ‘for so long’. And I think that is hugely dangerous: when the ship is taking on water, the last thing anybody aboard should be doing is simply assuming that the deck always tilts, and at an increasing angle.
What are the prospects for this mania-law? I don’t at all want to see accepted the approach that noted law commentator Cass Sunstein recently proposed about Roe v. Wade: it was probably wrongly decided, he says, but now it’s so much part of the ‘tradition’ of American law that it’s not a good idea to change it. I’m taking no position on Roe here, but I surely do not want such an ‘acceptance’ accorded to sex offense mania-law.
The laws may be countered by the courts acknowledging, as some lower courts now do, that the laws have “evolved” to the point where they are no longer Constitutionally acceptable.
Or the entire matrix of laws may be declared fundamentally un-Constitutional, as Justice Stein drives at in his Dissent.
After all, this entire matrix is built like an upside-down pyramid: wide at the top, but tapering down to a very tiny set of assumptions. If those key assumptions are shown to be inaccurate – grossly inaccurate – then the entire matrix will collapse.
So as I see it, these core (and incorrect) assumptions are as follows. First, that the ‘sex offender’ is indeed scientifically proven to be a repulsive and compulsive and incorrigible threat to the public, with an extremely high recidivism rate and a very low rehabilitation rate. I say that if this assumption is incorrect, then there is no ‘emergency’ for which such an alien and extraordinary matrix of laws is justified on the basis of an alleged threat to public safety so great as to override traditional Constitutional protections.
Second, that the registration and classification schemes are not “punitive”, but are merely “regulatory” in such a way that any ‘inconvenience’ that they bring upon targeted individuals does not constitute an un-Constitutional violation of their rights. Instead, I say – with Justice Stein – that they do indeed constitute “punishment” in their effects, and that moreover they constitute a profound and fundamental violation of both the Framers’ vision and the ‘social compact’ upon which the Constitution and the legitimacy of the government itself rely.
If these assumptions can be brought to re-examination, I believe that this entire alien matrix can be neutralized in its very core.
Because – and again this is the significance of Poritz – all subsequent legislation and the sustaining court decisions basically do nothing but repeat Portiz’s justifications. If Poritz is demonstrated to be wrong, then for all practical purposes the whole fifteen years worth of this matrix is wrong.
There is reason for hope. There has been a sustained series of court challenges, and while most courts take refuge in simply turning them back by repeating some variation on Poritz, increasing numbers of courts and jurists have been deciding against those Poritz-based justifications that government agencies press upon them.
We must support such a trend. The consequences to the integrity not only of the ‘social compact’ and the Constitution, and not only to the civic maturity and competence of The People, but also to the integrity of the legislative and judicial and law enforcement and criminal justice systems, are grave and dark. I will merely note here what the former Auschwitz Commandant, Rudolf Hoess, said in his own defense after the war: He told his guards that they were professionals, and that they were not there to torment people but merely to exterminate them and that therefore he would tolerate no gratuitous violence or cruelty. But when asked by the Allied prosecutor if he ever tried to think more deeply, about whether his entire plan and mission were wrong, he replied: “I never gave much thought to whether it was wrong … it just seemed a necessity”.
“Necessity”, I would say, can be the mother of a lot more than invention; it can be the seedbed of great wrong.
And let me say a final word about ‘victims’ here. As I said in the very opening Post of this site, it is built into the very nature of examining a still-rampant mania that you are going to look like you are ‘going after’ certain ‘valued’ realities. Genuine victims, I believe, are being used for the advantage of other entities in this entire mania: those entities that profit financially or otherwise from the mania are using them; and the much more diffuse but even more powerful synergy that is continually seeking in many ways, large and small, to expand the government’s intrusion-authority, especially by weakening The People’s ability to deliberate and decide matters of large and grave public import.
This is ‘classic’ and ‘old’ mania material. Hitler’s genius was to declare the entire German Volk a victim, and then – as always must happen – he identified the ‘enemies’ who were victimizing the German Volk. And once he had established that claim as so true that ‘everybody knew that’, then the path to the destruction of democracy in that country was made clear.
And of course, in any instance where a person finds himself (or herself) with a tendency toward sex-offending, then s/he has a responsibility – civic as well as moral – to change that personal predisposition, and to cease immediately such acts, if s/he has committed any acts.
I think we are now able to say that the questionable and primary use of the government police-power in these sex-offense matters has proven to be as bad an idea as the idea of the questionable and primary reliance on government military power has proven itself to be in Southwest Asia.
Let it not be allowed to get any worse. Lest the country – as a Constitutional Republic as well as a civic polity – reach a ‘tipping point’ from which it will be impossible to recover.
As Americans and as citizens and as Citizens and as The People, we do live in vital times, and we face great challenges. About that let there be no doubt whatsoever.
Showing posts with label Doe v. Poritz. Show all posts
Showing posts with label Doe v. Poritz. Show all posts
Monday, September 7, 2009
Sunday, September 6, 2009
DOE v. PORITZ: JUSTICE STEIN’S DISSENT
DOE v. PORITZ: JUSTICE STEIN’S DISSENT
Justice Stein filed the lone Dissent in Poritz (the Court split 6-1). In the linked text, the Dissent immediately follows the Decision.
He begins by noting, and it’s always good to get a clear picture of the times, that in 1994 “a federal statute, enacted as part of the Violent Crime Control and Law Enforcement Act of 1994, Public L. No. 103-322,encouraged states to adopt mandatory registration requirements for persons convicted of sexually violent offenses or certain prescribed offenses against minors”.
Again and again the date of 1994 comes up. It was indeed a watershed year for the expansion of the Continental ‘registration’ mentality and philosophy to be introduced into mainstream American legislation. And thus, of course, into American jurisprudence shortly thereafter. As I discussed in earlier Posts, while registering autos and drivers licenses and barbers and corporations were well established of course, and even the occasional card-file kept in a police station, this was the year that the genuinely alien concept of ‘tagging’ somebody became ‘cutting edge’.
And with that, the even more alien and genuinely hostile idea – so fundamentally antithetical to the Constitutional vision – that the Citizenry, comprised of individuals possessed of an inalienable dignity, were to be divided into the ‘good’ Citizens and then some other bunch of no-longer-citizens who had been targeted for – as the Nazis used to say – ‘special treatment’.
Nor was that dignity any longer to be considered “inalienable”: you could be blamed for losing it, or the government could take it away, or both.
Justice Stein is careful, almost too careful, in his next paragraph. “The relationship between the statutory provisions and the concerns that led to their adoption is self-evident.” Yes, although that’s not really the point. The concerns themselves are based on a grossly inaccurate web of ‘scientific’ assertions claiming to establish that the vast majority of sex offenders are repetitive and compulsive and constitute an ongoing threat to the public and to children. It is the concerns – not the relationship of the statutory provisions to the concerns – that constitute the glaring fundamental weakness in this entire matter.
So he gives a lot away here. And follows up by stating that “Obviously, the notification provisions of the statute and Guidelines are intended to protect the public by familiarizing those who receive notice with sufficient details about the offender’s appearance, prior conviction [notice that he uses the singular here], and other date to permit them to take appropriate precautions”.
Again I ask: what are “appropriate precautions”? Are people going to simply move their children out of the way if the tagged person walks by and then let them free again when the individual has moved on down the path or the street? It seems to me hardly likely that people would settle for this rather weak interpretation of the lethally vague “appropriate precautions” opportunity.
Rather, they will try to drive the tagged person away – not so much in an overt encounter ala pitchforks and torches, but rather by orchestrating a perfectly non-violent (in the physical sense) exclusion from and even ejection from the local community. Which is – when extended over an entire State (or the entire community of States) – effectively a death-sentence to any reasonable interpretation of conducting a life of Work and Love.
Nowhere that I have found does the Legislature or the Court try to explain just what are and what are not “appropriate precautions”. It is for that very reason that I doubt the honesty of the Legislature: I think that this phrase, unchallenged by the Court, is the classic wink-wink-nudge-nudge (to use Monty Python’s fine image and phrase) by which the Legislature lets the public know that the law is not going to stand in their way; indeed, that this Law and the Legislature are going to make things easier. If a Sheriff in the Deep South had told a local crowd that they would get no objection for taking “appropriate precautions” if a black person were coming into town … you could imagine what would happen.
But then he gets going.
He notes that the Court “properly concludes that the impact of the statutes on those subject to Tier Two and Tier Three notification sufficiently implicates liberty interests to mandate the availability of due-process safeguards”. And that in consequence the Court rightly requires judicial review of a prosecutor’s decision to impose Tier Two or Tier Three notification. As I’ve said, in times of mania law, the separation and independence of the Branches and their powers, and the assumption that they are working independently of each other’s influence, cannot at all be taken for granted.
It is far far too easy to imagine, without any exaggeration, local judges and prosecutors working pretty much in concert. And especially after they have all seen the Legislature’s wink-wink-nudge-nudge and the State Supreme Court’s convoluted effort to justify everything.
“The broader the scope of community notification, the greater the punitive impact that notification will impose on the offender.” It’s not quite getting to the heart of the matter, but it’s a lot better than what we’ve been seeing in the text of the Decision.
And he continues: “The limitations imposed by the Court [on the notification process] are salutary, but are insufficient to address the constitutional infirmities in the Community Notification Law”.
Again, this is focused on the Notification Law, not the Registration law or the egregious ‘science’ that claims to have proven how much of a threat and an ‘emergency’ the sex offender poses.
He then goes on to make the most curiously-balanced statement: “The Legislature’s rationale for enacting these statutes obviates any inquiry about the purpose of their retroactive application to those sex offenders whose offenses had been committed before the statutes were enacted, as well as to those prior offenders who had fully served sentences imposed on them for their offenses and had returned to their communities. If the Registration and Notification Laws did not apply to those offenders, their effectiveness would be severely limited and as a practical matter, delayed for many years.”
I say again what I said in prior Posts about the Decision itself: First, the Legislature’s “rationale” is utterly debased both by its egregiously inaccurate Findings of Fact about the repetitive and compulsive nature of sex offenders and by its utter lack of serious deliberation before passing this Law.
Second, there’s something eerie and alien about a Court justifying a highly dubious new scheme by saying in effect that if the scheme had to be fenced-in by the Constitution then the scheme wouldn’t work very well. That, it strikes me, is a huge warning flag that the scheme is lethally flawed and dangerously toxic to a Constitutionally-healthy American society. And this point is not lost on Justice Stein.
Because he immediately gets to the sharp end of his thought: “Nevertheless, despite its obvious importance to the statutory scheme, the retroactive application of the notification statute to prior offenders poses, in my view, a fundamental constitutional impediment to its validity”.
He’s saying that if you have concocted a scheme that will only work if you violate the Constitution and apply the scheme’s admittedly severe consequences upon prior offenders, then with all due respect to your problem, your scheme is unconstitutional and that’s that.
Whereas the Court’s whole game has been that a) the scheme’s retroactive application isn’t really punishment if you look at it at just the right angle – and so b) if it isn’t punishment, then it can be retroactive and you can get on with enforcing the scheme. I can’t help but thinking of Gilbert & Sullivan’s Rich Attorney’s “elderly, ugly daughter” as he describes her to an unsuspecting beau: “She may very well pass for forty-three, in the dusk, with the light behind her!” And this is precisely what the Court is trying to do to us here. Our ‘marriage’ to this alien and ominous scheme won’t be so bad, the Court inveigles, if we just look at it the right way.
Justice Stein stands like a Stone-Wall: “The Constitution’s prohibition of bills of attainder and Ex Post Facto laws is not to be taken lightly”. But of course, the Court is operating – though it prefers not to mention the fact – on an alien legal philosophy in which the American Constitution is seen as ‘weak’ (which is precisely how it appeared to monarchists on the Continent). And, nowadays, as “quaint” on top of that.
Mr. Justice Stein digs even deeper, quoting James Madison on their indispensable role in the Constitutional vision: “bills of attainder, ex post facto laws impairing the obligation of contracts, are contrary to the first principles of the social compact [italics mine; see below] and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the State Constitutions, and all of them are prohibited by the spirit and scope of those fundamental charters [italics mine; see below]. Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted”.
What the Justice is getting at, and what Madison so profoundly hit upon, is that this entire Continental approach is a violation of the basic American “social compact”. When the government sets forth criminal laws, it is clearly contracting with the citizens: if you do such-and-such, then such-and-such will follow.
And this is based on the quintessential American presumption that each Citizen is to be treated as a rational being possessed of an inalienable dignity and concomitant rights. Whereas the Continental view sees the citizens as peasants, which is to say ‘dumb animals’ that cannot control themselves. Accordingly, and also as a result of the Throne’s right to make law on a whim, then punishments can be increased even after the commission of a crime, and thus they can apply retroactively.
And so you can see where it was so important – and so easy – theoretically for the Legislature and the Court to switch to the Continental philosophy of law, wherein ‘sex offenders’ are seen as a species of animal, completely unguided by rationality and at the mercy of ‘repetitive and compulsive urges’ that will most likely drive them to ‘recidivate’ and ‘reoffend’. And thus, of course, they may be considered not as full Citizens but rather as a species of monster threatening, as it were, the villagers.
But in the Constitutional vision, each individual is a rational being and thus capable of entering into the ‘social contract’ or ‘social compact’, and that ‘contract’ – being the fundamental source of the government’s legitimacy - cannot be broken. Indeed, in breaking it, the government sets in train its own undoing, because eventually the consequences of breaking the ‘social contract’ will be the de-legitimizing of the government itself.
The Constitution is not a ‘game’, but it is certainly based on a ‘contract’ or a ‘compact’. And on that ‘compact’ the government’s own legitimacy rides. The Continental approach, of course, with its roots in monarchy, assumes that the government is the government (eerily similar to the Fundamentalist “powers that be”) and thus cannot be opposed by the citizenry (who in the Continental system are merely the modern-day equivalent of the peasants of olden times who were owned by the Crown).
Additionally, a government embarking on this noxious course will eventually create a significant group of ‘second class’ citizens within the American polity, which will be as dangerous in potential problems as it is repugnant in theory.
This is a huge and I agree a fatal difficulty at the heart of the entire scheme and of this Law itself, which is practically the forerunner of the entire matrix of sex offense laws.
The Court pays little attention to Madison, but then Madison makes no sense to the Continental philosophy of law, or to its latter-day proponents.
Interestingly, the 1994 federal statute does not require the retroactive application of sex-offenders. However, after this 1995 New Jersey Decision, the federal legislation has also moved ominously in that direction. Watching both a State Supreme Court, and then other States’ Legislatures and then the US Supreme Court itself expand or uphold this alien matrix, the Congress has been emboldened to the point of the jaw-dropping strictures written into the Adam Walsh Act of 2006. This is not at all a healthy course of American law or American society – it’s not far from a hasty heart-transplant with no thought as to whether the patient’s ‘constitution’ can stand the invasive and alien presence of the different organ.
You can see here, as well, how the Court’s “hopes” in 1995 were proven almost totally unfounded; these laws and public opinion and media treatment got worse, reflecting the intensified debauchery of legislatures, courts, media and citizenry. This cannot end well and must be stopped.
Justice Stein notes that “at this time [1995] the future effects of “Meagan’s Law” on those subject to community and individual notification are not possible to discern”. He does, however, mention what I think is a very revealing comment by one Curtis Sliwa, who in those days was head of the Guardian Angels group: “Let the criminal have a taste of being the victim”.
This comment clearly indicates that the public, and certainly this well-known (at the time) public service volunteer organization, most certainly did intend their “appropriate measures” to have a punitive effect. And I am going to imagine that 15 years later, current volunteer organizations – at least among themselves – are operating on the same principle. Nor have I heard of any Attorney General rebuking such an approach.
Once again, the Court’s queasily pious hope that folks wouldn’t go overboard with this thing is proven to be hugely mistaken.
Justice Stein quotes John Marshall from 1810: “Whatever respect might have been felt for the state sovereignties, it is not to be disguised that the framers of the constitution viewed with some apprehension the violent acts [that] might grow out of the feelings of the moment, and that the people of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed”. [italics mine].
The phenomenon of mania-law is grounded precisely in those “feelings of the moment” that the Framers feared. Their fears have been amplified in several ways in modern times. First, in mass societies that are too complex for any individual citizen to comprehend, then in the absence of rational knowledge of facts, citizens will tend to rely on feelings, and especially feeling-together – thus the diabolic enchantment of Hitler’s governing style and his huge public gatherings.
Second – as Noam Chomsky has recently noted – in the age of democracies, governments have realized that they cannot physically coerce their huge citizenries. And so the manipulation and control of public opinion has become indispensable and through the contributions of Edward Bernays and the odious genius Josef Goebbels such PR manipulation has been honed to a fine (so to speak) art.
We have been – especially since the end of World War Two – continuously assaulted by the government with efforts to manipulate public opinion. Truman was told by his advisers after the war that if he was going to have the US assume leadership of the West in the Cold War, then he was “going to have to scare hell out of the American people” since, presumably, they would be expecting a certain amount of ‘peace’ with the end of that monstrous war.
But even before that, the Progressives of the Wilsonian era – and Wilson himself – saw themselves as ‘experts’ who would need to guide “the blundering herd” as Walter Lippmann referred to the American citizenry. That was also when Wilson and Congress signed over their responsibility for the money supply and the economy to the Federal Reserve (1913) and gave the military the power to prosecute the entire Federal criminal code through courts-martial (1916). Whether either of those ‘delegations’ was actually Constitutional is a question that hasn’t really been settled.
