DOE v. PORITZ 9

DOE v. PORITZ 9

This continues our look at this landmark 1995 New Jersey case declaring the Megan’s Law legislation to be Constitutional. As always, the text of the Decision is here.

Section IX is entitled “Procedural Due Process and Fairness”.

Recognizing the principle of the right to due process in the US Constitution, and noting that the New Jersey Constitution is equivalent in spirit in this regard, the Court proceeds to set itself the tasks for this Section: “In examining a procedural due process claim, we first assess whether a liberty or property interest has been interfered with by the State, and second, whether the procedures attendant upon that deprivation are constitutionally sufficient.” So that’s what the Court will be looking at.

It goes on immediately to say that since it has already found that the Megan’s Law legislation does not constitute any “constitutional deprivation”, then the only thing it’s going to look at in this Section is “whether in the implementation of notification, procedural protections are required beyond those found in the [Megan’s Law legislation] to assure fairness and accuracy in carrying them out.”

So, then, continuing the image I’ve used in previous Posts on this case, the Court is going to make sure here that your seat-belt is fastened just as securely as any other sex-offender’s; but over the cliff you will most surely be pushed by the State – nothing wrong with that.

It may seem strange, to use Lincoln’s phrase, that the Court would raise the concept of “accuracy”, given all that is now known and was knowable then about the gross inaccuracy of the Legislature’s Findings of Fact upon which it based this legislation and passed it with such great (Careless? Premeditated?) haste, but the Court is building a web of justifications in this case, not trying to come to grips with reality.

The Plaintiff has asserted that the Registration and Notifications Laws (RCNLs) “implicate liberty interests in privacy and reputation”. And specifically, that the dissemination of this information about him impinges on his “interest in” nondisclosure. More trenchantly, the Plaintiff asserts that “classification under the Notification Law, with its attendant disclosure, not only identifies him as a sex offender but effectively brands him as potentially currently dangerous, thereby infringing his interest in reputation.”

So here, already in 1995, the point is being raised: ‘sex offender’ is a brand – constructed by the State – and by being so branded it will become very difficult (just about impossible, we now know) to carry on life in a community. In previous Posts I have characterized the State’s constructing a horrific (and inaccurate) “repetitive and compulsive” brand and then inflicting it on everyone convicted of a sex-offense as tantamount to the State publicly issuing a Certificate of Dangerous Threat. It is, I have said, very much the same dynamic as the old Continental European tradition of ‘tagging’ convicts as members of ‘the criminal class’ permanently. The Nazis didn’t think this thing up out of thin air; though they did carry it to its logical extremes with typical Germanic thoroughness.

The Court says “We find that both interests constitute protectable liberty interests, and therefore that procedural protection is due. We hold that such additional procedures in the form of a hearing are due, that they must, on application, be provided before notification and that they are constitutionally required”.

So if you wish to apply for a Hearing, you have to be given one. But as we have seen it will only be to determine your classification and the notification-level that your classification will trigger. You’re going over the cliff, but you have a right to a Hearing to determine how tight the seatbelt is compared to everybody else going over.

And, of course, the Hearing will be conducted in a context of public mania, before a State-controlled bureaucracy or court whose principals are very very alert as to which way the wind is blowing at the very top – the Legislature and the State Supreme Court – of the system that employs them.

The Court goes as far as to quote Justice Louis Brandeis’s fine and acute phrase about “the right to be let alone”. Of course, this is an American concept – Continental European law, with its origins in the days of monarchy , doesn’t acknowledge any such thing. To that tradition of law, the people are essentially the property of the Throne, and what the monarch wants to do with them is not theirs to say. I mention this so that you can start to get a sense of exactly how unique a gift the American Constitutional vision really is – that Constitutional vision which far too many American elites now consider “quaint”.

The Court acknowledges (with many citations of case law) that “the question of one’s good name and standing, and the interest in protecting that reputation, constitutes a protectable liberty interest” is a valid question.

It goes on to quote a 1971 Wisconsin case that went to the US Supreme Court to the effect that :”It would be naïve not to recognize that such ‘posting’ or characterization of an individual will expose him to public embarrassment and ridicule” and goes on to complete that citation: “a protectable liberty interest is implicated where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him”.

But then it cites a 1972 case – also before the US Supreme Court – to the effect that had “the State made any charge against him that might seriously damage his standing and associations in the community” or “imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities” then it would have presented “a different case” altogether.

This latter case was an employment case where the State had refused employment and the Plaintiff was claiming that such a rejection was a slur on his reputation.

But of course in the RCNLs, we most certainly do have a situation where the State is “foreclosing” a “freedom”, not only to get employment but simply to continue to function in even a minimally acceptable sense within a civic community.

In a time of mania and mania law, “reputation” cannot be narrowly defined. It’s not simply a matter of the gossips and busybodies gossiping about your failures or weakness; it’s a matter of the State actually officially branding you and then putting that Notice ‘out there’ in the community where almost nobody can avoid the information, either because they are formally notified of it or because under the influence of the mania (and that includes the mania-feeding media) everybody is made aware of your situation (and, of course, the ‘threat’ and ‘danger’ that you most surely pose to them and their children).

Nor in a time of mania, can the State or the Court claim that it’s simply helping make more public what is already public record to begin with. Having already branded an individual (luridly and as we now know probably inaccurately), the State is now blaring out that ‘branding’ with all the resources that a State has at its official or unofficial disposal in this media-saturated age. This is not your Framers’ America that we’re talking about here; this is some new beast that has been infected by dark forces that the Framers most deliberately sought to exclude from the American shores.

The Court cites another case: “reputation alone, apart from some more tangible interests such as employment, is not either liberty or property by itself sufficient to invoke the procedural protection of the Due Process Clause”.

But of course, in a time of mania “reputation” most surely does not exist “by itself”, apart from the very possibility of civic life and the ability to carry on a life in community. In a time of mania, indeed, you can no more separate “reputation” from the very ability to live in community than Shylock could separate that ‘pound of flesh’ from the blood and attached viscera.

And this is especially so when the State has publicly ‘branded you’ as an incorrigibly dangerous monstrosity and then ensured that everybody will ‘know’ that.

And when the State has acted hugely and forcefully to feed and nurture that mania both by passing legislation and then by having that legislation declared ‘good’ by the highest Court in the State.

And for the same reasons, it is insufficient to assert that “harm to reputation must be accompanied by the alteration of a ‘right or status previously recognized by state law”. The right to carry on a life, and to get on with one’s life – even after a conviction and even though one is an ‘ex-con’ – is implicitly foundational in both the US and New Jersey Constitutions; such ‘status’ is not “afforded by the State” (an echo of that Continental, monarchy-friendly legal thinking) but rather is – as the Framers clearly realized – a ‘status’ inherent in the natural dignity of the individual which no earthly government has the right to abrogate.

To the Continental system, since the Crown ruled by God’s Will or by the brute reality of power, there is no natural and inviolable dignity or right which the Throne – acting either as God’s agent or as its own source of Meaning and Power – cannot give or take away as it wishes. This is precisely what Jefferson took such pains in the Declaration of Independence to refute: “these truths” are “self-evident” and no power on earth can change that.

And surely now in 2009 we can see just what additional damage and debility is inflicted by the actions of the State, even if the Court in 1995 could smooth its way by claiming that it could not be expected to read the tea leaves and predict the future (except, of course, the future dangerousness of sex offenders, which the Court was perfectly willing to predict, in conjunction with the Legislature).

It has been quite a few years since “public embarrassment” was the ‘only’ harm that would accrue. And that was back in the days when private citizens merely distributed home-made ‘flyers’ around town or the neighborhood.

The Court compliments itself on going even further than the US Constitution: “Where a person’s good name or reputation are at stake because of what the government is doing to that person, we conclude, sufficient constitutional interests are at stake”. And it immediately goes on to amplify that: “That conclusion is particularly strengthened in this case by the nature of the stigmatization involved”, that “classification as a ‘repetitive and compulsive sex offender’ inflicts a greater stigma that that resulting from the conviction for a sex offense”.

(And we recall just how far in the past 15 years – especially with AWASORNA – State and Federal legislation has worked to erase the distinction between ‘sex offender’ and ‘repetitive and compulsive sex offender’.)

So in this matter, the Court will insist on due process.

“Due process is not a fixed concept, however, but a flexible one that depends on the particular circumstances.”

To which I say OK, but the circumstances here include a Time of Mania, and a Mania that the State itself is helping to feed. You can’t as a Court simply close your eyes to what is happening that changes the presumption that everybody – citizens, media, Legislature, law enforcement, bureaucrats and public employees – are simply chugging along ‘normally’, rationally and deliberately and in a normal frame of mind. Just as American courts have always held that in time of war ‘things aren’t quite the same’, so too it should be when the State (or the country!) is in a Time of Mania: to presume that everybody is acting ‘normally’ is to fatally flaw your analysis.

So the Court will require a Notification hearing for Tier Two and Tier Three candidates.

But Registration for anybody convicted. Although even by 1995 - and certainly within a short time thereafter - the public mania has progressed to the point where no distinction is made in the public mind between 'sex offender' and 'repetitive and compulsive sex offender'.

And of course, the AWASORNA of 2006 tries to get around all of that by triggering Registration (in national electronic databases easily accessible and interlocked with all sorts of State and Federal databases) merely on the fact of conviction – or merely having pled to a sex-offense, no matter what a court or a hearing determined.

