WAYNE A. LOGAN: “KNOWLEDGE AS POWER”

I’ve just finished reading Wayne A. Logan’s “Knowledge as Power”. He’s a professor at Florida State University who is deeply interested in and knowledgeable about matters sex-offensual.

His book is an excellent review of the state of the situation in regard to the sex-offense laws and what I call the sex-offense ‘mania’. It’s comprehensive, in-depth, and copiously noted. I recommend it strongly to anybody who’d like to get an overall picture and grasp of the situation; I got it from my library, but I’m getting my own copy (under $25) because there’s too much important material.

I’m not going to review it here and as always I don’t have the time to craft an essay. I’ll just give my thoughts on items that struck me as I went along in the book.

He discusses the historical antecedents in this country and elsewhere. The Germans in the 1860s had already instituted Meldewesen, requiring all citizens to register with their local police. You can see here how the Framers’ vision differed from other national approaches: here the American vision has always been that the citizenry (never presumed to be ‘perfect’, ‘pure’ or totally incapable of crime, nor divisible into ‘good’ and ‘evil’ classes) must be free of all but the most basic and essential government control.

This stemmed not only from their dignity as individuals but from the very practical yet breath-taking vision of the Framers that a ‘free society’ is the most fruitful, productive, and open to the creative capacities of its citizens in their individual efforts and when they come together to pool their talents and energies on projects they deem worthwhile.

The German approach (and they weren’t the only ones) stemmed, I would say, from the monarchical assumption that your subjects were always going to be a source of potential trouble, and you should keep an eye on them (and that was certainly true after the many revolutions of 1848 in Europe). Also, you wanted to know where they were when you needed troops or taxes for your many wars and expenditures.

If We assume that the Framers knew something of human nature and the world around them, and if We assume that there was crime of all sorts (including sexual) in the 18th century, then it seems clear that the Framers were more concerned about the dangers of governmental mischief than the occasional crimes of individual citizens. They were willing to run the risk of crime (which is “always with us”, like the Scriptural poor) rather than stifle the society. There was a risk, but life is risky in most respects in this world and any government ‘authorized’ to stamp out risk would have to have the powers of God (although God himself is clearly willing to put up with some tares for the sake of the wheat).

Logan quotes sociologists who claim that through increasing mobility and more opportunities for individual entertainment, We have become “a society of strangers” who are also – predictably and understandably – “fearful of strangers”.

Yes. And it’s natural for humans to have an initial caution about individuals and groups unfamiliar or strange to them. I would – though Logan doesn’t go into it too much – add a few other sources. For one thing, the past few decades of emphasis on the victim’s fearfulness – an unintended (I hope) consequence of a certain strain of feminism that casts ‘the woman’ as living perpetually in anxious fear of assault (by ‘men’). And then, of course, the actual ‘victimology’ movement, where the Victim was – perhaps unintentionally – raised up as a new Model for Americans to identify with, even to define themselves by.

I can’t imagine that this would not and does not have profound (though unintended) consequences upon the very possibility of an American Citizenry capable of performing the tasks envisioned by the Framers.

To engage in and sustain the great American “Experiment”, as the Framers called it, required a Citizenry willing to remain open to life and history, and to tolerate the risks as the ‘cost of doing business’ as a “free People”. Citizens were envisioned as needing to be somewhat resilient – like those who had trekked to the New World and across it into the huge interior of the continent.

And only such a robust and in some ways resilient and mature Citizenry could handle the dangerously powerful horse of the Federal power and the national government, which the Framers were careful to check in so many ways.

That was – and remains – the lasting challenge of being an American, as opposed to being the heir of a more monarchical or authoritarian system of government.

Logan notes the growing technological capacity for increasing government control of the Citizenry through information-technology. I agree, although I again repeat that the primary difference We should grasp thoroughly is the difference between a control-oriented government such as the Germany of the 19th century (and that Nazi bunch) and a liberty-Grounded government such as the Framers envisioned.

He also notes that the SO laws curiously absolve the government of the responsibility to enforce the laws. Instead, it works out in the SO system that the government ‘merely’ provides ‘information’ (that’s already public) and then the public can do what it thinks best. The whole idea of a professional police force (a late 19th century development, and it took a long time to really bring up to speed) is that government’s monopoly on the legitimate exercise of violence through the police power would be exercised justly and fairly by trained law enforcement and criminal-justice personnel, sworn to work within the boundaries set by the Constitution.

The idea was precisely not to have the members of the general public exercising violence – physical, but also non-physical – since to do so would open the floodgates of ancient human primal behaviors, and would regress society to the days of vengeance-feuds and vengeance-justice. And, as a matter of course, would re-ignite the fires of the age-old human propensity to indulge in us-them, we good/they bad thinking. And that would be fatal to the unity and equality of the citizenry, would fracture the American people profoundly, and thus weaken – probably fatally – the entire American Vision and destroy the Experiment. And then, back to authoritarian government and a People no longer ‘free’ We would all go, and Our descendants with Us. And the entire American Experiment would end, and History and Humanity the worse for it.

When Los Angeles considered a registry in the very early 1930s, mostly because ‘gangsters’ from back East were flooding into the city, it was said in support of the idea that “only criminals would object”.

But there was much “principled” objection by prominent local citizens who did not like – or consider reliable – so great and alien an expansion of the police power of the government. “Not only is the measure vicious, but it places too much power in the hands of the police and furthermore “It will create a tremendous amount of suffering for ex-convicts who are trying to rehabilitate themselves, especially [the law was going to be retroactive] those who are in good positions of trust”. So said a local attorney at the head of a delegation of citizens.

I notice that in that era an “ex-convict” was not considered a “criminal” as if it were in his (or her) nature, like some biblical mark of Cain. And there was an acute awareness that governments – when push comes to shove – are not often sufficiently competent to wisely use the power given over to them. (And can you say ‘Iraq War’?)

He went on, in that long ago morning of 1931: “It appears to be a harmless law, but we have too many harmless laws that appeared to be harmless until adopted, when they became dangerous weapons in the hands of certain interests”. To which I can only reply that History is certainly not dead, and that We are repeating it, having forgotten it or dismissed it as ‘old stuff’.

And of course, in that year of 1931, the Soviets were busily purifying the Russian people, Mussolini had erected his glittering plaster imitation of the Roman Empire, and almost ready to make his big move, the little guy with the moustache was in Germany with big plans for the government police power indeed. And in ‘backward’ Japan, there were already Thought Police who were ensuring that every citizen was not only going to keep dissenting thoughts to himself or herself, but was going to get rid of those thoughts and start having the approved ones – or else.

In the words of that attorney We can still hear the thoughts of the Framers expressed.

In 1949, in a Los Angeles still working on sex-offender registration laws, one reporter wrote about the “stigmatizing effects of registration”: “It was the old idea of the brand all over again, though it took the form of this blacklist file instead of the old Scarlet Letter of New England. There was little thought to rehabilitating these people … The emphasis was merely on having them branded and filed, Gestapo-style, so they could be hounded and cracked down upon when the public mood demanded it”.

This reporter in 1949 notices a benny for government that is not often remarked upon today: government can ‘appear’ to be busy and effective simply by setting up the registry and – so insidiously – setting up the registered. Surely nowadays, it seems clear to me, a government authority that has compiled such a record as it has in the economy and the war-making departments shouldn’t really be looking to expand into new areas; it has enough areas already that it still has to get a handle on.

But of course – human beings and governments being what they are – this is precisely the type of situation where ‘registries’ and ‘monsters’ are so attractive to a government looking to divert attention from its own failures and frak-ups.

In 1947 State Director of Corrections in California wrote to the Governor (Earl Warren) that “It has never been the practice in America to require citizens to register with the police, except while actually serving a sentence under the Probation and Parole Laws”. He then went on to make a second point: “Before embarking upon this new practice with a particularly offensive group of individuals, we should not overlook the fact that we may be opening the door to similar practices for other groups as time goes on”.

That, after all, is what happened to the Germans, as Martin Niemoller famously said after the war: They came for the communists and I did not speak up; they came for the trade unionists and I did not speak up; they came for the Jews and I did not speak up; then they came for me and there was nobody left to speak up.

In 1947, the public emotional pressure about Communists under every rock and behind every tree lent steam to the pressure to go after sex-offenders. Apparently the fresh Nazi examples of what a suitably determined and enterprising government might ‘accomplish’ with registries and the manipulation of public opinion had not been lost on certain elements. It was the year of the Nuremberg Trials.

In November of 1953, the city solicitor of Canton, Ohio, reported his dissatisfaction with the whole registration concept: “It is impossible to administer and it has only been used in isolated cases to prevent an undesirable individual coming into the community”. So back to the walled and closed towns of Medieval Europe … fearful, suspicious, and yet also capable of enjoying the thrill of beating or burning any ‘strange other’ who might fall into the public clutches.

This attorney seemed to grasp, I think, that inflicting violence of any sort so perversely creates a sense of unity, a sense of purpose and meaning, and provides a release for the pressures of those dark and primitive emotions that lurk in all of human beings, singly and in groups. (Which is a social-psychology element of the sex-offense mania that has not been sufficiently examined.)

It was in 1991, in the sex-offender law entitled the Jacob Wetterling Act (named, We recall, in memory of a child who was seized by a masked man brandishing a gun, but for purposes that have never been determined, and nobody has ever been charged) the clause is inserted that absolves police “acting in good faith” from any liability – civil or criminal – when apprehending sex-offenders.

And in the current incarnation of these laws, and how they evolved, the question was raised in 1994: why ‘register’ them but not ‘share’ the information with the public, which had a Right to Know. The public being, in the words of one female Representative, “the very citizens who are at risk”? So she asked a House Committee considering adding ‘notification’ provisions to a new ‘registration’ law.

Again I note this disturbing tendency to cast the American Citizen as primarily defined as “being at risk”. As if the most defining characteristic of the nation and the Citizenry is “being at risk”. And, of course, that “risk” primarily being from ‘sex’, and from the type of incorrigible, monstrous, ‘stranger’ who might be here or there or everywhere all at once.

I also note – as it will come up again later here – that she justifies her concern by asserting that “the rates of recidivism are astronomical”. And they are now provably not. And yet these things continue and expand – and how many legislators have changed their position in light of the new discoveries? How many even seem to care?

In a stunning coincidence, however, on the very day that the House committee rejected the notification proposal, Megan Kanka was killed in New Jersey.

In short order, a Representative asserted that “The conferees just do not get it” (using that familiar old epithet of the radical feminism of the Seventies). It was meaningless, asserted the Rep, to provide information only to the police; the families should have had it as well. And here We see the push not only to open the door of the carefully-bounded cage of the official government police power but also to distribute its privileges to the public in general, especially to a public already whipped up over a truly awful – but extremely rare – kind of crime. This is a verrry regressive and anti-Constitutional type of government ‘sharing’ and I think it violates the foundational ‘social compact’ and the Framers’ vision of the nation.

Logan notes the “staggering popularity” of official sex-offender websites (the Feds’ site got a thousand hits a second when it first went up). But it can’t be that all these people are the ideal site visitors, soberly looking up information for purposes of family and neighborhood ‘protection’.

