Monday, March 05, 2007


Not to beat a dead horse, but there’s a straw in the wind. Monica Davey and Abby Goodnough authored an article in the March 4 “Times” ( entitled “Doubts Rise as States Hold Sex Offenders After Prison Terms”.

They report that “about 2,700 pedophiles, rapists, and other sexual offenders are already being held indefinitely … under so called civil commitment programs in 19 states”. The thought arises: if you aren’t a pedophile or a rapist, just what ELSE can you do that would get you committed to a locked state-run mental facility for years over and above – and after – your prison term?

The article goes on to note that the constitutionality of the ‘civil commitment’ has been upheld; the Supreme Court embraces the pious fiction that the purpose isn’t to punish but to provide treatment. That effective treatment has not been developed; that the accurate understanding of the dynamics of sexual activity and the causes, then, of some of those activities or proclivities has not reached even a modest state of ripeness; that it may be quite a long time before any treatment is developed and eons before a treatment is developed specific to each type of sexual acting-out … the Court and the courts have turned off their hearing-aids and closed the briefing packets. Our enlightened modernity has apparently improved – among so many other things – upon Emerson: not consistency but also rationality is the hobgoblin of little minds.

It may be the intimation of the impossible complexity of ‘treating’ crimes that kept the Framers from wading into that swampy abyss in the first place: try the act, prosecute if guilty, imprison for punishment, and at the end of that have done with it. What more can a human government do? What more can mature citizens expect? There was surely enough ‘medicine’ around in their day so that if they felt like making a stab, they could have required the perpetrators of certain criminal acts to – say – be subjected to leeches or laudanum. But no.

We, however, have advanced so very far beyond the Framers and their under-civilized world. Their presumptions about the punishment of the crimes of citizens are as quaint as their presumptions about the workings of democracy and checks-and-balances and the powers and responsibilities of Congress and all that stuff in the creaky and inefficient old Constitution. We live in a world of ‘real men’ now, although some of them are – of course and with all due respect – women. Ah, brave new world to have such people in it!

All those States, and now The Great State of New York, are going in for civil commitment of certain sex-offenders (although the criteria seem, as aforenoted, rather hazy); we might imagine ‘of all possible sex offenders’. California has just dropped 388mil into a 1500-inmate facility, and the Justice Department – the steely but sensitive Alfredo “Quaint Al” Gonzales presiding – is, in sympathetic support of those Great States, setting up its own houses-of-healing for Federal inmates who are ‘eligible’. Amenities will be minimum and security will be maximum.

Various political functionaries, State and Federal, are quoted that they might share their illuminations: “There has to be a process in place that prevents someone from rejoining society if they’re still dangerous”, asserts one New York State legislator. That the Framers obviously thought otherwise, or why they thought otherwise, seems not to have entered his mind. Such is our modern American reality.

Impressively, the authors state baldly that “even with the enthusiasm among politicians, an examination by “The New York Times” of the existing programs found that they have failed in a number of areas”.

They then proceed to tick off a couple-six failures: the offenders selected for commitment are not always the most violent; the treatment regimens are expensive and largely unproven; the cost of the programs (initial facilities and then per capita per year for each ‘patient’ is going through the roof (4 times the cost of ‘regular’ prison); there is no monitoring and sex between offenders and staff – or among the offenders themselves – has been reported; successful treatment does not seem to be a factor in determining who gets released; few States seem to know what to do with the double-whammied men (of course, men) that they eventually do decide to release but have few options for residence or employment.

Now if you went to a State pol and asked for immediate multi-billion dollar funding for a new kind of vehicle that has never quite worked properly and the dynamics of whose propulsion you haven’t actually figured out yet … you might not get a positive reply. Unless you promised to build it in the pol’s district, or make the pol’s wife a member of your board – but that rarely happens. But that’s not how things work in the looking-glass world of sex-offenses, where everybody gets to be the Red Queen and believing impossible things before, during, and after breakfast is what they do for a living.

