Tuesday, June 24, 2008

Trial by Travesty

I've researched, and been disturbed by something about which I dare not write... but I cannot remain, even so silent.

The writing of this passage may place me in danger, but again, silence would render me derelict in the duty to the Constitution, and to the people of the United States.

When one cannot speak for a group, cannot speak in their defense without being charged with the same kinds of crimes for which they are accused, then it is ever more vital to speak. To do otherwise would be to encourage both tyranny, and totalitarianism.

I've been watching with concern a number of laws passed by congress, and I propose a new test... a test of reasonableness, and of legality which is, prima facie, a test of what constitutes a civil right, of reasonableness and conscience.

The Wetterling Act provided for a central database of 'sex offenders' and created a system of access that allowed law enforcement to provide possible suspects for sex crimes. It was limited to only the courts, and only the police. This, I feel, was an utterly valid act, insofar as it only affected those whom were adjudicated after the passage of the law.

However, of late, myriad amendments, modifications, and adjustments of the law have passed, creating ever more draconian measures. Upon the opening of the registry (under 'Megan's Law') there have been increasing reports of both abuse, and vigilante 'justice' meted out by individuals. After the 'Adam Walsh Child Safety Act' the restriction on offenders, and the supervision was further increased, at their own expense, without the adjudication process, or a jury trial.

The latest attack comes on the internet. Though earlier references to the internet existed, the latest 'KIDS' act instantiates a ruling that, by nature of the act, substantially limits, and depending on interpretation, completely removes the rights of those judged as 'Sex Offenders' on the registry to be on the internet.

How is this bad, one might ask? It makes our children safer! Does it? Does it really provide any vestige of security?

Ask yourselves this: How common are these crimes, and how are they judged? The truth is, any question about sex, sexuality, or discussion of pregnancy or virginity is, by definition, a sex crime on the internet. Any discussion of responsible activity, the dangers of date rape, questions or surveys about masturbatory habits, and even this particular document, by fiat, are defined as a sex offense, simply because, if a child reads this article, it deals with sex.

Is this wisdom? Is it just or good?

Yes, some sex offenders engage children on the internet by deception. The same proportion equally have the criminal thinking allowing them to attack children, or adults, without regard to the internet. The criminality of the thinking does not change with the internet of without it.

However, in America, we cannot attack someone for what they 'might' do. Without regard for those esteemed congressmen who claim that we 'should' there is no constitutional power to do so, at the county, state, or federal level.

The only way rights can be removed, the only way restrictions can be placed, and the only way attainder can be processed is via the court of law, and trial by jury, including the doctrine of jury nullification that is, since the 13th century, the right by which the jury tries the very 'legality' of the law itself.

In our country, however, since 1990, and the O.J. Simpson case, we have abandoned this doctrine, and the courts are prohibited from speaking on it. The right still exists, but the defense cannot speak of it, nor can the prosecution or the judge, due to sanctions.

Is this a wise, or just course? Is it consistent with the jurisprudence to create a system by which a person is guilty, until they can prove themselves innocent beyond the shadow of a doubt.... and the shadow of a doubt bar is raised high enough that they can never again become innocent?

Were this any other class of persons, shoplifters, persons guilty of assault, identity thieves, persons guilty of banking fraud, or those guilty of gross and deliberate malfeasance of office, would we react the same?

The pertinent sections of the KIDS act (S 431) are as follows:


    (a) In General- Section 114(a) of the Sex Offender Registration and Notification ACT(42 U.S.C. 16914(a)) is amended--

      (1) by redesignating paragraphs (4) through (7) as paragraphs (5) through (8); and

      (2) by inserting after paragraph (3) the following:

      `(4) Any electronic mail address or other designation the sex offender uses or will use for self-identification or routing in Internet communication or posting.'.

    (b) Updating of Information- Section 113(c) of the Sex Offender Registration and Notification Act (42 U.S.C. 16913(c)) is amended by adding at the end the following: `The Attorney General shall have the authority to specify the time and manner for reporting of other changes in registration information, including any addition or change of an electronic mail address or other designation used for self-identification or routing in Internet communication or posting.'.

    (c) Failure To Register Online Identifiers- Section 2250 of title 18, United States Code, is amended--

      (1) in subsection (b), by inserting `or (d)' after `subsection (a)'; and

      (2) by adding at the end the following:

    `(d) Knowing Failure To Register Online Identifiers- Whoever--

      `(1) is required to register under the Sex Offender Registration and Notification Act
      (42 U.S.C. 16901 et seq.); and

      `(2) uses an email address or any other designation used for self-identification or routing in Internet communication or posting which the individual knowingly failed to provide for inclusion in a sex offender registry as required under that Act;

    shall be fined under this title or imprisoned not more than 10 years, or both.'.

So.... if you are guilty of a misdomeanor sex offense (public urination, exposure 'mooning') due to Adam Walsh, you're on the registry. You may have recieved a one month sentence (or no sentence, but a warning 'not to do it again') but failure to register all online identifiers or routing identifiers is a felony punishable by ten years in prison?

