MORE OHIO AWA

[PLEASE NOTE: I am putting this Post up as a follow-on to the immediately preceding Post, and I am doing it within 24 hours of putting up the preceding Post. This Post is best understood in the context of the discussion in the preceding Post – both of which are on the same subject and deal with the same text: the Ohio Supreme Court Opinion of last month that found Ohio’s AWA-compliant laws to violate that State’s Constitutional prohibition against Retroactive punishments.]

I did not pay much attention to the Dissent (one written, a second Justice merely concurring) in the State v. Williams case in my immediately prior Post and I’d like to remedy that here.

There actually are some points I want to make in regard to the Dissent. So once again, the link to the case is here ; the Dissent takes up Paras. 23-60 of the Opinion.

What I will do is simply proceed through the Paragraphs and comment on what seems useful. In the process I may repeat points, but I am confident that they bear repeating.

One other point:  I have often used the word ‘ethos’ in my Posts, which is actually a Greek word that more or less means a surrounding atmosphere or matrix of beliefs, assumptions, values, principles and practices. Thus the American ethos or the Soviet ethos, for example. But I will also use the word ‘Universe’ now; not in the cosmological or astronomical sense but as perhaps a more readily-understandable word to convey what I’m trying to say with the word ‘ethos’.

In Para. 23 the Dissenter, Justice O’Donnell, states the grounds for his Dissent: 1) the SORNA schemes, old and new, are “civil in nature” so they don’t violate the Retroactivity Clause of the Ohio Constitution and 2) “every federal circuit court” that has considered challenges to these schemes has also “held that they may be retroactively applied”.

But in regard to (2), when it comes to constitutional issues the standard jurisprudential principle of stare decisis (tr: since these things have already been decided, let them stand) does not apply; this principle respects the vital importance of every court being able to flag what strikes it as a constitutional issue or problem.

In regard to (1), I continue to mistrust this ‘civil/criminal’ distinction (related to the ‘regulatory/punitive’ and ‘punitive/non-punitive’ and ‘burden/punishment’ distinctions). Once the Sovereign Authority is being deployed against a citizen who has completed a sentence for a crime committed, and that Authority is increasing burdens on that Citizen for reasons stemming out of the crime (let alone psychological inferences made about the individual from the crime), then you are into an Ex Post Facto deployment of the Sovereign Authority, no matter how you care to characterize or color it.

In Para. 24 the Dissent states that “Our long-standing precedent recognizes the legislature’s authority to make policy decisions for reasons of public safety and public welfare” and that consequently these SORNA laws “constitute a civil regulatory scheme designed to protect the public from known sex offenders and that the statutes may be retroactively applied to individuals who have committed sexually oriented offenses in the past”.

Which is all well and good.

Except that the SO Mania confronts us with a frakkulent problem whereby the legislatures – State and national – have adopted grossly inaccurate scientific Findings to the effect that any and all sex offenders pose a very high risk of recidivism. And that even though nobody informed in these matters really believes that any longer, YET THIS UTTERLY VITAL FOUNDATIONAL ELEMENT OF THE MANIA REGIME AND LAWS remains in place and unchallenged.

Which results far far too often in what you see in this Dissent: a jurist can simply slide over the Findings-problem, claim that ‘we’ and a whole bunch of other courts have always found this thing ‘civil’, so there’s no reason to change now.

Nor is this simply a matter of the Judicial not wanting to trespass on the Legislative turf. The US Supreme Court (as will be seen below) used such recidivism probabilities to help justify its 2003 Smith v. Doe Opinion (where, you recall, it had to slap down the doughty Alaska Supreme Court, that had found the SORNA scheme of the day to be indeed ineligible for retroactive application).

As this Dissent exemplifies, the judicial bit nowadays is that since the Legislature made the Findings, then no Court has the right to question them (so take your troubles to your legislators). But if those inaccurate Findings are vitally complicit in creating a system that is indeed unconstitutional, then no court can lightly brush matters away; and certainly, courts can make reference to the (highly) dubious validity of the Findings.

Otherwise we wind up with interlocking shell-games: from an initial Legislature’s whackulent Findings, a law is passed (so often in haste, in contravention of that Legislature’s own rules of procedure, and most often by types of vote that do not record which pols actually voted for the monstrous Thing – which is shell-game to avoid responsibility); other Legislatures now pass copy-cat laws, piously pointing to the original (and whackulent) Findings and merely reproducing them in their own laws (another such shell-game); courts are called upon to adjudge the laws and merely accept that what the Legislature chooses to accept as fact in justification of its laws is not any of the court’s business (ditto, to some extent); and once those court-cases finding the laws permissible start to pile up, then any judge or court can point to the now-hefty pile and trail of other courts’ approvals and either claim stare decisis or simply bleat that there is therefore no reason to give any more thought to the matter.*

Who’s got the ball in this shell-game? Where’s the peanut hidden? Under which Branch’s turf?

So in this case, if we read the Dissent’s comments in the sure and certain knowledge that the Findings were frakked from the get-go and that  the scheme thus does very little to ensure public safety or welfare, then you can get a more visceral sense of the Alice-and-the-Red-Queen fractured fairy-tale that the whole Mania Regime has become.

And once again, on top of that, I am not confident that the Sovereign Authority can erect a “civil regulatory scheme” on the basis of a past criminal act for which sentence has been served, and yet somehow sidestep Ex Post Facto and Retroactivity. If X committed a crime and served the sentence, and is placed on one of these Registries for no other reason than that crime, then in what legal universe can you think to deploy the government’s Sovereign Authority to further burden X without violating Ex Post Facto and Retroactivity? [Hint: the answer is Not In The American Legal Universe … but that is no longer the Universe in which law schools, courts, and legislatures are operating. Which is to say: the entire SO Mania Regime of Laws and justifications for those laws comes from … another Universe not Our own.]

So in Para. 32 the Dissent can breezily dismiss challenges to SORNA schemes “because the registration requirements provided in the act were necessary to achieve the legislature’s remedial purpose of protecting the public from sexual offenders”. But the remedial purpose is based on remedying a problem (high recidivism) that doesn’t exist … so what happens now? The legislatures have erected hugely dubious laws (and not of the American legal Universe) in order to protect the public from a threat which doesn’t exist, and the courts in large part have twisted their thoughts into pretzels to justify the whole thing. Is ANYBODY in a position of authority on the good ship United States who can fix this?**

And as I said in the immediately prior Post, just how far can the American legal Universe go in ‘protecting’ and ‘preventing’ before it is no longer the American legal Universe but rather has mutated into some other Universe. Look, for example, where Bush-Cheney got Us with ‘preventive war’ (another concept that never had a place in the American Universe).

And all this on top of the fact that you are trying to ‘protect and prevent’ in regard to a problem (high recidivism) that is now known not to exist.

In Para.38 the Dissent recalls another formulation made by a court in defense of the legislature’s jerrybuilt constructions: “Further, we acknowledged the General Assembly’s clear reaffirmation of an intent to protect the public from sex offenders and concluded that the more burdensome registration requirements … were not born of a desire to punish”. But it seems to me that even at this late date, 15 to 20 years after the initial court challenges and certainly almost a decade since it became obvious to informed parties that there existed no such high sex offender recidivism as legislatures had originally claimed to have found, how can legislatures still be churning out laws on the basis of what they must now surely acknowledge was grossly inaccurate information? Why, given the utter and now demonstrable inaccuracy of their foundational presumptions, have legislatures not disassembled this entire Regime? Why have courts not made some larger efforts toward that end within their own spheres of authority and competence? Does anybody among them recall the Vietnam War?

And it stretches credulity to Alice-in-Wonderland levels to imagine that any legislative body – in the American universe, certainly – could heap so intensifying and lethal and profound a set of ‘burdens’ on any group of citizens (felony convictions notwithstanding) and claim that they had no intention to punish or harm them, but merely to bell them like the brave mouse belled the cat for the protection of and prevention of harm to all the other mice. But then the American population, and not by accident, has been so addled and agitated that it can no longer so easily distinguish what is reality and what is fantasy. (Leading to the thought that just as the legislative and legal systems are no longer operating from and within the parameters of the American ethos/Universe, perhaps the Citizenry aren’t either – take that to prayer.)

The Dissent continues in that same Paragraph that having already recognized that "consequences as drastic as deportation, deprivation of one’s livelihood, and termination of financial support have not been considered sufficient to transform an avowedly regulatory measure into a punitive one" And again, you have to ask yourself: just how intense does a deprivation or ‘burden’ have to be to qualify as ‘punitive’ in this weird, non-American and probably anti-American universe of SO Mania law?

The need for this question is reinforced in Para. 45: “Nonetheless, we clarified in Ferguson that ‘Ohio retroactivity analysis does not prohibit all increased burdens; it prohibits only increased punishment”.

Sooo – let’s get this clear here – your State Legislature can claim you are or most probably are an incorrigible and uncontrollable and monstrous sexual predator; and that you will almost invariably commit more sex crimes; and then keep that claim going even after serious professional research has established the gross inaccuracy of those claims; and then publish your name, photo, address and a whole bunch of other information it has demanded from you; and souse the public and your neighbors with lurid tales of what you will probably do sooner or later once you are back among them; and thereby pretty much blast to smithereens any possibility for residence, employment, education, perhaps family, and for normal social interactions and the simple enjoyment of a name and reputation; and make you present yourself to a sheriff several times a year for decades to confirm you whereabouts; and allow a sheriff or anybody who can wangle a sheriff’s ‘authorization’ to pester your landlord until you get tossed just to stop the ‘official visits’ … and almost no court in the land will label it ‘punitive’ because the pols who passed the law promised Scout’s Honor that they didn’t want to ruin your life with their legislative power. Oh, and anyway it’s all your own fault for having committed the crime in the first place.