So, not only in its own reasoning, but as this thing has evolved in the ensuing decade and a half, the Court’s own justifications have been overtaken by subsequent State and Federal legislation that does indeed take RCNLs to ‘their next logical step’, step after step, until we are at the place we are today, with AWASORNA.

I note again that this constant and rapid metastasis of sex-offense law ‘refinements’ – mostly expansions – is itself a vivid warning of mania-law. And this is a mania that has run loose now for 15 years.

And I note again that the Continental legal assumptions upon which this type of preventive-mother-hen law is based are alien to the Framers’ own legal assumptions, and indeed that the Framers specifically constructed the Constitution to prevent such Continental, monarchy-friendly law from taking root in the United States.

And that the dynamics of these laws mimic with alarming precision the dynamics that the thoroughly logical Nazis deployed when they started ‘tagging’ targeted groups in order to make the Reich community more safe and more pure.

So, I think it is reasonable to say that the sex-offense laws, and this preventive law approach itself, are a baaaad idea. And we need to back away from the cliff to which they have brought us. Otherwise the whole country and the whole People are going over a cliff just as surely as the sex-offenders they are trying to push over.

DOE v. PORITZ 8

DOE v. PORITZ 8

We continue with our look at this landmark 1995 New Jersey case. As always, the text is here.

Section VIII is entitled “Administrative Procedure Act”.

Here, Plaintiff Doe “challenges the authority of the Attorney General to promulgate Guidelines for implementation of the registration and notification requirements. Plaintiff asserts that the Attorney General’s Guidelines are rules which must be adopted in conformance with the notice and hearing requirements of the Administrative Procedure Act (the ‘APA’). The APA requires that prior to the adoption of an administrative rule, an agency must provide thirty days notice of its intent to issue the rule, publish a summary and explanation of the rule, and afford ‘all interested persons reasonable opportunity to submit data, views, or arguments, orally or in writing.’”

This is a doozey of the problem Plaintiff sets the Court here. New Jersey had passed a law to prevent bureaucracy from coming up with whacky regulations; one could be forgiven for imagining that if any situation begged to be covered by that law, it’s this one.

But having supported the Legislature in its already-perpetrated effort to stifle any such opportunity for anybody to “submit data, views, or arguments” and actually having to face the huge problems inherent in its new scheme (the Legislature, you recall, skipped the entire Committee process for vetting a Bill and held no Hearings), the Court can’t very well go and let what promised to be a wide and deep opposition to this new-fangled scheme in through the back door of the APA.

The Court had already pooh-poohed the many substantive Amicus Curiae Briefs filed against the scheme in this case, saying that the place for all that was during the legislative process (which, neatly, the Legislature itself had suspended because of the ‘emergency’). The Mad Hatter’s Tea Party meets Catch-22.

The Attorney General, on behalf of the State, asserts that a) the Guidelines for classification and notification do not need to conform to the APA procedural requirements; b) that the Guidelines are not administrative guidelines as defined by the APA; c) that the Guidelines actually fall under the APA’s exemption for ‘the internal management or discipline of any agency’; and that d) the Legislature clearly did not intend that the Guidelines be subject to the APA requirements for notice and hearing.

The Court starts off surprisingly well: “Because of the widespread impact of the Guidelines, not only on the offenders required to register but also on the members of the general public who seek notification, we disagree with the Attorney General’s contention that the Guidelines can be considered internal department communications.”

But now it has to “determine whether the Guidelines otherwise meet the statutory definition of administrative rules”.

Yes, if you’ve been reading the previous Posts then you know where this is going. But for the sake of enlightenment, take a moment to see how the Court pulls it off.

It sets forth 6 factors (that it had devised in a tax case a decade before) that will determine “whether an agency action constitutes rule-making which must conform to the requirements of the Administrative Procedure Act: 1) it is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; 2) it is intended to be applied generally and uniformly to all similarly situated persons; 3) it is designed to operate only in future cases, that is, prospectively; it prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; 5) it reflects and administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule or (ii) it constitutes a material and significant change from a clear, past agency position on the identical subject matter; and 6) it reflects a decision on administrative regulatory policy in the nature of the interpretation of low or general policy.

Not all the factors get equal weight, and not all of them need be met; it’s just a set of factors the Court uses and then says what it’s going to say.

Factors (1), (2), and (3), the Court admits quickly, do indicate that the Attorney General Guidelines as to classifying and registering sex-offenders constitute rule-making, are intended to have wide-coverage, to be applied uniformly and to be applied prospectively. Which is a ray of light that promises a dawn.

But instantly the Court says: “However, the remaining factors point strongly in the other direction, and, in this case, deserve the most weight”. And here we go.

As to the 4th factor – whether the Guidelines actually prescribe a legal standard that is not expressly provided in the enabling legislation (Megan’s Law) – the Court opines that “the Guidelines are to a great extent merely a formalization of the classification requirements explicitly set forth in the statute”. The classification system was in the text of the Law, and – anyway – the Court even went so far as to fix them a bit and bring them even more closely into conformity with the language of the Law. So factor number 4, the Court decides, does not support the assertion that Megan’s Law has to fall within the APA’s requirements.

As to whether the new Guidelines conflict with an agency’s past position on the matter, well – this is all so new that no State agency, including the Attorney General’s Office, has ever had to deal with this before, so obviously factor number 5 doesn’t trigger the APA requirements.

Nor does factor number 6, which triggers review is a State agency is making a radical new interpretation of law or general policy. It’s not the AG’s Office that’s doing that, it’s the Legislature, whose scheme it is and which was written into the text of the Law itself.
“We therefore hold that the Guidelines are not administrative rules which must conform to the requirements of the Administrative Procedure Act.”

The shrewdness of this whole thing becomes clear: get the ‘right’ science from ‘advocacy’ researchers to justify the ‘emergency’; then put together a sweeping new kind of scheme which is based on an alien – Continental European – philosophy of law that the Framers themselves rejected when they constructed the Constitution to support their vision of the American polity*; then allow no Committee phase where members could debate and discuss among themselves (and create a record of their thoughts); and thus hold no Hearings which would permit the presentation of professional testimony and evidence both as to how profoundly alien and how scientifically ungrounded this new scheme really is; then have debate only on the floor where few members would dare stand up publicly against a wave of public mania**; then – could they not have figured this? – let the inevitable court challenges proceed because the State Supreme Court is presided over by a Chief Justice with a demonstrated and flaunted history of being partial to this new and alien philosophy of law.

You could hardly be criticized for wondering if this entire thing wasn’t planned out beforehand. If perhaps it wasn’t a tinder-dry forest simply waiting for a match. Any match that came along.

NOTES

*See the Post immediately preceding this one – “Doe v. Poritz 7” for a discussion of the Continental philosophy of law.

**In the event, not a single member of the New Jersey Legislature voted against the Law.

DOE v. PORITZ 7

DOE v. PORITZ 7

This Post continues our look at this landmark 1995 case. As always, the text of the Opinion is here.

Section VII is entitled “Equal Protection”.

Here Plaintiff Doe lodged the assertion that “he is entitled to be treated as an individual and not classified with other sex offenders who, unlike Plaintiff, have not successfully completed treatment at Avenel [the New Jersey sex-offense rehabilitation facility]”. Doe had completed that treatment regimen (whatever it may have consisted of, given the state of ‘sex offense science and therapy’) and had, as we know, taken up his life again, and with notable success, in the general civic community.

The Court thinks not. “Equal protection does not preclude the use of classifications, but requires only that those classifications not be arbitrary”. It cites a New Jersey case from 1994 (again, within the mania timeframe) that the US Supreme Court had refused to review.

You can see here how the ‘science’ now justifies the legality: as long as the science is well-grounded (and presumably accurate) then it’s Constitutional to apply the classifications devised by the Megan’s Law scheme.

But of course, when you look at this case, as we now can, both from the point of view of 1995 and also from the perspective of 2009, it becomes clear that the ‘science’ was not credible, and certainly not accurate, then or now.

The Court quotes (it appears – the text itself is vague as to quotation marks) the 1994 case, State v. Mortimer: “Where individuals in the group affected by the law have distinguishing characteristics relevant to interests [that] the State has the authority to implement, the courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued”.

We note again that the cited case and stems from 1994, right in the middle of the initial mania phase.

We also recall that the Chief Justice of the New Jersey Supreme Court was and still is (in 1995) Chief Justice Robert Wilenz, publicly lauded by ‘preventive mother-hen law’ advocates as ‘reliable’ and ‘friendly’ to their cause. And that fact would have been known to all the lower courts and judges in the State.

And that ‘cause’ is precisely the introduction of this European and Continental approach to law into the United States, whose Founders precisely refused that approach when framing the Constitution in 1787.

A historically minded reader might recall the ‘justice’ of the French Revolutionary era. And a literary-minded reader might well recall the ‘yellow passport’ imposed upon Jean Valjean in Victor Hugo’s “Les Miserables”. The ‘yellow passport’ – required for internal travel – had to be carried by all members of the ‘convict’ class for life after they had been released from prison, and had to be presented to the local police whenever such a second-class citizen entered a town or were seeking employment or simply when required to produce ‘his papers’ by the police; one also might recall the character of Inspector Javert, who followed Valjean and sought to expose him as a ‘convict’ and thus not a ‘decent’ citizen.