I’m going to bet that this has become a new sport or a new diversion, although some of that sport may well tap into the darker and more primitive capacities latent in any public (those monarchs of Old Europe weren’t just worried about high-minded revolutions; they were concerned about “the mobs” and vengeful gaggles of bloody-minded peasants taking some dark and brutish pleasures as a break from the daily grind).

And Logan raises the matter of wildly exaggerated statistics provided by advocacies for legislative and public consumption far too often. In a 1983 TV piece about the 1981 disappearance of Adam Walsh (disappeared from a mall lot, his remains discovered, but never a clue as to who did it or why): 50 thousand children in the US were abducted each year, it said.

The boy’s father testified before Congress that “more than 1.5 million children are reported missing each year” and “we don’t have clues to what happened to more than 50 thousand of them”.

Which should have given any reasonable person pause. What is the age range of these children? Does it include teens who haven’t come home yet and their parents call the police and the kids later show up? (Which is what the 50-thousand comment seems to imply.) The Congress did not apparently think to ask. It did erect a National Center for Missing and Exploited Children (and what does “exploited” mean?) forthwith and appointed Mr. Walsh, a former hotel-worker, as the official head of it.

That abduction-and-murder “panic” soon fizzled out as other folks crunched the numbers and suspected exaggeration; clearly you can’t just release figures and expect the public to be completely helpless in the matter of doing the math. In 1985 the ‘Denver Post’ did an expose for which it won a Pulitzer: there were 330 thousand, not 1.5 million, children and most of them were runaways (thus not ‘children’ but rather youths old enough to walk and run and – for whatever reason – want to). And fewer than one thousand were the victims of homicide. And most of those were killed by relatives and acquaintances.

A 1990 Justice Department study reported that in 1988 there were only a couple of hundred of “stereotypical kidnappings” and that in the 11 years 1976-1987 somewhere between 40 and 140 were “stranger-abduction homicides”. Then Logan continues: “Missing children fell into five categories with at least four of the categories containing children who were ‘not literally missing’. But rather whose location was known – with parents in disputed divorce cases or relatives in troubled family-cases, I imagine.

But the facts don’t seem to matter – which is a clear indicator of a ‘mania’, as I’ve been saying in previous Posts. Indeed, the key motivator seems to be what one commentator aptly calls “advocacy through story-telling”.

This strikes me as connected to the rise of ‘story-shows’ in the 1980s, TV shows where persons come on, share a story of sadness or horror, and the live audience is expected to immediately credit the ‘story’ and sympathize totally with the person telling it. Which is much what happens in a certain type of ‘supportive’ group-therapy session where a participant tells a version of his/her experience and the other participants listen respectfully, and then ‘support’ the person. An alternative type of such a session is more confrontative, or at least inquiring, where participants and the group-leader probe the ‘story’ for the purposes of the teller being able to see more clearly the dynamics underlying the narrated experience.

The ‘story’ approach makes for gripping TV, for certain types of viewers; whether it’s the best primary mode for conducting sober and careful inquiry by legislators … is another question altogether.

Sex offenses had been declining by the early 1990s (for example in New Jersey, by 1991, years before Megan’s Law), before any of the current sex-offense mania laws were put in place. And Logan notes that “the overwhelming majority of child sex offenses are committed by someone known by the victim”.

This has always prompted me to ask why it is that the sex-offense concern is not aimed more accurately at those who know the children. The possible answers are not at all comforting. From a political point of view, most of those who “know” the children are family members, relatives, and – not to put too fine a point on it – a rather large group of voters.

So too then, it follows that if you were going to pursue a gambit of demonizing a ‘monstrous other’ group, you would want to mobilize as large a mix of the public as possible against as small (and politically helpless) a group as you can set up. But you would not want to mobilize as large a mix of the public against a large (and still politically potent) group, which is what the actual relatives-and--acqaintances group would wind up to be. That way would create far too much push-back from those on the receiving end of the campaign of demonization. And such resistance would most likely break the ‘spell’ that fuels the whole mania to begin with.

And so further, a successful mania requires a ‘stranger’, an ‘other’, preferably monstrous, who – for so much of human history – has filled the bill as the useful ‘target’ for such manias. Even if mostly imaginary, such an ‘element’ seems to be a necessary element in the mania equation. One recalls the ‘monsterizing’ of the ‘brutish’ Poles and ‘sub-human’ Slavs (Russians) by a Nazi regime that wanted to make its depredations seem ‘reasonable’ and ‘logical’ or at least ‘justified’ while at the same time flattering the German people for their ‘purity’ and ‘culture’.

Between 1991 and 1996 only 7%of sexual abuse of children (0-17) was perpetrated by strangers; family members committed 34% and acquaintances 56%. In the 18-24 age group, only 24% of sexual assaults were committed by strangers. And of the 260,000 children kidnapped each year, only a hundred or so are kidnapped by strangers.

And yet the public ‘face’ of the sex-offense mania is the ‘monster stranger sex offender’. On the basis of which huge and dangerously intrusive expansions of the government police power are effected.

Logan notes further that in regard to Jacob Wetterling (upon whom be peace) “we do not know … whether [he] was the victim of sexual abuse or whether his abductor(s) had a history of sexual offending, or lived anywhere nearby”.

And he notes the fact that “although disputed by the Kanka family, media sources reported that a number of people in the neighborhood (perhaps even Maureen Kanka herself) were aware that a convicted sex-offender lived at Timmendaquas’s address”.

If I recall the reports correctly, that man lived with two other adult males, themselves – I think – sex offenders. I would imagine that a family neighborhood would have noticed the odd make-up of the residents in that house. Surely the neighbors would have no reason to lie to reporters.

May peace be upon Megan Kanka. But this question is of more than mere historical importance.

Because on the basis of the narrative presented to the public and to the New Jersey Legislature and the Congress and the President of the era (Clinton), the Megan’s Law was passed in New Jersey and it – and the New Jersey Supreme Court affirmation of it in the Poritz case the next year – became the model not only for other States’ sex-offense laws but also for the entire legislative and judicial approach, finessing the Constitution in order to appease the outrage over what was said to be the true story of how it all happened.

And as Logan notes later on, it is the consequent Parents for Megan’s Law group that has a contract with the State of New York to keep tabs on sex-offenders, and it is that same group that recently got a Senator and a Representative from New York to sponsor a Congressional bill granting the group a million a year and the authority to access on its own the NCIC in order to hunt for sex-offenders. And this represents a truly dangerous trend: the government funding and authorizing a non-official entity to perform with the authority of the government certain tasks reserved to the trained (and Constitutionally bound) police forces.

Of course, this opens the door for any volunteer group to get the same funding and authority, and that then opens the door for some Blackwater-type private commercial enterprise to do so. And perhaps to set up its own ‘police-designee’ type force to go out onto the streets. Please don’t tell me that’s totally implausible – twenty years ago I would have imagined it impossible that the country could go where it has gone and is continuing to go in the matter of this sex-offense mania.*

In that New Jersey Poritz case, as I noted in my Posts on the subject, the Chief Justice of the Court was publicly known as a supporter of more intrusive laws. Logan adds more: that at the time, the Speaker of the New Jersey Assembly was running for the US Senate and that the prosecutors had accepted a plea-bargain from the ominously troubled Timmendaquas on his last conviction so that he evaded a much longer sentence that would have prevented his being paroled when he was.

In the event, the Bill was signed into law just three months after Megan’s death, evading any committee debate and deliberation, and thereby forcing any doubts by legislators onto the open floor of the Assembly (as Logan shrewdly observes) – where, predictably, there were few objections voiced.

Such a novel and complex and Constitutionally-fraught Law, passed so quickly … and on the basis of a narrative that may well be inaccurate in its most vitally relevant elements. This is not a good thing, and won’t end well for anybody involved, which, in the long run, is all of Us.

But as one State Representative (Washington) observed: “People don’t necessarily want statistical analysis … they want security for their children, real or imagined”. Which may well be true, but it doesn’t speak well for the “people”. And it surely doesn’t justify a legislative body simply truckling to the emotions of the moment, and in the face of clear indications that the fear is misplaced and the ‘solution’ will provide no security at all. This says a great deal about the health of Americans’ and American legislators’ capacity for sustaining serious democratic government, and what it says isn’t good at all.

To seek ‘safety’ from what you believe is a threat even if the ‘safety’ is probably an illusion – is a child’s gambit, not an adult’s. We are supposed to be raising children, not imitating them.

Logan limns the fallaciously assumed equation: more public information leads to more truth which leads to more safety. This is a nice mental construct but it cannot be translated into reality. There is little “information” to be gleaned from the mere fact of conviction; all the bits of information may not be accurate and it takes careful assessment to reach the ‘truth’ about any individual’s risk of reoffending as opposed to conducting a decent civic and societal life; and safety cannot rationally be reached by these laws when most offenses are by first-time offenders (thus not registered) who in any case are probably known to the victim.

Logan reveals just what advice the public is given once it is ‘informed’: install exterior lighting at home, warn house-hold members that a sex-offender lives nearby, and don’t let strangers into the house.

This is called – in an ominous paramilitary phrase – “target hardening”. But again, what use is any of this when the vast majority of sex offenses are not committed by strangers but by family members, relatives and acquaintances? You might as well sweep out the old fallout shelter and rename it the stranger-sex-offender shelter.

And he notes that 60% of persons in one poll who claimed that they were “very familiar” with the sex-offender online registry for their area did not know that a registered offender lived nearby.

He also raises the very interesting fact that in American correctional thinking, in these days of reduced budgets, there is now an approach that calls for reducing the old-fashioned “brick and mortar” imprisonment for a “hidden custody” that consists of having the convict tagged so that the public can keep an eye on him/her. This saves money.

That this is a vision which also sets in motion the ‘perfect storm’ of elements that engulfs the citizenries of a police-state … is probably not something the corrections folk are paid to think about, or educated to be aware of. But that doesn’t make this lethal threat to democracy go away. But since legislatures and too-many courts aren’t apparently doing too much gate-keeping when it comes to ‘reforms’ and ‘fresh approaches’ that are pushed their way by determined and vocal and well-intentioned advocacies, then it may well turn out that nobody in a position of public authority it going to say Hey, wait a minute. And from the track-record of these sex-offense laws, just about any ‘emergency’ will justify the abandonment of careful legislative deliberation and acute judicial review.

Logan expresses a justifiable disappointment in the (non-)performance of most courts when they come to judge these laws.

He also raises the acute point that in the matter of pooh-poohing the Ex Post Facto threat these laws pose, the courts are gravely endangering Constitutional integrity. For while the protections contained within the Bill of Rights “typically seek to ensure individual rights, such as the right against self-incrimination (Fifth Amendment), the Ex Post Facto Clause is a structural constraint found in Article 1 of the Constitution”.

A “structural constraint”. An utterly essential structural element, a carrying-wall that cannot be tampered-with without endangering the fundamental competence and integrity of the entire structure. Something that should not and cannot be tampered with. Not a decorative wall that you can pierce or wholly remove if it doesn’t suit your taste and your vision of how the place should look.