Because none of this rises to “the infliction of punishment and therefore” the whole scheme is merely “remedial”.  (Para.46)

And who can wonder then that the boundaries between phantasm and reality seem to be blurring into non-existence around here nowadays?

Then in Para.48 the Dissent asserts that “Contrary to the majority’s position [in this case of State v. Williams], the fact that sex offender registration provisions appear in the criminal code and that the classification categories are directly linked to convictions for specific offenses does not make S.B. 10 punitive in nature. Rather, the General Assembly found that a past conviction for a sex offense is an indication of the present threat that a sex offender poses to the public, and we have previously recognized that the legislature may ‘use past events to establish current status’”.

Again here you see the combination of tag-team and shell-game being carried on between the legislative and the judicial Branches. Nor is there even a glimmer of awareness – or perhaps he just doesn’t care – that what “the General Assembly found” turns out to have been almost completely wrong and that consequently “the present threat” doesn’t exist as claimed.

And when it comes to criminal law, whatever legal Universe allows a Sovereign Authority to infer present status of a former-convict from a past act is not the American Universe. One thinks of the differently colored internal passport (itself an anti-American concept) that French Revolutionary law assigned to ‘former convicts’ simply because they were ‘former convicts’; it was called the Yellow Passport and simply to have to produce the glaring little booklet in public upon a policeman’s or soldier’s demand labeled you (it was from this Revolutionary practice that a later European boss would come up with a Yellow Star, although he intensified the frakkulence exponentially).

In Para.50 the Dissent asserts that the Congress passed the AWA “specifically to solve ‘deficiencies in prior law that had enabled sex offenders to slip through the cracks’”. Now there are indeed many ‘cracks’ in the whole thing, and eligible offenders may indeed be slipping through them – but far more often because the cracks are so wide as to swallow them up.

The primary ‘cracks’ in this system are based on its conceptual incoherencies as a stable and reliably  recognizable psychological or even criminological entity: nor is there a large reliability in any descriptive and diagnostic and therapeutic assessments. The next set of ‘cracks’ is that in consequence of the foregoing, different legislatures have enacted different definitions of key elements and characteristics and weight their significance differently. The next set of cracks is that given the ludicrously but hardly surprising variability in who is and who isn’t a sex offender and what is and what isn’t a sex offense and what level of future threat any offender poses … given all that, it is not infrequently the case that even the offender doesn’t know if any one of a dozen new rulings and rules applies to him. And lastly, given the slap-dash and weirdly incoherent nature of these laws themselves (try reading, for example, the text of the Adam Walsh Act and see how long it is before you can’t make heads or tails or any sense of it) an offender may very easily fall ‘technically afoul’ of the applicable registration requirements: i.e. , he is arrestable or arrested not for committing a new sex crime but for thinking, say, that he had to perform actions A, B, and C to remain ‘in compliance’ and not realizing that there were now requirements X, Y and Z as well.

Now it might seem a good thing that the national government is involving itself in trying to bring some order to the mess. EXCEPT THAT a) the national government created the mess with its incoherent conception of the problem and grossly inaccurate ‘science’ supporting it; b) crime is constitutionally the business of the State governments;  c) the national government’s irresponsibly (if not treacherously) slap-dash approach to a non-existent problem that it itself raised to national prominence cannot be improved or justified by bringing order to the attempted solutions for what is not verifiably an actual problem in the first place.

Which makes the Dissent’s ‘therefore’ in Para. 51 clearly risible: “Thus, the purpose of classifying all sex offenders into tiers based on the offense of conviction is not to punish an offender. Rather the General Assembly sought to establish a system that provides for the efficient sharing of information about sex offenders necessary to safeguard the public from potentially dangerous individuals.”

First, it is beyond fantasy to imagine that any government (State, local, or federal) can subscribe to the panoply of anti-sex offender laws now on the books , with AWA being only the tip of the iceberg, and claim – either honestly or cynically – that it doesn’t intend to punish. No government of whatever level in the American legal Universe could ever expect to get away with it, and no government of whatever level in the American legal Universe would ever be expected to try.

Second, the Question has to be asked: Why, in the decade or so since the vital issue of High-Recidivism has been demonstrated to be non-existent, has no government at any level – and most certainly the federal – announced that and backed away from further extension of this Thing or at least started drawing-down the elements comprising the SO Mania Regime? Do Congress Members NOT know of these solid research discoveries? How ignorant do they have to be to honestly not-know at this point? Do Congress Members know?  But if so, then why not back away or even shut down the whole thing for lack of a actual-justification?

Clearly, it appears highly probable that the High-Recidivism of sex offenders is no longer and perhaps never was the driving element in this Mania. And if that’s true, then what were/are the driving elements of the Mania, and certainly of government’s participation in it? Would some Member care to make effective answer?

Third, and I repeat myself, the entire SORNA concept is not native to the American legal Universe (although it has enjoyed quite a secure status in the French Revolutionary and post-Revolutionary, the Soviet, and the Nazi legal Universes).  Did this not catch the attention of legislators, jurists, and law school elites in the past 20 years? Or was there something of a Mania among them: a stunningly witless rush to be on the ‘cutting-edge’ of what was billed by its backers as a major ‘reform’ and spun at urgent, vital and necessary ‘progress’ when actually this amazing new discovery (to use the language of infomercials) was new to the American legal Universe only because it was so profoundly and lethally ALIEN to it and up until a few decades ago many generations of sober professionals and public officials in this country had realized that?

But the Dissent is nothing if not thorough and it won’t quit. In Para. 52 it recalls to the Court the Court’s own prior Holding: “Except with regard to constitutional protections against ex post facto laws, felons have no reasonable right to expect that their conduct will never thereafter be made the subject of legislation”.

To which there might be a couple (at least) of responses.  First, WHY NOT? You commit (presumably, and in the Mania this is not a small presumption) a crime, serve the sentence, and that’s that unless you commit further crimes; you proceed chastened to re-establish your personal, familial, and civic life on a more genuine basis (and perhaps even begin living your life on a higher plane of personal and social and civic maturity). Why shouldn’t you have an expectation of finality so that you and the civic community can get back now to restoring its wholeness through your new quality of participation.

Second, WHAT ELSE is ‘retrospective legislation’ EXCEPT ex post facto? And certainly at the level of and of the nature contained in the Mania Regime legislation. Nor can this immutable reality be hidden by any such treacherous wordplay as ‘regulatory’ or ‘non-punitive’ or ‘necessary for protection of the public’. All of those phrases have to be defined and construed according to what is possible in the AMERICAN legal Universe and not any of the fundamentally different other legal Universes that are out there and that have always, in terms of core dynamics and philosophy, been out there.

How can any court or any jurist worthy of the title presume otherwise? ‘Hi, we know you’ve done your time and haven’t been convicted of anything since then, but we have lately come to believe - although apparently it’s mostly inaccurate - that we need to impose a whole mess of burdens on you simply because we believe – mistakenly but what the hey? – that you yourself will continue to commit these crimes. So we are going to ruin your reputation very publicly by tarring you with this label of Sex Offender that we have created, wreck your chances for any rehabilitation, or the decent conduct of any further life in terms of residence, employment, family and civic participation. But we really don’t mean to punish you and it would be largely small-spirited on your part to consider what we’re doing as anything but Good (and utterly constitutional).’ This is a script of stark, raving civic insanity, and not the sex offender’s.

Third, this is actually something worse than ex post facto: the government is not so much going back to rummage in your past ‘act’, but rather it is in reality now labeling and categorizing you – demonizing you officially;  and all of its actions to be piled on top of you - ‘retrospective’ or otherwise – constitute a government-abetted assault on you as a person (i.e. you are presumed to be some sort of incorrigible Monster). This in its essence comes from the Universe of peasants with pitchforks chasing and burning the latest object of their fears, frustrations, and secret guilts. This entire gambit constitutes in its very essence a sustained assault by the government on a segment of Citizens whom it has demonized. This comes from a dark Universe most deliberately and purposefully rejected by the framers of the American vision. (Yes, I have just opened myself to charges of ‘framerism’, I know.)

Fourth, these individuals are NOT “potentially dangerous” in the sense of High-Recidivism. They ARE potentially dangerous in the sense that we are ALL potentially dangerous. But this is part of the American Vision: can a bunch of human beings – all of them subject to the moral insanity of original sinfulness and all of them liable to violate somebody else’s rights at some point – manage to sustain a society in which they can deal with that reality without demonizing each other and chasing each other with pitchforks or tagging some scapegoat category with burdens and tokens of public opprobrium suitable to darker eras in Western history? The Framers answered Yes to that Question. There is apparently a very politically-connected or politically-favored cabal in this country that wants to answer No. AND legislatures and the courts have largely gone along with this cabal.

And then, to trump everything, the Dissent insists in Para. 53 that “Because S.B. 10 does not inflict punishment on sex offenders for past crimes, applying its provisions to defendants who committed sex offenses prior to the date of its enactment does not violate the Retroactivity Clause”.

And then in Para. 54 rehearses the US Supreme Court’s now cheesy-looking assertions in 2003 in Smith v. Doe.

One, that the SORNA schemes “did not resemble traditional means of punishment in that they did not place offenders on public display for ridicule, but instead disseminated accurate information”. But if they did not represent ‘traditional’ means of punishment it’s only because this sort of thing comes from an alien legal Universe that heretofore had been excluded from American life as coming from a darker and more regressive era of Western history.

