Modestly proposed

>> Saturday, April 12, 2008

Over at Slate today, Dahlia Lithwick ponders Kennedy v. Louisiana, a case that raises the question of whether rapists can be executed if the victims are children. As with all of Ms. Lithwick's columns, her analyses is thorough and well-written; in my opinion, she is far and away the best columnist Slate has to offer, and if or when she decides to move on to bigger and better things it will be a loss the webmagazine will have difficulty recovering from.

Nonetheless, Lithwick misses a rather crucial issue, one that has me thinking the State of Louisiana might be dead-on in their arguments.

This will surprise readers who know me--I'm bitterly opposed to capital punishment in general. There are quite a few reasons for this opposition. It's wrong to kill people, even when the State assumes the mantle of killer. The justice system is not reliable or accurate enough to guarantee that every sentence is just or even correct--but where an unfairly-sentenced inmate may have his sentence modified or an innocent inmate may be released (perhaps even compensated in some form for the injustice), the death penalty is, obviously, irreversible. Even when a capital sentence falls upon an individual guilty of heinous crimes, the death penalty silences, making it impossible for society to ferret out co-conspirators or better understand (and avoid) the issues that lead to individual crimes (a prime example is the late Timothy McVeigh--not someone anyone except his mother might feel sorry for, but the rash decision to execute him means there's no possibility now of him ever opening his mouth in ten or thirty years or on his deathbed to identify any other men who might have helped him murder 168 people). On the other side of this scale, the death penalty accomplishes little or nothing: there's no evidence it deters murders, it doesn't magically reincarnate the victims; and to the extent it may satisfy some irrational and primitive urge for vengeance, one might note that the entire reason a civilized society creates a legal system of almost any kind is so that an objective third party may settle disputes--I might indeed want the person who killed a loved one of mine to die, but that's exactly why I should play no role in making that decision.

There are other issues I'm overlooking, I'm sure, but that's enough of a place to start. And yet I have to wonder if killing child molesters isn't a good idea. Not in a particularly serious way--note the title of this piece again--but in a somewhat cynical way influenced, probably, by the abortive satellite-based monitoring hearing I was sort of vaguely a part of earlier this week. (Since people will ask: ten minutes into the hearing it had to be suspended because of an evidentiary issue, and I will say no more tho' I am sorely tempted.)

See, allow me to explain something to everyone who isn't involved in the legal system. It's something that's pretty obvious, especially in a year like 2008, except that nobody ever seems to think about it. Even lawyers sometimes miss it--I had a good friend and colleague sort of rhetorically scratching her head, except her rhetorical question was actually one with an unfortunate and definitive answer. Her question, of course, was what do sex-offender registration and tracking statutes accomplish?

Some naive folks no doubt think these statutes somehow magically make them safer. That's funny. Because knowing that your neighbor was convicted ten years ago for an offense of which you know absolutely none of the details allows you to do what, exactly? Warn your child, tell your other neighbors? Throw rocks at his house? Well, alright, it'll let you do that last one, and any other vandalisms or assaults you wish to visit upon the person who did whatever it was that led to his sentencing for whatever. But aside from that, what do these schemes do? Zilch. And tracking these ex-cons with GPS--how high-tech, we really are living in the future!--what does that do? I suppose if the bastard decides he's going to re-offend and is too stupid to take off the fanny pack containing the tracker, and decides to abduct somebody, then it will make it easier to track the violated victim down? Right. No, that's not why we have these statutes folks! Here's why we have them:

We have these statutes so that when your friendly local elected officials run for re-election to the State House, they can tell you how tough they were on crime, much tougher than their opponent was or ever could be.

Seriously. That's it. Same reason we have all those horrible DWI/DUI laws--probably much worse than you think. (I can't speak for all states, only my own, but my guess is that when you think about DWI/DUI laws, you probably think about somebody you knew fifteen years ago who had a little bit of a run-in coming home from a bar one night, maybe when he was in college. Boy, are you probably in for a surprise!) Child-molesters and drunk drivers have the least effective lobbies in the United States of America. Every election cycle, there's somebody out there willing to put a picture of their dead baby on a poster. And nobody who's going up to the capitol to have lunch with Representative Schmucktard to talk about more rights for NAMBLA members. Does. Not. Happen.

