THE FAILURES OF MEGAN'S LAW

You may recall Lewis Carroll’s line from – soooo appropriately – “Through the Looking Glass”: “The time has come, the Walrus said, to speak of many things – of shoes and ships and sealing wax, of cabbages and kings …”.

We have two articles – one on the fine Sex Offender Research site (‘Megan’s Law doesn’t work’, dated 5-2-10) and one on the equally fine Constitutional Fights site (“Breaking Down Megan’s Law from a Constitutional and Effectiveness Standpoint”, dated November 9, 2009) – that take a tire-kicking look at Megan’s Law.

If you don’t recall them, you may want to glance at my series of Posts from last August-September on the New Jersey Poritz case of 1995, where the New Jersey Supreme Court, under a far too ‘optimistic’ Chief Justice, tried to put a Constitutional foundation under the original Megan’s Law.

All the now-familiar scams were put forth as the very cutting edge of legal thought, legislative policy, and Constitutional play-doh jurisprudence: it wasn’t a violation of the Retroactivity and Ex Post Facto Clauses of the Constitution; it was merely ‘administrative’ and ‘regulatory’ and neither ‘punitive’ nor ‘criminal’; it was necessitated by the extremely high recidivism rates of ‘sex offenders’ generally and universally; it was going to give law enforcement a fine tool; it was going to ‘inform’ citizens so they could take whatever action they thought necessary; and it was soooo negative to imagine that either the public (laboring under the whipped-up emotions of the grossly inaccurate Legislative ‘Findings’) or the legislators themselves would get carried away and start sliding into the Dark Side.

Well, now there is a major study – commissioned by and conducted with the assistance of that State’s Department of Corrections’ Office of Policy and Planning – and the study concluded that Megan’s Law “struck out on every important area related to protecting the community from sexual offenders” and “has no demonstrable effect in reducing sexual re-offenses”.

I can’t help but thinking of the recent attempt by New York US Senator Schumer and New York US Representative King to secure federal funding for the ad-hoc advocacy organization that developed to further the matter AND authority for that organization to be given authority to troll the NCIC FBI database for ‘sex offenders’: did they know that the Report was coming out and thus wanted to ensure that they’d still have funding and the authority to do ‘whatever it takes’ to ‘keep up the numbers’?

You wouldn’t, perhaps, think that ‘advocacies’ would operate like Pentagon program-administrators and defense-contractors, but – (may I?) Wake Up, America! – that’s how things go when you get into the Federal and Beltway racket.

It’s a form of racketeering, really – although politely and urgently fronted by the ‘emergency’ (which doesn’t, it turns out, really exist, but – hey – can you say Iraq War and Sadaam’s WMDs?).

And anyway, they’d all hope that by now We would just accept SORNA in any and all of its mutations as ‘the new normal’ and ‘not look back’.

Phooey.

Ike warned about all of this in his Farewell Address of January, 1961, speaking of the then-new military-industrial complex: there was a conjunction – new to American experience – between “an immense military establishment and “a large arms industry” and that consequently “the potential for a disastrous rise of misplaced [and misused] power exists and will exist”. In 2007 Sen. James Webb (D-VA), speaking on the same subject, noted that there “is a natural tendency toward corporate excess” and that this is “a national problem”.

I’d like to propose that these assorted Issue-Advocacies have now morphed into a domestic equivalent of the military-industrial-congressional complex. They will find as many problems as there is money to ‘fix’ them. Just like if you take your car to a strange mechanic and ask him to see if there’s anything that needs to be fixed and that the expense doesn’t matter: by the time he gets through listing the ‘repairs’ you’ll wonder how the thing ever kept running in the first place.

Megan’s Law “fails to positively impact sex offender re-arrest rates; fails to change the type of re-offenses or first time offenses that occur; or fails to reduce the number of victims involved in sexual offenses”.

You’d like to think that this evidence of the fundamental lack of conceptual and achievement integrity alone would give officialdom and the advocates pause.

But no. The Report falls back – understandably, alas – on a different justification for re-thinking the whole thing: “given the lack of demonstrable effect of Megan’s Law on sexual offenses, the growing costs may not be justifiable”.

It’s not a great reason to get this thing ‘revisited’ – as they like to say in Pentagon circles – but it’s a good one.

After living through the Cold War ‘bomber gap’ (the Commies have more intercontinental bombers than we do and they could be here any day now), the ‘missile gap’ (the Commies have more missiles than we do and they could be landing here in half an hour anytime now), and before that the ‘Red Scare’ (there are Commies living among us, looking like normal Americans and they are eating away our democracy from within) … after all that, I got the same feeling as the Sex Offense Mania got started using the same scare-tactics.