And further, to assert that the SORNA schemes were OK because they weren’t intended to shame and ridicule is grossly and disturbingly insufficient: it’s like saying I threw a lighted stick of dynamite into the building but I did not intend to cause any damage. What else could have resulted? You use the Sovereign Authority to ratify the demonization of a scapegoat class of Citizens; you whip up the darkest and most volatile public emotions deliberately; you put the scape-goated group onto an Internet that was never a ‘traditional’ form of shaming because it never existed prior to recent decades, you then claim that you are merely publishing ‘accurate information’ as if you were Goody-Two-Shoes and beyond reproach … you do ALL that and THEN you cawn’t think why or how you can be considered profoundly deranged?

Two, that the SORNA schemes “imposed no physical restraint, leaving offenders free to live and work without direct supervision”. But if they have completed their sentences then they are immune from ‘direct supervision’ by the Sovereign Authority so you are claiming to give them what is already owed to them in the American civic compact anyway. And isn’t there something simultaneously Nanny-State and ‘1984’ in that queasy presumption that an entire class of Citizens should live under some form of permanent supervision? And in what way is The Sex Offender “free to live and work”? Into what sort of public did those jurists think they were introducing this lighted stick of SORNA dynamite? Clearly not the humans of any Universe known to human history – but, of course, this whole Thing has reeked of some whackulent Revolutionary-Utopian scheme-on-paper from Day One.

Three, that the SORNA schemes “did not promote the traditional aims of punishment so as to overcome the legislature’s regulatory objective”. But they do promote – seem luridly and deliberately designed to appeal to – the darker and regressive human urges that have never been ‘traditional’ in the American civic Universe only because this type of demonizing and scapegoating of classes by formal government action and legislation was rejected. And the ‘regulation’ of Citizens, combined with the criminal law in such a way as to enable semi-permanent official government involvement in the lives of Citizens who were convicted and served their sentence was also never considered as being within the American civic Universe.  

Fourth, that the SORNA schemes were not retributive because the categories of those who had to report and the corresponding reporting requirement were reasonably related to the danger of recidivism” – which we know now is clearly not the case. So that if the fundamental obnoxiousness of the whole SORNA scheme to the American legal and civic Universe did not give the justices pause, at least the bald reality of the enabling Findings’ gross inaccuracy should now catch somebody’s official attention.

Fifth, the SORNA schemes “were rationally related to the regulatory purpose, despite the lack of an individualized assessment of the risk of recidivism”. Amazingly on the strength of the demonization of all sex offenders as The Sex Offender, the government THEN sought to sidestep the expensive and potentially embarrassing complications of individualized ‘assessment’ (the whole conceptual category of sex offenses and sex offenders being so mushy, vague, and subjective that you always had to worry about a wide and deep and persistent discrepancy among official ‘assessors’ that could never be hidden for long). This entire treachery – perhaps treason – to the American civic and political Universe or Ethos was verrrry deliberate; they knew what they were doing and what they wanted to do … they simply didn’t want the public to know.

Sixth, the SORNA schemes “were not excessive in relation to the stated regulatory purpose given to the high risk of recidivism posed by sex offenders”. But we all know that the high-risk was grossly inaccurate and - not to put too fine a point on it - doesn't exist and never has.

And finally, in Para. 57 the Dissent gives a crystal-clear example of the whacky echo-chamber of judicial precedent that sustains this Thing: the Dissent quotes a 7^th Circuit Opinion of 2011 that confidently trumpets that “whether a comprehensive registration regime targeting only sex offenders is penal … is not an open question” since – wait for it! – the US Supreme Court decided the whole thing in Smith v. Doe in 2003. This requires the sublimely satiric comedy-stylings of the Marx Brothers.

As the British commentator Theodore Dalrymple says somewhere: It’s easy to hate Evil – but it’s another thing altogether to love Justice. And what’s happened in this Mania has been a politically-convenient stoking of the fires of fear and hatred which not only sought to avoid the harder work of loving Justice (upon which the Republic is built, when you think about it) but also sought to subvert Justice in the American legal Universe. But it was all in a ‘good’ cause, and those who are trying to do ‘good’  – as is well known in some Universe not Our own – cannot do Evil. Which should tell Us here and now that you can’t go mixing Universes.

NOTES

*An excellent example of this sort of thing is AWA itself. It was passed under suspension of the rules and by voice-vote, with the result that there is no record of who voted for it in either Chamber of Congress (or, for that matter, how many Members were actually present and voted).

**This reminds me of another exemplification of this same dynamic: this country entered the Iraq War on the belief (mistakenly or deliberately held) that Iraq possessed weapons of mass destruction. Yet even when – as is now known – the belief was demonstrated to be false (and high-level documents and comments from UK government players indicated that it was deliberate), the Iraq War-Occupation rolled along. It’s as if the government, for some time now, has been sufficiently convinced that the Citizenry is now so thoroughly and helplessly manipulable (so long as you don’t actually say that in public to its face, as it were) that you can stampede the public into accepting just about anything, set up the thing you want set up, and carry on regardless of whether, at some not too distant date, the original pretexts you used to start the stampede are demonstrated to have been false.

This makes me wonder if  this country any longer has a government – and  a Citizenry – from the genuine American civic and political Universe. Or have they both been mutated into entities from an alien one? 

OHIO AND THE ADAM WALSH ACT

On July 13th the Ohio Supreme Court declared in a 5-2 Opinion that Ohio’s legislative effort to comply with the Adam Walsh Act (AWA) violated the Ex Post Facto (EPF) requirement of the Ohio State Constitution and thus could not be applied retroactively and can only be applied to offenders who committed their crimes after the law became effective in 2007. (See the Constitutional Fights article here .

While not the end or even the beginning of the end, it is perhaps the end of the beginning, as Churchill said.

I am going to go through the relatively short but meaty Opinion and make some comments. You may read a brief official Summary of the Opinion here ; the text of the entire Opinion is here . The Opinion is only 23 pages long and not difficult; I recommend it for your reading if you are a little leery of court-documents.

I will refer not to pages but to Paragraphs when quoting from or referring to the Opinion, since as it proceeds each point is placed in a separate Paragraph (I will refer to the Paragraph as “Para.”)

The case is “State v. Williams”, Slip Opinion No. 2011 Ohio 3374. (If you use a search engine, remember that you want the Ohio Supreme Court stage of the case; it went through Trial and Appeals Court phases as well.)

The Opinion starts out with a short Syllabus, which clearly and concisely lets you know exactly what the Question to be resolved in this case: Whether S.B. 10 [the Ohio legislation to enact the AWA requirements, passed in 2007] as applied to defendants who committed offenses prior to its enactment, violates Section 28, Article II, of the Ohio State Constitution, which prohibits the General Assembly from passing retroactive laws.

As you can see, this Question limits the case: the Ohio Supreme Court (OSC) is not going to be looking at all sex offense laws or at the constitutionality of the entire AWA Sexual Offender and Registration Act (SORNA) programme. The OSC is looking at whether the AWA-SORNA, as embodied in Ohio’s S.B. 10, can be retroactively applied to persons whose conviction-offense took place before the law was enacted in 2007. Just so you don’t get your hopes too high up or place too many expectations on the case.

The Justice who wrote the Opinion for the Court – J. Pfeifer – sets out a concise history of this case in Paras. 1-5: George D. Williams was arrested in November 2007 for ‘unlawful sexual contact with a minor’ that took place before July 1, 2007. He was over 18, she was between 13 and 16. He pleaded guilty in open court and in the open ‘plea colloquy’ with the bench it was mentioned twice that he would not have sex-offender “reporting requirements”.

It was now 2008 and Williams moved the Trial Court to be sentenced under the version of the State Law that was in effect when he committed the crime in early 2007, rather than the version (based on S.B. 10, which was trying to implement the new AWA-SORNA regime) that took effect on January 1, 2008. The State opposed the motion, claiming that there was no reason for it and the Trial Court denied the Motion. Thus Williams was sentenced according to the AWA scheme, as a Tier II offender with a 25-year requirement to personally appear and report all his information every 180 days to any county in the State in which he either resided, was receiving an education or taking courses, or was employed.

Williams then appealed to the Appeals Court, claiming that the new regime scheme could not be applied to an offender who committed an offense before the scheme existed in law. The Appeals Court denied him, claiming that S.B. 10 did not violate the Retroactivity Clause in the State Constitution.

Williams appealed to the OSC, and here we are. It is impressive that the OSC accepted the case rather than simply let it slide into the general goo and multi-layered miasm of ‘justification’ which now envelops sex-offense law like toxic putrid gas over a lethal swamp. (More on that below.)

In Para. 6 the OSC characterizes S.B.10 as “one step in the evolution of the treatment of convicted sex-offenders in the State of Ohio”. This, I think, is already going off the rails: if the Court means ‘treatment’ in the therapeutic sense, there is almost no treatment to it, since either no treatment exists, perhaps because no scientifically-grounded diagnosis can be formulated, or because whatever treatment is to be provided is either ludicrously minimal in relation to the purported depth and intensity of the ‘perversion’ (a prison program may simply be some form of AA’s 12-step approach) or else it is held off until after the offender completes his sentence and is civilly confined (and a fine example of therapeutic treatment and medical ethics it is, to deny treatment to a purported sufferer for 5, 10, 20 years).

And it has always interested me – that for such a ballyhooed crime of awful and awesome intensity and proportions, yet it seems that neither treatment nor diagnosis can be reliably formulated for it and that a State can essentially address the issue for most offender-inmates with 12-step programs. Either most inmates are so amenable to intervention that a 12-step program will work for them (in which case, what’s the horrific brouhaha about in the first place?) or else nothing works with them very well (in which case there is nothing ‘therapeutic’ to be done and courts and legislatures should stop trying to smile their helpfully therapeutic crocodile smiles).