The Vietnam War would not have gone where it did if it weren’t for the exaggeration of the Tonkin Gulf incident – to the extent it actually happened – that was blared out to the citizenry as another Pearl Harbor. Which, given the losses at Pearl Harbor, was just short of obscene.
But since the late Sixties, it was the Left and the ‘liberals’ who embraced such ‘scare and stampede’ tactics, inundating the country with sad stories and horror stories designed to overwhelm public deliberation and throw the public into a civic regression whereby The People could no longer deliberate, but could only react.
And it is exactly in this long line of events that the sex-offense mania and all the mania law and the insinuation of alien Continental legal philosophy come to us. And come at us.
So at this point, precisely such “feelings of the moment” as the Framers and the Constitutional vision sought so urgently to avoid, have become now the ‘normal’ mode of political discourse and of individual citizens’ conceptions about government and their role in it: they are here to ‘feel’ the appropriate feelings and – from time to time – vote in accordance with those ‘feelings’.
Thoughts not only don’t enter into it; thoughts may well be ‘insensitive’ (in matters domestic) or ‘unpatriotic’ (in matters foreign).
And if ever there has been a law that is enmeshed in ‘feelings’ it is this Law and all the spawn and spume of sex-offense laws that followed it. The public, the media, the Legislature, the Courts … they are all drenched in feeling, soused in them. And we are slowly drowning in them as a society, as a culture, as the stewards of the unique Constitutional vision bequeathed to us.
Justice Stein also refuses to allow the Court to absolve itself of any responsibility by claiming that “legislative intent” trumps all other considerations. “The Court’s exclusive reliance on legislative intent as the test of punishment [i.e., whether a law is punitive or only regulatory and administrative] is misplaced”. You have to judge the purposes to which the Law is being put, he says; you can’t simply rely on what the legislature says or implies about what sort of a law it has passed. Legislatures, Justice Stein is thinking, can say one thing for public consumption but intend something else; or maybe they just don’t think things through. Or – I would say – both.
Nor is it sufficient for the Court merely to play word-games with “dialectical subtleties”; not when “the problem is one of safeguarding the humane interests for the protection of which the double jeopardy clause was written into the Fifth Amendment”. This is wayyyy too important an issue, he says, for the Court to ignore its responsibility to enforce the Constitution’s vision of protecting all the citizens (including those accused of or even guilty of a crime) from the arbitrary or emotion-driven impositions of the government police power.
Interestingly, he quotes a 1965 US Supreme Court case (United States v. Brown, which is not the famous Brown v. Board of Education school desegregation case). In that case a 1959 federal law had required that simple membership in the Communist Party was sufficient to bar a person from serving as an officer of a labor union. No, said the Court, even though Congress claimed that it was not trying to “punish” American Communists “for what they have done in the past” but merely “regulate” them so as “to keep them from positions where they will in the future be able to bring about undesirable events”.
Nope, said the Supreme Court. “A number of English bills of attainder were passed for preventive purposes [back in the days of the divine-right monarchy], that is, the legislature made a judgment, undoubtedly based on past acts and associations that a given person or group was likely to cause trouble (usually, overthrow the government) and therefore inflicted deprivations upon that person or group in order to keep it from bringing about the feared event.”
The Supreme Court struck down the 1959 Act, based – Stein notes – in part on an 1867 Missouri case where that era’s Supreme Court “struck down amendments to the Missouri Constitution requiring members of various professions to take an oath swearing that they had not participated in the rebellion against the Union as a condition of practicing their professions”.
In other words, the Supreme Court in 1867 told Missouri that it could not claim it was merely a ‘regulatory’ act to require that ex-Confederates could not practice as professionals in the State.
Now if the US Supreme Court in 1965 refused to allow Congress to issue a blanket ban on Communists as labor leaders, and was willing to run the risk of Communists being in positions of influence in American society; and if the Supreme Court in 1867 was willing to run the risk of ex-Confederates practicing as professionals in post-Civil War America … then you can start to see how much things have changed recently.
In precisely the same way, Justice Stein notes, the Congress and the State of New Jersey are now [1995] in effect passing bills of attainder on ‘sex offenders’, as if the risk they pose is greater than that posed in the 1950s by Communists and in the late 1860s by ex-Confederates.
I would add: are ‘sex offenders’ really more of a threat than Communists in the 1950s or ex-Confederates in the border states of the 1860s? Surely the ‘science’ that claimed to prove that assertion in the affirmative has now in 2009 been demonstrated to be gravely and lethally inaccurate.
But what Justice Stein is driving at is that Constitutionally you can’t be imposing such bills of attainder even with the ‘good’ intention of ‘preventing’ what might happen. The ‘preventive state’ is in many ways not compatible with the Constitution. And, I would add, the same goes for the ‘mother-hen’ school of law that is merely the old Continental, monarchy-heavy approach in a different suit of clothes.
‘Preventive’ intent does not automatically rule out ‘punitive’ effects. Nor can you say breezily that ‘prevention’ trumps the Constitutional safeguards.
Continuing to quote Brown, Justice Stein establishes that anything required by a law might constitute ‘punishment’ and it is the responsibility of the Judicial Branch to look at the whole context. This of course is precisely what the Poritz Court has resolutely avoided doing, focusing on the seat-belt and not on the effects of being strapped into your car at the edge of the cliff with the government having incited a surrounding mob with solemn warnings as to your treacherous and compulsive and uncontrollably threatening nature.
As Justice Stein insists, when it comes to impositions required by a law “we must follow the notion where it leads” and judge it there. The Poritz Court, of course, refused to do that, taking an extremely narrow approach to its task and claiming that it could not see into the future (except that it was satisfied that sex-offenders were always a threat in any future).
Justice Stein then goes on to follow the Law’s plan for, say, a Tier Two offender, as it would work out in a small community of 10,000 citizens. “Hundreds of persons would be entitled to receive the Tier Two notice and, although instructed to inform no one else about its contents, no enforcement mechanism conceivably can prevent word of mouth dissemination of the information contained in the notice”.
Exactly. There is no way that the State can control conversation among folks. And what if the local paper or radio stations decides to do a report not on the individual’s Tier Two status (which would be illegal under the Law) but ‘merely’ on what he had been convicted of (which is perfectly legal) … ? What then?
And all of this takes place, of course, in an atmosphere where the Law’s assumptions about the uncontrollable threat that sex-offenders are officially considered to be have been well-publicized and everybody has been exposed to that (mis)information.
This is a State-constructed tinder-dry wilderness simply waiting for a match. Which the State is also going to provide. (But it doesn't expect any fires.)
Add to this that a Tier Three offender’s presence will be announced to anybody “likely to encounter him”, which in all but the largest cities could include everyone in the community.
The Court’s happy-face assumption that folks won’t go off half-cocked is “contrary to human nature”, he says. And, he adds, even if the media were to follow the Law, its reporting would “as a practical matter” result in a community-wide commotion.
And he goes on: “The community’s reaction to such notice is impossible to predict, but given the normal range of human emotion one reasonably could anticipate that notice of the presence of a sex offender will trigger fear, suspicion, hostility, anger, evasive behavior, ostracism, and in some cases derision, epithets, and violence. To be sure, the sex offender’s quality of life will be adversely affected”.
So, he concludes, “to anticipate that the Community Notification Law, even as limited by the Court’s interpretation, will not visit severe, disruptive, and perhaps intolerable consequences on offenders subject to Tier Two and Tier Three notification is simply unrealistic”. Good for him – it’s about time somebody started getting close to the idea that this Law pulls everybody wayyyy too close to the Mad Hatter’s Tea Party. And in a forum of lethally serious consequences for the entire basis of American society and culture.
He doesn’t stop.
“The Court appears to conclude, however, despite any deficiencies in the classification and notification process adopted by the Legislature, that its rationality establishes its constitutionality. That is, because the Court concludes that the Legislature reasonably could determine that these statutes prevent harm to the public by mandating notice to the community of the whereabouts of previously convicted sex offenders, the Constitution does not prohibit their enactment.”
He disagrees. “The Legislature’s value judgment about these laws [based, as you recall, on no Committee work or deliberation whatsoever] is entitled to great respect, but that judgment comprises only one part of the constitutional equation.” It’s refreshing to hear somebody in authority who doesn’t simply try to hide behind the Legislature.
Indeed, he says, “the judiciary’s task is to complete the equation by evaluating the legislative determination in the context of settled constitutional principles”. Precisely what the Poritz Court has been mostly avoiding all along.
“The constitutional prohibitions against the enactment of ex post facto laws and bills of attainder reflect a valid concern about the use of the political process to punish or characterize past conduct of private citizens.”
But of course the sex-offense laws’ approach has been to characterize the sex-offender not as a private citizen (with inalienable rights and dignity) but rather to characterize him as as incorrigible monstrous threat who implicitly has indeed been ‘alienated’ from his rights and dignity as a citizen.
And the use of the phrase “political process” is telling, in light of what we know about the Legislature’s own desire to escape public censure for its generous parole policies and to pander to certain voter groups. As well as the Court’s own predisposition (especially on the part of the Chief Justice) toward this alien Continental legal philosophy and its schemes.
And he reminds us that “retroactive statutes raise particular concerns”, because “the Legislature’s unmatched powers allow it to sweep away settled expectations suddenly”. Because “its responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals”. Which speaks directly to the reality of the government actually sponsoring this entire mania. And, over the course now of 15 years, we can see that the government – the national Legislature as well as the State Legislatures, and now even city and town and county governments – has continued to sustain and indeed expand this whole thing.
And, facing up squarely to the entire matrix of mania law and ‘emergency’ law, he clearly states that “the Constitution’s prohibition against ex post facto laws reflects an enduring value that transcends the most pressing concerns of this or any day and age”.
In the 1950s it was Communists (as in the late 1860s it was ex-Confederates) and “future legislatures will doubtlessly find reasons to deal harshly with other groups that pose an apparent threat to public safety”. Yes, it is a dark road that we have been started on here.
ADDENDUM
This concludes my thoughts about Justice Stein’s Dissent. I plan one more Post on this case simply to sum up – briefly, yes – what I see as the significance of this case.
But I’ll say here that I think it’s essential that the SO community makes itself aware of the large and deep picture that transcends the equally legitimate but more narrow concerns that occupy the community.
By doing so, I think that the various members of the SO community can fortify themselves as to the genuinely crucial and vital role that their efforts play in correcting what has been and still is a significant deformity to the American Constitutional system and a threat to the continued health and integrity of the unique gift that is the Constitutional and the American vision.
Justice Stein filed the lone Dissent in Poritz (the Court split 6-1). In the linked text, the Dissent immediately follows the Decision.
He begins by noting, and it’s always good to get a clear picture of the times, that in 1994 “a federal statute, enacted as part of the Violent Crime Control and Law Enforcement Act of 1994, Public L. No. 103-322,encouraged states to adopt mandatory registration requirements for persons convicted of sexually violent offenses or certain prescribed offenses against minors”.
Again and again the date of 1994 comes up. It was indeed a watershed year for the expansion of the Continental ‘registration’ mentality and philosophy to be introduced into mainstream American legislation. And thus, of course, into American jurisprudence shortly thereafter. As I discussed in earlier Posts, while registering autos and drivers licenses and barbers and corporations were well established of course, and even the occasional card-file kept in a police station, this was the year that the genuinely alien concept of ‘tagging’ somebody became ‘cutting edge’.
And with that, the even more alien and genuinely hostile idea – so fundamentally antithetical to the Constitutional vision – that the Citizenry, comprised of individuals possessed of an inalienable dignity, were to be divided into the ‘good’ Citizens and then some other bunch of no-longer-citizens who had been targeted for – as the Nazis used to say – ‘special treatment’.
Nor was that dignity any longer to be considered “inalienable”: you could be blamed for losing it, or the government could take it away, or both.
Justice Stein is careful, almost too careful, in his next paragraph. “The relationship between the statutory provisions and the concerns that led to their adoption is self-evident.” Yes, although that’s not really the point. The concerns themselves are based on a grossly inaccurate web of ‘scientific’ assertions claiming to establish that the vast majority of sex offenders are repetitive and compulsive and constitute an ongoing threat to the public and to children. It is the concerns – not the relationship of the statutory provisions to the concerns – that constitute the glaring fundamental weakness in this entire matter.
So he gives a lot away here. And follows up by stating that “Obviously, the notification provisions of the statute and Guidelines are intended to protect the public by familiarizing those who receive notice with sufficient details about the offender’s appearance, prior conviction [notice that he uses the singular here], and other date to permit them to take appropriate precautions”.
Again I ask: what are “appropriate precautions”? Are people going to simply move their children out of the way if the tagged person walks by and then let them free again when the individual has moved on down the path or the street? It seems to me hardly likely that people would settle for this rather weak interpretation of the lethally vague “appropriate precautions” opportunity.
Rather, they will try to drive the tagged person away – not so much in an overt encounter ala pitchforks and torches, but rather by orchestrating a perfectly non-violent (in the physical sense) exclusion from and even ejection from the local community. Which is – when extended over an entire State (or the entire community of States) – effectively a death-sentence to any reasonable interpretation of conducting a life of Work and Love.
Nowhere that I have found does the Legislature or the Court try to explain just what are and what are not “appropriate precautions”. It is for that very reason that I doubt the honesty of the Legislature: I think that this phrase, unchallenged by the Court, is the classic wink-wink-nudge-nudge (to use Monty Python’s fine image and phrase) by which the Legislature lets the public know that the law is not going to stand in their way; indeed, that this Law and the Legislature are going to make things easier. If a Sheriff in the Deep South had told a local crowd that they would get no objection for taking “appropriate precautions” if a black person were coming into town … you could imagine what would happen.
But then he gets going.
He notes that the Court “properly concludes that the impact of the statutes on those subject to Tier Two and Tier Three notification sufficiently implicates liberty interests to mandate the availability of due-process safeguards”. And that in consequence the Court rightly requires judicial review of a prosecutor’s decision to impose Tier Two or Tier Three notification. As I’ve said, in times of mania law, the separation and independence of the Branches and their powers, and the assumption that they are working independently of each other’s influence, cannot at all be taken for granted.
It is far far too easy to imagine, without any exaggeration, local judges and prosecutors working pretty much in concert. And especially after they have all seen the Legislature’s wink-wink-nudge-nudge and the State Supreme Court’s convoluted effort to justify everything.
“The broader the scope of community notification, the greater the punitive impact that notification will impose on the offender.” It’s not quite getting to the heart of the matter, but it’s a lot better than what we’ve been seeing in the text of the Decision.
And he continues: “The limitations imposed by the Court [on the notification process] are salutary, but are insufficient to address the constitutional infirmities in the Community Notification Law”.
Again, this is focused on the Notification Law, not the Registration law or the egregious ‘science’ that claims to have proven how much of a threat and an ‘emergency’ the sex offender poses.
He then goes on to make the most curiously-balanced statement: “The Legislature’s rationale for enacting these statutes obviates any inquiry about the purpose of their retroactive application to those sex offenders whose offenses had been committed before the statutes were enacted, as well as to those prior offenders who had fully served sentences imposed on them for their offenses and had returned to their communities. If the Registration and Notification Laws did not apply to those offenders, their effectiveness would be severely limited and as a practical matter, delayed for many years.”
I say again what I said in prior Posts about the Decision itself: First, the Legislature’s “rationale” is utterly debased both by its egregiously inaccurate Findings of Fact about the repetitive and compulsive nature of sex offenders and by its utter lack of serious deliberation before passing this Law.
Second, there’s something eerie and alien about a Court justifying a highly dubious new scheme by saying in effect that if the scheme had to be fenced-in by the Constitution then the scheme wouldn’t work very well. That, it strikes me, is a huge warning flag that the scheme is lethally flawed and dangerously toxic to a Constitutionally-healthy American society. And this point is not lost on Justice Stein.
Because he immediately gets to the sharp end of his thought: “Nevertheless, despite its obvious importance to the statutory scheme, the retroactive application of the notification statute to prior offenders poses, in my view, a fundamental constitutional impediment to its validity”.
He’s saying that if you have concocted a scheme that will only work if you violate the Constitution and apply the scheme’s admittedly severe consequences upon prior offenders, then with all due respect to your problem, your scheme is unconstitutional and that’s that.
Whereas the Court’s whole game has been that a) the scheme’s retroactive application isn’t really punishment if you look at it at just the right angle – and so b) if it isn’t punishment, then it can be retroactive and you can get on with enforcing the scheme. I can’t help but thinking of Gilbert & Sullivan’s Rich Attorney’s “elderly, ugly daughter” as he describes her to an unsuspecting beau: “She may very well pass for forty-three, in the dusk, with the light behind her!” And this is precisely what the Court is trying to do to us here. Our ‘marriage’ to this alien and ominous scheme won’t be so bad, the Court inveigles, if we just look at it the right way.
Justice Stein stands like a Stone-Wall: “The Constitution’s prohibition of bills of attainder and Ex Post Facto laws is not to be taken lightly”. But of course, the Court is operating – though it prefers not to mention the fact – on an alien legal philosophy in which the American Constitution is seen as ‘weak’ (which is precisely how it appeared to monarchists on the Continent). And, nowadays, as “quaint” on top of that.
Mr. Justice Stein digs even deeper, quoting James Madison on their indispensable role in the Constitutional vision: “bills of attainder, ex post facto laws impairing the obligation of contracts, are contrary to the first principles of the social compact [italics mine; see below] and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the State Constitutions, and all of them are prohibited by the spirit and scope of those fundamental charters [italics mine; see below]. Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted”.