Something to think about next time you're being manipulated by your elected officials. Just saying.

Of course, some of you may be thinking that these bastards deserve to be punished. Sorry! Sex-offender registration schemes aren't punitive, that would make them unconstitutional! I hate to disappoint you, but registration schemes are regulatory, just ask the Supreme Court Of The United States. (Or take a look at Kansas v. Hendricks or Smith v. Doe or any of the other fine cases on point: civil and regulatory schemes, good; criminal and punitive schemes, bad. Got it? So, if you are in favor of really cranking it to the pervs, keep that in mind when you're making your arguments to others. Instead of saying, "I really think that bastard who molested that six-year-old and plead to a reduced charge ought to pay for it for the rest of his life," say, "I really think that bastard who molested that six-year-old and plead to a reduced charge ought to be subject to a non-punitive civil regulatory scheme that meets the Constitutional requirements of Kennedy v. Mendoza-Martinez." Got it?)

But back to killing the perverts: thanks to these wonderful schemes to protect the public--you do feel protected, don't you?--even if one of these guys pays his debt to society, gets rehabilitated if he needs it and tries to make a fresh, not-gonna-be-a-pervert-anymore start in life, he's screwed. He's on a list, he's court ordered not to live anywhere where there might be a human being under the age of forty within a hundred thousand miles, and nobody's going to hire him once they've run a background check. Oh, and he may be tagged for the rest of his life with a satellite tracker, like a bear. Hey, I know, it's not the most sympathetic creature on the planet we're talking about. They're not pandas, whose sexual dysfunctions get them on posters and fundraising mailers. But the point is, what do they have to live for? Really and truly: we've decided they can't just pay their debts through hard time anymore, we don't want them living in civilization, we don't even want them working on our cars. It's only a matter of time before the only thing our elected officials can do to them during an election cycle is paint them blue and put them in a sort of leper colony that will have to be closed down when a high school opens two miles up the road from them a year later. (Heaven help our politicians when they no longer have drunks and perverts to kick around. I don't know how any of them will get elected. They may have to change the topic to something meaningless and distasteful like state healthcare reform or fixing the educational system, poor bastards; there may be a rash of suicides.)

That being the case, that writing on the wall, that bright light approaching on the tracks, why don't we do rapists a favor? They won't have anywhere to live soon, anyway. Why not just kill them and put everyone out of their misery, us and them alike? Not to punish them, oh no. We'd merely be regulating them out of existence. Seems simple enough.


Janiece Murphy Saturday, April 12, 2008 at 12:47:00 PM EDT  

Thanks for this post. While I have little sympathy for the pervs (or the drunks, for that matter), your comments have given me something to think about in terms of me being maniupulated by the system.

Also, I almost had an unfortunate coffee-keyboard incident when I read "Child-molesters and drunk drivers have the least effective lobbies in the United States of America."

How true.

Nathan Saturday, April 12, 2008 at 2:54:00 PM EDT  

I forget who posted on the subject recently (Janiece? Jeri?), but you've articulated my thoughts much better than I did in my response there.

And it's apples and oranges, but I despise hate crimes legislation. If I wasn't too lazy, I'd look up the case, but a number of years ago here in NY, a school teacher was murdered by a couple of his students. They thought he was wealthy (he was, but you can only get $1000 at a time from an ATM), so they tied him up and tortured him for his pin number before killing him.

But that's not a hate crime. That was just for money. I'm sorry, but Fuck That. The reason for their crime didn't make it any more or less horrific to the victim.

I have no problem at all with a judge taking motive into account when sentencing someone, but to legislate that some motives are automatically more kind of heinous.