The Framers put it in there because they HAD to . There was no other way to prevent the government power from passing any laws, at any time, against any person(s), whenever it (whether King or Parliament or Congress) damned well pleased, for any purpose it damned well pleased. To prevent a government from ever telling its citizens or any fraction of its citizens: Reasons? – we don’ need no stinking reasons!

And more especially, to prevent the government from hastily and rashly passing into law what John Marshall, Chief Justice, described in 1810 as “the violent acts which might grow out of the feelings of the moment”. So, yes, I am saying here that the passage of these mania-laws actually constitute a more real and profound and dangerous form of violence against Us all than the exaggerated cases of violence they purportedly are supposed to prevent.

But of course, Marshall does not here contemplate what came to pass in the world of the 20th century – a government power tempted by vastly enhanced technologies. Which in the 1990s here led to a government that willingly and deliberately stokes such violent feelings, on the basis of which it presumes a justifiable ‘emergency’ that permits it to pass such noxious and toxic laws.

I don’t imagine that many of the Founding generation imagined seriously that a time might come when the American government power would actively seek to incite emotionalism and precisely seek to avoid rationality, at whatever cost to the Constitution and to such citizens as needed to be sacrificed to a mania, for political and control purposes dressed up in the sheep’s clothing of ‘responsiveness’ to ‘outrage’.

The first thing the Founding generation would do in the face of ‘outrage’ or ‘fear’ – or any super-heated emotion – would be to take a deep breath and count to ten. Which is precisely what is not being done today.

Indeed, some recent contemporary social and political movements insist – neatly – that ‘rationality’, thinking, and the reason-based ability that is called “logocentrism” are actually illegitimate because they slow down the process of meeting the ‘emergency’ of the ‘oppressions’ and ‘threats’ that they see all around them. Yet thinking – using the marvelous and unique prefrontal cortex of the human brain – is precisely what has to be done, by Citizens and legislators alike, when it comes to formulating workable, rational, and reasonable national policy. Otherwise We might as well let kids and chimpanzees drive motor vehicles.

As Justices Frankfurter and Cardozo, both from families not far removed in time from the agitated nations of late 19th-century Europe, realized – and Cardozo said – “the safeguards of liberty have frequently been forged in controversies involving not very nice people”.

This is, I think, huge, especially in regard to Our modern American scene. There is this sense, reinforced and even demanded by the nice-victim/evil-perp script, that the status of Citizen is not the essential identity of each American. Rather (an intended consequence of Identity Politics) Americans are simply members of this or that more ‘basic’ Identity who just happen to occupy the same piece of land owned by the same government.

And that there are also the ‘good’ and the ‘pure’ folks and they are nice – and they are forever ‘victims’, and then there are the ‘evil’ and the ‘impure’ and the not-nice folks – and they are forever ‘perps’. And only the first kind really deserve the protections of the Constitution. And the other kind deserve whatever they get, especially once the protections of the Constitution are removed. This is the ‘philosophy’ of TV and movie scripts (with all due respect to the entertainment industry) and it will wreck Us as a nation and a polity and a commonweal and a society.

But just as a society’s character is best revealed in how it treats its poor, so a government’s character is revealed in how it treats its criminals and its ‘others’. And the Framers wanted to make damned sure that every American would receive the protections of the Constitution, because once that watertight wall was punctured, even by the smallest leak, then the huge pressure of the primitive sea of humans’ darker side and the darker side of the governments they made would seep in, widening the crack until there was a flood coming in to sink the whole ship and everybody aboard.

The Framers knew that from their experience of monarchies and mobs, as did – a century and more later – the jurists from immigrant stock like Frankfurter and Cardozo.

Many now, however, do not seem to grasp that – and gladly and deliberately invite the primitivity of government even as the government seeks to stoke the fires of primal emotion in the citizenry. This is a dance of Constitutional death.

And those who advocate for it, especially by claiming that it is “costless” need to consider their position far more carefully. The costs of this sex-offense mania and its enabling matrix of laws are truly huge and profound and – let Us not be deceived – beyond the means of any Constitutional Republic to pay.

The dark ways and the dark spirits rejected by the Framers in the bright morning of the Founding are being invited back in, even as the sun here begins its decline. This cannot end well.

The erosion of a genuine individual sense of meaning and purpose and safety (‘God’ and His Providence used to provide it) and of any sense of a common social meaning and any working concept of a genuine human maturity, combined with the erosion of any genuine government ability to deal with the declining status of the nation in the world, and the desperate need of the Branches to hide that fact and keep the lid on popular discontent and fear for the future, have all combined to reach the ‘mania solution’: find some monstrous ‘threat’ and some ‘monster’ – even if you have to create them through gross inaccuracy, even untruth – and then distract everybody with the ‘war’ against the monsters.

Good blessed grief. At least the command staff of theTitanic were trying to do the right thing.

I’ll conclude by saying that Logan is more or less pessimistic about this matrix of laws being rolled back, certainly not in their entirety.

Well, he’s a competent scholar and probably directly knowledgeable about the ways of government in ways that I certainly am not. He does leave some hope that the economic crisis alone might provide the best hope for these laws being blunted in their effects; States, he notes, are pushing back against the Adam Walsh Act because of the many costs and the burdens imposed upon them.

For my part, I am hoping that these things can be eliminated on the basis of the danger they truly represent to the Constitutional ethos and to the moral and political integrity of the Citizenry.

But he makes a telling point: except for the occasional acute and clear Dissent (such as Justice Stein’s in Poritz) and an occasional off-the-record admission by a legislator, there is little “principled” objection to these laws (or to the spirit or spirits driving them).**

And I have to admit that he raises a telling point and that – so far – he’s right.

And that fact – that so few have raised objections on the basis of principle (even Constitutional principle) – is to my mind the most frightening aspect of all in this still-grasping mania.

What is becoming of Us?

NOTES

*See my Post “S. 1146: The Camel’s Nose Under the Tent”, June 23rd, on this site.

**A little philosophical aside here. And no, it’s not irrelevant and I know your time is valuable. But as always, I think it’s verrrry important for the SO community – or any group – to understand the deeper and wider implications of what they are involved in. It will yield more understanding – and that can only improve their thoughts and their positions.

That’s why I strongly recommend Logan’s book in the first place: the history, the operating dynamics, the consequences, the ideas underlying the SO laws and what I call the ‘mania’ – all of these can only enhance everybody’s ability to comprehend just what has happened, what is going on, where it may be going, and what is at stake.

So to the philosophy.

Since the Sixties the philosophy of ‘deconstruction’ has been embraced – without too much wide public discussion – as the ‘philosophy’ of the Beltway and the ‘elites’. And this includes the Members of the various Branches of the government, as well as the usual gaggle of academics and think-tankers and so forth.

‘Deconstruction’ first saw the light as a literary theory, that you would use when trying to understand a piece of literature. It holds that when you get right down to it, there is no single or primary or ‘key’ meaning to any ‘text’: it’s much more a matter of what the reader ‘sees’ or ‘gets out of’ the text.

Tied in with that is the idea that the author him/herself is no doubt in the grip of deeper preconceptions about ‘reality’ and so there is a whole underworld of preconceptions and assumptions that the author makes, that have shaped the author’s piece and even the author him/herself.

Which is, curiously, similar to Freud’s idea that there is an ‘unconscious’ – with a lot of sex in it – that does more to drive people than anybody thinks or probably wants to think about.

You are most likely yourself under the impression that Freud pretty much said that humans are mostly dark, sex-driven creatures, that they don’t know that, and that they can mostly be ‘understood’ just by seeing how ‘sex’ drives them. Which is not at all what Freud himself thought or wrote, but what his later commentators took away as the ‘simple’ and ‘basic’ message of Freud. Baaaaad literary and intellectual practice, this simplistic distilling of a partial grasp of a complex thinker’s thoughts.

You can see what would happen to readers and students. They are now told that it’s OK to think of, say, Melville’s “Moby Dick” as a story ‘really’ about sex and so ‘really’ the whale is blah-blah and the ship is blah-blah and Ahab is ‘really’ just a sex-obsessed symbol of (pick one) the West, the ‘male’, or add-your-own noun here.

So now, imagine what happens when this starts to get applied in national political thinking. There is no ‘real’ meaning to a ‘text’ (the laws, the Constitution even) and folks can sort of make what they want of it.

And if these or those folks, this or that group, gets enough political power then those folks or that group can pretty much say that a law or the Constitution means whatever they happen to think it means and want it to mean. (So then, imagine what this approach does then to a philosophy of Law or to any understanding of the Constitution.)

And of course, legislators eager to please groups that put pressure on them (the promise of votes, the threat of being labeled as ‘insensitive’ or ‘hostile’ or ‘oppressive’ or – what the hey? – of being labeled as just not ‘with it’ and ‘they just don’t get it’. Legislators, being human, are hugely responsive to all those influences).

In 1971 along comes the political philosopher John Rawls and says that really, Liberalism should be a purely political thing with no philosophical underpinnings. He is instantly raised up as a brilliant new thinker, given all sorts of prestigious awards and positions.

And, shrewdly but perhaps also like Pollyanna in his good intentions, he insists that ‘elites’ – which he defines as those who ‘get’ what he is saying – not only can but absolutely must do ‘whatever it takes’ to change the country and impose this new ‘brilliant’ wisdom. All of the Branches realize that they like a) being ‘elites’ and b) are now not only empowered but actually obligated to ‘go for it’.

Now you can start to see what happens to the philosophy of law and also to the whole process of making laws: you quietly decide you as a legislator ‘know’, and you pass laws that you think are ‘necessary’ (and also please certain groups that are influencing or pressuring you). And, by the by, since there is no ‘basic’ meaning to the Constitution – especially since the ‘old’ generations that didn’t have the benefit of your brilliant new ‘wisdom’ aren’t really worth paying attention to - then you as an 'elite' are actually doing a reely reely 'good' thing and anyway it's not such a big thing anyway. And after all, you as a mover-and-shaker might ask yourself, what's the 'real' importance of something as abstract as 'philosophy' (or 'thinking', for that matter).

And after 30 years of what’s been going on in the law schools and the ‘legal community’, then an awful lot of judges and lawyers (especially if hired by the government) think this way too.

This, I think, is what’s been going in for the past few decades as more and more disturbing unconstitutional and even anti-constitutional stuff has been coming out of the Beltway and even the Supreme Court, as well as from the State legislatures and courts.

And this is one of the deep underground streams feeding this whole sex-offense mania, where legislatures and courts – including the Congress and the Supreme Court – seem to have made and are still making the most gravely dangerous laws, and are actually even engaging in the tactics of the Nazi Goebbels: it’s ‘OK’, you see, because they have this brilliant ‘wisdom’ that ordinary folks (i.e. the Citizens and The People) don’t have and maybe never will or can have.

This is absolutely fatal to the American Founding vision and to any hope for the continued existence of a Constitutional Republic (except in appearances and pious references to the Glorious Past).

This is what’s going on in the country, and the sex-offense mania and its laws are part of that – although a particularly obvious and dangerous development of it.

So this, I think, is what underlies Logan’s acute and astute observation that with very few exceptions there has been no “principled” objection to these SO laws: there isn’t any because, on top of all the usual reasons why political-types don’t like to get nailed down when they have to make political trade-offs, there is a core belief among the Branches and the ‘elites’ that no “principles” actually exist anywhere anyway.