What the Justice is getting at, and what Madison so profoundly hit upon, is that this entire Continental approach is a violation of the basic American “social compact”. When the government sets forth criminal laws, it is clearly contracting with the citizens: if you do such-and-such, then such-and-such will follow.
And this is based on the quintessential American presumption that each Citizen is to be treated as a rational being possessed of an inalienable dignity and concomitant rights. Whereas the Continental view sees the citizens as peasants, which is to say ‘dumb animals’ that cannot control themselves. Accordingly, and also as a result of the Throne’s right to make law on a whim, then punishments can be increased even after the commission of a crime, and thus they can apply retroactively.
And so you can see where it was so important – and so easy – theoretically for the Legislature and the Court to switch to the Continental philosophy of law, wherein ‘sex offenders’ are seen as a species of animal, completely unguided by rationality and at the mercy of ‘repetitive and compulsive urges’ that will most likely drive them to ‘recidivate’ and ‘reoffend’. And thus, of course, they may be considered not as full Citizens but rather as a species of monster threatening, as it were, the villagers.
But in the Constitutional vision, each individual is a rational being and thus capable of entering into the ‘social contract’ or ‘social compact’, and that ‘contract’ – being the fundamental source of the government’s legitimacy - cannot be broken. Indeed, in breaking it, the government sets in train its own undoing, because eventually the consequences of breaking the ‘social contract’ will be the de-legitimizing of the government itself.
The Constitution is not a ‘game’, but it is certainly based on a ‘contract’ or a ‘compact’. And on that ‘compact’ the government’s own legitimacy rides. The Continental approach, of course, with its roots in monarchy, assumes that the government is the government (eerily similar to the Fundamentalist “powers that be”) and thus cannot be opposed by the citizenry (who in the Continental system are merely the modern-day equivalent of the peasants of olden times who were owned by the Crown).
Additionally, a government embarking on this noxious course will eventually create a significant group of ‘second class’ citizens within the American polity, which will be as dangerous in potential problems as it is repugnant in theory.
This is a huge and I agree a fatal difficulty at the heart of the entire scheme and of this Law itself, which is practically the forerunner of the entire matrix of sex offense laws.
The Court pays little attention to Madison, but then Madison makes no sense to the Continental philosophy of law, or to its latter-day proponents.
Interestingly, the 1994 federal statute does not require the retroactive application of sex-offenders. However, after this 1995 New Jersey Decision, the federal legislation has also moved ominously in that direction. Watching both a State Supreme Court, and then other States’ Legislatures and then the US Supreme Court itself expand or uphold this alien matrix, the Congress has been emboldened to the point of the jaw-dropping strictures written into the Adam Walsh Act of 2006. This is not at all a healthy course of American law or American society – it’s not far from a hasty heart-transplant with no thought as to whether the patient’s ‘constitution’ can stand the invasive and alien presence of the different organ.
You can see here, as well, how the Court’s “hopes” in 1995 were proven almost totally unfounded; these laws and public opinion and media treatment got worse, reflecting the intensified debauchery of legislatures, courts, media and citizenry. This cannot end well and must be stopped.
Justice Stein notes that “at this time [1995] the future effects of “Meagan’s Law” on those subject to community and individual notification are not possible to discern”. He does, however, mention what I think is a very revealing comment by one Curtis Sliwa, who in those days was head of the Guardian Angels group: “Let the criminal have a taste of being the victim”.
This comment clearly indicates that the public, and certainly this well-known (at the time) public service volunteer organization, most certainly did intend their “appropriate measures” to have a punitive effect. And I am going to imagine that 15 years later, current volunteer organizations – at least among themselves – are operating on the same principle. Nor have I heard of any Attorney General rebuking such an approach.
Once again, the Court’s queasily pious hope that folks wouldn’t go overboard with this thing is proven to be hugely mistaken.
Justice Stein quotes John Marshall from 1810: “Whatever respect might have been felt for the state sovereignties, it is not to be disguised that the framers of the constitution viewed with some apprehension the violent acts [that] might grow out of the feelings of the moment, and that the people of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed”. [italics mine].
The phenomenon of mania-law is grounded precisely in those “feelings of the moment” that the Framers feared. Their fears have been amplified in several ways in modern times. First, in mass societies that are too complex for any individual citizen to comprehend, then in the absence of rational knowledge of facts, citizens will tend to rely on feelings, and especially feeling-together – thus the diabolic enchantment of Hitler’s governing style and his huge public gatherings.
Second – as Noam Chomsky has recently noted – in the age of democracies, governments have realized that they cannot physically coerce their huge citizenries. And so the manipulation and control of public opinion has become indispensable and through the contributions of Edward Bernays and the odious genius Josef Goebbels such PR manipulation has been honed to a fine (so to speak) art.
We have been – especially since the end of World War Two – continuously assaulted by the government with efforts to manipulate public opinion. Truman was told by his advisers after the war that if he was going to have the US assume leadership of the West in the Cold War, then he was “going to have to scare hell out of the American people” since, presumably, they would be expecting a certain amount of ‘peace’ with the end of that monstrous war.
But even before that, the Progressives of the Wilsonian era – and Wilson himself – saw themselves as ‘experts’ who would need to guide “the blundering herd” as Walter Lippmann referred to the American citizenry. That was also when Wilson and Congress signed over their responsibility for the money supply and the economy to the Federal Reserve (1913) and gave the military the power to prosecute the entire Federal criminal code through courts-martial (1916). Whether either of those ‘delegations’ was actually Constitutional is a question that hasn’t really been settled.
The Vietnam War would not have gone where it did if it weren’t for the exaggeration of the Tonkin Gulf incident – to the extent it actually happened – that was blared out to the citizenry as another Pearl Harbor. Which, given the losses at Pearl Harbor, was just short of obscene.
But since the late Sixties, it was the Left and the ‘liberals’ who embraced such ‘scare and stampede’ tactics, inundating the country with sad stories and horror stories designed to overwhelm public deliberation and throw the public into a civic regression whereby The People could no longer deliberate, but could only react.
And it is exactly in this long line of events that the sex-offense mania and all the mania law and the insinuation of alien Continental legal philosophy come to us. And come at us.
So at this point, precisely such “feelings of the moment” as the Framers and the Constitutional vision sought so urgently to avoid, have become now the ‘normal’ mode of political discourse and of individual citizens’ conceptions about government and their role in it: they are here to ‘feel’ the appropriate feelings and – from time to time – vote in accordance with those ‘feelings’.
Thoughts not only don’t enter into it; thoughts may well be ‘insensitive’ (in matters domestic) or ‘unpatriotic’ (in matters foreign).
And if ever there has been a law that is enmeshed in ‘feelings’ it is this Law and all the spawn and spume of sex-offense laws that followed it. The public, the media, the Legislature, the Courts … they are all drenched in feeling, soused in them. And we are slowly drowning in them as a society, as a culture, as the stewards of the unique Constitutional vision bequeathed to us.
Justice Stein also refuses to allow the Court to absolve itself of any responsibility by claiming that “legislative intent” trumps all other considerations. “The Court’s exclusive reliance on legislative intent as the test of punishment [i.e., whether a law is punitive or only regulatory and administrative] is misplaced”. You have to judge the purposes to which the Law is being put, he says; you can’t simply rely on what the legislature says or implies about what sort of a law it has passed. Legislatures, Justice Stein is thinking, can say one thing for public consumption but intend something else; or maybe they just don’t think things through. Or – I would say – both.
Nor is it sufficient for the Court merely to play word-games with “dialectical subtleties”; not when “the problem is one of safeguarding the humane interests for the protection of which the double jeopardy clause was written into the Fifth Amendment”. This is wayyyy too important an issue, he says, for the Court to ignore its responsibility to enforce the Constitution’s vision of protecting all the citizens (including those accused of or even guilty of a crime) from the arbitrary or emotion-driven impositions of the government police power.
Interestingly, he quotes a 1965 US Supreme Court case (United States v. Brown, which is not the famous Brown v. Board of Education school desegregation case). In that case a 1959 federal law had required that simple membership in the Communist Party was sufficient to bar a person from serving as an officer of a labor union. No, said the Court, even though Congress claimed that it was not trying to “punish” American Communists “for what they have done in the past” but merely “regulate” them so as “to keep them from positions where they will in the future be able to bring about undesirable events”.
Nope, said the Supreme Court. “A number of English bills of attainder were passed for preventive purposes [back in the days of the divine-right monarchy], that is, the legislature made a judgment, undoubtedly based on past acts and associations that a given person or group was likely to cause trouble (usually, overthrow the government) and therefore inflicted deprivations upon that person or group in order to keep it from bringing about the feared event.”
The Supreme Court struck down the 1959 Act, based – Stein notes – in part on an 1867 Missouri case where that era’s Supreme Court “struck down amendments to the Missouri Constitution requiring members of various professions to take an oath swearing that they had not participated in the rebellion against the Union as a condition of practicing their professions”.
In other words, the Supreme Court in 1867 told Missouri that it could not claim it was merely a ‘regulatory’ act to require that ex-Confederates could not practice as professionals in the State.
Now if the US Supreme Court in 1965 refused to allow Congress to issue a blanket ban on Communists as labor leaders, and was willing to run the risk of Communists being in positions of influence in American society; and if the Supreme Court in 1867 was willing to run the risk of ex-Confederates practicing as professionals in post-Civil War America … then you can start to see how much things have changed recently.
In precisely the same way, Justice Stein notes, the Congress and the State of New Jersey are now [1995] in effect passing bills of attainder on ‘sex offenders’, as if the risk they pose is greater than that posed in the 1950s by Communists and in the late 1860s by ex-Confederates.
I would add: are ‘sex offenders’ really more of a threat than Communists in the 1950s or ex-Confederates in the border states of the 1860s? Surely the ‘science’ that claimed to prove that assertion in the affirmative has now in 2009 been demonstrated to be gravely and lethally inaccurate.
But what Justice Stein is driving at is that Constitutionally you can’t be imposing such bills of attainder even with the ‘good’ intention of ‘preventing’ what might happen. The ‘preventive state’ is in many ways not compatible with the Constitution. And, I would add, the same goes for the ‘mother-hen’ school of law that is merely the old Continental, monarchy-heavy approach in a different suit of clothes.
‘Preventive’ intent does not automatically rule out ‘punitive’ effects. Nor can you say breezily that ‘prevention’ trumps the Constitutional safeguards.
Continuing to quote Brown, Justice Stein establishes that anything required by a law might constitute ‘punishment’ and it is the responsibility of the Judicial Branch to look at the whole context. This of course is precisely what the Poritz Court has resolutely avoided doing, focusing on the seat-belt and not on the effects of being strapped into your car at the edge of the cliff with the government having incited a surrounding mob with solemn warnings as to your treacherous and compulsive and uncontrollably threatening nature.
As Justice Stein insists, when it comes to impositions required by a law “we must follow the notion where it leads” and judge it there. The Poritz Court, of course, refused to do that, taking an extremely narrow approach to its task and claiming that it could not see into the future (except that it was satisfied that sex-offenders were always a threat in any future).
Justice Stein then goes on to follow the Law’s plan for, say, a Tier Two offender, as it would work out in a small community of 10,000 citizens. “Hundreds of persons would be entitled to receive the Tier Two notice and, although instructed to inform no one else about its contents, no enforcement mechanism conceivably can prevent word of mouth dissemination of the information contained in the notice”.
Exactly. There is no way that the State can control conversation among folks. And what if the local paper or radio stations decides to do a report not on the individual’s Tier Two status (which would be illegal under the Law) but ‘merely’ on what he had been convicted of (which is perfectly legal) … ? What then?
And all of this takes place, of course, in an atmosphere where the Law’s assumptions about the uncontrollable threat that sex-offenders are officially considered to be have been well-publicized and everybody has been exposed to that (mis)information.
This is a State-constructed tinder-dry wilderness simply waiting for a match. Which the State is also going to provide. (But it doesn't expect any fires.)
Add to this that a Tier Three offender’s presence will be announced to anybody “likely to encounter him”, which in all but the largest cities could include everyone in the community.
The Court’s happy-face assumption that folks won’t go off half-cocked is “contrary to human nature”, he says. And, he adds, even if the media were to follow the Law, its reporting would “as a practical matter” result in a community-wide commotion.
And he goes on: “The community’s reaction to such notice is impossible to predict, but given the normal range of human emotion one reasonably could anticipate that notice of the presence of a sex offender will trigger fear, suspicion, hostility, anger, evasive behavior, ostracism, and in some cases derision, epithets, and violence. To be sure, the sex offender’s quality of life will be adversely affected”.
So, he concludes, “to anticipate that the Community Notification Law, even as limited by the Court’s interpretation, will not visit severe, disruptive, and perhaps intolerable consequences on offenders subject to Tier Two and Tier Three notification is simply unrealistic”. Good for him – it’s about time somebody started getting close to the idea that this Law pulls everybody wayyyy too close to the Mad Hatter’s Tea Party. And in a forum of lethally serious consequences for the entire basis of American society and culture.
He doesn’t stop.
“The Court appears to conclude, however, despite any deficiencies in the classification and notification process adopted by the Legislature, that its rationality establishes its constitutionality. That is, because the Court concludes that the Legislature reasonably could determine that these statutes prevent harm to the public by mandating notice to the community of the whereabouts of previously convicted sex offenders, the Constitution does not prohibit their enactment.”
He disagrees. “The Legislature’s value judgment about these laws [based, as you recall, on no Committee work or deliberation whatsoever] is entitled to great respect, but that judgment comprises only one part of the constitutional equation.” It’s refreshing to hear somebody in authority who doesn’t simply try to hide behind the Legislature.
Indeed, he says, “the judiciary’s task is to complete the equation by evaluating the legislative determination in the context of settled constitutional principles”. Precisely what the Poritz Court has been mostly avoiding all along.
“The constitutional prohibitions against the enactment of ex post facto laws and bills of attainder reflect a valid concern about the use of the political process to punish or characterize past conduct of private citizens.”
But of course the sex-offense laws’ approach has been to characterize the sex-offender not as a private citizen (with inalienable rights and dignity) but rather to characterize him as as incorrigible monstrous threat who implicitly has indeed been ‘alienated’ from his rights and dignity as a citizen.
And the use of the phrase “political process” is telling, in light of what we know about the Legislature’s own desire to escape public censure for its generous parole policies and to pander to certain voter groups. As well as the Court’s own predisposition (especially on the part of the Chief Justice) toward this alien Continental legal philosophy and its schemes.
And he reminds us that “retroactive statutes raise particular concerns”, because “the Legislature’s unmatched powers allow it to sweep away settled expectations suddenly”. Because “its responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals”. Which speaks directly to the reality of the government actually sponsoring this entire mania. And, over the course now of 15 years, we can see that the government – the national Legislature as well as the State Legislatures, and now even city and town and county governments – has continued to sustain and indeed expand this whole thing.
And, facing up squarely to the entire matrix of mania law and ‘emergency’ law, he clearly states that “the Constitution’s prohibition against ex post facto laws reflects an enduring value that transcends the most pressing concerns of this or any day and age”.
In the 1950s it was Communists (as in the late 1860s it was ex-Confederates) and “future legislatures will doubtlessly find reasons to deal harshly with other groups that pose an apparent threat to public safety”. Yes, it is a dark road that we have been started on here.
ADDENDUM
This concludes my thoughts about Justice Stein’s Dissent. I plan one more Post on this case simply to sum up – briefly, yes – what I see as the significance of this case.
But I’ll say here that I think it’s essential that the SO community makes itself aware of the large and deep picture that transcends the equally legitimate but more narrow concerns that occupy the community.
By doing so, I think that the various members of the SO community can fortify themselves as to the genuinely crucial and vital role that their efforts play in correcting what has been and still is a significant deformity to the American Constitutional system and a threat to the continued health and integrity of the unique gift that is the Constitutional and the American vision.
Wednesday, September 2, 2009
DOE V PORITZ 10
DOE V PORITZ 10
I seem to have gotten my several copies of the Opinion confused. Don’t ask me how, but there are only 10 Sections, and then Justice Stein’s fine Dissent.
So this will be a Post on Section 10; and then tomorrow I hope to have a Post up on Justice Stein’s Dissent (which is also on the Rutger’s Law Library site here, immediately following the text of the Decision).
Section 10 is entitled “Conclusion”. If only.
The Court seems to want to justify itself, without giving the whole thing away.
“We sail on truly uncharted waters”, it begins. You can only imagine what it would be like to have the most senior specialist at the State’s biggest hospital come out from the patient’s room, walk over to you in the family waiting area, look you in the eye, and start off like that – we sail on truly uncharted waters.
But the Court is right. And not only because, as it notes, “no other state has adopted such a far-reaching statute.” That was certainly a warning sign – but then again, in a mania or a manic attack, doing something nobody else would think of doing or allow themselves to do just shows how brilliant and extraordinary you are. How ‘cutting edge’ and ‘ahead of the crowd’.
They teach you how to deal with attitudes like this in psychiatry school.
And you have to ask yourself: if you are dealing with a law that you know has received no substantive or serious or even accepted legislative treatment (the Bill was not put through any Committee phase whatsoever) and that the law proposes a scheme that nobody has ever implemented in the country, and if you yourself are a Judge or a Supreme Court Justice and even you feel that you are in uncharted waters … wouldn’t you sort of feel like you should reeely reeely be careful and give this thing a careful and serious look? And kick some tire?
And of course, it’s uncharted not just because nobody has done it before. But because you are looking at the first serious insinuation of an alien legal philosophy into the process and body of American law and jurisprudence.