Michelle K Saturday, April 12, 2008 at 8:54:00 PM EDT  


I still have to disagree with you about the state police posting the names, pictures, and crimes of sexual offenders on the internet.

As mentioned previous, my brother's scout master was later offended of molesting a teenage boy. After he got out, we discovered that he was volunteering with young adults in the church. The priest in charge of the program knew nothing about his history.

These lists are available so volunteer organizations that can't afford to do background checks on their volunteers, can at the very least make sure those who stand for their organization will not be a threat or danger to those they are trying to help.

What can you do if you discover your neighbor is a sex offender? Don't have your children play where the neighbor can see them. Or don't lie out in your yard in a bikini. Make sure all your security lights work.

Sex offenders typically don't prey on strangers. They prey on people they know. As long as the people they know, also know this individual may be a threat, hopefully precautions will be taken so someone doesn't accidentally place the individual in a position to easily offend again.

Eric Saturday, April 12, 2008 at 11:51:00 PM EDT  

Michelle, there are two flaws in your underlying assumptions.

The first is that you're confusing the illusion of safety with safety. Assuming that your neighbor on the registry is, in fact, a dangerous potential recidivist, knowing that he is actually does little to protect your family. And, obviously, the registry doesn't protect anyone from a potential offender who isn't on the registry. In short, there's infinitely more benefit in educating your children about appropriate behavior from adults and behaving sensibly yourself than there is in having the registry.

Secondly, you're assuming that anyone who is on the registry is, in fact, a dangerous possible recidivist. That may or may not be true. The fact is that I have no idea whether the former scout master in your example was actually a danger to anyone else--maybe he was, maybe he wasn't, but the registry doesn't tell you that.

What happened with the former scout master in your example is that your community saw that this guy was on the registry and you preemptively took action that may or may not have prevented anything from occurring to people who may or may not have been in danger.

I suppose you might respond that it wasn't worth the risk. You may be right or not--since it's really an unknown risk, it's not really something that can be meaningfully assessed. But the world's a pretty dangerous place: there's nothing to keep the person your community chose to replace the convicted sex offender from molesting those young adults himself, except maybe the intelligence and education of the potential victims.

Michelle K Sunday, April 13, 2008 at 9:50:00 AM EDT  

Yes, we are replacing a known risk with an unknown risk. But the chances are, the men and women we meet on a regular basis are not people who are going to sexual molest other individuals. The vast majority of individuals are normal and not a danger to others.

Yes, everyone must take precautions to keep themselves safe--that's just common sense. But part of that is keeping away from known dangers. You cover the abandoned well so little Timmy can't fall down it. It doesn't mean little Timmy won't fall down an undiscovered sinkhole, but you've done what you can.

And there is a tremendous difference in allowing someone to participate in the community, and allowing them to take a position of authority.

Let me take a different tack. I have lots of friends with children, and the vast majority of them have had both parents working at one time or another. So those children must go into daycare at some point.

Because childcare is so ridiculously expensive, many individuals (at least around here) choose to place their children in the care of individuals. It should be as easy as possible for these parents to make sure their childcare providers and their family members are not a threat to their children.

And if you know someone is a threat, you take steps not only to protect yourself and your loved ones, but also to NOT place that individual in a position where they can be tempted. If you keep children away from the home of a child molester, you are not only protecting the children, but also removing temptation from the molester.

Just as you don't offer legal beverages to someone you know to be an alcoholic, you don't place molesters in a position where they will be tempted.

Nathan Sunday, April 13, 2008 at 11:42:00 AM EDT  


I'm sorry, but you're taking a Utopian view of the whole thing. In your version, Mr. X does six years for feeling up a 12 year old. He gets out of prison and is put on a list. Everyone says, "we won't throw rocks at him but we know not to leave him alone with little Jenny. Otherwise, we'll keep an eye on him but let him get on with his life as long as he behaves."


He works...oh, oops, he can't work. He can't work in a bar because they serve alcohol (although this is the only place of employment I can think of where he'll never come in contact with minors),

He lives...oh, oops, he can't live on a farm because it's outside the city limits where he must remain, but he can't live in the city limits because everything is too close to a school, daycare center, Chucky Cheese.

