A Subconstitutional System

One of the pitfalls of experience is that you’ve seen things before.  Painful memories of the birth and growth of civil in rem forfeiture in the 1980s, when it had a cool slogan (“take the profit out of crime”) and was only used to whack drug dealers and the occasional mobster. It gave rise to a body of law, both statutory and case, that created a bizarre hybrid system to deprive people of property based on the wildest conjecture and surmise.

Imagine someone was to arrive from Pluto and suggest we create a tier of law that allowed the government to seize and keep the property of people who have been convicted of no crime, on the basis of probable cause because it’s presumed that anyone using currency is a criminal, and shift the burden onto the property owner to prove he’s not, with the expense and burden of a legal proceeding, not to take it but to get it back.

It seems ridiculous that such a system, a process that falls far below what our beloved platitudes about justice suggest would ever be permitted, could exist. Yet it does, to the deafening applause of the public, because we hate those drug dealers and mobsters, and they don’t deserve a fair system. Screw ’em.

Then came the Sex Offender Registries, and civil commitment, where people who served their sentence, paid their dues to society, were moved from criminal prison cells to civil prison cells and held forever.  If they were released, it was with the caveat that they couldn’t live, work, play or breathe air that came anywhere near our children, lest they molest them or teach them to pee against the wall in a dark alley.

There were no trials, no sentences.  Hell, there didn’t even have to be a law at the time they did whatever put them in prison, so that they could at least consider the ramifications for the rest of their lives when deciding whether to take a plea.  But then, these were sex offenders, because it said so on the name of the law, and nobody is despised more than sex offenders.

And these were criminal punishments imposed upon them for committing a crime. Oh no, they were civil in nature. Courts said so, and just as the sun rises in the west if a court says so, that made it completely different and absolved the government from proving guilt beyond a reasonable doubt to continue to imprison people until politicians tired of building prison cells.

Now, colleges and universities have adapted an internal mechanism that was originally built to decide whether a student plagiarized a paper to serve as a subconstitutional criminal adjudication system, under the guise of Title IX that provides that women be given the same opportunities as men.

But it’s not that they can impose prison for someone “convicted” of rape in a system that barely scratches the surface of due process, decided by sociology professors who are schooled in justice by Title IX coordinators with sets of rules explaining why sexual assault survivors can’t be expected to provide evidence, coherent narratives or even timely complaints of their post hoc regret.

So what if the penalty will follow the male for the rest of his life, suck hundreds of thousands of dollars in school tuition down the drain and foreclose his dreams of a future, since the trauma of being female is so overwhelming that to expect more, such as responsibility for one’s own actions, would serve to re-victimize.  And they’re rapists, so who cares if they get the shaft. They deserve it anyway.

Despite all the heartwarming things we say about our legal system, we are watching the construction of a second tier of process, falling well short of that which the Constitution and experience tells us are required for even a modicum of fairness, and we shrug.  We make excuses, rationalizations, passionate cries for results that sate our political leanings, without the slightest concern that another subconstitutional system is being created right before our eyes.

It’s happened before, and we did nothing. Sure, twenty, thirty years later we came to realize that it wasn’t as good an idea as it first seemed, but by then it’s too late. The subconstitutional system had become deeply embedded in our jurisprudence, a given in the system because nobody challenged the silly excuses for why this was an acceptable method of adjudicating people’s lives.

Yet, as it happens again, right before our eyes, we still fail to see it for what it is.  Oh yes, civil in rem forfeiture is horrible, but this is completely different.  Civil commitment of sex offenders is a constitutional outrage, but this is different.  And remember Japanese internment camps?  Before my time too, but that was different as well, as we were so afraid of the Japanese at that moment that all rules of propriety flew out of our head. It’s not like we would still hold people in internment camps, without charges or conviction, for years and torture them because someone in the executive branch decided to call them “enemy combatants” instead of human beings, right?