After a while it became known that the Soviets never matched us in bombers or A-bombs or missiles, but by then public attention had already been ‘moved on’ (yes, used here as a transitive verb, in acknowledgement of the Beltway’s increasingly sophisticated and frequent use of Goebbelsian and Soviet and Maoist agitprop methods to manipulate public opinion).

And after the clear ‘success’ of the Sex Offense Mania there came the above-mentioned rush to invade Iraq – ruled by an unlovely man indeed, but still a sovereign nation, and a ‘secular’ one that had utterly no love for fundamentalist Islamic shenanigans.

But why look back?

Well, for three reasons.

One, because the whole thing has been a stunning miscarriage not only of justice but of legislative and jurisprudential power (and, hardly less urgently, integrity).

Two, because the whole thing is – in the Report’s words – not only a failure, but also “counterproductive to public safety”. As if a Constitutional corrosion and corruption, in which the police power – as deployed by legislatures and courts – breaks the Constitutional bonds so wisely and necessarily devised for it, does not of itself create a huge threat to the Citizenry and actually make ‘victims’ of the entire Citizenry and of The People.

Three, because the whole thing is still very much active, continuing its corrosive and corruptive effects. And not only against ‘sex offenders’ but against the entire People and against the Constitutional ethos. Although the Beltway, taking its cue from Left even before the Bush-Cheney Right, considers the Constitution “quaint”, outdated, and outmoded. (And – speaking of outrageous crimes – aren’t these legislators, judges, prosecutors, and law enforcement types bound by Oath to uphold that same Constitution?)

We are in a heepa trubble.

As further evidence of just how much this entire Mania is driven not by facts but by ulterior motives and ideology, the advocacies supporting Megan’s Law now claim – against the very text of the Poritz Opinion, that the whole thing was “never meant to reduce re-offense rates” but rather was merely “designed to provide parents and communities with information” as to the whereabouts of sex-offenders (by definition lumped together, for tactical purposes, as if they were one huge child-raping, kidnapping, and murdering organization).*

Yet, as the Poritz Opinion pointed out and the State legislators clearly stated, the justifying objective of the whole thing was to “reduce the danger of recidivism posed by sex offenders”.

If the advocates are now to be taken at their word, then We are confronted with this: for the mere purpose of informing the public, a hugely Constitutionally dangerous precedent was set 15 years ago – and We have now seen 15 solid years worth of increasingly dark intensification.

This is like the Navy claiming that while its latest carriers can't actually launch and recover aircraft, they were really just meant to 'send a message' to anybody who saw them sailing along in all their ponderous glory out there offshore. All that money just to 'send a message'?

Worse, it appears now that legislators and most judges feel powerless to put the brakes on it; the evil genie of ‘public outrage’ and ‘pain’, which they let out of the bottle back in 1995, has now proven so potent that re-election prospects (the true – alas – motivator of the political and increasingly the judicial class) are put at risk by any effort to take a principled or even a prudential stand.

Perhaps a ‘fiscal’ stand might work: it’s just too expensive in light of the ineffectiveness and even more so because it’s actually decreasing public safety.

But that presumes that ‘public safety’ was the original real motive for the whole SORNA regime.

And that may not be true.

Perhaps, just as in the early Cold War the government had to “scare the hell out of the American people” (as Harry Truman was told by senior security advisers) in order to get them to accept the new National Security State evolving in the postwar years, the SORNA regime was actually the gambit that would prepare the American people to accept the National Nanny State.

So that to accept any actual facts and evidence that the Megan’s Law doesn’t work or actually works to the detriment of the public and The People would be to pull the rug out of not only the SORNA regime but the whole National Nanny State enterprise.

Just like, if back then anybody had published the actual bomber or missile comparison figures between the US and the USSR, the rug would have been pulled out of the public stampede supporting the National Security State.

And which Party would want to risk its electoral viability by being called ‘soft on defense’ or – in the Nanny State scenario – ‘insensitive to victims’?

So the pols and the two Parties themselves became locked into a nose-dive that finally became a tailspin, unable to pull up and out of the awful course which they had taken.

But back then there was a bottomless supply of cash: the Goose that laid the Golden Eggs (dollars) seemed ready to go on pumping out those great eggies forever, so who cared? Who really had to care? As long as the cash flowed, it would create a lubricant that would seal-over whatever cracks in the circulatory systems of the engine might develop from all the dangerous strain. A new way of seeing Money as Oil.

But that was then.

Now the Goose is dead. Deconstructed, outsourced, or call it what you will.