I don't mean to sound flip, but this is one of those situations that doesn't seem to have any good answers. At least none I can think of.

Eric Sunday, April 13, 2008 at 1:46:00 PM EDT  

The risk is an unknown risk whether you know the person is a sex offender or not. The registry (I'm referring to the North Carolina registry) tells you the offender's name, address, physical information, conviction and length of probation--it doesn't give you access to the offender's SORA (Sex Offender Risk Assessment), details of underlying offense, or any other information that might help you assess whether the convicted sex offender is actually a greater risk than any other person who hasn't been convicted of being a sex offender yet. (Oh, and there's a helpful disclaimer as to the accuracy of the information, which isn't guaranteed.)

There's no way of telling from the registry whether the offender is, in fact, a predatory pedophile who shouldn't be allowed near your child or someone who made a criminal lapse of judgment that will never be repeated. Both kinds of offender show up on the registry, and both kinds of perpetrator wander the world. The fact is that there may be little or no way to distinguish the serial molester of adolescent boys in his basement dungeon from the bastard who got drunk one night and slept with his fifteen-year-old stepdaughter; the latter may certainly deserve to go to prison as a consequence of his actions, but he isn't necessarily a pedophile who shouldn't be allowed to work with teenage boys in a church group.

And if we're so concerned about protecting children from criminals, where are the rest of the registries? There's no registry for murderers, people with histories of assault, people with histories of public drunkenness, people with histories of domestic abuse, people with convictions for child neglect, thieves, arsonists, forgers, frauds or people who routinely drive recklessly (do you want someone like that behind the wheel of a church van?). I'm not really being facetious: violent people and bad drivers are arguably at least as or maybe even more dangerous to children than people who date-raped adult victims, but nobody seems to have dreamt of a registry for people who run stoplights.

I would contend that the politically significant difference between sex offenders and bad drivers is that most politicians and voters have been guilty of the latter than the former (indeed, anyone who has been convicted of a felony sex offense has probably been disenfranchised entirely, although many states now allow convicted felons to eventually regain voting rights). The safety argument is one that is politically profitable and appeals to the gut (hey, it even appeals to my gut), but it doesn't hold up under logical scrutiny. And if the law isn't going to at least try to be reasonable... we're screwed.

Michelle K Sunday, April 13, 2008 at 3:40:00 PM EDT  


Perhaps part of the difference is in WV the list tells you not just what the crime was, but also the age of the victim and the relationship of the perpetrator to the victim and whether there were multiple victims. It also tells you the date of conviction.

So you may not be able to tell everything, but if you see a 50-some year old guy with male and female victims aged 0-6, that tells me quite a bit, as does someone who is 20 who had a 3rd degree sexual assault on a female acquaintance aged 16 to 18.

Nathan, the living in the city certainly isn't a regulation here. I think that most people her live in rural areas. And from looking through the WV list, the majority of people listed are employed (it gives the county of employment as well as where the offender lives.)

Is it an ideal situation? Absolutely not. But is there a better solution?

And Eric, As far as I'm concerned, those caught DWI should be tried for attempted murder. And if you have a DUI conviction you should NEVER be allowed to get your license back, and if you're caught behind the wheel of a car, automatic time behind bars.

(We have a lot of 3+ time offenders in this area, and at least one death a year where the offender kills innocents while DWI.)

Eric Sunday, April 13, 2008 at 5:31:00 PM EDT  

My view would be that these registries aren't a solution at all--so no registry would be as "good" a solution as registering everybody.

I'm afraid that I can't reconcile a hard-line, take no prisoners, no forgiveness attitude with my personal views of compassion and empathy any more than I can reconcile "register some criminals, and not others" to my sense of Reason.