Second, we can now note that the “characteristics” to which the Court refers in justifying itself and the Megan’s Law are precisely those ascribed by the sex-offender ‘science’: an incorrigible and uncontrollable propensity to commit sex-offenses, “repetitive and compulsive”. Which is now known to be, and was described by many professionals back there in 1995 as being, wildly inaccurate.

But on the basis of this ‘science’ the Court can claim that since the Legislature has passed a scientifically well-grounded law, then it’s not the Court’s right to interfere with the Legislature’s careful laws. You see again how so much hinges on the ‘science’. As long as that ‘science’ demonstrates that ‘sex offenders’ pose a grave and uncontrollable threat, then the Court can say that it must respect whatever the Legislature has decided to do about it in fulfillment of its authority and responsibility to “protect the public”.

It seems to me that in hastily passing a law that had not gone through any Committee work or Hearings, a law which few legislators read and most likely few legislators understood, and that was passed so quickly – hastily even , then the Legislature had not acted responsibly at all.

The Court immediately goes on: “In such cases, the Equal Protection Clause requires only a rational means to serve a legitimate end.”

But this is a shell-game. The “legitimate end” – protecting the public – is only “rationally” connected to the Megan’s Law scheme because the ‘science’ insists that the ‘sex offender’ class is incorrigible and uncontrollable because of their “compulsion” to reoffend. The sex-offender is going to get pushed over the cliff in his car by the government while the Court is content that the government has complied with the law by ensuring that his seatbelt is legally fastened.

And the Court, by agreeing to the Legislature’s Findings of Fact (which could hardly have been carefully considered, given the hasty legislative treatment that the Law received), has already given away the store. All it’s doing here is building a structure of legal justification on a foundation that is hugely and fatally flawed, insofar as the sex-offender ‘science’ is grossly inaccurate.

And third, we could also point out that – even as law enforcement types and researchers are now saying – the entire scheme really does little to protect the public, and indeed goes no small way toward complicating public protection. So in that sense too, then, the law and the scheme are not really ‘rational’ at all. Even if the Legislature does have a duty to protect the public (which within Constitutional parameters it does), and even if the sex-offender ‘science’ of uncontrollable repetitive compulsion and incorrigibility were true (which it most certainly is not), the scheme concocted in the Law is still not a very effective means to achieve the purpose – and indeed interferes with the purpose in numerous ways.

Of course, it’s also possible – we’ve seen it in other laws passed since 1995 – that the Legislature, or certainly the preventive-mother hen law advocates, knew that this was only a ‘first step’, and that what would really be needed – as the Nazis realized straightaway – was to ‘tag’ each individual with some clearly visible marking. But who could say that then in 1995?

Or even now?

Instead, building upon the technology of the computer and internet age, laws have been passed (and judicially approved) that seek to ‘tag’ the offender through the publicly-accessible Registries even more than through the clunky 1995 method of door-to-door Notification. And at this point, as we now know, you can subscribe to an I-Phone app that will advise you constantly. And of course, with interlocking databases, then once you are on a Registry, you are indeed issued a ‘yellow passport’: you cannot move, you cannot get or renew a drivers license, you might not even be able to get on a plane – certainly to a foreign country – without your name being flagged, with whatever consequences might then ensue.

And given the potential authority of volunteer sex-offender-watch groups to scroll and troll in the NCIC, it is easily conceivable that local realtors might, for example, ask their local volunteer group to check out the potential buyer of a home. While this is not something the police can legally do, the volunteer groups might well be able to, since they are not so bound by regulations and laws that boundary the official police authority. Can you see where this can go? And where certain groups probably want this thing to go?*

The Court continues a bit further on: “This Court, moreover, has specifically held that creating a separate classification for repetitive-compulsive sex offenders is not arbitrary and has a rational basis”. But are all sex-offenders reliably “repetitive-compulsive”? Even first-time offenders are required to Register. And even single-conviction offenders who committed their crime years before, had paid their debt, and were re-integrated into the community.

And again: “The Legislature has determined that convicted sex-offenders represent a risk to the public safety and that knowledge of their identities and whereabouts is necessary for protection of the public. Since the registration and notification requirements are rationally related to that legitimate state interest, the requirements of equal protection under the Fourteenth Amendment are satisfied”.

But again, the Legislature’s initial “determination” is gravely, probably fatally, flawed. To focus on its easily-admitted responsibility for public safety in order to justify the scheme is dodging the main issue. And of course there remains the question: Granted that a legislature is responsible for the public safety, just how far may it Constitutionally go in ensuring the public safety?

This is the kicker. In Continental law, always weighted toward the government from the days of monarchy, the rights of the ‘individual’ could not prevail over the rights of the Crown. Nowadays, that same theory is imported over here, merely substituting the authority of the ‘community’ or ‘the public’ for that of the Crown and the monarch. But that is precisely where the Framers were most “American”: they insisted that the individual Citizen had rights that neither the government nor the ‘public’ could lightly override.

And if this almost completely unconsidered and incompletely examined Law, based on such inaccurate ‘knowledge’, proposing to introduce so ‘alien’ a scheme as Registration and Notification – which carries so profoundly abhorrent a historical record from the recent past and more distant past … if this Law does not lightly override the most fundamental Constitutional guarantees, then nothing does.

NOTE

*I acknowledge here that many police and criminal-justice professionals at this point are now voicing significant doubts about the operations and expansion of the whole SORN scheme and I hope that they can convince even more of their colleagues and peers. But I also note that there seem to be many civilian groups that seem to be seeking the equivalent of police authority to conduct their own ‘monitoring’ of Registrants; I ask you to imagine where all of this might lead if it is not stopped. And by ‘stopping’ it I mean carefully and honestly examining the scheme’s fatally flawed scientific basis, upon which its legal justification precariously rests. And in this regard, I invite your attention to the prestigious government-friendly RAND Corporation’s recent embrace of one such small and local volunteer civilian group (see my Post “Violent Offender Laws” of August 13, 2009, on this site).

And I would say here, expanding on what I said in my very first Post on this site, that we are present at the creation of a very significant – and I would say dangerous – change in America’s fundamental philosophy of law and the limits (or lack of them) to government police authority. It is not being presented as such by its supporters and advocates, but it most certainly is a major shift in the foundational assumptions of the American approach to the scope of government authority.

And if the Constitution, a carefully constructed mechanism, was based on certain assumptions as a large building is built on carefully laid out foundations, then to shift those foundations – especially to greatly shift them – endangers the entire structure that is built upon them. And that structure here is the Constitution and the entire American ‘way’, so to speak.

And I would also add that with this scheme of 1994 we see the first major insinuation of a Continental, government-and-monarchy weighted legal vision. Since then, in other areas, we have seen the government begin to act as a monarch. Since 9-11, we have seen the Patriot Acts, the waging of wars based on the most inaccurate information and beyond the scope authorized by the Congress, the conduct of telecommunications monitoring by the government and even of torture as an instrument of policy … in short, the government has started acting somewhat like a divine-right monarch (and perhaps a not particularly competent one).

This is the fierce urgency of now, if I may borrow a phrase.

DOE v. PORITZ 6

DOE v. PORITZ 6

This is the 6th in the series dealing with the 15 Sections of this landmark 1995 case. As always, the text of the case is here.

Section VI of the Opinion is entitled “Privacy”.

The Court admits straightaway: “Grounded in the Fourteenth Amendment’s concept of personal liberty, the right of privacy safeguards at least two different kinds of interests: ‘the individual interest in avoiding disclosure of personal matters’ and ‘the interests in independence in making certain kinds of decisions’”, which are categorized respectively as “confidentiality” interests and “autonomy” interests. You have a right not to have your private life blared out all over the place and you have the right to make certain decisions about the shape of your life.

Now in my immediately previous Post, in the Notes, I discussed Legal Idealism and Legal Positivism. The Framers were Idealists: they believed that human law – made by a government – still had to conform to a higher Law, an Ideal law.

So in this matter of the Constitution and Privacy, the Framers developed guarantees precisely conformed to the needs of the human being: given that all human beings were imperfect, yet possessed of an utter and inviolable dignity, then you were entitled to and needed a certain Confidentiality. After all, nobody’s perfect and if everybody was constantly prompted to harp on everybody else’s weaknesses and failures, then nobody would want to trust or build relationships with anybody and true civic community would wither away quickly.

Worse, given the way humans predictably function in groups when they aren’t operating at their highest levels, a majority of folks might band together and if they got the chance they would go after the weaknesses of some individual or some smaller group of people – and call it a good day’s work. And the Framers saw clearly that if you let that sort of dynamic get started and run unchecked, then your civil society would fracture itself into scads of pieces and, again, true civic community would collapse like a great wooden house with a really bad termite infestation.

And, the Framers’ Idealism would demand, as a human being each citizen was entitled to a certain Autonomy in order to achieve the fullness of that natural dignity which resides in each and all human beings. This wasn’t a ‘gift’ on the Framers’ part, nor did they see the American government – or any government – as being able to make such a ‘gift’. Rather, the law they framed was a recognition of the human dignity that was already there in the human beings who would be the new America’s citizens.

The Legal Positivists – and this is the thinking that since the very early 1990s has taken over ‘elites’, especially in law schools and in jurisprudential and legislative circles – would say that it is the government that makes rights real by giving them as a gift to the citizens. And thus the government can say when it wishes to take the gift back or when the citizen can be said to have lost the gift through his/her actions. (To the Framers, Idealists, a citizen cannot ever be deprived of or even get rid of his/her human dignity – it is a natural characteristic of human beings.)