But let’s take it as a given that you don’t give a damn about drug dealers, mobsters, sex offenders, wall pee-ers, Japanese, people with middle-eastern names. Screw ’em. They’re the collateral damage suffered to protect us from disaster.

This time, it’s our male children. Kinda biblical, but are we really prepared to sacrifice them to yet another subconstitutional, second-tier system designed to assure their sacrifice in the name of yet another perfect world goal of making sure all women, no matter what, feel safe?  Isn’t their safety paramount?  And so we make the same tired excuses and rationalizations to justify a system that falls well below the modest demands of due process one more time.

George Santayana knew what he was talking about, but it’s not as if his point is widely grasped.  So here we go again, and most of you are so self-absorbed about the end game that you fail to appreciate the means being used to provide you with the safety and comfort you so desperately crave.

20 thoughts on “A Subconstitutional System

  1. Bartleby the Scrivener

    As the parent of three children who were grossly abused by their biological parents, I am possibly an unlikely ally when it comes to opposition to offender registries, but I tend to agree with your position on offender registries. I think even felony records should have a default of expungement after a particular period that is dependent on the severity of the crime in question. Do people really think a 40-year-old man who beat someone up when he was 17 or sold pot when he was 19 but has done nothing worse than get a traffic ticket since then really a threat to society that needs to be denied access to any job that pays a decent wage?

    Alas, the popularity of such registries seems to be growing, not shrinking. Do you really think there’s a chance of ending these stupid things?

    …and there are times I could see there being legitimate uses of a registry that is not wide open to the public and to which one can only submit inquiries with legitimate cause (e.g. “I’m considering hiring this person to lawfully procure exotic animals for me. Have they been convicted of trafficking in endangered species?”) but as they are, they stink something fierce.

    1. SHG Post author

      When people come up with these brilliant ideas, they only think, “how can I accomplish goal X?” They then sell the idea based on their myopic perspective. They are oblivious to everything else, from propriety of methodology to collateral damages to cost/benefit analysis. And most people are too simplistic (or disinterested) to look beyond, “goal X? Seems legit. Okay then.”

  2. Jim Tyre

    When I was a young and foolish lawyer (whether I’m still foolish is beyond the scope of this comment, but fair game for SHG), I took a certain satisfaction in certain civil in rem forfeiture actions here in California. If cash was involved, the style of the case would be something like People v. $176,543.21.

    It really isn’t very often when it’s the people v. the money and the people win.

    1. SHG Post author

      That’s amazing, considering what an unmitigated disaster it is everywhere else, where the govt almost never loses.

  3. lawrence kaplan

    What is sad is how many will go along with this new idea, or at least not oppose it openly, for fear of being accused of being sexist or “rape apologists.”

  4. John Barleycorn

    So, pragmatism gets the job done but a little radical empiricism can go a long way?

    It is starting to sound as though you CDL’s are increasingly in need of some sort of metaphysical super power sword made out of steel silk that can cut through the webs. Webs being spun in some sort of cloaked neo-evangelical quest with a crop of new puritans along wanting more neo in their lives. Webs in search of redefining hypocrisy as some sort of hyper-henosis to “protect the children” even.

    And here I thought you CDL’s were about ready to unveil the existence of a secret foundry society that was nearing completion of a whole new generation of defensive armaments that would at long last propel justice into the realm of nearly rational certainty.

    I am bummed. What a gyp!

  5. Neil Dunn

    Thank you for this important integration of historical wrongs, the cause, and the solution.

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  7. Bruce Coulson

    Another perspective on the two-tiered system of law(s) that we the people have created is Matt Taibbi’s “The Divide”. (No link per rules.)

    1. SHG Post author

      While an excellent read, it has absolutely nothing to do with this post. I posted your comment because it is worth reading, but try your best to stay somewhere close to topic.

      1. Bartleby the Scrivener

        Added to my list. If Mr. SHG recommends it, I’m going to give it a read.

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