So, then, what happens to the “principle” that – say – “all men are created equal and they are endowed by their Creator with certain inalienable rights”? Nope, just an undigested bit of beef that happened to stick in the craw of that ‘old’ generation, who maybe were rich white males and therefore ‘oppressive’ anyway so they don’t deserve to be taken into consideration.

Or what happens to the Constitution itself – since it is only a ‘text’ that anybody can play with according to their desires and that is suspect anyway because it was made by a ‘suspect’ generation that ‘just didn’t get it’ … ?

You see what can happen. And I am not thereby saying that there are a whole lotta folks in positions of authority who intend to create such a toxic and fatal mess; but even if the consequences are ‘unintended’, they’re still fatal to a democratic politics and to a Constitutional Republic.

And that’s why I keep coming back to the assertion that the SO matter is much more than what it seems. It exists on a point in an advancing wave of anti-Constitutional developments that have to be stopped or they will inexorably sweep the entire American ethos and the entire American vision away.

Logan doesn’t go into the philosophy too much – and that’s OK; his areas of expertise are very well covered in his book. But I hope that this material gives you all a deeper insight into just what’s going on and just what’s at stake here.

KENTUCKY v BAKER

GOOD STUFF FROM KENTUCKY BUT

The Kentucky Supreme Court released its Opinion in the case of “Commonwealth of Kentucky v. Baker”*.

It’s got some interesting stuff in it, and also in the Dissent.

The Court holds that a Kentucky sex-offender (SO) residency requirement may not “be applied to those who committed their offenses prior to July 12, 2006, the effective date of the statute. Because, the Court determines, that “even though the General Assembly did not intend the statute to be punitive, the residency restrictions are so punitive in effect as to negate any intention to deem them civil”. And “therefore, the retroactive application of [the SO residency restriction statute] is an ex post facto punishment, which violates Article I, Section 10 of the United States Constitution, and Section 19(1) of the Kentucky Constitution”.

So, some observations on the Opinion.

The Court notices that “the statute also places the burden on the registrant to determine whether he is in compliance”. It’s up to every SO to do the measuring and figure out if now suddenly (or at some time in the future if they build a school or playground nearby) s/he is not in compliance. This is odd: usually in civil regulations the State or municipality sends an inspector around: Building, Food, Fuel Storage, Fire Safety, or whatever the case about your compliance-with-Codes may be.

But of course, in these SO laws two things, I think, are at work. First, the legislators don’t want to admit just how hugely demanding their schemes actually are; this reminds me of the Pentagon hiding photos of the return of caskets of troops killed in action, or the (you name it) Office jiggling figures and stats to prevent folks seeing just how costly some program or policy really is.

Second, such a requirement gives the government one more hook to nail an SO on. And so you might well see such hapless folk appearing anonymously in statistics about SO ‘re-offenses’ of SO laws – although they have not sexually reoffended, but rather didn’t do the measuring properly (or a new school or playground went up recently and they can’t find a new place to live).

In trying to figure out if the State Legislature (General Assembly, actually, so call it GA) actually intended the law to be punitive (if they did so intend, then the law is immediately unconstitutional), the Court observes that it looked to the legislative history of the law (what the legislators were saying and thinking when they were deliberating and when they passed it); but that when the Court did, the record was “extremely sparse” – which is a nice genteel way of saying that there is almost nothing on the record or in the record.

Why not? Because legislators don’t really want to be caught on record about their ‘deliberations’ in these tortured matters. Nice sound-bites for ‘on the record’ and the evening news, but they don’t want anybody at all hearing what they were actually saying and what thoughts they were expressing. And this strikes me as both very unimpressive and very suspicious and really not a good precedent for a democracy. And you could be forgiven for thinking that the legislators were very bloody-minded and punitive indeed, and their ‘civil statute’ assertion – utterly indispensable in all SO laws – is merely a pose to avoid the essential unconstitutionality of the whole SO scheme from the get-go.

The Bill was entitled “An Act Related to Sex Offenders and the Punishment Thereof” – and they voted it into law. The Court – rather too generously, perhaps – does not believe that the title of the Law “should be determinative in this situation”. Well, there may be some deeper strategy in the Court’s approach to this particular point, but I think it speaks for itself. Also – allow me a nitpick here – “thereof” sounds like it would refer to a ‘thing’ and not to a ‘person’ or ‘persons’ – so maybe the legislators were thinking of SOs as ‘things’ or maybe the ‘thing’ which that “thereof” actually refers to in their minds is the sex-offense itself … which means they want to pass this Bill in order to “punish” SOs, which is on its face evidence of unconstitutionality. I’m jus’ sayin’.

Anyoo, the Court decides on this point that the GA did not actually intend this law to be “punitive”.

But now it has to examine the effects of the law, to see if those effects are punitive whether they were intended to be or not.

The Court uses the five factors of analysis from the Smith v Doe case to determine if this is merely a civil regulatory scheme or is actually a form of added-punishment.

The first element concerns whether in US or Kentucky history and traditions have regarded this type of thing as punishment. As I have said before: this whole scheme is un-historical in US jurisprudence and legislation. It is an entirely new (to America) type of scheme and not-finding it in American history is irrelevant. In the general SO mania-law dynamic at work in all these laws, the Legislature ‘Finds’ that SOs are incorrigible and uncontrollable monsters who pose an ongoing threat to the very heart of communities and families and children and society itself – and that fact is amplified by the media uncritically (until recently, certainly). THEN when the ‘regulatory’ scheme is put into practice, the public has already been primed to think of anyone so ‘regulated’ as a monster.

Bingo. You have an endless feedback loop: the public has been primed by the government’s own official certification to see ‘registrants’ as monsters, and the genuinely awful punitive effects – the dirty work, as it were – are done by the public’s revulsion and fear. The government can sit there like Goldilocks and say that it didn’t eat the porridge (google it if you have to) and that it can’t be responsible for what the public decides to do.

This is new to America. But it is not in itself new. The Reich government did the same thing to the Jews and others in the early 1930s: first the Propaganda Ministry tricks public opinion into believing that a certain class are ‘dangerous to the Volk’, and then the Reichstag (or the Fuhrer by 'emergency' decree) passes a mere and harmless regulatory requirement that such folks have to wear a colored star – nothing so very bad. THEN, having already been programmed by the Propaganda Ministry, the German public recoils in perfectly predictable horror at everyone wearing a colored star – and takes its own unofficial measures.

This is the scam that’s going on here.

Do We really want to be starting down this path? (Cheney’s “walk on the dark side” hasn’t been enough for Us?)

The Court – not wanting to get quite that deeply into things – does indeed find a historical and traditional American precedent – banishment – and that most certainly was a punishment. In the early times when the country was still under the sway of things-Old World there was a legal option to ‘banish’ a convictee from a municipality or area or from the country itself. Then We grew up and got rid of it.

The second element concerns whether the Law promotes the traditional aims of punishment, retribution and deterrence. Here the Court notes that “there is no individualized determination of the dangerousness of any particular registrant” – it’s just the ‘conviction’ and not actually the ‘dangerousness’ of any particular individual that counts. Which is a significant thing in itself (and mimics the Adam Walsh SORNA scheme).

But then the Court raises a point which has received almost no attention over the years: “Even those registrants whose victims were adults are prohibited from living in an area where children gather”. Oh my yes. There are all sorts of SOs, and their ‘preferences’ (not intended to be snarky) mostly have nothing to do with children. And yet all this huge panoply of SO laws is loudly proclaimed to be ‘for the children’. What’s with that?

As I have said in recent Posts, all sorts of ‘alliances’ were made to create a large enough population of folks interested in seeing these laws passed so that sufficient political pressure (and threats) could be brought to the attention of legislators. But to help keep the public whipped up and so distracted that it would not think to look carefully at the overall schemes themselves, ‘the children’ were put out in front, like bank-robbers using kids as shields when trying to make their getaway with the loot. This is not good at all.

Thus, among other things, so many of these laws are entitled – and even their subsections are entitled – with a long string of names: so for example (and with respect to all the individuals those names represent) the “A-B-C-D-E-F-G Act to Protect Children” or some such; this is a subtle and I would say insidious ploy to keep the mania going. Please don’t tell me it’s just good ‘tactics’ or good PR; this is an attempt to conceal a baaaad bunch of laws by preying upon the public’s perfect human sympathy for innocents who have been awfully treated. This surely is an offense not only against democratic politics and Constitutional process but against human decency and morality and Truth itself.

What danger does an SO who offends toward adult women pose to children? To male children? Or what danger does an SO who offends towards adult males pose to children? Or, for that matter – to take a recent case in one of the southerly or westerly States – what danger does an adult who has sex with a Rottweiler pose to any human at all? Why does he or any of the foregoing examples wind up on a Registry to protect children?

The Court quotes Supreme Court Justice Souter in his (alas) Concurrence in Smith v. Doe: he was uneasy with “the absence of individualized risk assessment” – “When a legislature uses prior convictions to impose burdens that outpace the law’s stated civil aims, there is room for serious argument that the ulterior purpose is to revisit past crimes, not prevent future ones”.

Yes indeed. And worse – not that anybody in any of the Branches would like to think about it – that the ulterior “ulterior purpose” is to keep up the numbers of government-constructed ‘monsters’ and so keep the public mania whipped up to high pitch.

The third point asks whether these SO laws impose any affirmative disability or restraint. The Court does a nice – if not deep – job here: “We find it difficult to imagine that being prohibited from residing within certain areas does not qualify as an affirmative disability or restraint”. True enough.

But again, the actual core ‘disability or restraint’ results not so much from the direct requirements of the SO laws (not yet anyway) but from the scheme whereby the government through its legislative (and court-accepted) Findings has first publicly certified the SO as an incorrigible monster. And then the public – hugely predictably – imposes its own punishments on the ‘harmlessly’ tagged SOs.

The fourth point has to do with a rational connection of the law to a nonpunitive purpose: does this law “bear a rational connection to public safety” is the question here.

Again, the Court does a decent job, especially considering the general trend over the past 15 years. The law “prohibits registrants from residing (i.e. sleeping at night, when children are not present) within 1,000 feet of areas where children congregate, but it does not prohibit registrants from spending all day at a school or day-care center, or playground (when children are present)”.

Bingo again.

The fifth point has to do with excessiveness in regard to a nonpunitive purpose. Here the Court repeats that there is utterly no individualized risk assessment of any offender to determine if s/he actually does pose a credible threat. It rejects the Commonwealth which is repeating Smith v Doe, and instead the Court says that the refusal to actually determine (I would add, to the extent any ‘science’ of SOs would permit) if this individual – about to be the target of some very severe effects by government action – is actually a realistically probable danger actually constitutes a very excessive approach indeed.

The Court goes on to say that “We believe that the “magnitude of restraint” involved in residency restrictions is sufficient for a lack of individual assessment to render the statute punitive”. Good.