You can quickly see here how Legal Positivism is on a lethal collision course with the Framers, and in that sense can even be described as anti-American or anti-Constitutional.

You can also see where what might seem to be a certain ‘softness’ on punishment has a sound basis in the founding vision of the Framers, of the Constitution, and of the country: no government has the right to interfere with essential human dignity and the rights that flow from it. Yes, a government has to make laws to punish those of its citizens who in their weakness do not respect the dignity of other citizens, but at no time does a government have the right to withdraw from any human being and citizen his/her human dignity or the rights that flow from it.

So the Constitution makes it somewhat difficult for the government to go into the prosecution and punishment business: the Framers’ fear was that a) every citizen sooner or later , in one way or another, is liable to prosecution and punishment for something they have done, and b) the government itself is made up of human beings who are notoriously prone to human weaknesses and could easily get carried away. And the Framers didn’t want civic society and the country to collapse in a fractured frenzy of prosecution and punishment.*

Of course, the majority of the Poritz court subscribes precisely to the implication that ‘the country’ and the ‘citizenry’ really means the ‘good’ people (the Nazi would have called them the ‘pure’ people) with the implication that the designated sex-offenders are some sort of weird, monstrous alien infestation – like a 1950s science-fiction movie about space invaders. Exactly what the Framers were trying to prevent, since in the matter of human goodness and evil the Framers knew that nobody is ‘pure’ and - with the Gospels, nicely enough – they would “call no man good”: everybody had it in him/her to screw things up, and in the course of a lifetime no doubt would.

And in the Poritz view of things, the ‘good’ and ‘pure’ are thus victims who may yet be empowered to ‘fight back’ if the court simply gives them the tools – and helpfully breaks down some of those obstructive and ‘quaint’ walls that the Framers constructed precisely to prevent such mass frenzies of ‘self-defense’ against what I would call the ‘convenient monster’ or what the poet Cavafy called the ‘necessary barbarian’.

So what I see here is not the Poritz court unleashing the righteous guard dogs of the citizenry, but rather I see the Poritz court breaking down the watertight doors that hold back the flood of irrational and delusionally ‘righteous’ violence that all populations inherently harbor; deep in the heart of every majority – as the Framers saw – there dwells a mob and a mob-scene; the mature and constructive government takes care not to pander to those potentials.

Rather, the mature government functions like the baffles in a big oil tanker truck: within the tank there are secondary walls every few feet. Their purpose is to prevent any dynamic of a ‘wave’ building up and running freely back and forth along the entire length of the tank as the truck moves along, agitating all those thousands of gallons of liquid until such a ‘wave’ inside the tank is strong enough to tip the whole truck over. Those little walls are the ‘baffles’ that prevent a flood and actually a mini-tsunami inside the tank.

But what we are seeing in the early and mid 1990s is precisely a government removing the baffles in the huge tank of American society. Don’t forget – and this surely should have been an indicator of ‘mania’ – this type of law was passed by every State and by the Congress, within the space of just a year or two. Indeed, this Megan’s Law in New Jersey – subject of the Poritz case – was passed almost overnight; there was no committee work, no hearings, no deliberation; it went straight to the floor, was passed almost unanimously, and that was that.**

There are only two instances when any scheme of legislation might pass so universally and quickly. First, when a marvelous discovery is indisputably made. For example, somebody discovers that water can be turned into gasoline by mixing it with certain vegetables and spices under a full moon, and all citizens have to be immediately restrained from turning the country into a massive and unregulated fuel dump with fresh-brewed gasoline lying around in plastic jugs in the living room.

Second, when there is a monstrous public mania that’s gotten started, a tsunami of emotion that threatens to flood the country.

But in this second situation, the government’s role is to be a ‘baffle’ to prevent the amplification of dangerous public tendencies. And – in the long run – to prevent the weakening of the government’s authority and legitimacy which will happen when it becomes clear that the government has caved in to the flood of mania and has even helped it by giving it legal status and stature.

So where I’m going with this is that the government’s behavior in these sex-offender laws reminds me of a passenger ship captain deciding to solve a suspected rat infestation by opening up the sea-cocks and literally flooding the ship. If you just stop to think about it for a minute, the baaaadness of that idea should become apparent. If you realize that you are on a ship at sea. Which – you imagine – a captain would remember.

And it should go without saying that no American government or Court should go along with the idea of officially declaring any citizen or bunch of citizens to be nothing more than the equivalent of “rats”. A human being is never reducible to a "rat" except in bar-room blabber. Certainly not in matters of profound civic and indeed Constitutional import.

So too with Autonomy: an individual human being is possessed of inherent dignity which the government must recognize and respect as coming from an Ideal Law beyond the power of any this-worldly government to take away (Lincoln is thinking like this when in the Gettysburg Address he says “beyond our poor power to add or detract”). Without that Autonomy, the dignity is functionally useless. You need the freedom to shape your life as best you can, according to your individual and unique genius, interacting – of course – with the realities of ‘the world’ and the equally unique rights and potentials of other human beings.

The principle of Autonomy prevents the government from merely paying lip-service to your right to Privacy. If you cannot freely go forth into your day and your world, with – as the saying goes – a ‘fresh start’, then you cannot build that web of Love and Work, that web of social relations, that most people would call a life.

If the government is going to actively interfere with those efforts – those rights – then it’s going to be overstepping its bounds. And the Framers had seen enough governments (they studied a lot of History in those days, don’t forget) to know that, just like a too-frisky and large horse, you never gave a government too much free rein; it would most likely go galloping along the street or running off into the fields.

The Court bases its privacy thoughts on the simple fact that “New Jersey specifically guarantees public access to all court records, including criminal records” (which it started doing, curiously, in the mid-1980s). The Court goes on: “In most New Jersey counties it is possible to go to the courthouse and request an individual’s criminal record within that vicinage, providing only the individual’s name and address.” And that now (1995) in New Jersey “any person may obtain a complete criminal history from the State Police by providing a name and either date of birth or social security number and paying a fifteen-dollar fee” – this law, MOST interestingly, was passed in 1994.***

But of course, it’s one thing to have public records about an individual’s criminal history available down at the courthouse. But given the psychology of mobs and the weaknesses of human nature, it’s verrrry much another thing to have it a click away on the internet. This is barely a short step removed from the type of mouth-to-mouth chatter that – in the manner of tuning-forks stimulating each other in a closed room – sets off a mania, and perhaps a mob, reaction. In this matter, technology indeed changes the substance of the matter, and is not simply an harmless ‘convenience’.

And the Court then leads into another box canyon: “Likewise, requiring the disclosure of other information, such as [the sex offender’s] age and legal residence or a description of his vehicle, does not infringe on any expectation of privacy.” To which I say: it most certainly does when that admittedly public information is directly connected to the public declaration by government authority that the individual is a monstrous and ongoing threat to the public and to children.

This is the hugely relevant fact: it’s not that the State is making ‘information’ public that is available anyway and that is given by lots of folks to get drivers licenses and certifications to practice medicine or barbering. It’s that the State has connected this information to such a terribly negative (and quite probably untrue) assertion, an assertion of monstrousness that cannot but have the effect of ruining not only ‘privacy’ but ‘reputation’ and any possibility of conducting a decent life in the community – even if, granting that a person is legitimately guilty of a sex-offense, any possibility of rehabilitation and getting on with his life.

This, I say again, is the gravamen here. And it is lethally significant.

So in this matter I say that the Court is hugely wrong when it then asserts that “Lastly, an individual cannot expect to have a constitutionally protected privacy interest in matters that are exposed to public view”. The internet has made “public view” something else altogether different from what it was. In the pre-internet days a person would have to have the motivation and deliberation to go to a courthouse, or at least pay money and write to a Police agency and wait for the mail. But in the internet age – which was clear even in 1995, and is certainly clear by 2000 and all subsequent years of intensifying sex-offender legislation – anybody, on a whim, in any state of mind, can simply troll and scroll.

Nor is it enough that the Court tries then to put a ‘limit’ on things by piously asserting that “We believe that disclosure of the [sex offender’s] home address does implicate privacy interests.” Nope. The privacy interests were implicated, and Constitutional protections triggered, when the State chose to connect the information – however ‘public’ it already may be – with the State-authorized Declaration of Threatening Monstrousness, which is precisely what the State has done.

And again, it is almost disingenuous, and worse, when the Court admits that the sex-offender “may be exposed to uninvited harassment”. His entire capacity and potential for conducting a civic and personal life may be ruined. And if the Court hides behind a narrow definition of ‘harassment’ – if the Court defines it merely as other folks going up and getting in the sex-offender’s face, as it were – then the Court is truly minimizing what is in effect the government pushing the sex-offender off a cliff.

Because it is not so much those possible acts of overt harassment. It is the utterly forseeable and most certainly probable actions of folks whereby pressure is exerted, not on the sex-offender, but on his family, his employer or potential employers, his church, and all the panoply of civic venues and groupings, to effectively kill him as a functioning member of civil society. If this isn’t unconstitutional, then nothing is unconstitutional.

And this is true even in 1995. If we then look at how these mania-laws have intensified since then, year by year, into the byzantine web of almost-gratuitous oppressions that they have now become, then the Court’s flawed reasoning becomes clear. And it is this case, so early on, that helped to provide the legal justification for the whole thing all those years ago.