I'm sorry, Michelle, but I have to add that your attitude towards DWI/DUI offenses is utterly absurd. The very first case I ever tried, back when I was in the criminal clinic at UNC, was a poor bastard who got a DWI while trolling along on a back country road on his moped. A state trooper just happened to be on the same road. The only person my client was going to "murder" as he wobbled along at less than 30 mph was himself, but since he had prior DWIs he went to jail for that. Thirty days seemed grossly unfair under the circumstances--your rule would put someone behind bars for 10 or 20 years regardless of whether the driver was in a position to hurt anybody, even himself. (In NC, you can be "driving" if you're behind the wheel of a stopped vehicle with the engine running--a drunk who's sitting in a parking lot with the engine on so he can work the heater would be an attempted murderer under your scheme even if he was going nowhere. Nice.)

I don't share your two-pole absolutism. Few things, if anything, are black and white. Not all sex offenders (or drunks, or "innocents" for that matter) are equal. All of us have our sins and most of us have something redeeming; ironic, I suppose, that an atheist believes in something like Christian charity, but I guess it's another example of how things are never clear and simple. In any case, I'd respectfully and humbly ask you to reconsider your assumptions about other humans, and yourself. Contingency is a remarkable thing, and but for some genetic quirk or single event in each of our lives, it's likely that any one of us could be in the position of any other. Or, as the Christians sometimes say, "There but for the Grace of God...."

Michelle K Sunday, April 13, 2008 at 7:39:00 PM EDT  
This comment has been removed by the author.
Michelle K Sunday, April 13, 2008 at 10:10:00 PM EDT  

That was me.

I decided that I can't really discuss this dispassionately.

Sorry if I offended.

Eric Sunday, April 13, 2008 at 10:22:00 PM EDT  

The problem is that sex offender registries do little, if anything, to deter or to reduce risks. Yes, it will allow you to give the boot to someone who has been convicted of offenses in the past, but that guarantees you nothing.

Drinking and driving may or may not put others in danger depending on the situation. Law is a blunt instrument, not a fine tool--traditionally that's why we give discretion to judges and juries, because it's understood that every situation might be different. Justice requires consideration of what's fair, not merely what's legal. Bright-line, strict laws that allow little or no discretion are an affront to that ideal. That's part of the point I've tried to make in my responses: every case, every situation, every victim, every criminal, every crime is different.

There are certainly people for whom little can be done except wall them off from the public at large for the safety of the community. But a broad label does little to help you spot those folks, and nets people who deserve better.

If I thought a registry was effective in tracking threats to children, I'd agree it was unconscionable not to have one. It doesn't. It merely further punishes individuals who may have already served out the punishments deemed fit for the crime, people who have done their time in prison or completed their terms of probation. Further punitive and retributive measures against those people is, in my mind, unconscionable.

You're not alone in knowing people whose lives have been affected or even ruined by the crimes we've been discussing. It can be hard to be forgiving or objective, but that's why crimes should be dealt with by society and not by individuals.

Nathan Monday, April 14, 2008 at 9:06:00 AM EDT  


This all sort of returns me to my original point. Instead of having laws that mandate blanket punishments for broad offenses, the law should enable a judge to exercise...judgment. Presumably, the judge has been exposed to the particulars of a case. Presumably, the judge is possessed of some level of wisdom. (I know...facts not in evidence.)

Eric Monday, April 14, 2008 at 7:37:00 PM EDT  

Michelle, you didn't offend me and if you offended anyone else, they can suck it up. I was more worried about whether or not I offended you. It's okay to be passionate about things. I disagree with you and would love to change your mind, but what the hey--I've said elsewhere that dissent is the greatest American value. You've forced me to defend my positions, and I appreciate that. Thank you.

Michelle K Monday, April 14, 2008 at 8:38:00 PM EDT  

Thanks Eric,

I just realized that I wasn't arguing rationally or coherently, so it was definitely time to stop.

When I argue from emotion rather than logic neither of us gain anything.

Eric Monday, April 14, 2008 at 9:18:00 PM EDT  

Fair enough. Just don't worry about offending anyone--if I'm offended, I'll let you know.

'Nuff said, then!

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