But let’s not forget that truly awesome and awful “restraint” imposed by that already-whipped up public, which as a direct result of government misinformation is treating SOs like monsters. This doesn’t figure into the analysis? If it doesn’t, then again I say that the overall judicial approach to the SO laws resembles nothing so much as judges ensuring that the SO's seatbelt is fastened before the mob pushes him and his car over the cliff, with the government and legislators standing by to piously assert that this was not any intended effect of the laws and Findings that they had previously published to the public.**

So much for the Court’s Opinion. And it’s a workmanlike, decent job indeed.

It split 4-2, with two Justices Dissenting. Only one wrote a Dissent, the other Joined with him.

The Dissent is a mother-lode itself.

The Dissenter first observes that “the General Assembly has engaged in an evolving effort to address the profoundly serious and vexing problems of sex offenders”.

Well, it’s nice that he says “evolving” – this lays the groundwork for claiming that even if the schemes so far have been a frak, they are “evolving” into something better. But if the scheme by its very nature is a replay of the Nazi colored-star-after-propaganda approach, then there is no way in God’s future that the plan can be ‘baptized’ into a good and Constitutionally useful plan. ‘Good intentions’ don’t enter into it.

Second, he presumes the validity of all those Findings which 15 years ago claimed to prove that sex offenders were indeed incorrigible, frequently recidivating monsters – and that ‘science’ has now got only modestly more credibility than the scientific theory of phlogiston (google it).

He then goes on to note that the law requires that “sex offenders and offenders against minors” register. There’s some interesting dark-space between these two terms. First, it hides the fact that the Registries are now being used against individuals who do something connected in some way to minors that is not sexual, and may not even require their physical presence or any contact with any actual minor at all (internet stuff).

Second, there’s that ‘space’ between ‘sex offenders’ and ‘offenders against children’. Some light needs to be shone into that space.

Then he gets on to the fact that courts should “defer” to legislatures in matters of making policy. True enough. In 1971 the Supreme Court took it upon itself precisely to declare that school-busing – which was expressly prohibited by Congress in the Civil Rights Act of 1964 – was actually a good thing AND THEN went on to demand that municipalities and school districts devise and implement such plans. This was clearly a case of the Judicial Branch not only imposing their own ideas which were expressly rejected and prohibited by the Legislative Branch, but then actually forcing public entities to obey the Court’s own plans.

But the Dissenter (slyly?) claims that the Kentucky Surpeme Court here is trying to do the same thing. That for the Kentucky Supreme Court to find that the Kentucky GA is actually trying to do something unconstitutional would be a violation of the Separation of Powers and the sign of an “activist judiciary”. But if that’s true, then there’s no reason for a Judicial Branch at all. What is being asked of the Court here, and what the Court is doing, is the genuine task of assessing whether or not an act of the Legislative Branch is Constitutional or not. This is precisely what the Judicial Branch is for in the Constitutional plan and vision.

Further, the Dissenter brings up the old “clearest proof” standard of Smith v Doe: that an SO would have to demonstrate “only the clearest proof”, because “only the clearest proof will suffice to override a legislative intent and transform what has been deemed a civil penalty into a criminal penalty”. But of course the Kentucky GA – like so many legislatures – shrewdly didn’t say anything about its intent, leaving – I imagine they hope – a court or the public to presume civil intent … while the awful punitive consequences of these SO laws grind merrily along.

To listen to these arguments is like listening to the Germans complain that their military operations were purely military and that they didn’t intend for a lot of civilians to get killed. What else can you possibly expect when you drop plane-fulls of high-explosive and incendiary bombs on a bustling city at lunch hour on a weekday? And much later, of course, it was discovered that such indiscriminate killings were actually part of a plan of Terror to frighten the population into submission and do what the frak it was told.

And as the court in US v Juvenile noted***, you can’t expect somebody to suffer a law’s bad consequences for an extended period before he can provide “the clearest proof” that the law is punitive. This is a Catch-22 from hell: you can't say you're going to be hurt by this law until it happens. You can't, therefore, tell the jurists checking your seatbelt that in a couple of minutes you're going to be severely injured indeed (once the mob pushes you over the cliff); the jurists will require that you not pre-judge and just what to see what happens when you and your car get to the bottom of the gorge.

The Dissenter notes with annoyance that “This ruling obviously deals a severe blow to the statute’s effectiveness and reflects, in my view, this Court’s failure to give due deference to the General Assembly’s [nonpunitive] intent”. I’ve already dealt with the ‘deference’ angle above. Here let me just repeat what I wrote about the Poritz case in that series of Posts: if a statute won’t work unless the Constitution is politely ignored, than the thing shouldn’t be on the books in the first place and the legislature made a hash of its job by passing it in the first place.

He goes on a bit later: “residence restrictions are not a traditional form of punishment and their punitive effects are not undue in the light of their important public safety objective”. As I’ve said, these things are not “traditional” because they were denied entrance into the American way of law and justice by the Framers specifically because they were toxic to the ethos of a Constitutional Republic and a free People.

And the only basis for “the importance of the public safety objective” in these things is the now “quaint” and discredited sex-offender ‘science’ and recidivism statistics from the bad old days of the 1990s.

So We keep getting this echo-effect where the original baaad justifications continue to be repeated (in good faith or in bad) by persons who want to see these things continue regardless of the Constitutional and human consequences.

And do they think that just because a consequence is “unintended”, that it is therefore somehow less damaging? Can you say “Iraq War”?

And again, the Dissenter writes that the law “leaves registered sex and child offenders completely free to live, work, and participate in the community”. But this, of course, is baloney because the community has already been primed by the government to see them as incorrigible monsters.

But then he offers a justification of the purpose of these things that I haven’t often seen: The law “seeks only to lessen the contact, and hence the opportunity for tragedy, between sex offenders and some of the community’s most vulnerable members”. Rather nicely said.

First, though, I have to throw the flag for his manipulative use of the emotional imagery: once again, We see the insidious attempt to distract Us from the law by appealing to the emotions: “tragedy” and “most vulnerable members” are hugely freighted with a train of imagery that no uncareful reader or listener could avoid. This is the work of Goebbels.

Second, he infers that all SOs are reasonably presumable to be sources of tragedy – and yet many of them, most, are not oriented toward ‘children’ at all.

Third, the actual dynamic of the scheme is that the government now seeks to get into the business of regulating societal interactions and on a profoundly intrusive and comprehensive basis.

This alone poses a huge public question. The free interaction of citizens – the ‘social’ activity of the nation - is the very font of civic activity, creativity, and cohesion. This is precisely what the Framers wanted to protect by placing so many boundaries on government to begin with.

And especially since this whole scheme is based on grossly (one almost has to say willfully and deliberately) inaccurate government ‘Findings’ about the nature of sex-offenders, then there is huge ground for questioning whether there is any justification for such a comprehensive government policy at all in the first place.

THIS is the huge civic challenge posed by these laws and the carefully-stoked mania that enshrouds them.

And then, finally, the Dissenter makes the defense that the government “is not obligated to fashion perfect statutes”.

Well, nothing is perfect in this world. That’s why there are sex-offenses in the first place, along with war, famine, pestilence, poverty, rampant disease, and un-serious legislators and judges.
But when you look at the utter lack of any proof that legislatures gave any serious thought to these laws at all (at least none that they’ll admit to); when you look at the stunningly inaccurate ‘facts’ that legislatures (and courts) have accepted in support of these hugely-fraught plans; when you look at the alarming tunnel-vision by which legislators and courts can stare at their paperwork and not see what is going on ‘outside the window’ as a direct result of their actions … when you look at all of this, can you then imagine that government has given adequate deliberation to the laws they passed in these SO matters? As the sage once said: Geez, nobody’s perfect – but don’t abuse the privilege!

Anyhoo, the Court did a good thing here, and Imean that not as a factional supporter of SOs. As an American I feel better reading the Opinion.

But reading the Dissent, I get to see how bunches of other folks – many of them in official and elected positions – are still thinking.

To which I can only say: they may be landing in Normandy, mes amis, but we are still in Paris.

NOTES

*You can read it by going to http://www.constitutionalfights.blogspot.com/, and looking under date of October 1, 2009 for the article entitled “KY Supreme Court Strikes Down Sex Offender Law”. Also, this Opinion cites the prior district court Opinion as being very “thorough”, although I haven’t been able to access that prior Opinion as of yet.

**Here let me also note that it seems as if several – at least – volunteer sex-offender watching organizations have actually gotten official authority to do their own patrolling of sex-offenders. New York State actually has a contract with one such group. And it’s the same group that had its US Senator and Representative sponsor a recent Bill to get them a million-a-year grant to keep it up AND to have access to the FBI’s NCIC database (the one police can access from their patrol car computers).

***See my Post “US v Juvenile” of October 1, 2009 on this site.

****So what I’m saying here is that We are not dealing with some sort of ‘originalism’ argument here, where much hemming and hawing is done over whether a current plan or law is justified in the original text of the Constitution. We are dealing with a plan that the Framers omitted because it was unworkable in a practical sense (fracturing the Citizenry and American society into first-and-second class citizens) and because it is conceptually repugnant to the entire American proposition and would prove lethal to the American vision if it were tried: fracturing the Citizenry, undermining the basis of individual dignity and of mutual respect and common purpose among the Citizenry, and dangerously increasing the intrusive scope of government authority.

Nor is it in any way sufficient to say that such awesome frakkery was not the intention of those who first invited this vampire-plan in through the national front-door. The thing is in here now and that ain't just a 'perception' that needs to be 'adjusted'.

And in this regard, I recall Joseph Bottum’s remark about the writings of Rene Girard in regard to the mythological uses of the “scapegoat”. Bottum says “Girard is surely right that modern political theory has systematically underestimated the social power of revenge” [italics mine].
In these SO laws, it is already quite probable that the legislators themselves are vengeful and therefore very much “punitive”-minded when they make these things.

But worse, by playing with fire, they have ignited the never-absent, primal vengeance and revenge capacities of the population. These primitive but very human emotions have now been added to the “fear” generated by the ‘monster’ image certified by the official legislative “Findings” and amplified by a sensationalist and simplistic media reporting.

At this point, it may well be that there are not only many legislators who are indeed very bloody-minded, but also that almost every legislator is now placed in the unenviable and dangerous political position of saying No to a public mania for fear-driven revenge upon these ‘monsters’ that the legislatures themselves provoked.

And in this regard, I can’t help but thinking of the German Reichstag in the later years of World War 1: having gone along with the desperate PR effort to demonize the English and French as ‘monsters’ in order to keep a discouraged German public whipped-up to support the failing war effort, they then literally believed their own propaganda and pressured the Kaiser’s government to intensify the military efforts in order to prevent the Allied ‘monsters’ from entering Germany and wreaking havoc upon the civil population. Which, of course, was precisely what the Kaiser’s troops had done – intentional terror tactics – to the captive populations of the countries that the German military had invaded and occupied. Funny how the night moves, as the songster saith.

ADDENDUM

Sorry, but I have to add this – and trust me, it’s relevant.

On a totally different task, I read today the July 2007 issue of the religion-philosophy-literature monthly “First Things”. I had not read it when it was fresh.

On pages 6-7 there is a Letter to the Editor by a Mr. J. Tonning of Michigan. He is apparently defending then-President Bush from an article in the March 2007 issue.