In fact this is the reason there is any need – such as it is – for a ‘national coordinating Registry’ to begin with: the ‘sex offense’ and the ‘sex offender’ are such amorphous and fuzzy concepts that any two States or therapeutic practitioners or observers will most likely come up with differing, perhaps mutually exclusive or incoherent, descriptions, definitions, diagnoses, prognoses or treatment. The AWA solution? The tee shirt/bumper sticker says it:  Call’em all incorrigible, recidivist, sex-offending Monsters and let God sort it out. Such Solomonic legislation. Oh, which also is not to be construed as the pols saying they actually or officially believe in God (in case they offend their secular ‘base’).

You might think that the most logical thing to do – demanded by the problem here – would be to back off and assemble professionals and scholars (in the genuine, not the advocacy, sense) and get the basics in order (shocking as it is to think that this wasn’t done at the beginning when all this was started). BUT that’s not what happened: AWA happened instead.

Why? Because this has never been about a disease or disorder and diagnosis and therapy to begin with. This whole thing has been a politically-constructed Monster and ditto a public stampede, with the ‘therapeutic’ dragged in only later after it was necessary to somehow avoid the Retroactivity-punitive problem and support the semi-permanent civil confinement of sex offenders after their sentences had been served. And given the rather reserved response of the genuine professional community from the get-go, a gaggle of ‘advocacy scholars’ had to be raised up overnight (see my recent Post “Junk Advocacy Science”); cottage-industry entrepreneurs whose bread would come from providing the benefit of their ‘expertise’ to bolster government and advocacy claims, and surfing the waves of federal cash (ahhhh – those were the days) pumped into the SO Mania industry.

Para. 7 notes that the classification scheme in effect at the time Williams committed his offense was based on Ohio’s version of the mid-1990s federal Megan’s Law schematic. Whereas Ohio’s current classification scheme, S.B.10, was enacted in later 2007 to comply with the federal 2006 AWA-SORNA.

(And  that case, Megan’s, as you may recall, was premised on the sudden switch in the parents’ story: after consultation with eager advanced-level  ‘advocates’ they suddenly claimed that they did not know that the guy across the street was a convicted sexual deviant, whereas the earliest local media reports had referenced many parents on the street for whom the man’s queasy oddness was the subject of much common discussion … such are the blessings of a too-organized advocacy looking for a reely reely good case as a ‘hook’ to hang their schemes on. On the basis of that sudden and hugely strategic change in their story, the entire justification for any sort of SO Registry was grounded: ‘if only the parents and neighbors had known’ … but they did; they did know enough to suspect him and – with one awful exception – keep their kids away from him).  

Justice Pfeifer writes here that “Because we conclude that S.B. 10 violates the Ohio Constitution, we need not discuss whether S.B. 10 violates the U.S. Constitution”. But since all the State Constitutions essentially reproduce the fundaments of the U.S. Constitution, and thus also in that sense resemble each other, then when one State finds some aspect or essential element of legislation unconstitutional it opens such legislation up to the possibility of being unconstitutional for all the other States and for the national Constitution.

In Para. 8 the Court applies the first prong of a two-prong test that the entire court system has developed to determine the whether a law is Ex Post Facto (EPF) and therefore violates the vital and utterly fundamental constitutional prohibition against Retroactivity. Did the Ohio General Assembly actually intend for S.B.10 to be applied retroactively? It did. (Neatly and slyly, in the Federal AWA it is left up to the Attorney-General to decide if the law should apply regardless of when the offense was committed – a sordid strategic shell game whereby Congress dodges the Retroactivity problem (and it’s conceptually a doozy) and leaves it up to an Executive Branch that stands a better chance of doing the dirty without a flag being thrown on the play.)

But then in Para. 9 to the second and more complex prong: “a statute is substantive if it impairs or takes away vested rights, affects an accrued substantive right, imposes new or additional burdens, duties, obligations, or liabilities as to past transaction, or creates a new right.” On the other hand, “remedial laws, however, are those affecting only the remedy provided, and include laws that merely substitute a new and more appropriate remedy for the enforcement of an existing right”.

And this is important because “the retroactive clause nullifies those new laws that ‘reach back and create new burdens, new duties, new obligations or new liabilities not existing at the time the statue becomes effective”. Does S.B. 10 (mimicking the AWA SORNA scheme) ‘reach back and create new burdens’? Or does it simply tweak existing ‘remedies’  (that, neatly, have already been determined by many court decisions in all jurisdictions and at all levels, to be constitutionally OK because they are merely ‘remedial’ and ‘not criminal’)?

You can see here where once the SO registration survived its first major court challenge as to its constitutionality (in the 1995 New Jersey Poritz case; see the series on this site in August-September 2009), then the burden of any further serious thinking on this highly-fraught and highly-dubious scheme was removed; subsequent courts, when faced with constitutional challenges to SO Registrations in their own jurisdictions, could simply cite Poritz and get themselves off the hook. And then, of course, the US Supreme Court slapped down the Alaska Supreme Court in the 2003 Smith v. Doe case (see case here and wiki here) when it reversed that Court’s courageous ruling that the whole thing was indeed in violation of retroactivity; no, said the Supremes, the SO Registration schemes are “non-punitive” – thus putting the vital Supreme Court seal of approval on the whole thing.

I feel that the whole idea of registering people for crimes is fundamentally and irredeemably antithetical to the American Vision and ethos: it deploys the ever-dangerous government authority to permanently label citizens, and in conjunction with a government-enabled smear campaign to terrify and enrage the pubic with egregiously false information and ‘Findings’ it amounts to outright manipulation of the Citizenry by the government and the advocates whom it has chosen to ‘valorize’; that it smacks of totalitarian police-state practices; and that in involving the federal government in areas where the States are constitutionally in authority it centralizes power (and in the SO case very sleazily and lethally wielded power) in the national government rather than allowing the individual States to handle matters as they see fit. (The excuse being that in a ‘mobile society’ the ‘sex offenders’ can easily go from State to State so the national government has to do something; but there are very few stranger-child molesters who kill children, and I think it lethally unwise to undermine the entire American Framing Ethos, especially as it is embodied in legislation and jurisprudence, simply to deal with such rare (though telegenic) instances of monstrosity.)

So I’d like to see this entire Thing struck at its roots – but both Congress and the Supreme Court have made that much much harder to do, since Congress embraced the highly-fraught conceptual gambit that ‘public safety’ outweighs any other consideration whatsoever (Hitler’s very first and most fundamental enabling legislation was entitled The Emergency Law for the Defense of the Government and of the People) and then embraced all sorts of whackulently inaccurate information in its Findings, which the Supreme Court then piously bleated that it had to accept as accurate as it cut-and-pasted its own freshman or sophomore distinctions between ‘punitive and non-punitive’. Once Congress and the Court had done the heavy (and dirty) lifting, all the smaller fry could – unless marvelously courageous – simply point to the big guys and piously bleat that they had no choice but to go along. Neato.

As I have said before some time ago on this site, should the government run itself out of money (which it now appears it is close to doing*) then this monstrosity will wither on the vine because of insufficient cash to pay its enablers and administrators and advocates. But it would say more for the health of Our political system and the robustness of Our grasp on the Genius of the Framing American Ethos, and the political competence of the Citizenry, and the integrity of legislatures and courts, if this Thing could be acknowledged and declared to be the lethally and gravidly dangerous Monstrosity it truly is.

But here we are in Ohio and this case.

The key question here, as the OSC frames it, is: is S.B. 10 ‘substantive’ or ‘remedial’? (This is separate but not unrelated to the questions: is SO law ‘criminal’ or ‘civil’? and ‘punitive’ or ‘non-punitive’?)

In Para. 10 the Opinion states that the Court “has consistently held” that the applicable State SO Registration law “is a remedial statute”. But it then admits that “there is no absolute test to determine whether a retroactive statute is so punitive as to violate the constitutional prohibition against ex post facto laws; such a determination is a matter of degree”.

I’m not so sure of that myself. It seems to me that if you are going to exercise the sovereign legal authority and power in such a way as to deprive a person of a right (as opposed to a privilege), especially  in connection with a criminal conviction, then you are into Retroactivity no matter whether your intention is ‘remedial’ or ‘punitive’. This SO Registration and Notification isn’t at all just like a simple matter of ‘renewing your driver’s license’ or of having it taken away after a DUI/OUI conviction; it isn’t at all simply a matter of losing your medical license after a conviction for malpractice. SORNA wants to publish what you did (or at least were convicted of) AND to do that in the context of an already (and shrewdly) established terrified and enraged public misapprehension about what you ‘therefore are or at least probably are and what you always will be’. It has to demolish you in your fundamental dignity as a human being in order to justify twisting the Constitution into a pretzel to Register you as a sex offender. Such brilliance.

So the government FIRST creates an atmosphere of terror, horror and outrage among the public; THEN it convicts you (with whatever skullduggery might therein be involved); THEN it ‘tags’ you semi-permanently not only for what you (allegedly) did but for what sort of a monster you allegedly are; and THEN – to escape the constitutional consequences of such a treacherous gambit – it insists that it doesn’t mean to hurt you further by publishing all of the ‘information’, the publication of which in the already superheated public atmosphere that presumes that there are not only sex offenses but Sex Offenders, effectively quashes any possibility of housing, employment, education, or even the ability to live in peace after having paid your debt to society (which a whole lot of Americans have done over the centuries). BUT, it claims, it’s just a ‘remedy’ in the interests of public safety (since you are so irremediably and uncontrollably prone to do what you did again or even worse than what you did).

