Saturday, April 24, 2010

If It Saves One Child: The Trading of Freedom for Security

This article was added to the front page of Think about how far these laws are going as we are trading freedom for a false sense of security.

If it Saves One Child: The Trading of Freedom for SecurityBy Derek W. Logue

When Patty Wetterling first lobbied for a sex offender registry in 1990, she was met with resistance because people knew these laws violated the civil rights of those who served their sentences. Twenty years later, the pendulum has swung completely; the public feels we cannot pass enough laws against people convicted of sex crimes . And despite a decline in sex crime cases since 1993 (before the passage of modern sex offender laws) , our culture fears the sex offender more than any other criminal in our culture.
Over the past two decades, a definitive pattern has repeated itself in our culture and media which has led to our current state of “Predator Panic.” Mass media offers round-the-clock coverage of a tragic rape-murder, almost always of a white female child . Through the victim’s family or through legislators, a new bill is introduced or an existing law is expanded. Most, if not all, sex offender laws pass without dissenting votes or even debating the laws in question ; facts and studies about the true nature of sexual abuse are ignored in favor of harsher post-conviction sex offender laws. These laws are justified by such myths as “sex offenders are highly likely to re-offend” and “all sex offenders are ‘predators’ or ‘pedophiles’” coupled with the generalization all sex crimes are similar to the high-profile sensationalized cases used to justify the passage of these laws .
Law professor and author Eric S. Janus warns us sex offender laws are a “harbinger of a preventive state” and re-introduce the concept of a “degraded status” that was largely abolished during the civil rights era . One recent case in Ohio illustrates Janus’s point perfectly. In the decision to retroactively apply registration duties under the Adam Walsh Act, Ohio’s First District Court of Appeals stated:

“By their voluntary acts, sex offenders have surrendered certain protections that arguably are afforded to other citizens. Their conviction of felony offenses puts them into a class that has already been deemed to have no expectation of finality in the consequences of the judgments against them .”

   One of the primary features of this trend has been the exclusiveness of sanctions specifically targeting those on the sex offender registries. The shift towards this degraded status began with the creating of the first registry under the Jacob Wetterling Act in 1994, followed by community notification, residency restrictions, GPS monitoring, and other laws . In 2003, the US Supreme Court upheld the public registry, stating the laws were “regulatory” and not “punitive,” meaning Constitutional safeguards do not apply to the public registry . Since that decision, the US Supreme Court has only made one single ruling against any sex offender laws; the Kennedy v. Louisiana decision ruled 5-4 against the use of the death penalty in child sex crime cases where the victim did not die .
   Having “no expectation of finality in the consequences of the judgments” against sex offenders has resulted in the erosion of civil rights that could potentially expand to other crimes and eventually a “risk-alone society.” In 2004, the same arguments to justify sex offender registries were used to attempt to pass a Maryland bill that would have made a public AIDS registry. It was argued AIDS patients were “bad people,” many of them “brought it upon themselves,” they are “high-risk people,” and it is a “public safety” issue. While that law was struck down (for now), other registries began popping up in different locations, from violent offenses to DUI registries. A few places even have “dangerous/ vicious dog” registries with Fido’s picture, street address, and a map showing where they live. The United Kingdom already allows people deemed “dangerous” but have never been charged with a sex crime to be listed on their sex offender registries. The United States has not passed a similar law yet, though the state of Ohio passed a “civil registry,” which forces people not convicted in criminal courts to register and abide by all other sex offender laws through a civil court (and a lesser burden of proof) .
   A recent poll revealed 51% of American citizens would gladly give up personal freedoms for laws that make them feel more secure . Slowly we allowed personal rights and freedoms to erode in exchange for a false sense of security. Columnist Naomi Wolf described 10 steps of fascism in writing about the Bush administration;  current sex offender legislation follows her pattern as easily as the war on terror:

1.   Invoke a terrifying internal and external enemy: It is obvious sex offenders are the most vilified members of our culture. In a recent billboard campaign asking “what’s forgivable” in our society, the general consensus was sex offenders are unforgivable .
2.   Create a gulag: Janus has pointed out the sex offender is America’s degraded class complete with a separate set of legal rules registrants must follow . Laws regularly dictate where a person and live, work, or even worship. Few legislators are willing to speak out against these laws because it is political suicide , and mass media largely fails to acknowledge the negative consequences of these laws.
3.   Develop a thug caste: “The feds” were given increased jurisdiction under the Adam Walsh Act, which led to massive round-ups of registrants suspected of failure to meet strict reporting requirements . We’ve justified our laws and actions by claiming registrants are an imminent present threat, despite evidence that proves much of what we know about sex offenders is untrue .
4.   Set up an internal surveillance system: Megan’s Law has been in place for over a decade, and was “intended to increase awareness of dangerous sex offenders in the area .” “Big Registry” is big business, as companies are offering iPhone tracking applications , GPS devices and readers , and even microchip implants .
5.   Harass Citizen’s Groups: Those who speak out against these laws become targets of individual vigilantes, with the legal system rarely offering sanctions against those who assault registrants. In 2009, a Seattle woman received a mere 90 days for assault with a deadly weapon of a registrant ; outraged citizens had organized and raised money for her $15,000 bail for a woman with a lengthy criminal record . Organizations that sometimes work with police (such as the controversial group “Perverted Justice”) have targeted individuals and groups that speak out against sex offender registries with no repercussions for wholesale harassment of civil rights activists .
6.   Engage in arbitrary detention and release: Civil commitment laws have rebounded in recent years. In 1997, the US Supreme Court ruled a person can be civilly confined under a relatively low standard of “personality disorder .” It has become nothing more than a means of detainment; since 1993, no one has ever graduated from Minnesota’s civil commitment centers .
7.   Target Key Individuals: Our fine legislators believe it to be “political suicide” to oppose tough sex crime measures. During a campaign to pass the Adam Walsh Act, America’s Most Wanted host John Walsh shamed would-be opponents to his bill by asking them if they were child molesters or had child porn on their computers . No one opposed the bill.
8.   Control the press: Mass media rarely offers opposing viewpoints to the sex offender laws. Even in our skeptical society, few question celebrity advocates like John Walsh no matter how often scandal and controversy plague him. John Walsh testified before Congress that our country is “littered with mutilated, decapitated, raped, strangled children” while claiming hundreds of thousands of kidnapped children every year . Yet the studies conducted in part by Walsh’s own lobbying contradicts him by proving “stereotypical kidnappings” are extremely rare; only 45 were killed or went permanently missing across the country per year . Mass media needs little goading because child abduction stories equal ratings; the media even called the summer months of 2002 the “summer of abduction” because of the amount of media attention based on the issue . For the most part, fueling the fear rather than objective reporting is the key.
9.   Dissent equals treason: If you oppose tough-on-crime measures, you are a “hug-a-thug” liberal, or worse, a closet pedophile. Politicians running for office in Omaha Nebraska were the targets of a flier campaign from the local police union claiming they allowed sex offenders to roam the streets; the campaign was retaliation for opposing viewpoints on police pensions . Another site targeted a Wylie, Texas Councilman and the Mayor for “supporting” a registrant .
10.   Suspend the rule of law: For years, sex offender laws have been circumvented the Constitution because they were considered “regulatory” rather than “punitive .” The Adam Walsh Act was passed under “Suspension of the Rules” without even enough members of the Senate to hold a quorum. Most of the provisions of the bill were added just minutes before the suspension of the rules vote . Not only did the vast majority of the US Senate failed to vote on the Adam Walsh Act, most of them had not even read the bill! Former US Attorney General Alberto Gonzalez applied the rule retroactively using “Interim Rule,” which bypassed APA procedure due to “pressing emergency .”

This issue is not a matter of sympathy for those convicted of sex crimes. In an ideal society, they would be punished and receive treatment for their crimes, but also given a chance to be productive members of society after serving their sentences. Thanks to a perfect storm of moral panic, a society willing to surrender Constitutional safeguards for security, a Big Brother bureaucracy, and a “Big Registry” industry willing to further erode our civil rights, we are no closer to sex crime prevention but closer to an Orwellian “risk-alone” society.
In vetoing a bill that would exclude teens from registering for consensual sex with other teens within four years of each other, Texas Governor Rick Perry stated it was to “protect young victims .” Texas has over 4000 sex offenders listed on the public registry who were convicted as juveniles, many for consensual sex with other teens . How much are we willing to sacrifice to “save one child?”