But you don’t want to admit that. So even if it’s true that these are uncharted waters – that doesn’t mean that the huge rocks whose tips are poking up above the surface aren’t visible to the naked judicial eye. No prudent mariner is going to try and certify this course and passage as OK; not only for his own vessel but for the entire convoy that relies on his judgment.
But, rather, like the captain of the Titanic, you figure that you’re one of the most senior captains and how could you go seriously wrong? And anyway, you’re on an unsinkable ship, so what’s the problem? Into the dark night, into a suspected berg-field, at high speed and not even any moonlight. What, you worry? It would be unprofessional to display any worry, and would betray an unbecoming lack of self-confidence.
And anyway, you don’t want to be embarrassed in front of everybody who’s expecting you to deliver the goods and come into port right on time. You don’t want to be late in front of everybody whose esteem you value.
Nah – this will be a world-class example of just how masterful you are. Maintain course and speed!
Anyway, it’s not your fault. It’s a worrisome scheme, but “the statute before us, however, mandates it”. So it’s the Legislature’s fault if anything goes wrong.
But then you still can’t let this thing go – a psychiatrist would have a field day with this Section. “Despite the unavoidable uncertainty of our conclusion, we remain convinced that the statute is constitutional.”
The Court’s own doubts are not alone; the Court is very much aware through those Amicus Curiae Briefs just how much professional – legal and psychological – objection exists to the entire scheme.
So it has to come up with some trump-play that will shore up its position and – ultimately – its own performance in this saga. “To rule otherwise [i.e. that the statute is not constitutional] is to find that society is unable to protect itself from sexual predators by adopting the simple remedy of informing the public of their presence.”
Shrewd. And sly. First of all, there’s that conflation of ‘sex offender’ with ‘sexual predator’, which is not only a more vivid and ominous term, but also describes very few actual sex-offenders.
Second, the Court is running the same game here that the US Supremem Court would later run in Bush v. Gore: having already decided what the outcome must be, it will do whatever it has to in order to justify that outcome.
In Poritz, the Court has decided that its alien legal philosophy (that government-weighted presumption that the government's right-to-protect (hiding here behind "the public") trumps any effective Constitutional protections. In Bush v. Gore the US Supreme Court justified its interference in a State recount by claiming the 'emergency' of the country being without a President for a period of time, although such an outcome was very highly improbable.
Though Justice Sandra Day O'Connor, after her retirement, revealed in a chatty talk with a 'reliable' audience that she "didn't want a Democrat appointing my successor". In case you were thinking that the Court in that case was thinking primarily of the Constitution.
So you can see many things at work here. A) The increasing tendency for Court's to impose what it thinks is the desirable way to proceed (precisely as John Rawls had urged 'enlightened' and 'elite' jurists to do; B) The increasing use of "the public" or "the public as victim" as a cover for what is in effect a monstrous and alien expansion of the government police power; C) The increasing use of "emergency" - however a court chooses to define it - as a reason for doing an end-run around traditional and vital deliberation, not only among the public but even among legislators; and this is on top of what we have seen in Poritz and all the sex-offense legislation, D) the blatant selection of highly dubious 'science' and 'research' to the equally blatant exclusion of any opposition knowledge, no matter how significant.
At the risk of repeating myself, please let me point out here that this bundle of elements comes to these shores trailing clouds of an ominous and foreboding history.
Third, the Court is here admitting that it is not judging the scheme itself, but rather it is primarily trying to go along with what it hopes are the successful effects of the scheme once the Court approves it and turns it loose. To find the scheme unconstitutional is not to ‘say’ that society can’t ‘protect itself’. It’s simply to say that the scheme is unconstitutional and society – and the Legislature – will have to spend a little more time and effort addressing the problem in order to deal with matters Constitutionally – which is what America, and the Court, are all about. Or they are about nothing.
Instead, accepting that almost no time and effort went into legislative and public deliberation, the Court yet will tell the public and the Legislature that it’s OK to do this sort of thing if you’re reeely reeely worked up about it. This is precisely the type of situation where the Framers expected the Judicial Branch to stand up for the Constitution. Let the Constitution be upheld, though the heavens may fall – that sort of thing.
But not for this Court. Rather than try to stop the stampede, rather than try to demonstrate to the agitated public and Legislature what genuine mature Constitutional analysis deliberation really is – rather than that the Court will go along, carefully covering its tracks by expressing a tasteful bit of doubt and blaming the Legislature for whatever might go wrong, and tinkering just enough to be able to say that it did its bit of Constitutional gate-keeping.
But it hasn’t. It tinkered with the seatbelts, while accepting meekly that the mob and the officials were going to send the car over the cliff. Such judicial cowardice has been seen many times in recent history – and it hasn’t ended well.
And of course there will be no such thing as "simply informing the public" because once the State has tagged them, with Court approval, as "repetitive and compulsive" monsters who are a permanent threat to themselves and their children, then the public will take things rather seriously indeed.
I can’t help thinking of the film “Judgment at Nuremberg” from 1961.The now-condemned Nazi judge (played by Burt Lancaster) says to the American Chief Justice of the Nuremberg tribunal (played by Spencer Tracy): “It wasn’t supposed to turn out like this; we meant well”. To which Tracy replies simply and immediately: “It had to turn out like this, from the very first moment …” In this case, from the very first moment that the Court determined to approve this Law about which so many competent professionals, and even the Court itself deep down, harbored serious doubts.
And of course, as is now a cutesy insider-joke among law enforcement and prosecutors: “Megan’s Law would not have saved Megan”*. The Law itself bears no effective relationship in its effects to the goals so piously announced by the Legislature and accepted at face value by the Court. In fact, it is quite possible that the original circumstances of the crime were not relevant to the Law’s schematic at all; in which case you have to imagine that a whole bunch of interested folks had already put the scheme together and were simply waiting for a ‘match’ to light the fuse. And if that’s so, then we can’t credit Bush and Cheney with coming up all on their own with the idea of starting the Iraq War on the basis of grossly inaccurate assertions.
Wheels within wheels. This is not how things are supposed to be done. And the violation of Truth, let alone of the Constitution itself, cannot end well for anybody involved. Which, actually, is all of us.
The Court tries one last time to put out a fire that it knows it has helped to set, but looks to place the blame elsewhere: “That the remedy has a potentially severe effect arises from no fault of the government, or of society, but rather from the nature of the remedy and the problem; it is an unavoidable consequence of the compelling necessity to design a remedy.”
It again minimized the damage to those convicted of sex-offenses: The “severe” effect is only “potential”. I expect that to be tagged as monstrously as those convicted are going to be tagged, and have that trumpeted all around by government or media (and the internet, which was soon included as a weapon or ‘tool’ for this scheme) … would make it hard to live even in a community of mendicant monks or nuns. But in the average – ‘normal’, if you prefer – American neighborhood or city or town, this was going to be more than a Scarlet Letter – it was going to be a colored star. And then, before long, it would be put in government electronic databases, ones that were interlinked.
And the Opinion now would have everyone believe that it’s not the government’s fault (Legislature or Court) or society (whom the Court is buttering up to accept this scheme and use it) but simply the inevitable consequence of “the compelling necessity to design a remedy”. But how much ‘design’ could go into a plan that was so hastily and (deliberately?) without serious legislative consideration enacted?
It is inconceivable to accept with a straight face that this scheme is reliably grounded and suitable for implementation in the American setting, given the legislative history. And the Court must have known the legislative history.
In the alternative, perhaps the scheme had been already put together and its advocates were simply waiting for the right ‘match’ to light the fuse.
If so, where did they get the scheme in the first place? And can it be reasonably assumed that the recent, unhappy Continental European models discussed in earlier Posts were not consulted?
And if the “necessity” was so “compelling” – presumably because the matter was so important, then shouldn’t the Legislature have spent a great deal of time and energy to get the thing right?
But of course, if the “necessity” and the “compelling” nature of it were due rather to political considerations, then things start to make more sense. But it’s a dark vision then: the Legislature was primarily politically motivated, and this whole scheme was ‘politics’ more than anything else. Oy.
In that regard, the article that I’ve linked to in the Notes below offers an ominous bit of information: Megan Kanka’s killer had been paroled by the State and had completed some sort of sex-offender therapy regimen. And the State had actually been paroling a very large percentage of inmates of all sorts. So it becomes much more possible that the Legislature was motivated not only by ‘politics’, but by its own desperate need to avoid being held responsible.
The solution? Call all sex-offenders “repetitive and compulsive” and insinuate that even after they have served their time – even for a first offense – and have re-integrated back into community for years, they are still ‘sex offenders’, monstrous and compelled to repeat their actions and therefore a secret and hidden threat to the citizens and ‘the children’.
Which is a neat two-fer because it also gets the Legislature off the hook: we were bamboozled by shrewd vampire-like monsters that can pretend to be ‘normal’ and ‘decent’.
And the solution? We, the Legislature, will now take sweeping action and do whatever it takes. And you should admire us for that and also realize how mad we are that these sly monsters tricked us.
The Court again goes back to the tea-leaves: “There is no point in predicting the extent of the potential ostracism, in avoiding the conclusion that some ostracism will result …”. Of course what the Court has slyly avoided all along here is not that there will be some ostracism, but rather it has continually and blatantly minimized the consequences to targeted offenders: what they will experience, and what the past 15 years have clearly demonstrated although it was perfectly predictable back in 1995, is that this is not mere ‘ostracism’ but rather a civic death-sentence, of the type that the Framers would never have countenanced.
It continues immediately: “… or in calming concerns by observing that the offenders themselves are responsible for their plight for having committed their crimes in the first place …”. This is beyond ‘sly’, this is an almost treacherous ‘blaming’. First, nobody convicted of any crime can be held responsible if a Legislature under the influence of an induced public mania (and seeking to avoid blame itself) suddenly turns a ‘crime’ into a ‘monstrous and permanent threat’. And then on the basis of that assertion, undermines the entire traditional approach to American law by introducing an alien ‘permanent convict class’ into both American law and society.
I would say that the convicted offenders (to the extent that they are genuinely so) cannot be blamed because nobody in their right mind could ever have imagined that an American Legislature and an American Court would ever have introduced such a scheme, trailing such anti-Constitutional and un-American clouds of conceptual and historical frakkery, into this country.
I am not trying here to minimize actual sexual abuse (and worse) of children or of anybody else. Nor am I endorsing the ‘game’ approach to criminal law (engaged in by prosecutors and police as well as perpetrators): that the whole thing is a game of ‘tag’ and you do what you have to do to ‘tag’ somebody or to avoid being ‘tagged’.
I am speaking about a much deeper level here: that no citizens can be expected to imagine, in their overall understanding of their lives within a long-established national community, that suddenly that community’s guiding philosophy would morph overnight into something that its Founders precisely sought to prevent it from ever becoming.
Which is precisely what the Legislature and the Court are about here.
“Here government has done all it can to confine that impact [to the targeted offenders], allowing it only where clearly necessary, to effect public safety …”
Yet the government has done no such thing. “All it can” cannot in any sense be construed as an accurate description of the utterly hasty nature of the legislative process in the matter of this Law. Nor can the requirements of this Law be truthfully construed as “clearly necessary” when so much clear and urgent and serious professional concern was there to be considered, but was instead deliberately avoided or minimized or otherwise pooh-poohed. And it is clear now, and was most reasonably forseeable then, that this scheme has done verrrry little to foster public safety and indeed is increasingly weakening public safety.
“We must not prejudge society”, the Court preaches, “with the ogre of vigilantism or harassment …”. And yet no student of history or social science can conceivably ignore the demonstrated potential for publics to become most ugly indeed – after they are subjected to a deliberate and sustained policy of ‘threat-amplification’ and assured by their government and their apparent elites that they are the targets of a monstrous and secret threat to themselves and to their children.
The Court proceeds immediately: “… although its [vigilantism’s] potential obviously calls for the vigorous steps suggested by the Attorney General …”. I ask any reader just how much any State or Federal agency has done in 15 years to minimize the negative potentials of a highly and deliberately inflamed public? Surely the incessant and frequent intensification of these laws – and this mania – over the past decade and a half itself constitutes an ongoing and deliberate inflammatory effort on the part of State and national legislatures, and now even municipal and county governments as well.
Worse, as I’ve noted in earlier Posts, the greatest danger to the targeted offenders is not posed by outright “vigilantism” and “ostracism”. This isn’t so much a matter of pitchforks and torches (although there have been more violent episodes than the Courts acknowledge) or even of folks not greeting you on the street when you’re walking down the sidewalk. This is a matter of a profound fearful and judgmental revulsion against ‘repetitive and compulsive and monstrous threats’ that chokes out any possibility of employment or conducting a life with any reasonable opportunities for Work and Love, job and relationships.
And in that regard I warn that once a populace and its government have tasted such ‘blood’ – the weirdly satisfying ‘rush’ of freely and openly reviling a designated group of ‘others’ (and American Citizens at that!) … once they have tasted that ‘blood’, then it will not only be hard to wean them off it, but the process will not pass – as a mania does – but rather will intensify, as a profound regression and degradation does.
Look what happened to the German people: first it was the ‘lives unworthy of life’ that threatened the communal ‘purity’ and were done away with; then designated classes of persons – group after suddenly ‘identified’ group; then an entire religion … all the targets of an increasingly debauched populace, led by its government and its elites.
You can see where this sort of thing can go.
“We must not assume that those in responsible positions will violate the intent of this law by giving notification far beyond that which is authorized, and we must not assume that the press, for whatever reason, will disregard the notification confinement which this law requires.”
But “those in responsible positions” – the Legislature most vividly of all – have already ensured with their erroneous and deliberately hasty Findings that the entire civil population and the State’s police and prosecutorial bureaucracies understand the targeted offenders to be “repetitive and compulsive” monsters who constitute an ongoing and hidden threat to the citizens and their children. How in any rational universe of possibility can that Legislature or the Court then seriously plan to maintain any control whatsoever over public reactions?
And the media? Of course they won’t simply be publishing the actual text of the Registry lists … They don’t have to. They merely have to ‘report’ the cases – from arrest and any attendant speculation through trial and any ‘reliable’ science that is brought in by the State – and if there will be many cases, then there’s going to be a lot of public inflammation. And this is a hugely predictable dynamic, especially when one considers that even in the early 1990s there was concern that the media were becoming too sensationalist, dependent upon good-vs-evil and victimization scripts around which to organize their ‘stories’.
The Legislature and now the Court have loosed awefull public and societal dynamics, historically demonstrated to burn beyond any control, and now content themselves with staring at the text of the Law (which is bad enough as it is) and claim that they can’t ‘see’ anything that might go seriously wrong. They are all staring at the seatbelt as the car and offender teeter over the cliff, and carefully examine – and even adjust – the belt as the crowds deliberately inflamed hover nearby to do the heavy-lifting (or pushing).
And on the basis of their official examination of belt and buckle, they not only proclaim that everything appears to be in order, but then feel pretty good about themselves and their analysis. And figure they’ve done a good day’s work.
“We are satisfied that this statute, rationally and carefully addressed to a pressing societal problem, is not what those who drafted the Constitution had in mind as an abuse of government’s power to punish.”
If the Framers did not consider this sort of thing as an abuse of the government’s power to punish (and that’s a highly debatable proposition itself) then it’s only because the Framers would no more have imagined this sort of thing being perpetrated by an American government than they would have imagined Martians landing and setting up shop.
But I myself think that the Framers most certainly would have imagined this sort of thing as happening. It is precisely the Continental monarchical approach to law. As the Court – amazingly – goes right on to demonstrate: “What government faced here was a difficult problem, a question of policy, and it understandably decided that public safety was more important than the potential for unfair, and even severe, impact on those who had previously committed sex offenses”.
What indeed are they teaching in law schools these days? I’ll get around to a Post on this but I’ll just note this here. With the fall of the Soviet Union in 1991 – and it had pretty much become a dead letter by 1989 – and certainly the accession of the Clinton Administration (not a ‘political position’ statement, just locating this era in historical time) some of this country’s own domestic developments that had been building for a couple of decades were given a much freer rein.
Most relevant to our considerations here was the embrace by legal elites of the Continental approach to law, in the form of what was called ‘responsibility to protect’. This led to the ‘preventive’ approach to law and even more ominously to the ‘preventive state’. We saw it develop in foreign affairs with what the international diplomats call “R2P”, responsibility to protect. It holds that nations may intervene in another nation’s sovereignty when they feel that bad things are being done to people in that nation. Yes, you saw it in the Balkans in the mid-1990s and in the run-up to the Iraq War.
Domestically, we saw its emergence in the sex-offense ‘science’ that underlies the sex-offense laws. And, as you have seen in this Opinion and the Law that it is defending, there was a notable readiness on the part of public officials and judicial elites to embrace it.
You’ll also note its presence in the comments of both Presidents Bush and Obama when they say that the responsibility of the President is to “protect the American people” (and the implication is that they’ll do whatever it takes …). The actual Oath of Office is that the President will “preserve, protect and defend the Constitution” … and you can see in recent national and foreign affairs the way in which somehow hugely un-Constitutional things have been done in the name of “protection”.
Where the military was sent in on the foreign stage, the ‘police power’ of the government was sent in on the domestic stage.
Things haven’t turned out so well. Not hardly.
ADDENDUM
This completes my Posts on the text of the Poritz Opinion. I will get a Post up on the remarkable Dissent by Justice Stein – tomorrow, I hope.
Meanwhile, I would like to urge every reader to give careful thought to what is being discussed here. I firmly believe that the sex-offense laws are not only grievously and most improperly punitive to targeted offenders (whether genuinely guilty or otherwise), but also most lethally dangerous to the entire American polity and the civil community of the American people.