And for urbanized and suburbanized generations that were raised on TV and didn’t pay enough attention to the old-school fairy-tales (have you ever really read the dark world of the Brothers Grimm?) it comes as ‘news’ that a dead Goose doesn’t continue producing Eggs. Who knew?

Now We know.

And clearly the States know – which is why Obama had to pander to his ‘bases’ by promising that Congress would print up ‘money’ to help cover the costs of the Adam Walsh Act.

This is a game that can’t succeed in the long run. Not just in the matter of the SORNA regime, but in terms of the national economy.

I think it was Larry Summers who said recently that it’s hard to see how the world’s largest debtor is going to remain the world’s most influential nation.

If he’s right – and that’s hardly a stretch – then We have some mighty serious and very real problems ahead of Us. And the rather seriously illusional (not to say delusional) problems of rampaging hordes of slavering stranger-sex offenders (who, yet, are sooo able to ‘pass for normal’ – like vampires in the B-movies) must yield priority to grievously fundamental problems of national economic viability (and survival, not to put too fine a point on it).

As developmental psychologists would say (about boys, at least): there comes a time for the individual to realize that masturbatory fantasies do not and cannot constitute a mature and efficacious life plan.

If there were developmental psychologists for nations, then I think they’d say: there comes a time for a government to realize that sex-offender fantasies do not and cannot constitute a mature and efficacious national legislative policy.

The government needs some serious maturational therapy. It’s come to that.

NOTES

*I can’t help thinking of Ahmed Chalabi: you may recall him as the ‘source’ of all the dreck about Iraq’s WMDs. When, after the invasion had taken place (but before it all began to go as far south as it now has), he was confronted with the irrefutable indicators that his information was at the very least wrong if not actually a tissue of manipulative lies, he looked pained at such hurtful and hateful thoughts and said of himself, his supporters in the Beltway, and just about all of Us upon whose authority the invasion was carried out: “we are heroes in error”.

To which I only respond: Phooey, baloney, and frak.

Can you expect that the backers and supporters and official enablers of the Sex Offender Mania are going to be claiming that in the not-so-distant future? Stay tuned!

S.1146: THE CAMEL’S NOSE UNDER THE TENT

A news blurb over on Constitutionalfights is verrrry ominous. A bill has been introduced in both the Senate and House entitled the SORT Act of 2009 (S.1146, H.2612). The Senate version has been read twice and sent to the Judiciary Committee. It’s only a few pages long and worth a few minutes to read it yourself. The House version is here.

The Senate version was introduced by Schumer of New York, and the House version by King of New York, and since they both seek funding and authority for a New York-based organization, you can imagine that it’s all a bit of hometown pork. But it’s wayyyy more than that.

The organization in question is the non-profit corporation Parents for Megan’s Law, Inc. It has to be recalled that it was the murder of Megan Kanka in the mid-1990s, by a deeply troubled man living across the street from her, that became the touch-point for the sex-offense Registration and Notification wildfire that is still, clearly, burning out of control.

It also has to be recalled that whereas the ‘accepted’ version of events is that nobody knew the man was a potential danger and so a Registration and Notification regime would prevent that tragedy from happening by giving parents ‘information’, yet at the time of the killing the other residents on the street mentioned to local reporters that they all knew the man had a history and was dangerous. Nor did the Kankas themselves deny that they had already known.

But somehow a different version of events was erected into ‘reality’ and things have gone where they have gone.

Now this bill (I’m focusing on the Senate version): The organization has made itself into a clearing-house of community education and also a rape-crisis center and a ‘support’ resource for persons (“child and adult victims” it calls them) who otherwise would not want to go public with what they consider to be their situations. This starts to shade into some verrry deep psychological and therapeutic territory, and that includes a whole bunch of concerns about ‘therapy’ that ‘moves’ a patient – child or adult – toward a particular legal outcome. Which is a lot for a non-profit volunteer-type organization to be taking on. We recall the disastrous pre-school day-care cases of the 1980s.

And the organization also relays ‘tips’ on sex-offenders to the relevant police authorities.

Persons can anonymously send in ‘tips’ and this organization will forward them (they like to call it a “criminal justice referral”). The organization conducted its own ‘survey’ which – who can be surprised? – discovered that a quarter (100,000 or so) of registered sex offenders were not complying with the laws (those registration and notification laws that the Kanka case – whatever its actual elements – helped bring about).

And this ‘tip’ thing suddenly reveals itself to be the innocent looking tip of a monstrous berg. Because somehow the organization is either looking for, or possibly already has, access to the National Criminal Information Databases (the NCIC), the stuff policemen can look up on the computers in their patrol cars.