But of course, the Court goes on to ‘reason’, since this is such an ‘emergency’ because sex-offenders are both so compulsively prone to such monstrousness and so incorrigible and so clever in masking themselves in the appearances of decency, then “the state interest in public disclosure substantially outweighs [the sex offender’s] interest in privacy”. So baaad ‘science’ leads to baaad legislation, and the Court will both accept that ‘science’ and do whatever it takes to justify the legislation. Oy.

Nor is it in any way sufficient for the Court to say that “the degree and scope of the disclosure is carefully calibrated to the need for public disclosure: the risk of reoffense”. Because that very ‘risk’ is non-existent, based as we can now see that it is, on verrrrry baaaad ‘research’ and ‘science’.

But the fact that its fifteen years later doesn’t get the Poritz court off the hook. Because the calibration can hardly be called “careful”. In the first place, it is based on a grossly not-careful acceptance of the flawed research – against which numerous competent professionals filed Amicus Briefs pointing out that very thing (which would have been discovered earlier if the Legislature had held any Hearings, which it (slyly?) did not).

And in the second place, given the huge variation in genuine sex-offenders, a simplistic Low-Medium-High scale is almost juvenile in its inadequacy.

And in the third place, it is, given the state of ‘sex offense science’ back in 1995 (which professionals at the time pointed out) a highly subjective process – this assigning of a Low-Medium-High or Tier 1, II, or III classification. Classification will depend almost completely and totally on what the (prosecutor friendly) classifier decides it will be or ‘feels’ it should be.

And in the fourth place, the classification will be made by the prosecutors – with perhaps such help from ‘reliable’ experts as the prosecutors might be able to drum up. Although it is also allowed that either the prosecutors can dispense with any individual classification Hearing or that the prosecutors themselves may designate anybody they choose whom any court in the State will have to accept as an ‘expert’.

To which – in the accents of Linus confronted with yet another of Lucy’s whacky but pretentious schemes – one can only intone “Good Grief”.

NOTES

*In that regard, it is hugely and ominously significant that since the advent of ‘preventive, mother-hen’ law – based in Legal Positivism – this country now imprisons more of its citizens than any other nation in the world (including Communist China!). And that about 1 in every 160 males is now on a sex-offender registry. This doesn’t count men on the domestic-violence registries (some of which keep you on even if a judge dismisses the allegations against you and vacates the Restraining Order). Nor does this count the number of men who would be enmeshed in the new, pending AWASORNA net – which might double or triple the number of ‘sex offenders’ overnight if a State accepts it.

**We would see this same dynamic at work in the Patriot Act of 2001, 5 years after Poritz. And in far too many other significant legislation subsequent to that; it appears to have become somewhat ‘normalized’ on Capitol Hill – and this cannot be a good thing at all for the country.

***We can see why some volunteer sex-offender organizations now (2009) want direct access to the NCIC Federal criminal database. New Jersey apparently opened the door to this sort of thing in the mid- 1990s and now some of the organizations might simply feel like they want to eliminate the middleman as it were, by not having to go through an actual Police agency and pay for each individual look-up. Instead, they’d just like to troll and scroll and see what they might find. See my Post “S. 1146: The Camel’s Nose Under the Tent” of June 23, 2009, on this site.

ADDENDUM

I’d like to mention something that I’ll discuss at length in one of the upcoming Posts. It requires a little history, but it’s worth it, I think.

At the end of World War 2, Harry Truman had to think about how to prosecute the captured Nazis. The legal problems were significant: If you were going to have to take each individual Nazi and treat him as a defendant in the ordinary way, then you were going to have to prove the guilt or innocence of each of them, with all the possibilities for acquittal or not-guilty findings that stem from any normal trial.

The solution was devised by a War Department lawyer named Murray Bernays: if, he said, you consider the Nazi Party and its agenda as one giant criminal conspiracy, then by that very fact everybody who was a member of the Nazi Party was automatically guilty of at least that crime – and ‘membership’ would be easy to prove, since all the prosecution had to do was to produce the actual Party membership records. Simple ‘membership’ was thus the criminal act, and that same simple membership would constitute irrefutable proof of guilt, and all of that with a minimum of prosecutorial effort and government expense.

In that way, large numbers of Nazis might be successfully prosecuted and ‘processed’ with minimum effort and at minimum expense, in a short period of time, and it would be done ‘efficiently’ – which is to say that you could pretty much guarantee a conviction.
Such are the legal maneuverings that occur in great affairs.

But I can’t help but noticing that very much the same strategy seems to underlie the sex-offense laws: how to ‘reliably’ ‘process’ large numbers or persons at minimum expense in a short amount of time? By criminalizing simple ‘membership’ in a group.

What group? The group of ‘sex offenders’.

Of course, the problem here is that in the American prosecution of the Nazis, it was the Nazis themselves who invented their Party, came together and willingly joined it and carried out its agenda. In the sex-offense matters, however, we have a disparate group of individuals – not at all an organized group of deliberate and voluntary members – and so the government has had to pretty much ‘invent’ the equivalent of the Party.

It has done this not by creating a political entity, but a psychological entity: the entire group of persons psychologically and legally described as ‘sex offenders’.

The focus, being psychological, is not on the voluntary and deliberate participation in a political agenda, but rather in the compulsive and uncontrollable characteristic of their ‘diagnosis’. Their membership is not in a political group but in a psychological group.

But again, it is not voluntary and conscious and deliberate, and the ‘group’ was actually constructed by the government, on the basis of ‘science’ and ‘research’ which we now know to be grossly inaccurate.

But the idea of simple ‘membership’ in a target group being enough to constitute a crime has a substantial history – and not a pleasant one. Usually it has been a group defined by its politics, but now it is a group defined by its psychology. And that difference is disturbing enough: because where you willingly and deliberately and consciously enter a political group and take action to support its agenda, this is not at all the case with a psychological characteristic.

Especially when the psychology underlying the characteristic is so weak and inaccurate.

And especially when it is the government police power and not the individual which determines an individual’s membership in the group.

You wind up pretty much with the equivalent of the government itself constructing the concept of the Nazi Party, then assigning you membership in it, and then prosecuting you because membership in that Party automatically constitutes a crime.

There is a legal – but not actually officially psychiatric – group called ‘sex offenders’ that the government has chosen to consider as real. It will assign you as a member of this group if you are convicted of certain crimes of a sexual nature – although those certain types of crimes exist along a broad spectrum of severity and causation and operational dynamics and rehabilitative potential. Simple membership in the group constitutes the ‘crime’ of being monstrous and incorrigible, and on that basis you are condemned to the lethal civic consequences of being officially declared a ‘sex offender’, that State-sponsored label that is almost guaranteed to destroy any possibility for a normal or even a minimal life in society.

I’m still working on this, but the similarity seems striking.

And if this is the game-plan that was adopted against sex-offenders … then once again it is an indication that those publicly and officially caught up in the SO laws are considered by the government authority to be legitimate candidates for a legal strategy that was last used against captured Nazis. And for all practical purposes the government authority considers increasingly large numbers of its (male) citizens to be no better than captured Nazis.

This is not a wise civic policy. Nor a wise Constitutional policy. Nor is it at all American in any traditional sense of the word.

And we are rapidly becoming a "house divided".

And we all know what happens then.

DOE v. PORITZ 5

We continue with our look at this landmark 1995 Opinion. The text of it is here.

Section V is entitled “Challenges Based on the Claim that the Laws Constitute Punishment”.

The Court reviews some of the prior cases (almost all from the very early 1990s) that decided similar legal challenges – most of those cases deciding that in the matter of whether the laws’ requirements constitute ‘punishment’ the laws are Constitutional, although some cases decide against Constitutionality.

The Court will go the ‘precedent’ route, for which the Latin term is stare decisis – roughly: the matter having already been decided, let the decision stand. “Our discussion and determination will rely almost exclusively on federal cases”; there is not yet (in 1995) much New Jersey case law on the matters at bar. Not much case law, because these Registration and Community Notification Laws (RCNLs) are something rather new to American as well as State jurisprudence, reflecting the early-1990s blooming of the ‘ethic of care’ rather than ‘ethic of justice’ in the law schools and among jurists, and all of that ‘preventive state’ legislation to which the mother-hen vision of law inevitably leads.*

“Our review of the law leads to the following conclusions: a statute that can fairly be characterized as remedial, both in its purpose and implementing provisions, does not constitute punishment even though its remedial provisions have some inevitable deterrent impact, and even though it may indirectly and adversely affect, potentially severely, some of those subject to its provisions. Such a law does not become punitive simply because its impact, in part, may be punitive unless the only explanation for that impact is a punitive purpose: an intent to punish.”

OK, now.

First, let me recall a point made in prior Poritz Posts, but also in the two Posts immediately preceding this one: An application of this exact legal analysis to Nazi ‘community purification’ laws of the 1930s would have a hard time saying why such laws were evil.

The Nazis, we recall: a) claimed the benevolent and legitimate government purposes of seeking to protect and to purify the German people and the community of the Volk; b) they therefore targeted for ‘community awareness’ all manner of undesirables – not undesirable behavior, but undesirable ‘classes’ of persons, because these classes were assumed to be incorrigible in the particular version of ‘impurity’ which their ‘offense class’ represented; c) it was therefore only for the most benevolent and legitimate government purposes that these individuals and classes be ‘tagged’ by the mandatory system of wearing colored-stars (only the Jews wore yellow stars; there were different colors of star for different targeted groups and classes of offensiveness); d) registering these persons and classes with the police was simply the only logical method of carrying out the benevolent and legitimate aims of the government to protect its people.