NOTES
*This article is brief and well worth a read in its entirety.
I seem to have gotten my several copies of the Opinion confused. Don’t ask me how, but there are only 10 Sections, and then Justice Stein’s fine Dissent.
So this will be a Post on Section 10; and then tomorrow I hope to have a Post up on Justice Stein’s Dissent (which is also on the Rutger’s Law Library site here, immediately following the text of the Decision).
Section 10 is entitled “Conclusion”. If only.
The Court seems to want to justify itself, without giving the whole thing away.
“We sail on truly uncharted waters”, it begins. You can only imagine what it would be like to have the most senior specialist at the State’s biggest hospital come out from the patient’s room, walk over to you in the family waiting area, look you in the eye, and start off like that – we sail on truly uncharted waters.
But the Court is right. And not only because, as it notes, “no other state has adopted such a far-reaching statute.” That was certainly a warning sign – but then again, in a mania or a manic attack, doing something nobody else would think of doing or allow themselves to do just shows how brilliant and extraordinary you are. How ‘cutting edge’ and ‘ahead of the crowd’.
They teach you how to deal with attitudes like this in psychiatry school.
And you have to ask yourself: if you are dealing with a law that you know has received no substantive or serious or even accepted legislative treatment (the Bill was not put through any Committee phase whatsoever) and that the law proposes a scheme that nobody has ever implemented in the country, and if you yourself are a Judge or a Supreme Court Justice and even you feel that you are in uncharted waters … wouldn’t you sort of feel like you should reeely reeely be careful and give this thing a careful and serious look? And kick some tire?
And of course, it’s uncharted not just because nobody has done it before. But because you are looking at the first serious insinuation of an alien legal philosophy into the process and body of American law and jurisprudence.
But you don’t want to admit that. So even if it’s true that these are uncharted waters – that doesn’t mean that the huge rocks whose tips are poking up above the surface aren’t visible to the naked judicial eye. No prudent mariner is going to try and certify this course and passage as OK; not only for his own vessel but for the entire convoy that relies on his judgment.
But, rather, like the captain of the Titanic, you figure that you’re one of the most senior captains and how could you go seriously wrong? And anyway, you’re on an unsinkable ship, so what’s the problem? Into the dark night, into a suspected berg-field, at high speed and not even any moonlight. What, you worry? It would be unprofessional to display any worry, and would betray an unbecoming lack of self-confidence.
And anyway, you don’t want to be embarrassed in front of everybody who’s expecting you to deliver the goods and come into port right on time. You don’t want to be late in front of everybody whose esteem you value.
Nah – this will be a world-class example of just how masterful you are. Maintain course and speed!
Anyway, it’s not your fault. It’s a worrisome scheme, but “the statute before us, however, mandates it”. So it’s the Legislature’s fault if anything goes wrong.
But then you still can’t let this thing go – a psychiatrist would have a field day with this Section. “Despite the unavoidable uncertainty of our conclusion, we remain convinced that the statute is constitutional.”
The Court’s own doubts are not alone; the Court is very much aware through those Amicus Curiae Briefs just how much professional – legal and psychological – objection exists to the entire scheme.
So it has to come up with some trump-play that will shore up its position and – ultimately – its own performance in this saga. “To rule otherwise [i.e. that the statute is not constitutional] is to find that society is unable to protect itself from sexual predators by adopting the simple remedy of informing the public of their presence.”
Shrewd. And sly. First of all, there’s that conflation of ‘sex offender’ with ‘sexual predator’, which is not only a more vivid and ominous term, but also describes very few actual sex-offenders.
Second, the Court is running the same game here that the US Supremem Court would later run in Bush v. Gore: having already decided what the outcome must be, it will do whatever it has to in order to justify that outcome.
In Poritz, the Court has decided that its alien legal philosophy (that government-weighted presumption that the government's right-to-protect (hiding here behind "the public") trumps any effective Constitutional protections. In Bush v. Gore the US Supreme Court justified its interference in a State recount by claiming the 'emergency' of the country being without a President for a period of time, although such an outcome was very highly improbable.
Though Justice Sandra Day O'Connor, after her retirement, revealed in a chatty talk with a 'reliable' audience that she "didn't want a Democrat appointing my successor". In case you were thinking that the Court in that case was thinking primarily of the Constitution.
So you can see many things at work here. A) The increasing tendency for Court's to impose what it thinks is the desirable way to proceed (precisely as John Rawls had urged 'enlightened' and 'elite' jurists to do; B) The increasing use of "the public" or "the public as victim" as a cover for what is in effect a monstrous and alien expansion of the government police power; C) The increasing use of "emergency" - however a court chooses to define it - as a reason for doing an end-run around traditional and vital deliberation, not only among the public but even among legislators; and this is on top of what we have seen in Poritz and all the sex-offense legislation, D) the blatant selection of highly dubious 'science' and 'research' to the equally blatant exclusion of any opposition knowledge, no matter how significant.
At the risk of repeating myself, please let me point out here that this bundle of elements comes to these shores trailing clouds of an ominous and foreboding history.
Third, the Court is here admitting that it is not judging the scheme itself, but rather it is primarily trying to go along with what it hopes are the successful effects of the scheme once the Court approves it and turns it loose. To find the scheme unconstitutional is not to ‘say’ that society can’t ‘protect itself’. It’s simply to say that the scheme is unconstitutional and society – and the Legislature – will have to spend a little more time and effort addressing the problem in order to deal with matters Constitutionally – which is what America, and the Court, are all about. Or they are about nothing.
Instead, accepting that almost no time and effort went into legislative and public deliberation, the Court yet will tell the public and the Legislature that it’s OK to do this sort of thing if you’re reeely reeely worked up about it. This is precisely the type of situation where the Framers expected the Judicial Branch to stand up for the Constitution. Let the Constitution be upheld, though the heavens may fall – that sort of thing.
But not for this Court. Rather than try to stop the stampede, rather than try to demonstrate to the agitated public and Legislature what genuine mature Constitutional analysis deliberation really is – rather than that the Court will go along, carefully covering its tracks by expressing a tasteful bit of doubt and blaming the Legislature for whatever might go wrong, and tinkering just enough to be able to say that it did its bit of Constitutional gate-keeping.
But it hasn’t. It tinkered with the seatbelts, while accepting meekly that the mob and the officials were going to send the car over the cliff. Such judicial cowardice has been seen many times in recent history – and it hasn’t ended well.
And of course there will be no such thing as "simply informing the public" because once the State has tagged them, with Court approval, as "repetitive and compulsive" monsters who are a permanent threat to themselves and their children, then the public will take things rather seriously indeed.
I can’t help thinking of the film “Judgment at Nuremberg” from 1961.The now-condemned Nazi judge (played by Burt Lancaster) says to the American Chief Justice of the Nuremberg tribunal (played by Spencer Tracy): “It wasn’t supposed to turn out like this; we meant well”. To which Tracy replies simply and immediately: “It had to turn out like this, from the very first moment …” In this case, from the very first moment that the Court determined to approve this Law about which so many competent professionals, and even the Court itself deep down, harbored serious doubts.
And of course, as is now a cutesy insider-joke among law enforcement and prosecutors: “Megan’s Law would not have saved Megan”*. The Law itself bears no effective relationship in its effects to the goals so piously announced by the Legislature and accepted at face value by the Court. In fact, it is quite possible that the original circumstances of the crime were not relevant to the Law’s schematic at all; in which case you have to imagine that a whole bunch of interested folks had already put the scheme together and were simply waiting for a ‘match’ to light the fuse. And if that’s so, then we can’t credit Bush and Cheney with coming up all on their own with the idea of starting the Iraq War on the basis of grossly inaccurate assertions.
Wheels within wheels. This is not how things are supposed to be done. And the violation of Truth, let alone of the Constitution itself, cannot end well for anybody involved. Which, actually, is all of us.
The Court tries one last time to put out a fire that it knows it has helped to set, but looks to place the blame elsewhere: “That the remedy has a potentially severe effect arises from no fault of the government, or of society, but rather from the nature of the remedy and the problem; it is an unavoidable consequence of the compelling necessity to design a remedy.”
It again minimized the damage to those convicted of sex-offenses: The “severe” effect is only “potential”. I expect that to be tagged as monstrously as those convicted are going to be tagged, and have that trumpeted all around by government or media (and the internet, which was soon included as a weapon or ‘tool’ for this scheme) … would make it hard to live even in a community of mendicant monks or nuns. But in the average – ‘normal’, if you prefer – American neighborhood or city or town, this was going to be more than a Scarlet Letter – it was going to be a colored star. And then, before long, it would be put in government electronic databases, ones that were interlinked.
And the Opinion now would have everyone believe that it’s not the government’s fault (Legislature or Court) or society (whom the Court is buttering up to accept this scheme and use it) but simply the inevitable consequence of “the compelling necessity to design a remedy”. But how much ‘design’ could go into a plan that was so hastily and (deliberately?) without serious legislative consideration enacted?
It is inconceivable to accept with a straight face that this scheme is reliably grounded and suitable for implementation in the American setting, given the legislative history. And the Court must have known the legislative history.
In the alternative, perhaps the scheme had been already put together and its advocates were simply waiting for the right ‘match’ to light the fuse.
If so, where did they get the scheme in the first place? And can it be reasonably assumed that the recent, unhappy Continental European models discussed in earlier Posts were not consulted?
And if the “necessity” was so “compelling” – presumably because the matter was so important, then shouldn’t the Legislature have spent a great deal of time and energy to get the thing right?
But of course, if the “necessity” and the “compelling” nature of it were due rather to political considerations, then things start to make more sense. But it’s a dark vision then: the Legislature was primarily politically motivated, and this whole scheme was ‘politics’ more than anything else. Oy.
In that regard, the article that I’ve linked to in the Notes below offers an ominous bit of information: Megan Kanka’s killer had been paroled by the State and had completed some sort of sex-offender therapy regimen. And the State had actually been paroling a very large percentage of inmates of all sorts. So it becomes much more possible that the Legislature was motivated not only by ‘politics’, but by its own desperate need to avoid being held responsible.
The solution? Call all sex-offenders “repetitive and compulsive” and insinuate that even after they have served their time – even for a first offense – and have re-integrated back into community for years, they are still ‘sex offenders’, monstrous and compelled to repeat their actions and therefore a secret and hidden threat to the citizens and ‘the children’.
Which is a neat two-fer because it also gets the Legislature off the hook: we were bamboozled by shrewd vampire-like monsters that can pretend to be ‘normal’ and ‘decent’.
And the solution? We, the Legislature, will now take sweeping action and do whatever it takes. And you should admire us for that and also realize how mad we are that these sly monsters tricked us.
The Court again goes back to the tea-leaves: “There is no point in predicting the extent of the potential ostracism, in avoiding the conclusion that some ostracism will result …”. Of course what the Court has slyly avoided all along here is not that there will be some ostracism, but rather it has continually and blatantly minimized the consequences to targeted offenders: what they will experience, and what the past 15 years have clearly demonstrated although it was perfectly predictable back in 1995, is that this is not mere ‘ostracism’ but rather a civic death-sentence, of the type that the Framers would never have countenanced.
It continues immediately: “… or in calming concerns by observing that the offenders themselves are responsible for their plight for having committed their crimes in the first place …”. This is beyond ‘sly’, this is an almost treacherous ‘blaming’. First, nobody convicted of any crime can be held responsible if a Legislature under the influence of an induced public mania (and seeking to avoid blame itself) suddenly turns a ‘crime’ into a ‘monstrous and permanent threat’. And then on the basis of that assertion, undermines the entire traditional approach to American law by introducing an alien ‘permanent convict class’ into both American law and society.
I would say that the convicted offenders (to the extent that they are genuinely so) cannot be blamed because nobody in their right mind could ever have imagined that an American Legislature and an American Court would ever have introduced such a scheme, trailing such anti-Constitutional and un-American clouds of conceptual and historical frakkery, into this country.
I am not trying here to minimize actual sexual abuse (and worse) of children or of anybody else. Nor am I endorsing the ‘game’ approach to criminal law (engaged in by prosecutors and police as well as perpetrators): that the whole thing is a game of ‘tag’ and you do what you have to do to ‘tag’ somebody or to avoid being ‘tagged’.
I am speaking about a much deeper level here: that no citizens can be expected to imagine, in their overall understanding of their lives within a long-established national community, that suddenly that community’s guiding philosophy would morph overnight into something that its Founders precisely sought to prevent it from ever becoming.
Which is precisely what the Legislature and the Court are about here.
“Here government has done all it can to confine that impact [to the targeted offenders], allowing it only where clearly necessary, to effect public safety …”
Yet the government has done no such thing. “All it can” cannot in any sense be construed as an accurate description of the utterly hasty nature of the legislative process in the matter of this Law. Nor can the requirements of this Law be truthfully construed as “clearly necessary” when so much clear and urgent and serious professional concern was there to be considered, but was instead deliberately avoided or minimized or otherwise pooh-poohed. And it is clear now, and was most reasonably forseeable then, that this scheme has done verrrry little to foster public safety and indeed is increasingly weakening public safety.
“We must not prejudge society”, the Court preaches, “with the ogre of vigilantism or harassment …”. And yet no student of history or social science can conceivably ignore the demonstrated potential for publics to become most ugly indeed – after they are subjected to a deliberate and sustained policy of ‘threat-amplification’ and assured by their government and their apparent elites that they are the targets of a monstrous and secret threat to themselves and to their children.
The Court proceeds immediately: “… although its [vigilantism’s] potential obviously calls for the vigorous steps suggested by the Attorney General …”. I ask any reader just how much any State or Federal agency has done in 15 years to minimize the negative potentials of a highly and deliberately inflamed public? Surely the incessant and frequent intensification of these laws – and this mania – over the past decade and a half itself constitutes an ongoing and deliberate inflammatory effort on the part of State and national legislatures, and now even municipal and county governments as well.
Worse, as I’ve noted in earlier Posts, the greatest danger to the targeted offenders is not posed by outright “vigilantism” and “ostracism”. This isn’t so much a matter of pitchforks and torches (although there have been more violent episodes than the Courts acknowledge) or even of folks not greeting you on the street when you’re walking down the sidewalk. This is a matter of a profound fearful and judgmental revulsion against ‘repetitive and compulsive and monstrous threats’ that chokes out any possibility of employment or conducting a life with any reasonable opportunities for Work and Love, job and relationships.
And in that regard I warn that once a populace and its government have tasted such ‘blood’ – the weirdly satisfying ‘rush’ of freely and openly reviling a designated group of ‘others’ (and American Citizens at that!) … once they have tasted that ‘blood’, then it will not only be hard to wean them off it, but the process will not pass – as a mania does – but rather will intensify, as a profound regression and degradation does.
Look what happened to the German people: first it was the ‘lives unworthy of life’ that threatened the communal ‘purity’ and were done away with; then designated classes of persons – group after suddenly ‘identified’ group; then an entire religion … all the targets of an increasingly debauched populace, led by its government and its elites.
You can see where this sort of thing can go.
“We must not assume that those in responsible positions will violate the intent of this law by giving notification far beyond that which is authorized, and we must not assume that the press, for whatever reason, will disregard the notification confinement which this law requires.”
But “those in responsible positions” – the Legislature most vividly of all – have already ensured with their erroneous and deliberately hasty Findings that the entire civil population and the State’s police and prosecutorial bureaucracies understand the targeted offenders to be “repetitive and compulsive” monsters who constitute an ongoing and hidden threat to the citizens and their children. How in any rational universe of possibility can that Legislature or the Court then seriously plan to maintain any control whatsoever over public reactions?
And the media? Of course they won’t simply be publishing the actual text of the Registry lists … They don’t have to. They merely have to ‘report’ the cases – from arrest and any attendant speculation through trial and any ‘reliable’ science that is brought in by the State – and if there will be many cases, then there’s going to be a lot of public inflammation. And this is a hugely predictable dynamic, especially when one considers that even in the early 1990s there was concern that the media were becoming too sensationalist, dependent upon good-vs-evil and victimization scripts around which to organize their ‘stories’.
The Legislature and now the Court have loosed awefull public and societal dynamics, historically demonstrated to burn beyond any control, and now content themselves with staring at the text of the Law (which is bad enough as it is) and claim that they can’t ‘see’ anything that might go seriously wrong. They are all staring at the seatbelt as the car and offender teeter over the cliff, and carefully examine – and even adjust – the belt as the crowds deliberately inflamed hover nearby to do the heavy-lifting (or pushing).
And on the basis of their official examination of belt and buckle, they not only proclaim that everything appears to be in order, but then feel pretty good about themselves and their analysis. And figure they’ve done a good day’s work.
“We are satisfied that this statute, rationally and carefully addressed to a pressing societal problem, is not what those who drafted the Constitution had in mind as an abuse of government’s power to punish.”
If the Framers did not consider this sort of thing as an abuse of the government’s power to punish (and that’s a highly debatable proposition itself) then it’s only because the Framers would no more have imagined this sort of thing being perpetrated by an American government than they would have imagined Martians landing and setting up shop.
But I myself think that the Framers most certainly would have imagined this sort of thing as happening. It is precisely the Continental monarchical approach to law. As the Court – amazingly – goes right on to demonstrate: “What government faced here was a difficult problem, a question of policy, and it understandably decided that public safety was more important than the potential for unfair, and even severe, impact on those who had previously committed sex offenses”.
What indeed are they teaching in law schools these days? I’ll get around to a Post on this but I’ll just note this here. With the fall of the Soviet Union in 1991 – and it had pretty much become a dead letter by 1989 – and certainly the accession of the Clinton Administration (not a ‘political position’ statement, just locating this era in historical time) some of this country’s own domestic developments that had been building for a couple of decades were given a much freer rein.