I’d say that there is an absolute test: if you are going back and by deployment of the Sovereign Authority are making a once-convicted Citizen’s life harder at all on the basis of a conviction for which the sentence has been served, then you are into Retroactivity whether you operate through the civil or criminal law. The whole idea behind the prohibition against Retroactivity was to prevent the Sovereign Authority from reaching back and considering itself empowered to permanently interfere in the lives of Citizens once convicted but who had cleared their debt to society, as the saying goes.

And that ancient prohibition was based both on the healthy doubt about the reliability of Sovereign Authority and on the hardly surprising wisdom that if the government keeps going back to re-open the wound of a particular crime (presuming it was an accurate conviction) then you were soon going to fracture the community and the common weal: because everybody commits a crime sooner or later.

But of course, the treacherous gambit in the SO Mania is to claim that this type of crime is soooooo bad … although a) the definition of it is hugely elastic and b) what’s to prevent a government so engorged with such precedent from going and declaring some other crime equally awful, and thus by degrees turning the entire Citizenry into some form of especially-awful criminals? And, of course, if this Monster is ‘evil’ and I am not that Monster, then (in the self-serving alchemy of human psychology and emotions) I am not a Monster, not ‘evil’, and instead am perfectly ‘good’… this is catnip to an immature and fragile psyche.

Of course, as I have always been saying on this site, the roots of the SO Mania are multiple: a government that is looking to expand its power over Citizens while trying to get around a democratic ethos that still retains the formal limitations of the Framing Vision; a government looking to please its ‘bases’ in an age of polity-fracturing Identity-Politics; a government that is seeking to distract Citizens from consideration of more pressing and urgent national problems (20 years ago, thus, the problems of an increasingly shaky international and national economy); a government capitalizing on a Citizenry increasingly pushed by assorted cultural forces into a less-competent, less-rational, more emotional and more infantile mode of processing and even selecting vital news and information; a government whose functionaries had mindlessly lost or willfully abandoned any sharp vision of the American Constitutional Ethos; and ultimately a Citizenry that is indeed far less competent in the awesome responsibilities incumbent upon serious Citizens of a large democracy.

And this is precisely where the fraudulent and feculent claims and ‘Findings’ of sex-offense ‘science’ to the effect that SOs have hugely higher recidivism rates comes in: they are the pretextual excuse (and a repellently dishonest one) for the insistence that there is no such thing as a once-convicted and now former sex offender. Instead there is only the Sex Offender: either Not-Yet-Discovered or Already-Convicted or Waiting-to-Strike-Again … but in any case an ever-active evil and criminal force that justifies Registration and Notification because SOs are never really finished with their offenses. With very very few exceptions no such Monsters exist; and if one thinks that the government belongs in the Monster-destroying business one can simply look at Iraq and Afghanistan to see just how good it is at that. And it learned its baaad lessons about Making-and-then-Chasing Monsters from its experiences in the deliberate creation, tagging, and tracking of The Sex Offender while also deliberately whipping up a grossly misinformed public sense of terror and outrage.

The Court in Para. 10 says that it’s a matter of degree: that it’s just a matter of when the government reaches a tipping-point where something becomes (intended or not) punitive in its effects. That may work in cases with no criminal-conviction connections: how far can (a State, local or the federal) government go in protecting restaurant patrons from improperly prepared food? But even in this forum, once the Sovereign Authority at any level starts to deprive a Citizen – even for the sake of other Citizens – you have to be verrry careful: take Eminent Domain law, where your dear old home can be taken for public purposes … that power has been expanding in the past decades so that you can be evicted not for some pressing public need but simply because the municipality feels it can now make more money by using your property in other ways.  

But if that Eminent Domain development is unquieting, then the SO Mania gambit is profoundly disturbing. Having created a ‘market-against’ SO Monsters, the government and its chosen advocacies then expand convictions (by weakening due process, by deliberately poisoning public opinion – and any potential jury pool – with sensationalistic tidbits and grossly inaccurate facts, and by a dance of madness by which pols respond to increasingly whackulent claims by accepting them and erecting increasingly draconian laws). And THEN to keep up the press, declare not only the Act to be repugnant (what felony isn’t, if you think about it?) but the Perpetrator (a Citizen, let’s not forget) to be some sort of incorrigible Monster who will never and can never cease to be a Monster and so can never be allowed to ‘finish’ with the Sovereign Power.

Even if that means the wrecking of  reputation, possibility of employment, education, residence, raising a family, or simply conducting one’s life peaceably (the scam here: by definition as an incorrigible Monster, the SO can never ever live a peaceable civic life and probably never has – so the government isn’t taking anything he already had to begin with).

Well, grant the OSC its ‘tipping point’ approach: I suppose by this point things are soooo screwed up that there really is no rational way to back down without exposing the torturously frakkulent and jerrybuilt conceptual legal path by which legislatures and courts got things to this point. So they will have to back off along different paths, so as not to expose the dreck-strewn one they forged to get here.

Thus the ‘tipping-point’ rationale: the SO Mania Regime was OK constitutionally to begin with, but now it’s really gone too far. It’s not the heroic thrust to the heart of the Thing, it’s not Luke putting one right down the throat-vent of the Imperial Death-Star, but it’ll take a bite outta this Thing at least.

In Para. 11 the Court admits that even when it did hold that the SORNA requirements were only ‘remedial’ and not ‘punitive’, there were still a couple of elements that suspiciously smelled of punitive-ness:  the SO laws were placed within the State’s criminal code and a violation of them resulted in a criminal offense**.

In Para. 12 the Court generously admits the role of Justice Lanzinger who had Dissented in prior cases upholding the constitutionality of the sex-offender laws: she had written that the rules had changed by becoming more onerous.

And in Para. 13 you are treated to a full broadside of her assessments: First, “the label ‘sexual predator’ is now permanent for adult offenders, whereas previously offenders had the opportunity of having it removed.

Second, “registration duties are now more onerous and are no longer comparable to the inconveniences of renewing a drivers license”.*** “Persons classified as sex-offenders must now register with the sheriffs of the counties where they reside, work and go to school. Sex predators must now register with potentially three different Sheriffs every 90 days, which is hardly comparable to the slight inconvenience of having one’s driver’s license renewed every four years.”

Third, “community notification has now expanded to the extent that any statements, information, photographs, or fingerprints that an offender is required to provide are public record and much of that material is now included in the sex-offender database maintained on the Internet by the attorney-general. In [an early sex-offense case] we considered it significant that the information provided by sex-offenders to sheriffs could only be made known to a restricted group of people”.****

Fourth, “new restrictions have been added … [a rule approved by the General Assembly in July 2003] prohibits all classified sex offenders, not just those convicted of sex offenses against children, from residing within 1,000 feet of any school premises”. *****

And fifth, “A sheriff is now permitted to request that the sex-offender’s landlord or the manager of the sex-offender’s residence verify that the sex-offender currently lives at that address”. Quoting applicable Ohio law, she notes that this task may be done by “any sheriff or designee of a sheriff” [italics mine]. I note here the huge and dangerous loophole this opens: for entrepreneurs or – which is worse? – ‘advocates’ or ‘watchdogs’ to get themselves designated by a sheriff and start fanning out to whatever purposes their particular plan drives them. Especially since the same law specifically and explicitly puts no limit whatsoever to the number of times such a visit by such an inquirer may be made; it is hardly impossible to imagine a landlord evicting a resident simply because there have been too many (deliberately so?) ‘visits’ and it’s easier for the landlord to be rid of the tenant and thus the ‘official’ inquirers. We approach in this some dark and queasy place that represents not ‘progress’ but ‘regress’ in American and Western law.

She continues in Para. 14: “While protection of the public is the avowed goal of [the Ohio sex offense law], we cannot deny that severe obligations are imposed on those classified as sex offenders. All sexual predators and habitual sex offenders are expected, for the remainder of their lives, to register their residence and their employment with local sheriffs. The stigma attached to sex offenders is significant, and the potential exists for ostracism and harassment, as the Cook court recognized.” I note that it was precisely this point that the Poritz court (New Jersey, 1995, upholding the original Megan’s law there) pooh-poohed as being a possibility unworthy of the citizenry – although it was clear even then that the citizenry had been whipped to a frenzy and deliberately (and somewhat untruthfully) so.

“Therefore”, she concludes, “I do not believe that we can continue to label these proceedings as ‘civil’ in nature”.

In Para. 15, Justice Pfeifer, writing for the Court, nails it: “Following the enactment of [the Ohio effort to conform to AWA-SORNA] all doubt has been removed: [the Ohio AWA-compliant sex offender law] is punitive.” [italics mine]

In several following Paragraphs the Opinion compares how Williams would be treated under the original Megan-type system (which I still consider to be constitutionally and conceptually and morally atrocious itself), under the post-Megan but pre-AWA modifications, and then under the full-blown AWA-compliant modifications enacted in S.B. 10.

And in Para. 20 Justice Pfeifer observes that “no one change compels our conclusion that S.B. 10 is punitive. It is a matter of degree whether a statute is so punitive that its retroactive application is unconstitutional”. But again, nice as it is to hear that they don’t approve of the Ohio AWA legislation, I am not comfortable with this idea that a statute can be punitive but still that’s OK so long as you don’t make it retroactive. Isn’t it punitive – and excessively so – for all those who get caught up in its toils now (i.e. there is no ‘retroactive’ dimension)? Isn’t this entire approach and scheme and Regime lethally anti-constitutional to begin with? (I mean … if you take the American Ethos, and not the French Revolutionary or Soviet Revolutionary visions, as your basic starting point. Which is probably another Post all its own.)