Now there is an argument to be made against my point here. Some official activities of the German government of 1933-1945 were inherently evil because they were ‘Nazi’. But others, such as assuring that municipal water supplies were pure and that the roads and bridges were kept in good repair, were simply the tasks that any government has to perform.

To which I would reply: OK, then. And does the colored-star ‘tagging’ fall into the first or the second of these types of official activity? Are we here in the United States now to embrace government ‘tagging’ as just another thang, like keeping the bridges in good repair or making barbers and doctors and motor-vehicle operators get officially and publicly approved before they start doing their thing? Because that surely is where ‘preventive law’ is taking us all, and the Court here is twisting itself into a pretzel to convince us not only that it’s a good thing but that it’s just a thang.

Second, the Court here continues its sly strategy of minimizing the impact upon those caught up in the RCNL web. There is “some inevitable deterrent impact” – the impact is “inevitable” because this is precisely where ‘preventive’ or ‘mother hen’ law has to lead. That impact is “deterrent” – what it is trying to get around is admitting that these laws are “inevitably” ‘punitive’, which they are and which the Court realizes will be an admission fatal to its entire effort to approve the RCNLs and by implication the entire (and highly novel and questionable) ‘preventive-mother hen’ approach to law.

It minimizes through some amount of abstraction, speaking of “indirectly and adversely affect” and through the use of the subjunctive mood: RCNLs may adversely affect those caught up in the web – but as has been demonstrated, they most certainly always do adversely affect their targets, and I would say that they have to by the very nature of their stated purpose. The Court has to avoid any but the abstract subjunctive mood here, because to say candidly that the laws most certainly and logically will “adversely affect” their targets would, again, be to make a fatal admission. If you are tagging targeted individuals or classes, then it won’t work unless others know that they are tagged – that’s the whole idea.

Nor is the Court concerned, it says, that some of these ‘adverse’ effects will be “potentially severe”. Potentially? Try: most certainly. And “severe” is a little abstract for describing the wreck of any possibility of maintaining employment and relationships, or of your family doing so – including your kids.

Nor was any of this monstrous wrack of consequences only revealed ‘over time’ such that the Court here in 1995 can be forgiven for not having a crystal ball. The Court is so ‘aware’, the possibilities and probabilities so clear even then, that the Court cannot avoid the use of the word “severe”.

But, as we have seen and will see again in this case, the Court slyly reduces the ‘certainty’ of severely adverse consequences by purring loudly its belief that the citizens and the media and the police wouldn’t get carried away. You can tell a group of humans that there are incorrigible threatening strange monsters among them, seeking to brutalize their children, force the said ‘monsters’ to be tagged, and yet not worry that things might get out of hand. This isn’t a simply an optimistic take on human nature and the dynamics of human groups; this is a willful ignoring (not ‘ignorance’) of the historical record of the species.

But of course, the ‘monsters’ are expendable: their lives are – to use a phrase that would be so clearly put by Madeleine Albright a few years later talking about the probable death of half a million Iraqi children through sanctions and invasion – “acceptable losses” when you consider the prospect of marvelous benefits that such policies are guaranteed to bring about. Just “collateral damage” in the professional government argot.

In order to serve the voracious need of any government police power for sustained and continually enhanced power – mother-hen law must have threats to the ‘chicks’ which the mother-hen can then be seen to instantly and caringly squash.

So in the mother-hen vision, there is no unified Citizenry; there are ‘chicks’ (no pun intended) and ‘threats’. The Citizens are simultaneously divided and then reduced hugely in stature: either they are merely passive victims or they are nothing but incorrigible perps.

And again, I note that the characteristic dynamics in the matter of the ‘eternal sex-offender’ mimic precisely the Nazi dynamics deployed against – with all respect to that beleaguered folk – ‘the eternal Jew’.

This is the true nature and origin of mother-hen law and the ‘preventive state’. This isn’t where it may take us if it isn’t properly implemented. This is where it has to take us in order to ensure its own survival and success.

Is this what we want for America? For our society and our culture? I am not asking this rhetorically or dramatically – this is a serious question for all Americans to consider. And that is the fierce urgency of now. And it was a fiercely urgent question then in 1995, but the Court was doing its best to mask the question, soften it, cloak it in the sheep’s-clothing of ‘benevolent and legitimate government objectives’.

And the mania – in the devious but inevitable dynamics of large public mania – feeds off precisely the deep public unease, repressed, not with the targeted class and its threat, but rather with the dark and primal awareness that all ‘pure’ citizens are now participating in a fundamentally noxious public policy, supporting it even by their silence. The German people learned all that the hard way – when it was too late.

That example was staring the Court in the face. To use an image from contemporary film, the Court is responding to Voldemort’s return just as did the Ministry of Magic: by denying it. But too, worse than that: the Court is trying to make Voldemort’s return look like a reely reely good idea.

God save the United States indeed.

Nor is it in any way sufficient to say “Such a law does not become punitive simply because its impact, in part, may be punitive unless the only explanation for that impact is a punitive purpose: an intent to punish.” Nope. The Nazi attempt was not to punish – it was to ‘protect and purify”. And look then at what happened. An action and a policy are not redeemed merely by their ‘good intention’. (Can you say Iraq War?)

The Court admits that there are “towering constitutional provisions” against this sort of thing, and indeed “of great importance to individual dignity, freedom and liberty”. But the underlying assumptions of mother-hen and preventive law are hell-and-gone from that; they are Volkisch: the rights of the individual, and the individual him/herself, are not only secondary to the ‘rights’ of the collective; rather, those individual rights are for all practical purposes non-existent. The ‘rights’ of the collective are all.**

This is not ‘new’ thinking. This is very old thinking – so old that it was the Framers who saw that it was noxious, toxic, and lethal to the vision of America for the protection and flourishing of which they put together a Constitution based most seriously on “individual dignity, freedom and liberty”. What we are dealing with here in these RCNLs and sex-offender law is nothing less than a profound threat to the entire Constitutional vision of what America and Americans essentially are. And that threat is itself an ancient enemy of genuine democracy.

And the fact that these RCNLs had to be implemented only upon the surge-wave of a deceptively fabricated national public mania is actually a back-handed compliment to the strength of the genuine vision of the Framers. And it shades, I would say, into a profound treachery perpetrated upon the American Vision as well as on the American people.

So then I cannot sigh with relief when the Court immediately asserts: “But while the role of these constitutional provisions as protectors of individual rights must always be fully enforced, care should be exercised not to convert them into obstacles that prevent the enactment of honestly-motivated remedial legislation”.

“Care”? The acceptance – in the teeth of deep and wide professional and general knowledge to the contrary – of ‘science’ that ‘proves’ the monstrousness and permanence and omnipresence of a ‘threat’ that leads directly to the legal construction of a target ‘class’ of individual citizens who must be subjected to the same dynamics last and most famously deployed by Nazi legislation and jurisprudence? This is “care”?

Nor can you say that ‘honest motivation’ is enough to make a law constitutionally acceptable or even morally passable.

Nor, come to think of it, can I accept that anyone holding high elective or judicial office can make such a preposterous set of mistaken Findings of Fact “honestly”. Are they then all so grievously ignorant and unable to think, deliberate, and analyze? I think, contrary to the Court, that in the light of the preposterousness of the Findings of Fact, that no protestations of honestly-motivated benevolence on the part of the Legislature can be accepted at face-value.

And even if we grant that the Legislature is indeed honest, then I think it is so gravely incompetent in its analysis that the incompetence itself constitutes ground for legal action.

After all, even if a bank-robber holds up a bank with an automatic assault weapon, and claims that s/he did it so as to distribute the money to the poor, and that s/he didn’t realize that the actions involved in effecting the robbery might have really adverse consequences … do we simply say Oh, OK then – carry on … ?

This raises, of course, the question of just what the Judicial Branch can do when the Legislative Branch goes kind of dangerously gaga.

Ideally, the electorate would step in and remove the offending legislators. But of course in a period of public mania, the electorate (or a majority of it, anyway) may indeed be as gaga as the legislators.

And in this post-Nazi era, public opinion in a large and complex society can be so expertly and effectively manipulated that it’s not so hard now to create such a public mania – if enough dedicated and even ‘well-intentioned’ folks decide that they want to do it. With enough money and political support and media cooperation, and with some ‘reliable’ ‘science’ you can get a lot of mania stoked up – and you can keep it going for quite a while.

It’s been two decades now, at least.

And again, the Court creates a distinction without a difference: “We assume that if the legislative purpose was to deter sex offenders, the law would be invalid: and we have no doubt that if the government ordered punishment, the law would be invalid. Neither, however, is the case here.”

But if the wrecking of citizens’ lives by calculated government action contrary to the fundamental philosophy of the American vision not only results but has to result from that calculated government action, then all the Court is doing here is to insist that the government ensure that your seat belt be fastened before it pushes you and your car off the cliff.

Can you say that the German government’s declared good intentions in securing Lebensraum for its citizens in the East outweighed and even redeemed the deaths that the invasion of Russia would cause?

Or can you even say: well, it might have been morally justifiable if the campaign weren’t botched so much in implementation because it was originally intended not to cost many lives at all. (And can you say Iraq War? … Funny how the night moves.)