One inmate was selected for this quasi-permanent confinement because he took “indecent liberties” with two 13-year-old boys in an electronic shop where he worked. Now I hold no brief for hanky-panky with minors, but “indecent liberties” – which obviously did not rise to the level of anything like what is seen on TV news – should constitute no basis for life imprisonment. Especially not in light of the liberties being taken – issuing in fatal or maiming result – with boys only 4 or 5 years older who are sent to the eastern front. And in Florida, where the looking glass clearly works better than the voting machines, one prosecutor wants to send a person with a previous sex-offense conviction to this sempiternal purgatory … for drunk-driving; the ‘stain’ of the prior sex-offense apparently having – to the prosecutor’s mind – an almost Kathlik effect on this wretch’s very essence. There appears to be a theology to this madness, and arising in precincts not heretofore widely esteemed for their illuminations in the realm of the spiritual.

The report goes on that even the advocates of sex-abuse victims are saying that the huge monies being spent – and that will now have to be spent to maintain this system of healing-gulags – would be better deployed in other ways. While this may not indicate a looming rationality and respect for Constitutional realities (the Supreme Court suffering, presumably, from a fit of absence of mind), it more ominously indicates a looming lack of funds among States that are currently hard-pressed to keep recruits and taxes flowing to the Unitarium for its Long War, and they will probably remain in that difficult circumstance for a Long time.

Psychiatric opinion as to the etiology, dynamics, differential diagnosis, therapy, and criterion of therapeutic success is sufficiently divided as to lead one to imagine that casting lots would be as effective a determinant of ‘eligibility’ and far less expensive. It is freely admitted here that the examining of animal entrails or other such haruspicial procedures are too barbaric for these enlightened times.

Yet, the article states with seriously impressive clarity, “supporters of the laws offer no apologies for their shortcomings”. Which reminds us once again of the similarities between the dynamics of the sex-offense mania and the dynamics of the Iraq war, whose Instigator-in-Chief offers no apologies whatsoever and whose Vice-Instigator insists that all is going well indeed. Despite the fact that numerous Deputy-Under-Associate-Instigators now claim that it was a glorious and pure Idea that was hashed up by the aforementioned Chief(s) in the matter of execution ‘on the ground’.

The article, faithful to the current state of the situation, dwells a bit on the complexities of 'risk prediction', how experts try to determine which sex-offenders now approaching release (or the gulags of 'civil commitment') are to be classified. Once again, one is tempted to think of casting lots or consulting an astrologer - if that doesn't violate the Church-State doctrine. Of course, the healthy doctrine of Church-State separation, although hardly well-grounded in the documents of those times, is hell and gone from the far madder doctrine of separation of State and Beyond. To want to hold the State back from putting its immense power behind any one religious vision and organization is one thing; to try to divorce the State from the Ultimate Dimension of Being ... well now that just doesn't sound like a good thing at all. And if there is no Beyond in the life of the State - or rather in the lives of its functionaries - then what is to keep the State within its proper bounds? And if there is no Beyond in the life of its citizens - of The People in the case of this Republic - then what is to keep them from filling that vast void with ... the State, a worse-than-pagan collapse into Flatness?

But the problem isn't with how to predict risk; it's that we have allowed matters to get to the risk-prediction stage at all. Why didn't the Framers? Why hasn't Western Justice, in all the magnificent thought that has gone into its crafting over two millennia, at least toyed with risk-prediction? Computers are modern; thought most surely is not, and was at least as accessible - if not more - to the ancients as to ourselves.

I would propose that the ancients, the Medievals, the Early Moderns, and the Framers did not discuss 'risk prediction' because they knew enough not to touch it with a ten-foot pole. There's no way - short of the haruspix - that one can do it with sufficient clarity, precision, and certainty to justify enrobing the prediction with the awesome and ever-dangerous police power of the State. 'Risk prediction' is a parlor game, or a source for emotionally involving speculation on daytime TV shows, or an academic research problem; it is not a basis for massive social policy, especially requiring huge outlays of increasingly scarce money and huge expansions of the police power of the government.

We can't predict risk. We can't predict re-offense risk. And why just of sex-offenders? What's so special about them? Can we predict whether a pol imprisoned for accepting bribes, for the treachery of using his public office to make money on shoddy equipment sent to the troops in the field, will 're-offend' when he gets out? Is he not-worse than someone who took 'indecent liberties' with 13 year-olds? What about a bank robber? Is there some reason why he is not as 'special' as a sex-offender? Why we are not trying to assess his risk to reoffend? What the hell is going on here?