Most relevant to our considerations here was the embrace by legal elites of the Continental approach to law, in the form of what was called ‘responsibility to protect’. This led to the ‘preventive’ approach to law and even more ominously to the ‘preventive state’. We saw it develop in foreign affairs with what the international diplomats call “R2P”, responsibility to protect. It holds that nations may intervene in another nation’s sovereignty when they feel that bad things are being done to people in that nation. Yes, you saw it in the Balkans in the mid-1990s and in the run-up to the Iraq War.
Domestically, we saw its emergence in the sex-offense ‘science’ that underlies the sex-offense laws. And, as you have seen in this Opinion and the Law that it is defending, there was a notable readiness on the part of public officials and judicial elites to embrace it.
You’ll also note its presence in the comments of both Presidents Bush and Obama when they say that the responsibility of the President is to “protect the American people” (and the implication is that they’ll do whatever it takes …). The actual Oath of Office is that the President will “preserve, protect and defend the Constitution” … and you can see in recent national and foreign affairs the way in which somehow hugely un-Constitutional things have been done in the name of “protection”.
Where the military was sent in on the foreign stage, the ‘police power’ of the government was sent in on the domestic stage.
Things haven’t turned out so well. Not hardly.
ADDENDUM
This completes my Posts on the text of the Poritz Opinion. I will get a Post up on the remarkable Dissent by Justice Stein – tomorrow, I hope.
Meanwhile, I would like to urge every reader to give careful thought to what is being discussed here. I firmly believe that the sex-offense laws are not only grievously and most improperly punitive to targeted offenders (whether genuinely guilty or otherwise), but also most lethally dangerous to the entire American polity and the civil community of the American people.
NOTES
*This article is brief and well worth a read in its entirety.
Tuesday, September 1, 2009
DOE v. PORITZ 9
DOE v. PORITZ 9
This continues our look at this landmark 1995 New Jersey case declaring the Megan’s Law legislation to be Constitutional. As always, the text of the Decision is here.
Section IX is entitled “Procedural Due Process and Fairness”.
Recognizing the principle of the right to due process in the US Constitution, and noting that the New Jersey Constitution is equivalent in spirit in this regard, the Court proceeds to set itself the tasks for this Section: “In examining a procedural due process claim, we first assess whether a liberty or property interest has been interfered with by the State, and second, whether the procedures attendant upon that deprivation are constitutionally sufficient.” So that’s what the Court will be looking at.
It goes on immediately to say that since it has already found that the Megan’s Law legislation does not constitute any “constitutional deprivation”, then the only thing it’s going to look at in this Section is “whether in the implementation of notification, procedural protections are required beyond those found in the [Megan’s Law legislation] to assure fairness and accuracy in carrying them out.”
So, then, continuing the image I’ve used in previous Posts on this case, the Court is going to make sure here that your seat-belt is fastened just as securely as any other sex-offender’s; but over the cliff you will most surely be pushed by the State – nothing wrong with that.
It may seem strange, to use Lincoln’s phrase, that the Court would raise the concept of “accuracy”, given all that is now known and was knowable then about the gross inaccuracy of the Legislature’s Findings of Fact upon which it based this legislation and passed it with such great (Careless? Premeditated?) haste, but the Court is building a web of justifications in this case, not trying to come to grips with reality.
The Plaintiff has asserted that the Registration and Notifications Laws (RCNLs) “implicate liberty interests in privacy and reputation”. And specifically, that the dissemination of this information about him impinges on his “interest in” nondisclosure. More trenchantly, the Plaintiff asserts that “classification under the Notification Law, with its attendant disclosure, not only identifies him as a sex offender but effectively brands him as potentially currently dangerous, thereby infringing his interest in reputation.”
So here, already in 1995, the point is being raised: ‘sex offender’ is a brand – constructed by the State – and by being so branded it will become very difficult (just about impossible, we now know) to carry on life in a community. In previous Posts I have characterized the State’s constructing a horrific (and inaccurate) “repetitive and compulsive” brand and then inflicting it on everyone convicted of a sex-offense as tantamount to the State publicly issuing a Certificate of Dangerous Threat. It is, I have said, very much the same dynamic as the old Continental European tradition of ‘tagging’ convicts as members of ‘the criminal class’ permanently. The Nazis didn’t think this thing up out of thin air; though they did carry it to its logical extremes with typical Germanic thoroughness.
The Court says “We find that both interests constitute protectable liberty interests, and therefore that procedural protection is due. We hold that such additional procedures in the form of a hearing are due, that they must, on application, be provided before notification and that they are constitutionally required”.
So if you wish to apply for a Hearing, you have to be given one. But as we have seen it will only be to determine your classification and the notification-level that your classification will trigger. You’re going over the cliff, but you have a right to a Hearing to determine how tight the seatbelt is compared to everybody else going over.
And, of course, the Hearing will be conducted in a context of public mania, before a State-controlled bureaucracy or court whose principals are very very alert as to which way the wind is blowing at the very top – the Legislature and the State Supreme Court – of the system that employs them.
The Court goes as far as to quote Justice Louis Brandeis’s fine and acute phrase about “the right to be let alone”. Of course, this is an American concept – Continental European law, with its origins in the days of monarchy , doesn’t acknowledge any such thing. To that tradition of law, the people are essentially the property of the Throne, and what the monarch wants to do with them is not theirs to say. I mention this so that you can start to get a sense of exactly how unique a gift the American Constitutional vision really is – that Constitutional vision which far too many American elites now consider “quaint”.
The Court acknowledges (with many citations of case law) that “the question of one’s good name and standing, and the interest in protecting that reputation, constitutes a protectable liberty interest” is a valid question.
It goes on to quote a 1971 Wisconsin case that went to the US Supreme Court to the effect that :”It would be naïve not to recognize that such ‘posting’ or characterization of an individual will expose him to public embarrassment and ridicule” and goes on to complete that citation: “a protectable liberty interest is implicated where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him”.
But then it cites a 1972 case – also before the US Supreme Court – to the effect that had “the State made any charge against him that might seriously damage his standing and associations in the community” or “imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities” then it would have presented “a different case” altogether.
This latter case was an employment case where the State had refused employment and the Plaintiff was claiming that such a rejection was a slur on his reputation.
But of course in the RCNLs, we most certainly do have a situation where the State is “foreclosing” a “freedom”, not only to get employment but simply to continue to function in even a minimally acceptable sense within a civic community.
In a time of mania and mania law, “reputation” cannot be narrowly defined. It’s not simply a matter of the gossips and busybodies gossiping about your failures or weakness; it’s a matter of the State actually officially branding you and then putting that Notice ‘out there’ in the community where almost nobody can avoid the information, either because they are formally notified of it or because under the influence of the mania (and that includes the mania-feeding media) everybody is made aware of your situation (and, of course, the ‘threat’ and ‘danger’ that you most surely pose to them and their children).
Nor in a time of mania, can the State or the Court claim that it’s simply helping make more public what is already public record to begin with. Having already branded an individual (luridly and as we now know probably inaccurately), the State is now blaring out that ‘branding’ with all the resources that a State has at its official or unofficial disposal in this media-saturated age. This is not your Framers’ America that we’re talking about here; this is some new beast that has been infected by dark forces that the Framers most deliberately sought to exclude from the American shores.
The Court cites another case: “reputation alone, apart from some more tangible interests such as employment, is not either liberty or property by itself sufficient to invoke the procedural protection of the Due Process Clause”.
But of course, in a time of mania “reputation” most surely does not exist “by itself”, apart from the very possibility of civic life and the ability to carry on a life in community. In a time of mania, indeed, you can no more separate “reputation” from the very ability to live in community than Shylock could separate that ‘pound of flesh’ from the blood and attached viscera.
And this is especially so when the State has publicly ‘branded you’ as an incorrigibly dangerous monstrosity and then ensured that everybody will ‘know’ that.
And when the State has acted hugely and forcefully to feed and nurture that mania both by passing legislation and then by having that legislation declared ‘good’ by the highest Court in the State.
And for the same reasons, it is insufficient to assert that “harm to reputation must be accompanied by the alteration of a ‘right or status previously recognized by state law”. The right to carry on a life, and to get on with one’s life – even after a conviction and even though one is an ‘ex-con’ – is implicitly foundational in both the US and New Jersey Constitutions; such ‘status’ is not “afforded by the State” (an echo of that Continental, monarchy-friendly legal thinking) but rather is – as the Framers clearly realized – a ‘status’ inherent in the natural dignity of the individual which no earthly government has the right to abrogate.
To the Continental system, since the Crown ruled by God’s Will or by the brute reality of power, there is no natural and inviolable dignity or right which the Throne – acting either as God’s agent or as its own source of Meaning and Power – cannot give or take away as it wishes. This is precisely what Jefferson took such pains in the Declaration of Independence to refute: “these truths” are “self-evident” and no power on earth can change that.
And surely now in 2009 we can see just what additional damage and debility is inflicted by the actions of the State, even if the Court in 1995 could smooth its way by claiming that it could not be expected to read the tea leaves and predict the future (except, of course, the future dangerousness of sex offenders, which the Court was perfectly willing to predict, in conjunction with the Legislature).
It has been quite a few years since “public embarrassment” was the ‘only’ harm that would accrue. And that was back in the days when private citizens merely distributed home-made ‘flyers’ around town or the neighborhood.
The Court compliments itself on going even further than the US Constitution: “Where a person’s good name or reputation are at stake because of what the government is doing to that person, we conclude, sufficient constitutional interests are at stake”. And it immediately goes on to amplify that: “That conclusion is particularly strengthened in this case by the nature of the stigmatization involved”, that “classification as a ‘repetitive and compulsive sex offender’ inflicts a greater stigma that that resulting from the conviction for a sex offense”.
(And we recall just how far in the past 15 years – especially with AWASORNA – State and Federal legislation has worked to erase the distinction between ‘sex offender’ and ‘repetitive and compulsive sex offender’.)
So in this matter, the Court will insist on due process.
“Due process is not a fixed concept, however, but a flexible one that depends on the particular circumstances.”
To which I say OK, but the circumstances here include a Time of Mania, and a Mania that the State itself is helping to feed. You can’t as a Court simply close your eyes to what is happening that changes the presumption that everybody – citizens, media, Legislature, law enforcement, bureaucrats and public employees – are simply chugging along ‘normally’, rationally and deliberately and in a normal frame of mind. Just as American courts have always held that in time of war ‘things aren’t quite the same’, so too it should be when the State (or the country!) is in a Time of Mania: to presume that everybody is acting ‘normally’ is to fatally flaw your analysis.
So the Court will require a Notification hearing for Tier Two and Tier Three candidates.
But Registration for anybody convicted. Although even by 1995 - and certainly within a short time thereafter - the public mania has progressed to the point where no distinction is made in the public mind between 'sex offender' and 'repetitive and compulsive sex offender'.
And of course, the AWASORNA of 2006 tries to get around all of that by triggering Registration (in national electronic databases easily accessible and interlocked with all sorts of State and Federal databases) merely on the fact of conviction – or merely having pled to a sex-offense, no matter what a court or a hearing determined.
So, not only in its own reasoning, but as this thing has evolved in the ensuing decade and a half, the Court’s own justifications have been overtaken by subsequent State and Federal legislation that does indeed take RCNLs to ‘their next logical step’, step after step, until we are at the place we are today, with AWASORNA.
I note again that this constant and rapid metastasis of sex-offense law ‘refinements’ – mostly expansions – is itself a vivid warning of mania-law. And this is a mania that has run loose now for 15 years.
And I note again that the Continental legal assumptions upon which this type of preventive-mother-hen law is based are alien to the Framers’ own legal assumptions, and indeed that the Framers specifically constructed the Constitution to prevent such Continental, monarchy-friendly law from taking root in the United States.
And that the dynamics of these laws mimic with alarming precision the dynamics that the thoroughly logical Nazis deployed when they started ‘tagging’ targeted groups in order to make the Reich community more safe and more pure.
So, I think it is reasonable to say that the sex-offense laws, and this preventive law approach itself, are a baaaad idea. And we need to back away from the cliff to which they have brought us. Otherwise the whole country and the whole People are going over a cliff just as surely as the sex-offenders they are trying to push over.
This continues our look at this landmark 1995 New Jersey case declaring the Megan’s Law legislation to be Constitutional. As always, the text of the Decision is here.
Section IX is entitled “Procedural Due Process and Fairness”.
Recognizing the principle of the right to due process in the US Constitution, and noting that the New Jersey Constitution is equivalent in spirit in this regard, the Court proceeds to set itself the tasks for this Section: “In examining a procedural due process claim, we first assess whether a liberty or property interest has been interfered with by the State, and second, whether the procedures attendant upon that deprivation are constitutionally sufficient.” So that’s what the Court will be looking at.
It goes on immediately to say that since it has already found that the Megan’s Law legislation does not constitute any “constitutional deprivation”, then the only thing it’s going to look at in this Section is “whether in the implementation of notification, procedural protections are required beyond those found in the [Megan’s Law legislation] to assure fairness and accuracy in carrying them out.”
So, then, continuing the image I’ve used in previous Posts on this case, the Court is going to make sure here that your seat-belt is fastened just as securely as any other sex-offender’s; but over the cliff you will most surely be pushed by the State – nothing wrong with that.
It may seem strange, to use Lincoln’s phrase, that the Court would raise the concept of “accuracy”, given all that is now known and was knowable then about the gross inaccuracy of the Legislature’s Findings of Fact upon which it based this legislation and passed it with such great (Careless? Premeditated?) haste, but the Court is building a web of justifications in this case, not trying to come to grips with reality.
The Plaintiff has asserted that the Registration and Notifications Laws (RCNLs) “implicate liberty interests in privacy and reputation”. And specifically, that the dissemination of this information about him impinges on his “interest in” nondisclosure. More trenchantly, the Plaintiff asserts that “classification under the Notification Law, with its attendant disclosure, not only identifies him as a sex offender but effectively brands him as potentially currently dangerous, thereby infringing his interest in reputation.”
So here, already in 1995, the point is being raised: ‘sex offender’ is a brand – constructed by the State – and by being so branded it will become very difficult (just about impossible, we now know) to carry on life in a community. In previous Posts I have characterized the State’s constructing a horrific (and inaccurate) “repetitive and compulsive” brand and then inflicting it on everyone convicted of a sex-offense as tantamount to the State publicly issuing a Certificate of Dangerous Threat. It is, I have said, very much the same dynamic as the old Continental European tradition of ‘tagging’ convicts as members of ‘the criminal class’ permanently. The Nazis didn’t think this thing up out of thin air; though they did carry it to its logical extremes with typical Germanic thoroughness.
The Court says “We find that both interests constitute protectable liberty interests, and therefore that procedural protection is due. We hold that such additional procedures in the form of a hearing are due, that they must, on application, be provided before notification and that they are constitutionally required”.
So if you wish to apply for a Hearing, you have to be given one. But as we have seen it will only be to determine your classification and the notification-level that your classification will trigger. You’re going over the cliff, but you have a right to a Hearing to determine how tight the seatbelt is compared to everybody else going over.
And, of course, the Hearing will be conducted in a context of public mania, before a State-controlled bureaucracy or court whose principals are very very alert as to which way the wind is blowing at the very top – the Legislature and the State Supreme Court – of the system that employs them.
The Court goes as far as to quote Justice Louis Brandeis’s fine and acute phrase about “the right to be let alone”. Of course, this is an American concept – Continental European law, with its origins in the days of monarchy , doesn’t acknowledge any such thing. To that tradition of law, the people are essentially the property of the Throne, and what the monarch wants to do with them is not theirs to say. I mention this so that you can start to get a sense of exactly how unique a gift the American Constitutional vision really is – that Constitutional vision which far too many American elites now consider “quaint”.
The Court acknowledges (with many citations of case law) that “the question of one’s good name and standing, and the interest in protecting that reputation, constitutes a protectable liberty interest” is a valid question.
It goes on to quote a 1971 Wisconsin case that went to the US Supreme Court to the effect that :”It would be naïve not to recognize that such ‘posting’ or characterization of an individual will expose him to public embarrassment and ridicule” and goes on to complete that citation: “a protectable liberty interest is implicated where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him”.
But then it cites a 1972 case – also before the US Supreme Court – to the effect that had “the State made any charge against him that might seriously damage his standing and associations in the community” or “imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities” then it would have presented “a different case” altogether.
This latter case was an employment case where the State had refused employment and the Plaintiff was claiming that such a rejection was a slur on his reputation.
But of course in the RCNLs, we most certainly do have a situation where the State is “foreclosing” a “freedom”, not only to get employment but simply to continue to function in even a minimally acceptable sense within a civic community.
In a time of mania and mania law, “reputation” cannot be narrowly defined. It’s not simply a matter of the gossips and busybodies gossiping about your failures or weakness; it’s a matter of the State actually officially branding you and then putting that Notice ‘out there’ in the community where almost nobody can avoid the information, either because they are formally notified of it or because under the influence of the mania (and that includes the mania-feeding media) everybody is made aware of your situation (and, of course, the ‘threat’ and ‘danger’ that you most surely pose to them and their children).
Nor in a time of mania, can the State or the Court claim that it’s simply helping make more public what is already public record to begin with. Having already branded an individual (luridly and as we now know probably inaccurately), the State is now blaring out that ‘branding’ with all the resources that a State has at its official or unofficial disposal in this media-saturated age. This is not your Framers’ America that we’re talking about here; this is some new beast that has been infected by dark forces that the Framers most deliberately sought to exclude from the American shores.