The Legislature has passed a law that in the light of human societal dynamics virtually guarantees wrack and ruin for its targets, even though the Legislature insists that its intentions are ‘benevolent and legitimate’ and is focused not on the target class but only on helping people. Is it enough for the Court to say ‘Well, they mean well and that’s all that counts’ … ? It’s not as if the wrack and ruin is only a distant and improbable possibility – the historical record of the 20th century and all the mob scenes in every movie in history literally shriek a warning.

And the demonstrated wrack and ruin inevitably visited upon sex-offenders are hardly a mere “deterrent consequence”. You have by government action and authority pretty much destroyed a person’s ability to carry on a life of Love and Work in a community – if that’s only a mere “deterrent consequence” then ‘tagging’ target classes and putting targeted classes into the Reich’s concentration camps were merely deterrent consequences. To destroy a life must be seen as a bit more than ‘deterring’ that life’s possible actions.

I would say, contrary to the Court, that having one’s civic and personal and relational and career life – and its possibilities for future improvement – all erased by government action does indeed constitute “punishment”. And, having been alive and sentient in the Year of Grace One Thousand Nine Hundred and Ninety Five and of the Independence of the United States the Two Hundred and Nineteenth, I say that such a conclusion was as clearly to be discovered then as it is now.

And I’m not going to go for ‘empathy’ here; I’m not pleading for the Court to simply ‘have a heart’ and feel sorry for poor bedraggled sex-offenders, from the unassailable and virtuous majesty of its high position.

I want to reassert an ‘ethic of justice’ here. And to say that on the basis of such principles, the Court and all its cohorts in cohoots over the ensuing years, have contributed to what in effect (if possibly not in intent) constitutes a grave treachery to the Constitution and to the vision of America and Americans upon which the Constitution is based.

Is that rather strongly worded? I recall what Harry Truman said in response to an interviewer’s reference to his nickname of Give-em-Hell Harry: “I never gave anybody hell – I told them the truth and they thought it was hell.”

Zackly so.

NOTES

*See my immediately preceding two Posts.

**This is as good a place as any for a relevant tad of legal philosophy.

Legal Idealism - upon which the Framers grounded their vision of Law and of the Constitution - holds that there are principles that pre-exist the laws that the government makes, and to which those laws must conform or else they are invalid. There is a Good and there is a Bad; humans have a deep sense of that; if a law made by a government tries to impose something that is not Good, then the law (and maybe the government, if it persists in trying to do it) loses its legitimacy.

Legal Positivism holds that there are no principles, nor any realm of Principle or Principles. Rather, laws have their power and legitimacy only because the government makes them and enforces them with its authority. So, for example, a Positivist wouldn't say that murder cannot be legalized because it is Wrong; a Positivist would say that if a government wishes to legalize it (and the citizens - or enough of them - are willing to go along with it) then murder, in that country, is legal. 'Good' and 'Bad' are, to the Positivist, meaningless terms.

So an Idealist view of a citizen's 'rights' is that they stem from that realm of Principle and therefore are beyond the power of a government to take away; and that any government that tries to do so thereby delegitmizes itself. The government must respect Principles.

A Positivist view of a citizen's rights is that they stem merely from the willingness of the government to grant them, and the government can give as well as take away.

A major element of post-modern thought is 'deconstructionism': not only are there no Principles, but any 'principle' is best seen as merely a cloak for those in power to oppress those without power, since - at the heart of it all - nothing is real anyway and it's all really just a matter of how people 'perceive' things (or can be made to perceive them).

In the very early 1970s, the American philosopher John Rawls held that a nation's "elites" - those who really saw how things should be - should feel free to 'lead' all the other citizens (who 'just didn't get it'). There was no valid authority - including the Constitution - that they should allow to stand in their way of this great 'mission'.

Such abstractions as Principle and Reason and Principles, said a determined cadre of radical feminists, are merely tricks whereby those in authority continue their oppression - and what the country must therefore do is to base law on Feeling (like George Bush's 'gut-feeling', oddly enough).

Blend Positivism, deconstructionism, Rawlsian elitism, and Feeling-ism; imagine each of these separate forest fires burning toward each other and combining into one mega-fire ... and you can start to see what's happened in the country, and especially what's happened in the sex-offense mania: the government - under the influence of its elites - will say what's best to be done and who gets what rights (and who loses them, for all practical purposes), and if all the citizens simply give in to the feelings that the government thinks they should have and then take the government's word for it that the new stuff is reely reely goood, and they just 'change their perception' of what's going on, then everything will 'progress' to a much better nation and society and culture.

So here in Poritz we see Chief Justice Wilenz - who bought into all that new stuff - using this Opinion to put that overall plan and method into operation. The citizenry, already in a mania with the help of sensationalistic and selective media coverage, need only take the Court's word for it that the Legislature has done the right thing and if the citizenry just shuts up and goes along and learns to get used to the new stuff, then it will be a much better State of New Jersey and a much better America. Judge for yourself.

Creating a public mania - in this 'new' view - would be a step toward 'educating' the citizenry, not 'stampeding' it, since the elites who created and sustain the stampede have a very clear destination in mind, whereas a stampede is actually kind of aimless. But aimless or not, a stampede works on feelings; you never saw the cattle consulting a map beforehand or once the thing got started. That wasn't their role.

You can see where this sort of thing can go.

And has.

“COMMONWEALTH v. CORY”

“COMMONWEALTH v. CORY”

I covered a number of the points when discussing the news report in the Post prior to this.

Here I’ll just point out some of the highlights from the text of the Opinion itself.*

The Court concludes that the Massachusetts law requiring any sex-offender placed on probation to wear a GPS during that probation period “to be punitive in effect, and under the ex post facto provisions of the United States and Massachusetts Constitutions, may not be applied to persons who are placed on probation for qualifying sex offenses before the statute’s effective date”.

This is a heartening conclusion. The finding that it is “punitive” – even if only in effect and not on its face and by its very nature – goes to one of the core issues in SO legislation: it is indeed “punitive” and not simply “regulatory” (like being Registered for a barber’s or doctor’s or driver’s license).

The other core issue is whether sex-offenders as a general class are indeed so uncontrollably and almost universally prone to a compulsive recidivism that the State can claim any legitimate and rational ‘compelling interest’ in forcing them to be Registered at all. But that will have to wait for another day.

The Court recites the facts of the case. And let me say here that if a defendant has indeed committed a heinous assault on a child, then he has to deal with that, and be dealt with within the framework of law. But a couple of points here as well.

First, this was a charge of Indecent Assault and Battery on a child under fourteen. I don’t know the age, and the Indecent Assault and Battery charge conceptually covers a broad range of actions, from the plain-meaning of a sexual attack to something far less assaultive, that may not have even required a clear knowledge and criminal intent. I’m not trying to make excuses here, but one simply doesn’t know – and in matters sex-offensual, with those numerous fluid and generalized definitions of proscribed acts, it is wise to get the facts before forming a final impression.

Similarly, this defendant violated his parole by not attending counseling and treatment programs. Again, there are more possibilities than meet the eye. Of course, this fellow may simply have refused to ‘get better’. Then again, and especially in light of what may have been a conviction offense on the lower end of that Indecent Assault and Battery spectrum, he may have not seen the need. Or perhaps, if somewhat professionally informed, he may have judged that the programs on offer could do little (sex offense ‘therapy’ is only modestly more advanced than some of the original sex-offender ‘science’).

Whatever the case may be in this individual instance, I am not here trying to make excuses, but rather to point out how torturous the ground is in this entire area of SO legislation and sex-offenses; the wise field commander will not leap to conclusions that may yield a substantially inaccurate impression of the ground. (Such easy assuming was part of what led to the military situation in Iraq and – most likely – in Afghanistan.)

The Massachusetts law in question in this case requires that any person be fitted with GPS when on probation “for any offense listed within the definition of ‘sex offense’, ‘a sex offense involving a child’, or a ‘sexually violent offense’ as defined [by statute].”

First, this law requires that all sex offenders on probation be so fitted. Again, it is the grossly exaggerated ‘science’ that originally gave us those huge ‘recidivism’ figures which initially enabled the various legislatures to cast so broad a net in the first place: all sex offenders were believed to be highly likely to reoffend, and to be incurably compulsive and consequently unable to control themselves or their urges. And it was this same ‘science’, its figures luridly amplified in the media, which stampeded public opinion into imagining that the citizenry were, indeed, under permanent assault by sex-addled, zombie-like creatures (who, of course, might also appear as smooth and nice and well-adjusted, rather than leering, slavering, and gibbering with sexual anticipation).

Which as a schematic reminds me, by the way, of Anne Rice’s conception of the vampire community: there are the slavering, un-evolved primitives who lived like feral animals in cemeteries, feeding on any creature they could find, or on the bodies of the dead; but then there were the cultured and tasteful and – as it were – maturationally evolved vampires who were perfectly capable of ‘passing’ for human, went out into the world and even into high society, such as the vampire Lestat. This is disturbing: is it conceivable that the founding vision of the SO laws and the SO regime – which has wreaked so much havoc when adopted as the official policy of the national and State governments - took its shape from a pop-fiction (and film) fantasy about monsters?