Is this just? Is it reasonable for the purposes for which it is enacted? Will it be effective? Are there any less restrictive measures that could be emplaced?

The term 'other designation for routing' includes the following, off the top of my head that I know of: Anonymous UDP packet headers, DHCP discovery packets, IP addresses (often dynamic, and no notification when they change), email and email server routing systems (which are not under the user's control). MAC addresses (changes on every machine and router)

There is a further requirement to register chat names, defining a 'social networking site' as the following.


    Section 111 of the Sex Offender Registration and Notification Act (42 U.S.C. 16911) is amended by adding at the end the following:

      `(15) The term `social networking website' means an Internet website that--

        `(A) allows users, through the creation of web pages or profiles or by other means, to provide information about themselves that is available publicly or to other users; and

        `(B) offers a mechanism for communication with other users.

End quote.

This defines any system (internet telephony, vocal communications, visual or optical communcations (including assistance devices for the deaf) political commentary sites, morse code via the internet, php scripts, bulletin boards, and any other potential communication systems, including games.

In effect, and in process, by writ, it removes the right to legal use of the internet by persons not convicted of any further crimes.

Let us extend this ruling to its logical ends! Since it is illegal to do any of this on the internet without registration, let us say that there is a greater danger in person. Therefore, no sex offender can go into any place without marking themselves with a tattoo, brand, or distinctive clothing, nor can they speak without first identifying themselves as a sex offender, nor can they write any publication for any newspaper without registering the article, nor can they speak in any assembly. They cannot attend churches, as they are a social networking site, and children may be present.

In effect, the law claims a clear and present danger for which these persons must be regulated, without regard for what their current actions are, and without regard for law, or due process. It creates a system of attainder with no judicial review, by which any new law can alter the original, and create a system of ever-changing laws, which must by complied with, without regard to what the prior amendments were.

In effect, it is a punishment, not for the crimes which the person has committed (For which the onus ended when the sentence did) but a punishment for the crimes which they may possibly commit in the future.

The actual recidivism rate (from the US DOJ, and the Arizona Department of Corrections) for sex offenses in specific is actually lower than for any other crime. The statistics say that sex offenders are more likely to recommit for a sex offense per capita than any other offender is... but still, and even so, other offenders account for over 92% of all new cases of sex offenses.

The specialization level of the small percentage (between 6 and 12%, depending on the population) is extreme. However, does this excuse the attainder of the rest of the population? Does it excuse marking them with a taint as deserving the punishment?

H.R. 4472 was emplaced, in the words of one of those discussing it (I can't call it a debate, as there was no room for amendment under the suspension of the rules) was, in the house:

From the Esteemed Congresswoman:

Ms. GINNY BROWN-WAITE of Florida. Mr. Speaker, I rise today in strong support of the bill that we have before us, the Children's Safety and Violent Crime Reduction Act.

February 23 marked the 1-year anniversary of Jessica Lunsford's death. I knew the family; I knew the grandmother. If Jessica were still with us, she would have been in the fifth grade. She would be learning about decimals and fractions and the solar system. Instead, her life was taken by a sex offender who assaulted and murdered her, and then buried her in his backyard. Tat is what this bill is all about, going after those, as someone once described, pond-scum predators.

End Quote.

The bill was described as legal in its ex-postfacto obligations because it served a regulatory purpose as well as not having any 'punitive intent'.

How is the above not a statement of punitive intent? How is a bill not punitive, when by any measure of the definition of punishment, it clearly creates legal obligations, subjects those obligations to criminal sanctions, requires the payment of fines and fees in regards to those sanctions, opens the person to both abuse and vigilante 'justice', and prevents in any way, form, or measure their self protection, in a time when the Supreme Court has judged that they have no individual right to police protection, and by the legislation, in many cases, have had their civil rights removed already, including the right to vote and the right to keep and bear arms?

If such a legislation is not constitutional in any other case of offender, how is it constitutional in this case?

What makes an act punitive? Is it the intent of the act, or the way the act is used? I would argue that it is both, either, and more.

If such an act, placed up against any other class of persons, with the same penalties in a 'civil' action, can be viewed as punishment... then it is punishment.

If the act would be considered unjustified and cruel applied to congressmen, persons guilty of domestic assault, judges, murderers, city workers, bad check writers, adult kidnappers... how is it somehow not punitive here?

I concur, that the measure with congressmen, judges, city workers, is not the same measure as the others, nor are teachers, counters of the vote, or any other purpose.. but if the law would be considered punitive applied to them, the same standard applies.

In truth, though, I feel that, in spite of the prohibition in the Constitution of the U.S, under Article 1, section 9 against ex post facto laws and bills of attainder being only discussed in criminal cases, it is just as applicable in civil cases which can be no less punitive or wrong.

The attacked rights fall within the freedom of assembly, regardless of the venue. They are no less constitutional for being in a forum.

This is not to say that one cannot be prosecuted for acts done in such a forum. Slander, libel, and the like, are no less valid in an online forum than a real forum.

However, you cannot punish all for the acts of a few.
Read more!