It is not a risk-free society because it is not a risk-free existence, this human existence of ours. Something has become very very skewed in our society in the past few decades, and it has weakened Us as The People and as individuals and it has weakened and corrupted the structures and the very foundations of our Republic. We need to pay attention.

Clarence Thomas (he who is enamored of the torture on Fox's "24") is quoted for what he wrote for the Court in one civil-commitment case: "We have never held that the Constitution prevents a state from civilly detaining those for whom no treatment is available, but who nevertheless pose a danger to others". Well, two things. First, if you're going to hold someone, even if there's no treatment 'available' and double-especially if it's because there's no treatment possible or even invented, then say it - be a mensch and say what you're doing; don't pussyfoot around with this smarmy dreck about 'therapeutic possibilities' and all that. You wanna run a gulag - then say you're gonna run a gulag and see what The People have to say. Even more: make The People see exactly where it is that their passions are leading toward. That's the service that the Court can perform. It's called Truth. Of course, if Truth fares the same way in sex-offense matters that it does in torture matters, then we've got a much bigger set of problems on our hands than sex-offenses.

Second, what constitutes a unique and confinable 'danger' to others such that even after conviction and time served one must be monitored because of the 'danger' one represents? A sex-offense of some sort is but bank-robbery isn't? A sex-offense of some sort is but swindling thousands of employees out of their jobs and retirements isn't? A sex-offense of some sort is but a general or an admiral buying crap equipment from a company that will fail troops in the field isn't? A sex-offense of some sort is but a recruiter lying to 17 year-olds isn't? A sex-offense of some sort is but lying to the country and starting a pre-emptive war isn't? A sex-offense of some sort is but being responsible for acts of commission or omission that rise to the strict Constitutional definition of "treachery" isn't? Tom DeLay isn't going to be civilly confined? What is going on in this country? What has happened to us?

These civil confinees are called "detainees", and this should raise a bright warning flag: the similarity between the sex-offender methodology and the Iraq war methodology is pervasive. Why wouldn't Bush figure he could 'disappear' anybody he wanted after 9-11? He only had to see what was being done by Mr. and Mrs. John Q. Public to 'sex offenders' in upstanding towns and cities all over this great land of Ours.

But then perhaps the answer is here, in a quotation from a mother "whose daughter's rape and murder in 1988 helped spur the first civil commitment law". She is of the firm opinion that "no sexual predator should walk free and that longer prison sentences should 'absolutely' be considered". The emotions of grieving relatives are very real; they are also rooted in complex human realties, individual and relational. They are deserving of careful, empathetic, and competent attention.

Whether, however, they constitute a valid basis for social policy and for the deployment of the massive police power of the modern government is another question altogether. And it is a question that seems not to have been considered at all. Should Lincoln have stopped the Civil War because some outraged mother lost a daughter? Should Lincoln have tried to assassinate Jefferson Davis because a bereaved mother of a Union solider felt it would help her find 'closure'? Should Lincoln have removed Grant because a bereaved mother who lost a son to a drunk man driving a carriage too fast felt that Grant's drunken galloping (and he did) was victimizing her all over again? Should Lincoln have removed Sherman because some mother felt very uncomfortable with the almost histrionic lability that the general suddenly displayed in the presence of young girls (and the general did)?

Once again, in becoming more 'sensitive' and 'responsive' the government seems to have found a way to engorge itself. Which is precisely what the Framers feared of any government, including the one they themselves were in the process of erecting. The victim's movement - so to speak - has become co-opted by the very vampire it sought to 'hire' to do its will. As the German barons were co-opted by the Austrian corporal. And the result is in no small part one of the roots of the Iraq war and the monstrous dangers facing Our Republic today.

None of which is to hold a brief for unwanted sexual congress of any sort at any time with any person of any age.

All in all this article is a ray of sunlight in a fear-stabbed darkness that should give all serious citizens cause for grave and sustained concern. May it be so. Fiat Veritas, ruat coelum.

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