It claims that it needs this authority to “effectively evaluate the veracity of tips received, proactively research noncompliant registrants or registrants engaged in criminal activities, and provide law enforcement with viable accurate information for follow-up action”. Which are all things that – not to put too fine a point on it – only police forces are authorized to do.

And just where do you put “proactive” research of (allegedly) noncompliant registrants? This is something that is very close to unconstitutional for the government to do (think of Tom Cruise’s unit in the movie “Minority Report”, arresting people who have been ‘seen’ by a psychic being committing a crime in the future and being imprisoned before they do so).

So is this Bill an attempt to let civilians do something that the government is constitutionally prohibited from doing? Because nobody should be willing to let such a feral camel’s nose under the Constitutional tent. Or is this Bill an attempt to actually force police departments – that are increasingly coming to realize that the vast sex-offense registration and notification apparatus is a useless waste of precious police resources – to keep going through the motions? Because I am going to bet that if any police agency declines to ‘follow up’on a "referral" that the organization has decided to make, then the organization will threaten to go to the media and the mayor with placards and all the now-usual panoply of props and players. In other words, this is an attempt to force the police to stay in a losing, and very badly-conceived, game, and to keep up appearances (and 'numbers' and funding and you can see where all this goes).

Worse, this Bill and this organization seek to do this by demanding what is essentially police authority. Why not give this organization autos or even paddy wagons equipped with emergency lights, sirens, and radios? Why not given them arrest powers like bounty-hunters? The police have access to the NCIC databases because they are the police: they are trained and they are sworn and they are – ideally – accountable to extensive procedural requirements. And, as noted above, they are constitutionally guided as to what they can and cannot do. None of this is true of this non-profit organization which has, it must be said, an axe it needs to grind. And to keep grinding.

In a bit of sleazy wording, the Bill piously notes that the organization needs the NCIC access to carry out its “duties and responsibilities”. The organization may well have adopted its own goals and agenda, but it has utterly no official duties and responsibilities that require it to carry on what is very much official police work. Nor is the NCIC access simply a way to help the organization “assist and support law enforcement agencies in administration of criminal justice functions”. That’s like giving the Salvation Army not just sandwich-and-coffee trucks to pass out refreshment to firemen at major fires, but actually giving the Salvation Army real fire-trucks to join in fighting the fire.

And the Bill is so loosely worded here (Sec. 3.c.) that it opens up the possibility of this organization, or any other non-profit volunteer organization, expanding its interests beyond sex-offense matters to any other criminal offense or records (or perhaps tax-watchdog organizations accessing government income tax files). And if that happens, then what if a for-profit organization decides it wants to try doing this sort of thing? We’ll have the equivalent of Blackwater ‘contractors’ loose all over the place doing pretty much the same thing the official forces do, except without the constitutional responsibilities or restraints.

This organization already has – as the Bill acknowledges – the resources of “existing Internet sex offender registries and public information”.

The bottom-line here (Sec. 3.d.) is that the organization wants a million dollars a year for the next five years. But, really, there is a much deeper line in this bottomless thing: the organization wants to start garnering police-authority. And if this Bill is passed, then it will be only ‘the next logical step’ to give it all sorts of other police authority. And to give other similar organizations such authority.

Like the sex-offense enabling legislation itself, this is a baaad Bill, a baaad and indeed constitutionally dangerous idea, and it is based on assertions and claims that are not exactly – ummm – true.

And for that matter, I’d say it’s a classic example of what’s gone wrong on Capitol Hill: you would have to say that Schumer has done absolutely no serious long-term thinking about the consequences of this Bill. Either that or he has no working knowledge of the purposes and dynamics of this government’s – or any government’s – monopoly of officially-sanctioned use of violence through its police power and the role of Constitutional limitations in actually keeping that role legitimate.

This cannot end well.

And should not even be allowed to go any farther than it already has. The government has gotten itself into this frakking mess by indulging and fueling this entire unholy sex-offense mania to begin with. Now, with the actual truth and its consequences starting to become unavoidably clear, there is a groundswell from interested parties to try to plaster over the widening holes and keep the show on the road. And to do so by getting the government to dole out its constitutional authority to such interested parties as are willing to make a jihad out of their Cause, even if the government can no longer manage to keep the lid on the problems with the whole thing in the first place.

Government’s only course here is to prevent any such dispersal of its own authority. And instead, to own up to its responsibility – at last – to look carefully at the whole mania and its constitutive elements and start to fix the things that it has rather largely broken. And - We can only hope - with more success than it has had fixing things up in Iraq.