Interestingly, the Court cites a 1981 Federal case (Weaver v. Graham, 450 U.S. 24, 31) wherein that Court states in definition that “a law is retrospective if it ‘changes the legal consequences of acts completed before its effective date’”. But of course, the SO laws – especially the Megan’s Law that was the initiating cause of Doe v. Poritz – were shrewdly drawn so as to appear non-punitive and ‘merely regulatory’. So that, they hoped folks would believe, increasing sex-offense consequences would be seen as nothing more than a State changing the minimum age to operate a motor vehicle, or even the amount of the renewal fees for licenses and registrations. It is a sad commentary on the media as well as the legislative and judicial elements, that such a phantasmagoric legal fiction could be accepted seriously for so long.

But then, in a time of public mania, if you point out anything that might cast doubt on the fact that the mania is indeed a mania – no matter how highly placed in societal authority – you could wind up tarred and feathered yourself. That’s how these mania dynamics work. Many good and intelligent people went to the guillotine in The Terror in France precisely because they were trying to call folks back to their senses. But the folks were stampeded. And the Jacobin revolutionaries themselves, now in power, very much wanted the stampede to continue.

In considering whether the GPS law is intended as a ‘civil’ or a ‘criminal’ statute, the Court winds up cataloguing a number of jurists in assorted cases over the years who have not considered the SO laws to be clearly and simply ‘civil’ (or ‘regulatory’): Justice Souter, in that key case of Smith v. Doe, who considered the nature of Alaska’s SO laws “to be in rough equipoise” (meaning it’s a 50-50 toss whether they are ‘criminal’ and ‘punitive’ or not); Justice Ginsburg, concurring with Justice Souter in the same case, that whether the Alaska law was regulatory or penal was “unclear”.

These sex-offender laws have never enjoyed enjoyed a total and inevitable and unassailable legal security; in many of the cases – alas – it is the Dissenting Justices who saw most clearly, but now that a period of years have accumulated (6 for Smith v. Doe, 15 for Doe v. Poritz, for example) it is possible to see how the several courts’ conclusions have held up, especially in the light of further research.

And if memory serves, it was Justice Thomas, Concurring in Kansas v. Hendricks which upheld the constitutionality of Kansas’s civil commitment for sex offender law in 1997, who said in effect that of course, if there really is no therapy available for these offenders, then the entire civil commitment scheme collapses constitutionally. And while there have been some glimmers of light in the therapeutic field, nothing like a reliable therapy exists.

Which, as I have always held, may stem not from the radical incorrigibility of the allegedly afflicted offenders, but rather from the fact that there actually is no full-blown and florid sex-offender ‘disease’ for which a therapy or a ‘cure’ could be devised. The assorted States’ legal solution has been to require a ‘mental abnormality’ or a ‘personality disorder’, but the former term is so vague as to be useless and the latter condition in some form and at some level of severity can be said to afflict a major fraction of the citizenry at any given time.

The Court goes on to assert that the GPS scheme most certainly does constitute a “limitation or burden on liberty”, and in two ways: “by its permanent physical attachment to the offender, and by its continuous surveillance of an offender’s activities”. I can only agree. But I repeat my belief that courts must allow themselves to examine the societal situation of a registered SO more broadly: it is not simply the GPS; it is the double whammy of being effectively told by your government that you are an eternal and incorrigible threat to your fellow citizens and then having your government broadcast that ‘fact’ to your fellow citizens.

Your own sense of self is lethally injured, and there is every likelihood that your own sense of self-confidence is profoundly damaged. Which in turn weakens you as you must face the monstrous array of mania-driven legal restrictions and public opprobrium that will most likely include any chance to conduct a life of Work and Relationship within the civic community.

As I have said, any outside observer would have to wonder just when the legitimate terms of the social contract can be said to have been abrogated, by the government. Rome and the old South, to take two examples, were profoundly weakened by their ongoing fears of those in their midst whom they had effectively and legally disenfranchised. Those same dynamics must be considered at least a possibility here. Although one can only hope that the nation and the Citizenry will recover their sense of balance, either following or leading their governmental authorities back to a saner course of policy. The vast majority of those convicted of a sexual offense are not ‘sex offenders’ in the sense of the mania imagery, and have never ceased to be members of the American civic community.

The Dissent, joined by two other Justices, gives some indication of the state of things.

First, it disagrees that the “statute is penal”. It considers that even though the legislature did not say clearly in the law that it intended the statute to be ‘civil’, yet “I do not agree that the legislative intent was so unclear that we cannot conclude that the intent was regulatory and remedial”. This is very much the approach of precedent, that a court will base its decisions in great part on prior decisions of other courts in similar matters. In that sense, Doe v. Poritz in 1995 set in train a lethal course of events, since other courts also faced with the novel SO legislation almost immediately took to repeating the justifications that the New Jersey Opinion so helpfully provided.

The Dissent bases itself in the possibility that these laws can result in rehabilitation – theoretically, at least – as well as the protection of the public [from the compulsive sex-offender monster]. While the hypothesis is legitimate as a pure exercise in logic, yet it bears little relationship to the actual state of affairs in matters of sex-offense diagnosis and therapy, nor – as we know are seeing – to the actual nature of the sex-offender class, such as it is.

Further, the Dissent falls back on this Court’s own Opinions in prior cases: “Both the Legislature and this Court have recognized that sex offenders represent a serious threat to the public and have a high rate of recidivism”. Here you see the problem that the earliest laws and cases created: those Legislatures and Courts accepted the hugely-flawed ‘Facts’ presented to them by advocacy ‘research’, which precedents were then followed by other Legislatures and Courts, which as the mania spread came to include all the Legislatures and Supreme Courts of the States, as well as the national Legislature and the Supreme Court, so that now any Court (or Legislature, if any of them have the political courage) that tries to make a course correction has to confront its own previous acceptance of the flawed ‘research’ and ‘science’.

Yet, clearly, Massachusetts’ Supreme Judicial Court was willing (by a 4-3 vote) to do so.

And clearly, the reconsideration of all of the original ‘high recidivism’ and ‘incorrigible compulsion’ Findings of Fact can only lead to substantial change. The Massachusetts Court itself is soon to hold a Hearing as to a prior conviction based largely on ‘recovered memory’.

The Dissent asserts that “protecting the public from sex offenders is a nonpunitive objective”. Which might be true as stated, but implies a plan that can only wind up being punitive. After all, how go about protecting the public? By effectively ‘tagging’ or ‘yellow-starring’ everyone convicted (in a time of deliberately concocted national public mania) of a sex offense, with the result that such persons are deprived of the liberty to conduct any significant sort of employment or family life, or participate in the civic life of the community. And even more lethally, are tarred by their government as ‘incorrigible and permanent threats’ to their neighbors. Which information is amplified not only through the news media, but through the Internet and even commercial applications. How in all get-out is any of this genuinely characterizable as ‘nonpunitive’?

What more profound liberty is there than to be able to carry on a life – work and relationships – in a community of one’s peers?

And if the commission of – or at least conviction for – a crime is going to ‘justify’ the destruction of such liberty, then – as St. Peter asked – “who then can stand?”

The Dissent’s foregoing reasoning is the equivalent of saying that the Third Reich’s search for Lebensraum for its beleaguered Volk was a ‘nonmilitary objective’. Which might be true as stated, but which was an objective that required for successful achievement a most hugely military campaign. I can imagine such a defense being made at Nuremberg: we only sought to do good for our people. But alas for the Nazis, Hitler knew from the get-go that such an ‘objective’ would require aggressive war and never flinched from it, and built the German armed forces up to it, and left an irrefutable and inescapable written and filmed record of it.

Shrewdly, in the sex-offense legislation, the government Branches all avoid his mistake: from the outset they have claimed only the most benevolent objective, while studiously understating any overt discussion of what actual actions and policies would be required to achieve the objective. Which is a shrewd lesson learned from History. Here’s hoping that History keeps teaching. Which it no doubt will.

Thus the Dissent greatly undermines itself when it asserts that “the ‘most significant’ factor in determining that Alaska’s sex offender registration statute was not an ex post facto law, was its rational connection to the nonpunitive purpose of protecting the public from sex offenders.” Because if all the science of ‘high recidivism’ and ‘incorrigibility’ is and always has been mostly wrong, then there is no “rational connection”. And the “nonpunitive objective”, as I just noted above, is hardly anything less than lethally punitive in effect and inescapably entails a broad government assault of the most profound sort on individual liberty.

Thus the Dissent’s assertion that “the urgency of the regulatory concern of protecting the public from sex offenders” is sufficient justification for not condemning the SO laws as punitive does not correspond to any actual state of affairs. This entire line of justification, as it was set forth early on in Doe v. Poritz by a Chief Justice well-known for his partiality to such schemes and ‘objectives’, is a web of exaggerated facts, half-truths, and ungrounded assertions, all in the service of a novel (to America) legal philosophy that is itself, at the very least, hostile to the Constitutional vision and lethal to the continued existence of a genuinely democratic Republic.

Let’s not be deceived any further. Or any longer.

NOTES

*To get to the text of the Opinion follow these instructions: a) go to www.massreports.com/; b) that screen will give you click-options on your left-hand side of the screen – click ‘slip opinions’, which will immediately prompt you to choose ‘Supreme Judicial Court’ or ‘Appeals Court’ – click ‘Supreme Judicial Court’; c) that will lead to a screen containing the 9 or 10 documents from August 18, 2009 – you want Number 2 (the text of the Decision) and Number 3 (the Order).

The title of the case is COMMONWEALTH vs. Russell M. CORY. SJC-10314 August 18, 2009.