In Para. 21 he asserts in his Conclusion that “The General Assembly has the authority, indeed the obligation, to protect the public from sex offenders”. Yes-but. Depending on whether you’re starting from the American, the French, or the Soviet Vision and Ethos, you get verrrrrrrry different values and operational definitions for the terms ‘authority’, ‘obligation’, and ‘protect’.

And THIS is THE vital and huge Question that lies at the base of not only the SO Mania Law and Regime, but also the Victimist ‘reforms’: granted that such and such a problem exists, but can it be addressed by the American Ethos and yet still have that Ethos and that government remain genuinely American? (This is a variant of Hannah Arendt’s observation in regard to the Eichmann trial that was discussed in the immediately prior Post: how far can a Western government go in addressing Nazi crimes without descending into Nazi-like actions itself?)

I think Justice Pfeifer is giving too much away here in Para. 21, but I don’t blame him for starting the problem. Since the inception of the SO Mania two-plus decades ago, this Question is the elephant in the middle of the room that nobody has talked about – and that the ‘reformers’ and ‘supporters of the SO Mania’ wanted to stampede everybody by before anyone had a chance to think about it: How and how far can the American government go in ‘protecting’ and ‘preventing’ and still remain the American government (rather than simply behaving for all practical purposes like the French Revolutionary or Soviet government, but under the disguise of the familiar old Constitutional pieties)?

Now this is a political hot-potato. Because this Protection-and-Prevention trope is the centerpiece and efflorescence of Victimist law and the more radical or core versions of Law as it serves the Feminist Agenda. And nobody has wanted to suggest that those still politically-connected advocacies are actually introducing as ‘progress’ and ‘reform’ legal changes which are compatible only with the French-Revolutionary or the Soviet legal universes and not with the fundamentally and genuinely American legal universe and its ethos and Vision.

But I am suggesting that this Question must be posed. And I would also point out in support of my thought that in this nation’s foreign policy in the past two decades We have seen essentially French Revolutionary or Soviet principles and practices declared to be as American as apple pie: Preventive war? Torture? Abduction without warrant and across international borders? Invasion and occupation for the purpose of Liberation or simply regime-change? Imprisonment upon the mere declaration of government executive authority? And such imprisonment to be of unlimited duration? Arrest or abduction merely on the say-so of a party who may well have an interest in eliminating the accused? No possibility of habeas corpus or judicial review of one’s imprisonment? (Somewhere in here I think a line was crossed into Nazi vision and ethos.)

Yet I would say that We have seen all of these repellent and genuinely anti-American principles and practices presaged in the SO Mania Regime and its older twin the Domestic Violence Regime, and in the fundamental principles, visions, objectives, and universes of Victimist law.

So I am very pleased with the courage shown by the Ohio Supreme Court (it had two Dissenters who basically say that There isn’t any real change to stuff we’ve already said was OK). But there is a long long way to go. Because whether the government cash runs out or not, the most profound damage has been done to the genuinely American universe of legal and political values, and it has all been done ‘in secret’, under the cover and pretext of ‘reform’ and ‘change’ when really it has been a steady flow of corruption and decay in the vital Ideals of the American Experiment.

We can’t hide from that awful reality forever. Or for much longer.

NOTES

*Current US House Bill H.R. 2596, in Title II,  proposes a budget for the Justice Department. (See here for link to Bill’s linked subheadings; scroll down to ‘state and local enforcement assistance’ and you will see in subheading “(25)” that out of 437 billion dollars or so allotted to the Justice Department, 9 million is allotted to “assist State and local law enforcement to locate, arrest, and prosecute child sexual predators and exploiters, and to enforce sex offender registration laws”. Whether this represents all of the monies ‘available’ (whatever that means in terms of today’s government budget realities) to keep this Thing going, or whether there are other pots and crannies where monies can be hidden for it, or whether this is just a desperate government’s last Grand Deception to keep it’s ‘bases’ happy … is anybody’s guess. You can look at the entire Bill here .

**This is similar to the Domestic Violence Regime’s sly conceit: to be deprived of property or relationships or assets merely on the say-so of another person is only ‘civil’, although the Court Order so depriving you carries a criminal penalty if you disobey it. This is the type of slyly lunatic Red-Queen legal ‘reasoning’ that virtually screams ‘Going through the looking-glass!’ like a warning buoy’s whistle near the rocks on a dark and stormy night.

***This particular ‘drivers license’ excuse always struck me as repellent: nobody could mind being publicized as the practicing holder of a drivers license. But to be publicized as a ‘sex offender’, given the huge elasticity of the definition and the potent poisoning of the public’s mind by government and determined advocacies alike and abetted by sensationalist and cash-hungry media … THAT wasn’t at all the same thing as renewing a drivers license. I would also say that while a drivers license is a privilege, a good name and reputation are a right that, if not enshrined in the Constitution was omitted merely because it was beyond the imagination of any Framer that any US government or official would ever imagine that the government had any right to fatally and deliberately damage it.

Nor can you make a case that SORNA was the equivalent of a doctor convicted of malpractice having his license to practice revoked and having that information put up on the special state website for Doctors’ Information. While malpractice is narrowly and specifically defined, and the registration would only prevent an un-credentialed doctor from practicing illegally in the State, the SO Registry effectively wrecks residence, employment and educational opportunities, and prevents any significant or substantial amount of social interaction at all. And while a malpractice finding does not impugn a doctor’s essential personhood or cast into doubt his/her inclusion among the ranks of human beings and Citizens, naming anybody officially with the ‘Sex Offender’ or ‘Sex Predator’ label constitutes nothing less than a government-approved (and, treacherously, abetted) denial of that person’s essential humanity and the ability and right to further conduct a human life. And a national registry (or linked-registries) simply amplifies any State’s labeling across the entire nation.

****I would add here that there is a lethal and large probability that in an age of interlinked government databases all sorts of nasty mischief could arise, especially since information is now exchanged almost automatically between ostensibly unrelated systems with no notification to the individual concerned (consider, for example, the whole Homeland Security network and its tentacles). And this doesn’t include the myriad possibilities of internet entrepreneurs who either buy or hack information (accurate or not) and then deploy large search-engine programs to ‘track’ a targeted name or social security number or what-have-you.

*****And again, you see here the nonsensical paths that these malevolent Mania energies will take when un-boundaried by rationality or actuality: a non-child-oriented sex-offender is not going to have any SO-relevant interest in ‘children’. Yet in the public mind and in public Law there is nothing but a vast fused, molten mass of un-truth, anti-truth, half-truth, and fear-driven phantasmagoria, all shrewdly abetted and endorsed by government and amplified by media.

ADDENDUM

I want to invite your attention to an Amicus Brief filed on behalf of George Williams by the Texas Association Against Sexual Assault; the text is here (L8). Although I haven’t had enough chance to read all the supporting Filings in this case – and there are several Amicus Briefs for George Williams – this one caught my eye for obvious reasons: if even the advocacy groups are sensing that the Mania has gone too far for too long and is achieving nothing, then that is certainly a development to be carefully considered.

The point that immediately strikes me is this: if this Filing represents even a significant fraction of the advocacy assessment and opinion of sex-offense laws, then what pressures existing in the overall Mania mix resulted in the mess that is AWA?

EICHMANN AND THE SEX OFFENSE MANIA

This morning I came across a review* of a new book about the trial of Adolf Eichmann in 1961, now 50 years ago. Eichmann, you may recall, was the Nazi SS Lt. Col. who was in charge of arranging the transport of huge numbers of Jews to the labor and/or extermination camps. In 1960 he was located by the Israelis living in Argentina under an assumed name. Mossad agents went to Argentina, abducted him (they prefer ‘captured’ him), took him to a local prearranged safe-house, threatened him with instant death or a trial in Israel, drugged him to make him look drunk, escaped a police check-point, and passed him off to security personnel at the airport as a drunken El-Al employee heading back home to Israel. He was subsequently tried in Israel, condemned to death, and executed. (You can review Eichmann’s wiki entry here ).

I am going to discuss this case only in terms of its (remarkable) significance for SO Mania law. The reviewer, Douglas – a law professor – supports the author, Lipstadt, and I am only making comments based on his review-analysis of her book.

Let me say right off that I most certainly am convinced that the Holocaust took place, that it was a monstrous injustice, and that it was and remains a shocking affront to any genuinely human civilization, especially Western civilization. And that the Jewish people had always been active and valuable contributors to the European and Western culture that existed prior to Hitler’s rise and rampage.

Lipstadt seeks in her book to update the assessments made by the trial at the time half a century ago and subsequently.

She notes that at the time Hannah Arendt had attended the trial and reported on it and then written a book entitled “Eichmann in Jerusalem”. Lipstadt is not satisfied with Arendt’s account because “it was a highly critical account that itself has been the subject of great controversy” and Lipstadt (and Douglas) want to move around or beyond Arendt’s well-known analysis which, Lipstadt feels, has a “stranglehold” on public conception of the matter.

In writing her book Lipstadt says she was guided by her own (successful) experience countering a lawsuit by noted author David Irving in 1996, in which she prevailed against his assertion that the Holocaust did not happen. Between the Irving case and Eichmann’s case she finds a common thread: both Irving and Eichmann were anti-Semitic. Without centuries of anti-Semitism, she asserts, Hitler would have found it impossible to carry out the Holocaust and then the later denials that the Holocaust ever happened. (I’m not fully in agreement with that assertion but that is not relevant to the SO matters discussed in this Post.)

Arendt’s take on the matter was that the Israelis themselves failed to appreciate “the unprecedented challenge that acts of state-orchestrated genocide present to the legal imagination”; Arendt was not satisfied with the approach of the Israeli prosecutor, who focused only on his “treating the Holocaust as simply the most horrific expression of centuries of anti-Semitism”.