And this is where it gets relevant to SO concerns here and now.

Let me quote at some length Mr. Tonning in all the certainty and self-assurance and outraged sense of propriety that he displayed in 2007: “The assertions that Bush is hapless and incompetent simply don’t hold up to scrutiny ... In response to the attacks and large-scale slaughter of innocent people on American soil, Bush single handedly cnaged the paradigm of the West versus terror. The Bush doctrine needs to be carefully studied by every American, for it contains the structure we will use to fight terror for the next fifty years … Has Bush made mistakes? What a pointless question! It is not just that avoiding mistakes during the paradigm shifts is an impossibility; the bigger issue is that mistakes are a crucial part of the exploration and discovery process that establishes a path within the context of the new framework. Failure is a necessity. Have we forgotten that? The critical element in the process of failure is to avoid catastrophic failure and to manage the exploration and discovery period such that we fail within our means. This Bush has done. This is not a manifestation of haplessness but of resoluteness.”

I read this over dinner tonight. As soon as I read it, I thought of the Dissenter in this Kentucky case. In a few years, or less, is THIS what supporters of the sex-offense laws are going to be saying? That it’s OK if you went into a huge and widely life-frakking undertaking without sufficient thought, and perhaps even with willful duplicity – certainly negligent deliberation … that it’s OK because ‘stuff happens’ and the important thing is that you frakked up “within your means”? That ‘legislating’ – as Rumsfeld said of the ‘democracy’ reportedly being birthed in the flaming wreck of Iraq – is ‘messy’ sometimes?

And whose “means” are We talking about? All the defendants wrongly convicted because of the mania that government actions instigated and keep instigating? All the convictees who have had their lives utterly frakked by the clearly Nazi-derived schemes that have been accepted and imposed? To the great and lasting detriment of the Constitutional ethos and any genuine democratic and humane politics?

Is THIS what they will all be trying to say? Some version of ‘Oops, my bad’ – only it means nothing because it’s not your life and your family’s that was wrecked by a public hysteria that in all but the most outrageous genuine cases has no doubt inflicted more wrack and ruin than any other ‘pain’ and ‘trauma’ connected to the case?

As the children would say: “OMG”.

SEX AND POLICE PROBLEMS

(I am Posting this piece on my other site later today, but after looking it over I think it also has something to say to the SO community so I am Posting it here as well.)

POLICE PROBLEMS

Up in Boston, a story is unfolding.

One police officer is accusing another of rape. And the complainant wants a restraining order taken out on the defendant.

The mind immediately searches its files for the conventional script into which the assorted principals can be slotted and filed for future reference and outrage.

But the good Soviet Citizen would know enough to look between the lines. Especially when the press – for the Soviet Citizen, Pravda or Izvestia (google them) – really doesn’t want to say too much.

A few days ago, both officers were relieved of their weapons by a unit sent to their respective homes. Apparently, as the complainant was handing over her weapon … it “accidentally discharged” but, the paper nicely notes, “no one was injured” – which isn’t really as comforting as it might first sound. Now, I try to picture this: one police officer, in her own home, is asked to hand her piece to another police officer who has politely asked for it … and it goes off while she’s handing it to him?

A stunning incompetence or a certain intentionality seem to be involved.

But there’s more.

On August 25th, the officers had been in another State, Connecticut, as part of a shooting competition team (again: the gun went off “accidentally” in that house?). Following the competition, they had been “drinking beer and margaritas at a nearby parking lot” – maybe Connecticut has looser public drinking laws.

Then “by the end of the night they had stopped at two bars where they downed more tequila shots and more beer”. This sounds like a college outing on Spring Break, not a professional (and armed) exercise.

Then the three officers – two men “and a young woman” (the third officer, now Complainant), who was “a couple of years out of the academy” (and already on an expert shooting team?) went back to a hotel (did they drive?) where “they all agreed to share a room”.

Subsequently, as the female officer “collapsed onto a bed”, somebody else tried to crawl in next to her – one of the other officers. Her efforts at resistance were stymied by his threats “to ruin her life” and raped her twice, she reports. The other officer had already “passed out on the floor” (again: they drove?).

The accused officer “intimidated her” and so she agreed to have sex with him the next day and “three more times in the next month”.

She then apparently discovered that he had impregnated her.

And now she is in court as Complainant.

She is seeking an extended restraining order because, she affirms, “He has no qualms about killing people”. Which may be true – he is on the Special Operations squad, which includes SWAT, where he is a sniper.

But so is she – having been transferred to this elite (and highly armed) Unit upon her own request from her relatively brief stint at a precinct station. (And being in the Special Ops Unit, as well as on the shooting team, her gun “accidentally” went off as she was handing it to another police officer?)

And it was her husband who came forward to lodge the first report of all this.

Her attorney is now mad that as a victim she has been forced to turn over her weapon. Although simply on the basis of the “accidental discharge” you might imagine the Department has thought twice about giving this officer a gun.

During a “brief cross-examination” at the Hearing for the Restraining Order the accused’s lawyer elicited that the female officer had waited almost a month to report the rape, and then had told her husband “only after learning that she was pregnant”.

There’s an awful lot under the surface here, and none of it impresses.

I don’t hold for anybody raping anybody. I don’t blame anybody who was raped from taking appropriate legal action. Nor should anybody be penalized for making such a report.

But I also think that there are certain elements of current conventional (and Politically Correct) ‘perceptions’ of reality that are bearing much poisonous fruit, and for everybody: the persons involved and the entire culture and society (which is Us).

Human nature being what is, and humans of both genders being hard-wired for a certain amount of sexuality, there are probably precautions that the prudent mariner must take before setting sail and during the voyage. No, I am not going toward any sort of rape-goes-with-being-alive sort of baloney.

No prudent captain – male or female – who understands the operating dynamics of these human vessels of ours should be taking them into certain types of ‘waters’ or situations where the ship can reliably be counted upon not to function well. In the Navy this is called “hazarding the ship” – putting the vessel you command needlessly into a situation where it is most likely going to sustain damage. As a commanding officer, you can get yourself court-martialed for this sort of thing.

But in Our present cultural milieu, ‘sex’ is considered to be primarily a sign and avenue of ‘liberation’ and anybody – especially women – can do what they damned well please. Currently, it is only the male who is responsible. No, I am not going for the old ‘blaming the victim’ gambit here.

This, I think, serves nobody well. If a society functions best when its members are not constantly crashing into each other, and if a culture functions best when its members are educated into a responsible awareness of their own ‘operating characteristics’ – especially in so fundamental an ‘operational’ matter … then We are presently going about preparing ‘vessel commanders’ very poorly.

Of course any male – being that member of the species whom evolution (Evolution, if you wish) has hard-wired with a primary drive toward reproducing the species and taking the actions that that ‘mission’ requires – should be educated into the considerable array of self-awareness and self-discipline skills necessary to master this evolutionary urge competently.

Any female has also to be aware of her own sexual responsibilities, since every female too is a vessel commander. Even though in some primal sense she is ‘passive’ in the actual act of reproduction, she is every bit as much of a ‘commanding officer’ when it comes to how she does or does not ‘hazard’ her vessel (and the future of that vessel and all the ‘souls’ (if you will) who rely on her command judgment).

It’s a matter of command responsibility here, and both of the ‘captains’ in this incident (let’s leave the third officer passed out on his piece of the floor) have a responsibility to avoid getting their ships into a situation where a needless collision is highly probable.

Our current Politically Correct doctrine does not address this at all. The young cannot be ‘educated’ because nobody else has the right to tell them what to do; females are not to be ‘blamed’ for situations that arise (and again, this accepts that the male is in the last instant the ‘active’ member of the dyad and that I am not minimizing either male responsibility or female pain from an encounter-gone-wrong).

The act of sex is not in the first instance an emblem and avenue of ‘liberation’ or ‘empowerment’ (teenagers are not told this, and indeed are often led to believe just the opposite). Nor is it just a thang – there are consequences, designed ultimately by Evolution itself. And some of those consequences can be – not to put too fine a point on it – huge.

Of course, in their too-usual unthinking way, legislators have tried to have it both ways, and have – with the help in some significant instances of the courts – done so by passing laws, some civil and more recently many of them criminal. At this point, it appears that the female is most always empowered and liberated until suddenly she is the victim – and then suddenly the law kicks in and tries to resolve or re-balance the whole issue.

This on top of the kids (and thus the adults they grow into) being told that sex ain’t but a thang, until that magic moment when – pow! – it’s a felony (and a sex-offense registration matter as well, now). Parents and the educational establishment play a great role in contributing to this from-the-get-go confusion. Nor do the churches necessarily escape responsibility in this.

Everybody in Our society – the young especially – has to be trained in how to master these vessels, and this is even more necessary than training them how to competently and safely master the skill of driving a motor vehicle.

Otherwise We wind up in this present type of situation: reputed ‘adults’ – and law enforcement ‘professionals’ and with guns, to boot! – have now placed themselves, the legal system, and Us in the almost impossible situation of figuring out who did what to whom and who's responsible.

I think that to fixate on the actual tactical tracking of these two individuals in the incident(s) in question is grossly insufficient in terms of civic competence. We have to look at how they were ‘trained’ – because this sort of thing (sex being what it is) is happening a zillion times a week all over the country, and often to people who are still ‘youths’ and not in possession of their full prefrontal capacities and to huge cohorts of people who are now chronologically adults but still grossly under-prepared to command ‘vessels’ so formidably equipped.*

Now in this particular case I am making no judgments because I don’t know all the facts that the court (one can only hope) will know or formally take note of. Clearly irresponsible behavior from the very beginning of the post-match started the principals toward such a hazardous situation, and at this point the courts must decide what is to be decided.

But in the overall cultural milieu in which We are now wallowing – and that’s the most significant aspect of this from a common-weal point of view – this is what absolutely MUST receive Our attention as stewards of the culture and the society. In a democracy, don’t forget, it is the Citizens who are the ultimate stewards of the culture, the society, and the entire heritage that they as adults are entrusted to preserve, protect, and pass on to future generations.

But this matter also calls attention to deep systemic issues in organizational dynamics. Yes, police drinking and rowdy behavior (clearly by female officers as well as males, alas) is a classic trope, and a legitimate concern.

There has always been a danger in police work: that it going after the criminals, wading deeply into the swamp of criminality (even if only so that you can clean it up, or at least take a bite out of it), you wind up pretty much muddy – and perhaps bitten by the swamp creatures – yourself. (And have you noticed the same thing in Our present wars, and what Our “walk on the dark side” has done to the Beltway and to the troops themselves?)

TV has done a lot in this regard; for over half a century now folks have been getting basic impressions (unexamined) and forming basic assumptions (also unexamined) about how things in this world work from TV shows, and from a very young and impressionable age (don’t forget: until the early 20s the genuinely human brainparts – those prefrontal lobe bits – aren’t really online at full biological potential yet).

Jack Webb with “Dragnet” in the 1950s tried to make the LAPD look truly professional and as the ‘good guys’ – and that wasn’t a bad idea, and it even got folks expecting that that’s how police should act. But as We know now, the LAPD in the 1950s was a Wild West show and that was its institutional culture.