The Court cites another case: “reputation alone, apart from some more tangible interests such as employment, is not either liberty or property by itself sufficient to invoke the procedural protection of the Due Process Clause”.
But of course, in a time of mania “reputation” most surely does not exist “by itself”, apart from the very possibility of civic life and the ability to carry on a life in community. In a time of mania, indeed, you can no more separate “reputation” from the very ability to live in community than Shylock could separate that ‘pound of flesh’ from the blood and attached viscera.
And this is especially so when the State has publicly ‘branded you’ as an incorrigibly dangerous monstrosity and then ensured that everybody will ‘know’ that.
And when the State has acted hugely and forcefully to feed and nurture that mania both by passing legislation and then by having that legislation declared ‘good’ by the highest Court in the State.
And for the same reasons, it is insufficient to assert that “harm to reputation must be accompanied by the alteration of a ‘right or status previously recognized by state law”. The right to carry on a life, and to get on with one’s life – even after a conviction and even though one is an ‘ex-con’ – is implicitly foundational in both the US and New Jersey Constitutions; such ‘status’ is not “afforded by the State” (an echo of that Continental, monarchy-friendly legal thinking) but rather is – as the Framers clearly realized – a ‘status’ inherent in the natural dignity of the individual which no earthly government has the right to abrogate.
To the Continental system, since the Crown ruled by God’s Will or by the brute reality of power, there is no natural and inviolable dignity or right which the Throne – acting either as God’s agent or as its own source of Meaning and Power – cannot give or take away as it wishes. This is precisely what Jefferson took such pains in the Declaration of Independence to refute: “these truths” are “self-evident” and no power on earth can change that.
And surely now in 2009 we can see just what additional damage and debility is inflicted by the actions of the State, even if the Court in 1995 could smooth its way by claiming that it could not be expected to read the tea leaves and predict the future (except, of course, the future dangerousness of sex offenders, which the Court was perfectly willing to predict, in conjunction with the Legislature).
It has been quite a few years since “public embarrassment” was the ‘only’ harm that would accrue. And that was back in the days when private citizens merely distributed home-made ‘flyers’ around town or the neighborhood.
The Court compliments itself on going even further than the US Constitution: “Where a person’s good name or reputation are at stake because of what the government is doing to that person, we conclude, sufficient constitutional interests are at stake”. And it immediately goes on to amplify that: “That conclusion is particularly strengthened in this case by the nature of the stigmatization involved”, that “classification as a ‘repetitive and compulsive sex offender’ inflicts a greater stigma that that resulting from the conviction for a sex offense”.
(And we recall just how far in the past 15 years – especially with AWASORNA – State and Federal legislation has worked to erase the distinction between ‘sex offender’ and ‘repetitive and compulsive sex offender’.)
So in this matter, the Court will insist on due process.
“Due process is not a fixed concept, however, but a flexible one that depends on the particular circumstances.”
To which I say OK, but the circumstances here include a Time of Mania, and a Mania that the State itself is helping to feed. You can’t as a Court simply close your eyes to what is happening that changes the presumption that everybody – citizens, media, Legislature, law enforcement, bureaucrats and public employees – are simply chugging along ‘normally’, rationally and deliberately and in a normal frame of mind. Just as American courts have always held that in time of war ‘things aren’t quite the same’, so too it should be when the State (or the country!) is in a Time of Mania: to presume that everybody is acting ‘normally’ is to fatally flaw your analysis.
So the Court will require a Notification hearing for Tier Two and Tier Three candidates.
But Registration for anybody convicted. Although even by 1995 - and certainly within a short time thereafter - the public mania has progressed to the point where no distinction is made in the public mind between 'sex offender' and 'repetitive and compulsive sex offender'.
And of course, the AWASORNA of 2006 tries to get around all of that by triggering Registration (in national electronic databases easily accessible and interlocked with all sorts of State and Federal databases) merely on the fact of conviction – or merely having pled to a sex-offense, no matter what a court or a hearing determined.
So, not only in its own reasoning, but as this thing has evolved in the ensuing decade and a half, the Court’s own justifications have been overtaken by subsequent State and Federal legislation that does indeed take RCNLs to ‘their next logical step’, step after step, until we are at the place we are today, with AWASORNA.
I note again that this constant and rapid metastasis of sex-offense law ‘refinements’ – mostly expansions – is itself a vivid warning of mania-law. And this is a mania that has run loose now for 15 years.
And I note again that the Continental legal assumptions upon which this type of preventive-mother-hen law is based are alien to the Framers’ own legal assumptions, and indeed that the Framers specifically constructed the Constitution to prevent such Continental, monarchy-friendly law from taking root in the United States.
And that the dynamics of these laws mimic with alarming precision the dynamics that the thoroughly logical Nazis deployed when they started ‘tagging’ targeted groups in order to make the Reich community more safe and more pure.
So, I think it is reasonable to say that the sex-offense laws, and this preventive law approach itself, are a baaaad idea. And we need to back away from the cliff to which they have brought us. Otherwise the whole country and the whole People are going over a cliff just as surely as the sex-offenders they are trying to push over.
DOE v. PORITZ 8
DOE v. PORITZ 8
We continue with our look at this landmark 1995 New Jersey case. As always, the text is here.
Section VIII is entitled “Administrative Procedure Act”.
Here, Plaintiff Doe “challenges the authority of the Attorney General to promulgate Guidelines for implementation of the registration and notification requirements. Plaintiff asserts that the Attorney General’s Guidelines are rules which must be adopted in conformance with the notice and hearing requirements of the Administrative Procedure Act (the ‘APA’). The APA requires that prior to the adoption of an administrative rule, an agency must provide thirty days notice of its intent to issue the rule, publish a summary and explanation of the rule, and afford ‘all interested persons reasonable opportunity to submit data, views, or arguments, orally or in writing.’”
This is a doozey of the problem Plaintiff sets the Court here. New Jersey had passed a law to prevent bureaucracy from coming up with whacky regulations; one could be forgiven for imagining that if any situation begged to be covered by that law, it’s this one.
But having supported the Legislature in its already-perpetrated effort to stifle any such opportunity for anybody to “submit data, views, or arguments” and actually having to face the huge problems inherent in its new scheme (the Legislature, you recall, skipped the entire Committee process for vetting a Bill and held no Hearings), the Court can’t very well go and let what promised to be a wide and deep opposition to this new-fangled scheme in through the back door of the APA.
The Court had already pooh-poohed the many substantive Amicus Curiae Briefs filed against the scheme in this case, saying that the place for all that was during the legislative process (which, neatly, the Legislature itself had suspended because of the ‘emergency’). The Mad Hatter’s Tea Party meets Catch-22.
The Attorney General, on behalf of the State, asserts that a) the Guidelines for classification and notification do not need to conform to the APA procedural requirements; b) that the Guidelines are not administrative guidelines as defined by the APA; c) that the Guidelines actually fall under the APA’s exemption for ‘the internal management or discipline of any agency’; and that d) the Legislature clearly did not intend that the Guidelines be subject to the APA requirements for notice and hearing.
The Court starts off surprisingly well: “Because of the widespread impact of the Guidelines, not only on the offenders required to register but also on the members of the general public who seek notification, we disagree with the Attorney General’s contention that the Guidelines can be considered internal department communications.”
But now it has to “determine whether the Guidelines otherwise meet the statutory definition of administrative rules”.
Yes, if you’ve been reading the previous Posts then you know where this is going. But for the sake of enlightenment, take a moment to see how the Court pulls it off.
It sets forth 6 factors (that it had devised in a tax case a decade before) that will determine “whether an agency action constitutes rule-making which must conform to the requirements of the Administrative Procedure Act: 1) it is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; 2) it is intended to be applied generally and uniformly to all similarly situated persons; 3) it is designed to operate only in future cases, that is, prospectively; it prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; 5) it reflects and administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule or (ii) it constitutes a material and significant change from a clear, past agency position on the identical subject matter; and 6) it reflects a decision on administrative regulatory policy in the nature of the interpretation of low or general policy.
Not all the factors get equal weight, and not all of them need be met; it’s just a set of factors the Court uses and then says what it’s going to say.
Factors (1), (2), and (3), the Court admits quickly, do indicate that the Attorney General Guidelines as to classifying and registering sex-offenders constitute rule-making, are intended to have wide-coverage, to be applied uniformly and to be applied prospectively. Which is a ray of light that promises a dawn.
But instantly the Court says: “However, the remaining factors point strongly in the other direction, and, in this case, deserve the most weight”. And here we go.
As to the 4th factor – whether the Guidelines actually prescribe a legal standard that is not expressly provided in the enabling legislation (Megan’s Law) – the Court opines that “the Guidelines are to a great extent merely a formalization of the classification requirements explicitly set forth in the statute”. The classification system was in the text of the Law, and – anyway – the Court even went so far as to fix them a bit and bring them even more closely into conformity with the language of the Law. So factor number 4, the Court decides, does not support the assertion that Megan’s Law has to fall within the APA’s requirements.
As to whether the new Guidelines conflict with an agency’s past position on the matter, well – this is all so new that no State agency, including the Attorney General’s Office, has ever had to deal with this before, so obviously factor number 5 doesn’t trigger the APA requirements.
Nor does factor number 6, which triggers review is a State agency is making a radical new interpretation of law or general policy. It’s not the AG’s Office that’s doing that, it’s the Legislature, whose scheme it is and which was written into the text of the Law itself.
“We therefore hold that the Guidelines are not administrative rules which must conform to the requirements of the Administrative Procedure Act.”
The shrewdness of this whole thing becomes clear: get the ‘right’ science from ‘advocacy’ researchers to justify the ‘emergency’; then put together a sweeping new kind of scheme which is based on an alien – Continental European – philosophy of law that the Framers themselves rejected when they constructed the Constitution to support their vision of the American polity*; then allow no Committee phase where members could debate and discuss among themselves (and create a record of their thoughts); and thus hold no Hearings which would permit the presentation of professional testimony and evidence both as to how profoundly alien and how scientifically ungrounded this new scheme really is; then have debate only on the floor where few members would dare stand up publicly against a wave of public mania**; then – could they not have figured this? – let the inevitable court challenges proceed because the State Supreme Court is presided over by a Chief Justice with a demonstrated and flaunted history of being partial to this new and alien philosophy of law.
You could hardly be criticized for wondering if this entire thing wasn’t planned out beforehand. If perhaps it wasn’t a tinder-dry forest simply waiting for a match. Any match that came along.
NOTES
*See the Post immediately preceding this one – “Doe v. Poritz 7” for a discussion of the Continental philosophy of law.
**In the event, not a single member of the New Jersey Legislature voted against the Law.
We continue with our look at this landmark 1995 New Jersey case. As always, the text is here.
Section VIII is entitled “Administrative Procedure Act”.
Here, Plaintiff Doe “challenges the authority of the Attorney General to promulgate Guidelines for implementation of the registration and notification requirements. Plaintiff asserts that the Attorney General’s Guidelines are rules which must be adopted in conformance with the notice and hearing requirements of the Administrative Procedure Act (the ‘APA’). The APA requires that prior to the adoption of an administrative rule, an agency must provide thirty days notice of its intent to issue the rule, publish a summary and explanation of the rule, and afford ‘all interested persons reasonable opportunity to submit data, views, or arguments, orally or in writing.’”
This is a doozey of the problem Plaintiff sets the Court here. New Jersey had passed a law to prevent bureaucracy from coming up with whacky regulations; one could be forgiven for imagining that if any situation begged to be covered by that law, it’s this one.
But having supported the Legislature in its already-perpetrated effort to stifle any such opportunity for anybody to “submit data, views, or arguments” and actually having to face the huge problems inherent in its new scheme (the Legislature, you recall, skipped the entire Committee process for vetting a Bill and held no Hearings), the Court can’t very well go and let what promised to be a wide and deep opposition to this new-fangled scheme in through the back door of the APA.
The Court had already pooh-poohed the many substantive Amicus Curiae Briefs filed against the scheme in this case, saying that the place for all that was during the legislative process (which, neatly, the Legislature itself had suspended because of the ‘emergency’). The Mad Hatter’s Tea Party meets Catch-22.
The Attorney General, on behalf of the State, asserts that a) the Guidelines for classification and notification do not need to conform to the APA procedural requirements; b) that the Guidelines are not administrative guidelines as defined by the APA; c) that the Guidelines actually fall under the APA’s exemption for ‘the internal management or discipline of any agency’; and that d) the Legislature clearly did not intend that the Guidelines be subject to the APA requirements for notice and hearing.
The Court starts off surprisingly well: “Because of the widespread impact of the Guidelines, not only on the offenders required to register but also on the members of the general public who seek notification, we disagree with the Attorney General’s contention that the Guidelines can be considered internal department communications.”
But now it has to “determine whether the Guidelines otherwise meet the statutory definition of administrative rules”.
Yes, if you’ve been reading the previous Posts then you know where this is going. But for the sake of enlightenment, take a moment to see how the Court pulls it off.
It sets forth 6 factors (that it had devised in a tax case a decade before) that will determine “whether an agency action constitutes rule-making which must conform to the requirements of the Administrative Procedure Act: 1) it is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; 2) it is intended to be applied generally and uniformly to all similarly situated persons; 3) it is designed to operate only in future cases, that is, prospectively; it prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; 5) it reflects and administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule or (ii) it constitutes a material and significant change from a clear, past agency position on the identical subject matter; and 6) it reflects a decision on administrative regulatory policy in the nature of the interpretation of low or general policy.
Not all the factors get equal weight, and not all of them need be met; it’s just a set of factors the Court uses and then says what it’s going to say.
Factors (1), (2), and (3), the Court admits quickly, do indicate that the Attorney General Guidelines as to classifying and registering sex-offenders constitute rule-making, are intended to have wide-coverage, to be applied uniformly and to be applied prospectively. Which is a ray of light that promises a dawn.
But instantly the Court says: “However, the remaining factors point strongly in the other direction, and, in this case, deserve the most weight”. And here we go.
As to the 4th factor – whether the Guidelines actually prescribe a legal standard that is not expressly provided in the enabling legislation (Megan’s Law) – the Court opines that “the Guidelines are to a great extent merely a formalization of the classification requirements explicitly set forth in the statute”. The classification system was in the text of the Law, and – anyway – the Court even went so far as to fix them a bit and bring them even more closely into conformity with the language of the Law. So factor number 4, the Court decides, does not support the assertion that Megan’s Law has to fall within the APA’s requirements.
As to whether the new Guidelines conflict with an agency’s past position on the matter, well – this is all so new that no State agency, including the Attorney General’s Office, has ever had to deal with this before, so obviously factor number 5 doesn’t trigger the APA requirements.
Nor does factor number 6, which triggers review is a State agency is making a radical new interpretation of law or general policy. It’s not the AG’s Office that’s doing that, it’s the Legislature, whose scheme it is and which was written into the text of the Law itself.
“We therefore hold that the Guidelines are not administrative rules which must conform to the requirements of the Administrative Procedure Act.”
The shrewdness of this whole thing becomes clear: get the ‘right’ science from ‘advocacy’ researchers to justify the ‘emergency’; then put together a sweeping new kind of scheme which is based on an alien – Continental European – philosophy of law that the Framers themselves rejected when they constructed the Constitution to support their vision of the American polity*; then allow no Committee phase where members could debate and discuss among themselves (and create a record of their thoughts); and thus hold no Hearings which would permit the presentation of professional testimony and evidence both as to how profoundly alien and how scientifically ungrounded this new scheme really is; then have debate only on the floor where few members would dare stand up publicly against a wave of public mania**; then – could they not have figured this? – let the inevitable court challenges proceed because the State Supreme Court is presided over by a Chief Justice with a demonstrated and flaunted history of being partial to this new and alien philosophy of law.
You could hardly be criticized for wondering if this entire thing wasn’t planned out beforehand. If perhaps it wasn’t a tinder-dry forest simply waiting for a match. Any match that came along.
NOTES
*See the Post immediately preceding this one – “Doe v. Poritz 7” for a discussion of the Continental philosophy of law.
**In the event, not a single member of the New Jersey Legislature voted against the Law.
Saturday, August 29, 2009
DOE v. PORITZ 7
DOE v. PORITZ 7
This Post continues our look at this landmark 1995 case. As always, the text of the Opinion is here.
Section VII is entitled “Equal Protection”.
Here Plaintiff Doe lodged the assertion that “he is entitled to be treated as an individual and not classified with other sex offenders who, unlike Plaintiff, have not successfully completed treatment at Avenel [the New Jersey sex-offense rehabilitation facility]”. Doe had completed that treatment regimen (whatever it may have consisted of, given the state of ‘sex offense science and therapy’) and had, as we know, taken up his life again, and with notable success, in the general civic community.
The Court thinks not. “Equal protection does not preclude the use of classifications, but requires only that those classifications not be arbitrary”. It cites a New Jersey case from 1994 (again, within the mania timeframe) that the US Supreme Court had refused to review.
You can see here how the ‘science’ now justifies the legality: as long as the science is well-grounded (and presumably accurate) then it’s Constitutional to apply the classifications devised by the Megan’s Law scheme.
But of course, when you look at this case, as we now can, both from the point of view of 1995 and also from the perspective of 2009, it becomes clear that the ‘science’ was not credible, and certainly not accurate, then or now.
The Court quotes (it appears – the text itself is vague as to quotation marks) the 1994 case, State v. Mortimer: “Where individuals in the group affected by the law have distinguishing characteristics relevant to interests [that] the State has the authority to implement, the courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued”.