Part of the problem here was that David Ben Gurion, the Israeli Prime Minister of the day, sensed that by 1960 a generation of Israeli young were growing up with a dimmed awareness of the Holocaust that had happened before they were born. It would help, he realized, to provide some flesh-and-blood reminder; thus Eichmann’s trial was to serve not only as an act of justice (or at least the imposing of justice on a pre-determined conclusion) but also as a sort of educational theater for Israeli youth too young to remember the Holocaust. While this made some real sense in the unique matter of the Holocaust and Eichmann’s clear part in it, you can see where such a determining use of ‘justice’ to ‘educate’ about ‘monsters’ starts to lay a disturbing precedent for the type of SO Mania ‘justice’ and trials in our own era.

Arendt took issue with the prosecution’s strategy of simply asserting that “the history of the Jewish people is steeped in suffering and tears”. There was more to it than that, she asserted: the Holocaust’s assault on the fundamental canons of Western law and culture and – much more difficult for the prosecution – the impact on Western governments as they tried to deal with such a monstrous undertaking. (She was going towards the idea that in seeking to avenge or bring-justice in the matter of the Holocaust Western governments were faced with the torturous challenge of avoiding Nazi-like actions themselves. AND the solution hit upon – lethally – was that if you are a Good government then you can perform the same type of actions but they won’t be Evil because Good entities – governments or people – by their very nature can’t do Bad and Evil things … which is precisely the presumption Victimism tries to manipulate you into making: Victims are by definition Good, if only because victimizers are by essence Evil, and so whatever a Victim does or says may always – and always must – be considered as Good.

In the Israeli prosecution’s strategy I see a substantial thread of a then-nascent Victimism and indeed a group-identity of Victimism: one group has been (terribly and monstrously) wronged and in such a profound and extraordinary way that standard legal procedures could not be followed if a government were to bring (some form of) justice to the matter.

Thus the deliberate abduction of Eichmann on another nation’s sovereign territory, and the purposeful evasion and deception of that nation’s own authorities, constituted at the very least a blatant violation of Argentinian sovereignty and possibly constituted an act of war.

The Israeli courts as well as the prosecution were clearly aware of that problem, and attempted to avoid any discussion of the legality of Eichmann’s abduction/capture; claiming, in a legal gambit that in those days would not have found favor in the US legal system, that the legality (or illegality) of his abduction/capture had no substantive bearing on the legality and rightness (two rather distinct categories) of his trial (since the crime with which he was charged – “orchestrating genocide” as Douglas nicely puts it – was so awful).

And Lipstadt and Douglas are equally sensitive to the matter now: Douglas, echoing Lipstadt, refers to the entire Mossad episode in Argentina as “an audacious kidnapping orchestrated by Mossad” without following up on the fact that ‘kidnapping’ is, not to put too fine a point on it, a crime. And in this case a government-sponsored crime (although Israel would claim, when pressed, that the Mossad agents were “acting as private citizens” (vigilantes, therefore) – which hardly settles the matter). You note the neat verbal symmetry: since Eichmann ‘orchestrated’ something, then a sovereign government is justified in ‘orchestrating’ something right back at him.** And perhaps also that there is something ominous in that cheerible “audacious” that doesn’t quite mesh with the American approach to government wielding its power.

Lipstadt and Douglas prefer to quickly pass over the capture/abduction (it couldn’t at the time be called an ‘arrest’) and want the matter to focus on the trial.

In the trial, the prosecutor’s strategy was to “avoid the numbing arithmetic” by structuring “the Eichmann trial around the testimony of the survivors”. This – and Lipstadt and Douglas support it – was a gambit whereby “eyewitnesses to the destruction could connect the anonymity of state-sponsored killing with the suffering of concrete individuals”. And you can see here the introduction of a tactic whereby ‘stories’ or ‘narratives’ are relied upon to finesse any touchy legal questions of validity and to put a human face of pain and suffering to the charges. This, says Douglas the law professor, “was arguably the trial’s greatest contribution to posterity”.

I cannot but agree.

The trouble – prescinding from the state-sponsored kidnapping and violation of another nation’s sovereignty – is that the Eichmann trial dealt with an undeniable and genuinely monstrous civilizational violation, i.e. the Holocaust, about which no reasonable person could have any doubt. But when American Victimism and especially in its Sex-Offense mutation adopted this ‘template’ or ‘paradigm’ or ‘strategy’ or ‘gambit’, then there develops a huge disconnect: while ‘rape’ surely is a repellent crime, there is no such instant and undeniable presumption before any individual’s trial in any specific case that the alleged act actually happened. Holding former SS officer Eichmann responsible for his part in the Holocaust is one thing; presuming that any ‘sex offense’ is equally as certain to have happened and to have been perpetrated by the accused is another thing altogether. And if that is what ‘victim-friendly law’ or ‘victim-friendly rape law’ requires, then such a requirement must be acknowledged for what it is: a profound undermining of essential American legal principles.

Yet indeed that widely held ‘presumption’ is precisely what American Victimism tried to establish (and largely succeeded in doing so for quite a while, even up to now) in public opinion. AND, even worse, in American law where the presumption-of-innocence in regard to the accused  (see my immediately previous Post) is utterly fundamental to American law and, consequently, cannot be abolished or undermined (by, say, being transferred to the allegating ‘victim-complainant’) without destabilizing and undermining the entire American approach to law and the rendering of justice.

And, of course, in SO Mania law, ‘rape’ is only one of an extensive menu of eligible crimes, most of them involving acts far lesser in gravity. (Though of course, to counter that inconvenient fact, the Mania sought to conflate all sexual crimes as equally terrible in their consequences and nature, such that any thought as to proportion or perspective could be swept aside as ‘quibbling’ and ‘insensitive’ and ‘re-victimizing’.)

The use of ‘suffering’ and ‘stories of one’s suffering’ by indubitable victims of a Holocaust that indubitably happened are fair play in the trial of an SS officer who indubitably commanded the special SS Office responsible for carrying out the selection-and-transport logistics of the Holocaust.

But again, you can see what might easily happen (and has, in the SO Mania Regime) when there is room for reasonable doubt (prior to the presentation of sufficient and valid evidence) as to whether an individual committed a specified act.

As Douglas puts it well enough, the Israeli prosecutorial gambit “imaginatively placed survivor testimony at the legal fore [sic] of the case”. Again, it is legitimate in the utterly unique setting of the trial of a key former SS officer in the matter of the Holocaust; but once ‘survivor stories’ are endowed with a sort of free-standing and indeed overriding evidentiary authority as if – to use Bernard-Henry Levy’s phrase quoted in the immediately preceding Post – they were “Gospel” then you are into something else entirely and have gone into dark and treacherous legal ground indeed.

Nor can the indubitably accurate term ‘survivor’ when used in the context of those who survived the SS camps be so easily and without-consequence appropriated by those who neatly arranged to have the Holocaust-paradigm (or game-plan) run in the SO Mania Regime.

Further, Douglas notes that another effect of the ‘survivor story’ strategy was to “transform the trial’s spectators [there were no jurors, only a panel of 3 Israeli judges] into witnesses to the witnesses, persons with a direct connection to the narratives of unimaginable atrocity”. Which in the context of a Holocaust trial of a key former SS officer facing camp-survivors is legitimate, especially given the civilizational import of the Holocaust for all Western peoples (if not also all human beings).

But when this element is transferred to individual trials in SO cases, where there are jurors as well as spectators (and given the media attention back in heyday of the SO Mania, the entire public were spectators) the whole thing mutates into a stampede and a form of emotional manipulation and perhaps even intimidation, which works (as the advocates and prosecutors would well know) against any rational and objective and dispassionate consideration of the actual facts presented in the case.

(Interestingly, and this is a brief and acknowledged digression on my part, Douglas compliments Lipstadt for doing an especially good job in describing “the resistance that the planned trial aroused within the American Jewish community, whose members questioned Israel’s right to speak as the representative of world Jewry”.)

Lipstadt also rejects Arendt’s now-famous assertion that Eichmann was not so much a zealous psychotic as simply a banal careerist who switched off his moral voice and did what he had to do to get ahead in his chosen career (i.e. Hitler’s SS, where he won promotion for overseeing camp-transports). Rather, Lipstadt insists, other later scholars now consider Eichmann to have been “extremely anti-Semitic and that these feelings were important motivators of his genocidal actions”.

I’m not sure that that has been so clearly established, especially since Eichmann would have had to publicly mouth a great deal of Nazi racial claptrap in order to keep his creds in the SS. (Arendt here may have been on to something that Charles Fair noted in his 1971 book “From the Jaws of Victory” about great but failed military commanders: they (and Fair specifically mentions Hitler among others) reveal themselves to be, when not ‘performing’ in front of an audience as Leader and ‘let their hair down’, utterly mediocre human beings, intellectually, socially, and of course morally.)

Rather, there would certainly be a need to insist that Eichmann’s deeds were not simply criminal in themselves, but that Eichmann himself was a monstrously flawed (anti-Semitic) individual. And this strikes me as similar to the Victimist need not simply to establish the accused’s guilt for having committed an act, but also to insist upon the profoundly (and incorrigibly?) monstrous attitude that the Sex Offender has toward his victims (and, to give a not-inappropriate feminist spin to it) all women. In the symmetry of the paradigm, being in one’s heart misogynist or patriarchal or anti-woman is the equivalent of the anti-Semitic element in the case of Eichmann.