Ditto McGarret in “Hawaii 5-0” (one of my favorite Sixties’ shows, by the by). Not only the fantasy thought that in the middle of a weekday you can get on a radio and order every unit in the district to line up at 50-yard intervals near a certain location and five minutes later they’d all be in perfect position. No, it was the idealization (well-intentioned) of the police officers (a profession for which I have great respect). And of McGarrett himself – since while a mature viewer might accept the McGarrett team’s characters as unique, a lot of folks would just assume that that’s the way things were in police work and move on to shower the attention on other things.

Ditto the “CSI” types (and the "NCIS" types most absolutely surely) especially David Caruso’s “Horatio” in “CSI – Miami”: this guy insists that the police are not only society’s guardians against criminal disorder but are also the “moral guardians” (yes, he said it in one episode) and even the moral examplars for society. And that ‘s rather a stretch, with all due respect to law enforcement personnel. As with the “NCIS” paragons, it makes for good TV, but it is rather far-removed from reality – where We have to help the cops by keeping an eye that they stay within Constitutional bounds, the same way they help Us by making sure We stay within the speed limits.

(And if that’s true about police officers, it’s even more vitally and urgently true about elected officials; things have gotten verrrrry sketchy inside the Beltway, if you haven’t noticed.)

But so are the promotional and assignment policies. What is so inexperienced an officer doing on an elite Unit designed to operate under great pressure? What factors (the possibilities of race and gender come to mind in Our modern American reality) played a part in so clearly inappropriate an assignment?

This is one of those cases that suddenly reveals far larger problems than the conventional media scripts are designed to permit. Nor would the police leadership – caught for so long now between the Scylla of Political Correctness and the Charybdis of competent policing – really want to risk all by discussing everything fully and frankly.

If ‘somebody’ doesn’t do it at some point, then the systemic problems will be ignored in favor of the individual issue.

And that isn’t going to help Us much at all.

And in a democracy, of course, that ‘somebody’ is Us.

And for the SO community, this thought: I think an awful lot of genuine convicted SOs are indeed under-trained or improperly trained in the mastery of their 'sex' capability in all of its daunting complexity. To such 'commanding officers' and those who work with them, I offer the challenging consolation that no matter what the legal consequences with which a genuine SO has already been burdened, there is always the opportunity for some Repair-and-Rework-and-Retrofit of the ship and its captain's skills. So, respected gentlepersons, get on with it!

And I mean that in the most encouraging and enthusiastic sense.

NOTE

*I’m waiting for some voice to assert that since ‘easy’ or ‘thang’ sex is such a stress-reliever or such an ‘emblem’ of ‘liberation’ now, then to move toward ‘perceiving’ it as something to be used only with care and good judgment is going remove one of the nation’s only free, non-medicinal ‘stress relievers’ and that such a thing will therefore push more of the nation’s youth (and adults poorly trained as youths) into prescription medication as a substitute stress-reliever (an outcome only Big Pharma could love).

To which I can only respond: there is a certain ‘pain’ that goes with mastering a self and a life, which – when you reach its genuine heights – is actually a powerful though quiet exhilaration at having achieved so genuinely mature a level of competence.

So a certain amount of initial ‘pain’ – which probably should be called ‘effort’ since the two nowadays are so often thoroughly confused – goes with the tasks of becoming a mature human being. Recall Wesley’s comment to the Princess-to-be in “The Princess Bride”: “Life is pain, Princess – anybody who tells you differently is trying to sell you something”. This is equally true for ‘Princes’.

And We, I say again, have been ‘sold’ a whole lotta baloney over the course of the past few decades.

AFGHANISTAN’S LESSONS FOR SEX-OFFENSE MANIA

LIKE BREEDS LIKE

It’s reported that the President and a top-level group of civilian and military advisers met for three hours to chart a new course for Afghanistan.

It appears that the new course of six months ago isn’t working; the plan hasn’t worked out as hoped. Options are for even more troops (which I recall hearing in another galaxy long ago and far away) or to just call the whole thing off (which I also recall hearing in that same galaxy and era).

Here’s the key point that the group is asking: “The question is how much danger is there and how many soldiers and dollars should be devoted to minimizing it?”

Well, I wish them all the best – and I hope they produce better results than their predecessors in that long ago era.

I wonder if perhaps legislators and courts in all the States and on Capitol Hill have finally worked up whatever it takes to ask the same kinda basic questions about the sex-offense mania? I mean, except the part about ‘the soldiers’ since – so far – the military has not been called in on the matter.

How much danger is there? From the ‘sex offender as incorrigible monster’, of course, one can expect nothing but eternal threat to the very heart of family and society from the slavering hordes. But from the average sex offender? Has anybody even taken a careful count of just how many sex-offenders are actually of the ‘monster’ sort? I suspect very, very few compared to the 650,000 presently enrolled (does that include the tens of thousands that have fallen through the “patchwork”?) Or what I imagine will be another half-million who may fall into the SORNA web.

And how much can be tolerated in a realistic apportionment of money and law enforcement resources? I mean: if some general or bureaucrat gets up in that Situation Room conference and says something life ‘if even only one al-Quaeda guy remains standing over there, then that’s one too many’ … if that’s going to be the philosophy, then We are in a heepatrubble. Zero tolerance of al-Qaeda types over there works out to eternal war.

The government of today is now trapped by the demonizations of the government of a while back, isn’t it? Having gotten everybody all whipped up, and having gone ‘over there’, and things not having worked out, then how can you pull back and leave all the demons you talked about loose? This, I think, will be this war’s equivalent of LBJ’s ‘domino theory’ and his ‘respect theory’: if we pull out now, then the whole of Indochina will fall, and nobody in the world will respect us anymore. And on that basis, dozens of thousands more US kids and untold numbers of Vietnamese went on dying and dying.

It got its big start with the trumped-up ‘attacks’ in the Gulf of Tonkin (which, decades later, Robert McNamara admitted) – a public-relations project which provided the ‘match’ that lit the fuse of the Vietnam War as We came to know it. It has to be said that Jacob Wetterling and Adam Walsh – the two dead children whose cases became the ‘faces’ of two of the most provocative sex-offense laws – died in completely undetermined circumstances; to this day it is not known if sex had anything to do with their deaths*. Future historians of this era are most certainly going to be shaking their heads at the strangeness of it all.

I sometimes have a dream: that some ‘conferences’ in some closed rooms somewhere figured out that the ‘abducted children’ supporters, and the ‘sex is evil’ supporters, and the ‘men are evil’ supporters should pool their efforts, thus providing the most attractive package to the largest number of legislators: both the Lefty cultural-revolution types and the Rightist law-and-order types, and the Lefties who were looking for some way to seem ‘traditionally’ family-friendly and the Righties who were always looking for more law-and-order (though, it appears, they pray as did the Jewish peasants of old Russia: may the Lord bless and keep the Tsar … far away from us).

So, having figured out their alliance, they then put together a ‘monster’ that would embody the particular nightmare visions of the each of the alliance members: incorrigible, goes after children, can hide in plain sight, is everywhere, is a stranger, is mostly male, and is incorrigible and should be locked away for the rest of his life (which would do nicely for the prison-business). But should – out of Constitutional propriety – be given some ‘scientific treatment’ by ‘experts’ (which would do nicely for the ‘expert’ business).

A stitched-together monster for a stitched together alliance.

The whole thing, it seems to me, mimics the growth-and-development strategies of the military-industrial complex (as it was first called) and the military-industrial-congressional complex (as it is now called).

But it’s built on much shakier ground, and a lot of decent folks from all parts of the spectrum are now beginning to see that things can’t go on like this.

Are there a tiny proportion of individuals who actually fit the constructed-monster image? Yes, I imagine so. Enough to be a threat that has spawned a mania that does so little good yet causes so much damage to the Constitutional ethos and consumes so many resources?

But for the vast majority of those convicted, they are individuals of varying degrees of capacity, few having anything to do with children at all, and incapable of living up to the requirements of their assigned role of ‘monster’ even if they tried. And of the remainder, they are of such a predisposition that they wind up in confinement under State law anyway.

And as I said in a Response to a Comment on the immediately preceding Post: I think that in matters sexual the young are in far more danger of having their lives and futures derailed from being given conflicting guidance at a time in their lives when their biological urges to reproduce are waxing to their strongest level while their prefrontal capacities – for judgment and maturity – are still years away from full capability. To suggest that sex is both ‘liberation’ and that it is evil, and that nobody already in possession of their prefrontal capacities has the right to tell a kid anything … far more young lives stand to be ruined by this than by some stranger-monster materializing from the bushes.

It almost seems as if, from a social-psychological point of view, the whole mania is feeding in part on a widespread societal and adult-parental inability to offer genuinely useful and efficacious guidance to the young about matters sexual; but rather than face that, the adults will go after ‘hordes of monsters’ whose existence they themselves, and those who wish to please them, have created. As if by achieving ‘total security’ from the monsters they have done their duty to the young.

I think the ‘monster’ imagery and the grotesque ‘science’ had to be created and deployed in order to ‘build up the numbers’ and to make it appear as an ‘emergency’ of massive proportions in order to justify to public opinion such a huge – and dangerously novel and intrusive – government program. Not so very different from the Soviets being spun to the American people as seeking world conquest (in the atomic age!) and monstrously competent in pulling off their apocalyptic dreams. And only much later was it revealed how inaccurate it all was – but by then, trillions had been thrown away.

As Ike said in that other galaxy long ago and far away, "Every gun that is made, every warship launched, every rocket fired signifies, in the final sense, a theft from those who hunger and are not fed, those who are cold and not clothed. This world in arms is not spending money alone. It is spending the sweat of its laborers, the genius of its scientists, the hopes of its children."

Foreign wars, I think, are not the only complexes that drain what resources the country has left.

NOTES

*I hope my inclusion of this simple historical and legal fact is accepted for what it is here, and it implies no disrespect for the loss and pain of these childrens' loved ones.

"U.S.v JUVENILE MALE"

THERE'S MORE HERE THAN MEETS THE EYE

I have a few thoughts on this so emblematically-entitled case, recently decided by the Ninth Circuit. The text of the Decision is here.

The case concerns whether a person convicted of a sex offense in juvenile proceedings long ago now has to register under the Adam Walsh Act (formally known as the Sex Offender Registration and Notification Act, or SORNA). The Court decided that Registration and Notification would be punitive for a juvenile conviction and thus could not be applied retroactively, even if the juvenile is now well into adulthood.

Writing for the Court Judge Reinhart asserts at the outset that “the avowed priority of our juvenile justice system (in theory, if not always in practice) has, historically, been rehabilitation rather than retribution”.

I’m not sure that the distinction is that easy, between juvenile and adult justice systems. Adult prisons are not called “correctional” for nothing. Yes, juveniles might have more of a chunk of future ahead of them, but that’s not why they are more eligible for rehabilitation. Their brains – and precisely the most uniquely human parts, the prefrontal lobes and cortex – are not yet fully developed.

But that’s no guarantee – a bunch of other factors including what can still be called ‘character’ enter into it and nothing is certain. But it’s always worth the try and in most cases some lasting good will come of it.