We note again that the cited case and stems from 1994, right in the middle of the initial mania phase.
We also recall that the Chief Justice of the New Jersey Supreme Court was and still is (in 1995) Chief Justice Robert Wilenz, publicly lauded by ‘preventive mother-hen law’ advocates as ‘reliable’ and ‘friendly’ to their cause. And that fact would have been known to all the lower courts and judges in the State.
And that ‘cause’ is precisely the introduction of this European and Continental approach to law into the United States, whose Founders precisely refused that approach when framing the Constitution in 1787.
A historically minded reader might recall the ‘justice’ of the French Revolutionary era. And a literary-minded reader might well recall the ‘yellow passport’ imposed upon Jean Valjean in Victor Hugo’s “Les Miserables”. The ‘yellow passport’ – required for internal travel – had to be carried by all members of the ‘convict’ class for life after they had been released from prison, and had to be presented to the local police whenever such a second-class citizen entered a town or were seeking employment or simply when required to produce ‘his papers’ by the police; one also might recall the character of Inspector Javert, who followed Valjean and sought to expose him as a ‘convict’ and thus not a ‘decent’ citizen.
Second, we can now note that the “characteristics” to which the Court refers in justifying itself and the Megan’s Law are precisely those ascribed by the sex-offender ‘science’: an incorrigible and uncontrollable propensity to commit sex-offenses, “repetitive and compulsive”. Which is now known to be, and was described by many professionals back there in 1995 as being, wildly inaccurate.
But on the basis of this ‘science’ the Court can claim that since the Legislature has passed a scientifically well-grounded law, then it’s not the Court’s right to interfere with the Legislature’s careful laws. You see again how so much hinges on the ‘science’. As long as that ‘science’ demonstrates that ‘sex offenders’ pose a grave and uncontrollable threat, then the Court can say that it must respect whatever the Legislature has decided to do about it in fulfillment of its authority and responsibility to “protect the public”.
It seems to me that in hastily passing a law that had not gone through any Committee work or Hearings, a law which few legislators read and most likely few legislators understood, and that was passed so quickly – hastily even , then the Legislature had not acted responsibly at all.
The Court immediately goes on: “In such cases, the Equal Protection Clause requires only a rational means to serve a legitimate end.”
But this is a shell-game. The “legitimate end” – protecting the public – is only “rationally” connected to the Megan’s Law scheme because the ‘science’ insists that the ‘sex offender’ class is incorrigible and uncontrollable because of their “compulsion” to reoffend. The sex-offender is going to get pushed over the cliff in his car by the government while the Court is content that the government has complied with the law by ensuring that his seatbelt is legally fastened.
And the Court, by agreeing to the Legislature’s Findings of Fact (which could hardly have been carefully considered, given the hasty legislative treatment that the Law received), has already given away the store. All it’s doing here is building a structure of legal justification on a foundation that is hugely and fatally flawed, insofar as the sex-offender ‘science’ is grossly inaccurate.
And third, we could also point out that – even as law enforcement types and researchers are now saying – the entire scheme really does little to protect the public, and indeed goes no small way toward complicating public protection. So in that sense too, then, the law and the scheme are not really ‘rational’ at all. Even if the Legislature does have a duty to protect the public (which within Constitutional parameters it does), and even if the sex-offender ‘science’ of uncontrollable repetitive compulsion and incorrigibility were true (which it most certainly is not), the scheme concocted in the Law is still not a very effective means to achieve the purpose – and indeed interferes with the purpose in numerous ways.
Of course, it’s also possible – we’ve seen it in other laws passed since 1995 – that the Legislature, or certainly the preventive-mother hen law advocates, knew that this was only a ‘first step’, and that what would really be needed – as the Nazis realized straightaway – was to ‘tag’ each individual with some clearly visible marking. But who could say that then in 1995?
Or even now?
Instead, building upon the technology of the computer and internet age, laws have been passed (and judicially approved) that seek to ‘tag’ the offender through the publicly-accessible Registries even more than through the clunky 1995 method of door-to-door Notification. And at this point, as we now know, you can subscribe to an I-Phone app that will advise you constantly. And of course, with interlocking databases, then once you are on a Registry, you are indeed issued a ‘yellow passport’: you cannot move, you cannot get or renew a drivers license, you might not even be able to get on a plane – certainly to a foreign country – without your name being flagged, with whatever consequences might then ensue.
And given the potential authority of volunteer sex-offender-watch groups to scroll and troll in the NCIC, it is easily conceivable that local realtors might, for example, ask their local volunteer group to check out the potential buyer of a home. While this is not something the police can legally do, the volunteer groups might well be able to, since they are not so bound by regulations and laws that boundary the official police authority. Can you see where this can go? And where certain groups probably want this thing to go?*
The Court continues a bit further on: “This Court, moreover, has specifically held that creating a separate classification for repetitive-compulsive sex offenders is not arbitrary and has a rational basis”. But are all sex-offenders reliably “repetitive-compulsive”? Even first-time offenders are required to Register. And even single-conviction offenders who committed their crime years before, had paid their debt, and were re-integrated into the community.
And again: “The Legislature has determined that convicted sex-offenders represent a risk to the public safety and that knowledge of their identities and whereabouts is necessary for protection of the public. Since the registration and notification requirements are rationally related to that legitimate state interest, the requirements of equal protection under the Fourteenth Amendment are satisfied”.
But again, the Legislature’s initial “determination” is gravely, probably fatally, flawed. To focus on its easily-admitted responsibility for public safety in order to justify the scheme is dodging the main issue. And of course there remains the question: Granted that a legislature is responsible for the public safety, just how far may it Constitutionally go in ensuring the public safety?
This is the kicker. In Continental law, always weighted toward the government from the days of monarchy, the rights of the ‘individual’ could not prevail over the rights of the Crown. Nowadays, that same theory is imported over here, merely substituting the authority of the ‘community’ or ‘the public’ for that of the Crown and the monarch. But that is precisely where the Framers were most “American”: they insisted that the individual Citizen had rights that neither the government nor the ‘public’ could lightly override.
And if this almost completely unconsidered and incompletely examined Law, based on such inaccurate ‘knowledge’, proposing to introduce so ‘alien’ a scheme as Registration and Notification – which carries so profoundly abhorrent a historical record from the recent past and more distant past … if this Law does not lightly override the most fundamental Constitutional guarantees, then nothing does.
NOTE
*I acknowledge here that many police and criminal-justice professionals at this point are now voicing significant doubts about the operations and expansion of the whole SORN scheme and I hope that they can convince even more of their colleagues and peers. But I also note that there seem to be many civilian groups that seem to be seeking the equivalent of police authority to conduct their own ‘monitoring’ of Registrants; I ask you to imagine where all of this might lead if it is not stopped. And by ‘stopping’ it I mean carefully and honestly examining the scheme’s fatally flawed scientific basis, upon which its legal justification precariously rests. And in this regard, I invite your attention to the prestigious government-friendly RAND Corporation’s recent embrace of one such small and local volunteer civilian group (see my Post “Violent Offender Laws” of August 13, 2009, on this site).
And I would say here, expanding on what I said in my very first Post on this site, that we are present at the creation of a very significant – and I would say dangerous – change in America’s fundamental philosophy of law and the limits (or lack of them) to government police authority. It is not being presented as such by its supporters and advocates, but it most certainly is a major shift in the foundational assumptions of the American approach to the scope of government authority.
And if the Constitution, a carefully constructed mechanism, was based on certain assumptions as a large building is built on carefully laid out foundations, then to shift those foundations – especially to greatly shift them – endangers the entire structure that is built upon them. And that structure here is the Constitution and the entire American ‘way’, so to speak.
And I would also add that with this scheme of 1994 we see the first major insinuation of a Continental, government-and-monarchy weighted legal vision. Since then, in other areas, we have seen the government begin to act as a monarch. Since 9-11, we have seen the Patriot Acts, the waging of wars based on the most inaccurate information and beyond the scope authorized by the Congress, the conduct of telecommunications monitoring by the government and even of torture as an instrument of policy … in short, the government has started acting somewhat like a divine-right monarch (and perhaps a not particularly competent one).
This is the fierce urgency of now, if I may borrow a phrase.
This Post continues our look at this landmark 1995 case. As always, the text of the Opinion is here.
Section VII is entitled “Equal Protection”.
Here Plaintiff Doe lodged the assertion that “he is entitled to be treated as an individual and not classified with other sex offenders who, unlike Plaintiff, have not successfully completed treatment at Avenel [the New Jersey sex-offense rehabilitation facility]”. Doe had completed that treatment regimen (whatever it may have consisted of, given the state of ‘sex offense science and therapy’) and had, as we know, taken up his life again, and with notable success, in the general civic community.
The Court thinks not. “Equal protection does not preclude the use of classifications, but requires only that those classifications not be arbitrary”. It cites a New Jersey case from 1994 (again, within the mania timeframe) that the US Supreme Court had refused to review.
You can see here how the ‘science’ now justifies the legality: as long as the science is well-grounded (and presumably accurate) then it’s Constitutional to apply the classifications devised by the Megan’s Law scheme.
But of course, when you look at this case, as we now can, both from the point of view of 1995 and also from the perspective of 2009, it becomes clear that the ‘science’ was not credible, and certainly not accurate, then or now.
The Court quotes (it appears – the text itself is vague as to quotation marks) the 1994 case, State v. Mortimer: “Where individuals in the group affected by the law have distinguishing characteristics relevant to interests [that] the State has the authority to implement, the courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued”.
We note again that the cited case and stems from 1994, right in the middle of the initial mania phase.
We also recall that the Chief Justice of the New Jersey Supreme Court was and still is (in 1995) Chief Justice Robert Wilenz, publicly lauded by ‘preventive mother-hen law’ advocates as ‘reliable’ and ‘friendly’ to their cause. And that fact would have been known to all the lower courts and judges in the State.
And that ‘cause’ is precisely the introduction of this European and Continental approach to law into the United States, whose Founders precisely refused that approach when framing the Constitution in 1787.
A historically minded reader might recall the ‘justice’ of the French Revolutionary era. And a literary-minded reader might well recall the ‘yellow passport’ imposed upon Jean Valjean in Victor Hugo’s “Les Miserables”. The ‘yellow passport’ – required for internal travel – had to be carried by all members of the ‘convict’ class for life after they had been released from prison, and had to be presented to the local police whenever such a second-class citizen entered a town or were seeking employment or simply when required to produce ‘his papers’ by the police; one also might recall the character of Inspector Javert, who followed Valjean and sought to expose him as a ‘convict’ and thus not a ‘decent’ citizen.
Second, we can now note that the “characteristics” to which the Court refers in justifying itself and the Megan’s Law are precisely those ascribed by the sex-offender ‘science’: an incorrigible and uncontrollable propensity to commit sex-offenses, “repetitive and compulsive”. Which is now known to be, and was described by many professionals back there in 1995 as being, wildly inaccurate.
But on the basis of this ‘science’ the Court can claim that since the Legislature has passed a scientifically well-grounded law, then it’s not the Court’s right to interfere with the Legislature’s careful laws. You see again how so much hinges on the ‘science’. As long as that ‘science’ demonstrates that ‘sex offenders’ pose a grave and uncontrollable threat, then the Court can say that it must respect whatever the Legislature has decided to do about it in fulfillment of its authority and responsibility to “protect the public”.
It seems to me that in hastily passing a law that had not gone through any Committee work or Hearings, a law which few legislators read and most likely few legislators understood, and that was passed so quickly – hastily even , then the Legislature had not acted responsibly at all.
The Court immediately goes on: “In such cases, the Equal Protection Clause requires only a rational means to serve a legitimate end.”
But this is a shell-game. The “legitimate end” – protecting the public – is only “rationally” connected to the Megan’s Law scheme because the ‘science’ insists that the ‘sex offender’ class is incorrigible and uncontrollable because of their “compulsion” to reoffend. The sex-offender is going to get pushed over the cliff in his car by the government while the Court is content that the government has complied with the law by ensuring that his seatbelt is legally fastened.
And the Court, by agreeing to the Legislature’s Findings of Fact (which could hardly have been carefully considered, given the hasty legislative treatment that the Law received), has already given away the store. All it’s doing here is building a structure of legal justification on a foundation that is hugely and fatally flawed, insofar as the sex-offender ‘science’ is grossly inaccurate.
And third, we could also point out that – even as law enforcement types and researchers are now saying – the entire scheme really does little to protect the public, and indeed goes no small way toward complicating public protection. So in that sense too, then, the law and the scheme are not really ‘rational’ at all. Even if the Legislature does have a duty to protect the public (which within Constitutional parameters it does), and even if the sex-offender ‘science’ of uncontrollable repetitive compulsion and incorrigibility were true (which it most certainly is not), the scheme concocted in the Law is still not a very effective means to achieve the purpose – and indeed interferes with the purpose in numerous ways.
Of course, it’s also possible – we’ve seen it in other laws passed since 1995 – that the Legislature, or certainly the preventive-mother hen law advocates, knew that this was only a ‘first step’, and that what would really be needed – as the Nazis realized straightaway – was to ‘tag’ each individual with some clearly visible marking. But who could say that then in 1995?
Or even now?
Instead, building upon the technology of the computer and internet age, laws have been passed (and judicially approved) that seek to ‘tag’ the offender through the publicly-accessible Registries even more than through the clunky 1995 method of door-to-door Notification. And at this point, as we now know, you can subscribe to an I-Phone app that will advise you constantly. And of course, with interlocking databases, then once you are on a Registry, you are indeed issued a ‘yellow passport’: you cannot move, you cannot get or renew a drivers license, you might not even be able to get on a plane – certainly to a foreign country – without your name being flagged, with whatever consequences might then ensue.
And given the potential authority of volunteer sex-offender-watch groups to scroll and troll in the NCIC, it is easily conceivable that local realtors might, for example, ask their local volunteer group to check out the potential buyer of a home. While this is not something the police can legally do, the volunteer groups might well be able to, since they are not so bound by regulations and laws that boundary the official police authority. Can you see where this can go? And where certain groups probably want this thing to go?*
The Court continues a bit further on: “This Court, moreover, has specifically held that creating a separate classification for repetitive-compulsive sex offenders is not arbitrary and has a rational basis”. But are all sex-offenders reliably “repetitive-compulsive”? Even first-time offenders are required to Register. And even single-conviction offenders who committed their crime years before, had paid their debt, and were re-integrated into the community.
And again: “The Legislature has determined that convicted sex-offenders represent a risk to the public safety and that knowledge of their identities and whereabouts is necessary for protection of the public. Since the registration and notification requirements are rationally related to that legitimate state interest, the requirements of equal protection under the Fourteenth Amendment are satisfied”.
But again, the Legislature’s initial “determination” is gravely, probably fatally, flawed. To focus on its easily-admitted responsibility for public safety in order to justify the scheme is dodging the main issue. And of course there remains the question: Granted that a legislature is responsible for the public safety, just how far may it Constitutionally go in ensuring the public safety?
This is the kicker. In Continental law, always weighted toward the government from the days of monarchy, the rights of the ‘individual’ could not prevail over the rights of the Crown. Nowadays, that same theory is imported over here, merely substituting the authority of the ‘community’ or ‘the public’ for that of the Crown and the monarch. But that is precisely where the Framers were most “American”: they insisted that the individual Citizen had rights that neither the government nor the ‘public’ could lightly override.
And if this almost completely unconsidered and incompletely examined Law, based on such inaccurate ‘knowledge’, proposing to introduce so ‘alien’ a scheme as Registration and Notification – which carries so profoundly abhorrent a historical record from the recent past and more distant past … if this Law does not lightly override the most fundamental Constitutional guarantees, then nothing does.
NOTE
*I acknowledge here that many police and criminal-justice professionals at this point are now voicing significant doubts about the operations and expansion of the whole SORN scheme and I hope that they can convince even more of their colleagues and peers. But I also note that there seem to be many civilian groups that seem to be seeking the equivalent of police authority to conduct their own ‘monitoring’ of Registrants; I ask you to imagine where all of this might lead if it is not stopped. And by ‘stopping’ it I mean carefully and honestly examining the scheme’s fatally flawed scientific basis, upon which its legal justification precariously rests. And in this regard, I invite your attention to the prestigious government-friendly RAND Corporation’s recent embrace of one such small and local volunteer civilian group (see my Post “Violent Offender Laws” of August 13, 2009, on this site).
And I would say here, expanding on what I said in my very first Post on this site, that we are present at the creation of a very significant – and I would say dangerous – change in America’s fundamental philosophy of law and the limits (or lack of them) to government police authority. It is not being presented as such by its supporters and advocates, but it most certainly is a major shift in the foundational assumptions of the American approach to the scope of government authority.
And if the Constitution, a carefully constructed mechanism, was based on certain assumptions as a large building is built on carefully laid out foundations, then to shift those foundations – especially to greatly shift them – endangers the entire structure that is built upon them. And that structure here is the Constitution and the entire American ‘way’, so to speak.
And I would also add that with this scheme of 1994 we see the first major insinuation of a Continental, government-and-monarchy weighted legal vision. Since then, in other areas, we have seen the government begin to act as a monarch. Since 9-11, we have seen the Patriot Acts, the waging of wars based on the most inaccurate information and beyond the scope authorized by the Congress, the conduct of telecommunications monitoring by the government and even of torture as an instrument of policy … in short, the government has started acting somewhat like a divine-right monarch (and perhaps a not particularly competent one).
This is the fierce urgency of now, if I may borrow a phrase.
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