Douglas does have one substantial bone to pick with Lipstadt, however. She “does not fully consider the legal legacy of the proceedings”. Douglas considers the 1961 Eichmann trial to be at least as significant as the 1946 Nuremberg trials of Nazi war criminals. The Eichmann trial, he says, specifically initiated in international law the establishment of “universal jurisdiction” whereby the profoundly awful nature of the crime (the Holocaust) by itself conferred a right of jurisdiction upon any government that chose to involve itself (which, of course, also neatly justified the Israeli abduction-capture-kidnapping after the fact). The nature of the crime alone was sufficient to justify any government in taking steps (legally, it must be hoped) to render justice. The Israeli court neatly considered Eichmann to be similar to “a Barbary pirate” – piracy being so odious a crime in the days of sailing ships that any sovereign authority that captured one was considered justified in dealing with the brute forthwith; he was a hostis humani generis, an enemy to the human species and “his crimes were so extreme as to authorize any court anywhere to judge” him.

I can’t point out strongly enough what a noxious element this would be in any attempt to transfer the Holocaust paradigm to, in matters relevant here, sex-crimes: the Sex Offender becomes an enemy of humanity (or at least of the entire female gender), and a presumptively incorrigible enemy at that.

I have pointed out in other Posts how American Victimism in the 1980s sought to adapt the Jim Crow paradigm: that ‘victims’ were the equivalent of Southern ‘Negroes’ willfully and deliberately and comprehensively demeaned, brutalized and oppressed by the Jim Crow Regime, and Sex-Offenders were the equivalent (in the script of the paradigm) of the leering, incorrigible white Southerners who ran the Jim Crow Regime.  What I am saying here is that there was another paradigm, even more lethal if misapplied to individual sex-offense cases: the Sex-Offender (so often male) was cast not only as the white-Southerner against whom any and all the resources of the government could be brought to bear – and had to be brought to bear. He was also cast as the anti-Semitic Nazi who made a career out of indulging in the most horrendous of crimes against a gender (at least, if not the whole of humanity).

Also, Douglas does not address what Arendt had already seen half a century ago: that it’s an open and vital and ominous question for the West just what limits a government would impose upon itself in pursuing (as well as trying) any such individual once (however it was achieved) he was caught. Because it’s one thing to establish ‘jurisdiction’ and another thing to establish the ground-rules by which the capturing government would consider itself bound. Arendt was not pleased that Eichmann was tried in an Israeli court since, as a matter of principle, the Israeli government – especially as it sought to embody and represent itself as the avenger of the rights of all Jews in the world – could hardly have been considered an impartial judge.

Neatly, Douglas limits himself to using examples of universal jurisdiction that are confined to political dictators and their underlings: Pinochet, the Serbs in the 1990s Balkan strife, and – as a condescending aside – “the passion of Belgian prosecutors to seek indictments against just about anyone – Ariel Sharon, Fidel Castro, and Donald Rumsfeld among others”. This is a shrewd bit: while urging that all nations had a right to involve themselves against the perpetrators of ‘crimes against humanity’, he quickly reduces ‘inconvenient’ decisions to ridicule: the Belgians have had the temerity to seek such indictments against high-ranking members of both the Israeli and US governments (and Fidel Castro, tossed in for further yuks). Apparently the Belgians haven’t gotten the Memo that the Good by definition cannot do anything Evil.

But, he continues, the Eichmann trial (meaning the final outcome determined by the Israeli court) not only established universal-jurisdiction, but also the fact that it is best to conduct such trials in a country “where there was a strong organic link between proceedings, people, and place” so that the trial could more fully achieve the goals of exercising “retributive justice”, establishing “a baseline historical account”, and “as a means of conferring dignity on the lived experience of the survivors”.

In other words, in this type of enemy-of-the-human-race and crimes-against-humanity trial, you most specifically did NOT want the trial to take place in some ‘neutral’ or ‘objective’ setting; instead you wanted the trial of such an enemy-of-humanity to take place in the presence of the specific groups of humanity against whom he (perhaps she) had committed the crimes.

Thus in this type of case you precisely did NOT want ‘impartiality’ because of the existence not only of the civilization-assaulting crime but of the perpetrator’s part in it (an admittedly and clearly proven role as a key SS officer in the Holocaust process). The court's role in such a situation is indeed not so much as a finder-and-trier-of-fact as it is an instrument of almost foreordained retributive justice. But again, you cannot – especially in American law – enter upon a trial, or erect a species of ‘special-type’ trials and a special-category of offenses, in which any such presumptions apply because there is no way that such ‘evidence’ as obvious as Eichmann’s role in the Holocaust could apply.   

So it’s a curious blend of an objectively universal-jurisdiction BUT a verrry specific (and no doubt emotionally charged) localization.

And I can’t help but notice that this is precisely the sort of double-stance taken in the SO Mania practice: a Sex-Offender is a horrible perpetrator of a horrible crime against all of a gender or all of humanity; yet you want to make sure that there are plenty of interested and highly-emotionally charged folks involved in the trial (and not just as survivors but as judges and prosecutors as well as jurors).

The Holocaust paradigm – even as applied to subsequent types of crimes-against-humanity – has some validity, certainly; uniformed or clearly-authorized agents or leaders of a government are easily identified as such, as was the crime of the Holocaust certainly. But this is not at all the case with individual sex-offenders accused of any of a hundred or more possible ‘sex offenses’ of whatever severity (or lack of it), even though the Sex Offender of myth and nightmare is spun implicitly as some domestic equivalent of the lifelong Pirate or Nazi death-camp official.

So, Douglas concludes unsurprisingly, Arendt is “proven wrong”. “When courts attempt … [to act from] … a position of Archimedean neutrality, the act of judgment threatens to turn into something arrogant and ultimately arid. The Eichmann trial, by contrast succeeded brilliantly.”

In other words, in these types of cases ‘neutrality’ is precisely NOT desirable. He describes such objectively handled cases, kind of weirdly, as “arrogant and ultimately arid”. I think what he means is that if you actually haven’t been specifically and locally victimized by a particular enemy-of-humanity, then it is arrogant to take his prosecution for yourself rather than letting those who were directly his victims take over the job; and that such objectively handled cases aren’t emotionally useful but instead are “arid”, dry and factual but with no – I’ll say it – oomph and pizzazz, such as is lent by a hefty dollop of ‘survivor stories’. Or, to use a high British government official’s assessment of the ‘justifications’ being passed around for the invasion of Iraq in 2003, the case was being “sexed up”.

Such brilliance.  

This is a form of ‘victim-justice’ that borders very dangerously on vengeance and revenge. It may be justified in some monstrously and extraordinarily rare and massive instance such as the Holocaust perpetrated by the Nazis against European Jewry, but such a profoundly and dangerously regressive principle must be (or should have been) carefully and strongly boundaried, in order to prevent a general regression of Western Law back to the Dark Ages.

But instead, this lethal and volatile regressive mutation has been taken as some form of new cutting-edge ‘reform’ of Law under the pressures of Victimism and those interests that seek to advance their agendas through it. There are now generations of law school students who have been taught for all practical purposes that the dynamics of the Holocaust Paradigm join the Jim Crow Paradigm as the cutting-edge of legal ‘progress’ and ‘reform’ in this country, and applicable to domestic criminal law; many of those law school graduates are now not simply to be found among the ranks of attorneys and prosecutors (and government ‘public interest’ bureaucratic lawyers), but among the ranks of judges and legislators – at all levels.

We in a heepa trubble, as the saying goes.

Again and in conclusion, I’d say that this may work in matters of actual crimes-against-humanity (though it is still legally a vague and elastic charge). BUT it most surely is a treacherously dangerous principle to deploy in domestic criminal justice … or in a Sex Offense Mania Regime.

NOTES

*I can’t access it online to give you a link. The one-page review is in the print edition of ‘The Times Literary Supplement’ (of London), June 24, 2011 edition, p.10, and the review itself is entitled “Bigger fish”, written by Lawrence R. Douglas. It reviews a new book by Deborah Lipstadt entitled “The Eichmann Trial”, ISBN 978-0-8052-4260-7.

**It’s not hard to see where the Eichmann trial precedent would also provide conceptual fodder for justifying various types of ‘rendition’ and ‘black ops flights’ in recent US policy.

ADDENDUM

I am making this Addendum on 11 August.

In light of the UK riots, I add here that it is not at all irrelevant that this trope of ‘no impartial and objective justice’ that we see introduced in official proceedings here in the Eichmann trial found its way into – among many many other venues – the UK philosophy of policing.

As this article indicates, in 2002 the UK Association of Chief Police Officers issued a “hate-crime manual” that suddenly overturned the entire concept of impartial-policing and impartial-enforcement of the laws. Instead, such impartial justice and law enforcement was scorned (by the Chief Police Officers!): They actually used ironic quotes to say that “colour-blind” policing is policing “[T]hat purports to treat everyone in the same way. Such an approach is flawed and unjust. It fails to take account of the fact that different people have different reactions and different needs. Failure to recognize and understand these means failure to deliver services appropriate to needs and an inability to protect people irrespective of their background”.

This concept of the wrongness of objective and impartial justice and enforcement is precisely what Professor-Lawyer Richards crows is one of the great contributions of the Eichmann trial to Western jurisprudence.

The linked article goes on to quote the Chiefs that all police officers will be “retrained” and if they have any problems with this whole thing they will be “disciplined”.

In terms of the UK riots this past week, it resulted in one senior police official complaining that the weak police response was due to the police not getting orders from politicians. You might wonder why – confronted with clear evidence of a riot-in-progress – the police would not know what action to take. BUT if the police have now been hobbled by their Chiefs’ (no doubt politically demanded) embrace of Identity Politics’ and multiculturalism’s ‘partial policing’ rather than ‘impartial policing’, then it’s clear that in the face of rioters with ‘backgrounds’ that must be very carefully ‘respected’, they literally did not know just how much ‘law enforcement action’ they could take. And the riots rolled on for days.