But I don’t see how the Court can so easily assume that adult justice is only for retribution. Adults can also grow and develop – it’s part of what makes humans such remarkable beings. Yes, an adult may commit a crime that requires punishment, but there is utterly no certainty that s/he will not use that opportunity to catalyze some profound corrective growth, and – as I suggested in my previous Post – perhaps achieving a level of growth beyond what average life-experience would or could deliver. You can never tell in these things.

That, of course, is exactly what the sex-offender-as-incorrigible-monster-narrative is designed to eliminate: this irrepressible possibility that a human being can take a difficult situation – including his own guilt – and somehow metabolize it into growth, perhaps remarkable growth. If this element of human-ness were allowed to remain attached to sex-offenders in the public mind, then they could not be so easily dismissed (and vilified) as monsters.

So this sex-offender-as-incorrigible-monster-narrative plays a critical role: its job is to dehumanize or un-humanize the individual so as to make it easier to do what the scheme has in store for him.

That’s a deceitful and dangerous gambit for any society to run. You cannot deny another human being’s humanity – it violates the fundamental truth of the species. And when you do such a thing, then you not only violate the fundamental truth of being human, but you also endanger your own human-ness. The untruth weakens your grasp on your own humanity, even your own capacity to be human.

Worse, as an entire society starts this slide, then others all around you are doing the same – the young even more than the old – and so not only your own but your society’s grasp of its own most fundamental qualities starts to weaken.

And in the Framers’ vision, you can’t start letting the government decide who is and who isn’t ‘first class’ – everybody is possessed of those “inalienable rights” and that core dignity. A government that would try to remove those rights and that dignity is going to taste a ‘blood’ that will turn it feral – like the oppressive monarchies and tyrannies of the Old World. A government unanchored by Truth, presiding over a citizenry equally unable to understand the truth of its own heritage and its own unique nature as human beings, is going to start heading down dark paths in short order.

Interestingly as well, in a by the by, the Court notes that it makes its judgment “in light of the pervasive and severe new additional disadvantages” that “result” from the SORNA requirements. Why these only apply to juveniles and not to adults is a question that has to be asked.

The Court notes that “the regulation went into effect immediately as an interim rule, without providing for a notice and comment period in advance of SORNA’s retroactive application”. The “regulation” refers to the Attorney General Guidelines Congress ordered that Office to come up with. As with so many of these sex-offense laws, they bypass the usual legislative and even statutory practices calling for deliberation, public and professional input, overall kicking-the-tires examination. The usual reason given for this is that ‘it’s an emergency’ and ‘we can’t wait even one more day’; such government-by-emergency has a very ominous history in this world.

And there exists no small possibility that the Guidelines, which establish “retroactivity”, are probably going to be as “interim” or temporary as taxes – unless there is significant civic push-back.

Nicely, the Court acknowledges (in support of the juvenile) that “when an individual challenges a new law, such as SORNA was at the time this case began, it would appear to be impossible for him to develop a record which contains the “clearest proof” [the Supreme Court standard with which sex-offenders are burdened] of the punitive effects that the law will have upon him or indeed upon others”. Again, I can’t see why this isn’t also true for adults. Such experience of the law’s effects can’t be determined when the law is new. But then, the FAA doesn’t require a couple-three planes of a new type to crash before it refuses to issue an airworthiness certificate to the design – there are other avenues for ascertaining if their design and operating characteristics are going to result in the aircraft’s design not being flight-worthy.

The Court continues immediately: “Certainly, we would not require [the juvenile] to suffer and then document the ill effects … before permitting challenges to its retroactive application”. Wisely said. And why that doesn’t apply to adults is again the question.

The Court considers whether the retroactive application of SORNA “imposes an affirmative disability or restraint”. It concludes that “given the degree of damage former juvenile offenders may suffer in their adult lives by the retroactive application of the statutory requirement, we conclude that this factor is by far the most compelling in our analysis”. I can see that. But that must also be true for adult offenders.

It quotes the Supreme Court in Smith v Doe that “although the public availability of information may have a lasting and painful impact on the convicted sex offender, these consequences flow not from the Act’s registration and dissemination provisions, but from the fact of conviction, already a matter of public record”. And I’d like to say something about that.

First, “the public record” means something verrry different when all a person has to do is click onto a site and move a mouse in the convenient comfort of his/her own home, rather than taking the time to go down to the courthouse and checking the files. Yes, in the barest technical sense a public record is a public record. But going down to the courthouse means that a person has to at least decide that the trip is worth it and make the time and expend the effort; that makes for a degree of seriousness in the searcher.

Clicking onto a site when you’re at home (or, who knows, have taken your portable computer down to the local bar) invites a much different situation: a person may well have a far less serious purpose and approach the record with an attitude well-short of maturity and gravitas. But all that information is right there literally at one’s fingertips. There’s a good reason why Congressfolk don’t like to be ‘too available’, as it were: they don’t want just anybody walking up and venting on them.

But also, the folks who are looking up the info aren’t just looking up a public record. They have already been primed – by the government itself – to see ‘sex offenders’ as monsters. As I’ve said in previous Posts, the ‘Findings’ that legislatures have made (and courts have far too easily accepted) to the effect that sex-offenders constitute an immediate and permanent and incorrigible threat to individuals and their children … these Findings mean that when somebody is convicted of a sex offense he is automatically perceived in the public eye as having been certified by the government as a monstrous and permanent threat. The government, as I’ve said, has effectively educated the citizenry into the (grossly inaccurate) belief that sex offenders are incorrigible monstrous threats.

So when a person goes onto the internet and looks up a ‘sex offense’ record, s/he is not simply looking up the public record of a criminal conviction; s/he is looking up the information on a government-certified monster.

And this is not true for any other crime.

So to say that it’s just a “public record” really doesn’t reach the core reality at work here: the citizenry are primed by the government (with the assistance of sensationalist media) and so they are already in a quite abnormal state of agitation when they approach the “public record”.

So it cannot be said – as too many courts are saying, following the Supreme Court’s lead – that such troubles as the registered sex offender will encounter stem not from anything the government has done (merely publishing an already public record of conviction), but rather stem simply from the conviction itself (which is the offender’s own fault). Lots of folks are convicted of this or that; but only sex offenders are officially and with great fanfare ‘certified’ as permanent and monstrous threats even after they’ve done their time. And it is precisely that ‘certification’ by the government that makes a sex offender’s record far more than just your average “public record” of conviction.

And, as I’ve said, that ‘certification’ is grossly inaccurate.

And it is precisely that ‘certification’ that imposes a stunning and life-wrecking burden on the sex offender. It’s insufficient for a court to opine that registration is not “historically” a cruel and unusual punishment. It’s not the registration. It’s the double whammy of ‘certifying’ the offender as a permanent and monstrous threat to a public that the government itself has already primed, and then tossing the offender’s identity and information out onto the internet like chum in a shark tank.

No, this isn’t a “historical” form of punishment. Precisely so. This is a whole new thing in American law and society – and it ain’t good. But anyone who can claim with any pretensions to maturity and intelligence that this doesn’t constitute a cruel and unusual punishment should take a few days off for some really deep thought – and maybe some prayer as well.

And again, that’s why a sex offender’s ‘information’ is not simply ‘information’ – it is actually a colored flag (and maybe a green light): ya know all those monsters we’ve been telling you about? Well this guy’s one of them – here he is.

All law – especially in a democracy – is in some way ‘political’; it has to interact with the citizenry and thus with the emotions and conceptions of public opinion. That’s always been true.

But throughout the 20th century there has been – as Gustav Le Bon noted* at the very end of the 19th – an increasing science – and by no means a purely bright one – dedicated to manipulating public opinion.

What has happened in this country, embraced by the Left** a few decades ago, is that this manipulation has been deployed by the Left – especially the ‘New Left’ of the post-1965 era – for its purposes. Which are often considered ‘revolutionary’ but in a good sense; that is to say, with the intentions of introducing new ‘reforms’ and changes. Very large changes introduced very quickly (hence the ‘revolutionary’ aspect). I don’t agree that such a simple baptism of ‘good intentions’ suffices to make a ‘change’ or a ‘reform’ a worthwhile and workable plan when it comes to actually passing sweeping legislation.

In this sex-offense mania it has worked out this way: the public opinion is whipped up by stories that are reputedly backed by ‘science’. Then under a purposeful regime of ‘advocacy’ organized elements of lobbyists and ‘scientists’ or ‘experts’ step up to put the pressure on Congress, making for a dramatic if too-simple story-line that the media often eat up like catnip. The politicians can then ‘respond’ with quick laws. And in this case, the unsleeping urge – natural to all governments as the Framers knew – to increase government power and control over their citizenries comes into play. Though in a democracy, especially after the overt tyrannies of Fascism and Communism, this has to be done somewhat covertly, using some form of ‘sheep’s clothing’ to disguise itself.

This is the pernicious and rather new dynamic that is now operating in the sex-offense mania. It is a vigorous if subtle feedback loop.

Thus, the ‘sex-offender-as-incorrigible-stranger-monster’ is literally created. And public opinion ‘demands’ and legislators ‘respond’ with all their authority and courts often – alas – go along, since the Supreme Court too “reads the election returns”.

So that’s what’s going on beneath the surfaces of the sex-offense mania.

No other crime is or has ever been treated like this. Yes, outrage against gangsters and even liquor (Prohibition) have taken place – but everybody knew that ‘gangsters’ were bad and needed to be reined in. But nobody assumed that gangsters were as profoundly and thoroughly and uniquely ‘evil’ the way sex-offenders have been painted. Folks knew that there were ‘gangsters’ and that they needed to be reined in, but nobody lived in the perpetually anxious agitation that they were ‘everywhere’, seeking to involve themselves in you and your family and your children and could strike – even in the disguise of a ‘decent’ citizen – at any moment, right in the heart of your world and your town and your neighborhood and your home and your life. And that there were innumerable legions of them, hiding throughout the length and breadth of the land (like ‘Communists’ were supposed to have been in the early Cold War era).

No other convicts or class of criminal offender get this sort of treatment – except maybe those individuals, whatever they’ve done, who get up on the most-wanted posters at the post office (if they still have them).

So I think the courts have to accept that sex offenders are not at all ‘just convicts’ and they don’t simply have ‘public records’. No. Sex offenders, through the deliberate action of the government, are publicly and officially claimed to be ‘monsters’ and are in a situation no other convict or class of convicts are in, and on top of that this is a brand-new type of thing in American society so the courts cannot simply look in the past for precedents.

Unless they go back to Nazi Germany, Soviet Russia, Mao’s China, or France during the Terror, all of whom raised up their own versions of 'enemies of the people', class enemies', or 'enemies of the revolution' - or all four together at the same time.

NOTES

*See my Post “Citizen Skills and Sex Offense Mania” of September 25th on this site.

**When I say this I am not covertly declaring myself a person of the Right. The significance of “the Left” as I use the term here is that most folks almost automatically presume that the Left only does ‘good’ things – certainly only has the best interests of The People at heart; and I hope I don’t sound like a reactionary when I say that all things considered it ain’t necessarily so and surely doesn’t always work out that way. My intention here is to illuminate, not to take sides in any merely party-politics sort of mud-fight.